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2004 and 2005 Transportation Conformity Rule Amendments Outreach Activities

National Association of Regional Councils

National Association of Regional Councils

The New National Ambient Air Quality Standards: Vital Information on Planning for Air Quality

Introductions: Wayne Hill, President, NARC

Moderator: Mark Simons, Office of Transportation and Air Quality, U.S. EPA

Gary Jensen, Federal Highway Administration
Rudy Kapichak, U.S. EPA
John J. Silvasi, U.S. EPA
Jim Thorne, Federal Highway Administration

Monday, June 28th, 2004

Transcript by: Federal News Service, Washington, D.C.
(edited by Kathy Daniel, Federal Highway Administration)

WAYNE HILL: Hello, and welcome from Chicago. I'm Wayne Hill, chairman of the Board of Commissioners from Gwinnett County, Georgia. I'm also president this year of the National Association of Regional Councils. On behalf of NARC and with support from the U.S. Department of Transportation's Federal Highway Administration and the U.S. Environmental Protection Agency, we welcome you to a telecast today on the new ambient air quality standards, vital information on planning for air quality.

Your moderator for today's presentation is Mark Simons, from the U.S. EPA Office of Transportation and Air Quality. Mark is a specialist in transportation and air quality planning, and he provides technical assistance to numerous local, state and national agencies. Please welcome Mark Simons.


MARK SIMONS: Thank you. Welcome to the telecast portion of NARC's workshop on planning for air quality. This telecast is part of an all-day workshop to provide information on the new ozone National Ambient Air Quality Standards, or the NAAQS, and the conformity amendments.

The workshop is being held in Chicago at NARC's 38th annual conference and exhibition. For those of you who can't be with us in person, this portion of the workshop is being telecast broadly across the country to allow viewers to learn about some important changes in transportation and air quality planning. For the next hour, a panel of experts will provide an overview of the changes, improvements, opportunities, and challenges posed by the new 8-hour ozone standard and the conformity amendments. And you'll also learn about potential impacts on the Congestion Mitigation and Air Quality Improvement Program.

The panel will also address specific questions from our workshop and broadcast audiences, so if you have a question, please call the number being shown on your screen. If we don't get to your questions, please email them to and we'll publish the questions and the answers in Regions, the NARC newsletter, and we'll put them up on NARC's website.

Joining me to discuss the new ozone national ambient air quality standard is EPA's John Silvasi, who will discuss the implications for new and existing nonattainment areas. We also have EPA's Rudy Kapichak and Federal Highway Administration's Gary Jensen, with their perspectives on the Transportation Conformity regulation amendment; and finally, the Federal Highway Administration's Jim Thorne, who will discuss the impacts of the new NAAQS and other potential changes to the Congestion Mitigation and Air Quality Improvement Program.

Finally, I'd like to draw your attention to an evaluation form that we would like you to fill out so that we know how this technology format works. The form can be found on the NARC website.

Right now we have a lot to cover, so let's get started. To talk to us on the implications of the new NAAQS on both new and existing nonattainment areas is John Silvasi, who is a senior environmental engineer in the Ozone Policy and Strategies Group of EPA's Office of Air Quality Planning and Standards, located in Research Triangle Park, North Carolina. The Office of Air Quality Planning and Standards is responsible for developing policy and regulations for implementing the new NAAQS for ground-level ozone. In John's 32-year career with EPA, he's worked on many projects related to state implementation plans.

Welcome, John.

JOHN SILVASI: Thank you, Mark.

MR. SIMONS: Let's start at the basic level. Can you give us an overview of the new rules that address the 8-hour standard?

MR. SILVASI: Sure, Mark. Back on April 30th of this year we published two important rules related to the 8-hour ozone standard. One is the designation of nonattainment areas, areas that are not meeting the 8-hour standard. We identified 126 such areas across the country. Eighty-four of them are going to be covered under less prescriptive rules than were covered under the 1-hour standard. The remaining 42, however, are being covered under the rules that were similar to the rules covered for the 1-hour standard. Those are classified areas.

The designation rule also deferred the designation for a number of Early Action Compact Areas - and we'll get into those in a little bit. The effective date of that rule was June 15th of 2004, so it is in effect now.

The other important rule was the implementation rule for the standard, at least the first phase of it; there's a second phase we're working on now. The implementation rule, first phase, covered the classification system that we use to classify those nonattainment areas that we designated from the first rule I mentioned. And this will also, among other things, provides for a transition from the 1-hour standard to the 8-hour standard.

MR. SIMONS: Can you - for those that are looking for some basic information - can you explain a little bit more about what nonattainment areas are and maybe where they're located?

MR. SILVASI: Sure. I think there's a map up on the slides that shows where the nonattainment areas are located. There are 432 whole counties and 42 partial counties that make up these 126 areas. Most of these areas are in the northeast around the Lake Michigan area, some in the southeastern part of the country, a few in the Midwest, some in Texas and in California. A large part of the country, as you can see from the map, is designated attainment or unclassifiable, therefore, by-and-large the rule doesn't apply to those areas.

MR. SIMONS: Well, some of these areas used to be 1-hour nonattainment areas. What's the difference between implementing the 1-hour standard and now implementing the 8-hour standard?

MR. SILVASI: I think the next slide shows the breakout here. Most of the 1-hour nonattainment areas were required to demonstrate that they would attain the air quality standard by certain periods of time. It depended upon their classification. The classification was based on the severity of their problem - all the way from marginal areas that were only a little bit above the standard to moderate, serious, severe, and extreme, which was a large amount above the air quality standard. The higher the classification the more time these areas got for attaining the standard, but also they were required to implement more mandatory measures. For instance, a marginal area did not have to implement a vehicle inspection and maintenance program. A moderate area did. A serious area had to do an enhanced inspection maintenance program, for instance.

