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2004 and 2005 Transportation Conformity Rule Amendments Outreach Activities

June 23, 2004 Transcript

Transportation Conformity Rule Amendments Web Conference
June 23, 2004

Gary Jensen:
This is Gary Jensen with Federal Highway Administration. We want to apologize for the delay. We had no Internet connection going. But it seems to be working now. We'd like to ask everyone to place their phones on mute. And we will begin. We're going to start off with a welcome from Jim Shrouds from the Federal Highway Administration.

Jim Shrouds:
I just want to take a few minutes to welcome everybody to this conference. I think this conference is particularly timely now because as you know, EPA just posted their new conformity amendments on their website. This year, EPA will be making the PM2.5 nonattainment designations. That will probably happen around mid-December. And 30 to 60 days after that point, that will start yet another 12-month grace period to determine conformity on a new PM2.5 standard. There are certainly those that are involved in the conformity process next year and a half, pretty busy timeframe, as we're transitioning into a new conformity process for the eight-hour areas, transitioning into the PM2.5 nonattainment areas, at the same time transitioning out of the process, making conformity in the one-hour ozone nonattainment areas. The purpose of this net conference really is to review the new provisions in the new conformity amendments and to really give you a better understanding of those provisions and hopefully answer as many of your questions as we can. And at some point in this net conference we'll also be explaining additional outreach activities to help explain these regulations. This is just one of many efforts to go on to try to obtain these new regulations. With that, I'll turn it back to Gary. I hope you have a good net conference.

Gary Jensen:
Hello, everyone. Once again, I am Gary Jensen with Federal Highway Administration. I apologize for our delay once again. And it appears like there are still some technical issues. But you should be able to hear through your telephone and I'd remind everyone to please put their phones on mute. What we're getting is feedback from other people's phones. We apologize. We know this isn't a perfect technology. But this was basically the fastest way we could get something together and get out for you all. So because of the format, we will ask everybody, if you have any questions, go ahead and type them in the chat box on your screen and that way, we'll be able to get to you. If we can't get to everybody today, we will be putting them out after the net conference. And they will also be posted on our website. In addition, the net conference itself will be recorded and put on our website so people can view it at a later time. Our agenda today is mainly just to go through the changes that were highlighted in the conformity rule amendment. We will not be covering really any basic conformity questions. We'll just focus in on the changes that are occurring because of the rule amendment. So we're going to start out with a brief background on the amendments. We're going to discuss the eight-hour ozone standard and the conforming rule amendments that deal with that. We'll have a question and answer period. And then we'll have a break halfway through. Then we will follow up with PM2.5 changes, as well as the other changes that are part of this conformity rule because there are a number of other changes. We'll have another question and answer period and then kind of wrap up and talk about the outreach activities Jim talked about and our next steps. Feel free to ask any questions in the chat box any time during the presentation. If we don't answer you during the presentation, we'll try to get to you during the question-and-answer period.

The objectives of the conformity rule amendments were first to provide the implementation rules for the new standards, the eight-hour ozone and the PM2.5 standards. They are also to incorporate the changes, due to the March 1999 court decision and that are part of the guidance that we've been acting under for a number of years now. And finally, the third objective in the rule amendments was to provide streamlining and improvements to the conformity process itself. We'll get to those later on.

We'll talk about the schedule, the rule that was released by EPA on June 14th addresses all of the issues that were raised in a proposal June 30th of 2000. A lot of times it's called the court decision proposal. It also addresses all but two of the issues raised in the November 5th proposal and that was the proposal on the new standards. The conformity rule also fits in with the implementation strategies for the eight-hour ozone standard. And what they're planning for PM2.5 strategy. The finale rule was out on June 14th. We expect to see it in the Federal Register probably around the first week of July. So there were a couple of issues not addressed in this rule making. First is consideration PM2.5 precursors in regional analysis. EPA decided they needed to take more comment on their implementation strategy before they could finalize this issue for the conformity rule. The PM2.5 precursor issue is also important for other programs, including new source review. And EPA wanted to collect comments on those other programs. The other issue they're not finalizing this is PM2.5 hot spots. In fact, EPA is planning on issuing a supplemental notice of proposed rulemaking the next month or so, which is going to ask for more comment on the hot spot issue, as well as present additional options that were not part of the original rulemaking. For both of these issues, EPA hopes to finalize full amendments by the time PM2.5 areas are designated, early next year.

So for the eight-hour ozone standard, the areas were designated on April 15th. Effective dates for the most part of June 15. This is except for those areas with early action compacts, where the effective date was deferred. Also there's been a change for the Las Vegas date, where the effective date has been deferred until September. So for most areas for the eight-hour ozone standard, conformity is going to apply on June 15, 2005. At the same time, the one-hour standard will be revoked. So the one-hour standard will be revoked one year after the effective date of designation for most areas. Conformity for the one-hour standard will no longer apply at that point, except for those few one-hour maintenance areas that are also eight-hour early action compact areas. There are only three of them - Nashville, Greensboro, North Carolina, and Denver, Colorado.

