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Mid-America Regional Council (MARC) Interagency Consultation Procedures

A. Background

The regulations that have been drafted to implement the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 and the Clean Air Act Amendments of 1990 require MARC to enter into interagency agreements with state highway departments, area transit agencies, and state and local air agencies detailing responsibilities for actions required under the federal laws.

Interagency agreements will, at a minimum, address work programs and administrative procedures required to accomplish air quality planning and transportation planning and programming. These agreements will provide for cooperative technical review of transportation and air quality issues in advance of the publication of draft documents for public review and comment. In some instances, the agencies will participate in the planning process through representation on MARC committees. In other cases, additional working relationships, prior consultation, or more formal procedures may be needed.

Interagency agreements have been included in the regional transportation work program and incorporation in the state implementation plans for air quality and were subject to public review through MARC's participation process as well as processes required by the states of Kansas and Missouri.

B. Summary of Interagency Consultation Procedures

Interagency consultation procedures were prepared by a working group from the following agencies:

Mid-American Regional Council (MARC), Missouri Highway and Transportation Department (MHTD), Kansas Department of Transportation (KDOT), Missouri Department of Natural Resources (MDNR), Kansas Department of Health and Environment (KDHE), Federal Highway Administration (FHWA), and Environmental Protection Agency (EPA).

The consultation procedures were drafted with a deliberate attempt to incorporate conformity into the region's present planning and programming processes and to rely on the present regional committee structure. Consultation on conformity issues will be assured by three specific methods:

1. Consultation during air quality and transportation planning or programming processes will be assured through identification of the sequence of conformity analysis and discussion for each type of process and requiring both an early consideration of conformity issues and an opportunity for formal comment prior to official action on a plan or program.

2. Consultation on key planning assumptions will occur at least annually at a meeting of federal, state, and local air quality transportation agencies.

3. Consultation will be facilitated by maintenance and update of a "notebook" that includes summaries of regional air quality and transportation plans and programs. The notebooks will be located at the offices of MARC, state and federal transportation, air quality agencies, and at public libraries throughout the region.

The initial drafts of the consultation procedures suggested that local transportation interests be represented by three persons appointed by TTPC. At the request of KCATA and KDOT, the TTPC recommended that the local transportation representation be expanded to one transit representative and one roadway representative from each state.

Following is a more lengthy summary of the draft interagency consultation procedures:

1. Definition of Consultation:

   Consultation in the transportation conformity process means that one party confers with another identified party, provides all information to that party needed for meaningful input; and considers the views of that party and responds to those views in a timely, substantive written manner prior to any final decision on such action. Such views and written responses shall be made part of the record of any decision or action.

2. Consultation procedures shall be undertaken by the following agencies:

   Mid-America Regional Council (MARC) Board and
   The Total Transportation Policy Committee (TTPC),
   Missouri Highway and Transportation Department (MHTD),
   Kansas Department of Transportation (KDOT),
   Region VII offices of FHWA and FTA,
   Kansas and Missouri division offices of FHWA
       with
   Missouri Department of Natural Resources (MDNR)
   Kansas Department of Health and Environment (KDHE),
   MARC Air Quality Forum (AQF), and EPA Region VII.

   Consultation shall take place before making conformity determinations.

3. It is the responsibility of the agency(ies), which prepares the final document to initiate the consultation process by notifying other participants of the proposed planning or programming process for the development of various planning or programming products.

4. The proposed planning or programming process must included at a minimum the following:

   1. The roles and responsibilities of each agency at each stage in the planning process, including technical meetings;
   2. The proposed organizational level of regular consultation;
   3. A process for circulating (or providing ready access to) draft documents and supporting materials for comment before formal adoption or publication;
   4. The frequency of, or process for convening, consultation meetings and responsibilities for establishing meeting agendas;
   5. A process for responding to the significant comments of involved agencies.

5. The time sequence and adequacy of the consultation opportunities will be reviewed and determined for each type of planning or programming process by consensus of the consultation agencies at a meeting convened by the responsible agency for that purpose.

