Proposed Text
CHAPTER 150
REGULATION FOR TRANSPORTATION CONFORMITY (REPEALED)
Part I
General Definitions
9VAC5-150-10. General. (Repealed.)
A. For the purpose of this chapter and subsequent
amendments or any orders issued by the board, the words or terms shall have the
meanings given them in 9VAC5-150-20.
B. Unless specifically defined in the Virginia Air
Pollution Control Law or in this chapter, terms used shall have the meanings
given them by the federal Clean Air Act, Titles 23 and 49 of the United States
Code, other U.S. Environmental Protection Agency regulations, other USDOT
regulations, 9VAC5-170-20 (definitions, Regulation for General Administration),
or commonly ascribed to them by recognized authorities, in that order of
priority.
9VAC5-150-20. Terms defined. (Repealed.)
"Administrator" means the Administrator of the
Environmental Protection Agency (EPA) or an authorized representative.
"Ambient air" means that portion of the
atmosphere, external to buildings, to which the general public has access.
"Applicable implementation plan" means the
portion or portions of the state implementation plan, or the most recent
revision thereof, which has been approved under § 110 of the federal Clean Air
Act, or promulgated under § 110(c) of the federal Clean Air Act, or promulgated
or approved pursuant to regulations promulgated under § 301(d) of the federal
Clean Air Act and which implements the relevant requirements of the federal
Clean Air Act.
"Board" means the State Air Pollution Control
Board or its designated representative.
"Cause or contribute to a new violation" means,
with respect to a project:
1. To cause or contribute to a new violation of a standard
in the area substantially affected by the project or over a region which would
otherwise not be in violation of the standard during the future period in
question, if the project were not implemented; or
2. To contribute to a new violation in a manner that would
increase the frequency or severity of a new violation of a standard in the
area.
"Control strategy implementation plan revision"
means the applicable state implementation plan which contains specific
strategies for controlling the emissions of and reducing ambient levels of
pollutants in order to satisfy federal Clean Air Act requirements for
demonstrations of reasonable further progress and attainment (§§ 182(b)(1),
182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and §§
192(a) and 192(b) for nitrogen dioxide of the federal Clean Air Act).
"Control strategy period" means, with respect to
particulate matter (PM10), carbon monoxide (CO), nitrogen dioxide
(NO2), or any combination of the preceding, ozone precursors
(volatile organic compounds and oxides of nitrogen), that period of time after
EPA approves control strategy implementation plan revisions containing
strategies for controlling PM10, NO2, CO, ozone, or any
combination of the preceding as appropriate. This period ends when a state submits
and EPA approves a request under § 107(d) of the federal Clean Air Act for
redesignation to an attainment area.
"Criteria pollutant" means any pollutant for
which a national ambient air quality standard is established in 40 CFR Part 50.
"DEQ" means any employee or other representative
of the Virginia Department of Environmental Quality, as designated by the
director.
"DEQ Director" means the Director of the Virginia
Department of Environmental Quality or a designated representative.
"Design concept" means the type of facility
identified by the project, e.g., freeway, expressway, arterial highway,
grade-separated highway, reserved right-of-way rail transit, mixed-traffic rail
transit, exclusive busway, etc.
"Design scope" means the design aspects which
will affect the proposed facility's impact on regional emissions, usually as
they relate to vehicle or person carrying capacity and control, e.g., number of
lanes or tracks to be constructed or added, length of project, signalization,
access control including approximate number and location of interchanges,
preferential treatment for high-occupancy vehicles, etc.
"Emergency" means a situation that immediately
and unreasonably affects, or has the potential to immediately and unreasonably
affect, public health, safety, or welfare; the health of animal or plant life;
or property, whether used for recreational, commercial, industrial,
agricultural, or other reasonable use.
"EPA" means the U.S. Environmental Protection
Agency.
"Facility" means something that is built,
installed, or established to serve a particular purpose; includes, but is not
limited to, buildings, installations, public works, businesses, commercial and
industrial plants, shops and stores, heating and power plants, apparatus,
processes, operations, structures, and equipment of all types.
"Federal Clean Air Act" means 42 USC 7401 et seq.
"FHWA" means the Federal Highway Administration
of U.S. Department of Transportation (USDOT).
"FHWA/FTA project" means any highway or transit
project which is proposed to receive funding assistance and approval through
the Federal-Aid Highway Program or the Federal Mass Transit Program, or
requires Federal Highway Administration (FHWA) or Federal Transit
Administration (FTA) approval for some aspect of the project, such as
connection to an interstate highway or deviation from applicable design
standards on the interstate system.
"FTA" means the Federal Transit Administration of
USDOT.
"Forecast period" means, with respect to a transportation
plan, the period covered by the transportation plan pursuant to 23 CFR Part
450.
"Highway project" means an undertaking to
implement or modify a highway facility or highway-related program. Such an
undertaking consists of all required phases necessary for implementation. For
analytical purposes, it shall be defined sufficiently to:
1. Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;
2. Have independent utility or significance, i.e., be usable
and be a reasonable expenditure even if no additional transportation
improvements in the area are made; and
3. Not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements.
"Horizon year" means a year for which the
transportation plan describes the envisioned transportation system according to
9VAC5-150-40.
"Hot-spot analysis" means an estimation of likely
future localized CO and PM10 pollutant concentrations and a
comparison of those concentrations to the national ambient air quality
standards. Pollutant concentrations to be estimated should be based on the
total emissions burden which may result from the implementation of a single,
specific project, summed together with future background concentrations (which
can be estimated using the ratio of future to current traffic multiplied by the
ratio of future to current emission factors) expected in the area. The total
concentration shall be estimated and analyzed at appropriate receptor locations
in the area substantially affected by the project. Hot-spot analysis assesses
impacts on a scale smaller than the entire nonattainment or maintenance area,
including, for example, congested roadway intersections and highways or transit
terminals, and uses an air quality dispersion model to determine the effects of
emissions on air quality.
"Incomplete data area" means any ozone
nonattainment area which the U.S. Environmental Protection Agency has
classified, in 40 CFR Part 81, as an incomplete data area.
"Increase the frequency or severity" means to
cause a location or region to exceed a standard more often or to cause a
violation at a greater concentration than previously existed or would otherwise
exist, or both, during the future period in question, if the project were not
implemented.
"ISTEA" means the Intermodal Surface
Transportation Efficiency Act of 1991 (Public Law 102-240).
"LPO" or "Lead Planning Organization"
means the organization certified by the state as being responsible for the
preparation of control strategy implementation plan revisions for nonattainment
areas under § 174 of the federal Clean Air Act. The organization includes
elected officials of local governments in the affected nonattainment area, and
representatives of DEQ, VDOT, the MPO(s) for the affected area, and other
agencies and organizations that have responsibilities for developing,
submitting or implementing any of the plan revisions. It is the forum for
cooperative air quality planning decision-making.
"Maintenance area" means any geographic region of
the United States previously designated nonattainment under § 107 of the
federal Clean Air Act and subsequently redesignated to attainment subject to
the requirement to develop a maintenance plan.
"Maintenance period" means, with respect to a
pollutant or pollutant precursor, that period of time beginning when the state
submits and the U.S. Environmental Protection Agency approves a request under §
107(d) of the federal Clean Air Act for redesignation to an attainment area,
and lasting for 20 years, unless the applicable implementation plan specifies
that the maintenance period shall last for more than 20 years.
"Maintenance plan" means a revision to the
applicable implementation plan, meeting the requirements of § 175A of the
federal Clean Air Act.
"MPO" or "Metropolitan Planning
Organization" means the organization designated as being responsible,
together with the state, for conducting the continuing, cooperative, and
comprehensive planning process under 23 USC § 134 and 49 USC § 1607. It is the
forum for cooperative transportation decision-making.
"Milestone" means as defined in §§ 182(g) and
189(c)(1) of the federal Clean Air Act. A milestone consists of an emissions
level and the date on which it is required to be achieved.
"Motor vehicle emissions budget" means that
portion of the total allowable emissions defined in a revision to the
applicable implementation plan (or in an implementation plan revision which was
endorsed by the Governor or a designee, subject to a public hearing, and
submitted to the U.S. Environmental Protection Agency, but not yet approved by
the U.S. Environmental Protection Agency) for a certain date for the purpose of
meeting reasonable further progress milestones or attainment or maintenance demonstrations,
for any criteria pollutant or its precursors, allocated by the applicable
implementation plan to highway and transit vehicles. The applicable
implementation plan for an ozone nonattainment area may also designate a motor
vehicle emissions budget for nitrogen oxides for a reasonable further progress
milestone year if the applicable implementation plan demonstrates that this
nitrogen oxides budget will be achieved with measures in the implementation
plan (as an implementation plan must do for volatile organic compound milestone
requirements). The applicable implementation plan for an ozone nonattainment
area includes a nitrogen oxides budget if nitrogen oxide reduction are being
substituted for reductions in volatile organic compounds in milestone years
required for reasonable further progress.
"National ambient air quality standards (NAAQS)"
means those standards established pursuant to § 109 of the federal Clean Air
Act.
"NEPA" means the National Environmental Policy
Act of 1969 as amended (42 USC § 4321 et seq.)
"NEPA process completion" means, with respect to
FHWA or FTA, the point at which there is a specific action to make a
determination that a project is categorically excluded, to make a Finding of No
Significant Impact, or to issue a record of decision on a Final Environmental
Impact Statement under NEPA.
"Nonattainment area" means any geographic region
of the United States which has been designated as nonattainment under § 107 of
the federal Clean Air Act for any pollutant for which a national ambient air
quality standard exists.
"Not-classified area" means any carbon monoxide
nonattainment area which the U.S. Environmental Protection Agency has not
classified as either moderate or serious.
"Owner" means any person, including bodies politic
and corporate, associations, partnerships, personal representatives, trustees
and committees, as well as individuals, who owns, leases, operates, controls,
or supervises a source or facility.
"Person" means an individual, corporation,
partnership, association, a governmental body, a municipal corporation, or any
other legal entity.
"Phase II of the interim period" means, with
respect to a pollutant or pollutant precursor, that period of time after
December 27, 1993, lasting until the earlier of the following:
1. Submission to the U.S. Environmental Protection Agency
of the relevant control strategy implementation plan revisions which have been
endorsed by the Governor or a designee and have been subject to a public
hearing, or
2. The date that the federal Clean Air Act requires
relevant control strategy implementation plans to be submitted to the U.S.
Environmental Protection Agency, provided the U.S. Environmental Protection
Agency has notified the state, MPO, and USDOT of the state's failure to submit
any such plans. The precise end of Phase II of the interim period is defined in
9VAC5-150-360.
"PM10" means particulate matter with
an aerodynamic diameter less than or equal to a nominal 10 micrometers as
measured by the applicable reference method or an equivalent method.
"Project" means a highway project or a transit
project.
"Protective finding" means a determination by the
EPA that the control strategy contained in a submitted control strategy implementation
plan revision would have been considered approvable with respect to
requirements for emissions reductions if all committed measures had been
submitted in enforceable form as required by § 110(a)(2)(A) of the federal
Clean Air Act.
