Transportation Conformity Rule Amendments: Flexibility and Streamlining

SUMMARY: EPA is proposing a more streamlined and flexible

transportation conformity rule. The conformity rule requires that

transportation plans, programs, and projects conform to state air

quality implementation plans (SIPs) and establishes the criteria and

procedures for determining whether or not they do. Conformity to a SIP

means that transportation activities will not produce new air quality

violations, worsen existing violations, or delay timely attainment of

national ambient air quality standards.

Since publication of the original rule in November 1993, EPA, the

Department of Transportation (DOT), and state and local air and

transportation officials have had considerable experience implementing

the criteria and procedures in the rule. The changes proposed today are

a result of this experience and are intended to make the conformity

rule less complex and make it a more effective planning tool. The

proposed changes will not result in any change in health and

environmental benefits.

This proposed rule would give state and local governments more

authority in setting the performance measures used as tests of

conformity and more discretion when a transportation plan does not

conform to a SIP. The proposal would allow motor vehicle emissions

budgets in a submitted SIP to be used to determine conformity instead

of the ``build/no-build'' test. Modeling requirements would be tailored

for different types of areas, and rural areas would be able to choose

among several conformity tests.

DATES: Comments on this action must be submitted on or before September

9, 1996. EPA will conduct one public hearing on this proposal beginning

at 10 a.m. on Tuesday, August 6, 1996, in Washington, DC. As described

in section XVI. of today's action, the hearing will continue throughout

the day until all testimony has been presented.

ADDRESSES: Interested parties may submit written comments (in

duplicate, if possible) to: Air and Radiation Docket and Information

Center, U.S. Environmental Protection Agency, Attention: Docket No. A-

96-05, 401 M Street, SW., Washington, DC 20460. (Those desiring

notification of receipt of comments must include a self-addressed,

stamped postcard.)

The public hearing will be held in Washington, DC, at the Holiday

Inn Capitol Hill, 550 C Street, SW., Washington, DC 20024, (202) 479-

4000.

Materials relevant to this rulemaking are contained in Public

Docket A-96-05 by EPA. The docket is located at the above EPA address

in room M-1500 Waterside Mall (ground floor) and may be inspected from

8 a.m. to 5:30 p.m., Monday through Friday, including all non-

government holidays.

FOR FURTHER INFORMATION CONTACT: Kathryn Sargeant, Transportation and

Market Incentives Group, Regional and State Programs Division, U.S.

Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI

48105, (313) 668-4441.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by the conformity rule are those

which adopt, approve, or fund transportation plans, programs, or

projects under the Intermodal Surface Transportation Efficiency Act or

Federal Transit Laws. Regulated categories and entities include:

------------------------------------------------------------------------

Examples of regulated

Category entities

------------------------------------------------------------------------

Local government.......................... Local transportation and air

quality agencies.

State government.......................... State transportation and air

quality agencies.

Federal government........................ EPA and Department of

Transportation (Federal

Highway Administration and

Federal Transit

Administration).

------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be affected by this

action. This table lists the types of entities that EPA is now aware

could potentially be regulated by the conformity rule. Other types of

entities not listed in the table could also be regulated. To determine

whether your organization is regulated by this action, you should

carefully examine the applicability in Sec. 51.394/Sec. 93.102 of the

conformity rule. If you have questions regarding the applicability of

this action to a particular entity, consult the person listed in the

preceding FOR FURTHER INFORMATION CONTACT section.

The contents of this preamble are listed in the following outline:

I. Background on Transportation Conformity Rule

II. Applicability of the Budget Test and Emission Reduction Tests

III. Implementation of the Budget Test

IV. Non-federal Projects

V. Rural Nonattainment and Maintenance Areas

VI. Modeling Requirements

VII. Consequences of SIP Disapproval

VIII. Mismatch in SIP/Transportation Plan Timeframe

IX. Public Participation

X. Interagency Consultation

XI. Streamlining and Clarification

XII. TCM Flexibility

XIII. PM10 Hot Spots

XIV. Signalization Projects

XV. Conformity SIPs

XVI. Public Hearing

XVII. Administrative Requirements

I. Background on Transportation Conformity Rule

Today's action proposes to amend the transportation conformity

rule, ``Criteria and Procedures for Determining Conformity to State or

Federal Implementation Plans of Transportation Plans, Programs, and

Projects Funded or Approved Under Title 23 U.S.C. or the Federal

Transit Act'' (58 FR 62188, November 24, 1993). Required under section

176(c) of the Clean Air Act, as amended in 1990, the transportation

conformity rule established the criteria and procedures by which the

Federal Highway Administration (FHWA), the Federal Transit

Administration (FTA), and metropolitan planning organizations (MPOs)

determine the conformity of federally funded or approved highway and

transit plans, programs, and projects to state implementation plans

(SIPs). Conformity ensures that transportation plans, programs, and

projects do not produce new air quality violations, worsen existing

violations, or delay timely attainment of national ambient air quality

standards (NAAQS). According to the Clean Air Act, federally supported

activities must conform to the implementation plan's purpose of

attaining and maintaining these standards.

Since publication of the transportation conformity rule in November

1993, EPA, the Department of Transportation (DOT), and state and local

air and transportation officials have had considerable experience

implementing the criteria and procedures in the rule. It is that mutual

[[Page 36113]]

experience which leads to today's proposal, which is the third of a

series of three anticipated amendments to the transportation conformity

rule. In each case, the amendments were needed to clarify ambiguities,

correct errors, or make the conformity process more logical and

feasible. The first set of amendments was published as an interim final

rule on February 8, 1995 (60 FR 7449), and was finalized on August 7,

1995 (60 FR 40098). The first set of amendments aligned the dates of

conformity lapses (i.e., halting of new federally funded highway/

transit projects) due to SIP failures with the application of Clean Air

Act highway sanctions for certain ozone areas and all areas with

disapproved SIPs with a protective finding.

The second set of amendments was proposed on August 29, 1995 (60 FR

44790), and was finalized on November 14, 1995 (60 FR 57179). The

second set of amendments allowed any transportation control measure

(TCM) from an approved SIP to proceed during a conformity lapse;

aligned the date of conformity lapses with the date of application of

Clean Air Act highway sanctions for any failure to submit or submission

of an incomplete control strategy SIP; extended the grace period before

which areas must determine conformity to a submitted control strategy

SIP; established a grace period before which transportation plan and

program conformity must be determined in newly designated nonattainment

areas; and corrected the nitrogen oxides (NOx) provisions of the

transportation conformity rule consistent with the Clean Air Act and

previous commitments made by EPA.

Today's proposal would further amend the conformity rule in

response to several issues raised by conformity implementers and other

interested parties. EPA has worked closely with these conformity

stakeholders to develop this proposal. In March 1995, the National

Governors' Association (NGA) and the Environmental Council of States

(ECOS) hosted a meeting of state DOTs, environmental agencies, EPA, and

DOT to discuss the conformity rule. At this meeting, ECOS presented

nine specific proposals to change the conformity rule. EPA and DOT

committed to address all nine issues. EPA requested that state

workgroups prepare white papers examining four issues in greater depth:

the build/no- build test, non-federal projects, rural nonattainment

areas, and adding non-exempt projects to the transportation plan and

transportation improvement program (TIP) without full regional

analysis. The remaining five issues are being addressed

administratively.

In April 1995, EPA hosted in Washington, DC a conformity

stakeholder meeting of state DOTs, state environmental agencies, MPOs,

environmentalists, industry groups, and other public interest groups.

EPA substantially shaped the meeting's agenda around NGA's four white

papers in order to provide groundwork for stakeholder discussion on

these issues. On June 30, 1995, EPA distributed to conformity

stakeholders draft regulatory language addressing the issues discussed

at the April meeting. EPA received written comments and followed up

with a series of four conference calls in July 1995 to solicit

additional reaction to the June draft language. The draft language and

comments are available in the public docket.

On September 1, 1995, EPA distributed a letter to conformity

stakeholders indicating what EPA and DOT intended to propose regarding

key conformity issues. Today's proposal is based substantially on the

approach described in the September letter.

II. Applicability of the Budget Test and Emission Reduction Tests

A. Description of Proposal

The proposal would change the time periods during which the budget

test and the ``emission reduction tests,'' commonly known as the

``build/no-build test,'' are required. The proposal would eliminate the

requirements for the emission reduction tests once a control strategy

SIP or maintenance plan has been submitted to EPA and EPA has had 45

days to review the adequacy of the SIP submission and its motor vehicle

emissions budget(s). The budget test would replace the emission

reduction tests 45 days after the control strategy SIP or maintenance

plan was submitted to EPA (provided EPA has not found the submission

inadequate), or earlier if EPA has found the submission adequate.

Under the existing transportation conformity rule, both the

emission reduction tests and the budget test are required until EPA's

final approval of the control strategy SIP (or maintenance plan, where

control strategy SIPs are not required). In addition, under the

existing rule EPA has a review period of 90 days before the motor

vehicle emissions budget in a newly submitted SIP may replace a

previously submitted motor vehicle emissions budget.

The proposal would streamline the conformity process by eliminating

the existing transportation conformity rule's reliance on the

classification system of ``Phase II interim period,'' ``transitional

period,'' ``control strategy period,'' and ``maintenance period'' to

determine whether the budget test and/or emission reduction tests

apply.

1. Applicability of Nitrogen Oxides (NOX) Emission Reduction

Tests and Budget Tests in Ozone Areas

Under the proposal, the budget test would replace the emission

reduction tests only for those pollutants for which the submitted SIP

establishes a motor vehicle emissions budget. For example, 15% SIPs for

ozone areas are only required to address volatile organic compounds

(VOC), and as a result, most will not address NOX or establish a

NOX emissions budget. In these areas, the VOC emission reduction

tests (``build/no-build'' and less-than-1990 tests) would no longer be

required, but the NOX emission reduction tests would continue to

be required until a NOX budget is established in a submitted SIP

(unless the area had received a NOX waiver). In ozone

nonattainment areas, Phase II attainment SIPs will establish NOX

motor vehicle emissions budgets.

A submitted 15% or Phase I attainment SIP would be considered to

establish a NOX motor vehicle emissions budget if the submitted

SIP contains an explicit NOX budget that is intended to act as a

ceiling on future NOX emissions and if the NOX budget

represents a net reduction from 1990 NOX emissions levels. A

submitted SIP that achieves 15% or reasonable further progress

reductions by substituting some NOX reductions for the required

VOC reductions would establish a NOX motor vehicle emissions

budget.

2. EPA 45-Day Review Period

This proposal would allow conformity to be determined based on

consistency with a submitted SIP's motor vehicle emissions budget(s),

once the submitted SIP had been reviewed by EPA. (Of course, the

submitted SIP cannot override the motor vehicle emissions budgets in an

approved SIP for the years addressed by the approved SIP. See Section

III.A.1.) The submitted SIP budget(s) would be used for conformity

purposes beginning 45 days after the SIP's submission to EPA, provided

EPA had not found the SIP and its budget(s) inadequate. The submitted

SIP budget(s) would be used for determining conformity before EPA's 45-

day review period expires if EPA finds the SIP and its budget(s)

adequate before expiration of such 45-day period.

If EPA finds the submitted SIP and its budget(s) to be inadequate,

they could not be used for conformity purposes, and conformity would

have to be

[[Page 36114]]

determined using the previously established SIP budget(s), or the

emission reduction tests, if there are no previously established SIP

budgets. If EPA finds the submitted SIP and its budget(s) to be

inadequate after EPA's 45-day review period and after conformity had

already been determined using the submitted SIP, the conformity

determination would still be valid. However, that submitted SIP and

budget(s) could not be used for future conformity determinations.

Projects would still be considered to come from a conforming plan and

TIP if they were included in the transportation plan and TIP that were

found to conform to a budget that was later declared inadequate.

In order for EPA to consider a submitted SIP's motor vehicle

emissions budget(s) adequate for transportation conformity purposes,

the submitted SIP must have been endorsed by the Governor (or his or

her designee) and have been subject to a public hearing. The emissions

budget(s) would have to be clearly identified and precisely quantified.

Each emissions budget would have to be consistent with reasonable

further progress, attainment, or maintenance, based upon a

consideration of all emissions sources. The emissions budget(s) would

have to be consistent with the area's emissions inventory and modeling

assumptions for all sources and show a clear relationship between the

control measures, the emissions reductions, and the resulting budgets.

Each revision to a previously submitted SIP would have to identify the

impacts on point, area, and mobile source emissions, as well as changes

to any established safety margins. Changes to previously submitted

budgets and the reasons for the changes would have to be explained and

documented, including the basis for any changes related to emission

factors or estimates of vehicle miles traveled (VMT), and what those

changes imply for control strategies. If the revised emissions budget

requires additional emission control strategies to demonstrate

attainment or maintenance, such new strategies would have to be

specified in the SIP submission. The SIP submission would have to

contain a quantification of the emissions impacts of such new

strategies and, at a minimum, commitments by appropriate agencies to a

schedule for adoption and implementation, and the draft regulations or

other relevant documents. Consultation among federal, state, and local

agencies would have to occur and full documentation and justifications

would have to be provided to EPA before the SIP is submitted. Any EPA

concerns would have to be addressed before submission if the SIP and

its budget(s) are to be found adequate for conformity purposes. If a

SIP submission does not satisfy these conditions, EPA may find it

inadequate for conformity purposes.

EPA's review of the adequacy of a SIP submission for transportation

conformity purposes is separate from EPA's completeness review. EPA may

find a SIP incomplete after 45 days or after finding the SIP submission

adequate for transportation conformity purposes. An incomplete SIP may

still have appropriate motor vehicle emissions budgets for use in the

conformity process, as recognized by EPA's use of ``protective

findings'' under the November 1993 transportation conformity rule. If

the SIP submission is both incomplete and inadequate for transportation

conformity purposes, EPA would have to declare the submission

inadequate for conformity purposes in addition to finding it

incomplete.

3. Areas That Are Not Required to Submit Control Strategy SIPs

Background. Under the existing transportation conformity rule,

areas that are not required to submit control strategy SIPs have two

options for demonstrating conformity. The first option is to satisfy

the ``build/no-build'' and less-than-1990 emission reduction tests; the

second is to submit a SIP that demonstrates attainment and use the

budget test to determine conformity. In the latter option, such an area

would be required under the existing rule to satisfy both of the

emission reduction tests until the SIP is approved by EPA.

Areas affected by proposal. Marginal and below ozone nonattainment

areas, not classified carbon monoxide (CO) nonattainment areas, and

moderate CO nonattainment areas with a design value of 12.7 ppm or less

are not required by the Clean Air Act to submit control strategy SIPs.

These classifications are listed in Secs. 51.464 and 93.136 of the

existing transportation conformity rule.

In addition, some moderate and above ozone nonattainment areas that

are meeting the ozone NAAQS are not required to submit control strategy

SIPs (see May 10, 1995, memorandum from John S. Seitz, Director of the

Office of Air Quality Planning and Standards, to Regional Air Division

Directors, entitled ``Reasonable Further Progress, Attainment

Demonstration, and Related Requirements for Ozone Nonattainment Areas

Meeting the Ozone National Ambient Air Quality Standard'').

Through today's action, EPA is proposing alternatives for

demonstrating conformity for particular pollutants if areas are not

required to submit control strategy SIPs for that pollutant. The first

alternative is currently allowed under the existing transportation

conformity rule and would continue to be available under this proposal

with some additional flexibilities. The second and third options would

provide new alternatives to these areas for demonstrating conformity.