So the 1-hour standard had these prescriptive requirements.

MR. SIMONS: Is the 8-hour standard going to provide more flexibility?

MR. SILVASI: 84 of the areas covered under the more flexible part of the Clean Air Act, would not have these mandated requirements. They would not be classified. But the remaining areas that are classified are covered; they would have these requirements. However, most of the 8-hour areas are classified lower than they were for the 1-hour standard.

The 8-hour areas still have to attain the standard and develop a plan to show how they will attain it. The areas that are not classified have certain periods of time by which to attain, but they can do so without prescribed measures. That's basically it.

The New Source Review provisions were tighter under the 1-hour standard for classified areas. For the unclassified areas under the 8-hour standard, if they're covered under what we call the basic or Subpart 1 requirements the provisions are not as restrictive as they were under the 1-hour standards.

MR. SIMONS: So it sounds like there's going to be additional flexibility. Now, how will the transition occur? There are the 1-hour areas and then they move into the 8-hour standards. So how does that transition work?

MR. SILVASI: I think there's a slide on that coming up. The 1-hour standard will be revoked - it will go away - one year after the effective date of the designations. June 15th of 2005 it goes away. However, the 1-hour areas that were designated nonattainment under the 1-hour standard at a certain classification still have to continue to implement those provisions under the rule's anti-backsliding provisions. In other words, if an area was a serious area, in the example I used before, and had to do an enhanced inspection and maintenance program, and now is a basic or Subpart 1 area or even a marginal area, it still has that requirement for areas that were serious nonattainment for the 1-hour standard. So they have to continue to meet those requirements.

We selected one year after the effective date of the designations to correspond with the one-year grace period for conformity for new nonattainment areas, which I understand will be discussed later in this segment.

MR. SIMONS: Great. So we've got the implementation rule that's been published. Now, what are the next steps?

MR. SILVASI: Well, the states are beginning to come to grips with their designations and classifications under the 8-hour standard. We were not able to finish the rule by the middle of April, so we have to do a second-phase rule. We still have to deal with aspects of implementation such as attainment demonstration requirements and the timing of it - how to phase in the emission reductions that lead up to attainment. The areas are not supposed to wait until right before the attainment date to get all their reductions; they have to be phased in ahead of time. For these areas, there are certain requirements for reasonably available control technology and reasonable further progress.

MR. SIMONS: Right.

MR. SILVASI: We're hoping to finish this rule and have it signed in September. So those are the next steps for us. Once the States have this they'll be better able to begin to develop their plans for the 8-hour standard.

MR. SIMONS: But even in the absence of the phase - two part, they can get started moving towards attainment.

Now, why do we have this new rule? What are the benefits of having a new 8-hour standard?

MR. SILVASI: Well, there are health benefits because the 8-hour standard is tighter. Our rule provides more certainty for how the states are to do the planning. We've provided certainty for classifying the areas, for instance.

We originally published the standard back in 1997. It was held up - the implementation of it was held up in litigation that finally the Supreme Court addressed in 2001. So we've been working since then to try to come up with a way to implement the standard that still provided flexibility for the states to do the implementation. So it is providing more certainty than we had before for the states to do their planning.

MR. SIMONS: Great. I guess one big question that a lot of people would be interested in knowing is what the consequences are. What if you don't attain after this implementation period? What happens then?

MR. SILVASI: There's a misconception that if an area does not attain the standard then sanctions apply to the area. That is not true. There are no sanctions that apply for areas that fail to attain the standard. There are sanctions that are available and are required for areas that fail to plan to meet the standard - in other words, that fail to submit a plan or submit a plan that EPA finds acceptable and EPA disapproves it. There are two kinds of sanctions. There is one that affects stationary sources, new power plants or facilities moving into an area. They must provide a two-to-one emission offset for the new emissions for those plants. It's a pretty heavy penalty for a new source wanting to locate in a nonattainment area. The other is a prohibition on highway funding for the nonattainment area, other than for projects related to safety or air quality.

MR. SIMONS: These are the exempt projects.

MR. SILVASI: Right, on a project basis.

The other consequence is that for areas that are classified, they do have a classification. As I said, there is a hierarchy - marginal, moderate and serious, et cetera - if one of those areas fails to attain, it gets bumped up to at least the next highest classification, and therefore gets more time to attain but it also must meet these more restrictive requirements in terms of measures that it has to adopt.

MR. SIMONS: Okay. We need to move on here and maybe we'll get back to that with some more questions, but we've heard a lot about these EAC areas. Can you explain what they are - what these Early Action Compact Areas are?

MR. SILVASI: Yes, Mark. Early Action Compact Areas were areas that had to sign a document by the end of 2002 committing to do early planning for the 8-hour standard. These areas agreed to get emission reductions that would be needed for attainment much earlier than other nonattainment areas. They have to have all their emission reductions needed for attainment in place by the end of 2005. They had to submit an attainment demonstration much earlier than other nonattainment areas.

So to compensate them for this, the EPA deferred the effective date of their nonattainment designation; therefore, New Source Review under the 8-hour standard and conformity under the 8-hour standard don't apply yet. These areas eventually could be designated, but this gives them a chance to become clean by that time - so we can designate them as attainment areas. Then, New Source Review and conformity requirements won't apply.

MR. SIMONS: Yes, and that's the EAC areas. What about the regular new 8-hour nonattainment areas? What do they do? How long do they have to get in compliance? What are the timeframes? They're out of compliance; what do they have to submit - this air quality plan?

MR. SILVASI: Right. Again, the second phase of our rule will cover when they have to submit it. We proposed for most areas that their implementation plan and their attainment demonstration be submitted three years after their designation - in other words, June 15th of 2007 would be their deadline. Depending upon whether they are Subpart 1 or basic area, they will have to demonstrate attainment always as expeditious as practicable, but they can get up to five years after designation - in other words, by 2009, for Subpart 1 areas. They can get an additional five-year extension under certain circumstances.