"Recipient of funds designated under Title 23 USC or
the Federal Transit Act" means any agency at any level of state, county,
city, or regional government that routinely receives Title 23 USC or Federal
Transit Act funds to construct FHWA/FTA projects, operate FHWA/FTA projects or
equipment, purchase equipment, or undertake other services or operations via
contracts or agreements. This definition does not include private landowners or
developers, or contractors or entities that are only paid for services or
products created by their own employees.
"Regionally significant project" means a
transportation project (other than an exempt project) that is on a facility
which serves regional transportation needs (such as access to and from the area
outside of the region, major activity centers in the region, major planned
developments such as new retail malls, sports complexes, etc., or
transportation terminals as well as most terminals themselves) and would
normally be included in the modeling of a metropolitan area's transportation
network, including at a minimum all principal arterial highways and all fixed
guideway transit facilities that offer an alternative to regional highway
travel.
"Rural transport ozone nonattainment area" means
an ozone nonattainment area that does not include, and is not adjacent to, any
part of a Metropolitan Statistical Area or, where one exists, a Consolidated
Metropolitan Statistical Area (as defined by the United States Bureau of the
Census) and is classified under § 182(h) of the federal Clean Air Act as a
rural transport area.
"Source" means any one or combination of the
following: buildings, structures, facilities, installations, articles,
machines, equipment, landcraft, watercraft, aircraft, or other contrivances
which contribute, or may contribute, either directly or indirectly to air
pollution. Any activity by any person that contributes, or may contribute,
either directly or indirectly to air pollution, including, but not limited to,
open burning, generation of fugitive dust or emissions, and cleaning with
abrasives or chemicals.
"Standard" means a national ambient air quality
standard.
"State Implementation Plan" means the plan,
including the most recent revision thereof, which has been approved or
promulgated by the administrator, U.S. Environmental Protection Agency, under §
110 of the federal Clean Air Act, and which implements the requirements of §
110.
"Submarginal area" means any ozone nonattainment
area which the U.S. Environmental Protection Agency has classified as
submarginal in 40 CFR Part 81.
"Transit" is mass transportation by bus, rail, or
other conveyance which provides general or special service to the public on a
regular and continuing basis. It does not include school buses or charter or
sightseeing services.
"Transit project" means an undertaking to
implement or modify a transit facility or transit-related program; purchase
transit vehicles or equipment; or provide financial assistance for transit
operations. It does not include actions that are solely within the jurisdiction
of local transit agencies, such as changes in routes, schedules, or fares. It
may consist of several phases. For analytical purposes, it shall be defined
inclusively enough to:
1. Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;
2. Have independent utility or independent significance,
i.e., be a reasonable expenditure even if no additional transportation
improvements in the area are made; and
3. Not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements.
"Transitional area" means any ozone nonattainment
area which the U.S. Environmental Protection Agency has classified as
transitional in 40 CFR Part 81.
"Transitional period" means, with respect to a
pollutant or pollutant precursor, that period of time which begins after
submission to the U.S. Environmental Protection Agency of the relevant control
strategy implementation plan revision which has been endorsed by the Governor
or a designee and has been subject to a public hearing. The transitional period
lasts until the U.S. Environmental Protection Agency takes final approval or
disapproval action on the control strategy implementation plan submission or
finds it to be incomplete. The precise beginning and end of the transitional
period is defined in 9VAC5-150-360.
"Transportation control measure (TCM)" means any
measure that is specifically identified and committed to in the applicable
state implementation plan that is either one of the types listed in § 108 of
the federal Clean Air Act, or any other measure for the purpose of reducing
emissions or concentrations of air pollutants from transportation sources by
reducing vehicle use or changing traffic flow or congestion conditions.
Notwithstanding the above, vehicle technology-based, fuel-based, and
maintenance-based measures which control the emissions from vehicles under
fixed traffic conditions are not transportation control measures.
"Transportation improvement program (TIP)" means
a staged, multiyear, intermodal program of transportation projects covering a
metropolitan planning area which is consistent with the metropolitan
transportation plan, and developed pursuant to 23 CFR Part 450.
"Transportation plan" means the official
intermodal metropolitan transportation plan that is developed through the
metropolitan planning process for the metropolitan planning area, developed
pursuant to 23 CFR Part 450.
"Transportation project" means a highway project
or a transit project.
"USDOT" means the U.S. Department of
Transportation.
"VDOT" means the Virginia Department of
Transportation.
"VDRPT" means the Virginia Department of Rail and
Public Transportation.
"Virginia Air Pollution Control Law" means Chapter
13 (§ 10.1-1300 et seq.) of Title 10.1 of the Code of Virginia.
"Welfare" means that language referring to
effects on welfare includes, but is not limited to, effects on soils, water,
crops, vegetation, man-made materials, animals, wildlife, weather, visibility
and climate, damage to and deterioration of property, and hazards to
transportation, as well as effects on economic values and on personal comfort
and well being.
Part II
General Provisions
9VAC5-150-30. Applicability. (Repealed.)
A. The provisions of this chapter, unless specified
otherwise, shall apply to the following actions:
1. Except as provided for in subsection C of this section or
9VAC5-150-420, conformity determinations are required for:
a. The adoption, acceptance, approval, or support of
transportation plans developed pursuant to 23 CFR Part 450 or 49 CFR Part 613
by a MPO or USDOT;
b. The adoption, acceptance, approval, or support of TIPs
developed pursuant to 23 CFR Part 450 or 49 CFR Part 613 by a MPO or USDOT; and
c. The approval, funding, or implementation of FHWA/FTA
projects.
2. Conformity determinations are not required under this
regulation for individual projects which are not FHWA/FTA projects. However,
9VAC5-150-370 applies to the projects if they are regionally significant.
3. This chapter shall be effective on and apply to
conformity determinations for which the final decision is made on or after the
effective date of the approval of this regulation by EPA.
B. The provisions of this chapter, unless specified
otherwise, shall apply to the following geographic areas:
1. The provisions of this chapter shall apply in all
nonattainment and maintenance areas for transportation-related criteria
pollutants for which the area is designated nonattainment or has a maintenance
plan.
2. The provisions of this chapter apply with respect to
emissions of the following criteria pollutants: ozone, carbon monoxide,
nitrogen dioxide, and particulate matter (PM10).
3. The provisions of this chapter apply with respect to
emissions of the following precursor pollutants:
a. Volatile organic compounds and nitrogen oxides in ozone
areas;
b. Nitrogen oxides in nitrogen dioxide areas; and
c. Volatile organic compounds, nitrogen oxides, and PM10
in PM10 areas if:
(1) During the interim period, the EPA Regional
Administrator or the DEQ Director has made a finding that
transportation-related precursor emissions within the nonattainment area are a
significant contributor to the PM10 nonattainment problem and has so
notified the MPO and USDOT; or
(2) During the transitional, control strategy, and
maintenance periods, the applicable implementation plan (or implementation plan
submission) establishes a budget for the emissions as part of the reasonable
further progress, attainment or maintenance strategy.
C. The applicability of this chapter, unless specified
otherwise, shall be subject to the following limitations:
1. Projects subject to this chapter for which the NEPA
process and a conformity determination have been completed by FHWA or FTA may
proceed toward implementation without further conformity determinations if one
of the following major steps has occurred within the past three years: NEPA
process completion; start of final design; acquisition of a significant portion
of the right-of-way; or approval of the plans, specifications and estimates.
All phases of such projects which were considered in the conformity
determination are also included, if those phases were for the purpose of
funding, final design, right-of-way acquisition, construction, or any
combination of these phases.
2. A new conformity determination for the project shall be
required if there is a significant change in project design concept and scope,
if a supplemental environmental document for air quality purposes is initiated,
or if no major steps to advance the project have occurred within the past three
years.
D. A grace period for new nonattainment areas is allowed
for areas or portions of areas which have been in attainment for either ozone,
CO, PM10, or NOX since 1990 and are subsequently
redesignated to nonattainment for any of these pollutants. The provisions of
this chapter shall not apply for such pollutant for 12 months following the
date of final designation to nonattainment.
9VAC5-150-40. Authority of board and DEQ. (Repealed.)
A. No provision of this chapter shall limit the power of
the board to take such appropriate action as necessary to control and abate air
pollution in emergency situations.
B. In accordance with the Virginia Air Pollution Control
Law and the Administrative Process Act and by the adoption of this chapter, the
board confers upon the DEQ the administrative, enforcement and decision making
authority enumerated in this chapter.
C. The board reserves the right to exercise its authority
in any of the powers delegated in this chapter should it choose to do so.
D. The DEQ Director has final authority to adjudicate
contested decisions of subordinates delegated powers by him prior to appeal of
the decisions to the circuit court or consideration by the board.
9VAC5-150-80. Relationship of state regulations to federal
regulations. (Repealed.)
A. In order for the Commonwealth to fulfill its obligations
under the federal Clean Air Act, some provisions of this chapter are required
to be approved by the U.S. Environmental Protection Agency and when approved
those provisions become federally enforceable.
B. In cases where this chapter specifies that procedures or
methods shall be approved by, acceptable to, or determined by the board or DEQ
or other similar phrasing or specifically provide for decisions to be made by
the board or DEQ, it may be necessary to have the actions (approvals
determinations, exemptions, exclusions, or decisions) reviewed and confirmed as
acceptable or approved by the U.S. Environmental Protection Agency in order to
make them federally enforceable. Determination of which state actions require
federal confirmation or approval and the administrative mechanism for making
associated confirmation or approval decisions shall be made on a case-by-case
basis in accordance with U.S. Environmental Protection Agency regulations and
policy.
9VAC5-150-110. Priority. (Repealed.)
When assisting or approving any action with air
quality-related consequences, FHWA and FTA shall give priority to the
implementation of those transportation portions of an applicable implementation
plan prepared to attain and maintain the NAAQS. This priority shall be
consistent with statutory requirements for allocation of funds among states or
other jurisdictions.
9VAC5-150-120. Frequency of conformity determinations. (Repealed.)
A. Conformity determinations and conformity
redeterminations for transportation plans, TIPs, and FHWA/FTA projects shall be
made according to the requirements of this section and the applicable
implementation plan.
B. In addition to the requirements of subsection A of this
section, conformity determinations and conformity redeterminations for
transportation plans shall be made according to the following requirements:
1. Each new transportation plan shall be found to conform
before the transportation plan is approved by the MPO or accepted by USDOT.
2. All transportation plan revisions shall be found to
conform before the transportation plan revisions are approved by MPO or
accepted by USDOT, unless the revision merely adds or deletes exempt projects
listed in 9VAC5-150-420. The conformity determination shall be based on the
transportation plan and the revision taken as a whole.
3. Conformity of existing transportation plans shall be
redetermined within 18 months of the following, or the existing conformity
determination shall lapse:
a. November 24, 1993;
b. EPA approval of an implementation plan revision which:
(1) Establishes or revises a transportation-related
emissions budget (as required by §§ 175A(a), 182(b)(1), 182(c)(2)(A),
182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and §§ 192(a) and
192(b), for nitrogen dioxide of the federal Clean Air Act); or
(2) Adds, deletes, or changes TCMs; and
c. EPA promulgation of an implementation plan which
establishes or revises a transportation-related emissions budget or adds,
deletes, or changes TCMs.
4. In any case, conformity determinations shall be made no
less frequently than every three years, or the existing conformity
determination will lapse.
C. In addition to the requirements of subsection A of this
section, conformity determinations and conformity redeterminations for
transportation improvement programs shall be made according to the following
requirements:
1. A new TIP shall be found to conform before the TIP is
approved by the MPO or accepted by USDOT.