The 1-hour revocation and application of the eight-hour standard were timed to ensure that conformity would not be required at the same time. The final rule does not change any of the one-hour conformity requirements. During the grace period, during this one-year period prior to June 15, 2005, conformity against the one-hour standard will still apply in one-hour nonattainment and maintenance areas. In other words, any new plans, TIPs or project approvals have to conform against the 1-hour standard during that time.

In early action contact areas, eight-hour conformity will not be required. The eight-hour designation was deferred. They actually do not have an effective eight-hour nonattainment designation. Therefore, these areas will not have to comply with the eight-hour conformity requirements in this rule unless the area misses a milestone and the nonattainment designation is made effective. However, for EAC areas that are 1-hour maintenance areas, they'll have to continue with the one-hour conformity until they attain the eight-hour standard or they miss one of their EAP milestones. This could be as late as 2009.

EPA plans on designating PM2.5 areas late this year. Effective dates in early 2005. Under the Clean Air Act, conformity would apply with the PM2.5 standard early 2006. EPA continues to work on the broader PM2.5 implementation strategy and hopes to have a proposal out later this summer. That proposal will address other PM2.5 requirements. So once again, for new nonattainment areas, they will have one-year before conformity is required. After that one year a conforming plan and TIP must be in place. They will also be subject to the conformity frequency requirements. In other words, for eight-hour ozone areas, by June 15, 2005, metropolitan areas will have to make a conformity determination for their plans and TIPs. And, that will start the 3-year conformity clock. Like I said, for metropolitan areas, required by the end of the one-year grace period. One thing to note, conformity determinations can be made grace period.

Again, everybody, once again, please put your phones on mute. We can hear a lot of other talking and a lot of feedback. I'm asking once again, please put your phones on mute. We're still hearing a lot of people. Please. One more time, please put your phones on mute.

So there were some changes that were made to the interim emissions tests. These are the tests that have to be completed prior to adequate or approved SIP budgets in place. These are commonly known as the baseline year test and build/no-build tests. Final rule changes the baseline year from 1990 to 2002 for the new standards for PM2.5 and eight-hour ozone areas. 1990 will remain the base year for existing one-hour areas, as well as carbon monoxide and PM10 areas. Making changes to build/no-build tests, creates a build-no-greater-than-no-build test. And waives the tests altogether for certain areas where the build and no-build scenarios are the same. This will provide flexibility to areas of lower classification, in areas with fewer clean air act requirements and will eliminate analysis that is unnecessary when the scenarios are the same.

Probably the most important element of the rule making is what tests do people have to comply with. We're going to talk about a few different scenarios here. But the first situation would be eight-hour areas that do not have one-hour SIP budgets. Meaning they do not have an adequate or approved one-hour SIP in place for any part of the eight-hour area. In this case, the final rule is generally consistent with the one-hour requirement. Marginal and subpart one areas - basic areas - can choose between the two tests, either a build-no-greater-than-no-build. Or a build-no-greater-than-2002 test. Moderate and above areas, will have to complete both tests. For these areas the build has to be less than the no-build and less than 2002. The reason for this is because in moderate and above areas under the Clean Air Act, transportation activities must contribute to annual reductions. That's an additional provision that they have to comply with. And that's why those areas have to meet both tests. For all eight-hour areas, using interim emissions test, the regional emissions analysis is always done for VOCs, and is also done for NOx unless a NOx waiver is issued. But please note it must be waived for the eight-hour standard. If you have a NOx waiver for the one-hour, it does not apply. You'll have to have a new waiver. Otherwise you'll have to do conformity for both VOCs and NOx.

For areas with one-hour budgets, the final rule is different than the proposal that put forth a menu which areas could choose from. Based on comments that EPA received from a number of groups and individuals that. [ inaudible ] one-hour SIP budgets will need to be used for eight-hour conformity until eight-hour SIPs are in, unless another test is deemed more appropriate. And we'll get to what we mean by what is more appropriate. If you have an adequate or approved one-hour SIP budget in place that you are using for conformity, you will have to continue to use that budget for the eight-hour in most cases. How this will apply in the rule is basically divided into four different scenarios. Scenario one is the case where your one-hour nonattainment/maintenance area is exactly the same as your 8-hour nonattainment area is. Scenario two is the situation where your one-hour area is larger than your eight-hour area. Or the eight-hour covers a smaller geographical area. Scenario three is where the 8-hour area is larger. It also includes the entire one-hour area. And finally, scenario 4, the situation where your one-hour area and your eight-hour areas overlap and don't include either in the entirety. We also know that some areas, you may have a hard time figuring out which umbrella you sit under because there are fairly complex areas out there. We realize that. And EPA is going to be releasing additional guidance to help those areas understand how conformity will apply in these multi-jurisdictional areas. We'll cover that later. But today I'm going to cover the basic scenarios that are covered in the rule.