EPA would require these areas to satisfy only one of the alternatives

described below in order to demonstrate conformity.

Create a budget through the SIP process and use the budget test. As

stated above, the existing transportation conformity rule and this

proposal would allow these areas to submit a SIP that establishes a

motor vehicle emissions budget consistent with attainment or

maintenance. These areas would then be required to satisfy the budget

test for each emissions budget. However, unlike the existing rule, this

proposal would allow the SIP budget to be used after the SIP has been

submitted to EPA and before EPA approval. The emission reduction tests

would not be required once a SIP is submitted and EPA's 45-day review

period has occurred (as described above).

Default budget for clean data areas. This proposal would provide

another alternative for demonstrating conformity in areas that are not

required to submit control strategy SIPs, and have monitoring data

indicating attainment of the standard (``clean data''), but have not

yet submitted a maintenance plan. These clean data areas could

demonstrate conformity using the budget test instead of the emission

reduction tests, using as a ``motor vehicle emissions budget'' the

motor vehicle emissions levels in the most recent year of clean data.

The motor vehicle emissions levels in the most recent year of clean

data would be determined by the state air quality agency through the

interagency consultation process. This default ``budget'' would not

have to be submitted as a SIP revision and would not require special

public participation in addition to that otherwise required by the

transportation conformity rule. If a clean data area wishes to use a

budget other than emissions levels in the most recent year of clean

data, the area could submit that budget through the SIP process as

described above.

Emission reduction test flexibility. Today's action would allow

areas that are not required to submit control strategy SIPs another

alternative when demonstrating conformity. If these areas

[[Page 36115]]

do not have a SIP with a motor vehicle emissions budget, this proposal

would allow these areas a choice of emission reduction tests.

Specifically, this proposal would allow them to demonstrate conformity

by either satisfying the build/no-build test or demonstrating that

annual motor vehicle emissions will not be greater than 1990 levels

(i.e., the ``1990 test'').

Under the existing transportation conformity rule, these areas are

required to satisfy both the build/no-build and less-than-1990 emission

reduction tests in the absence of a budget. For the reasons explained

below, this proposal would offer CO and ozone areas not required to

submit control strategy SIPs the same flexibility currently available

to PM10 (particles with an aerodynamic diameter of less than or

equal to a nominal 10 micrometers) and nitrogen dioxide (NO2)

nonattainment areas, which are required to satisfy either the build/no-

build emission reduction test or ensure that annual motor vehicle

emissions will not be greater than 1990 levels.

B. Rationale

1. Elimination of the Emission Reduction Tests

A broad consensus of conformity implementers and interested parties

have advised EPA that the ``build/no-build test'' has limited value in

demonstrating contribution to emission reductions, or serving as the

primary criterion on which conformity is based. Because of the

limitations of currently available modeling tools, the build/no-build

test may yield only slight differences in emissions, well within the

range of modeling error. The parties have indicated that when motor

vehicle emissions budget(s) have been established in submitted SIPs,

they provide a more relevant basis for conformity determinations.

EPA agrees with this assessment by the transportation conformity

stakeholders. EPA originally created the ``build/no build test'' and

less-than-1990 tests (required by Secs. 51.436-51.446 of the November

1993 transportation conformity rule) in order to implement the emission

reduction requirements of Clean Air Act section 176(c)(3)(A)(iii) (for

ozone and CO nonattainment areas), and to ensure that transportation

activities would not increase the frequency or severity of existing

violations (for PM10 and NO2 nonattainment areas), as

required by Clean Air Act section 176(c)(1)(B)(ii). In light of the

stakeholders' input, EPA now believes that consistency with the motor

vehicle emissions budget(s) in a submitted control strategy SIP or

maintenance plan is sufficient to satisfy these Clean Air Act

requirements.

Clean Air Act section 176(c)(3)(A)(iii) requires transportation

plans, TIPs, and projects in ozone and CO nonattainment areas to

contribute to annual emissions reductions consistent with sections

182(b)(1) and 187(a)(7). EPA believes that consistency with the motor

vehicle emissions budgets in a submitted ozone or CO attainment SIP

satisfies Clean Air Act section 176(c)(3)(A)(iii), because these

budgets are intended to represent the emissions reductions necessary to

attain the ozone or CO standard, as required by sections 182(b)(1) and

187(a)(7). Similarly, consistency with a submitted maintenance plan's

emissions budgets fulfills the requirement to contribute to emissions

reductions necessary to attain the standard, because the maintenance

plan's emissions budgets represent emission levels consistent with

attainment.

EPA carefully considered whether the motor vehicle emissions

budget(s) established by an ozone area's submitted 15% SIP or post-1996

reasonable further progress SIP are sufficient to satisfy the

requirements of Clean Air Act section 176(c)(3)(a)(iii), because such

budgets do not necessarily represent the full emissions reductions

necessary to attain the ozone standard. However, the motor vehicle

emissions budgets in these SIPs do represent VOC emission reductions

from 1990 levels. As a result, EPA believes that consistency with such

a VOC budget is sufficient to satisfy the requirement of Clean Air Act

section 176(c)(3)(A)(iii) for contribution to necessary emissions

reductions.

EPA considered not allowing a submitted 15% SIP or post-1996

reasonable further progress SIP to establish a NOX motor vehicle

emissions budget that would be used for determining conformity instead

of the NOX emission reduction tests. The Clean Air Act does not

require such SIPs to address NOX, so a NOX emissions budget

in such a SIP could be unconstrained and would not necessarily be

sufficient to satisfy section 176(c)(3)(A)(iii)'s requirement to

contribute to annual emissions reductions. However, if a state

establishes a NOX emissions budget that it intends to constrain

future emissions and that does represent emissions reductions from 1990

levels, EPA now believes this budget would be a better basis for

determining conformity than the ``build/no-build test.'' As a result,

EPA is proposing that a 15% SIP or post-1996 reasonable further

progress SIP (Phase I attainment SIP) that addresses NOX would be

considered to establish a NOX emissions budget for the purposes of

transportation conformity only if that budget represented net emission

reductions from 1990. Whether or not a SIP establishes a NOX motor

vehicle emissions budget should be determined in consultation with the

SIP agency and the EPA Region.

For PM10 and NO2 nonattainment areas, the ``build/no-

build test'' and the less-than-1990 test were intended to satisfy the

general definition of conformity in section 176(c)(1)(B)(ii) that

transportation activities not increase the frequency or severity of any

existing violation. EPA believes that consistency with the motor

vehicle emissions budget(s) established in the submitted attainment SIP

or maintenance plan ensures that existing violations will not be

worsened by transportation projects, because these budgets represent

emissions levels that are consistent with attainment of the standards.

2. Adequacy of Submitted (But Not Approved) Budgets

The November 1993 transportation conformity rule requires emission

reduction tests as well as budget tests until EPA approves the

submitted SIP, because EPA believed it could not be certain that

submitted emissions budgets are consistent with Clean Air Act

requirements for reasonable further progress, attainment, and

maintenance until EPA approves the SIP. In contrast, this proposal

would allow the motor vehicle emissions budgets established by

submitted SIPs to be the basis of conformity determinations. (Of

course, the submitted SIP cannot override the motor vehicle emissions

budgets in an approved SIP for the years addressed by the approved SIP.

See Section III.A.1.)

EPA now believes this is appropriate because a submitted SIP is a

product of a state's interagency consultation process, which encourages

discussion among state and local air quality and transportation

agencies, and is ultimately endorsed by the Governor (or his/her

designee). During the SIP process, states also gather information and

comment from environmental groups and other interested parties at

public hearings. EPA believes that these processes would ensure the

credibility of a submitted SIP (and its motor vehicle emissions

budgets) for the purposes of transportation conformity especially where

the only alternative conformity test is the emission reduction tests.

Given the limitations to the usefulness of the emission reduction

tests, a submitted SIP's motor vehicle

[[Page 36116]]

emissions budgets are likely to be at least as good a basis for making

conformity determinations, even if they are not yet approved by EPA.

EPA's proposed 45-day review period for newly submitted SIPs is

intended to prevent conformity from being based on motor vehicle

emissions budgets that are clearly not consistent with attainment,

maintenance, or reasonable further progress. If EPA was not consulted,

given sufficient information, or EPA's concerns were not satisfied

prior to SIP submission sufficient for EPA to determine that the motor

vehicle emissions budgets are adequate for conformity purposes during

this 45-day review period, EPA could declare the motor vehicle

emissions budgets inadequate and prevent their use for conformity

purposes. In addition, if EPA finds the motor vehicle emissions budgets

inadequate even after the 45-day review period, further conformity

determinations may not be based on those budgets.

EPA considered a range of review periods after which submitted

motor vehicle emissions budgets could replace emission reduction tests

for determining conformity. Under the November 1993 transportation

conformity rule, EPA has used a 90-day review period before a newly

submitted SIP budget could replace a previously submitted budget. Many

conformity stakeholders suggested a 30-day review period. EPA is

proposing a 45-day review period as a compromise to balance the

conflicting goals of using submitted SIP budgets as quickly as possible

and preventing transportation investments from being made based on

budgets that are not consistent with attainment, maintenance, or

reasonable further progress. If budgets are found inadequate after

conformity has already been determined, future plans and TIPs would

have to offset the emissions from grandfathered projects that may have

been inappropriately allowed under the inadequate budgets. This

disruption could be avoided by allowing EPA enough time initially to

determine the adequacy of budgets and prevent the use of inadequate

budgets.

Regardless of the 45-day review period, EPA cannot ultimately

ensure that a submitted SIP's motor vehicle emissions budget is

consistent with reasonable further progress, attainment, or

maintenance--and thus adequate to fulfill the conformity requirements

of Clean Air Act section 176(c)--until EPA fully approves the SIP

through notice-and-comment rulemaking. As a result, the proposal

provides that reliance on a submitted SIP's motor vehicle emissions

budgets for determining conformity is deemed to be a statement by the

MPO and DOT that they are not aware of any information that would

indicate that emissions consistent with such budgets would cause or

contribute to any new violation of the relevant standard(s); increase

the frequency or severity of any existing violation of the relevant

standard(s); or delay timely attainment of the relevant standards or

any required interim emissions reductions or other milestones. (This

provision clarifies that, in the absence of EPA approval of the SIP,

the MPO and DOT may not base conformity determinations on submitted

SIPs that they have reason to believe do not satisfy Clean Air Act

requirements.)

3. Areas Not Required to Submit Control Strategy SIPs

EPA has received public comment to extend certain flexibilities to

areas that are not required to submit control strategy SIPs. The

existing transportation conformity rule requires these areas to either

satisfy the ``build/no-build'' and less-than-1990 emission reduction

tests or submit a control strategy SIP or maintenance plan and satisfy

the budget test. Today's action proposes additional flexibilities for

areas that are not required to submit control strategy SIPs, including

marginal and below ozone nonattainment areas, not classified CO

nonattainment areas, moderate CO nonattainment areas with a design

value of 12.7 ppm or less, and some moderate and above ozone areas that

are meeting the ozone standard. Please refer to section II.A.3. for

additional background material.

Create a budget through the SIP process and use the budget test.

Although the areas discussed in this section are not required by the

Clean Air Act to submit control strategy SIPs, these areas could choose

to submit a control strategy SIP or maintenance plan (which contains a

motor vehicle emissions budget) and demonstrate conformity by using the

budget test. The existing transportation conformity rule requires

consistency with the SIP's motor vehicle emissions budget as stipulated

in Clean Air Act section 176(c)(2)(A). This option is available both in

the existing transportation conformity rule and this proposal.

Default budget for clean data areas. This proposal would allow

areas with clean monitoring data but no submitted or approved budget to

determine conformity using the budget test, with the motor vehicle

emissions levels in the most recent year of clean data serving as the

``budget.'' In order for data to be considered ``clean,'' it must meet

EPA's requirements and guidance for acceptable monitoring. EPA is also

proposing this second option because many areas would prefer to

determine conformity using a budget test rather than the emission

reduction tests, but are nevertheless unwilling to devote resources to

creating a motor vehicle emissions budget through the SIP process. The

motor vehicle emissions in the most recent year with clean data is an

adequate ``default budget'' that can be determined without using the

formal SIP process. This level of motor vehicle emissions does not

automatically demonstrate attainment, because it does not consider the

levels of emissions from other sources. However, these areas are not

required by the Clean Air Act to submit attainment demonstrations.

Furthermore, this level of motor vehicle emissions does produce clean

data. Therefore, EPA believes that requiring consistency with the level

of motor vehicle emissions in the most recent year of clean data is a

reasonable test, and one that is likely to be more meaningful than the

emission reduction test (for the reasons discussed earlier).

Emission reduction test flexibility. This proposed alternative

would allow areas that are not required to submit control strategy SIPs

that do not choose the other two options in this section to satisfy

either the build/no-build test or demonstrate that annual motor vehicle

emissions will not be greater than 1990 levels (i.e., the ``1990

test''), provided these areas do not have an approved budget in a

control strategy SIP or maintenance plan. EPA is proposing this

flexibility because conformity stakeholders have indicated that, like

PM10 and NO2 areas, the ozone and CO classifications listed

in Secs. 51.464 and 93.136 of the transportation conformity rule and

moderate and above ozone nonattainment areas that are affected by the

May 10, 1995, EPA memorandum (see section II.A.3. for more information)

are not subject to sections 182(b)(1) and 187(a)(7) of the Clean Air

Act.

The existing transportation conformity rule requires that areas

without motor vehicle emissions budgets must satisfy both the build/no-

build and less-than-1990 emission reduction tests in order to

demonstrate conformity. EPA originally created these tests in order to

implement the emission reduction provisions of Clean Air Act section

176(c)(3)(A)(iii), which requires ozone and CO areas to contribute to

annual emission reductions consistent with sections 182(b)(1) and

187(a)(7). However, sections 182(b)(1) and 187(a)(7) only apply to

moderate and above ozone nonattainment areas and

[[Page 36117]]

CO nonattainment areas that are moderate greater than 12.7 ppm.

PM10 and NO2 areas are similarly not required to satisfy

the annual emission reduction provisions of Clean Air Act section

176(c)(3)(A)(iii). The existing transportation conformity rule and this

proposal require PM10 and NO2 areas to satisfy either the

build/no-build or 1990 test in order to demonstrate conformity.

EPA originally required both the build/no-build and less-than-1990

tests for all ozone and CO areas in order to ensure that transportation

planning does not produce new air quality violations, worsen existing

violations, or delay timely attainment of the NAAQS, as required by

Clean Air Act section 176(c)(1)(B). However, EPA now believes that, for

these areas which were never subject to the emission reduction mandate

of section 176(c)(3)(A)(iii), either the build/no-build test or the

1990 test is sufficient to satisfy the requirements of the Clean Air

Act.

III. Implementation of the Budget Test

A. Which Budgets Apply?

1. Approved SIPs Versus Submitted SIPs

Years that are directly addressed by the approved SIP. Motor

vehicle emissions budgets in an approved SIP (i.e., the applicable

implementation plan) must always be used for demonstrating satisfaction

of the budget test for those years in the timeframe of the

transportation plan that are addressed by the approved SIP. That is, if

the approved SIP establishes a motor vehicle emissions budget for a

year in the timeframe of the transportation plan, consistency with that

budget must be demonstrated for that year. A submitted SIP cannot

override the motor vehicle emissions budgets in an approved SIP for the

years addressed by the approved SIP.

