Office of Planning, Environment, & Realty (HEP)
Planning • Environment • Real Estate
Introduction
Statutory Provisions Related to Conformity Lapses
Conformity Lapse Grace Period
Conformity Freeze
EPA and DOT Coordination Prior to a Conformity Lapse and Freeze
Types of Projects That May Advance During a Conformity Lapse
Differences Between Highway Sanctions, Conformity Lapses, and Conformity "Freezes"
Consequences of Control Strategy Implementation Plan Failures
Consequences of SIP Disapprovals With a Protective Finding
Consequences of SIP Disapprovals Without a Protective Finding
Alignment of Conformity Lapses and Highway Sanctions
Impacts on Maintenance Areas of SIP Disapproval Actions and Subsequent Highway Sanctions/Conformity Lapse Situations
Questions and Answers
This Chapter presents an overview of circumstances under which lapsing of an MPO's conformity determination on a transportation plan/TIP may occur, as well as the associated consequences for both Federal and non-Federal highway and transit projects that may be affected by a conformity lapse situation. The July 1, 2004 rule incorporated existing Federal guidance[1] into the conformity regulation consistent with the March 2, 1999 decision by the U.S. Court of Appeals for the District of Columbia. The court's ruling affected provisions that pertain to five aspects of the conformity rule, including:
Numbers one, three, and four above are amendments to the conformity rule directly related to conformity lapses and conformity freezes. Each of these amendments is discussed in greater detail in the corresponding sections of this chapter.
SAFETEA-LU section 6011(e) Lapse of Conformity
This provision allows an additional 12 months from a missed deadline to determine conformity of the plan and/or TIP before a conformity lapse occurs. It amends section 176(c) of the Clean Air Act (42 U.S.C. 7506(c)) by inserting the following:
During a conformity lapse, the MPO's conformity determination for a transportation plan or TIP is no longer valid. Only certain types of projects can advance during a conformity lapse and these are discussed in detail later in this chapter.
The Clean Air Act requires that conformity be determined for transportation plans and TIPs every four years, unless MPO elects to update a plan or TIP more frequently, or the MPO is required to determine conformity to meet a 24 month trigger.
SAFETEA-LU section 6011(a) Conformity Redeterminations
This provision replaces the 18-month triggers for transportation plan and TIP conformity determinations that are currently found at 40 CFR 93.104(e). It amends section 176(c) of the Clean Air Act (42 U.S.C. 7506(c)) by adding the following:
SAFETEA-LU section 6011(b) Frequency of Conformity Determination Updates
This provision replaces the 3-year conformity update cycle for plans and TIPs. It amends section 176(c)(4)(B)(ii) of the Clean Air Act (42 U.S.C. 7506(c)(4)(B)(ii) to read:
In addition, the CAA requires that only those transportation projects may be adopted, approved or found in conformity by an MPO or any recipient of funds designated under Title 23 or Title 49 (Federal Transit Act funds), or approved, accepted or funded by the U.S. DOT that meet the following criteria:
CAA §176(c)(2)(C), 42 U.S.C. §7506(c)(2)(C)
The lapse grace period does not apply to the deadline for newly designated nonattainment areas to determine plan/TIP conformity within 12-months after the nonattainment designation becomes effective, as required under the Clean Air Act §176(c)(6), (42 U.S.C. §7506(c)(6). Please see DOT and EPA's interim guidance on how projects can advance during the 12-month conformity lapse grace period.
A conformity freeze may result from a SIP disapproval without a protective finding. The freeze goes into effect on the day the disapproval without a protective finding is effective, normally 60-90 days after EPA notifies the State, through a Federal Register Notice, of the SIP disapproval. More information on conformity freezes is included later in this Chapter.
The following provisions will apply 6 months prior to an anticipated conformity lapse or when EPA has notified an area of a freeze, unless the EPA and FTA Regional Administrators and FHWA Division Administrator agree that additional Federal coordination is unnecessary:
The EPA and DOT field managers will meet periodically to discuss pending conformity determinations, transportation project development actions, and SIP deficiencies, as appropriate, for the particular nonattainment or maintenance area.