2. A TIP amendment requires a new conformity determination
for the entire TIP before the amendment is approved by the MPO or accepted by USDOT,
unless the amendment merely adds or deletes exempt projects listed in
9VAC5-150-420.
3. After a MPO adopts a new or revised transportation plan,
conformity shall be redetermined by the MPO and USDOT within six months from
the date of adoption of the plan, unless the new or revised plan merely adds or
deletes exempt projects listed in 9VAC5-150-420. Otherwise, the existing
conformity determination for the TIP shall lapse.
4. In any case, conformity determinations shall be made no
less frequently than every three years or the existing conformity determination
shall lapse.
D. In addition to the requirements of subsection A of this
section, conformity determinations and conformity redeterminations for FHWA/FTA
projects shall be made according to the following requirements:
FHWA/FTA projects shall be found to conform before they are
adopted, accepted, approved, or funded. Conformity shall be redetermined for
any FHWA/FTA project if none of the following major steps has occurred within
the past three years: NEPA process completion; start of final design;
acquisition of a significant portion of the right-of-way; or approval of the
plans, specifications and estimates.
9VAC5-150-130. Consultation. (Repealed.)
A. The MPOs, LPOs, DEQ, VDOT, and VDRPT shall undertake the
procedures prescribed in this section for interagency consultation, conflict
resolution and public consultation with each other and with local or regional
offices of EPA, FHWA, and FTA on the development of control strategy
implementation plan revisions, the list of TCMs in the applicable
implementation plan, the unified planning work program under 23 CFR 450.314,
transportation plans, TIPs, and associated conformity determinations required
by this regulation.
B. Until EPA grants approval of this chapter, the MPOs, and
VDOT and VDRPT, prior to making conformity determinations, shall provide
reasonable opportunity for consultation with LPOs, DEQ and EPA on the issues in
subdivision D 1 of this subsection.
C. The provisions of this subsection shall be followed with
regard to general factors associated with interagency consultation.
1. Representatives of the MPOs, VDOT, VDRPT, FHWA, and FTA
shall undertake an interagency consultation process, in accordance with
subdivisions 1 and 3 of this subsection and subsection D of this section, with
the LPOs, DEQ and EPA on the development of the unified planning work program
under 23 CFR 450.314, transportation plans, TIPs, any revisions to the
preceding documents, and associated conformity determinations.
a. MPOs shall be the lead agencies responsible for
preparing the final document or decision and for assuring the adequacy of the
interagency consultation process with respect to the development of the unified
planning work program under 23 CFR 450.314, the transportation plan, the TIP,
and any amendments or revisions thereto. In the case of nonmetropolitan areas,
VDOT shall be the lead agency responsible for preparing the final document or
decision and for assuring the adequacy of the interagency consultation process
with respect to the development of the statewide transportation plan, the
statewide TIP, and any amendments or revisions thereto. The MPOs shall be the
lead agencies responsible for preparing the final document or decision and for
assuring the adequacy of the interagency consultation process with respect to
any determinations of conformity under this chapter for which the MPO is
responsible.
b. It shall be the affirmative responsibility of the lead
agency to initiate the process by notifying other participants, convene
meetings, assure that all relevant documents and information are supplied to
all participants in the consultation process in a timely manner, prepare summaries
of consultation meetings, maintain a written record of the consultation
process, provide final documents and supporting information to each agency
after approval or adoption, and to assure the adequacy of the interagency
consultation process with respect to the subject document or decision.
c. Regular consultation on major activities (such as the
development of a transportation plan, the development of a TIP, or any
determination of conformity on transportation plans or TIPs) shall include
meetings beginning on a date determined by the lead agency to be adequate to
meet the date a final document is required and continuing at frequency mutually
determined by the affected agencies. In addition, technical meetings shall be
convened as necessary.
d. Each lead agency in the consultation process shall
confer with all other agencies identified under subdivision 1 of this
subsection with an interest in the document to be developed, provide all
information to those agencies needed for meaningful input, solicit early and
continuing input from those agencies, and prior to taking any action, consider
the views of each agency and respond to those views in a timely, substantive
written manner prior to any final decision on the documents. The views and
written responses shall be made part of the record of any decision or action.
e. It shall be the responsibility of each agency specified
in subdivision 1 of this subsection, when not fulfilling the responsibilities
of lead agency, to confer with the lead agency and other participants in the
consultation process, review and comment as appropriate (including comments in
writing) on all proposed and final documents and decisions in a timely manner,
attend consultation and decision meetings, provide input on any area of substantive
expertise or responsibility, and provide technical assistance to the lead
agency or to the consultation process when requested.
2. Representatives of the LPOs, DEQ, and EPA shall
undertake an interagency consultation process, in accordance with subdivisions
2 and 3 of this subsection, with MPOs, VDOT, VDRPT, FHWA, and FTA on the
development of control strategy implementation plan revisions, the list of TCMs
in the applicable implementation plan, and any revisions to the proceeding
documents.
a. The DEQ, in conjunction with the LPOs, shall be the lead
agency responsible for preparing the final document or decision and for
assuring the adequacy of the interagency consultation process with respect to
the development of control strategy implementation plan revisions, the credits
associated with the list of TCMs in the applicable implementation plan, and any
amendments or revisions thereto.
b. It shall be the affirmative responsibility of the lead
agency to initiate the process by notifying other participants, convene
meetings, assure that all relevant documents and information are supplied to
all participants in the consultation process in a timely manner, prepare
minutes of consultation meetings, maintain a written record of the consultation
process, provide final documents and supporting information to each agency
after approval or adoption, and to assure the adequacy of the interagency
consultation process with respect to the subject document or decision.
c. Regular consultation on the development of any control
strategy implementation plan revision shall include meetings beginning on a
date determined by the lead agency to be adequate to meet the date a final
document is required and continuing at frequency mutually determined by the
affected agencies. In addition, technical meetings shall be convened as
necessary.
d. Each lead agency in the consultation process shall
confer with all other agencies identified under subdivision 1 of this subsection
with an interest in the document to be developed, provide all information to
those agencies needed for meaningful input, solicit early and continuing input
from those agencies, and prior to taking any action, consider the views of each
agency and respond to those views in a timely, substantive written manner prior
to any final decision on the documents. The views and written responses shall
be made part of the record of any decision or action.
e. It shall be the responsibility of each agency specified
in subdivision 1 of this subsection, when not fulfilling the responsibilities
of lead agency, to confer with the lead agency and other participants in the
consultation process, review and comment as appropriate (including comments in
writing) on all proposed and final documents and decisions in a timely manner,
attend consultation and decision meetings, provide input on any area of
substantive expertise or responsibility, and provide technical assistance to
the lead agency or to the consultation process when requested.
3. The specific roles and responsibilities of various
participants in the interagency consultation process shall be as follows:
a. The MPOs shall be responsible for the following:
(1) Developing metropolitan transportation plans and TIPs
in accordance with 23 CFR Part 450 and 49 CFR Part 613 and Intermodal Surface
Transportation and Efficiency Act.
(2) Adopting conformity determinations in conjunction with
the adoption of transportation plans and TIPs and any revisions to the documents.
(3) In cooperation with VDOT, with assistance from VDRPT:
(a) Developing conformity assessments and associated
documentation.
(b) Evaluating potential TCM projects and impacts.
(c) (i) Developing or approving transportation and related
socio-economic data and planning assumptions, or both, and (ii) providing the
data and assumptions for use in air quality analysis for SIP tracking and
conformity of transportation plans, TIPs and projects.
(d) Monitoring regionally significant projects.
(e) Providing technical and policy input into the
development of emissions budgets.
(f) Assuring the proper completion of transportation
modeling, regional emissions analyses and documentation of timely
implementation of TCMs needed for conformity assessments.
(g) Involving the DEQ and LPOs continuously in the process.
(h) Consulting with FHWA and FTA on (i) timely action on
final findings of conformity, after consultation with other agencies as
provided in this section; and (ii) guidance on conformity and the transportation
planning process to agencies in interagency consultation.
(i) Consulting with EPA on (i) review and approval of
updated motor vehicle emissions factors, emission inventories and budgets; and
(ii) guidance on conformity criteria and procedures to the agencies involved in
the interagency consultation process.
b. The VDOT, with assistance from the VDRPT, shall be
responsible for the following:
(1) Developing statewide transportation plans and statewide
TIPs.
(2) Providing demand forecasting and on-road mobile source
emission inventories.
(3) Circulating draft and final project environmental
documents to other agencies.
(4) Convening air quality technical review meetings on
specific projects as needed or when requested by other agencies.
(5) In cooperation with the MPOs:
(a) Developing conformity assessments and associated
documentation.
(b) Evaluating potential TCM projects and impacts.
(c) (i) Developing or approving transportation and related
socio-economic data and planning assumptions, or both, and (ii) providing the
data and assumptions for use in air quality analysis for SIP tracking and
conformity of transportation plans, TIPs and projects.
(d) Monitoring regionally significant projects.
(e) Providing technical and policy input into the
development of emissions budgets.
(f) Assuring the proper completion of transportation
modeling, regional emissions analyses and documentation of timely
implementation of TCMs need for conformity assessments.
(g) Involving the DEQ and LPOs continuously in the process.
(h) Consulting with FHWA and FTA on (i) timely action on
final findings of conformity, after consultation with other agencies as
provided in this section; and (ii) guidance on conformity and the transportation
planning process to agencies in interagency consultation.
(i) Consulting with EPA on (i) review and approval of
updated motor vehicle emissions factors, emission inventories and budgets; and
(ii) guidance on conformity criteria and procedures to the agencies involved in
the interagency consultation process.
c. The LPOs shall be responsible for the following:
(1) Developing emissions inventories and budgets.
(2) Developing control strategy implementation plan
revisions and maintenance plans.
(3) Providing a staff liaison to the MPOs for conformity
and to be responsive to MPO requests for information and technical guidance.
(4) Involving the MPOs, VDOT AND VDRPT continuously in the
process.
d. The DEQ shall be responsible for the following:
(1) Developing emissions inventories and budgets.
(2) Tracking attainment of air quality standards, and
emission factor model updates.
(3) Gaining final approval at state level for control
strategy implementation plan revisions and maintenance plans.
(4) Providing a staff liaison to the LPOs for conformity
and to be responsive to LPO requests for information and technical guidance.
(5) Involving the LPOs continuously in the process.
e. The FHWA and FTA shall be responsible for the following:
(1) Assuring timely action on final findings of conformity,
after consultation with other agencies as provided in this section; and
(2) Providing guidance on conformity and the transportation
planning process to agencies in interagency consultation.
f. The EPA shall be responsible for the following:
(1) Reviewing and approving updated motor vehicle emissions
factors.
(2) Providing guidance on conformity criteria and
procedures to agencies in interagency consultation.
(3) Assuring timely action on conformity analysis and
findings and SIP revisions.
D. The provisions of this subsection shall be followed with
regard to specific processes associated with interagency consultation.