MR. SIMONS: Just another question about these plans. Who develops them? Where do they come from? We talk about nonattainment areas but is it the area that submits the plan or is it the state or - how do they - does the state compile them together?

MR. SILVASI: Yeah, the state has the responsibility. Each state has the responsibility of doing the nonattainment planning for its individual nonattainment areas. In several states some nonattainment areas cross state boundaries. Especially up in the Northeast, for instance, there are a number of nonattainment areas that cross state boundaries. Individual states are responsible for their portion of it. The state will do the planning and develop the plans for their individual nonattainment areas and submit them to EPA for EPA's approval.

MR. SIMONS: Great. Great. Okay, I think we're going to come back to this later with the audience, but right now I want to introduce Rudy Kapichak and Gary Jensen.

Rudy has worked as an environmental engineer in EPA's Office of Transportation and Air Quality, the State Measures and Conformity Group, for the past three years. He's the leader of the Transportation Conformity Team. Previously Rudy worked for 15 years in the Air Programs Branch in EPA's Region 2 Office in New York City. His responsibilities there included working with the regions and states on programs including conformity, inspection and maintenance, and fuels. Rudy has a Bachelor of Science and a Master of Science in Chemical Engineering from the New Jersey Institute of Technology.

And Gary Jensen, from Federal Highways, is a member of the Transportation Conformity Team in the Federal Highway Administration Office of Natural and Human Environment. He's actively involved in developing policies and guidance associated with transportation conformity and other air quality issues. He's been with the Federal Highway Administration for 10 years, including four years in the Tennessee Division managing Transportation Planning and Environmental Programs. He holds a degree in Civil Engineering from the University of Idaho.

Rudy, let's start with you. In a few words, what exactly is conformity?

RUDY KAPICHAK: Okay, thanks, Mark. Well, conformity was established by the Clean Air Act and ensures that transportation plans and transportation improvement programs and projects are consistent with the state's air quality goals. It makes sure that transportation activities don't cause any new violations of an air quality standard, don't make any existing violations worse, and don't delay an area's timely attainment of the air quality standard. It does this by requiring evaluation of emissions from these transportation improvement plans, TIPs, and projects before they're funded or approved.

MR. SIMONS: Well, that's similar under the 1-hour standard. What were the goals and objectives of the conformity amendments?

MR. KAPICHAK: Well, the goals of the changes that we just made to the regulation were three-fold. First, we provided regulations for implementing conformity under the new 8-hour ozone standard and PM2.5 standard. We finally incorporated regulations that address a court decision from March 1999; areas had been working under EPA and DOT guidance for implementing the changes needed by that court decision. And we also did a few things to streamline implementation of the regulation that we'll talk a little bit more about later during this section of the broadcast.


Gary, EPA wrote the new rules with a lot of participation with Federal Highways. When does the conformity - the new rule's conformity apply for the new standards? When does that come into effect?

GARY JENSEN: Well, for metropolitan transportation plans and transportation improvement programs, in new nonattainment areas they must be found to conform within one year of the effective date of the nonattainment designation. So for the 8-hour ozone standard that means they have to have a conformity determination in place by June 15th, 2005. Also, after that date any federal highway or federal transit project approvals also must be found to conform before they can be made. And for PM2.5, since we expect designations early in 2005, conformity will apply in the PM2.5 areas early in 2006.

MR. SIMONS: Another one-year -

MR. JENSEN: Another one-year grace period.

MR. SIMONS: So what do areas have to do during these grace periods? What happens there? How do you do conformity during a grace period?

MR. JENSEN: Well, for existing 1-hour ozone nonattainment and maintenance areas, they'll have to continue to comply with the conformity rule's provisions during that one-year grace period, so any transportation plan or TIP updates or amendments that occur during the one-year grace period will still have to conform to the 1-hour standard, and any project approvals that are made prior to June 15th, 2005, also will be subject to conformity.

MR. SIMONS: Okay. As soon as they start doing conformity for the 8-hour standard, when do they get to stop doing conformity for the 1-hour standard?

MR. JENSEN: Well, as John mentioned, on June 15th, 2005, the 1-hour standard is going to be revoked for most areas. After the 1-hour standard is revoked, conformity will no longer apply for the 1-hour standard, so for existing 1-hour nonattainment and maintenance areas, if they are not 8-hour nonattainment areas or they're not nonattainment for another pollutant, then conformity will no longer apply for them after June 15th, 2005.

MR. SIMONS: What about EAC areas, how are they affected by conformity?

MR. JENSEN: Well, for EAC areas, their 8-hour nonattainment designation has been deferred, so conformity will not apply against the 8-hour standard in those areas as long as their deferral remains in place. However, if an EAC area is also a 1-hour maintenance area, they'll have to continue to comply with the 1-hour conformity provisions because the 1-hour standard is not being revoked in those areas.

Across the country, there are only three areas that have to deal with that. For those areas, they'll have to continue meeting 1-hour conformity until either their deferral has ended and they're designated nonattainment for the 8-hour standard or they attain the 8-hour standard and are designated attainment. So they may have to continue to comply with 1-hour conformity until 2009.

MR. SIMONS: Okay. This question goes to Rudy, I think. It's important for people to understand the specific tests for the 8-hour ozone and PM2.5 standards. Once those state air quality implementation plan emissions budgets are established, what are the tests?