Clean Air Act section 176(c) specifically requires conformity to

approved implementation plans. The provisions of an implementation plan

that EPA has approved under Clean Air Act section 110 are enforceable

and cannot be changed on the basis of a submission. As a result,

although some conformity implementers and interested parties requested

that they be permitted to replace approved SIP budgets with submitted

SIP budgets, EPA believes that this cannot be legally allowed. In

addition, approved SIP budgets have been subject to full technical

review and public comment and should not be replaced by budgets that

have not yet been fully analyzed and reviewed.

Years that are not directly addressed by the approved SIP. However,

this proposal would allow a submitted SIP's motor vehicle emissions

budgets to be used instead of the approved SIP's budgets for those

years not directly addressed by the approved SIP. For example, for a

serious ozone nonattainment area, the approved 15% SIP's VOC budget

would have to be used to demonstrate the budget test for 1996, but the

submitted attainment SIP's budget would be used to demonstrate the

budget test for the attainment year (1999).

Similarly, this proposal would allow a submitted maintenance plan's

motor vehicle emissions budgets to be used for the years after the

attainment year, instead of continuing to use the approved attainment

year budget for those subsequent years. Under the existing

transportation conformity rule, a submitted maintenance plan's motor

vehicle emissions budget(s) may not be used for transportation

conformity purposes until the maintenance plan has been approved.

EPA believes this flexibility is appropriate because any given

approved SIP is only intended to address a certain period of time. In

general, attainment SIPs address only the period through the attainment

year, and maintenance plans address at a minimum a ten-year period. EPA

believes that the Clean Air Act's reference to conformity to ``approved

implementation plans'' applies to the years which the approved SIP

addresses, and that this language should not prohibit using as the

relevant test of conformity subsequent SIP submissions that address

later years. EPA believes that the submitted maintenance plan's motor

vehicle emissions budgets are more relevant to the years after the

attainment year than the attainment year budget in the approved

attainment SIP. Similarly, a submitted attainment SIP's budget is more

relevant for the attainment year than an approved post-1996 SIP budget.

EPA had previously required use of the last budget in the approved SIP

for all subsequent years only because there was no other budget against

which to determine conformity. Once such a budget is submitted, it

provides the most relevant basis for testing conformity.

If no SIP is submitted that addresses the years after the approved

SIP, the approved SIP's budget(s) would continue to apply for the

future years in the timeframe of the transportation plan.

Changes to approved SIPs. This proposal would not alter the fact

that proposed changes to an approved SIP cannot be used for the

purposes of transportation conformity until those changes are approved.

For example, if an area submits a proposed revision to a SIP with an

attainment year budget to replace the approved attainment SIP, that SIP

submission cannot be used until it is approved by EPA.

2. Multiple SIP Submissions

How soon can a newly submitted SIP replace a previously submitted

SIP? Under this proposal, the most recent SIP submissions would replace

other prior SIP submissions that have not yet been approved. If an area

submits a SIP to revise motor vehicle emissions budgets in a SIP that

has not yet been approved, the most recent SIP submission would be used

for demonstrating the budget test beginning 45 days after submission to

EPA (provided EPA has not found the submission inadequate), or earlier,

if EPA has found the submission to be adequate.

Under the existing transportation conformity rule, a newly

submitted SIP is not permitted to replace a complete SIP submission for

90 days. If EPA found the newly submitted SIP complete in less than 90

days, either SIP submission could be used for conformity determinations

made during the first 90 days after SIP submission. This proposal would

require the most recent SIP submission to be used for conformity

purposes after 45 days (if it has not been found inadequate), or as

soon as it has been found adequate, if this occurs in less than 45 days

after submission to EPA.

EPA is proposing this change for several reasons. First, due to

conformity stakeholder suggestions that submitted SIPs should be used

sooner for conformity purposes, EPA is proposing to shorten the

existing transportation conformity rule's 90-day grace period to 45

days. In addition, EPA is interested in streamlining the transportation

conformity rule and reducing ambiguity in its implementation. There has

been substantial confusion in implementation of the existing

transportation conformity rule regarding which submitted SIP's budgets

should be used for conformity purposes, and at which times. EPA

believes that it is simpler and truer to the spirit of conformity to

require the most recently submitted SIP (that has undergone 45-day EPA

review) to be used for determining conformity.

EPA believes that the simplicity gained from this change outweighs

any potential limitation to the flexibility of areas to choose among

SIP submissions in the first few weeks after submission. In many

instances, SIP submissions intended to replace previous SIP submissions

were either inspired by conformity considerations or represent a more

accurate basis for conformity. As

[[Page 36118]]

a result, most areas would not choose to use the previous SIP

submission even if given the opportunity.

In addition, the protection EPA originally intended the 90-day

grace period to provide is under the state's control. EPA did not

originally require newly submitted SIPs to be used in the first 90

days, because EPA did not want conformity determinations that were

underway at the time of the SIP submission to be disrupted. However,

this protection is not necessary in the conformity rule itself, because

the state controls when it submits a SIP, and the interagency

consultation process gives state and local agencies an opportunity to

coordinate conformity determinations and SIP submissions to avoid

disruption of the conformity process. EPA believes that the ambiguity

regarding which SIP submission is used for conformity is more

problematic than the remote possibility that a SIP submission would

interfere with a conformity determination that was underway.

When should different submitted SIPs be used? When a series of

control strategy SIPs have been submitted to fulfill different Clean

Air Act requirements for a particular pollutant, the budget test would

be demonstrated using each relevant submitted SIP that is adequate for

conformity purposes. For example, the proposal would require the

submitted post-1996 reasonable further progress SIP's motor vehicle

emissions budgets to be used for demonstrating the budget test for

milestone years, and would require the submitted attainment

demonstration's budget(s) to be used for demonstrating the budget test

for the attainment year. SIP budget(s) that address the latest future

year would apply for all subsequent years in the timeframe of the

transportation plan.

B. Control Strategy SIPs and Maintenance Plans That Do Not Establish

Motor Vehicle Emissions Budgets

This proposal would clarify that the emissions budget test must be

satisfied only for those pollutants and pollutant precursors for which

a motor vehicle emissions budget is established. Normally, a control

strategy SIP or maintenance plan would by its nature include a motor

vehicle emissions budget for each pollutant and pollutant precursor for

which the area was designated nonattainment. These budgets are created

by the control strategy SIP or maintenance plan even if they are not

clearly identified, and failure to clearly identify a motor vehicle

emissions budget does not relieve the requirement to satisfy the budget

test. However, as explained further below, there are some cases in

which a SIP could specifically provide that no motor vehicle emissions

budget was established for transportation conformity purposes, and in

such cases, the budget test would not have to be satisfied for that

pollutant or precursor.

Certain nonclassifiable ozone areas have the option to submit a

``limited maintenance plan,'' which would not establish motor vehicle

emissions budgets. According to the November 16, 1994, memorandum from

Sally Shaver, Director of EPA's Air Quality Strategies and Standards

Division, to EPA Regional Air Division Directors, entitled ``Limited

Maintenance Plan Option for Nonclassifiable Ozone Nonattainment

Areas,'' nonclassifiable ozone areas whose design values are at or

below 0.106 ppm (85% of exceedance levels of the ozone standard) at the

time of redesignation may choose to submit a less rigorous maintenance

plan than required for other areas. This ``limited maintenance plan''

would not be required to project emissions over the maintenance period,

and as a result, no motor vehicle emissions budget would be

established. There are similar policies for CO and PM10 areas that

may also result in no motor vehicle emissions budgets being

established.

In other cases, the control strategy SIP or maintenance plan could

explicitly demonstrate that motor vehicle emissions are not a

significant contributor to the nonattainment problem, and the SIP could

explicitly state that it is not establishing a motor vehicle emissions

budget for transportation conformity purposes. This could occur, for

example, in CO and PM10 areas that are dominated by stationary

sources. In order for EPA to approve or find adequate for conformity

purposes a SIP that makes a claim of insignificance, the SIP would have

to demonstrate that it would be unreasonable to expect that such an

area would experience enough motor vehicle emissions growth for a

violation to occur. Such a demonstration would have to be based on a

number of factors, including the percentage of the inventory comprised

by motor vehicle-related emissions currently and in the future, how

close the monitoring data is to the standard, the absence of SIP motor

vehicle control measures, historical trends in the growth of motor

vehicle emissions and VMT, and projections of motor vehicle emissions

and VMT.

If EPA's 45-day review period expires without EPA finding the SIP

either adequate or inadequate for conformity purposes, the submitted

SIP's claim of insignificance may be used to justify not demonstrating

satisfaction of the budget test (unless or until EPA finds the SIP

inadequate).

When a control strategy SIP or maintenance plan does not establish

motor vehicle emissions budgets, no regional emissions tests would be

required to be satisfied. That is, neither the emissions budget test

nor the emission reduction tests would be required to be satisfied.

C. For Which Years Would the Budget Test Be Demonstrated?

This proposal would clarify (without changing the substance of) the

existing transportation conformity rule's requirements regarding the

years for which the budget test must be demonstrated. The proposal

would explicitly require the budget test to be demonstrated for each

year for which the SIP establishes a motor vehicle emissions budget.

For example, the attainment SIP generally establishes a budget for the

attainment year, and the 15% SIP establishes a VOC budget for 1996.

SIPs may explicitly include motor vehicle emissions budgets for other

years not specifically required to be addressed by the Clean Air Act.

For example, an attainment SIP or a maintenance plan may address more

years than required by the Clean Air Act and explicitly include motor

vehicle emissions budgets for those years. In such cases, the budget

test would have to be demonstrated for the years for which a budget was

specifically established.

The budget test must be demonstrated for the last year of the

maintenance plan and any other years for which the maintenance plan

establishes motor vehicle emissions budgets. An area may choose to

explicitly establish motor vehicle emissions budgets for years in the

timeframe of the maintenance plan other than the last year. In such

cases, compliance with the budget test would have to be demonstrated

for those years. Some maintenance plans may include specific motor

vehicle emissions projections for some or all years in the timeframe of

the maintenance plan, without intending that such projections operate

as limitations on emissions. The budget test would not be required to

be demonstrated for these years unless it was the intent of the

maintenance plan to establish a budget for these years. Such issues

should be addressed when developing the control strategy SIP or

maintenance plan. For control strategy SIPs and maintenance plans that

have already been submitted, the state's intent regarding the use of

motor vehicle emissions budgets may be clarified

[[Page 36119]]

through the interagency consultation process.

In addition to the years for which the SIP establishes a motor

vehicle emissions budget, the budget test must be demonstrated for the

last year of the transportation plan's forecast period. If there are

more than ten years between the years for which the SIP specifically

establishes motor vehicle emissions budgets, the budget test must also

be demonstrated for some intermediate years so that the budget test is

demonstrated at ten-year (or shorter) intervals.

Regional emissions analysis. Satisfaction of the budget test

requires comparison of the motor vehicle emissions budget with regional

emissions predicted for a given year. A regional emissions analysis

must be performed for each pollutant and precursor for the last year of

the transportation plan's forecast period and the attainment year (if

it is in the timeframe of the transportation plan). For the other years

for which the budget test is required to be demonstrated, the estimate

of regional emissions does not necessarily need to be based on a

regional emissions analysis performed for that specific year; the

estimate of regional emissions may be based on an interpolation between

the years for which the regional emissions analysis was performed.

However, the years for which the regional emissions analysis is

performed must be no more than ten years apart.

D. Maintenance Plans

The proposal would require that if the maintenance plan does not

establish motor vehicle emissions budgets for any years other than the

last year of the maintenance plan, the demonstration of consistency

with the motor vehicle emissions budget(s) must be accompanied by a

qualitative finding that there are no factors which would cause or

contribute to a new violation or exacerbate an existing violation in

the years before the last year of the maintenance plan.

Because the maintenance plan is required by the Clean Air Act to

demonstrate maintenance of the standards over a 10-year period, general

consistency between the latest planning assumptions and the maintenance

plan's assumptions and projections is a basis for finding that there

will not be new or worsened violations during that period. Each

maintenance plan will have different assumptions and projections, so

the specific basis for an area's qualitative finding will need to be

determined through the interagency consultation process. The

qualitative finding would be contained in the documentation that

demonstrates that the budget test has been satisfied.

EPA believes a qualitative finding is necessary if the budget only

addresses the last year of the maintenance plan, because the budget

test alone is not sufficient to determine, as required by the Clean Air

Act, that the transportation action will not cause a new violation. The

emissions impacts in the initial ten years of the maintenance plan must

be considered in some manner in order to determine conformity.

EPA believes that requiring a qualitative finding is preferable to

requiring maintenance plans to establish motor vehicle emissions

budgets for specific years. Although maintenance plans contain

projections for intermediate years that could be used as motor vehicle

emissions budgets, EPA believes that the years for which budgets are

established should be decided by the state. EPA is willing to allow

states to establish budgets only for the last year of the maintenance

plan, provided conformity determinations are accompanied by a

qualitative finding addressing the intermediate years. Alternatively,

states could choose to establish motor vehicle emissions budgets for

intermediate years in the maintenance plan, which would then be used to

determine conformity.

IV. Non-federal Projects

A. Description of Proposal

This proposal would allow regionally significant transportation

projects that are funded or approved by a recipient of federal funds

designated under title 23 U.S.C. or the Federal Transit Laws (49 U.S.C.

Chapter 53) which do not rely at all on any FHWA/FTA funding or

approvals (i.e., ``non-federal projects'') to be adopted or approved

during a transportation plan/TIP conformity lapse, provided the project

was included in the regional emissions analysis supporting the most

recent transportation plan and TIP conformity determination. Also, the

project's design concept and scope could not have changed significantly

from that included in the previous emissions analysis.

The existing transportation conformity rule requires a currently

conforming transportation plan and TIP to be in place at the time a

recipient of federal funds adopts or approves a regionally significant

non-federal project. As a result, no regionally significant non-federal

projects can be adopted or approved during a transportation plan/TIP

conformity lapse.

Under both this proposal and the existing transportation conformity

rule, adoption or approval of non-federal projects that are not

regionally significant is not subject to any transportation conformity

requirements. In addition, under both this proposal and the existing

transportation conformity rule, there is a provision for regionally

significant non-federal projects to be added to the existing

transportation plan and TIP's regional emissions analysis, if the

transportation plan and TIP are currently conforming. That is, if a

regionally significant non-federal project has not previously been

included in the regional emissions analysis supporting the

transportation plan and TIP conformity determinations, another regional

emissions analysis could be performed including the transportation plan

and TIP projects and the additional regionally significant non-federal

project. If this analysis demonstrates that the currently conforming

transportation plan and TIP would still conform if the non-federal

project were implemented, the non-federal project could be adopted or

approved.

Some commenters have suggested that if certain non-federal projects

are to be permitted to be adopted or approved during a transportation

conformity lapse as EPA is currently proposing, each such project

should be approved by the Governor. This provision would provide

greater assurance that the emissions consequences of proceeding with

projects during a conformity lapse are consciously accepted. However,

EPA is not proposing this limitation at this time because such a

limitation is not explicitly required by the Clean Air Act, and it is

not clear which state and local government officials should have the

authority to adopt or approve non-federal projects during a conformity

lapse. EPA is interested in receiving comment on this subject.