Scenario one, this is the simplest area, your one-hour nonattainment boundary is the same as your eight-hour nonattainment boundary. In these cases, you would use your one-hour budget as is. You would continue conformity as you have been doing. And you would meet those until you have adequate or approved eight-hour budgets in place.

For scenario 2 areas, this is where the one-hour area is larger than the eight-hour area. There are two options. First you can do conformity using the entire 1-hour area using the one-hour budget. Or if possible, you can test against the eight-hour area wit the applicable portion of the one-hour budget. That's if you can identify that applicable portion. This may be the case where you have a nonattainment area that has three or four counties in the inventory and your SIP was developed on a county basis. In that case, you may be able to separate out the budget that would apply to the smaller area. That cannot be done, then you can use conformity against the entire one-hour area. However, it should be noted that in conformity if you need additional reductions to pass the test, those reductions will have to come from the eight-hour area.

Scenario 3, once again is the case where the eight-hour area is larger than the one-hour area. These will still continue to have to use the one-hour SIP and meet their budgets in the one-hour area. However, in addition to meeting the budget tests, these areas will also have to complete the interim emissions tests. And there are several options for completing the emissions test. They can complete them for the entire eight-hour area, including the one-hour area. They can do the interim emissions test just for the portion that's not covered in the one-hour SIP. Or in cases of multistate areas, there's some cases of flexibility involved as far as being able to determine the interim emissions tests just for the portion of the nonattainment area in your state. Once again, this will be covered in further guidance that EPA expects soon.

And finally, the last scenario is where the 1-hour and 8-hour areas overlap. In these cases, areas will use that portion of the one-hour budget, if they can identify it for the one-hour area. In addition, as in the scenario 3 areas, they'll have to do the interim emissions test to cover the part of the area that's not covered by a budget. And once again, they'll have options they can use. They can do this test just for the remainder. Or they can do it for the entire eight-hour area. Or if they have a multistate area, there is flexibility involved for only doing the interim emissions test for the portion of the nonattainment area in the state. If it's not possible to identify the portion of the one-hour budget that's applicable in the area, interim emissions tests would need to be demonstrated for the entire eight-hour area.

So in general, the primary principal is if you have a one-hour budget that's adequate or approved, you'll need to use that budget when determining eight-hour conformity. This is in cases where they exist, where the boundary scenarios allow it, and the reason is that EPA believes that after obtaining comments that these budgets are the most likely way to ensure that air quality progress is maintained. And this is especially true if they're currently being used in one-hour conformity determinations.

For the interim emissions tests, for areas that have eight-hour sips, for those portions that are not covered by one-hour budget, where boundary changes make it impossible to determine what part of the one-hour budget applies. And when it's determined through interagency consultation that such tests better meet clean air act requirements.

This gets to the point of when a one-hour SIP budget might not be appropriate. And the primary criteria for whether a one-hour SIP budget is appropriate or not is whether it meets the clean air act. The one-hour budget cannot be deemed inappropriate simply because it's based on older data or it's difficult to pass. Consultation process must be used to determine whether the interim emissions test might be more appropriate than the one-hour budget. But it is expected that will occur in only limited cases.

Another element of conformity determinations of course, is demonstrations of timely implementation of TCMs. The questions that has come up is do you have to determine timely implementation of TCMs in your one-hour SIP? Conformity needs to show conformity of all TCMs of all SIPs and older SIPs. Will have to be shown for them in eight-hour conformity determinations, even after the one-hour standard is revoked. So eight-hour conformity will have to demonstrate timely conformation of any approved TCMs that are in one-hour SIPs.

Now, once an area has eight-hour or PM2.5 budgets in place, they will use those budgets. The interim emissions tests or one-hour budget will no longer be used for that pollutant. So you'll only be using your one-hour budgets until you have eight-hour budgets in place

Now, I know I went through that fairly quickly. That's a brief overview of the eight-hour ozone portion of these slides. I know we have a few questions here. But please feel free to type in your questions now into the chat box and we'll try to answer them. Once again, I know a lot of the comments have it -- had to deal with the situation, the sound. And we apologize for that. We know this is not an ideal technology. But it was the fastest way we could get this information out to you. The slides will be made available. We've supplied them to AMPO. But they'll also be available on our web page in the upcoming weeks along with this entire presentation recorded. So you will be able to download the slides. If you would like them sooner, you can contact myself or AMPO, and maybe we can get them to you sooner.

Next question I see is when do eight-hour SIPs have to be completed by? This was really part of the eight-hour implementation rule making. And in most cases, the eight-hour rules were three years after designation. But I'd refer everyone to the eight-hour implementation plan rule making to those questions or with EPA, as that's really not the province of our agency. When we sent out the questions and answers to this, I'll try to make sure that that's applied a website to you so you know you can find the information you need.

Actually, the primary criteria, is whether they make the air quality better or do no harm. Being able to use the interim tests instead of the one-hour test is that it has to better meet the clean air act requirement that plans and tips demonstrate that they will not cause violations or worsen violations. So it really has to do -- you really have to show that the interim tests do a better job of showing that your transportation -- transportation plan and TIPs will have to do less harm for air quality.