MR. KAPICHAK: Well, once a state makes a SIP submittal that contains emission budgets for one of the new pollutants, EPA will probably find those budgets adequate or in some cases will just go ahead and approve them. However, once EPA has taken that action, those budgets have to be used in subsequent conformity determinations. This is consistent with how conformity is implemented now for the 1-hour ozone, carbon-monoxide, and PM10 standards. So we really didn't make any changes there.

MR. SIMONS: Well, okay, but prior to the 8-hour budgets being established, what are the tests for the 8-hour areas that have an existing 1-hour budget?

MR. KAPICHAK: For areas that already have a 1-hour budget we think that, in most cases, they should continue to use those budgets for 8-hour conformity to be consistent with Clean Air Act requirements. Those budgets were put in place to show progress towards meeting ozone standards, so we think that's the best way to keep areas on track and ahead of the game for meeting the 8-hour standard by the dates that are specified under the designations rule.

The primary criterion in making a decision about whether or not a 1-hour budget should be used is that the test you choose for conformity can't allow air quality to be worsened. There may be some limited cases where a budget is not appropriate and those decisions should be made through the interagency consultation process that's required by the conformity rule.

To sum up, you can't just ignore a 1-hour budget because it's hard to pass. You can't ignore it because it's based on older data or an older emissions factor model. This all probably sounds pretty complicated, so to help out, EPA is soon going to be issuing guidance on how you determine conformity in multijurisdictional areas. That'll contain a lot of useful information in addressing this particular aspect of the rule.

MR. SIMONS: Great. Thank you very much.

You were talking about areas that have a 1-hour budget and what they are going to do prior to the 8-hour budgets being established.


MR. SIMONS: What about areas that don't have 1-hour budgets? Because some of these are completely new nonattainment areas.


MR. SIMONS: They don't have any 1-hour budgets. What are they supposed to be comparing their emissions to?

MR. KAPICHAK: Well, in the conformity rule EPA established tests that are called interim emissions tests. If you were designated as a basic area under Subpart 1, as John's described, or if you're classified as a marginal area, you'll have your choice of one of two interim emissions tests. You can either show your emissions are no greater than 2002 - or that your transportation plan or transportation improvement program build emissions are no greater than the no-build emissions.

If you're a higher classification area, the Clean Air Act puts some additional requirements on you. You'll need to show that you meet two interim emissions tests that are slightly different than what the lower classification areas can use. So, if you're moderate or above and you don't have an emissions budget, you have to show that your emissions are less than 2002 and that the build emissions are less than the no-build emissions.

Also, all areas will have to look at volatile organic compounds and nitrogen oxides. There's some possibility that in a few cases EPA might issue what's called a NOx waiver under section 182(f) of the Clean Air Act for the 8-hour standard, but, the states and local areas will have to work with EPA to see if they'd qualify for one of those.

MR. SIMONS: Okay, great. That's talking about the 8-hour ozone standard.


MR. SIMONS: What about PM2.5 areas? What do these areas do prior to a budget being established?

Gary, I think you get that question.

MR. JENSEN: Well, prior to a PM2.5 budget being found adequate or approved, all PM2.5 areas will be able to choose between the interim emissions tests. They can use either the build-no-greater-than-no-build test or the build-no-greater-than-2002 test. They'll be able to choose either.

MR. SIMONS: Whichever one works for them with the information they have.


MR. SIMONS: And then what about the direct emissions of PM2.5 and precursor emissions. Which emissions need to be addressed?

MR. JENSEN: The final conformity rule requires that all regional emissions analyses that deal with PM2.5 include all direct PM2.5, which includes tailpipe emissions, brake wear, and tire wear. These emissions need to be calculated using EPA's MOBILE6.2 model in all areas outside of California and in California the EMFAC model.

MR. SIMONS: Okay. Well, that sounds a little complicated. Let's come back to that later. Now, in addition to the particulate matter produced by automobiles, what about road dust and construction dust? How does conformity address those issues?

MR. JENSEN: Well, the rule also addressed those. For road dust it stated that regional emissions analyses do not have to reflect road dust unless EPA or the state air agency makes a finding that road dust is a significant contributor to the pollution problem. For construction dust, you don't have to consider construction dust when you perform the analysis either unless it's found in the state implementation plan to be a significant contributor.

MR. SIMONS: So that piece has to actually be identified in the SIP -


MR. SIMONS: As a source - a contributor?

MR. JENSEN: Whereas the road dust could be done prior to the SIP being developed.

MR. SIMONS: Okay, that clarifies that.

Getting back to the question about PM2.5 emissions - as a pollutant, it is very unusual. It's emitted directly from exhaust and it also forms in the atmosphere from precursor emissions. How does conformity actually test those? I mean, what is the process for addressing those hotspots from direct emissions and precursor emissions?


MR. SIMONS: I'm sorry, Rudy.

MR. KAPICHAK: That's okay, Mark. Well, the final rule doesn't actually address those. We proposed options for dealing with PM2.5 precursors and those options varied depending upon which precursor you're talking about. There are four potential precursors - volatile organic compounds, nitrogen oxides, sulfur oxides, and ammonia.

The reason the rule didn't finalize requirements for the precursors is that EPA is still working on its broader implementation strategy for PM2.5 - much as was done in writing the ozone implementation rule. We didn't want to finalize any requirements for conformity before we had settled on what was going to be done through the implementation rule, so we're not going to propose any new options for precursors. We're holding off on finalizing anything until we get further down the road with the implementation rule.

To deal with hotspots, or localized problems, we proposed a couple of options last November. Some people may be familiar with hotspots for pollutants like carbon monoxide. Some data shows PM2.5 can have those same kind of localized problems. So we proposed two options, we got a lot of comments, and after considering those comments, we decided we needed to propose some more options.