1. An interagency consultation process involving the MPOs,
LPOs, DEQ, VDOT, VDRPT, EPA, FHWA, and FTA shall be undertaken for the
following:
a. Evaluating and choosing each model (or models) and
associated methods and assumptions to be used in hot-spot analyses and regional
emission analyses, including vehicle miles traveled (VMT) forecasting, to be
initiated by VDOT, in consultation with the MPOs, and conducted in accordance
with subdivisions C 1 and 3 of this section.
b. Determining which transportation projects should be
considered "regionally significant" for the purpose of regional
emission analysis (in addition to those functionally classified as principal
arterial or higher; or fixed guideway systems or extensions that offer an
alternative to regional highway travel), and which projects should be
considered to have a significant change in design concept and scope from the
transportation plan or TIP, to be initiated by VDOT, in consultation with the
MPOs, and conducted in accordance with subdivisions C 1 and 3 of this section.
c. Evaluating whether projects otherwise exempted from
meeting the requirements of 9VAC5-150-420 and 9VAC5-150-430, should be treated
as nonexempt in cases where potential adverse emissions impacts may exist for
any reason, to be initiated by VDOT, in consultation with the MPOs, and
conducted in accordance with subdivisions C 1 and 3 of this section.
d. Making a determination, as required by 9VAC5-150-210 C
1, whether past obstacles to implementation of TCMs that are behind the
schedule established in the applicable implementation plan have been identified
and are being overcome, and whether state and local agencies with influence
over approvals or funding for TCMs are giving maximum priority to approval or
funding for TCMs, to be initiated by VDOT as lead agency, in consultation with
the MPOs and VDRPT, and conducted in accordance with subdivisions C 1 and 3 of
this section. This consultation process shall also consider whether delays in
TCM implementation necessitate revisions to the applicable implementation plan
to remove TCMs or substitute TCMs or other emission reduction measures.
e. Notifying all parties to the consultation process of
transportation plan or TIP revisions or amendments which merely add or delete
exempt projects listed in 9VAC5-150-420, to be initiated by VDOT in
consultation with the MPOs, and conducted in accordance with subdivisions C 1
and 3 of this section.
f. Determining what forecast of vehicle miles traveled
(VMT) to use in establishing or tracking emissions budgets, developing
transportation plans, TIPs, or control strategy implementation plan revisions,
or making conformity determinations, to be initiated by VDOT, in consultation
with the MPOs, and in accordance with subdivisions C 1 and 3 of this section.
g. In cases where there are PM10 nonattainment
areas, VDOT, in consultation with the MPOs, shall initiate a process conducted
in accordance with subdivisions C 1 and 3 of this section to identify, as
required by 9VAC5-150-390 D, projects located at sites in PM10
nonattainment areas which have vehicle and roadway emission and dispersion
characteristics which are essentially identical to those sites which have
violations verified by monitoring, and therefore require quantitative PM10
hot-spot analysis.
2. An interagency consultation process in accordance with subsection
C of this section involving the MPOs, LPOs, DEQ, VDOT, and VDRPT shall be
undertaken for the following:
a. Evaluating events which may trigger new conformity
determinations in addition to those triggering events established by
9VAC5-150-340, to be initiated by VDOT, in consultation with the MPOs and DEQ,
and conducted in accordance with subdivisions C 1 and 3 of this section.
b. Consulting on emissions analysis for transportation
activities which cross the borders of MPOs or nonattainment areas, to be
initiated by VDOT in consultation with the MPOs, and conducted in accordance
with subdivisions C 1 and 3 of this section.
3. Where the metropolitan planning area does not include
the entire nonattainment or maintenance area, an interagency consultation
process in accordance with subdivisions C 1 and 3 of this section involving the
MPOs and VDOT shall be undertaken for cooperative planning and analysis for
purposes of determining conformity of all projects outside the metropolitan
area and within the nonattainment or maintenance area, to be initiate by VDOT,
in consultation with the MPOs, and in accordance with subdivisions C 1 and 3 of
this section.
4. To assure that plans for construction of regionally
significant projects which are not FHWA or FTA projects (including projects for
which alternative locations, design concept and scope, or the no-build option
are still being considered), including all those by recipients of funds
designated under Title 23 USC or the Federal Transit Act, are disclosed to the
MPO on a regular basis, and to assure that any changes to those plans are
immediately disclosed, an interagency consultation process shall be undertaken,
to be initiated by the MPO, in consultation with VDOT, and conducted in
accordance with subdivisions C 1 and 3 of this section involving the MPO, VDOT,
VDRPT, and recipients of funds designated under Title 23 USC or the Federal
Transit Act.
5. An interagency consultation process in accordance with
subdivisions C 1 and 3 of this section involving the MPOs and other recipients
of funds designated under Title 23 USC or the Federal Transit Act shall be
undertaken for developing assumptions regarding the location and design concept
and scope of projects which are disclosed to the MPO as required by subdivision
D 4 of this section but whose sponsors have not yet decided these features in
sufficient detail to perform the regional emissions analysis according to the
requirements of 9VAC5-150-380, to be initiated by the MPO, in consultation with
VDOT, and conducted in accordance with subdivisions C 1 and 3 of this section.
6. An interagency consultation process in accordance with
subdivisions C 1 and 3 of this section shall be undertaken for the design,
schedule, and funding of research and data collection efforts and model
developments in regional transportation (such as household or travel
transportation surveys) to be initiated by the MPO, in consultation with VDOT,
and conducted in accordance with subdivisions C 1 and 3 of this section.
E. The provisions of this subsection shall be followed with
regard to conflict resolution associated with interagency consultation.
1. Unresolved conflicts among state agencies, or between
state agencies and the MPO(s), or among MPO member jurisdictions, shall be
identified by a MPO or agency in writing to the other MPO, DEQ, VDOT, or VDRPT,
with copies to FHWA, FTA and EPA. The MPO's or agency's written notice shall:
a. Explain the nature of the conflict;
b. Review options for resolving the conflict;
c. Describe the MPO's or agency's proposal to resolve the
conflict;
d. Explain the consequences of not reaching a resolution;
and
e. Request that comments on the matter be received within
two weeks.
2. If the above action does not result in a resolution to
the conflict, either of the following shall apply:
a. If the conflict is between the MPOs or between the
MPO(s) and VDOT, or VDRPT or both, then the parties shall follow the
coordination procedures of 23 CFR 450.210.
b. If the conflict is between the MPO(s) or VDOT or VDRPT
and the DEQ and the conflict can not be resolved by the affected agency heads,
then the DEQ Director may elevate the conflict to the Governor in accordance
with the procedures of subdivision 3 of this subsection. If the DEQ Director
does not appeal to the Governor within 14 days as provided in subdivision 3 a
of this subsection, the MPO or VDOT or VDRPT may proceed with its final
conformity determination.
3. Appeals to the Governor by the DEQ Director under the
provisions of subdivision 2 b of this subsection shall be in accordance with
the following procedures:
a. The DEQ Director has 14 calendar days to appeal to the
Governor after the MPO(s) or VDOT or VDRPT has notified the DEQ Director of the
agency's or MPO's resolution of DEQ's comments. The notification to the DEQ
Director shall be in writing and shall be hand delivered. The 14 day clock
shall commence when VDOT or VDRPT or the MPO has confirmed receipt by the DEQ
Director of the agency's or MPO's resolution of the DEQ's comments.
b. The appeal to the Governor shall consist of the
following: the conformity determination and any supporting documentation; DEQ's
comments on the determination; the MPO(s) or VDOT or VDRPT resolution of DEQ's
comments; and DEQ's appeal document.
c. The DEQ shall provide a complete appeal package to the
MPO, VDOT and VDRPT within 24 hours of the time the appeal is filed with the
Governor's Office.
d. If the Governor does not concur with the conformity
determination, he may direct revision of the applicable implementation plan,
revision of the planned program of projects, revision of the conformity
analysis or any combination of the preceding.
e. If the Governor concurs with the conformity
determination made by the MPO and VDOT, the MPO and VDOT may proceed with the
final conformity determination.
f. The Governor may delegate his role in this process, but
not to the agency head or staff of DEQ, VDOT, VDRPT, or the Commonwealth Board
of Transportation.
4. Nothing in this section shall prevent the state agencies
and MPOs from making efforts upon their own initiative to obtain mutual
conflict resolution through conference or other appropriate means.
F. The provisions of this subsection shall be followed with
regard to public consultation.
1. The MPOs shall establish a proactive involvement process
which provides reasonable opportunity for review and comment prior to taking
formal action on a conformity determination for all transportation plans and
TIPs, consistent with the requirements of 23 CFR Part 450.
2. The MPOs shall address in writing public comments
regarding plans for a regionally significant project, not receiving FHWA or FTA
funding or approval, and how the project is properly reflected in the emission
analysis supporting a proposed conformity finding for a transportation plan or
TIP.
3. The MPOs shall also provide an opportunity for public
involvement in conformity determinations for projects where otherwise required
by law.
9VAC5-150-140. Content of transportation plans. (Repealed.)
A. Transportation plans adopted after January 1, 1995, in
serious, severe, or extreme ozone nonattainment areas and in serious carbon
monoxide nonattainment areas shall specifically describe the transportation system
envisioned for certain future years which shall be called horizon years.
1. The agency or organization developing the transportation
plan may choose any years to be horizon years, subject to the following
restrictions:
a. Horizon years may be no more than 10 years apart.
b. The first horizon year may be no more than 10 years from
the base year used to validate the transportation demand planning model.
c. If the attainment year is in the time span of the
transportation plan, the attainment year shall be a horizon year.
d. The last horizon year shall be the last year of the
transportation plan's forecast period.
2. For these horizon years:
a. The transportation plan shall quantify and document the
demographic and employment factors influencing expected transportation demand,
including land use forecasts, in accordance with implementation plan provisions
and 9VAC5-150-130;
b. The highway and transit system shall be described in
terms of the regionally significant additions or modifications to the existing
transportation network which the transportation plan envisions to be
operational in the horizon years. Additions and modifications to the highway
network shall be sufficiently identified to indicate intersections with
existing regionally significant facilities, and to determine their effect on
route options between transportation analysis zones. Each added or modified
highway segment shall also be sufficiently identified in terms of its design
concept and design scope to allow modeling of travel times under various
traffic volumes, consistent with the modeling methods for area-wide
transportation analysis in use by the MPO. Transit facilities, equipment, and
services envisioned for the future shall be identified in terms of design
concept, design scope, and operating policies sufficiently to allow modeling of
their transit ridership. The description of additions and modifications to the
transportation network shall also be sufficiently specific to show that there
is a reasonable relationship between expected land use and the envisioned
transportation system; and
c. Other future transportation policies, requirements,
services, and activities, including intermodal activities, shall be described.
B. Ozone or CO nonattainment areas which are reclassified
from moderate to serious shall meet the requirements of subsection A of this
section within two years from the date of reclassification.
C. Transportation plans for other areas shall meet the
requirements of subsection A of this section at least to the extent it has been
the previous practice of the MPO to prepare plans which meet those
requirements. Otherwise, transportation plans shall describe the transportation
system envisioned for the future specifically enough to allow determination of
conformity according to the criteria and procedures of 9VAC5-150-170 through
9VAC5-150-350.
D. The requirements of this section supplement other
requirements of applicable law or regulation governing the format or content of
transportation plans.
9VAC5-150-150. Relationship of transportation plan and TIP
conformity with the NEPA process. (Repealed.)