NOx waivers. The implementation rule allows for eight-hour NOx waivers. This allows EPA to waive NOx requirements . A number did this under the one-hour standards and have waivers. However, those one-hour waivers will not apply. So unless they have eight-hour waivers, they will have to show compliance with NOx in the conformity determination.

The additional rules for bistates and biMPOs be released. Multi-jurisdictional guidance that we're working on with EPA, we hope to release within the next month. There are a lot of complicated issues that we know. And we're working as fast as we can to address those issues. Our goal is to have that guidance out within the next month. Once again, it will be guidance. It's not a rule making. It's just guidance interpreting these rules.

I think one of the questions, what is 93.109. I think somebody answered that in the chat box. But I'll repeat. Refers to 40 CFR, part 93, section 109, which is part of the transportation conformity rule.

We don't have any other questions right now.

We'll go ahead and -- well, I've got one more question. Can a one-hour budget for a maintenance plan year 2014 be used for an attainment year of 2010. No. For the budget test, the same rules that apply would apply now. You have to use the budget that's the most recent previous budget. So for 2010, you could not use a 2014 budget. You would have to use the most recent year that was previous to 2010 that you had a budget available. Or if there's no budget available, you would have to use the interim emissions test.

What else is the guidance going to address? Multi-jurisdictional guidance is going to address areas with multiple MPOs and/or multiple states. So it's going to basically address procedural issues such as how areas have to work together to get conformity demonstrated in the nonattainment areas, as well as some technical issues, as far as how the budget tests can be used with areas with subarea budgets or separate budgets in each multistate. Will the details of the court impact be addressed? We'll cover that information the second half of the presentation today. But only briefly. I can sum up right now in saying that basically, for the 1999 court decision, all the rule does is incorporate the existing guidance that we have in place into the rule. There are no changes really to what we should be doing now.

The question is, if an area has no current one-hour maintenance plan and designated attainment of the eight-hour standard, maintenance plan, there is some difference here. [ inaudible ] county implementation. Maintenance. [ inaudible ] that is not the same as the maintenance area has a maintenance plan under section 175. So there is a difference there. As far as the maintenance plan that shows 10 years. [ inaudible ] issues having to deal with maintenance. [ inaudible ] refer this question to implementation plan and make sure we have a link when we send out the questions.

What methods can be used to divide a budget. The method, you could use different things to determine how subdivided one-hour budget. Easiest ways to do that would be if the budget somehow in the inventory subdivided the inventory. However, it does not have to be subdivided in a previous plan. It just has to be worked out through interagency consultation. So there may be ways that we have not discussed that could be utilized, depending how your SIP was developed.

If there is an one-hour maintenance plan, could it be used for the 2009 for the eight-hour? If it is prior to 2009, it could be used. So if your maintenance plan budget is, let's say, 2005, you could use it for the 2009 attainment year. However, if it is after 2009, such as one of the questions was earlier, 2014 maintenance plan, you could not use that budget for a prior year. Each year you test, you need to utilize the most -- the most recent prior budget to that year.

Okay. There was a request to repeat our answer to the question, if an area has no current one-hour maintenance program was designated to the eight-hour, will it need a maintenance plan? What I answered there, was it depends what you mean by maintenance plan. Normally, in conformity, we refer to one section, 176 maintenance plans . Those are the only subject to conformity. However, the eight-hour implementation rule refers to a section 110 maintenance plan, which is different altogether. So I'd refer you to the eight-hour implementation rule and EPA for more guidance on how that maintenance plan would work.

If there a one-hour maintenance plan budget, will the 2002 baseline data apply? Whether you're able to use your one-hour maintenance to confer can conformity. If you're in an area where your budget covers your entire eight-hour area, you would just do the budget test, not the interim test. However, if you have new area, your eight-hour area is larger than your one-hour area, or you're not able to determine what part of the budget applies to the area. Or if your maintenance plan is after a required analysis this year, you may be required to do the interim emissions test. In that case, you would have to do the -- you may need to do the 2002 baseline test.

Next question? If there's no one-hour budget prior to 2009, the eight-hour attainment year, what tests apply? There's no one-hour budget available, then the interim emissions test would apply. Depends on the classification of your area. If you're classified a marginal area or subpart one or basic area, you would be able to do either the build no greater than no build test. Or build-no-greater-than-2002 test. However, if you're classified as a moderate or above eight-hour ozone area, you'll have to comply with both the build less than no build test and the build less than 2002 test. So it depends on your classification.

We're going to try to flip back to the four boundary scenarios and show that slide.

Question is, so the final rule is distinct from EPA's eight-hour implementation rule. That is correct. This is a different rule making. EPA's implementation rule was out earlier. And I'll make sure I get you that link. But they are two separate rule makings.