We're working on what's called a supplemental notice of proposed rulemaking that will put some more options out for comment. Through that notice of proposed rulemaking we'll take comments this summer. Then we'll make a decision on exactly what we'll require for addressing PM2.5 hotspots. Our goal is to finalize these requirements by the effective date of PM2.5 designation, so we're shooting for about January of 2005 for getting this wrapped up.

MR. SIMONS: Great.

Gary, there're some state implementation plans that have transportation control measures in them, and I know that conformity deals with transportation control measures. How does this new rule address timely implementation of TCMs?

MR. JENSEN: Well, we require conformity determinations for transportation plans and programs to show that transportation control measures in the state implementation plan are being implemented on schedule. New 8-hour areas must continue to do that for any transportation control measures that are in their SIP. Those could be measures put there to address the 1-hour standard. Even though the 1-hour standard's being revoked, those measures remain in the SIP, so 8-hour conformity determinations will have to reflect them.


Rudy, the rule addresses a bunch of miscellaneous things. What are those?

MR. KAPICHAK: The rule addresses a whole host of other things and I'll touch on a few of them. One, it incorporates guidance that EPA and DOT issued to address the March '99 court decision. Probably the two main points from that are that we put EPA's adequacy process - the process that we use to find emissions budgets adequate - into the regulation. And we've modified the regulation to be consistent with the court decision as to what kinds of transportation projects can go forward if an area gets into a conformity lapse.

We also did a few things to streamline implementation of the rule. There was some redundancy in the conformity triggers. It used to be that conformity was always required 18 months after EPA approved an emissions budget in a SIP. Now, if an area uses a budget after EPA determines its adequacy and then EPA approves the budget, no new 18-month clock starts because of that approval action. We didn't see the sense in requiring that conformity be determined twice to the same budget.

Also, it used to be that an area had to use the planning assumptions - things like motor vehicle fleet data - that were available on the day DOT made its conformity determination for a TIP or plan. That's at the very end of the process. We realized that caused a lot of uncertainty, so we changed it to say an area has to use the planning assumptions available when it starts the regional emissions analysis as part of its conformity determination.

Those are probably the main changes we made in the regulation.

MR. SIMONS: Okay, well, if somebody was really interested in digging into the detail, is there a place where they can get more information?

MR. KAPICHAK: Yes, EPA and DOT have very good websites and I think there's been a crawl at the bottom of the screen that's been showing exactly where they are. EPA's contains information on things like guidance and rulemakings. In fact, you can find the new rule there. The Web site contains the status of EPA's adequacy findings and a list of training workshops on the new rule that are being offered around the country.

MR. SIMONS: Great. Thanks. Rudy and Gary, the audience is probably going to have some good questions for you, so let's move on to Jim Thorne.

Jim is a member of the planning technical service team at Federal Highways' Resource Center in Chicago. The planning team provides technical assistance and training on a wide range of planning topics. Recent projects have included travel demand forecasting, land use and transportation coordination, MPO certification, scenario planning, and safety conscious planning. In addition to experience with the Federal Highway Administration, Jim worked with two metropolitan planning organizations doing plan development, travel demand forecasting, project evaluation, and air quality analysis. He also worked with the American Public Works Association as director of research and produced a number of technical publications.

Jim, to frame our discussion on CMAQ, can you give us some background information on the congestion mitigation and air quality improvement program known as CMAQ?

JIM THORNE: Sure thing, Mark. The CMAQ program began with the Intermodal Surface Transportation Efficiency Act (ISTEA) in 1991. The intent of the program is to fund projects that reduce emissions in nonattainment and maintenance areas so they can achieve the goals of the Clean Air Act.

Over its six years, the ISTEA bill provided $6 billion to fund those kinds of projects. The subsequent transportation bill - the Transportation Equity Act for the 21st Century (TEA-21) - continued the CMAQ program and increased the funding about 35 percent, so it went up to about $8.1 billion over the six years of the TEA-21 bill.

MR. SIMONS: That's a lot of money. How is the money apportioned and what pollutants are included in the formula?

MR. THORNE: The focus has been on ozone and carbon monoxide. There is an apportionment formula that allocates funds to those areas that have the most severe air quality problems, so there's a weighting factor based on the severity of the problem and the size of the affected population. So, for example, severe and serious nonattainment areas with large populations will get more money than maintenance areas with small populations.

MR. SIMONS: Okay. Now, other than the changes that result from the new National Ambient Air Quality Standards, are we anticipating any changes as a result of Congress's reauthorization of the transportation bill?

MR. THORNE: The air quality standards affect who is eligible to participate in the CMAQ program, but it's the transportation bill that determines how much money's going to be available and the apportionment formula that allocates that money across the country. The formula accounts for things like the pollutants covered, severity of the pollution, and size of the population.

The transportation bill, which hasn't been reauthorized yet, will determine that apportionment formula. The administration's SAFETEA bill proposes factors for the 8-hour ozone and PM2.5 areas.

MR. SIMONS: Those are included in the -


MR. SIMONS: - the administration's proposal. Great.

With implementation of the new standards, will there be areas that used to get CMAQ dollars under the 1-hour standard that won't get CMAQ dollars under the new standard?

MR. THORNE: Not in the near term. Once an area has the good fortune to attain a standard - the air quality gets better so it's no longer officially designated a nonattainment or maintenance area - it's no longer eligible to participate in the CMAQ program and won't be in the formula for allocating funds and you won't be eligible to spend CMAQ money in those areas. With the current timeframe, if the 1-hour ozone standard is revoked in June of 2005, it'll be the following fiscal year - FY '06 - before that change is made in the apportionment formula.

MR. SIMONS: Okay. What about areas that are designated nonattainment under the 8-hour standard but don't have a classification? The formula has these factors in there for classification. The new 8-hour standard has basic areas that don't have a classification. How is CMAQ going to address that?

MR. THORNE: That's an issue that's going to have to be worked out in the transportation bill to determine how the apportionment formula's structured.