B. Rationale

EPA is proposing to allow some regionally significant non-federal

projects to be adopted or approved during a conformity lapse in

response to comments from conformity implementers. These comments

stated that state and local governments should have the discretion to

accept the emissions consequences of projects that are under their

control to fund and approve, even when there was not a conforming

transportation plan and TIP. Future transportation plans and TIPs are

required to consider the emissions from regionally significant non-

federal

[[Page 36120]]

projects, so any necessary offsets would ultimately be achieved.

EPA believes this proposal is consistent with the requirements of

Clean Air Act section 176(c). Section 176(c)(2)(C) requires

transportation projects to ``come from a conforming plan and TIP.'' EPA

has interpreted this in the existing conformity rule to mean that a

conforming transportation plan and TIP must be in place at the time of

project adoption or approval, and that the project must be included in

the transportation plan and TIP (or regional emissions analysis

supporting the conformity determination for the transportation plan and

TIP). EPA now believes that because non-federal projects are not

federally funded or approved, it is not necessary for a conforming

transportation plan and TIP to be in place at the time of project

adoption or approval. The transportation plan and TIP are not relevant

as a funding mechanism for non-federal projects. The crucial

requirement for non-federal projects is previous inclusion in the

regional emissions analysis supporting a conforming transportation plan

and TIP. That is, the area had previously considered the emissions of

the non-federal project and concluded that they could be accommodated

in the planned transportation network without adversely affecting air

quality.

The option provided in section 176(c)(2)(D) for new projects that

were not previously included in a transportation plan/TIP or supporting

regional emissions analysis to demonstrate conformity cannot apply

during a transportation plan/TIP conformity lapse, because it requires

a demonstration that ``conforming transportation plans and TIPs'' would

still conform when the emissions of the new project are considered.

Without a conforming transportation plan and TIP in place, this cannot

be demonstrated.

This proposal would require that a regionally significant non-

federal project be included in the regional emissions analysis

supporting the most recent transportation plan and TIP conformity

determinations, rather than any previous conformity determination. This

is because each regional emissions analysis must include all regionally

significant transportation projects in the timeframe of the

transportation plan. Therefore, even if there is no current activity on

a particular non-federal project at the time of the most recent

transportation plan/TIP conformity determination, it still will have

been included in the regional emissions analysis. If a non-federal

project were included in the regional emissions analysis from an older

transportation plan/TIP conformity determination and not from the most

recent, this would indicate that the project is no longer expected to

occur in the timeframe of the transportation plan and TIP. As a result,

it could no longer be assumed that implementation of the project could

be accommodated with no adverse air quality impact.

EPA has received comment opposing the adoption or approval of non-

federal projects during a transportation conformity lapse. Commenters

believe that building new projects during a time when a conforming

transportation plan and TIP has not been developed would only increase

the difficulty of plan/TIP development in the future. However, as

described above, EPA believes that this proposal is consistent with the

Clean Air Act. In addition, the limitation that regionally significant

non-federal projects must have been part of the most recent prior

regional emissions analysis supporting the most recent conforming

transportation plan and TIP ensures that the emissions consequences of

the projects have been considered, and the decision to proceed with

such projects during a conformity lapse could be made with full

knowledge of the possible emissions implications. These non-federal

projects would then have been considered as part of the transportation

planning process, and because these projects are not able to avoid the

scrutiny of the metropolitan planning process during a conformity

lapse, there would not be unequal requirements that would provide an

incentive to shift the funding of projects from federal to non-federal

sources.

EPA has also received comment that any non-federal project, whether

or not it has previously been included in a regional emissions analysis

supporting a transportation plan/TIP conformity determination, should

be allowed to proceed during a transportation plan/TIP conformity

lapse. However, EPA continues to believe, as described in the preamble

to the November 24, 1993, transportation conformity rule, that Clean

Air Act section 176(c)(2)(C)'s requirements for ``transportation

projects'' refer to any highway or transit projects, not just those

that are federally funded or approved. Thus, EPA believes that

regionally significant non-federal projects must have been considered

in a previously conforming emissions analysis in order to be adopted or

approved.

V. Rural Nonattainment and Maintenance Areas

A. Description of Proposal

Isolated rural nonattainment and maintenance areas with submitted

or approved control strategy SIPs or maintenance plans would be

allowed, under this proposal, to choose among several tests for

demonstrating conformity for years after the time period addressed by

the SIP (e.g., years after the attainment year or the last year of the

maintenance plan).

These areas could either (1) demonstrate consistency with the most

recent motor vehicle emissions budget(s), as normally required; (2)

satisfy the emission reduction tests (``build/no-build test'' and/or

less-than-1990 test, depending upon classification); or (3) demonstrate

through air quality dispersion modeling that the FHWA/FTA project, in

combination with all other regionally significant projects expected in

the area in the timeframe of the statewide transportation plan,

satisfies the general definition of conformity in Clean Air Act section

176(c)(1) (i.e., the project will not cause or contribute to any new

violations; increase the frequency or severity of any existing

violation; or delay timely attainment or required interim emission

reductions).

The choice among these conformity tests and the methodology for air

quality dispersion modeling would be determined through the interagency

consultation process and reflect the consensus of the state and local

air and transportation agencies and the project sponsor. EPA and DOT

would also have to be consulted through the usual interagency

consultation process.

Isolated rural areas would be defined as nonattainment and

maintenance areas (or portions thereof) that do not have a metropolitan

transportation plan or TIP and whose projects are not part of the

emissions analysis of any MPO's transportation plan or TIP. This would

not include ``donut'' areas that are outside the metropolitan planning

boundary and inside the nonattainment/maintenance area boundary,

because these projects must be considered in the context of the MPO's

transportation plan and TIP, even if the MPO does not specifically

include them in the transportation plan/TIP or the MPO's own regional

emissions analysis.

Because air quality dispersion modeling for ozone is often complex

and resource-intensive, EPA does not expect that this particular option

will be viable for isolated rural ozone nonattainment and maintenance

areas. However, this is a more realistic option

[[Page 36121]]

for such CO and PM10 nonattainment and maintenance areas and is

being considered at the request of several commenters.

This proposal differs from the existing transportation conformity

rule by offering several options for demonstrating conformity in years

after the time period addressed by the SIP. The existing transportation

conformity rule would require the motor vehicle emissions budget

established for the most recent prior year to be used for the purpose

of demonstrating transportation conformity for all subsequent years in

the timeframe of the transportation plan.

B. Rationale

In response to comments from those implementing conformity as well

as from other interested parties, EPA is proposing flexibility for

isolated rural nonattainment and maintenance areas. The general issue

of conformity for years outside the timeframe of the SIP is explained

below in section VIII., ``Mismatch in SIP/Transportation Plan

Timeframe.'' EPA is here proposing flexibility for isolated rural

nonattainment and maintenance areas, and not for other areas, because

isolated rural areas face unique challenges in addressing this issue.

Isolated rural areas generally do not have a metropolitan

transportation planning process that could serve as a forum for

identifying and addressing long-term growth issues in years not

addressed by the SIP. In addition, regionally significant, federally

funded or approved projects usually occur infrequently in isolated

rural areas. Conformity demonstrations for such areas as required by

the existing conformity rule would place the burden of long-term

planning on a few or even a single transportation project.

EPA believes this places an inappropriately large burden on

sponsors of such federally funded or approved transportation projects.

Although conformity is intended to assure long-term planning, EPA

believes it is appropriate to impose conformity requirements involving

less rigorous long-term planning in areas where comprehensive planning

processes including land use and other issues do not otherwise exist or

are not otherwise required.

Some conformity implementers suggested that the flexibility for

isolated rural areas should apply for ``donut'' areas that are outside

MPO planning boundaries but within urbanized nonattainment areas. EPA

does not believe this is appropriate because donut areas do not face

the same challenges as truly isolated rural areas. Conformity

determinations by the MPO must consider motor vehicle emissions from

all projects in the nonattainment or maintenance area, including

emissions from projects in the donut area. Thus, there is a planning

process that in some manner addresses the donut area. The Intermodal

Surface Transportation Efficiency Act (ISTEA) envisioned that in most

cases, the MPO planning boundary would be consistent with the

nonattainment area boundary. To the extent that conformity poses a

burden on the donut area because the area does not have long-term

planning capabilities, arrangements could be made with the adjacent

MPO.

EPA believes that providing some flexibility for the years not

addressed by the SIP is consistent with the Clean Air Act (see section

VIII. below). The Clean Air Act requirement for consistency with the

SIP's emissions reduction goals could be construed to apply only for

the years that an individual SIP revision addresses. The time period

later than that addressed by SIPs is in some ways analogous to the time

period before SIPs are developed, and as such the emission reduction

tests (``build/no-build'' and less-than-1990 tests) may also be

appropriate for the time period after that addressed by SIPs. Air

dispersion modeling that directly demonstrates satisfaction of the

general definition of conformity is clearly also consistent with Clean

Air Act section 176(c).

EPA is proposing that the choice of conformity tests for isolated

rural areas for years not addressed by a SIP should be made with the

agreement of relevant state and local agencies. EPA believes this is

necessary because MPOs are authorized by the Clean Air Act to determine

conformity and there are no MPOs in isolated rural areas; thus, there

is no single state or local agency with authority for determining

conformity. Various state and local agencies may have differing

perspectives on the practicality and benefits of the different

conformity tests. As a result, EPA believes the method for

demonstrating conformity should be a consensual decision by all

relevant state and local agencies, so that all relevant actors in an

area can weigh the advantages and disadvantages of each method of

demonstrating conformity.

EPA also believes that the methodology for performing air quality

dispersion modeling should have the agreement of all relevant state and

local agencies. The air agency traditionally has responsibility for

performing air quality dispersion modeling, but some other agency may

take responsibility for such modeling with respect to a given project

for the purposes of transportation conformity in rural areas.

Therefore, EPA believes that all agencies should agree on the

methodology to be used.

EPA considered requiring EPA approval of the modeling methodology

used in isolated rural areas, because air quality dispersion modeling

used in SIPs is traditionally governed by EPA guidance and regulations.

If air quality dispersion modeling that is used to demonstrate

conformity with the purpose of the SIP is based on different

assumptions than the SIP itself used, the determination of conformity

could be suspect. However, commenters convincingly argued that

requiring concurrence of the state air agency accomplishes the goal of

assuring consistency with the SIP's air quality dispersion modeling

methodology, and that further concurrence by EPA would be an

unnecessary administrative burden for isolated rural areas.

The option to demonstrate conformity using air quality dispersion

modeling in certain cases was specifically requested by conformity

implementers. Because EPA believes using air quality dispersion

modeling for conformity demonstrations for years not addressed by SIPs

would be consistent with Clean Air Act section 176(c) requirements (see

above), EPA is proposing this additional flexibility for all isolated

rural areas. Areas for which air quality dispersion modeling is too

resource-intensive may of course choose one of the other methods of

demonstrating conformity.

EPA considered allowing isolated rural areas to include non-federal

projects in either the ``build'' or ``no-build'' case when performing

the ``build/no-build test,'' at the discretion of state and local air

and transportation agencies. Conformity implementers and interested

parties had noted that because regionally significant federally funded

or approved transportation projects occur relatively infrequently in

isolated rural areas, considering (and potentially offsetting) the

emissions impacts of non-federal projects posed an unfair burden on the

few federal projects. However, EPA believes that despite the differing

practical considerations for urban and rural areas, there is no legally

defensible distinction between what constitutes a contribution to

emissions reductions in rural vs. urban areas. Because EPA believes

that the ``build/no-build'' test demonstrates contribution to emissions

reductions only when new non-federal projects are included in the

``build'' case, EPA is not proposing to alter the build/no-build test's

treatment of non-federal projects in rural areas.

[[Page 36122]]

Some conformity implementers suggested to EPA that conformity in

isolated rural areas be demonstrated using a project-level ``build/no-

build test.'' Although it is true that isolated rural areas do not have

local transportation plans and TIPs as referred to in Clean Air Act

section 176(c)(2) (C) and (D), EPA believes that it is the intent of

the Clean Air Act for the regional emissions impacts of transportation

projects to be considered in the context of other transportation

projects in the nonattainment or maintenance area. Furthermore, EPA

questions whether it is possible for areas concerned with regional

pollutants to determine whether a project will cause or contribute to

new violations or exacerbate existing violations without considering

other transportation projects planned for the area. Therefore, EPA is

not proposing the option to use a project-level analysis for the build/

no-build test in rural areas.

VI. Modeling Requirements

A. Network Modeling Requirements

1. Deadline for Use of Network Models

This proposal would require that serious CO and serious, severe,

and extreme ozone areas use network models to support conformity

determinations by January 1, 1997. This requirement would apply only to

those metropolitan planning areas with an urbanized area population

over 200,000. Areas that are already using accepted network modeling

practices would be required to continue using them for conformity

analyses performed before January 1, 1997. Areas would continue to be

required to have a consultation process to select regional models and

assumptions.

The existing transportation conformity rule required that all

serious CO and serious and above ozone areas use network modeling for

conformity analyses by January 1, 1995. This proposal extends the

deadline to January 1, 1997. EPA received several comments related to

the ambitious nature of the 1995 deadline, and it has become

increasingly apparent that the original deadline is creating

difficulties for several areas that have been unable to comply by that

date. Based on comments received, EPA has determined that January 1,

1997, would be a reasonable extension of the deadline. EPA believes

that this deadline would allow areas experiencing difficulties to

improve and implement their network models, while requiring that areas

currently using network modeling continue to do so prior to that date.

In serious CO areas and serious and above ozone areas, conformity

determinations may be made after January 1, 1997, based on regional

emissions analysis that does not use network modeling only if that

regional emissions analysis was performed in support of the proposed

conformity determination before January 1, 1997. It is not necessary

for the MPO or DOT to complete its determination process before January

1, 1997, if the regional emissions analysis supporting the

determination was completed before January 1, 1997. It is also

permissible for a proposed transportation plan or TIP, and/or the

regional emissions analysis associated with it, to be modified to a

reasonable degree after January 1, 1997, as a result of the public

participation process.

This interpretation of the deadline for modeling improvements is

described in a December 30, 1994, letter from Philip A. Lorang, EPA's

Director of Emission Planning and Strategies Division, to Cynthia

Burbank, FHWA's Environmental Analysis Division Chief, and Samuel

Zimmerman, FTA's Director of the Office of Planning.

2. Areas Subject to Deadline for Use of Network Models

This proposal would limit the requirement to use network modeling

to metropolitan planning areas with an urbanized area population over

200,000, whereas the existing rule's requirements apply to all

nonattainment areas in these classifications, regardless of population

or urbanization. The proposed limitation results from a general concern

that the modeling requirements are overly burdensome for small and

rural areas within serious ozone nonattainment areas, such as Martha's

Vineyard Island, Massachusetts. EPA considered but is not proposing a

three-tiered scenario in which an area's modeling requirements would

have varying specificity based on its population and whether it was

urban or rural. Commenters believed that such a detailed proposal would

unnecessarily increase the rule's complexity. As a result, EPA decided

to specify requirements only for those serious, severe and extreme

areas with an urbanized area population over 200,000. The 200,000

population level was chosen because it is also the population level

used to delineate transportation management areas (TMAs). EPA believes

that these limitations would ensure that smaller areas no longer are

required to use unnecessarily stringent network modeling procedures and

methods.