The EPA and DOT field managers will meet at least 90 days before an anticipated conformity lapse or freeze to determine which projects could receive funding commitments (plans, specifications, and estimates approval, full funding grant agreement, or an equivalent approval or authorization) before the lapse, which projects could potentially be delayed, and which actions are necessary to correct transportation-related SIP deficiencies prior to the lapse or freeze. The EPA and DOT meetings are encouraged more than 90 days before an anticipated conformity lapse or shortly after EPA has notified the State of the impending freeze. The EPA and DOT headquarters offices encourage their regional and division offices to negotiate more specific consultation procedures where appropriate. The EPA and DOT regions and divisions will exchange information necessary to facilitate timely discussions.
The EPA and DOT field offices agree to notify EPA and DOT headquarters offices if the sub-section is initiated. If it is anticipated that an issue cannot be resolved at the EPA and DOT Regional and Division Administrator levels, the issue must be escalated to EPA and DOT headquarters offices for the purpose of seeking resolution within 30 days of escalation, before the DOT regional or division office makes its conformity determination. If both DOT and EPA agree, this time period may be extended. Similar steps will be taken when a conformity lapse is caused or exacerbated by SIP issues.
When a conformity lapse is imminent, FHWA Division Administrators and FTA Regional Administrators shall notify the Governor or the Governor's designee immediately to inform him/her of the consequences, and potential solutions to minimize disruptions to the transportation programs in the respective nonattainment and maintenance areas. The FHWA and FTA will consult with EPA regional offices before notifying the Governor or the Governor's designee of conformity consequences and solutions.[4]
During a conformity lapse, only the following six types of transportation projects may proceed for purposes of funding and implementation:
TCMs in Approved SIPs;
Non-Regionally Significant Non-federal Projects;
Regionally Significant Non-federal Projects - only if the project was approved by all necessary non-federal entities before the lapse. (See Approval of a Regionally Significant Non-Federal Project by a Non-Federal Entity later in this Chapter.)
Project phases (i.e., design, right-of-way acquisition, or construction) that received funding commitments or an equivalent approval or authorization prior to the conformity lapse.
Exempt Projects - identified under 40 CFR §93.126and 40 CFR §93.127; and,
Traffic Synchronization Projects - however, these projects must be included in subsequent regional conformity analysis of MPO's transportation plan/TIP under 40 CFR §93.128.
FHWA and FTA issued guidance on January 2, 2002 to clarify the status of Federally funded projects in the event of a conformity lapse. FTA issued supplementary guidance on April 9, 2003, and by FHWA/FTA on May 20, 2003. These guidance documents are consistent with the July 1, 2004 transportation conformity rule amendments.
For FHWA-funded projects, project phases (i.e., design, right-of-way acquisition, or construction) that received funding commitments or an equivalent approval or authorization prior to a conformity lapse may continue during the lapse. The execution of a project agreement (which includes Federal approval of the plans, specifications, and estimates) indicates funding commitment.
For FTA, the largest projects are handled with a full funding grant agreement (FFGA). If the FFGA was executed prior to a conformity lapse, the project can continue to utilize Federal funding during the lapse. If the FFGA was not completed by the date of the lapse, the project sponsor may only complete the current stage of project development (e.g., final design or land acquisition), but may not use Federal funds to proceed further. Transit projects not handled with FFGAs may proceed during a lapse if, prior to the lapse, FTA approved a grant for construction or vehicle acquisition. If a construction grant was not approved before the lapse, the project sponsor may only complete the current phase of project development.
Subsequent phases of a project for which FHWA or FTA has not taken an approval action or awarded a grant may not proceed in the absence of conformity. For transportation project phases not requiring a project specific project agreement/authorization approval, the State or local transportation agency should not take any action committing the State or local agency to proceed with the project phase during a lapse unless the project phase had already received full approval or authorization for funding before the lapse.