The degree of specificity required in the transportation
plan and the specific travel network assumed for air quality modeling do not
preclude the consideration of alternatives in the NEPA process or other project
development studies. Should the NEPA process result in a project with design
concept and scope significantly different from that in the transportation plan
or TIP, the project shall meet the criteria in 9VAC5-150-170 through
9VAC5-150-350 for projects not from a TIP before NEPA process completion.
9VAC5-150-160. Fiscal constraints for transportation plans
and TIPs. (Repealed.)
Transportation plans and TIPs shall be fiscally constrained
consistent with 23 CFR Part 450 in order to be found in conformity.
9VAC5-150-170. Criteria and procedures for determining
conformity of transportation plans, programs, and projects: General. (Repealed.)
A. In order to be found to conform, each transportation
plan, program, and FHWA/FTA project shall satisfy the applicable criteria and procedures
in 9VAC5-150-180 through 9VAC5-150-350 as listed in Table 1 in subsection B of
this section, and shall comply with all applicable conformity requirements of
implementation plans and of court orders for the area which pertain
specifically to conformity determination requirements. The criteria for making
conformity determinations differ based on the action under review
(transportation plans, TIPs, and FHWA/FTA projects), the time period in which
the conformity determination is made, and the relevant pollutant.
B. The following table indicates the criteria and
procedures in 9VAC5-150-180 through 9VAC5-150-350 which apply for each action
in each time period.
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9VAC5-150-180 The conformity determination shall be based on
the latest planning assumptions.
9VAC5-150-190 The conformity determination shall be based
on the latest emission estimation model available.
9VAC5-150-200 The MPO shall make the conformity
determination according to the consultation procedures of this regulation.
9VAC5-150-210 The transportation plan, TIP, or FHWA/FTA
project which is not from a conforming plan and TIP shall provide for the
timely implementation of TCMs from the applicable implementation plan.
9VAC5-150-220 There shall be a currently conforming
transportation plan and currently conforming TIP at the time of project
approval.
9VAC5-150-230 The project shall come from a conforming
transportation plan and program.
9VAC5-150-240 The FHWA/FTA project shall not cause or
contribute to any new localized CO or PM10 violations or increase
the frequency or severity of any existing CO or PM10 violations in
CO and PM10 nonattainment and maintenance areas.
9VAC5-150-250 The FHWA/FTA project shall comply with PM10
control measures in the applicable implementation plan.
9VAC5-150-260 The transportation plan shall be consistent
with the motor vehicle emissions budget(s) in the applicable implementation
plan or
implementation plan submission.
9VAC5-150-270 The TIP shall be consistent with the motor
vehicle emissions budget(s) in the applicable implementation plan or
implementation plan
submission.
9VAC5-150-280 The project which is not from a conforming
transportation plan and conforming TIP shall be consistent with the motor
vehicle emissions budget(s) in the applicable implementation plan or
implementation plan submission.
9VAC5-150-290 The FHWA/FTA project shall eliminate or
reduce the severity and number of localized CO violations in the area
substantially affected by the project (in CO nonattainment areas).
9VAC5-150-300 The transportation plan shall contribute to
emissions reductions in ozone and CO nonattainment areas.
9VAC5-150-310 The TIP shall contribute to emissions
reductions in ozone and CO nonattainment areas.
9VAC5-150-320 The project which is not from a conforming
transportation plan and TIP shall contribute to emissions reductions in ozone
and CO nonattainment areas.
9VAC5-150-330 The transportation plan shall contribute to
emission reductions or shall not increase emissions in PM10 and NO2
nonattainment areas.
9VAC5-150-340 The TIP shall contribute to emission
reductions or shall not increase emissions in PM10 and NO2
nonattainment areas. 9VAC5-150-350 The project which is not from a conforming transportation
plan and TIP shall contribute to emission reductions or shall not increase
emissions in PM10 and NO2.
9VAC5-150-180. Criteria and procedures: latest planning
assumptions. (Repealed.)
A. The conformity determination, with respect to all other
applicable criteria in 9VAC5-150-190 through 9VAC5-150-350, shall be based upon
the most recent planning assumptions in force at the time of the conformity
determination. This criterion applies during all periods. The conformity
determination shall satisfy the requirements of subsections B through F of this
section.
B. Assumptions shall be derived from the estimates of
current and future population, employment, travel, and congestion most recently
developed by the MPO or other agency authorized to make the estimates and
approved by the MPO. The conformity determination shall also be based on the
latest assumptions about current and future background concentrations.
C. The conformity determination for each transportation
plan and TIP shall discuss how transit operating policies (including fares and
service levels) and assumed transit ridership have changed since the previous
conformity determination.
D. The conformity determination shall include reasonable
assumptions about transit service and increases in transit fares and road and
bridge tolls over time.
E. The conformity determination shall use the latest
existing information regarding the effectiveness of the TCMs which have already
been implemented.
F. Key assumptions shall be specified and included in the
draft documents and supporting materials used for the interagency and public
consultation required by 9VAC5-150-130.
9VAC5-150-190. Criteria and procedures: latest emissions
model. (Repealed.)
A. The conformity determination shall be based on the
latest emission estimation model available. This criterion applies during all
periods. It is satisfied if the most current version of the motor vehicle
emissions model specified by EPA for use in the preparation or revision of
implementation plans in that state or area is used for the conformity analysis.
Where EMFAC is the motor vehicle emissions model used in preparing or revising
the applicable implementation plan, new versions shall be approved by EPA
before they are used in the conformity analysis.
B. EPA shall consult with USDOT to establish a grace period
following the specification of any new model.
1. The grace period shall be no less than three months and
no more than 24 months after notice of availability is published in the Federal
Register.
2. The length of the grace period shall depend on the
degree of change in the model and the scope of re-planning likely to be
necessary by MPOs in order to assure conformity. If the grace period will be
longer than three months, EPA shall announce the appropriate grace period in
the Federal Register.
C. Conformity analyses for which the emissions analysis was
begun during the grace period or before the Federal Register notice of
availability of the latest emission model may continue to use the previous
version of the model for transportation plans and TIPs. The previous model may
also be used for projects if the analysis was begun during the grace period or
before the Federal Register notice of availability, provided no more than three
years have passed since the draft environmental document was issued.
9VAC5-150-200. Criteria and procedures: consultation. (Repealed.)
The MPO shall make the conformity determination according
to the consultation procedures in this regulation and according to the public
participation involvement procedures established by the MPO in compliance with
23 CFR Part 450. This criterion applies during all periods. Until this chapter
is approved by EPA, the conformity determination shall be made according to the
procedures in 9VAC5-150-130 A 2 and E. Once this chapter has been approved by
EPA, this criterion is satisfied if the conformity determination is made
consistent with the implementation plan's consultation requirements.
9VAC5-150-210. Criteria and procedures: timely implementation
of TCMs. (Repealed.)
A. The transportation plan, TIP, or FHWA/FTA project which
is not from a conforming plan and TIP shall provide for the timely
implementation of TCMs from the applicable implementation plan. This criterion
applies during all periods.
B. For transportation plans, this criterion is satisfied if
the following two conditions are met:
1. The transportation plan, in describing the envisioned
future transportation system, provides for the timely completion or
implementation of all TCMs in the applicable implementation plan which are
eligible for funding under Title 23 USC or the Federal Transit Act, consistent
with schedules included in the applicable implementation plan.
2. Nothing in the transportation plan interferes with the
implementation of any TCM in the applicable implementation plan.
C. For TIPs, this criterion is satisfied if the following
conditions are met:
1. An examination of the specific steps and funding
source(s) needed to fully implement each TCM indicates that TCMs which are
eligible for funding under Title 23 USC or the Federal Transit Act are on or
ahead of the schedule established in the applicable implementation plan, or, if
the TCMs are behind the schedule established in the applicable implementation
plan, the MPO and USDOT have determined that past obstacles to implementation
of the TCMs have been identified and have been or are being overcome, and that
all state and local agencies with influence over approvals or funding for TCMs
are giving maximum priority to approval or funding of TCMs over other projects
within their control, including projects in locations outside the nonattainment
or maintenance area.
2. If TCMs in the applicable implementation plan have
previously been programmed for federal funding but the funds have not been
obligated and the TCMs are behind the schedule in the implementation plan, then
the TIP cannot be found to conform if the funds intended for those TCMs are
reallocated to projects in the TIP other than TCMs, or if there are no other
TCMs in the TIP, if the funds are reallocated to projects in the TIP other than
projects which are eligible for federal funding under ISTEA's Congestion
Mitigation and Air Quality Improvement Program.
3. Nothing in the TIP may interfere with the implementation
of any TCM in the applicable implementation plan.
D. For FHWA/FTA projects which are not from a conforming
transportation plan and TIP, this criterion is satisfied if the project does
not interfere with the implementation of any TCM in the applicable
implementation plan.
9VAC5-150-220. Criteria and procedures: currently conforming
transportation plan and TIP. (Repealed.)
There shall be a currently conforming transportation plan
and currently conforming TIP at the time of project approval. This criterion
applies during all periods. It is satisfied if the current transportation plan
and TIP have been found to conform to the applicable implementation plan by the
MPO and USDOT according to the procedures of this chapter.
A. Only one conforming transportation plan or TIP may exist
in an area at any time; conformity determinations of a previous transportation
plan or TIP expire once the current plan or TIP is found to conform by USDOT.
The conformity determination on a transportation plan or TIP shall also lapse
if conformity is not determined according to the frequency requirements of
9VAC5-150-120.
B. This criterion is not required to be satisfied at the
time of project approval for a TCM specifically included in the applicable
implementation plan provided that all other relevant criteria of this chapter
are satisfied.
9VAC5-150-230. Criteria and procedures: projects from a plan
and TIP. (Repealed.)
A. The project shall come from a conforming plan and
program. This criterion applies during all periods. If this criterion is not
satisfied, the project shall satisfy all criteria in Table 1 in subsection B of
9VAC5-150-170, for a project not from a conforming transportation plan and TIP.
A project is considered to be from a conforming transportation plan if it meets
the requirements of subsection B of this section and from a conforming program
if it meets the requirements of subsection C of this section. Special
provisions for TCMs in an applicable implementation plan are provided in
subsection D of this section.
B. A project is considered to be from a conforming
transportation plan if one of the following conditions applies:
1. For projects which are required to be identified in the
transportation plan in order to satisfy 9VAC5-150-140, the project is
specifically included in the conforming transportation plan and the project's
design concept and scope have not changed significantly from those which were
described in the transportation plan, or in a manner which would significantly
impact use of the facility; or
2. For projects which are not required to be specifically
identified in the transportation plan, the project is identified in the
conforming transportation plan, or is consistent with the policies and purpose
of the transportation plan and shall not interfere with other projects
specifically included in the transportation plan.
C. A project is considered to be from a conforming program
if the following conditions are met:
1. The project is included in the conforming TIP and the
design concept and scope of the project were adequate at the time of the TIP
conformity determination to determine its contribution to the TIP's regional
emissions and have not changed significantly from those which were described in
the TIP, or in a manner which would significantly impact use of the facility;
and
2. If the TIP describes a project design concept and scope
which includes project-level emissions mitigation or control measures, written
commitments to implement the measures shall be obtained from the project
sponsor, operator, or both as required by 9VAC5-150-410 A in order for the
project to be considered from a conforming program. Any change in these
mitigation or control measures that would significantly reduce their
effectiveness constitutes a change in the design concept and scope of the
project.