EPA received a comment that suggested a specific, two-part process

for network model improvements in serious CO and serious and above

ozone nonattainment areas. The first part recommended an expanded,

tiered set of deadlines based on nonattainment status, population, and

growth rate, with added flexibility through a waiver provision if

mobile sources were clearly not a factor in an area's nonattainment

problem. The second part suggested that the MPO prepare a strategic

plan for the area's modeling improvements. The MPO would also be

responsible for encouraging public participation in this process and

making available for public comment the documentation of conformity

determinations and information relevant to improving the regional

analysis systems.

EPA decided not to propose this approach for several reasons.

First, the tiered deadline concept would expand the modeling

requirements to areas not currently affected under the existing rule.

EPA believes that these modeling requirements are not necessary in all

nonattainment areas and that this concept would further increase the

rule's complexity. Second, although EPA agrees with the importance of

strategic planning in modeling improvements, the Agency believes that

the existing interagency consultation process provides areas with the

necessary flexibility in planning for modeling improvements.

3. Content of Modeling Requirements: Request for Comment

In today's proposal, EPA is proposing regulatory text that would

amend the requirements addressing the characteristics of network

models. Under Sec. 51.452(b)(93.130(b)) of the November 1993 conformity

rule, network-based models used in serious and above CO and ozone areas

for conformity analyses are required to possess eleven specific

modeling attributes. EPA originally developed these eleven attributes

in consultation with conformity stakeholders and with the understanding

that they represented modeling procedures that are currently available

and in practice. EPA continues to believe that these modeling

attributes would encourage improved network-based modeling.

However, stakeholders have since suggested that the modeling

requirements in the existing rule create too much complexity and

rigidity in the conformity rule. As a result, EPA is proposing

regulatory text today that would remove these eleven modeling

attributes from the rule and replace them with modeling guidance

[[Page 36123]]

periodically issued by EPA and DOT. Today's proposal is described below

as Option 1.

Since several stakeholders have expressed concern over the primary

option EPA is proposing today (Option 1), two alternative options are

also described below. All three of the options described below would

apply to nonattainment areas with urbanized population over 200,000, as

described above. EPA requests comment on all of these options, and

depending on the public comment received, EPA may finalize one of these

alternative approaches, instead of the primary option EPA is proposing

today.

EPA believes that the conformity rule would still be consistent

with the letter and intent of Clean Air Act section 176(c) if any of

the proposed changes to the modeling requirements are adopted. Since

the statute does not specifically address modeling requirements, EPA

believes that so long as the modeling requirements continue to ensure

that conformity determinations are based on sound quantitative

analysis, EPA has the discretion to determine appropriate methods for

implementing those requirements.

Option 1: Address Network Modeling Attributes in Guidance. EPA

proposes today that the specific attributes of network models that are

required under the existing transportation conformity rule be removed

from the regulatory text and instead be addressed in guidance

documentation. EPA believes that this proposal will simplify the

conformity rule and ensure that areas will be able to choose the

modeling procedures that best match their current modeling and air

quality planning needs, resource constraints, and technical expertise

capability.

In order to ensure that appropriate modeling tools are employed,

EPA and DOT will periodically issue modeling guidance comprised of

technical documentation and other references describing available

modeling procedures. This guidance is likely to be a combination of

existing and new documents or references to technical information taken

from a variety of sources. Many of the detailed attributes required

under the existing transportation conformity rule will be referenced in

this guidance. By issuing technical guidance documents on a regular

basis, EPA and DOT will be able to communicate new modeling practices

and encourage continuous improvement over time.

EPA is aware that removing the regulatory requirements governing

network model performance may be perceived by some to be an endorsement

of less rigorous modeling practices. However, EPA and DOT remain

committed to developing and encouraging improved transportation models

and to ensuring that areas continue to employ good modeling practices.

Today's proposal is intended as a streamlining measure, not a

relaxation of standards for acceptable modeling. EPA believes that

guidance regarding available modeling techniques will facilitate model

improvement at least as well as including specific modeling

requirements in the conformity rule, while responding to local needs

for flexibility. The agencies believe that agreement regarding

appropriate modeling techniques and improvements for each area should

be an important focus of the interagency consultation process as

currently required by Sec. 51.402 (c)(1)(i) and (c)(6) and Sec. 93.105

(c)(1)(i) and (c)(6).

Option 2: Retain Network Model Performance Requirements in Existing

Conformity Rule. This option would retain all of the eleven

characteristics of network models that are required in the November

1993 conformity rule. For example, network models in these areas would

continue to be required to meet performance-based standards such as

capacity-sensitive assignment and reasonable agreement between travel

times used in trip distribution and resulting from assignment. EPA

continues to believe that these modeling attributes reflect the current

consensus in the transportation and air quality planning professions on

minimum acceptable modeling practices.

Option 3: Streamline Existing Modeling Attributes and Address

Additional Attributes in Guidance. This option would streamline the

existing conformity rule, but retain certain requirements that provide

for minimum acceptable model performance.

The streamlined requirements would be as follows: (1) Network-based

models must be validated against observed peak and off-peak ground

counts for a base year that is not more than 10 years prior to the date

of the conformity determination; (2) land use, population, employment,

and other network-based modeling inputs must be based on the best

available information and must be appropriate to the validation base

year; (3) peak and off-peak travel demand and travel times must be

provided, and a capacity-sensitive assignment methodology must be used;

(4) the model(s) must use and document a logical correspondence between

the assumed scenario of land development and use and the future

transportation system for which emissions are being estimated; and (5)

network-based models must be reasonably sensitive to trip-making

changes due to changes in the cost, travel time, capacity, and quality

of all travel choices, if the necessary information is available.

EPA would address the remaining attributes in modeling guidance

that would be jointly issued and regularly updated by EPA and DOT.

Conformity stakeholders would be involved in the development of this

modeling guidance to encourage a wide exchange of ideas about current

and available modeling practices. EPA believes that this process itself

would ensure that the modeling guidance is a useful, effective tool in

informing areas about available modeling improvements.

B. Adding Non-exempt Projects to the Plan/TIP Without Regional Analysis

1. Description of Proposal

This proposal would, under some circumstances, allow a

transportation plan and TIP to be amended to include additional non-

exempt projects without a full-scale regional emissions analysis based

on network modeling. The alternate emissions analysis procedure would

require the concurrence of the federal, state, and local air and

transportation agencies. This flexibility would not become effective

until EPA and DOT have completed their review and evaluation of

alternate procedures that are suggested during the public comment

period (see ``Request for Information for Guidance,'' below) and made

this documentation publicly available. This proposal would still

require a conformity determination for the plan/TIP amendment,

including public participation, interagency consultation, and other

relevant requirements of the transportation conformity rule. This

proposal would only change the rigor of the supporting regional

emissions analysis.

Under the existing rule, every plan/TIP and plan/TIP amendment

requires a conformity determination based on a regional emissions

analysis that meets the requirements of Sec. 51.452/Sec. 93.130. The

regional emissions analysis, which includes projects in the plan/TIP

and all other regionally significant projects in the nonattainment or

maintenance area, is used to demonstrate that the budget test and/or

emission reduction tests are satisfied. Under Sec. 51.452, certain

areas are required to use network modeling to perform this regional

emissions analysis.

This proposal would allow less rigorous analysis to demonstrate

that the plan/TIP as amended satisfies the budget test and/or emission

reduction tests. Subsequent plan/TIP conformity

[[Page 36124]]

determinations based on full regional emissions analysis would, of

course, include the recently added projects, because regional emissions

analysis must include all regionally significant projects that are

planned or underway. Any plan/TIP conformity determination based on

less rigorous analysis would not be considered a conformity

determination for the purposes of Sec. 51.400/Sec. 93.104, ``Frequency

of Conformity Determinations,'' which require that conformity

determinations be made no less frequently than every three years. The

less rigorous analysis would not provide a complete consideration of

projects in the transportation plan and TIP using the latest emissions

projections and assumptions. The transportation plan and TIP would

therefore have to be found to conform based on a full-scale regional

emissions analysis (including network modeling, where required) at

least every three years.

2. Rationale

EPA is proposing this change in response to stakeholder requests

for this flexibility. Some stakeholders commented that it may be costly

and resource-intensive to perform a full-scale regional emissions

analysis to add a regionally significant project to a transportation

plan and TIP. These stakeholders proposed that the conformity rule

allow areas the flexibility to establish alternative procedures for

regional emissions analysis that would demonstrate that an additional

project, when considered with emissions projected for the conforming

transportation plan and TIP, does not cause the plan/TIP to exceed the

motor vehicle emissions budget and/or fail to satisfy the emission

reduction tests. Stakeholders supporting this flexibility suggested

that it is necessary only in extraordinary circumstances and would not

be used on a routine basis. Other stakeholders expressed concern that

such flexibility could be used to advance significant projects without

the full scrutiny of the conformity process.

EPA agrees that there may be limited instances where the impact of

regionally significant non-exempt projects on emissions from the

currently conforming transportation plan and TIP could be determined

without full-scale regional analysis, and that exceptional

circumstances may arise where such flexibility is appropriate. However,

this flexibility is to be exercised as an exception and not on a

regular basis.

EPA would allow this flexibility to be used only after a review and

evaluation of types of alternate procedures has been documented,

because of the potential for this flexibility to undermine the

integrity of the conformity process if improperly used. Conformity's

purpose is to consider the long-term impacts of projects and to make

transportation planning decisions within the context of all proposed

projects, instead of on a project-by-project basis. In almost all

cases, regional emissions impacts cannot be determined on a project-by-

project basis or without considering the aggregate of projects in an

area and the interactions among them. The conformity provisions were in

part a response to the difficulty of assessing air quality impacts on a

project-by-project basis. As a result, it is not clear what type of

limited analysis would be appropriate and under what circumstances.

Areas will need guidance to address these issues. This guidance will be

provided in the review, evaluation, and documentation of alternate

procedures that are suggested during the public comment period, through

periodic updates of reasonable and available measures, and through the

interagency consultation process.

Stakeholders proposed that the federal, state, and local

transportation and air agencies should concur on each use of this

flexibility. EPA agrees with such a concurrence requirement since there

are not well-established, existing alternatives and because the

transportation planning process and the conformity process should not

be compromised if there is not agreement among all of the agencies that

the existing circumstances warrant the use of this flexibility. As

described in the conformity rule's consultation requirements, conflicts

among state agencies or between state agencies and an MPO shall be

escalated to the Governor if they cannot be resolved by the heads of

the involved agencies.

EPA foresees instances where use of this flexibility would not be

appropriate. For example, it would not be appropriate if planning

assumptions have changed, or if other information indicates that the

regional emissions analysis supporting the currently conforming

transportation plan and TIP is not adequate to determine that the

budget test and/or the emission reduction tests would be satisfied. It

would also be inappropriate if the transportation plan and TIP

amendment is not only adding projects, but deleting other projects and

changing implementation dates in order to remain fiscally constrained.

In this case, the plan/TIP amendment's scope would be too broad to

justify a limited emissions analysis.

3. Request for Information for Guidance

EPA and DOT recognize that there may be some alternate procedures

for determining the impact projects would have on regional

transportation-related emissions that are more expeditious and less

costly than a network-based analysis. As a result, EPA and DOT are

requesting suggestions for procedures to add non-exempt projects to the

plan/TIP without a complete network-based analysis. If documentation is

available for these procedures, please provide it if possible.

Reasonable methods or approaches may be included in guidance.

However, EPA and DOT believe that the flexibility for non-exempt

projects (as described above) should not be finalized if reasonable

alternate approaches have not been identified for determining the

regional emissions impacts from individual transportation projects.

Therefore, this flexibility would not be offered unless EPA and DOT

receive comment that identifies such alternate methods or approaches.

Some stakeholders commented about the resources needed to perform a

full-scale regional emissions analysis to add a regionally significant

project. EPA and DOT are therefore requesting information in the

following areas: (1) How often the need arises to add non-exempt

projects between TIP update cycles; (2) the number of projects that may

be delayed without this flexibility; (3) the full-scale network

modeling process currently used for the regional emissions analysis to

support conformity determinations (including number of model runs,

number of emissions model runs, etc.); (4) the difference in effort

required to add a single or limited number of projects as compared to a

full-scale conformity analysis; and (5) which agencies are responsible

for socioeconomic data development, travel modeling, and emissions

modeling, including the percentage of each agency's involvement in

conducting the conformity analysis.

VII. Consequences of SIP Disapproval

A. Description of Proposal

In today's action EPA proposes as a primary alternative regulatory

language that specifies that following a 120-day grace period after

final EPA disapproval of a control strategy SIP or maintenance plan

without a protective finding, the only transportation projects that

could be approved (and thus grandfathered from future conformity

lapses) would be those included in the first three years of the

currently conforming transportation plan and TIP (and exempt projects).

No

[[Page 36125]]

new transportation plans, TIPs, plan/TIP amendments or projects (or

projects in the out-years of the transportation plan and TIP) could be

approved. If any single phase of a transportation project is included

in the first three years of the transportation plan/TIP, all phases of

the project would be able to proceed following a disapproval, provided

that all phases of the project were included in the transportation

plan/TIP conformity analysis. Conformity determinations are required to

analyze entire projects rather than individual phases.

The ``freeze'' on new transportation plans, TIPs, and projects

would be removed once an area submits another control strategy SIP or

maintenance plan to replace the disapproved SIP, provided EPA does not

find the motor vehicle emissions budgets inadequate during its 45-day

review period. If such a replacement SIP does not become applicable to

conformity determinations by the time Clean Air Act highway sanctions

are imposed (two years after EPA's final disapproval), conformity would

lapse, and no new project- level conformity determinations could be

made, even for projects in the first three years of the currently

conforming plan and TIP.

During the 120-day grace period, transportation plans, TIPs, and

projects could be found to conform using the disapproved budgets (if no

replacement SIP applies for transportation conformity purposes). This

120-day grace period is intended to allow areas to complete conformity

determinations that were in process at the time of EPA's final

disapproval.

Under both today's proposal and the existing conformity rule,

consequences would occur following any EPA final disapproval action on

a control strategy SIP or maintenance plan without a protective

finding, even if the disapproval is limited or partial. The motor

vehicle emissions budget is sufficient only if the SIP as a whole

satisfies the Clean Air Act requirements for reasonable further

progress, attainment, or maintenance. If one part of a SIP is

disapproved without a protective finding (even if that part does not

address mobile sources), then there is no overall strategy for

reasonable further progress, attainment, or maintenance, and it is not

possible to determine whether consistency with the motor vehicle

emissions budget will result in a level of emissions consistent with

reasonable further progress, attainment, or maintenance.

B. Request for Comment

Pending the opportunity to consider thoughtful comments from all

interested parties, EPA is proposing today as a primary alternative the

regulatory text discussed above because EPA believes it balances the

conflicting goals articulated by stakeholders. EPA requests comment on

how this proposal addresses stakeholder issues and concerns identified

below. EPA also requests comment on whether other approaches are

preferable, such as aligning the conformity lapse timeframe with the

highway sanctions time clocks for SIP disapprovals without protective

findings to make this process consistent with the conformity lapse

process for other SIP failures. Alternatives to the primary option EPA

is proposing today are described below. Depending on the public comment

received, EPA may finalize one of these alternative approaches, instead

of the primary alternative.