Preliminary engineering for project development activities that are necessary to assess social, economic, and environmental effects of the proposed action or alternatives as part of the NEPA process for a non-exempt project may continue during the lapse, according to 40 CFR 93.126. However, FHWA or FTA cannot approve a categorical exclusion, finding of no significant impact, or a record of decision for a non-exempt project during a conformity lapse. The NEPA process can be completed for exempt projects and TCMs in an approved SIP during a conformity lapse. Please see the January 2, 2002 guidance and the April 9, 2003 guidance (Appendix J), and the May 20, 2003 guidance (Appendix O) for details.
The EPA's November 1995, transportation conformity rule amendments allowed any transportation control measure (TCM) from an approved SIP to proceed during a conformity lapse. EPA stated that it did not intend to approve SIPs containing TCMs that have not been formally coordinated through the FHWA/FTA statewide and metropolitan transportation planning processes, as required by 23 CFR Part 450 or the Federal Transit Act. EPA will not approve such SIPs because both the CAA and Titles 23 and 49 U.S.C. require that an integrated transportation/air quality planning process be used to identify effective TCMs and ensure their funding sources10.
In addition, the April 19, 2000 Memorandum of Understanding (MOU) between FHWA/FTA/EPA provides a three-page appendix on advancing TCMs during a lapse (See Appendix C). In short, TCMs may be advanced during a conformity lapse provided they are included in an Interim plan and TIP, and are contained in an EPA approved SIP with identified emissions reductions benefits.
Non-federal projects are 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.), but that do not require any FHWA/FTA funding or approvals (69 FR 40047, July 1, 2004).
Section 93.121(a) of the conformity rule provides that regionally significant non-federal projects cannot be advanced during a conformity lapse unless they have received all necessary state and local approvals prior to the lapse. Under the July 1, 2004 final rule, recipients of Federal funds cannot adopt or approve a regionally significant, non-federal project unless it is included in a currently conforming plan and TIP or is reflected in the regional emissions analysis supporting a currently conforming plan and TIP (69 FR 40047, July 1, 2004). Once approved, non-Federal projects can proceed to construction, even during a lapse, as long as the project's design concept and scope doesn't change significantly and all required approvals were received prior to the date of the lapse.
The definition on non-Federal project "approval" is decided at the state and local level through the interagency consultation process and should be formalized in the area's conformity SIP. (The conformity SIP is required by 40 CFR 51.390, and includes area-specific conformity procedures tailored to local and state agency needs.) For example, some areas have defined "adopt or approve a regionally significant highway or transit project" to be one of the following actions:
58 FR 62205, November 24, 1993
.... EPA believes that adoption/approval is never later than the execution of a contract for site preparation or construction. Adoption/approval will often be earlier, for example, when an elected or appointed commission or administrator takes a final action allowing or directing lower-level personnel to proceed.
Finally, to be approved, a regionally significant non-Federal project must be included in a conforming plan/TIP and/or supporting plan/TIP regional emissions analyses at the time of approval. If EPA has not approved the conformity SIP, the interagency consultation process should be used to determine the point of approval for non-Federal projects.
Sanctions (both stationary source and highway) occur due to deficiencies involving State Implementation Plans (SIPs) and involve EPA findings of non-submittal, incompleteness, or disapprovals of control strategy SIP submittals required under the CAA. Sanctions are not imposed for maintenance plan failures. Sanctions are used for purposes of enforcing deadlines for SIP submittals and the implementation of approved SIP measures or elements required under the CAA. Under §§179(b) and 110(m) of the CAA two types of sanctions are available to the EPA Administrator (mandatory and discretionary) for consideration upon determination of a SIP deficiency.