D. This criterion is not required to be satisfied for TCMs
specifically included in an applicable implementation plan.
9VAC5-150-240. Criteria and procedures: localized CO and PM10
violations (hot spots). (Repealed.)
A. The FHWA/FTA project shall not cause or contribute to
any new localized CO or PM10 violations or increase the frequency or
severity of any existing CO or PM10 violations in CO and PM10
nonattainment and maintenance areas. This criterion applies during all periods.
This criterion is satisfied if it is demonstrated that no new local violations
shall be created and the severity or number of existing violations shall not be
increased as a result of the project.
B. The demonstration shall be performed according to the
requirements of 9VAC5-150-130 C 1 a and 9VAC5-150-390.
C. For projects which are not of the type identified by
9VAC5-150-390 A or 9VAC5-150-390 D, this criterion may be satisfied if
consideration of local factors clearly demonstrates that no local violations
presently exist and no new local violations shall be created as a result of the
project. Otherwise, in CO nonattainment and maintenance areas, a quantitative demonstration
shall be performed according to the requirements of 9VAC5-150-390 B.
9VAC5-150-250. Criteria and procedures: compliance with PM10
control measures. (Repealed.)
The FHWA/FTA project shall comply with PM10
control measures in the applicable implementation plan. This criterion applies
during all periods. It is satisfied if control measures (for the purpose of
limiting PM10 emissions from the construction activities, normal
use, operation associated with the project, or any combination of the
preceding) contained in the applicable implementation plan are included in the
final plans, specifications, and estimates for the project.
9VAC5-150-260. Criteria and procedures: motor vehicle
emissions budget (transportation plan). (Repealed.)
A. The transportation plan shall be consistent with the
motor vehicle emissions budget(s) in the applicable implementation plan (or implementation
plan submission). This criterion applies during the transitional period and the
control strategy and maintenance periods, except as provided in 9VAC5-150-440.
This criterion may be satisfied if the requirements in subsections B and C of
this section are met:
B. A regional emissions analysis shall be performed as
follows:
1. The regional analysis shall estimate emissions of any of
the following pollutants and pollutant precursors for which the area is in
nonattainment or maintenance and for which the applicable implementation plan
(or implementation plan submission) establishes an emissions budget:
a. VOC as an ozone precursor;
b. NOX as an ozone precursor;
c. CO;
d. PM10 (and its precursors VOC, NOX
or both if the applicable implementation plan or implementation plan submission
identifies transportation-related precursor emissions within the nonattainment
area as a significant contributor to the PM10 nonattainment problem
or establishes a budget for the emissions); or
e. NOX (in NO2 nonattainment or
maintenance areas);
2. The regional emissions analysis shall estimate emissions
from the entire transportation system, including all regionally significant
projects contained in the transportation plan and all other regionally
significant highway and transit projects expected in the nonattainment or
maintenance area in the timeframe of the transportation plan;
3. The emissions analysis methodology shall meet the
requirements of 9VAC5-150-380;
4. For areas with a transportation plan that meets the
content requirements of 9VAC5-150-140 A, the emissions analysis shall be
performed for each horizon year. Emissions in milestone years which are between
the horizon years may be determined by interpolation; and
5. For areas with a transportation plan that does not meet
the content requirements of 9VAC5-150-140 A, the emissions analysis shall be
performed for any years in the time span of the transportation plan provided
they are not more than 10 years apart and provided the analysis is performed for
the last year of the plan's forecast period. If the attainment year is in the
time span of the transportation plan, the emissions analysis shall also be
performed for the attainment year. Emissions in milestone years which are
between these analysis years may be determined by interpolation.
C. The regional emissions analysis shall demonstrate that
for each of the applicable pollutants or pollutant precursors in subdivision B
1 of this section the emissions are less than or equal to the motor vehicle emissions
budget as established in the applicable implementation plan or implementation
plan submission as follows:
1. If the applicable implementation plan or implementation
plan submission establishes emissions budgets for milestone years, emissions in
each milestone year are less than or equal to the motor vehicle emissions
budget established for that year;
2. For nonattainment areas, emissions in the attainment
year are less than or equal to the motor vehicle emissions budget established
in the applicable implementation plan or implementation plan submission for
that year;
3. For nonattainment areas, emissions in each analysis or
horizon year after the attainment year are less than or equal to the motor
vehicle emissions budget established by the applicable implementation plan or
implementation plan submission for the attainment year. If emissions budgets
are established for years after the attainment year, emissions in each analysis
year or horizon year shall be less than or equal to the motor vehicle emissions
budget for that year, if any, or the motor vehicle emissions budget for the
most recent budget year prior to the analysis year or horizon year; and
4. For maintenance areas, emissions in each analysis or
horizon year are less than or equal to the motor vehicle emissions budget
established by the maintenance plan for that year, if any, or the emissions
budget for the most recent budget year prior to the analysis or horizon year.
9VAC5-150-270. Criteria and procedures: motor vehicle
emissions budget (TIP). (Repealed.)
A. The TIP shall be consistent with the motor vehicle
emissions budget(s) in the applicable implementation plan (or implementation
plan submission). This criterion applies during the transitional period and the
control strategy and maintenance periods, except as provided in 9VAC5-150-440.
This criterion may be satisfied if the requirements in subsections B and C of
this section are met:
B. For areas with a conforming transportation plan that
fully meets the content requirements of 9VAC5-150-140 A, this criterion may be
satisfied without additional regional analysis if:
1. Each program year of the TIP is consistent with the
federal funding which may be reasonably expected for that year, and required
state/local matching funds and funds for state/local funding-only projects are
consistent with the revenue sources expected over the same period; and
2. The TIP is consistent with the conforming transportation
plan such that the regional emissions analysis already performed for the plan
applies to the TIP also. This requires a demonstration that:
a. The TIP contains all projects which shall be started in
the TIP's timeframe in order to achieve the highway and transit system
envisioned by the transportation plan in each of its horizon years;
b. All TIP projects which are regionally significant are
part of the specific highway or transit system envisioned in the transportation
plan's horizon years; and
c. The design concept and scope of each regionally
significant project in the TIP is not significantly different from that
described in the transportation plan.
3. If the requirements in subdivisions 1 and 2 of this
subsection are not met, then:
a. The TIP may be modified to meet those requirements; or
b. The transportation plan shall be revised so that the
requirements in subdivisions 1 and 2 of this subsection are met. Once the
revised plan has been found to conform, this criterion is met for the TIP with
no additional analysis except a demonstration that the TIP meets the
requirements of subdivisions 1 and 2 of this subsection.
C. For areas with a transportation plan that does not meet
the content requirements of 9VAC5-150-140 A, a regional emissions analysis
shall meet all of the following requirements:
1. The regional emissions analysis shall estimate emissions
from the entire transportation system, including all projects contained in the
proposed TIP, the transportation plan, and all other regionally significant
highway and transit projects expected in the nonattainment or maintenance area
in the timeframe of the transportation plan;
2. The analysis methodology shall meet the requirements of
9VAC5-150-380 C; and
3. The regional analysis shall satisfy the requirements of
9VAC5-150-260 B 1, B 5, and C.
9VAC5-150-280. Criteria and procedures: motor vehicle
emissions budget (project not from a plan and TIP). (Repealed.)
A. The project which is not from a conforming
transportation plan and a conforming TIP shall be consistent with the motor
vehicle emissions budget or budgets in the applicable implementation plan (or
implementation plan submission). This criterion applies during the transitional
period and the control strategy and maintenance periods, except as provided in
9VAC5-150-440. It is satisfied if emissions from the implementation of the
project, when considered with the emissions from the projects in the conforming
transportation plan and TIP and all other regionally significant projects
expected in the area, do not exceed the motor vehicle emissions budget or budgets
in the applicable implementation plan (or implementation plan submission).
B. For areas with a conforming transportation plan that
meets the content requirements of 9VAC5-150-140 A:
1. This criterion may be satisfied without additional
regional analysis if the project is included in the conforming transportation
plan, even if it is not specifically included in the latest conforming TIP.
This requires a demonstration that:
a. Allocating funds to the project shall not delay the
implementation of projects in the transportation plan or TIP which are
necessary to achieve the highway and transit system envisioned by the
transportation plan in each of its horizon years;
b. The project is not regionally significant or is part of
the specific highway or transit system envisioned in the transportation plan's
horizon years; and
c. The design concept and scope of the project is not
significantly different from that described in the transportation plan.
2. If the requirements in subdivision 1 of this subsection
are not met, a regional emissions analysis shall be performed as follows:
a. The analysis methodology shall meet the requirements of
9VAC5-150-380;
b. The analysis shall estimate emissions from the
transportation system, including the proposed project and all other regionally
significant projects expected in the nonattainment or maintenance area in the
timeframe of the transportation plan. The analysis shall include emissions from
all previously approved projects which were not from a transportation plan and
TIP; and
c. The emissions analysis shall meet the requirements of
9VAC5-150-260 B 1, B 4, and C.
C. For areas with a transportation plan that does not meet
the content requirements of 9VAC5-150-140 A, a regional emissions analysis
shall be performed for the project together with the conforming TIP and all
other regionally significant projects expected in the nonattainment or
maintenance area. This criterion may be satisfied if:
1. The analysis methodology meets the requirements of
9VAC5-150-380 C;
2. The analysis estimates emissions from the transportation
system, including the proposed project, and all other regionally significant
projects expected in the nonattainment or maintenance area in the timeframe of
the transportation plan; and
3. The regional analysis satisfies the requirements of
9VAC5-150-260 B 1, B 5, and C.
9VAC5-150-290. Criteria and procedures: localized CO
violations (hot spots) in the interim period. (Repealed.)
A. Each FHWA/FTA project shall eliminate or reduce the
severity and number of localized CO violations in the area substantially
affected by the project (in CO nonattainment areas). This criterion applies
during the interim and transitional periods only. This criterion is satisfied
with respect to existing localized CO violations if it is demonstrated that
existing localized CO violations may be eliminated or reduced in severity and
number as a result of the project.
B. The demonstration shall be performed according to the
requirements of 9VAC5-150-130 C 1 a and 9VAC5-150-390.
C. For projects which are not of the type identified by
9VAC5-150-390 A, this criterion may be satisfied if consideration of local
factors clearly demonstrates that existing CO violations shall be eliminated or
reduced in severity and number. Otherwise, a quantitative demonstration shall
be performed according to the requirements of 9VAC5-150-390 B.
9VAC5-150-300. Criteria and procedures: interim period
reductions in ozone and CO areas (transportation plan). (Repealed.)
A. A transportation plan shall contribute to emissions
reductions in ozone and CO nonattainment areas. This criterion applies during
the interim and transitional periods only, except as otherwise provided in
9VAC5-150-440. It applies to the net effect on emissions of all projects
contained in a new or revised transportation plan. This criterion may be
satisfied if a regional emissions analysis is performed as described in
subsections B through F of this section.
B. Determine the analysis years for which emissions are to
be estimated. Analysis years shall be no more than 10 years apart. The first
analysis year shall be no later than the first milestone year (1995 in CO
nonattainment areas and 1996 in ozone nonattainment areas). The second analysis
year shall be either the attainment year for the area, or if the attainment
year is the same as the first analysis year or earlier, the second analysis
year shall be at least five years beyond the first analysis year. The last year
of the transportation plan's forecast period shall also be an analysis year.
