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2004 and 2005 Transportation Conformity Rule Amendments Outreach Activities

Transportation Conformity Rule Amendments June 23, 2004 Web Conference

Questions and Answers

  1. Will the slides be made available?

    The slides are available on the AMPO website at http://www.ampo.org/mpo_issues/. They also will be available on the FHWA website at http://www.fhwa.dot.gov/environment/conformity/newstand.htm.

  2. What is 93.109?

    "93.109" refers to 40 CFR Part 93.109 which is a provision of the Transportation Conformity Rule.

  3. When do 8-hour SIP's have to be completed by?

    State Implementation Plan (SIP) requirements are not part of the Transportation Conformity Rule, but 8-hour SIPs are generally due in three years, approximately June 2007. SIP requirements under the new standards are part of EPA's implementation rules. For the 8-hour ozone standard, the rules are being finalized in two phases. Phase 1 is available on EPA's website at: http://www.epa.gov/ozonedesignations/. Phase 2 is forthcoming. In addition, EPA will be proposing an implementation rule for the PM-2.5 standard, and more information is available at: http://www.epa.gov/pmdesignations/.

  4. Was the primary criteria for deciding the use of interim test whether they make air quality better or whether they do no harm?

    Areas must use the consultation process to decide whether the applicable interim emissions tests are more appropriate to meet Clean Air Act requirements than the 1-hour budgets. It must be demonstrated that the interim emissions tests are more appropriate to ensure that the transportation plan, TIP, or project will not create new violations, worsen existing violations, or delay timely attainment of the 8-hour ozone standard.

  5. Please review the use of 8-hour NOx waivers?

    Before budgets are available, area must meet the appropriate interim emissions test(s) for both VOC and NOx precursors, unless EPA issues a NOx waiver for the 8-hour standard under Clean Air Act section 182(f). However, existing 1-hour NOx waivers are not applicable for 8-hour conformity. A NOx waiver under the 8-hour standard must be issued.

  6. When will the additional rules for bi-State and bi-MPOs be released?

    Guidance on conformity implementation in multi-jurisdictional nonattainment and maintenance areas for existing and new air quality standards is now available on EPA's website at: www.epa.gov/otaq/stateresources/transconf/policy.cfm#require.

  7. Can a 1-hour budget for a maintenance plan year 2014 be used for an 8-hour attainment year of 2010?

    No. Emissions projected for each analysis year must be within the budgets in the 1-hour SIP from the most recent prior year, until 8-hour budgets are in place. For 2010, emissions would need to be tested against the budget for the most recent year prior to 2010. If no budget exists prior to 2010 or if the budgets are deemed inadequate, the interim emissions test(s) would apply. For any analysis years after 2014, the budget test would be used using the 2014 1-hour budgets.

  8. What else is the guidance going to address?

    The multi-jurisdictional guidance discusses conformity implementation in nonattainment and maintenance areas with multiple MPOs, multi-State nonattainment and maintenance areas, and nonattainment and maintenance areas with "donut" area. The guidance addresses questions such as:

    • What geographic area is covered by the conformity determination and regional emissions analysis?
    • How can the regional emissions analysis be implemented?
    • Who does what to develop the regional emissions analysis?
    • What regional emissions test or tests apply for 8-hour ozone nonattainment areas with 1-hour ozone budgets?
  9. Will the detail of impacts by the court decision be addressed?

    Yes, the July 1, 2004 final rule addresses the March 1999 court decision. The final rule incorporates into the transportation conformity rule the EPA and DOT guidance that has been used in place of certain regulatory provisions of the rule since the court decision.

  10. If an area has no current 1-hour maintenance plan, and was designated in attainment of the 8-hour standard, will it need a maintenance plan?

    Once again, State Implementation Plan (SIP) requirements are not part of the Transportation Conformity Rule (please see question 3 above). Consult EPA's 8-hour ozone implementation rule (69 FR 23955) for more detailed requirements for a "maintenance plan." If an area is designated attainment for the 8-hour standard, transportation conformity will no longer apply for the 1-hour standard once the 1-hour standard is revoked (June 15, 2005 for most areas), regardless of the status of the "maintenance plan."

  11. What methods can be used to subdivide a 1-hour budget, or would that have to have been subdivided in a previous plan?

    The consultation process should be used to determine whether using a portion of a 1-hour ozone SIP budget is appropriate and feasible, and if so, how deriving such a portion would be accomplished. It would not have to have been subdivided in a previous plan. A straightforward approach would be if the budget corresponds directly with an on-road mobile inventory that was calculated by county, and the portion to be subtracted is a specific county. However, other methods may be feasible.

  12. If there is a 1-hour maintenance plan budget, can it be used for a 2009 attainment year for 8-hour?

    Emissions projected for each analysis year must be within the budgets in the 1-hour SIP from the most recent prior year. For 2009, emissions would need to be tested against the budget for the most recent year prior to 2009. If the 1-hour maintenance plan budget is for 2009 or a year prior to 2009 it could be used. If the budget is for a year after 2009, it could not be used.

  13. If there is a 1-hour maintenance plan budget, will the 2002 baseline data apply?

    Emissions projected for each analysis year must be within the budgets in the 1-hour SIP from the most recent prior year. If applicable and appropriate budgets exist to test each required analysis year, and the 8-hour nonattainment area is covered completely by the 1-hour budgets, a 2002 baseline test may not be necessary. However, if there are not applicable or appropriate budgets for the entire 8-hour area, interim emissions test(s) will be required and a 2002 baseline test may be necessary.