C. Discussion of Issue

Conformity stakeholders have raised the issue of the appropriate

conformity consequences when EPA disapproves a control strategy SIP

without making a protective finding. EPA disapproval of a SIP without a

protective finding is essentially a finding that the SIP does not have

identified strategies to reach attainment (or reasonable further

progress or maintenance), and the motor vehicle emissions budget is not

adequate to satisfy Clean Air Act requirements. Final EPA SIP

disapprovals require full notice-and-comment rulemaking.

The November 1993 transportation conformity rule states that after

a 120-day grace period following final EPA SIP disapproval, no new

transportation plans, TIPs, or projects may be approved. Only

previously approved projects (``grandfathered'' projects) and exempt

projects may proceed. In other words, transportation plan/TIP

conformity lapses. The lapse is removed when a new control strategy SIP

or maintenance plan (including motor vehicle emissions budgets) is

submitted to EPA.

Some stakeholders have suggested that conformity should never lapse

as a result of a SIP failure before Clean Air Act highway sanctions are

imposed, because highway sanctions (not transportation conformity) are

the Clean Air Act mechanism for addressing SIP failures. To a

considerable degree EPA agrees with this reasoning, and EPA has amended

the conformity rule to align conformity lapse with highway sanctions

imposition in the case of all SIP failures except disapproval without a

protective finding.

However, there are substantive conformity issues with respect to

SIP disapproval without a protective finding. If an area does not have

sufficient adopted control strategies to attain the standards or make

reasonable further progress towards attainment, should the area be

committing funds to new transportation projects? If so, on what basis?

Should it proceed with projects that already have been planned and upon

which businesses and the public may already be relying in their own

future plans, but stop creating new plans and expectations? In these

cases, how would an area demonstrate that the transportation plan, TIP,

or project would not increase the frequency or severity of existing

violations, or contribute to new violations, or delay attainment?

These issues are particularly important in the context of the

conformity flexibilities in today's proposal. As described in sections

II. and III. of today's action, EPA is proposing that consistency with

submitted SIP budgets would become the sole emissions-related

conformity test for transportation plans and TIPs, even before EPA

approves the SIP and confirms that consistency with its motor vehicle

emissions budget is sufficient to achieve reasonable further progress,

attainment, or maintenance. Some stakeholders are concerned that

because a significant amount of time is likely to elapse between

initial submission of the control strategy SIP and any subsequent EPA

disapproval, a significant number of transportation projects could be

found to conform (and thus grandfathered) on the basis of an ultimately

unacceptable motor vehicle emissions budget before final EPA

disapproval actually occurs. These stakeholders are concerned about

irreversible commitments that might make Clean Air Act requirements

increasingly difficult to meet.

Other stakeholders emphasize that the disruption to the ongoing

transportation planning process should be minimized. They believe that

people and businesses begin to rely on projects in an approved plan and

TIP even though project-level conformity findings have not been made,

and conformity lapse immediately upon EPA's final disapproval is unduly

disruptive.

D. Discussion of Options

Stakeholders have identified a number of options to address the

consequences of EPA SIP disapproval without a protective finding. These

options address the concerns described

[[Page 36126]]

above to varying degrees. EPA is interested in receiving comments on

the alternative options described below and may finalize one of these

options, instead of the primary option described above.

1. No Project Approvals (Conformity Lapse) Beginning Immediately Upon

EPA Final Disapproval Without a Protective Finding

Some stakeholders have suggested that no more projects should be

approved (grandfathered) once EPA issues a final disapproval. However,

these stakeholders generally accept that projects found to conform

between submission and final disapproval should not be halted, even

once the SIP has been disapproved. This option would minimize

commitments that could ultimately be inconsistent with attainment or

maintenance, until another SIP that would be a better basis for

determining conformity is submitted to EPA.

2. Retain Existing Conformity Rule

As described above, the November 1993 transportation conformity

rule allows transportation plans, TIPs, and projects to be approved for

120 days following EPA's final disapproval of a SIP without a

protective finding. Following the 120-day grace period, no

transportation plans, TIPs, or projects can be approved. This approach

is similar to option 1 above, but the 120-day grace period helps reduce

disruption to approvals that are underway at the time of EPA's final

disapproval.

3. Allow Approval of Projects in the First Two Years of the

Transportation Plan/TIP

Some stakeholders advocate allowing previously planned

transportation projects to be approved and grandfathered, but not

approving new transportation plans, TIPs, or projects until a new SIP

has been submitted to EPA. For example, some stakeholders endorsed a

proposal that no transportation plans, TIPs, or amendments should be

found to conform after EPA's final disapproval of a SIP, and only those

projects scheduled for implementation during the first two years of the

TIP, and projects found by the MPO and the state air agency to

contribute to emissions reductions, should be allowed to proceed.

This option is similar to that being proposed by EPA today as the

primary alternative. This option prevents new commitments from being

made, but allows projects previously planned to occur in the short term

to proceed, in order to minimize disruption to the transportation

planning process.

4. No Consequences Until Clean Air Act Highway Sanctions Are Applied

Other stakeholders advocate allowing new transportation plans,

TIPs, and projects to be approved and grandfathered using the build/no-

build test or the disapproved motor vehicle emissions budget until

Clean Air Act highway sanctions are imposed. Highway sanctions under

section 179 would be imposed two years following EPA's final

disapproval unless the deficiency leading to the disapproval has been

corrected prior to that time. These stakeholders believe that it is

more consistent with the Clean Air Act to have Clean Air Act section

179 highway funding sanctions being the trigger for consequences of a

SIP disapproval. This change would also simplify the conformity rule by

having all conformity lapses associated with SIP failures occur when

highway sanctions are imposed.

E. Rationale for Primary Option Being Proposed

EPA believes that the primary option it is proposing today (as

described in section VII.A.) best balances the concerns expressed by

stakeholders. EPA is proposing to allow projects in the first three

years of the transportation plan/TIP to proceed, instead of those in

the first two years, as suggested in option 3. Some conformity

stakeholders expressed concern that restricting the ``grandfathering''

to the first two years of the transportation plan/TIP would be unduly

disruptive to the transportation planning process, especially because

the TIP normally addresses a minimum of three years. EPA believes that

the primary option provides a better balance between the competing

objectives of minimizing new commitments and minimizing disruption to

the transportation planning process.

VIII. Mismatch in SIP/Transportation Plan Timeframe

A. Description of the Issue

The existing transportation conformity rule requires the conformity

of transportation plans and TIPs to be demonstrated for the entire 20-

year timeframe of the transportation plan. However, control strategy

SIPs and maintenance plans generally address a significantly shorter

timeframe. For example, attainment demonstrations are only required to

address the years through the attainment year, and maintenance plans

are only required to initially address a 10-year period (with a

provision for a second 10-year appraisal).

For the years in the timeframe of the transportation plan that are

not addressed specifically by a SIP, the existing conformity rule

requires emissions to be consistent with the SIP motor vehicle

emissions budget(s) for the last year for which the SIP defines control

strategies and budgets. For example, before a maintenance plan has been

submitted, emissions predicted for the years after the attainment year

must be consistent with the attainment year budget(s). Emissions in

years after the first maintenance plan must be consistent with the

motor vehicle emissions budget(s) for the last year of that maintenance

plan.

Several conformity implementers have commented that there should be

a more flexible conformity test for the years that are not specifically

addressed by the SIP. Conformity implementers have pointed out several

difficulties caused by the existing transportation conformity rule's

requirements for the ``out-years'' of the transportation plan.

First, there are generally no adopted control measures to address

VMT growth in years that are not specifically addressed by the SIP. As

a result, it becomes the burden of the conformity process--and

potentially the MPO alone--to address long-term growth issues and

offset emissions increases. Placing the burden on the MPO to offset

emissions from long-term growth can be problematic because MPOs

generally lack the authority to adopt and enforce areawide emission

controls. In areas such as PM10 areas this problem is particularly

acute, because motor-vehicle-related PM10 emissions are directly

related to VMT. Technological improvements in the motor vehicle fleet

over time do not significantly reduce motor vehicle PM10 emissions

related to reentrained dust.

In addition, the existing conformity rule's requirement to use the

budget established for the last year of the maintenance plan for all

subsequent years poses special difficulties. In many areas, the motor

vehicle emissions budget will decline over the 10 years of the first

maintenance plan. This is generally because newer, cleaner cars will be

added to the motor vehicle fleet as older cars are retired, so the

emissions per VMT decrease. At the same time, emissions from stationary

sources are often related to economic and population growth, and are

thus projected to increase over time. As a result, many areas

demonstrate maintenance of air quality standards with declining motor

vehicle emissions

[[Page 36127]]

budgets and increasing stationary source emissions.

However, over time the effect of fleet turnover decreases, because

all cars in the fleet eventually meet applicable standards. In

addition, increases in VMT may begin to offset the emissions decreases

resulting from fleet turnover. Thus, motor vehicle emissions generally

are projected to increase in the years after the first 10-year

maintenance plan, and the motor vehicle emissions budget established

for the last year of that maintenance plan may in fact represent a low

point in the motor vehicle emissions projected for the 20-year

maintenance period. Requiring motor vehicle emissions in the years

after the first maintenance plan to be consistent with the budget for

the last year of that maintenance plan may be difficult without

additional control measures for stationary or mobile sources.

B. Request for Comment

EPA is not proposing specific regulatory text to address this

``mismatch'' issue at this time. However, EPA requests comment on three

options, and EPA proposes to include one of the options in the

regulatory text of the final rule.

1. Existing Transportation Conformity Rule

The first option is to continue the existing conformity rule's

requirements. According to the Clean Air Act, one of the purposes of

conformity is to ensure that transportation improvements do not cause

or contribute to new violations. The motor vehicle emissions budget for

the attainment year represents the level of motor vehicle emissions

that is consistent with attainment of the standard. Therefore, keeping

motor vehicle emissions in future years equal to or less than that

budget should ensure that motor vehicles will not cause or contribute

to a new violation. If motor vehicle emissions increase above levels

that the SIP identifies as necessary for attainment, it may be

difficult to state that a new violation would not result, as conformity

requires.

Regarding the comments that the existing conformity rule

inappropriately places the burden on the MPO to address long-term

growth issues, it is in fact an important goal of conformity to focus

attention on the long-term impacts of transportation investments and

policies. To the extent that an area has not reconciled the impacts of

growth and transportation policy with air quality goals, it is

appropriate that conformity provide the forum and impetus for state and

local governments to do so. Although the MPO may not itself have the

authority to adopt and enforce necessary measures, conformity is

determined through an interagency process which includes the state and

local governments which do have that authority. It is appropriate that

the long-term growth issues affecting a local area be addressed through

the cooperation of state and local air and transportation agencies. The

fact that the MPO has legal responsibility to determine conformity does

not mean it alone must develop and implement the additional control

measures that are necessary. The state also shares an interest in

developing conforming metropolitan transportation plans and TIPs and

would be expected to share responsibility for facilitating conformity.

Maintaining the existing conformity rule's requirements regarding

the applicability of motor vehicle emissions budgets for future years

would also encourage the SIP process to address longer timeframes,

which is ultimately the preferable solution. Doing so should avoid

costs and burdens of not addressing long-term issues now. The

difficulties associated with demonstrating conformity in years that are

not addressed by the SIP would be reduced if the SIP established

acceptable motor vehicle emission levels for such future years. This

has already occurred in some areas.

The existing conformity rule already has some provisions to address

the difficulties associated with using the budget for the last year of

the maintenance plan for subsequent years. For example, the maintenance

plan could establish larger motor vehicle emissions budgets for years

after the last year of the maintenance plan by projecting motor vehicle

emissions and emissions from other source categories in future years.

Provided the projected total emissions are less than the total

emissions in a previous year with clean data, the motor vehicle

emissions projections could be used to establish a motor vehicle

emissions budget. If the projected total emissions are less than the

total emissions in a previous year with clean data, the difference

(``safety margin'') could also be applied to the motor vehicle

emissions budget.

2. Emission Reduction Tests

A second option would be to require the emission reduction tests

(``build/no-build test'' and less-than-1990 test) for demonstrating

conformity in years not addressed by submitted or approved control

strategy SIPs or maintenance plans. Demonstrating conformity for years

later than those addressed by SIPs is in some ways analogous to the

situation of demonstrating conformity for years before SIPs are

submitted, that is, no budget has been specifically developed for

assessing conformity in such years. The Clean Air Act allows for

``contribution to annual emission reductions'' to serve as the test of

conformity in the latter case, so by extension, it could be argued that

such a test is also appropriate for years later than those addressed by

SIPs. The Clean Air Act requirement for consistency with emissions in

SIPs could be argued to apply only for those years that are

specifically addressed by the SIP.

Although this option provides more flexibility than the existing

rule for emissions increases due to population and economic growth, it

has several disadvantages. First, satisfying the emission reduction

tests would not ensure that motor vehicle emissions are at a level

consistent with attainment or maintenance. Although the conformity test

would ensure that motor vehicle emissions are no greater than they

would have been without further transportation improvements, the focus

is not on attainment or maintenance of air quality standards. As a

result, the impact of long-term growth on attainment and maintenance

will not necessarily be addressed.

The Clean Air Act requires a second 10-year maintenance plan to be

submitted eight years after an area's redesignation to attainment, so

the SIP process in redesignated areas will ultimately address the

emissions in the years after the first 10-year maintenance plan. In the

case of areas that have not yet been redesignated, however, allowing

motor vehicle emissions to increase above the attainment year budget

may make it increasingly difficult to develop a SIP demonstrating

maintenance, and thus may delay or complicate redesignation of such

areas to attainment.

Finally, conformity implementers and other interested parties have

commented that the emission reduction tests are not meaningful

indicators of air quality impacts, particularly because transportation

modeling and emission factor modeling are often not sufficiently

precise to determine significant differences between ``build'' and

``no-build'' scenarios. Experience to date has found that the emission

reduction tests are frustrating and difficult to explain because they

do not address the performance-oriented goals of attainment and

maintenance. Although practical alternatives have not been identified

for use during the period before SIPs have been developed, for years

later than those addressed by SIPs,

[[Page 36128]]

the previously established motor vehicle emissions budgets are

available.

3. Default Motor Vehicle Emissions Budget

A third option is to maintain the existing rule's requirements for

the years after the attainment deadline and before a maintenance plan

has been submitted, but to allow a default motor vehicle emissions

budget for the years outside the maintenance plan's timeframe. Instead

of requiring the motor vehicle emissions budget for the last year of

the maintenance plan to continue to apply for subsequent years, the

motor vehicle emissions budget for subsequent years could be the motor

vehicle emissions in the year of redesignation.

Like the emission reduction tests option, this option would not

ensure that motor vehicle emissions are consistent with maintenance of

air quality standards. Without considering emissions from sources other

than motor vehicles, there is no assurance that the motor vehicle

emissions in the year of redesignation will also be consistent with

continued maintenance of the standard in future years. However, this

problem could be at least somewhat reduced with additional features to

this option. For example, the rule could require the default budget to

be established in the maintenance plan and accompanied by some type of

demonstration that when the default motor vehicle emissions budget is

considered together with expected growth in area and stationary source

emissions, the standard will be maintained.