The next question is what happens if the area without a budget is in another state? Not going to be able to answer that question today. Because that is going to be addressed in this guidance that we're putting out. We're still talking about how that would happen. That would be in the case where the eight-hour area is larger than the one-hour area, but the new area includes another state. In that case, that situation will be addressed in the guidance we hope to have out in the next month or so.

We are going to go ahead and take our break now. We'll take a 10-minute break. And start up again at 4:00 -- excuse me. 3:00, eastern time. And we'll move on with PM2.5 and also answer any other questions you might have. Someone just recently put up the eight-hour implementation website in the box. And that's great. Thank you very much for that. Thank you. And we will be back in 10 minutes.

Hello, everybody. This is Gary Jensen once again. We're going to get started. We've had a couple more questions come in. In scenario 3, the doughnut area, fails the emissions test, will this affect the area that passes the motor vehicle budget test for the new eight-hour conformity requirements? If you have an area that is entirely in one state and the doughnut area fails an intermissions test, conformity will fail for the entire area. Even if the one-hour area can meet its test, the additional eight-hour area must meet its test as well. There is an "and" provision in the regulation. That said, if you're in a multistate area, there can be some flexibility. And that will be part of the multi-jurisdictional guidance.

There was a comment on what to do with nonconformity. I guess that agrees with what I just said, except I would say there may be some exceptions of how this it was implemented in multistate areas. So if we don't have any other questions, we're going to go ahead and move on into PM2.5 provisions.

For PM2.5 areas, it's much simpler, since it's considered a new pollutant. The final rule is generally consistent with the PM10 requirement in that all PM2.5 nonattainment areas will be able to choose between either the build no greater no build test or the build-no-greater-than-2002 test. All PM2.5 will be able to choose between those two tests. Right now, the rule provides that regional emissions analysis is done for PM2.5, direct PM2.5 emissions, excuse me. We're going to discuss precursors here in a moment. As I mentioned earlier, the precursor is one that EPA did not finalize in rule making. So direct PM2.5 emissions come from tailpipe, brake and tire wear. And these would be included in all PM2.5 areas. Currently, mobile6.2, which was released recently, and emfac2002 California factors. Mobile6.2 will be the official model for PM2.5 emissions analysis, regional emissions analysis. So there will be no grace period when you do your first PM2.5 performing analysis, you'll be using mobile 6.2 and emfac of California.

Another part of PM2.5 is road dust. And what proposed rule had some options here. But the final rule said that before PM2.5 budgets are adequate or approved, road dust is not included in the regional emissions analysis unless EPA or state area agency defines road dust as a significant problem. So unless EPA or the state area makes that finding, you do not have to include road dust in your regional emissions analysis.

Once budgets are in place. If the budget includes road dust, you'll have to include road dust, you'll have to include road dust. If it does not include, you will not have to include. It depends what the SIP says. For calculating road dust, when EPA recently released mobile6.2, they also made ap-42, the method in which you should calculate road dust. Unless you have an alternative method that's been approved through consultation, you would use the ap-42 methods and there's a link here on this slide. You may not be able to get this link now. But it will be part of the slides and you can get it when you get part of the slides. EPA also recognizes there is a problem with these estimation methods in that in many cases, they're over-predicting the contribution of road dust. PM2.5. They are currently working on guidance that will address how to adjust the road dust inventories and are planning on having that out by the end of the year. That's another piece of guidance to look out for that EPA has under development.

Another element of PM2.5 is construction dust. And this is very similar to how PM10 is addressed currently. From the construction projects is only included in the regional analysis if it's identified in this SIP as significant. So prior to having a PM2.5 SIP, you will not have to worry about construction dust. Once you have a SIP, if is it includes construction dust, you'll have to include your regional analysis. Once again, ap-42 is the recommended method for calculating construction dust emissions. And as we said earlier, EPA is going to be developing guidance on how to apply ap-42 to come up with construction dust emissions.

The final element that was not addressed in 2.5 is precursors. EPA is not finalizing any elements right now. Requirements dealing with PM2.5 precursors. They are going to finalize these prior to PM2.5 designations becoming effective. However, this rule making does provide information that once you know what your PM2.5 areas are, you can already start working towards some of the analysis. Any of the precursors emission factors will be developed in the same way the direct emissions factors are, through mobile 6.2 or emfac. So those are calculated at the same time the direct emissions are calculated. So you could go ahead and start working toward that analysis.

The proposed rule identified four precursors, four potential precursors for PM2.5. NOx, VOCs, sulfur oxides and ammonia as potential options. The first option, the first option, option one would include NOx and VOx unless the state area found they were not significant. And that sox and ammonia would not be included in regional emissions analysis, unless EPA or areas did find they were significant. Option 2 would treat all of the precursors the same and say that unless EPA or the state area defines that one of these or more is significant, you would not include them in your regional emissions analysis. And of course, once you have a SIP in place, if you have a SIP budget for precursor, you would do conformity for that precursor.