EPA must impose sanctions through a rule making process. Once an area is notified by EPA of certain SIP deficiencies the sanctions clock is triggered. Stationary source sanctions are imposed in 18 months and highway sanctions are imposed in 2 years. If the SIP failure is corrected by the State, the sanctions clock is stopped. (See the CAA §§179(b) and 110(m) for more specific information on sanctions.) When highway sanctions are imposed, only those specific categories of actions identified as "exempt" under the CAA[5] and those specific categories of actions shown within U.S. DOT's exemption criteria policy[6]may proceed forward toward final construction and implementation (e.g., TCMs such as those included in Exhibit 3-1 (Chapter 3), planning and research projects, safety programs, and other air quality improvement projects not related to single occupant vehicle (SOV) capacity expansion, etc.). Other "non-exempt" actions (involving air quality improvement programs that do not encourage SOV capacity) may also be found exempt after individual review of each project (by EPA and U.S. DOT) per U.S. DOT's exemption criteria policy.
Conformity lapses occur as a consequence of control strategy implementation failures or failure to demonstrate conformity within specific time frames. Conformity lapses due to control strategy implementation failures occur when highway sanctions associated with those failures are imposed (i.e., 2 years after sanctions clock starts). Lapses as a result of plan/TIP deficiencies or failures would occur according to the rule's frequency requirements (see Chapter 1). Failure to meet specified time frames takes effect at the point that the previous conformity determination lapses, which is 12 months after failure to meet an applicable deadline. For example, a conformity lapse may occur due to the MPO not meeting the deadlines for redetermination of conformity for transportation plans and programs. In addition, certain SIP-related deficiency findings by EPA (such as a disapproval of a submitted SIP without a protective finding)[7] may also trigger a conformity lapse, but that lapse only occurs in concert with the imposition of highway sanctions.
40 CFR §93.101, Definitions
Protective finding means a determination by EPA that a submitted control strategy implementation plan revision contains adopted control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for which the implementation plan was submitted, such as reasonable further progress or attainment.
A disapproval of a SIP, without a protective finding, results in a freeze after EPA's final disapproval is effective. The July 1, 2004 rule deleted the 120-day grace period from Section 93.120(a)(2) of the 1997 conformity rule, so that a conformity "freeze" occurs immediately upon the effective date of EPA's final disapproval of a SIP and its budgets that does not include a protective finding (69 FR 40048, July 1, 2004).
A conformity freeze means that only projects in the first three years of the transportation plan and TIP can proceed. During a freeze, no new plans, TIPs or plan/TIP amendments can be found to conform until a new control strategy SIP fulfilling the same Clean Air Act requirement as that which EPA disapproved is submitted, and EPA finds the budgets in that SIP adequate for conformity purposes. In cases where EPA does not first make an affirmative adequacy finding for a new control strategy revision that is submitted to address a disapproved SIP, EPA also clarified in Section 93.120(a)(2) of the July 1, 2004 rule that no new plan, TIPs or plan/TIP amendments can be found to conform during a freeze until EPA approves the submitted SIP revision (69 FR 40048, July 1, 2004). If adequate budgets are not in place in time, the freeze will turn into a lapse in conjunction with the imposition of highway sanctions which normally occurs two years after the SIP disapproval without a protective finding, or by the next required conformity determination as required by the frequency requirements of 40 CFR §93.104, whichever occurs first.
40 CFR §93.120 Consequences of control strategy implementation plan failures.
EPA clarified the definition of a "protective finding" in the 1997 conformity amendments to the transportation conformity rule as noted above[8]. EPA would give such a submitted SIP a protective finding if it contains enough emissions reduction measures to achieve its purpose of either demonstrating RFP or attainment. A SIP could receive a "protective finding" even if all control measures are not fully adopted in enforceable form, provided there are written commitments to such measures (62 FR 43796). EPA would not give a protective finding to a SIP in which emission reduction measures or commitments are inadequate to achieve the required RFP or attainment.
Consequences of a SIP disapproval apply after control strategy SIPs (including 15% SIPs, rate of progress plans, and attainment demonstrations) have been disapproved by EPA. If EPA disapproves a SIP but gives a "protective finding", the motor vehicle emissions budget in the disapproved SIP could still be used to demonstrate conformity so long as EPA finds the budget adequate for conformity purposes (See Section B for discussion of adequacy process and criteria). There would be no adverse conformity consequences unless highway sanctions were imposed, as is the case with respect to all other SIP planning failures. Highway sanctions would be imposed 24-months following the effective date of EPA's disapproval if the SIP deficiency had not been remedied. The conformity of the plan and TIP would also lapse once highway sanctions were imposed.