6. As a matter of policy, planning or programming processes must meet two tests.

   1. Consultation opportunities must be provided early in the planning process. Early consultation will facilitate sharing of information needed for meaningful input and to allow the consulting agencies to confer with the responsible agency during the formative stages of the plan or program. Use of existing advisory committee structures will be the preferred mechanisms for interagency consultation during the early stages of the planning process.
   2. Additional consultation opportunities must be provided prior to any final action by the responsible agency.

7. Representatives of the conformity consulting agencies shall meet no less frequently than annually for the specific purpose of reviewing changes in transportation and air quality planning assumptions with regard to how these assumptions potentially impact the SIP mobile source emissions inventory, mobile source emissions budget and/or conformity determinations.

   Local government transportation interests will be represented by four persons (representing transit and roadway interests from each state) appointed by the chairs of the TTPC and local government air quality interests will be represented by four persons (at least one from each state) appointed by the chairs of AQF. The air quality representation will not duplicate representation from transportation agencies.

8. It shall be the affirmative responsibility of each of the consulting agencies to advise MARC of any pending changes in their planning assumptions. MARC will generally be responsible for convening a meeting to review planning assumptions in August of each year.

9. If a data collection, planning or study process is proposed to evaluate a planning assumption that may have a significant impact on the SIP mobile source emissions inventory, mobile source emissions budget and/or conformity determinations, all the conformity agencies shall be given an opportunity to provide advisory input into that process.

10. Whenever a change in air quality or transportation planning assumptions is proposed that my have a significant impact on the SIP mobile source emissions inventory, mobile source emissions budget and/or conformity determinations, the agency proposing the change must provide all the consulting agencies an opportunity to review the basis for the proposed change. All consulting agencies shall be given the opportunity to provide a timely (30 days) analysis of the impact of a proposed change in planning assumptions from their perspective consideration prior to final action by the agency proposing the change.

11. It is the responsibility of the responsible agency to maintain a complete and accurate record of all agreements, planning and programming process, and consultation activities required under the provisions herein and to make these documents available for public inspections upon request. In addition, the responsible agency must prepare reasonably understandable summary information to the general public. This summary information will be accompanied by a complete list of all supporting information, along with the location of the documents and how they can be accessed. The summary documents and complete listing of supporting and supplemental information will be included in a notebook maintained within the offices of each of the conformity consulting agencies and at the branch libraries.

12. An interagency consultation process involving the AQF, the TTPC and MARC Board, MDNR, KDHE, MHTD, EPA, FHWA and FTA shall be undertaken for various activities, including the following, all of which shall be initiated by MARC:

    1. Evaluating and choosing models;
    2. Determining which minor arterials and other transportation projects should be considered "regionally significant";
    3. Evaluating whether projects should be treated as non-exempt in cases where potential adverse emission impacts may exist;
    4. Making a determination whether past obstacles to implementation of TCMs which are behind the schedule established in the applicable implementation plan have been identified and are being overcome;
    5. Identify, projects located as sites in PM10 nonattainment areas which have vehicle and roadway emission and dispersion characteristics which are essentially identical to those at sites which have violations verified by monitoring, and therefore require quantitative PM10 hot-spot analysis;
    6. Notification of transportation plan or TIP revisions or amendments which merely add or delete exempt projects.

13. An interagency consultation process in accordance with paragraph (b) involving the AQF, the TTPC and MARC Board, MDNR, KDHE, MHTD, and KDOT shall be undertaken for the following:

    1. Evaluating events which will trigger new conformity determinations in addition to those triggering events established in §51.400, to be initiated by MARC and conducted in accordance with procedures regarding planning assumptions when there is a significant change in one of the identified planning assumptions when there is a significant change in one of the identified planning assumptions; and
    2. The Kansas City air quality planning area is fully included within the boundary of MARC and is the only air quality planning area within the MARC boundaries. If this situation changes, these procedures will be revised to include additional consulting entities.