Also, in the proposal, EPA proposed a number of options dealing with PM2.5 and PM10 hot spots. EPA received a number of comments and decided that they need to do a supplemental notice of proposed rule making on the hot-spot issue. They will be proposing some additional options and be taking comments on all the options later this summer. In the meantime, the existing PM10 hot-spot requirements will continue to apply. And once again, EPA plans on finalizing EPA hot spot requirements by the effective date of 2.5 designation.

So that basically covers the PM2.5 presentation. I haven't seen any questions on PM2.5. [ inaudible ] We have one question that has come in. And that is, is there a three-year interval for the milestones for the 2002 base year and the eight-hour attainment year? I'm not exactly sure what the question is asking. The base year is 2002. Your eight-hour attainment year will depend on your classification. Marginal areas, I believe their attainment year is 2007. Moderate, 2010 and so forth. So your attainment year will depend on your classification. 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 any intermediate year so there's not more than 10 years separating them. So I don't know if I answered your question, if I did not, maybe you can type in a clarification. But that's. [ inaudible ] with that.

I guess we'll move on to other elements of the rule making. And the first is the court decision. The 1999 court decision that affected conformity. We have been operating under guidance for quite some time. And the rule making, all the rule making does is incorporate that guidance into the rule. So this -- there shouldn't be any changes in how we apply the court decision. First part of the court decision was what projects can proceed during a conformity lapse. Once again, exempt projects can proceed as well as transportation control measures in the SIP. As we have been proceeding under guidance, any project phase that was approved prior to the lapse can go ahead and proceed. For nonfederal projects, regionally significant nonfederal projects can proceed during the lapse if they received all of their approvals prior to the lapse. And any non-regionally significant, nonfederal projects can proceed during the lapse. These are either part of FHWA's guidance for implementing the court decision or EPA's guidance for implementing the court decision. Here are the list of guidance materials that we're operating under. Our primary guidance for FHWA is the January 2nd, 2002 guidance. FTA added some additional guidance to clarify how this affects transit projects. And we also clarified an element of the guidance on how conformity applies to projects requiring environmental impact statements. All of the other elements come from EPA's May 14, 1999 memo that covers submitted budgets and nonfederal projects.

I've asked for a couple of clarifications here. It says does it have to have this in order to proceed during the conformity lapse? Our guidance says that TCMs should have identified. However, that is a should. Not a must. If there is a TCM in an approved SIP, they should be able to proceed to a conformity lapse. But that will need to be discussed during interim consultation to ensure there really is one. Exempt must come from exempt and TIP. I think it's -- what's being asked here is whether an interim transportation planning TIP has to be in place. When you're in a conformity lapse, you still have to talk about the planning requirements. And those require that you have to have tips in place in order to plan projects. So if you are in conformity and cannot conform the TIP, we have a process interim plan and TIP to fund those projects. That's according to an MOU that we have with EPA and you can find that on our website. And looks like the next question is the same, dealing with interim plans and tips. And yes, an interim plan and TIP would have to be in place during a conformity lapse.

So the other part of the court decision had to do with the use of submitted budgets. It said that areas could not use submitted budgets until EPA found them adequate or approved them. So this incorporates EPA's guidance. And doesn't have any changes from current practice. So this should be going along the way it continues on. What this does is make it part of the rule.

Now, there are a number of streamlining elements to the rule that we've included. The first one has to deal with the TCM trigger. Required areas to redetermine conformity within 18 months of certain SIP actions. And previously those actions included adding, changing or deleting TCMs in the sips. This is being removed from the conformity rule. So if TCM revisions will no longer start the conformity clock. The reason is it should be affecting the budget and that would be covered under other triggers.

Another element of the triggers that has been changed. Previously, an 18-month trigger was instigated when EPA found a budget adequate. And another when EPA actually approved their budget. So same budget could have actually been two separate clocks going. If you've already used the budget for conformity when EPA approves the budget, you don't have to have another 18-month clock. So if you have -- if you had an adequacy determination and you met that 18-month clock. If the same budget is later approved, it does not start another 18-month clock.

Another element that we've changed is the latest planning assumptions. The way the rule was written, it stated that the latest planning assumptions must be used at the point where DOT's determination is made. That could mean the MPO has gone through their entire process, their whole regional emissions analysis, made their conformity determination, and sent to Federal Highway Administration. And at that point new data became available under the old rule, we could not make our conformity determination. So what the revision says is that latest planning assumptions must be in place at the time the analysis begins. And that point should be determined through interagency consultation. But that's basically the point where your modeling for the regional emissions analysis begins.

Another element is we've clarified a grace period, periods that areas have to comply with more rigorous planning and modeling requirements. This probably will not affect many areas. But this is the case where you were, let's say, moderate, ozone area. And you were not subject to the modeling requirements and you were bumped up to a serious or severe area. And you were suddenly subject to those requirements, this would give a two-year grace period for you to comply with those modeling requirements.

So that basically covers major elements of the rule. And we can take any more questions that you had, if you want to type them in. We'll give you a few minutes to do that. Otherwise, we'll move on in a few minutes to talk about outreach and upcoming activities.