If EPA disapproves a control strategy SIP revision without making a protective finding, beginning on the effective date of the disapproval, no transportation plan, TIP, or project not in the first three years of the currently conforming transportation plan and TIP may be found to conform. This is until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted, EPA finds its motor vehicle emissions budget(s) adequate pursuant to Section 93.118 or approves the submission, and conformity to the implementation plan revision is determined (See discussion of conformity freeze above) (69 FR 40048, July 1, 2004). Since no new plans, TIPs, or plan/TIP amendments could be found to conform this causes a "freeze" on any new transportation plans/TIPs or projects[9]. Since exempt projects do not require conformity determinations, they could proceed at any time.
EPA believes it can still effectively provide transportation agencies a short time period prior to the impacts of a conformity freeze. EPA has administrative discretion to make disapprovals of control strategy SIPs effective 60-90 days after the publication of the disapproval in the Federal Register. A conformity freeze would start upon the effective date of the disapproval. EPA believes such a delayed effective date is appropriate to allow transportation agencies to complete conformity determinations that were well underway when EPA disapproves a SIP without a protective finding (68 FR 38986).
If any one phase of a project is included in the first three years of the currently conforming plan/TIP, all subsequent phases could proceed following a disapproval, provided that all phases of the project were included in the plan/TIP conformity analysis and all other applicable project-level conformity criteria were satisfied (e.g., hot-spot requirements). A project phase in the plan could not be moved into the first three years of the TIP during a freeze, since a plan/TIP amendment would be required. Plan/TIP amendments cannot be approved during a freeze. The "freeze" on new transportation plans, TIPs, and projects would be removed once an area submits another control strategy SIP to replace the disapproved SIP, and EPA finds the budget adequate. If such a replacement SIP does not apply for conformity purposes by the time CAA highway sanctions are imposed (two years after EPA's final disapproval), or by the next required conformity determination as required by the frequency requirements of 40 CFR §93.104, conformity would lapse, and no new project-level conformity determinations could be made, even for projects in the first three years of the plan/TIP. The lapse would last until a replacement SIP applies for conformity purposes (i.e., until an adequate replacement SIP has been submitted to EPA and EPA finds the budgets adequate). Sanctions would apply until the State had corrected the SIP failure.
The transportation conformity rule aligns the dates of conformity lapses (i.e., halting conformity determinations for new Federally funded highway/transit projects, plans/TIPs) due to SIP failures with the application of CAA highway sanctions for areas with incompleteness and failure to submit findings and all areas with disapproved SIPs with or without a protective finding. Under the transportation conformity rule, the conformity status of the transportation plan and program will not lapse as a result of such failure until highway sanctions for such failure are effective under the Clean Air Act[10].
The November 1995, transportation conformity rule amendments (60 FR 57179) aligned the date of conformity lapses with the date of application of CAA highway sanctions for any failure to submit or submission of an incomplete control strategy SIP. In particular, the November 1995 amendments affected the alignment of conformity lapses with the application of highway sanctions as a result of failure to submit or submission of incomplete ozone, carbon monoxide (CO), PM10, or a nitrogen dioxide (NO2) control strategy SIP. Therefore, a conformity lapse as a result of these SIP failures is delayed until the CAA§179(b) highway sanctions are applied[11]. The August 1997 conformity amendments aligned conformity lapses from SIP disapprovals without a protective finding with the date of application of CAA highway sanctions.
EPA clarified in the August 1997 amendments that consequences of SIP disapprovals only apply when control strategy SIPs are disapproved[12]. There is less need to apply lapse consequences for disapproving a maintenance plan, since an area could revert to using its attainment SIP budget for demonstrating conformity if a maintenance plan is disapproved. In addition, CAA sanctions do not apply to maintenance plan disapprovals.
When can a project which requires federal approval, but no federal funding, be advanced during a conformity lapse?