The default emissions budget option may be preferable to the

emission reduction tests option for the years after those addressed by

maintenance plans for two reasons. First, conformity implementers have

expressed a preference for budget tests instead of the more abstract

emission reduction tests. Second, unlike the emission reduction tests

option, this option would provide a cap on motor vehicle emissions

growth. Although the cap is not necessarily tied to maintenance, it

does not allow emissions due to population and economic growth to

revert back to 1990 levels, as the emission reduction tests allow. As a

result, the conformity process could still provide significant

protection for the public while providing the impetus for serious

consideration of long-term growth effects.

Unlike the emission reduction tests option, this option would

maintain the existing rule's requirements (i.e., the attainment budget

would continue to apply for the years after the attainment deadline)

until a maintenance plan is submitted. This will help prevent delays in

attainment and/or redesignation.

Allowing conformity to be demonstrated using a default emissions

budget that is not part of an overall maintenance strategy that

addresses all emissions sources could be considered inconsistent with

the Clean Air Act section 176(c) and the conformity rule's other

interpretations of those provisions. However, it is also possible to

argue that such an allowance is reasonable and defensible in the

special circumstance of demonstrating conformity for years that have

not yet been addressed by the maintenance plan.

For example, the legislative history of the Clean Air Act reveals a

specific choice to require maintenance plans to address 10-year

increments rather than an entire 20-year period. It could therefore be

argued that it is not conformity's responsibility to ensure maintenance

over a 20-year period; provided the transportation community keeps

motor vehicle emissions constrained to some level previously associated

with maintenance, future maintenance plans could address emissions from

other sources and revise motor vehicle emissions budgets as necessary

for an overall maintenance strategy. It could also be argued that the

Clean Air Act's Prevention of Significant Deterioration requirements

are intended to address growth in non-mobile source emissions in years

not addressed by maintenance plans, and that EPA can issue SIP calls if

growth in non-mobile source emissions threatens maintenance.

IX. Public Participation

A. Description of the Proposal

This proposal would clarify the timeframe within which information

must be provided for public access under the public participation

requirements in the existing conformity rule. The proposal would

specify that affected agencies must provide public access to

information considered by the agency in making transportation plan and

TIP conformity determinations at the beginning of the designated public

comment period and prior to taking formal action on conformity

determinations. This proposal would define the information to include

all technical and policy information considered by the agency in

supporting conformity determinations.

This proposal would continue to reference and be consistent with

DOT's metropolitan planning regulation (23 CFR 450.316(b)), which,

among other things, requires at least a 30-day comment period in

serious and above nonattainment areas. Agencies affected by this

proposal would be referred to DOT's January 1995 guidance, ``Public

Involvement and Questions and Answers'' (60 FR 5508-5512), for specific

identification of the types of information to be provided to the

public. EPA expects that affected agencies would refer to this guidance

in providing information for public comment. The guidance specifies

input assumptions such as population projections, land use projections,

fares, tolls, levels of service, the structure and specifications of

travel demand and other evaluation tools.

Since information supporting conformity determinations is stored in

many forms, EPA interprets that this proposal's requirement would apply

to information in written, graphic, and electronic form. Under this

proposal, any charges imposed by affected agencies for public

inspection and copying would be required to be consistent with the fee

schedule in 49 CFR 7.95, which EPA believes would ensure reasonable

public access to the information. EPA also notes that under the DOT

metropolitan planning regulations, each MPO conducts public involvement

under its own custom-tailored public involvement procedures. These

procedures describe how the MPO intends to meet the performance

standards of the conformity rule and metropolitan planning regulations.

B. Discussion of Proposal

EPA is proposing this clarification to address stakeholder concerns

that public participation is hindered when public access to information

relied on for conformity determinations is not provided in enough time

to allow for adequate public involvement. EPA agrees that public access

to all of the information considered by the agency at the beginning of

the public comment period is critical to ensuring effective public

participation in the conformity process.

In its ``Public Involvement and Questions and Answers'' guidance,

DOT emphasizes that an effective public involvement process should

provide for an open exchange of information and ideas between the

public and transportation decisionmakers, and as an overall objective,

an area's public involvement process should be proactive, provide

complete information, timely public notice, full public access to key

decisions, and opportunities for early and continuing involvement. EPA

believes that this

[[Page 36129]]

proposal would not only be consistent with these objectives, but that

it would further the purposes emphasized in the guidance.

EPA does not believe that this proposal would be burdensome for

affected agencies since it would only require that agencies provide

public access to information already in their possession. This proposal

would not require the affected agencies to edit, summarize existing

files, or to compile new files beyond those already prepared as a part

of the plan and TIP development process.

X. Interagency Consultation

This proposal includes several new provisions which require

interagency consultation, including the choice of conformity tests and

modeling methodology for rural areas; the establishment of a ``default

budget'' in clean data areas; and the addition of non-exempt projects

to the transportation plan/TIP without full regional emissions

analysis. EPA is not proposing to amend Sec. 51.402/Sec. 93.105

(``Consultation'') to add these consultation needs to the list of

specific processes that must be included in the conformity SIP's

consultation procedures. EPA believes that it is clear that

consultation procedures must be developed in order to use these new

provisions. As a result, EPA does not believe that the complexity

resulting from adding items to Sec. 51.402 is justified. Furthermore,

the proposed provisions involving additional consultation procedures

are for the most part optional flexibilities for unique situations, so

consultation procedures to implement these flexibilities will not be

relevant for all conformity SIPs.

However, EPA emphasizes that interagency consultation on these

specific provisions is a necessary part of their implementation. EPA

recommends that in order to facilitate future conformity

determinations, areas should develop appropriate consultation

procedures as soon as possible if they expect to use these provisions.

XI. Streamlining and Clarification

This proposal includes numerous wording and organizational changes

that would streamline and clarify the existing transportation

conformity rule. Although these changes affect most sections of the

existing transportation conformity rule, highlights are discussed

below.

A. Frequency of Conformity Determinations

1. Three-year Requirement

This proposal would clarify that both the MPO and DOT must

redetermine conformity of transportation plans/TIPs within three years

of DOT's transportation plan/TIP conformity determination. The existing

transportation conformity rule is not explicit regarding the start of

the three-year clock and which agencies' conformity determinations must

be completed before expiration of that clock. This clarification is

consistent with implementation practice to date and would help reduce

confusion and ambiguity for future implementers.

2. Triggers for Redetermination

This proposal would streamline the paragraph that describes which

events trigger an 18-month clock for redetermination of conformity.

This proposal would also move Sec. 51.448(a)(1)/Sec. 93.128(a)(1), as

amended on November 14, 1995, so that the requirement to determine

conformity within 18 months of the initial submission of a control

strategy SIP or maintenance plan is in the frequency section with the

other triggers for conformity redetermination. Although the substance

of the requirement is unchanged, the restructuring improves the flow

and clarity of the rule.

The relocation of Sec. 51.448(a)(1) highlights the fact that a

conformity determination is required within 18 months of both the

initial submission and final EPA approval of a control strategy SIP or

maintenance plan. Both submission and approval trigger a

redetermination of conformity, because it is not uncommon for the SIP

to change between initial submission and final approval. If conformity

was determined to the initial SIP submission and the SIP did not change

between initial submission and final approval, the requirement to

determine conformity after final approval could be satisfied without

new regional emissions analysis.

3. Requirement for TIP Conformity Within Six Months of Transportation

Plan Conformity

This proposal would clarify existing Sec. 51.400(a)(3)/

Sec. 93.104(a)(3) by specifying that the TIP must be determined by DOT

to conform within six months of DOT's conformity determination on a new

or revised transportation plan. The existing requirement starts the

six-month clock with the date of adoption of the plan.

EPA received comment suggesting that the six-month limit between

transportation plan and TIP conformity determinations is not necessary

and should be removed. EPA believes that this requirement should be

retained because of ISTEA's (and hence, conformity's) expectation that

the TIP will flow from, and be consistent with, the transportation

plan. The conformity rule requires TIP conformity to be based on a

consideration of all projects in the 20-year timeframe of the

transportation plan. As a result, changes to the transportation plan

should be reflected in the TIP's conformity determination in a timely

manner.

EPA expects that in almost all cases, the plan and TIP will be

developed concurrently and one regional emissions analysis will be

performed to support both conformity determinations. In cases where the

transportation plan and TIP are not developed concurrently, EPA

believes the six-month requirement is critical to ensure that, given

the changes to the transportation plan, projects from the TIP would

still result in a level of regional emissions in 20 years that would

not cause a new violation, worsen existing violations, or delay timely

attainment.

B. Criteria and Procedures for Determining Conformity of Transportation

Plans, Programs, and Projects: General

This proposal would consolidate several parts of the existing

transportation conformity rule into Sec. 51.410/Sec. 93.109 in order to

create a section that provides a comprehensive overview of when and in

what circumstances the budget test, emission reduction tests, and hot-

spot tests are required. The section would have separate paragraphs for

ozone, CO, PM10, and NO2 areas and isolated rural areas so

that the rule is easier to use and so that the conformity implications

of Clean Air Act requirements and classifications that are unique to

each pollutant are specifically addressed.

This consolidation would allow the elimination of existing

Sec. 51.464/Sec. 93.136 (``Special provisions for nonattainment areas

which are not required to demonstrate reasonable further progress and

attainment'') and Sec. 51.452(d)/Sec. 93.130(d) (``Projects not from a

conforming plan and TIP in isolated rural nonattainment and maintenance

areas''). The provisions for special situations would be discussed in

the same place as provisions for other areas, thus making these

provisions easier to locate and improving the clarity and user-

friendliness of the rule.

[[Page 36130]]

As discussed in section II., the existing rule's classification

system of ``Phase II interim period,'' ``transitional period,'' and

``control strategy period'' would be eliminated.

C. Latest Planning Assumptions

This proposal would clarify that conformity determinations must use

the latest existing information regarding the effectiveness of all

relevant SIP control measures, including TCMs, that have already been

implemented. This would reduce confusion regarding what emission

reduction credit should be assumed from vehicle inspection and

maintenance programs that are included in approved SIPs and that are

already being implemented.

D. Consultation Criterion

This proposal would clarify Sec. 51.416/Sec. 93.112 (``Criteria and

procedures: Consultation''), which is the section requiring conformity

to be determined according to the consultation procedures of the rule,

the conformity SIP, and DOT's planning regulations.

This proposal would remove the reference to the MPO so that it is

clear that rural areas must also abide by interagency and public

consultation requirements. In addition, this proposal removes ambiguous

language that could imply that areas are not required to comply with

public participation procedures after the conformity SIP is approved.

E. Hot-spot Tests

This proposal would consolidate and streamline existing

Secs. 51.424 and 51.434 (Secs. 93.116 and 93.121), which address

localized CO and PM10 violations (hot spots). The two sections

would be combined, and paragraph (c) of each of these sections would be

moved to the section addressing procedures for determining localized CO

and PM10 concentrations (hot-spot analysis). This would reduce

confusion regarding the distinction between the two hot-spot tests and

streamline the discussion of both the conformity tests and the

methodological requirements.

F. Compliance With PM10 Control Measures

This proposal would clarify the existing requirement of

Sec. 51.426/Sec. 93.117 for SIP PM10 control measures to be

included in the project's final plans, specifications, and estimates.

Because the final plans, specifications, and estimates are generally

not developed until after the project's conformity determination, it is

problematic for the existing rule to make the plans, specifications,

and estimates a condition of the project-level conformity

determination. This proposal would require the conformity determination

to include a written commitment to include SIP PM10 control

measures in the project's plans, specifications, and estimates. Such

commitments would be enforceable, as required by existing Sec. 51.458/

Sec. 93.133 (``Enforceability of design concept and scope and project-

level mitigation and control measures'').

G. Budget Test

This proposal would combine existing Secs. 51.428-51.432

(Secs. 93.118-93.120) into one streamlined section that describes the

budget test for the transportation plan, TIP, and project not from a

conforming plan and TIP. As described in section III. of this preamble,

the implementation of the budget test and the years for which budgets

apply would be clarified.

H. Emission Reduction Tests

This proposal would combine existing Secs. 51.436-51.446

(Secs. 93.122-93.127), which describe the tests for emission reductions

in the interim period for ozone, CO, PM10, and NO2 areas,

into one streamlined section that addresses all pollutants and the

transportation plan, TIP, and project not from a conforming plan and

TIP. This would avoid the repetition of the definitions of the

``Baseline'' and ``Action'' scenarios and improve the readability of

the transportation conformity rule.

This proposal would provide that the first analysis year shall be

no more than five years beyond the year in which the conformity

determination is being made. The existing conformity rule requires the

first analysis year to be 1995 in CO nonattainment areas and 1996 in

ozone nonattainment areas. This requirement is obviously no longer

appropriate, because conformity is not intended to be assessed

retrospectively.

This proposal would also modify the definition of the ``Baseline''

scenario so that only projects that come from the first year of the

previously conforming transportation plan/TIP are required to be

included in the ``Baseline'' scenario. The existing conformity rule

requires projects from the first three years of the previously

conforming transportation plan/TIP to be included in the ``Baseline''

scenario. The proposed modification is intended to correct the perverse

incentive that the existing requirement creates for areas to withhold

projects with air quality benefits. Some stakeholders have commented

that because the air quality benefits of projects in the second and

third year of the TIP are included in the ``Baseline'' after the

initial TIP conformity determination, areas are holding back some

projects for use in future ``Action''/``Baseline'' comparisons.

I. Transition From the Interim Period to the Control Strategy Period

Because the proposal would no longer use the terms ``interim

period'' and ``control strategy period,'' this proposal would

consolidate and streamline existing Sec. 51.448/Sec. 93.128 and better

integrate its provisions into the rest of the transportation conformity

rule.

Under the proposal, this section would address only the conformity

consequences of various SIP failures. This section would streamline the

existing requirements regarding conformity lapse resulting from SIP

failures, as amended August 7, 1995, and November 14, 1995. The term

``protective finding'' would be included in the definitions section in

order to decrease the wordiness of the requirements and improve the

readability of the rule.

Some of the existing requirements of Sec. 51.448 would be

incorporated in the frequency section, the general overview of the

criteria and procedures, and the budget test. Existing paragraphs (e)

through (i) would be eliminated. Existing Sec. 51.448(e) requires

consultation on individual capacity-increasing projects in areas that

have not yet submitted control strategy SIPs. Because all areas that

are already required to submit control strategy SIPs have made such

submissions, EPA believes that the requirements of paragraph (e) are no

longer necessary.

Existing Sec. 51.448(f) describes conditions under which new

regional emissions analysis is not necessary in order to determine

conformity to a newly submitted control strategy SIP. EPA continues to

believe that new regional emissions analysis would not be necessary

under the conditions described in paragraph (f). However, EPA does not

believe that this provision needs to be included in the regulatory

text, because the provision is not commonly used and EPA believes the

provision is sufficiently well understood.

Existing paragraphs 51.448 (g) through (i) are no longer relevant

given the other changes to the transportation conformity rule proposed

in this notice.

J. Procedures for Determining Regional Transportation-Related Emissions

This proposal would generally streamline and clarify existing

Sec. 51.452/Sec. 93.130. Some of the clarifications are highlighted

below.