14. Prior to establishing a metropolitan planning area that does not include the entire nonattainment or maintenance area, the interagency consultation process must be supplemented by a formal memorandum of agreement, incorporated herein by reference, executed by MARC and the state air and transportation agencies for cooperative planning and analysis.

    1. The interagency consultation process established by the memorandum of agreement for such an area applies in addition to all other consultation requirements.
    2. At a minimum, any memorandum of agreement regarding establishment of a transportation plan are outside of the MARC metropolitan transportation planning area within the nonattainment of maintenance area, must provide for air agency concurrence in conformity determinations for areas outside of the metropolitan planning boundary, but within the nonattainment of maintenance area.

15. A process (initiated by MARC) shall be initiated to ensure that plans for construction of regionally significant projects which are not FHWA/FTA projects (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered), including those by recipients of funds designated under title 23 U.S.C. or the Federal Transit Act, are disclosed to the MPO on a regular basis, and to ensure that any changes to those plans are immediately disclosed.

    The sponsor of any such regionally significant project, and any agency that becomes aware of any such project through applications for approval, permitting or funding or otherwise, shall disclose such project to MARC in a timely manner.

16. An interagency consultation process (initiated by MARC) shall be conducted for assuming the location and design concept and scope of projects which are disclosed to MARC, but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of §51.452

17. An interagency consultation process to be initiated by MARC and involving MDNR, KDHE, AQF, MHTD, KDOT and the TTPC, shall be undertaken for the design, schedule, and funding of research and data collection efforts and regional transportation model development by the MPO.

18. Resolving conflicts.

    1. Any conflict among state agencies or between state agencies and MARC regarding a final action by any of these parties on a plan or program subject to these consultation requirements shall be escalated to the Governor of the respective state(s) if the conflict cannot be resolved by the heads of the involved agencies. In the first instance, such agencies shall make every effort to resolve any differences, including personal meetings between the heads of such agencies or their policy-level representatives, to the extent possible.
    2. After MARC or MHTD or KDOT has notified MDNR or KDHE in writing of the resolution of all air agency comments on a conformity determination (or other policy decision under this rule), MDNR and KDHE have 14 calendar days from the written notification is mailed or faxed to appeal such proposed determination of conformity or policy decision to their respective Governor(s). If MDNR or KDHE appeal to the Governor(s), the final conformity determination will automatically become contingent on concurrence of the Governor(s). MDNR or KDHE must provide notice of any appeal under this subsection to MARC and MHTD and KDOT. If MDNR and KDHE do not appeal to the Governor(s) within 14 days, MARC, MHTD or KDOT may proceed with the final conformity determination.
    3. The Governors of Kansas or Missouri may delegate the role of hearing any such appeal under this subsection and of deciding whether to concur in the conformity determination to another official or agency within the State, but not to any agency that has responsibility for one of these functions, or MARC.

19. Public consultation procedures.

    Affected agencies making conformity determinations on transportation plans, programs, and projects shall establish a proactive public involvement process. This process will provide opportunity for public review and comment prior to taking formal action on a conformity determination for transportation plans and TIPs, consistent with the requirements of 23 CFR part 50.

III. Conformity Determination

A. Legal Basis for Air Quality Conformity Determinations

• According to the 1990 Clean Air Act Amendments (Section 176(c)), a region's transportation plans and programs must be consistent with its plans to achieve and maintain healthy air quality.
• The act requires the metropolitan planning organization for the region to conduct a conformity determination on all transportation plan, programs and projects.
• The act's requirements apply to the Kansas City region because it was determined to be in nonattainment of the ozone air quality standard when the CAAA was passed. The Kansas City region was redesignated as an air quality attainment area in 1992 and is now operating under a plan designed to maintain healthy air quality.
• Purpose of this conformity analysis: To ensure that proposed changes to the transportation system will not lead to an increase in air pollution