Whether or not federal funds are involved, if a project requires federal approval, the FHWA/FTA cannot grant the final approval until after the National Environmental Policy Act (NEPA) process is completed. Therefore, a project could proceed during the lapse only if all of the NEPA requirements are met, conformity was determined, and the final Federal approval was granted before the lapse.
What are non-Federal projects, and which ones are covered by the transportation conformity rule?
A non-Federal project is a highway or transit project which requires no Federal funding or approval, but is funded or approved by an agency that routinely receives funds from FHWA or FTA. A State DOT or public transit agency would be an example of a routine recipient of Federal funds. Only regionally significant non-Federal projects are covered by the transportation conformity rule. Interagency consultation is used to determine who are routine recipients of Federal funds and whether a project is regionally significant. See 40 CFR 93.101 for the rule's definitions of "recipient of funds designated under title 23 U.S.C. or the Federal Transit Laws" and "regionally significant project."
Can State or local governments continue to fund projects during a conformity lapse even though they were notified by the FHWA Division Administrator of a halt in Federal funding during a lapse? What are the consequences?
State and local agencies are encouraged to not continue projects with non-federal funds after conformity lapses. Any costs incurred during a lapse will not be eligible for future Federal reimbursement, can not be used as soft match, nor can credit be received for the value of property under the provisions of 23 USC 323. If the State and local agencies continue with non-federal funds during the lapse, projects will not lose eligibility for future Federal funding once conformity is re-established.
When will a conformity freeze start in the case where a conditional approval converts to a SIP disapproval without a protective finding?
Unlike other types of SIP actions, conditional approvals automatically convert to a SIP disapproval if the condition of EPA's approval is not met within a fixed period not to exceed one year. Therefore, a conformity freeze would begin immediately upon the conversion of a conditional approval to a disapproval without a protective finding.
However, EPA notes that conditional approvals, by their very nature, inform transportation agencies well in advance that future conformity consequences could result if the conditions of the approval are not met. Because transportation agencies will be aware of potential conformity impacts approximately one year before they could occur, EPA believes that the practical impact of not providing a delayed effective date in these cases will be minimal.
Are there conformity consequences resulting from EPA limited disapprovals of SIPs without motor vehicle emissions budgets or other control strategies?
No. The conformity consequences in 40 CFR §93.120 only apply to control strategy SIPs.
Can Federal agencies other than FHWA and FTA make approvals on non-exempt projects during a conformity lapse? For example, can the Army Corps of Engineers grant a permit on a non-exempt project as part of the NEPA process during a lapse?
Yes. Transportation conformity only covers FHWA and FTA approvals, so the transportation conformity rule would not affect approvals by other agencies. As long as all the obligations under general conformity are met, other agencies can proceed with their approval during a conformity lapse.
[1] Conformity Guidance on Implementation of March 2, 1999 Conformity Court Decision, U.S. EPA, May 14, 1999.
FHWA/FTA Revised Guidance for Implementing the March 1999 Circuit Court Decision Affecting Transportation Conformity, January 2, 2002. See Appendix J.
[2] In area that have missed a conformity deadline and are currently in the 12-month grace period before a conformity lapse will apply, projects must come from the previously conforming plan and TIP.
[3] National Memorandum of Understanding between USDOT and US EPA, April 19, 2000.
[4] FHWA/FTA Revised Guidance for Implementing the March 1999 Circuit Court Decision Affecting Transportation Conformity, January 2, 2002.
[5] 61 FR 14363, FHWA's Exemption Criteria Policy for Highway Sanctions, Apr. 1996.
[6] 61 FR 14371, FHWA's Exemption Criteria Policy for Highway Sanctions, Apr. 1996.
[7] 40 CFR §93.120(a)(2)
[8] 62 FR 43796-43797, Aug. 15, 1997
[9] 40 CFR §93.120(a)(2)
[10] 40 CFR §§93.120(a) and 93.120(b)
[11] 40 CFR §93.120(b)
[12] 40 CFR Part 93