All right. Question is, can conformity, the eight-hour standard be determined prior to June 15, 2005? Yes. Although conformity is not required until that point, it can be determined prior to that. Hopefully that will help some of you. This could be, let's say you're doing a plan update and you have to have it done by February of next year. You can go ahead and do your eight-hour conformity determination at that time if you can. But, you still have to comply with the one-hour conformity as well. So if you do comply with eight-hour early, if you're one-hour, you may be doing conformity against both standards.

Next, Is the final rule in effect now?

Officially, no. It's not been in the federal register yet. But the EPA administrator has signed the rule. So once it comes along, it will be official. But there should be no changes to the rule. They have signed the rule and this is what we're moving forward with.

So I'm going to go ahead. Please feel free to continue typing your questions. But I want to talk about forthcoming guidance. I want to reiterate what EPA is working on. The first is the multi-jurisdictional guidance. I think this is most important to most people. Because there are some very complex areas that involve one, two, three, or even four states. And eight or 12 MPOs. We realize additional guidance needs to be given to how to interpret this rule. So we are working very hard with EPA to get this out next month. Another thing working on is transportation conformity in Indian country. We realize that a number of nonattainment areas include tribal land. Because of the unique relationship between the federal government and tribal entities, EPA is working on specific guidance that deals with transportation conformity in those areas. Other elements that we have not discussed is conformity SIPs. Transportation conformity rule requires that areas put their conformity requirements in their SIP. Once they're in the SIP, they basically kind of overshadow the federal requirement. So some of the new requirements that just came out in this rule making will not be able to be taken advantage of until the conformity SIPs are revised. This only reflects some of the requirements. All of the requirement dealing with the new standards should not be part of conformity SIPs so nobody should have to wait to utilize the new standards information or the court decision. Because the court decision would overrule conformity SIPs as well as it overruled the federal conformity regulation. So what this really applies to is a lot of the streamlining things that we're talking about, that these may have to be changed before areas can use them. But EPA will be providing guidance on how this rule applies, all the different elements of this rule making. Finally, the last guidance I mentioned was this adjusting dust emissions from 1842. And we expect to see that later in the year.

Got a few questions come in. One is the conformity rule is 450 pages. We have a CFR format version soon. Once the new rule making it published in the federal register, it should be quite a bit shorter because the format of the federal register. That version, I would say maybe a third. Usually about a third. May bring you down to closer to 100 pages, bull still going to be quite long. That will include the preamble and the rule changes. EPA will be posting on their website, a complete version of the updated rule as it would appear in the CFR. That's not been done yet. But EPA has committed to doing that shortly. So on EPA's website, they will have a version of the rule that includes all the changes to date. But like I said, that's not quite available yet.

Next question, will the new EPA guidance also address adjusting PM10 dust emissions from 1842? Yes. That's the fourth element of guidance I was just talking about. That guidance will address how to adjust dust emissions inventories to more closely reflect conditions.

They informed me that the rule will be published in three columns in about two weeks. That's why I was covering it as far as the format. That federal register will be much shorter. But it's still going to be fairly long. You know, even in three columns, I anticipate that it will probably still be around 100 pages. Hopefully shorter, but it's going to be quite long. Okay.

The last thing I wanted to touch on was prior to outreach, Jim mentioned earlier that we have a number of outreach activities planned. I wanted to highlight the four one-day regional workshops that FHWA is planning. We are just now, today, I confirmed the dates for these workshops. But we will be having a flyer that we'll be sending out shortly that will explain how you can register for these workshops. They will be July 21ST, here in Washington, DC July 22ND, in charlotte, north Carolina. July 27TH in Dallas, Texas. August 3RD if in Los Angeles, California. In these workshops, we'll basically cover mainly the changes to the conformity rule. They'll not cover conformity basics, but be more directed for those people that want to know how to apply the changes and how to do conformity in the new areas under the new standards. Also as part of these workshops, we will include presentations on CMAQ because I know that's important to a lot of people. And we'll be able to answer questions at those workshops on that.

EPA is planning a number of outreach activities, including five of their own regional workshops. They'll be having two-day workshops, which will include in some cases, some basic conformity training. I'd refer you to EPA's website for more information on their workshop, or you can contact me.

Our next steps, like I said, we'll be getting the rule in the federal register and working on the multi-jurisdictional guidance. As far as this presentation goes, we have been recording this. It will be available with a transcript on our website shortly. We will be typing up the questions that we received and the answers, and also making those available. So you can have clear questions.

We do have someone in the room that could answer your CMAQ questions. Mike Savonis is here. So if you did have CMAQ questions, you could type them in as well at this point.

One of the questions was, will the presenter repeat his name? My name is Gary Jensen. On the slide here, you can see my name and phone number, as well as my e-mail address. If you have any questions, feel free to contact me or Cecilia Ho. Whose information is here. I'd also refer you to our website and in addition the EPA's website. That's probably where you'll find the most up to date information on what we have going on.

