[Code of Federal Regulations]
[Title 40, Volume 18]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR93.109]
[Page 553-557]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 93--DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL
IMPLEMENTATION PLANS--Table of Contents
Subpart A--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
(a) In order for each transportation plan, program, and FHWA/FTA
project to be found to conform, the MPO and DOT must demonstrate that
the applicable criteria and procedures in this subpart are satisfied,
and the MPO and DOT must comply with all applicable conformity
requirements of implementation plans and of court orders for the area
which pertain specifically to conformity. The criteria for making
conformity determinations differ based on the action under review
(transportation plans, TIPs, and FHWA/FTA projects), the relevant
pollutant(s), and the status of the implementation plan.
(b) Table 1 in this paragraph indicates the criteria and procedures
in Secs. 93.110 through 93.119 which apply for transportation plans,
TIPs, and FHWA/FTA projects. Paragraphs (c) through (f) of this section
explain when the budget, emission reduction, and hot spot tests are
required for each pollutant. Paragraph (g) of this section addresses
isolated rural nonattainment and maintenance areas. Table 1 follows:
[[Page 554]]
Table 1--Conformity Criteria
------------------------------------------------------------------------
------------------------------------------------------------------------
All Actions at all times:
Sec. 93.110 Latest planning assumptions
Sec. 93.111 Latest emissions model
Sec. 93.112 Consultation
Transportation Plan:
Sec. 93.113(b) TCMs
Sec. 93.118 or Sec. 93.119 Emissions budget or Emission
reduction
TIP:
Sec. 93.113(c) TCMs
Sec. 93.118 or Sec. 93.119 Emissions budget or Emission
reduction
Project (From a Conforming Plan and
TIP):
Sec. 93.114 Currently conforming plan and
TIP
Sec. 93.115 Project from a conforming plan
and TIP
Sec. 93.116 CO and PM10 hot spots
Sec. 93.117 PM10 control measures
Project (Not From a Conforming Plan and
TIP):
Sec. 93.113(d) TCMs
Sec. 93.114 Currently conforming plan and
TIP
Sec. 93.116 CO and PM10 hot spots
Sec. 93.117 PM10 control measures
Sec. 93.118 or Sec. 93.119 Emissions budget or Emission
reduction
------------------------------------------------------------------------
(c) Ozone nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in ozone nonattainment and
maintenance areas conformity determinations must include a demonstration
that the budget and/or emission reduction tests are satisfied as
described in the following:
(1) In ozone nonattainment and maintenance areas the budget test
must be satisfied as required by Sec. 93.118 for conformity
determinations made:
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(2) In ozone nonattainment areas that are required to submit a
control strategy implementation plan revision (usually moderate and
above areas), the emission reduction tests must be satisfied as required
by Sec. 93.119 for conformity determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan.
(3) An ozone nonattainment area must satisfy the emission reduction
test for NOX, as required by Sec. 93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or Phase I
attainment demonstration that does not include a motor vehicle emissions
budget for NOX. The implementation plan will be considered to
establish a motor vehicle emissions budget for NOX if the
implementation plan or plan submission contains an explicit
NOX motor vehicle emissions budget that is intended to act as
a ceiling on future NOX emissions, and the NOX
motor vehicle emissions budget is a net reduction from NOX
emissions levels in 1990.
(4) Ozone nonattainment areas that have not submitted a maintenance
plan and that are not required to submit a control strategy
implementation plan revision (usually marginal and below areas) must
satisfy one of the following requirements:
(i) The emission reduction tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the submitted motor vehicle emissions budget(s) (as
described in paragraph (c)(1) of this section).
(5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,
moderate and above ozone nonattainment areas with three years of clean
data that have not
[[Page 555]]
submitted a maintenance plan and that EPA has determined are not subject
to the Clean Air Act reasonable further progress and attainment
demonstration requirements must satisfy one of the following
requirements:
(i) The emission reduction tests as required by Sec. 93.119;
(ii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions budgets in the submitted control strategy
implementation plan (subject to the timing requirements of paragraph
(c)(1) of this section); or
(iii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are established
by the EPA rulemaking that determines that the area has clean data.
(d) CO nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in CO nonattainment and
maintenance areas conformity determinations must include a demonstration
that the hot spot, budget and/or emission reduction tests are satisfied
as described in the following:
(1) FHWA/FTA projects in CO nonattainment or maintenance areas must
satisfy the hot spot test required by Sec. 93.116(a) at all times. Until
a CO attainment demonstration or maintenance plan is approved by EPA,
FHWA/FTA projects must also satisfy the hot spot test required by
Sec. 93.116(b).
(2) In CO nonattainment and maintenance areas the budget test must
be satisfied as required by Sec. 93.118 for conformity determinations
made:
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(3) Except as provided in paragraph (d)(4) of this section, in CO
nonattainment areas the emission reduction tests must be satisfied as
required by Sec. 93.119 for conformity determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan.