[[Page 36131]]

1. Credit for Delayed Measures

This proposal would clarify that if TCMs or any other measures in

the approved SIP are delayed beyond the scheduled date, emission

reduction credit may not be included in the emissions analysis until

implementation is assured. This clarification would ensure that the

requirements for latest planning assumptions and restrictions on

assuming credit for regulatory measures are logically and consistently

applied. As described in the discussion of the clarification to the

``Latest planning assumptions'' section, broadening discussion of TCMs

to include other SIP measures would reduce confusion regarding emission

reduction credit for vehicle inspection and maintenance programs.

2. Credit for Future Measures

This proposal would streamline and clarify the conditions under

which emission reduction credit from future regulatory measures could

be assumed. In addition, the proposal would add language regarding

control measures that do not need a regulation in order to be

implemented, but are not included in the transportation plan/TIP or the

SIP. This language is intended to address measures such as increased

street sweeping or street sanding specifications, which are external to

the usual transportation planning process and which require some form

of commitment that may not be explicitly regulatory or included in the

SIP.

This proposal would allow emission reduction credit from such

measures to be assumed if the conformity determination includes written

commitments to implementation of the measures by appropriate entities

(e.g., government agencies, private project sponsors). The conformity

SIP would have to provide that written commitments that are included in

conformity determinations are enforceable under the SIP. This language

regarding enforceability is similar to that in existing Sec. 51.458/

Sec. 93.133 (``Enforceability of design concept and scope and project-

level mitigation and control measures'') and that included in the

general conformity rule (58 FR 63214, November 30, 1993).

The proposed additional language would reduce confusion regarding

these types of control measures and would allow more explicit

flexibility for these measures to be developed and credited in the

conformity process. The proposal would require written commitments to

be included as part of the conformity determination, but would not

require the commitments to be specifically included in the SIP. By

making such commitments enforceable under the SIP as a general matter,

the SIP would not have to be revised to include each specific

commitment.

The proposal would also allow regional emissions analyses to

include emission reductions from projects, programs, or activities that

are committed to in the control strategy SIP submission or the

maintenance plan submission, similar to the existing conformity rule's

Sec. 51.452(a)(4). Consistent with EPA's SIP policy, SIP commitments

must include a demonstration that the agency making the commitment has

authority to implement the measure and that adequate personnel and

funding are available for implementation.

3. Highway Performance Monitoring System (HPMS)

This proposal would clarify existing Sec. 51.452(b)(2)/

Sec. 93.130(b)(2) to specify that although HPMS estimates of VMT shall

be considered the primary measure of VMT in certain cases, locally

developed count-based programs and other variations from the procedure

described in the conformity rule are permitted subject to the

interagency consultation process. This paragraph applies to serious,

severe, and extreme ozone nonattainment areas and serious CO

nonattainment areas with an urbanized area population over than

200,000.

In its experience implementing the transportation conformity rule

since 1993, EPA has received several questions regarding what should be

used as the measure of VMT in areas that are not serious or above ozone

or CO areas. These areas may use HPMS (including the factoring

procedure described in existing Sec. 51.452(b)(2)/Sec. 93.130(b)(2)) or

other locally developed programs and procedures, subject to the

interagency consultation process.

4. Reliance on Previous Regional Emissions Analysis

This proposal would consolidate in the section on procedures for

regional emissions analysis the discussion of circumstances under which

new regional emissions analysis may not be necessary. This discussion

is currently included in the description of the budget test for TIPs

and projects not from a conforming plan and TIP (Sec. 51.430/

Sec. 93.119 and Sec. 51.432/Sec. 93.120). This change would streamline

these budget test sections and allow a simpler discussion of what must

be demonstrated in order to satisfy the budget test.

K. Procedures for Determining Localized CO and PM10 Concentrations

(Hot-spot Analysis)

This proposal would restructure the procedural requirements for

hot-spot analysis in order to clarify that the hot-spot tests should be

satisfied using EPA ``Guideline'' models in specified cases and in

other cases may be satisfied using other quantitative or qualitative

methods. This proposal would retain the existing rule's description of

what projects should have hot-spot analysis according to EPA's

``Guideline'' models, but would clarify that other methods may be

agreed upon through the interagency consultation process and with the

approval of the EPA Regional Administrator.

EPA is willing to consider methods that identify different

thresholds for determining which projects would require EPA

``Guideline'' models. For example, although the existing rule requires

all projects affecting intersections at Level-of-Service D, E, or F to

be quantitatively modeled using EPA ``Guideline'' models, an area may

develop other thresholds for quantitative analysis based on delay

times, traffic volume, queue lengths, background CO levels, and/or

receptor locations. EPA will consider alternative methods for

thresholds provided they are sufficient to determine that projects will

not cause or contribute to new CO violations or increase the frequency

or severity of existing CO violations (as described by the hot-spot

criterion).

In addition, if an individual project affects multiple

intersections, EPA is willing to approve procedures that require

quantitative modeling initially only for those intersections with the

greatest potential for CO violations. If quantitative modeling of those

intersections does not predict CO violations, the other intersections

affected by the project would not have to be quantitatively modeled.

L. Enforceability of Design Concept and Scope and Project-Level

Mitigation and Control Measures

This proposal would clarify existing Sec. 51.458/Sec. 93.133 by

stating that a waiver of mitigation measures is subject to the

conformity rule's public participation requirements for project-level

conformity determinations. The conformity rule requires public

involvement in conformity determinations for projects where otherwise

required by law (e.g., the National Environmental Policy Act (NEPA)).

This clarification is consistent with EPA's original intent for a

waiver of mitigation measures to be permitted

[[Page 36132]]

through a process similar to the original conformity determination.

This clarification is in response to the May 26, 1994, Petition for

Reconsideration by the Environmental Defense Fund, the Natural

Resources Defense Council, and the Sierra Club Legal Defense Fund.

M. Exempt Projects

This proposal would clarify Table 2 of existing Sec. 51.460/

Sec. 93.134 by specifying that the advance land acquisitions that are

exempt are those emergency/hardship acquisitions provided for by 23 CFR

712.204(d).

As described in the preamble to the November 1993 conformity rule

(58 FR 62213), the advance land acquisitions referred to in Table 2 are

those ``parcels that are acquired to protect a property from imminent

development and increased costs which would tend to limit a choice of

transportation alternatives, or are acquired to alleviate particular

hardship to a property owner at his or her request. This is only

allowed in emergency or extraordinary cases, and only after the state

department of transportation has given official notice to the public

that a preferred highway or transit location has been selected, held a

public hearing, or provided an opportunity for a public hearing.''

This proposal would make this intention clearer in the rule by

providing the specific citation that enables this type of hardship

acquisition and protective buying.

XII. TCM Flexibility

During the 1995 spring stakeholder meetings, EPA made a commitment

to provide sample language for a SIP mechanism that would allow

substitution of TCMs in a previously approved SIP without additional

EPA approvals. As EPA indicated at that time, EPA believes that such a

substitution mechanism is possible under existing EPA SIP policy, and

no conformity rule amendment is necessary. As a result, EPA is not

proposing language addressing TCM flexibility in today's action.

EPA will be drafting model SIP language and distributing it to

conformity stakeholders for comment.

XIII. PM10 Hot Spots

Section 51.454(d) (93.131(d)) of the existing conformity rule

requires quantitative PM10 hot-spot analysis in certain cases, but

states that the requirements will not take effect until EPA releases

modeling guidance and announces in the Federal Register that the

requirements are in effect.

EPA has not yet released guidance on dispersion modeling for

PM10 hot spots due to transportation projects. As a result, the

requirements for quantitative PM10 hot-spot analysis are not

currently in effect.

EPA has received comment requesting that these requirements should

continue to be deferred until research that is underway by other

organizations has been completed. For example, several PM10

studies are being sponsored by the California Air Resources Board and

the California Department of Transportation.

EPA hereby announces its intention to delay the further development

and issuance of its PM10 hot-spot modeling guidance pending the

completion of research by organizations external to EPA. EPA does not

intend to issue PM10 hot-spot modeling guidance before 1998. As a

result, the requirements of existing Sec. 51.454(d)/Sec. 93.131(d) will

continue to be deferred until such time as EPA releases modeling

guidance and announces in the Federal Register that the requirements

are in effect.

XIV. Signalization Projects

EPA has received several comments suggesting that signalization

projects, including areawide traffic signal synchronization projects

and automated traffic surveillance and control projects, should be

exempt from transportation conformity requirements. However, for the

reasons described below, EPA is not proposing to change the exempt

project lists (Tables 2 and 3 of the conformity rule) to exempt

signalization projects.

A. Background

The transportation conformity rule does not require conformity

determinations for certain types of projects. These ``exempt'' projects

are listed in Table 2 of the conformity rule. In contrast to other

transportation projects, exempt projects can proceed toward

implementation even if a currently conforming transportation plan or

TIP is not in place. These projects are exempt from conformity

requirements because EPA considers them to have a neutral or de minimis

impact on air quality. EPA does not exempt projects that could have

regional impacts--even if those impacts may be positive--because EPA

believes that regionally significant projects must be analyzed

together, in the context of all other regionally significant projects.

In this way, the interactions among projects may be considered, and

there is a meaningful estimate of regional emissions that can be

compared to the SIP's motor vehicle emissions budget.

In addition to the Table 2 projects that are exempt from conformity

requirements, the transportation conformity rule also exempts certain

projects from regional emissions analysis. These projects, which are

listed in Table 3 of the conformity rule, are not required to be

included in the regional emissions analysis for the transportation plan

and TIP, and can proceed toward implementation even if a currently

conforming transportation plan or TIP is not in place. However,

conformity determinations are required for these projects, and the

local effects of these projects on CO and PM10 concentrations must

be considered in CO and PM10 nonattainment and maintenance areas.

The existing transportation conformity rule exempts intersection

signalization projects at individual intersections from regional

emissions analysis, as indicated in Table 2.

B. Comments Supporting Exemption of Signalization Projects

EPA has received comments that advocate the exemption of

signalization projects because of positive air quality and congestion

mitigation impacts of signalization projects and because of the

implementation delays that may result from conformity requirements.

For example, some commenters state that signalization projects

decrease emissions by reducing acceleration, deceleration, and idling.

They cite studies of certain signalization efforts that indicate

significant reductions in CO, VOC, and NOx emissions. In addition,

they state that improved efficiency of the roadway network benefits

buses and high occupancy vehicle (HOV) users.

In addition, some commenters support exempting signalization

projects in order to avoid delays that could result from the

requirement for these projects to be included in the transportation

plan and TIP's regional emissions analysis. Some commenters expressed

concern that signalization projects could be delayed for up to a year

while going through conformity analysis.

C. Rationale For Decision Not To Exempt Signalization Projects

EPA is not proposing to exempt signalization projects from

conformity requirements because some of the projects may be complex,

regionally significant projects whose emissions impacts must be

assessed in the context of all regionally significant projects. For

signalization projects that are not regionally significant, options

exist to decrease the analysis burden and

[[Page 36133]]

potential delay of the conformity requirements, as described below.

As described above, EPA's list of exempt projects is intended to

include only those projects with neutral or de minimis emissions

impacts. The types of signalization projects that commenters suggest

exempting are clearly not de minimis. For example, some signalization

projects are areawide synchronizations that affect hundreds of

intersections. Even the more limited signalization projects are often

complex projects associated with roadway construction and improvement.

Traffic signalization projects are not always limited to simple

upgrades of hardware or installation of new signals.

In addition, signalization projects cannot generally be considered

de minimis because they may affect traffic flow on a regional level.

The emissions impacts may be positive or negative depending on the

pollutant of concern, the speeds on the affected roads, and the effects

on other roads in the network. For example, improved traffic flow and

corresponding increases in traffic speed may reduce CO emissions, but

may increase NOX emissions in certain speed ranges. PM10

emissions may also increase. Significant changes in travel time may

redistribute travel on other roads and affect mode choice. These

effects need to be considered at a regional level, and the cumulative

emissions impacts cannot be qualitatively determined.

EPA recognizes that not all signalization projects at multiple

intersections are regionally significant, particularly if they affect a

small number of miles in a large metropolitan area, or if an area's

modeling capabilities are not sensitive to the more subtle regional

effects of signalization projects. The existing conformity rule allows

projects that are not regionally significant to be amended into the

transportation plan and TIP without a new regional emissions analysis,

if the regional emissions analysis supporting the currently

transportation plan and TIP is still valid (e.g., planning assumptions

have not changed). As a result, EPA believes that there are already

sufficient opportunities to minimize the analysis burden and potential

project implementation delays in cases where the signalization projects

are relatively simple.

EPA considered trying to identify a threshold for determining which

signalization projects at multiple intersections would not be

considered regionally significant, so that these projects could be

included in Table 3's list of projects that are exempt from regional

emissions analysis. However, EPA decided that this approach would be

unnecessarily complex and unlikely to provide a threshold that was

appropriate for all areas. Areas currently have the discretion to

determine which projects are regionally significant through the

interagency consultation process, and thus have sufficient flexibility

to minimize the analysis burden associated with signalization projects

where appropriate.

Finally, although EPA agrees that the conformity process should

minimize project implementation delays as much as possible, EPA does

not believe the delays associated with regionally significant

signalization projects are unreasonable. If signalization projects are

identified at the time the transportation plan and TIP are being

developed, they can be included in the transportation plan and TIP's

regional emissions analysis initially, and implementation delays should

not occur. In many instances TIPs are developed annually. If

transportation plan/TIP amendments between TIP cycles can be avoided

with improved planning, implementation delays could be reduced.

XV. Conformity SIPs

Section 51.396(a) of the existing conformity rule (as amended

November 14, 1995) requires conformity SIP revisions to be submitted to

EPA within 12 months after the date of publication of final amendments

to the conformity rule. As a result, when EPA takes final action on

today's proposal, conformity SIP revisions consistent with that final

action will be due to EPA within 12 months.

As specified in Sec. 51.396(b) of the conformity rule, after EPA

approves a conformity SIP revision, the federal conformity rule does

not govern conformity determinations. Therefore, for areas whose

conformity SIP revision has already been approved by EPA, the final

amendments that will result from today's proposal will not be effective

until they are included in the conformity SIP revision and EPA approves

that SIP revision.

XVI. Public Hearing

Anyone who wants to present testimony about this proposal at the

public hearing (see DATES) should, if possible, notify the contact

person (see FOR FURTHER INFORMATION CONTACT) at least seven days prior

to the day of the hearing. The contact person should be given an

estimate of the time required for the presentation of testimony and

notification of any need for audio/visual equipment. A sign-up sheet

will be available at the registration table the morning of the hearing

for scheduling those who have not notified the contact earlier. This

testimony will be scheduled on a first-come,first-serve basis to follow

the previously scheduled testimony.

EPA requests that approximately 50 copies of the statement or

material to be presented be brought to the hearing for distribution to

the audience. In addition, EPA would find it helpful to receive an

advance copy of any statement or material to be presented at the

hearing at least one week before the scheduled hearing date. This is to

give EPA staff adequate time to review such material before the

hearing. Such advance copies should be submitted to the contact person

listed.

The official records of the hearing will be kept open until the

close of the comment period to allow submission of rebuttal and

supplementary testimony. All such submittals should be directed to the

Air Docket, Docket A-96-05 (see ADDRESSES). The hearing will be

conducted informally, and technical rules of evidence will not apply. A

written transcript of the hearing will be placed in the above docket

for review. Anyone desiring to purchase a copy of the transcript should

make individual arrangements with the court reporter recording the

proce

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