C. Define the "baseline" scenario for each of the
analysis years to be the future transportation system that would result from
current programs, composed of the following (except that projects listed in
9VAC5-150-420 and 9VAC5-150-430 need not be explicitly considered):
1. All in-place regionally significant highway and transit
facilities, services and activities;
2. All ongoing travel demand management or transportation
system management activities; and
3. Completion of all regionally significant projects,
regardless of funding source, which are currently under construction or are
undergoing right-of-way acquisition (except for hardship acquisition and
protective buying); come from the first three years of the previously
conforming transportation plan, TIP or both; or have completed the NEPA
process. (For the first conformity determination on the transportation plan
after November 24, 1993, a project may not be included in the
"baseline" scenario if one of the following major steps has not
occurred within the past three years: NEPA process completion; start of final
design; acquisition of a significant portion of the right-of-way; or approval
of the plans, specifications and estimates. Such a project shall be included in
the "action" scenario, as described in subsection D of this section.)
D. Define the "action" scenario for each of the
analysis years as the transportation system that will result in that year from
the implementation of the proposed transportation plan, TIPs adopted under it,
and other expected regionally significant projects in the nonattainment area.
It shall include the following (except that projects listed in 9VAC5-150-420
and 9VAC5-150-430 need not be explicitly considered):
1. All facilities, services, and activities in the
"baseline" scenario;
2. Completion of all TCMs and regionally significant
projects (including facilities, services, and activities) specifically
identified in the proposed transportation plan which will be operational or in
effect in the analysis year, except that regulatory TCMs may not be assumed to
begin at a future time unless the regulation is already adopted by the
enforcing jurisdiction or the TCM is identified in the applicable
implementation plan;
3. All travel demand management programs and transportation
system management activities known to the MPO, but not included in the
applicable implementation plan or utilizing any federal funding or approval,
which have been fully adopted, funded by the enforcing jurisdiction or
sponsoring agency, or both since the last conformity determination on the
transportation plan;
4. The incremental effects of any travel demand management
programs and transportation system management activities known to the MPO, but
not included in the applicable implementation plan or utilizing any federal
funding or approval, which were adopted, funded or both prior to the date of
the last conformity determination on the transportation plan, but which have
been modified since then to be more stringent or effective;
5. Completion of all expected regionally significant
highway and transit projects which are not from a conforming transportation
plan and TIP; and
6. Completion of all expected regionally significant
non-FHWA/FTA highway and transit projects that have clear funding sources and
commitments leading toward their implementation and completion by the analysis
year.
E. Estimate the emissions predicted to result in each
analysis year from travel on the transportation systems defined by the
"baseline" and "action" scenarios and determine the
difference in regional VOC and NOX emissions (unless the
administrator determines that additional reductions of NOX would not
contribute to attainment) between the two scenarios for ozone nonattainment
areas and the difference in CO emissions between the two scenarios for CO
nonattainment areas. The analysis shall be performed for each of the analysis
years according to the requirements of 9VAC5-150-380. Emissions in milestone
years which are between the analysis years may be determined by interpolation.
F. This criterion is met if the regional VOC and NOX
emissions (for ozone nonattainment areas) and CO emissions (for CO
nonattainment areas) predicted in the "action" scenario are less than
the emissions predicted from the "baseline" scenario in each analysis
year, and if this can reasonably be expected to be true in the periods between
the first milestone year and the analysis years. The regional analysis shall
show that the "action" scenario contributes to a reduction in
emissions from the 1990 emissions by any nonzero amount.
9VAC5-150-310. Criteria and procedures: interim period
reductions in ozone and CO areas (TIP). (Repealed.)
A. A TIP shall contribute to emissions reductions in ozone
and CO nonattainment areas. This criterion applies during the interim and
transitional periods only, except as otherwise provided in 9VAC5-150-440. It
applies to the net effect on emissions of all projects contained in a new or
revised TIP. This criterion may be satisfied if a regional emissions analysis
is performed as described in subsections B through F of this section.
B. Determine the analysis years for which emissions are to
be estimated. The first analysis year shall be no later than the first
milestone year (1995 in CO nonattainment areas and 1996 in ozone nonattainment
areas). The analysis years shall be no more than 10 years apart. The second
analysis year shall be either the attainment year for the area, or if the
attainment year is the same as the first analysis year or earlier, the second
analysis year shall be at least five years beyond the first analysis year. The
last year of the transportation plan's forecast period shall also be an
analysis year.
C. Define the "baseline" scenario as the future
transportation system that would result from current programs, composed of the
following (except that projects listed in 9VAC5-150-420 and 9VAC5-150-430 need
not be explicitly considered):
1. All in-place regionally significant highway and transit
facilities, services and activities;
2. All ongoing travel demand management or transportation
system management activities; and
3. Completion of all regionally significant projects,
regardless of funding source, which are currently under construction or are
undergoing right-of-way acquisition (except for hardship acquisition and
protective buying); come from the first three years of the previously
conforming TIP; or have completed the NEPA process. (For the first conformity
determination on the TIP after November 24, 1993, a project may not be included
in the "baseline" scenario if one of the following major steps has
not occurred within the past three years: NEPA process completion; start of
final design; acquisition of a significant portion of the right-of-way; or
approval of the plans, specifications and estimates. Such a project shall be
included in the "action" scenario, as described in subsection D of
this section.)
D. Define the "action" scenario as the future
transportation system that will result from the implementation of the proposed
TIP and other expected regionally significant projects in the nonattainment
area in the timeframe of the transportation plan. It shall include the
following (except that projects listed in 9VAC5-150-420 and 9VAC5-150-430 need
not be explicitly considered):
1. All facilities, services, and activities in the
"baseline" scenario;
2. Completion of all TCMs and regionally significant
projects (including facilities, services, and activities) included in the
proposed TIP, except that regulatory TCMs may not be assumed to begin at a
future time unless the regulation is already adopted by the enforcing
jurisdiction or the TCM is contained in the applicable implementation plan;
3. All travel demand management programs and transportation
system management activities known to the MPO, but not included in the
applicable implementation plan or utilizing any federal funding or approval,
which have been fully adopted, funded or both by the enforcing jurisdiction or
sponsoring agency since the last conformity determination on the TIP;
4. The incremental effects of any travel demand management
programs and transportation system management activities known to the MPO, but
not included in the applicable implementation plan or utilizing any federal
funding or approval, which were adopted, funded or both prior to the date of
the last conformity determination on the TIP, but which have been modified
since then to be more stringent or effective;
5. Completion of all expected regionally significant
highway and transit projects which are not from a conforming transportation
plan and TIP; and
6. Completion of all expected regionally significant
non-FHWA/FTA highway and transit projects that have clear funding sources and
commitments leading toward their implementation and completion by the analysis
year.
E. Estimate the emissions predicted to result in each
analysis year from travel on the transportation systems defined by the
"baseline" and "action" scenarios, and determine the
difference in regional VOC and NOX emissions (unless the
administrator determines that additional reductions of NOX would not
contribute to attainment) between the two scenarios for ozone nonattainment
areas and the difference in CO emissions between the two scenarios for CO
nonattainment areas. The analysis shall be performed for each of the analysis
years according to the requirements of 9VAC5-150-380. Emissions in milestone
years which are between analysis years may be determined by interpolation.
F. This criterion is met if the regional VOC and NOX
emissions in ozone nonattainment areas and CO emissions in CO nonattainment
areas predicted in the "action" scenario are less than the emissions
predicted from the "baseline" scenario in each analysis year, and if
this can reasonably be expected to be true in the period between the analysis
years. The regional analysis shall show that the "action" scenario
contributes to a reduction in emissions from the 1990 emissions by any nonzero
amount.
9VAC5-150-320. Criteria and procedures: interim period
reductions for ozone and CO areas (project not from a plan and TIP). (Repealed.)
A transportation project which is not from a conforming
transportation plan and TIP shall contribute to emissions reductions in ozone and
CO nonattainment areas. This criterion applies during the interim and
transitional periods only, except as otherwise provided in 9VAC5-150-440. This
criterion is satisfied if a regional emissions analysis is performed which
meets the requirements of 9VAC5-150-300 and which includes the transportation
plan and project in the "action" scenario. If the project which is
not from a conforming transportation plan and TIP is a modification of a
project currently in the plan or TIP, the "baseline" scenario shall
include the project with its original design concept and scope, and the
"action" scenario shall include the project with its new design
concept and scope.
9VAC5-150-330. Criteria and procedures: interim period
reductions for PM10 and NO2 areas (transportation plan).
(Repealed.)
A. A transportation plan shall contribute to emission
reductions or shall not increase emissions in PM10 and NO2
nonattainment areas. This criterion applies only during the interim and
transitional periods. It applies to the net effect on emissions of all projects
contained in a new or revised transportation plan. This criterion may be
satisfied if the requirements of either subsection B or C of this section are
met.
B. Demonstrate that implementation of the plan and all
other regionally significant projects expected in the nonattainment area shall
contribute to reductions in emissions of PM10 in a PM10
nonattainment area (and of each transportation-related precursor of PM10
in PM10 nonattainment areas if the EPA Regional Administrator or the
DEQ Director has made a finding that the precursor emissions from within the
nonattainment area are a significant contributor to the PM10
nonattainment problem and has so notified the MPO and USDOT) and of NOX
in an NO2 nonattainment area, by performing a regional emissions
analysis as follows:
1. Determine the analysis years for which emissions are to
be estimated. Analysis years shall be no more than 10 years apart. The first
analysis year shall be no later than 1996 (for NO2 areas) or four
years and six months following the date of designation (for PM10
areas). The second analysis year shall be either the attainment year for the
area, or if the attainment year is the same as the first analysis year or
earlier, the second analysis year shall be at least five years beyond the first
analysis year. The last year of the transportation plan's forecast period shall
also be an analysis year.
2. Define for each of the analysis years the
"baseline" scenario, as defined in 9VAC5-150-300 C, and the
"action" scenario, as defined in 9VAC5-150-300 D.
3. Estimate the emissions predicted to result in each
analysis year from travel on the transportation systems defined by the
"baseline" and "action" scenarios and determine the
difference between the two scenarios in regional PM10 emissions in a
PM10 nonattainment area (and transportation-related precursors of PM10
in PM10 nonattainment areas if the EPA Regional Administrator or the
DEQ Director has made a finding that the precursor emissions from within the
nonattainment area are a significant contributor to the PM10
nonattainment problem and has so notified the MPO and USDOT) and in NOX
emissions in an NO2 nonattainment area. The analysis shall be
performed for each of the analysis years according to the requirements of
9VAC5-150-380. The analysis shall address the periods between the analysis
years and the periods between 1990, the first milestone year (if any), and the
first of the analysis years. Emissions in milestone years which are between the
analysis years may be determined by interpolation.
4. Demonstrate that the regional PM10 emissions
and PM10 precursor emissions, where applicable, (for PM10
nonattainment areas) and NOX emissions (for NO2
nonattainment areas) predicted in the "action" scenario are less than
the emissions predicted from the "baseline" scenario in each analysis
year, and that this can reasonably be expected to be true in the periods
between the first milestone year (if any) and the analysis years.