The administration's SAFETEA proposal has a factor of 1.0 for new, 8-hour ozone nonattainment areas and 1.2 for new, PM2.5 areas. But again, as the House and Senate conferees work out that bill, they'll determine what those factors are going to be.

MR. SIMONS: Fourteen of these nonattainment areas have had their designation deferred - the EAC areas. Any consideration of EAC areas in the apportionment formula? Can it handle those areas?

MR. THORNE: The short answer is no. You have to be designated as a nonattainment or maintenance area in order to receive CMAQ funds. There would be an exception for an area that's maintenance for the 1-hour ozone standard and that's part of the EAC process. They'll continue to be eligible for CMAQ funds because of their maintenance status.

MR. SIMONS: Okay. If you're a nonattainment area and right now and you've got CMAQ projects programmed in your TIP - your transportation improvement program - does the money just go away? I mean, do we take into account that some areas have projects they've already committed to?

MR. THORNE: That transition question is a good one. The intent is that once you are attainment and you have the good fortune to have clean air, you aren't going to be eligible to use the CMAQ money, which will free it up for parts of the country with bad air quality. A lot more areas are going to be participating in the program because of the 8-hour ozone standard and the finer particulate matter standard, so there'll be more areas in the apportionment formula.

The proposal in the SAFETEA legislation that is being considered by Congress is for about a 10 percent increase in total program funds, or about $8.9 billion.

MR. SIMONS: Okay, so we've got an overall increase in nonattainment areas.

MR. THORNE: Right.

MR. SIMONS: The administration's bill proposes some increase in funds, but that still needs to be worked out.

MR. THORNE: That'll be worked out between the House and Senate as they come up with a final transportation bill.

MR. SIMONS: Okay. We've got the basic information. We're going to go to some questions from the audience, if you don't mind. I think that's where we should go here.

Thank you very much to all our panelists. They've covered a lot of information, but I'm sure there're some questions that our audience would like to ask. For those of you watching the telecast, you can call 312-649-2114. Please tell us your name, organization, and who the question is for, then a succinct question.

Let's see. We've got a question for Rudy. Is it sufficient for the MPO to make its conformity determination by the end of the grace period? Rudy?

MR. KAPICHAK: No. Actually, the MPO needs to make its determination early enough so Federal Highways and Federal Transit Administration can make their conformity determinations by the end of the grace period. For the 8-hour ozone areas, all of that needs to be done by June 15th of 2005.

MR. SIMONS: Okay. Thank you.

Is there another question?

Q: Yes, I'm Paul Tate. I'm executive director of the Southeast Michigan Council of Governments in Detroit. I was very encouraged by the discussion of flexibility early on. What I would like to ask is related to auto exhaust testing that's required for moderate nonattainment areas.

If we can demonstrate that we will be in compliance with the Clean Air Act standards before the 2010 - we can make it by 2007 - and we can get into compliance with measures like a newer fleet of cars using reformulated fuels, will there be some flexibility on the auto exhaust testing, which may prove not to make sense from the data in our region?

MR. SILVASI: Maybe I should take this question.


MR. SILVASI: I believe you're talking about an area that might be classified as moderate or above. Is that correct?

Q: Yes, we're right between marginal and moderate and I think we're going to be moderate.

MR. SILVASI: But you're moderate and -

Q: Right on the edge.

MR. SILVASI: I don't believe there is an out once you are classified moderate nonattainment and have the population size to require vehicle maintenance and inspection. It's mandatory. What we proposed back in June of 2003 was how we would deal with situations where it didn't make sense to comply with a mandated measure. What we proposed - and we got a lot of comments on it, which we're still considering and hope to address in our phase two rule - was, if compliance with the mandatory requirement would produce what lawyers call an "absurd result," there may be a way out. But that's a pretty stringent test. We did not put out guidance on it because apparently there's case law - it's a pretty high hurdle.

If, for instance, putting the measure in place would produce a result contrary to what Congress intended - in other words, ozone would increase when you put in the measure - then there's a basis for a finding of an "absurd result." That was the only flexibility we could find if you are classified and have mandatory measures.

MR. SIMONS: Thank you. Do we have another question?

I have one from the telephone audience. Gary, it's for you. "We're in an area where our transportation plan exceeds 20 years and an air quality plan could end as early as 2007. How does conformity work with these different time periods?"

MR. JENSEN: Well, currently the conformity rule requires that you test conformity for the last year of your transportation plan, so even if your transportation plan went much longer than your air quality plan, you would still have to test for that last year of your transportation plan.

There is some legislation in Congress - part of the reauthorization - that may address this, but currently that's still the case.

MR. SIMONS: That's still the case. Okay, thank you.

Next question.

Q: Hi. I'm Chick Krautler. I'm the director at the Atlanta Regional Commission. Jim, I want to ask you if FHWA is doing some research into the affects of land use on transportation decision-making and also on air quality.

We believe that we can have a significant impact on congestion and therefore a significant impact on air quality by making some land use changes, but they're very difficult to document from a conformity standpoint. In our last conformity determination our federal partners were concerned about some relatively modest assumptions we made about land use.

Do you think there can be more flexibility for MPOs making land use decisions and land use assumptions as they relate to conformity?

MR. THORNE: The land use question has been a tough one in the whole transportation planning process - of how those two interact and how we account for that - whether it's in land development, or in this case, in the impact on air quality.

There are research projects going on - some that Federal Highways has funded. I'm not sure that any of those has reached a conclusion with any clear next steps.

MR. JENSEN: We have a research project that's looking at land use and conformity and how land use activities may be given credit in conformity. That is ongoing. We hope to have it done by the end of the summer.

Q: By the end of this summer?