(4) CO nonattainment areas that have not submitted a maintenance
plan and that are not required to submit an attainment demonstration
(e.g., moderate CO areas with a design value of 12.7 ppm or less or not
classified CO areas) must satisfy one of the following requirements:
(i) The emission reduction tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the submitted motor vehicle emissions budget(s) (as
described in paragraph (d)(2) of this section).
(e) PM10 nonattainment and maintenance areas. In addition
to the criteria listed in Table 1 in paragraph (b) of this section that
are required to be satisfied at all times, in PM10
nonattainment and maintenance areas conformity determinations must
include a demonstration that the hot spot, budget and/or emission
reduction tests are satisfied as described in the following:
(1) FHWA/FTA projects in PM10 nonattainment or
maintenance areas must satisfy the hot spot test required by
Sec. 93.116(a).
(2) In PM10 nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for conformity
determinations made:
[[Page 556]]
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(3) In PM10 nonattainment areas the emission reduction
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes;
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan; or
(iii) If the submitted implementation plan revision is a
demonstration of impracticability under CAA section 189(a)(1)(B)(ii) and
does not demonstrate attainment.
(f) NO2 nonattainment and maintenance areas. In addition
to the criteria listed in Table 1 in paragraph (b) of this section that
are required to be satisfied at all times, in NO2
nonattainment and maintenance areas conformity determinations must
include a demonstration that the budget and/or emission reduction tests
are satisfied as described in the following:
(1) In NO2 nonattainment and maintenance areas the budget
test must be satisfied as required by Sec. 93.118 for conformity
determinations made:
(i) 45 days after a control strategy implementation plan revision or
maintenance plan has been submitted to EPA, unless EPA has declared the
motor vehicle emissions budget inadequate for transportation conformity
purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(2) In NO2 nonattainment areas the emission reduction
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) During the first 45 days after a control strategy implementation
plan revision or maintenance plan has been submitted to EPA, unless EPA
has declared a motor vehicle emissions budget adequate for
transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
implementation plan or a previously submitted control strategy
implementation plan revision or maintenance plan.
(g) Isolated rural nonattainment and maintenance areas. This
paragraph applies to any nonattainment or maintenance area (or portion
thereof) which does not have a metropolitan transportation plan or TIP
and whose projects are not part of the emissions analysis of any MPO's
metropolitan transportation plan or TIP. This paragraph does not apply
to ``donut'' areas which are outside the metropolitan planning boundary
and inside the nonattainment/maintenance area boundary.
(1) FHWA/FTA projects in all isolated rural nonattainment and
maintenance areas must satisfy the requirements of Secs. 93.110, 93.111,
93.112, 93.113(d), 93.116, and 93.117. Until EPA approves the control
strategy implementation plan or maintenance plan for a rural CO
nonattainment or maintenance area, FHWA/FTA projects must also satisfy
the requirements of Sec. 93.116(b) (``Localized CO and PM10
violations (hot spots)'').
(2) Isolated rural nonattainment and maintenance areas are subject
to the budget and/or emission reduction tests as described in paragraphs
(c) through
[[Page 557]]
(f) of this section, with the following modifications:
(i) When the requirements of Secs. 93.118 and 93.119 apply to
isolated rural nonattainment and maintenance areas, references to
``transportation plan'' or ``TIP'' should be taken to mean those
projects in the statewide transportation plan or statewide TIP which are
in the rural nonattainment or maintenance area.
(ii) In isolated rural nonattainment and maintenance areas that are
subject to Sec. 93.118, FHWA/FTA projects must be consistent with motor
vehicle emissions budget(s) for the years in the timeframe of the
attainment demonstration or maintenance plan. For years after the
attainment year (if a maintenance plan has not been submitted) or after
the last year of the maintenance plan, FHWA/FTA projects must satisfy
one of the following requirements:
(A) Sec. 93.118;
(B) Sec. 93.119 (including regional emissions analysis for
NOX in all ozone nonattainment and maintenance areas,
notwithstanding Sec. 93.119(d)(2)); or
(C) As demonstrated by the air quality dispersion model or other air
quality modeling technique used in the attainment demonstration or
maintenance plan, the FHWA/FTA project, in combination with all other
regionally significant projects expected in the area in the timeframe of
the statewide transportation plan, must not cause or contribute to any
new violation of any standard in any areas; increase the frequency or
severity of any existing violation of any standard in any area; or delay
timely attainment of any standard or any required interim emission
reductions or other milestones in any area. Control measures assumed in
the analysis must be enforceable.
(iii) The choice of requirements in paragraph (g)(2)(ii) of this
section and the methodology used to meet the requirements of paragraph
(g)(2)(ii)(C) of this section must be determined through the interagency
consultation process required in Sec. 93.105(c)(1)(vii) through which
the relevant recipients of title 23 U.S.C. or Federal Transit Laws
funds, the local air quality agency, the State air quality agency, and
the State department of transportation should reach consensus about the
option and methodology selected. EPA and DOT must be consulted through
this process as well. In the event of unresolved disputes, conflicts may
be escalated to the Governor consistent with the procedure in
Sec. 93.105(d), which applies for any State air agency comments on a
conformity determination.