  14. If there is no 1-hour budget prior to 2009 (8-hour attainment year), what test applies?

    If there is no 1-hour budget prior to a required analysis year, the interim emissions test(s) apply according to the area's 8-hour classification. Moderate and above areas must complete both the build-less-than-no-build and the build-less-than-2002, while other areas, including subpart 1 areas with 2009 attainment years, can choose between the build-no-greater-than-no-build or the build-no-greater-than-2002.

  15. Is this final rule distinct from EPA's 8-hour implementation rule?

    Yes. Please see Question 3 above.

  16. What happens if the area without a budget is in another State?

    Please refer to EPA's multi-jurisdictional guidance (see question 6) for discussions on the implementation of conformity in multi-State areas.

  17. Under scenario 3, if the donut area fails an interim emissions test(s), will this effect the original 1-hour area that has passed the 1-hour budget test for the new 8-hour conformity requirements?

    Yes, in most cases. In scenario 3 areas located entirely within a single State, the budget test must be met for the portion of the 8-hour area covered by them, AND the interim emissions test(s) must be met for either the remaining portion of the 8-hour area or the entire 8-hour area. If the interim emissions test(s) is not met, the entire 8-hour area will lapse. However, there is some flexibility in multi-State areas. Please see EPA's multi-jurisdictional guidance for further details.

  18. Is there a 3-year interval for the milestones between the 2002 base-year and the 8-hour attainment year?

    Your eight-hour attainment year will depend on your classification. For marginal areas, their attainment year is 2007, for moderate areas, 2010; and so forth. The milestone requirements as far as what years you have to do analysis for in conformity will remain the same. You will have to test for the last year of your transportation plan. For any year that you have a budget and an intermediate year so there's not more than 10 years separating them.

  19. Does a transportation control measure (TCM) have to have emissions reduction credit in the SIP in order to proceed during a conformity lapse?

    TCMs already specifically included in an applicable SIP can proceed during a conformity lapse. New TCMs can not proceed during a conformity lapse until they are contained in an EPA approved SIP with identifiable emission reduction benefits.

  20. Do MPOs need interim TIPs/plans in order to go ahead with exempt projects and TCMs in the event of a conformity lapse?

    Federal transportation law requires that projects must be in a plan and TIP to receive Title 23 and Title 49 funds. Therefore, in the event of a conformity lapse, an MPO must create an Interim Plan and TIP for any projects to be federally-funded and approved during the lapse, including exempt projects and transportation control measures (TCMs). The Interim Plan and TIP must be developed in a manner consistent with 23 U.S.C. 134.

  21. Can conformity under the 8-hour standard be determined prior to the June 15, 2005 deadline?

    Yes. Although conformity is not required until that point, it can be determined prior to that.

  22. Is this new final rule in effect now?

    The July 1, 2004 final rule is effective on August 2, 2004.

  23. Will the new EPA guidance also address adjusting PM-10 dust emissions from AP-42?

    Yes. EPA is developing guidance to address adjusting PM-10 and PM-2.5 dust emissions from AP-42.

  24. Will the new rule supercede the 1997 rule, or will we have to mesh them ourselves?

    The July 1, 2004 rule does not supercede the previous rule. The final rule only applies to certain provisions of the conformity rule. EPA has posted a complete updated version of the entire rule on their website: http://www.epa.gov/otaq/transp/conform/conf-regs.htm.

  25. Would it be worthwhile to go to both EPA's and FHWA's workshops?

    The workshops will cover similar material. The main difference is that EPA's workshops will be longer, and will allow more review of background and conformity basics, while the FHWA workshops will focus on the rule changes.

  26. Do you have any feedback from Congress on the CMAQ formula?

    As you may know, the administration included changes to the CMAQ formula to include the nonattainment areas. The Senate adopted those provisions but the House did not.

  27. When is the multi-jurisdiction guidance expected?

    The multi-jurisdiction guidance is available on EPA's website. (See question 6)

  28. Is PM-10 going to be added to the CMAQ allocation formula?

    Right now PM-10 is not in either the House or the Senate version of the CMAQ apportionment. As they go to conference and discuss it, it is possible that PM-10 could be added.

  29. Will there be a publication that compares the original and amended regulation?

    We do not currently have anything like this planned, but we will take this into consideration.

  30. Are there any new provisions that would allow access to CMAQ funds by areas in attainment?

    It seems likely that the CMAQ provisions would remain largely unchanged in that regard. The question frequently comes up about the early action compact areas and CMAQ funding, and those areas, unfortunately, are not included in the statutory formula currently. Nor are they included in either the House or the Senate bills in the CMAQ apportionment provisions. So there would be no real way to provide CMAQ funding to those areas if they were not maintenance for one of the other pollutants. Of course, the conferees could change this to include the EACs in the CMAQ apportionment formula.

  31. What are the pros/cons of the baseline versus the build/no-build test?

    From a policy standpoint, please refer to the preamble of the rulemaking. We had received comments on both sides. Some thought the build/no-build test was better and some thought the baseline test was better. From a technical standpoint, a resource standpoint, the biggest difference is that when you do the build/no-build test, you have to maintain two modeling networks for the entire horizon of your plan. So you have to have two modeling networks, whereas with the baseline test you only have to have the single network.

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