MR. JENSEN: By the end of this summer, so this fall you may look for something that comes out of that research project. It's mostly looking at what different areas have been doing and will have a little bit of evaluation of that.

Q: Good. Thank you.

MR. SIMONS: Next question please.

Q: Yes, good afternoon. My name is David Warm. I'm with the Mid-America Regional Council in the Kansas City area. In our case, we are non-classifiable because of a data anomaly. We are in compliance, but expect to fall out of attainment sometime this summer, if we have a typical summer. My question is: when a region falls out of attainment, what is the timetable and more importantly what flexibility do we have in the menu of options that we pursue and commit to to come back into compliance?

MR. SIMONS: John, this is probably a question for you.

MR. SILVASI: Yes. The timing for a new nonattainment area - and I guess this would be considered a new nonattainment area or a redesignation of the area to a nonattainment area - would key off of your new designation date, instead of keying off of June 15th of 2004. So that would be off-cycle, if you would. It depends on whether you would be a Subpart 1 or Subpart 2 area and classified. I would interpret our rule to say your timing would be basically the same as for other areas, but it would start a little later.

Q: And the flexibility and the menu of options would be pretty broad, as we understand it.

MR. SILVASI: Again, it depends upon whether you are/would be Subpart 1 or Subpart 2. If you're covered under Subpart 2, you would get a classification and that would determine the extent to which you would have mandatory measures.

If you were Subpart 1, you could choose whatever measures you thought would be most advantageous to bring you into attainment as expeditiously as practicable.

Q: Thank you.

MR. SIMONS: Another question?

Q: I'm Sandeep Dey, the executive director of the West Michigan Shoreline Regional Development Commission. Of course, my concern regards the transport issue. We are right on Lake Michigan, on the western side of Michigan and eastern shore of Lake Michigan. We are designated a moderate nonattainment area, but EPA studies and other scientific studies have shown that there's not much we can do locally that would affect our attainment status. In fact, we could shut down our economy and relocate the entire population of Muskegon County and we'd still be moderate nonattainment.

What type of flexibility is EPA willing to provide moderate nonattainment areas that scientific studies have shown are the result of transport? Do you have any comments on that? I think more than our county will be affected.

MR. SILVASI: It looks like I'll take this one.

MR. SIMONS: John's the lucky winner here.

MR. SILVASI: We recognize the situation you're in. Unfortunately, with the law and the Supreme Court's ruling, we don't see a way out of mandatory requirements if you're a classified area, except as I mentioned previously: if an argument can be supported that an absurd result would occur as a result of doing the Clean Air Act as it's written.

As an aside here for those of you who may have followed this - back in 1997 when we came out with this standard, we originally wanted - and this is what the lawsuit was all about - we wanted to implement this standard under the more flexible, less prescriptive Subpart 1 requirements. That's what we were sued over and unfortunately we lost. When we appealed to the Supreme Court, they ruled that we could not ignore the Subpart 2 requirements. So the most we felt we could do was offer this - or have a discussion about this opportunity to look at situations case-by-case. If complying with a mandatory requirement in a case such as yours would produce an absurd result, then perhaps we could waive the requirement, but it has to be done on a case-by-case basis.

I'm sure EPA will be working closely with areas that want to make this kind of a showing to see what we can support legally. On the other hand, a lot of people who commented on our rule that provided flexibility for a large portion - two-thirds of the areas do have a flexible approach - we got negative comment. A lot of people did not want us to provide that flexibility. A number of commenters wanted us to have everybody covered under the Subpart 2 requirements, so we're trying to strike a balance.

Q: I appreciate your comment regarding that and the provisions of the law. Just reflecting very briefly on the views of local elected officials - it becomes an economic development issue. You're putting one county that - because a monitor was placed there for a scientific study and, therefore, has been designated nonattainment - at a competitive disadvantage vis-à-vis another county that's maybe a few miles away. So, there's a genuine concern.

MR. SIMONS: I would say that's a concern with many areas. I'm going to use the moderator's prerogative here and ask one question of Rudy, because I've been asked this myself. If you have your transportation plan and you've been building your transportation system, and now you're a new nonattainment area and you've got to do conformity. What do you do? What are your options if your emissions from transportation don't fit into your emissions budget from the state air quality plan?

MR. KAPICHAK: Well, there're a couple of things areas can do. One of them is to look at changing the mix of projects that they have in their TIP. They could add some more projects that have emissions benefits. Going along with that, they could look at changing schedules for projects. And they could change the SIP to increase the budget.

MR. SIMONS: More questions? Please say who you are, your organization, and to whom the question is directed.

Q: Hello. My name is Peter Bella. I'm with the Alamo Area Council of Governments in San Antonio, Texas, where we've got an Early Action Compact in effect. Having heard that marginal and basic areas can choose for their emissions tests between build-no-greater-than-no-build or build-no-greater-than-2002, I was wondering whether the EAC areas can expect to see 2002 remain fixed for the transportation budget. In other words, if we fail at some future point, will 2002 still be the year we'd refer to?

MR. KAPICHAK: I believe 2002 will remain the base year for SIP planning for any EACs that fail. We've maintained 1990 as the base year for SIP planning for all the 1-hour ozone, carbon monoxide, and PM10 areas since then, so I think 2002 will remain the base year for EAC areas that fail.

MR. SIMONS: Why don't you go ahead and I'll get to this other question in a moment?

Q: Okay. I'm Wayne Hunsaker from Kentucky-retired. I want to know what the economic impact of the new regulations will be on the consumer.

MR. SILVASI: That's more toward the 8-hour rule - the 8-hour ozone standard.

We proposed basically two ways of implementing the 8-hour standard, a more flexible approach and a less flexible approach. For the most part, we've gone with the more flexible approach in the first phase of the rule. We're still working on the second phase, which has the more flexible and less flexible components we proposed.