The question is, will the new rule supersede the 1997 rule or will we have to mesh them ourselves? Well, it does not supersede the 1997 rule. So it does only make those changes that are being made to address the new standards and the court decision and streamlining things. However, as I said, EPA is going to mesh the complete rule that includes all the changes from the 1997 rule. And, a couple of minor revisions that we've made in the interim as well. So hopefully in short order, we'll have a complete version on the website that you'll be able to obtain. [ brief pause in captions ]

Have you had any questions from congress on the CMAQ formula?

Mike Savonis:
No, I can't say that we have. As you may know, the administration included changes to the CMAQ formula to include the containment areas. Our bill, the senate adopted those provisions but the house did not. To be honest, I perfectly expect the house to go along with the senate version but we have not received any word at all from the congress about that. The other question, I have another question that says is PM10 going to be added to the CMAQ allocation formula. At this point in time, I would be surprised PM10 were added. Stranger thanks may have happened but right now PM10 is not in either the house or senate version of the CMAQ apportionment and as they go to conference and discuss it, it is possible that PM10 would be added.

Gary Jensen:
We can hang on a few more minutes and see if anybody has any questions they want to type in. So we'll be here for a couple more minutes but you see our contact information up here. Like I said, if you have any further questions please forward them to us and we'll get back to you, and once -- once this material is available, as far as typing up the questions and presentation materials on our web site, we'll let you know.

Mike Savonis:
I guess something was going on because we just got a request to repeat the answer on PM10. And essentially my answer was that I would be surprised if it was included but it's not impossible that PM10 will be included in the CMAQ apportionment formula. Neither the house version of the bill, nor the senate's version of the bill, currently included PM10. There was some early discussion, particularly within the senate, I believe, about including PM10, but that was dropped after it came out of committee and when it went to the full senate for a vote, it included only the administration's bill which only included fine particulate matter. So it is possible as they go to conference that PM10 will be considered as part of the CMAQ apportionment but currently it's in neither version.

Gary Jensen:
It says will there be a publication that compares the original and the amended regulation? There probably will not be one that compares the whole thing, because the amendments affect just those changes. There is a comparison chart on the EPA's web site that compares the proposal and final rule but most of the elements changing in the rule are new. However that's a good idea and we'll see if we can get together some sort of tool that will help people find the parts of the rule that have changed. No guarantee, but we'll definitely take it on and see if there's nothing we can do about that.

We have another CMAQ question here. Are there any new provisions that will allow access to CMAQ funds by areas in attainment.

Mike Savonis:
No, I can't think of any right off hand. CMAQ provisions would remain largely unchanged in that regard. The question frequently comes up about the early action contact areas and CMAQ funding, and those -- those areas, unfortunately are not included in the statutory formula currently, obviously. 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.

There is a question that also comes up about CMAQ funding after the standard is revoked, as you are all aware, I'm sure. They plan to evoke the one-hour standard in 2005. And we have not formalized our guidance on that. Our current guidance, which goes back a ways, back to 1999, when EPA was last going to implement the new air quality standards, we had provided for a transition period in two different elements. One is that we allowed a four-month grace period to change or amendment so that areas could, in fact, add projects to their TIPs, even though the one-hour standard was going to be revoked and then two we allowed CMAQ projects that were programmed for CMAQ funding in the TIP in the first three years of the TIP they could go forward, at least as far as the federal perspective was allowed. As I say, we have not revised that guidance at this point. Providing for some level of continuity makes sense for us and would probably have something similar, somehow, but I would ask you all to keep -- keep a watch on our web site for any additional guidance coming out on that.

Gary Jensen:
The next question had to do with basically pros and cons between the build, no build test, and baseline test. From a policy standpoint, the preamble to the rule making does respond to a lot of comments that we got on which test is better. The baseline or the build/no build test. From a policy standpoint, I would refer you to the preamble of the rule making to kind of go over those issues. We have comments on both sides that they thought the build/no build test was better and then thought the baseline test was better from a technical standpoint, a resource standpoint, I think the biggest difference is that when you do build/no build test, have you to keep -- have you to maintain two modeling networks. For the entire horizon of your plan. So you have to have two modeling networks and you travel the man model whereas with the baseline test you only have to have the single -- the single network. So just from a resource issue I think from a technical standpoint that's probably the biggest difference between the two tests that we have heard.

Well, we don't seem to have anymore questions coming in. So I think we'll go ahead and wrap up now. If you do have questions later on that you think of, like I said, feel free to contact me and we'll try to get an answer together, or, of course, the FHWA division office in your state, is probably your primary point of contact for any conformity questions specific to your area. Or your EPA regional office. But I encourage you to check in with your division office if you have any specific questions. I would like to thank everybody for joining us. I want to apologize that we got a late start with our technical glitch and also the feedback that we got through quite a bit of the -- of the net conference. But I want to thank everyone for joining us. And I hope this was of some assistance. Thanks. [ end of meeting ]

Updated: 7/6/2011
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