If we did not publish this rule, the states would still be required to develop a state implementation plan. Once we set an air quality standard it starts a process that ends up with a state being required to develop a state implementation plan and demonstrate attainment by the attainment date. So we use that as a base case.

Even in the absence of our rule, [implementation of the 8-hour ozone standard] would still cost a fair amount of money. We costed out full implementation of the standard when we published it back in 1997. I don't have the figures right now. It was a lot of money. But what we did for our proposal is cost out the difference between the more flexible and the less flexible approach. We estimate the less flexible approach would cost $80 million more than the flexible approach.

I don't know if that completely answers your question. We're still trying to develop economic cost analyses for the elements of our second phase rule. So that's where we are right now.

MR. SIMONS: Thank you.

Next question please.

Q: This question is for the panel. My name is Diane Nguyen. I'm with the San Joaquin Council of Governments in Stockton, California, and this is a question regarding conformity. In California, our FHWA officials have told us - the MPO - that they will not take any federal action on a project, on the environmental document, or on permitting or final design plans unless that project has been conformed.

The dilemma is many MPOs use that phase - final design and environmental - to flesh out project scopes, timing, and schedule and determine if it is something that would move forward to the construction phase. So in fact, this determination by FHWA, or this directive, is tying our hands in that we can't proceed on environmental unless a project has construction conformed in the RTP.

Does this finding make sense to you? Is it a correct interpretation of the conformity rules? If so, is it being applied to other states consistently?

MR. JENSEN: I can take that. That's not just from the California division. That's part of the conformity rule that details how projects have to be found to conform before Federal Highways can approve them. The exceptions to that are preliminary engineering and preliminary environmental work that can be done as exempt projects. But for final environmental approval, final design, right of way, and construction there has to be a conformity determination before we can make those approvals.

So California is being consistent with how it's being implemented elsewhere.


Q: Okay, thank you.

MR. SIMONS: Is there another question from the audience? Yes? Let's take those first.

Q: First I'd like to thank you for being here today. My name is Dennis Smith. I'm the executive director of the Maricopa Association of Governments in Phoenix. I noticed on a slide here today we have 120+ new ozone areas and 100+ new PM2.5 areas. We do not believe the Phoenix area will be in nonattainment of the PM2.5 standard, but we are a PM10 nonattainment area.

I would like to know how the new apportionment formula for CMAQ is going to address PM10, because our TIP is addressing that pollutant. We're in serious nonattainment of that standard. We're paving dirt roads, funding street sweepers. We're dealing with PM10. How is the reauthorization going to deal with PM10?

MR. SIMONS: That would be a question for Jim, I think.

MR. THORNE: Right. The answer is: we don't really know yet. It's not part of the proposed apportionment formula. When the House and Senate conferees come up with the final transportation bill, which will include the apportionment formula for CMAQ, they will address that issue.

Q: So if it's not dealt with, then the projects we have in our five-year TIP may not be funded?

MR. THORNE: You may not get additional money for PM10, but if it's transportation-related you can spend CMAQ funds on PM projects in a nonattainment or maintenance area.

Q: Right now our CMAQ funding is about 50 percent of our funding, so it would be significant if PM10 is not addressed.

Thank you.

MR. SIMONS: Another? No? Then let's go to this one from Rebecca Ohler from the New Hampshire Department of Environmental Services. Rebecca says, "for the new 8-hour standard we must use 2002 baseline. Okay? We're using MOBILE6.2, as required. EPA has said something about the chip reflash issue. I think that this is a technology issue and EPA is going to be issuing guidance that will change our emission factors used to establish the baseline. Exclamation point. We're in a bind now. Can this be reconciled?"

MR. KAPICHAK: Well, I don't think anybody up here on the panel is actually the right person to give the complete answer. I know a little bit, so I'll try to say something.

Chip reflash refers to heavy-duty diesel vehicles manufactured in the 1990s that essentially didn't comply with emission standards for nitrogen oxides once they got out on the road. One thing EPA worked out with manufacturers is that under certain circumstances they would have their emission control systems reprogrammed, which is called reflash.

From what we know, it's probably not occurring at the rate we anticipated when we calculated emission factors using MOBILE. EPA is thinking about how to address it. At this point, no decision has been made on what to do, but guidance is going to be issued in the not too distant future.

MR. SIMONS: So they should proceed with MOBILE6.2 and do the emissions as they are right now until EPA comes out with further guidance.

Any more questions? Oh, one more question here?

Q: Hi. I'm Cathy Stephens with the Capital Area MPO in Austin, Texas. This is a question relating to CMAQ. We are an Early Action Compact area; therefore, we are not eligible to get CMAQ money. We have been trying in our early action compact to implement some transportation emission reduction measures and have tried to fund those with STP money. We ran into some eligibility issues.

I wonder if there's any chance that STP eligibility will be changed so that anything eligible for CMAQ would also be eligible for STP.

MR. THORNE: I don't know the answer to that question. I guess it's going to depend on what happens with the House and Senate conferees in the final determination of the transportation bill, but I'm not aware of discussions on that.

MR. JENSEN: I would say right now the whole issue of EAC areas receiving CMAQ funds is a hot issue. It's being discussed in Congress as they discuss those bills, but unless they do something about it we can't extend eligibility to EAC areas.

MR. SIMONS: We're going to have to go. For our television audience, our program's coming to an end here due to the time constraints. Please join me in thanking John, Rudy, Gary, and Jim for taking the time to join us today. On behalf of NARC we thank all our viewers and hope you've learned something from our guests who have shared this vital information on planning for air quality.

Please remember to fill out your evaluations and fax them to NARC at 202-986-1032.

Thank you very much. (Applause.)


Updated: 7/6/2011
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