C. Demonstrate that when the projects in the transportation
plan and all other regionally significant projects expected in the
nonattainment area are implemented, the transportation system's total highway
and transit emissions of PM10 in a PM10 nonattainment
area (and transportation-related precursors of PM10 in PM10
nonattainment areas if the EPA Regional Administrator or the DEQ Director has
made a finding that the precursor emissions from within the nonattainment area
are a significant contributor to the PM10 nonattainment problem and
has so notified the MPO and USDOT) and of NOX in an NO2
nonattainment area shall not be greater than baseline levels, by performing a
regional emissions analysis as follows:
1. Determine the baseline regional emissions of PM10
and PM10 precursors, where applicable (for PM10
nonattainment areas) and NOX (for NO2 nonattainment
areas) from highway and transit sources. Baseline emissions are those estimated
to have occurred during calendar year 1990, unless the implementation plan
revision required by this regulation defines the baseline emissions for a PM10
area to be those occurring in a different calendar year for which a baseline
emissions inventory was developed for the purpose of developing a control
strategy implementation plan.
2. Estimate the emissions of the applicable pollutant(s)
from the entire transportation system, including projects in the transportation
plan and TIP and all other regionally significant projects in the nonattainment
area, according to the requirements of 9VAC5-150-380. Emissions shall be
estimated for analysis years which are no more than 10 years apart. The first
analysis year shall be no later than 1996 (for NO2 areas) or four
years and six months following the date of designation (for PM10
areas). The second analysis year shall be either the attainment year for the
area, or if the attainment year is the same as the first analysis year or
earlier, the second analysis year shall be at least five years beyond the first
analysis year. The last year of the transportation plan's forecast period shall
also be an analysis year.
3. Demonstrate that for each analysis year the emissions estimated
in subdivision 2 of this subsection are no greater than baseline emissions of
PM10 and PM10 precursors, where applicable (for PM10
nonattainment areas) or NOX (for NO2 nonattainment areas)
from highway and transit sources.
9VAC5-150-340. Criteria and procedures: interim period
reductions for PM10 and NO2 areas (TIP). (Repealed.)
A. A TIP shall contribute to emission reductions or shall
not increase emissions in PM10 and NO2 nonattainment
areas. This criterion applies only during the interim and transitional periods.
It applies to the net effect on emissions of all projects contained in a new or
revised TIP. This criterion may be satisfied if the requirements of either
subsection B or C of this section are met.
B. Demonstrate that implementation of the plan and TIP and
all other regionally significant projects expected in the nonattainment area
shall contribute to reductions in emissions of PM10 in a PM10
nonattainment area (and transportation-related precursors of PM10 in
PM10 nonattainment areas if the EPA Regional Administrator or the
DEQ Director has made a finding that the precursor emissions from within the
nonattainment area are a significant contributor to the PM10
nonattainment problem and has so notified the MPO and USDOT) and of NOX
in an NO2 nonattainment area, by performing a regional emissions
analysis as follows:
1. Determine the analysis years for which emissions are to
be estimated, according to the requirements of 9VAC5-150-330 B 1.
2. Define for each of the analysis years the
"baseline" scenario, as defined in 9VAC5-150-310 C, and the
"action" scenario, as defined in 9VAC5-150-310 D.
3. Estimate the emissions predicted to result in each
analysis year from travel on the transportation systems defined by the
"baseline" and "action" scenarios as required by
9VAC5-150-330 B 3, and make the demonstration required by 9VAC5-150-330 B.
C. Demonstrate that when the projects in the transportation
plan and TIP and all other regionally significant projects expected in the area
are implemented, the transportation system's total highway and transit
emissions of PM10 in a PM10 nonattainment area (and
transportation-related precursors of PM10 in PM10
nonattainment areas if the EPA Regional Administrator or the DEQ Director has
made a finding that the precursor emissions from within the nonattainment area
are a significant contributor to the PM10 nonattainment problem and
has so notified the MPO and USDOT) and of NOX in an NO2
nonattainment area shall not be greater than baseline levels, by performing a
regional emissions analysis as required by 9VAC5-150-330 C.
9VAC5-150-350. Criteria and procedures: interim period
reductions for PM10 and NO2 areas (project not from a
plan and TIP). (Repealed.)
A transportation project which is not from a conforming
transportation plan and TIP shall contribute to emission reductions or shall
not increase emissions in PM10 and NO2 nonattainment
areas. This criterion applies during the interim and transitional periods only.
This criterion is met if a regional emissions analysis is performed which meets
the requirements of 9VAC5-150-330 and which includes the transportation plan
and project in the "action" scenario. If the project which is not
from a conforming transportation plan and TIP is a modification of a project
currently in the transportation plan or TIP, and 9VAC5-150-330 B is used to
demonstrate satisfaction of this criterion, the "baseline" scenario
shall include the project with its original design concept and scope, and the
"action" scenario shall include the project with its new design
concept and scope.
9VAC5-150-360. Transition from the interim period to the
control strategy period. (Repealed.)
A. For areas that submit control strategy implementation
plans the following requirements shall be met.
1. The transportation plan and TIP must be demonstrated to
conform by 18 months from the date of the state's initial submission to EPA of
each control strategy implementation plan establishing a motor vehicle
emissions budget. If conformity is not determined by 18 months from the date of
submission of such control strategy implementation plan, the conformity status
of the transportation plan and TIP will lapse, and no new project-level
conformity determinations may be made until the transportation plan and TIP
have been demonstrated to conform.
2. For areas not yet in the control strategy period for a
given pollutant, conformity shall be demonstrated using the motor vehicle
emissions budget(s) in a submitted control strategy implementation plan
revision for that pollutant beginning 90 days after submission unless EPA
declares such budget or budgets inadequate for transportation conformity
purposes. The motor vehicle emissions budget or budgets may be used to
determine conformity during the first 90 days after its submission if EPA
agrees that the budget or budgets are adequate for conformity purposes.
B. For areas that submit a plan and the plan is
disapproved:
1. If EPA disapproves the submitted control strategy
implementation plan revision and so notifies the state, MPO, and USDOT, which
initiates the sanction process under § 179 or 110(m) of the federal Clean Air
Act, the conformity status of the transportation plan and TIP shall lapse 120
days after EPA's disapproval, and no new project-level conformity
determinations may be made. No new transportation plan, TIP, or project may be
found to conform until another control strategy implementation plan revision
fulfilling the same federal Clean Air Act requirements is submitted and
conformity to this submission is determined.
2. Notwithstanding subdivision 1 of this subsection, if EPA
disapproves the submitted control strategy implementation plan revision but
makes a protective finding, the conformity status of the transportation plan
and TIP shall lapse on the date that highway sanctions as a result of the
disapproval are imposed on the nonattainment area under § 179(b)(1) of the
federal Clean Air Act. No new transportation plan, TIP, or project may be found
to conform until another control strategy implementation plan revision
fulfilling the same federal Clean Air Act requirements is submitted and
conformity to this submission is determined.
C. For areas where EPA notifies the state, MPO, and USDOT
of the state's failure to submit or submission of an incomplete control
strategy implementation plan revision, which initiates the sanction process
under § 179 or 110(m) of the federal Clean Air Act, the conformity status of
the transportation plan and TIP shall lapse on the date that highway sanctions
are imposed on the nonattainment area for such failure under § 179(b)(1) of the
federal Clean Air Act, unless the failure has been remedied and acknowledged by
a letter from the EPA Regional Administrator.
D. When EPA promulgates a federal implementation plan that
contains motor vehicle emissions budget or budgets as a result of a state failure,
the conformity lapse imposed by this section because of that state failure is
removed.
E. For FHWA/FTA projects, if the currently conforming
transportation plan and TIP have not been demonstrated to conform according to
transitional period criteria and procedures, the requirements of subdivisions 1
and 2 of this subsection shall be met.
1. Before a FHWA/FTA project which is regionally
significant and increases single-occupant vehicle capacity (a new general
purpose highway on a new location or adding general purpose lanes) may be found
to conform, the DEQ shall be consulted on how the emissions which the existing
transportation plan and TIP's conformity determination estimates for the
"action" scenario (as required by 9VAC5-150-300 through 9VAC5-150-350)
compare to the motor vehicle emissions budget in the implementation plan
submission or the projected motor vehicle emissions budget in the
implementation plan under development.
2. In the event of unresolved disputes on the project-level
conformity determinations, the DEQ Director may escalate the issue to the
Governor consistent with the procedure in 9VAC5-150-130 D, which applies for
any DEQ comments on a conformity determination.
F. For the redetermination of conformity of the existing
transportation plan and TIP according to the transitional period criteria and
procedures, the requirements of subdivisions 1 and 2 of this subsection shall
be met.
1. The redetermination of the conformity of the existing
transportation plan and TIP according to transitional period criteria and
procedures (as required by subdivision A 1 of this section and subsection D of
this section) does not require new emissions analysis and does not have to
satisfy the requirements of 9VAC5-150-180 and 9VAC5-150-190 if:
a. The control strategy implementation plan revision
submitted to EPA uses the MPO's modeling of the existing transportation plan
and TIP for its projections of motor vehicle emissions; and
b. The control strategy implementation plan does not
include any transportation projects which are not included in the
transportation plan and TIP.
2. A redetermination of conformity as described in
subdivision 1 of this subsection is not considered a conformity determination
for the purposes of 9VAC5-150-120 B 4 or C 4 regarding the maximum intervals
between conformity determinations. Conformity shall be determined according to
all the applicable criteria and procedures of 9VAC5-150-170 within three years
of the last determination which did not rely on subdivision 1 of this subsection.
G. For nonattainment areas which are not required to
demonstrate reasonable further progress and attainment, if an area listed in
9VAC5-150-440 submits a control strategy implementation plan revision, the
requirements of subsections A and E of this section apply. Because the areas
listed in 9VAC5-150-440 are not required to demonstrate reasonable further
progress and attainment, the provisions of subsections B and C of this section
do not apply to these areas.
H. For maintenance plans, if a control strategy
implementation plan revision is not submitted to EPA but a maintenance plan
required by § 175A of the federal Clean Air Act is submitted to EPA, the
requirements of subsection A or D of this section apply, with the maintenance
plan submission treated as a "control strategy implementation plan
revision" for the purposes of those requirements.
9VAC5-150-370. Requirements for adoption or approval of
projects by recipients of funds designated under Title 23 USC or the Federal
Transit Act. (Repealed.)
No recipient of federal funds designated under Title 23 USC
or the Federal Transit Act shall adopt or approve a regionally significant
highway or transit project, regardless of funding source, unless there is a
currently conforming transportation plan and TIP consistent with the
requirements of 9VAC5-150-220 and the requirements of one of the following
subdivisions are met:
1. The project comes from a conforming plan and program
consistent with the requirements of 9VAC5-150-230;
2. The project is included in the regional emissions
analysis supporting the currently conforming TIP's conformity determination,
even if the project is not strictly "included" in the TIP for the
purposes of MPO project selection or endorsement, and the project's design
concept and scope have not changed significantly from those which were included
in the regional emissions analysis, or in a manner which would significantly
impact use of the facility;
3. During the control strategy or maintenance period, the
project is consistent with the motor vehicle emissions budget(s) in the
applicable implementation plan consistent with the requirements of
9VAC5-150-280;
4. During Phase II of the interim period, the project
contributes to emissions reductions or does not increase emissions consistent
with the requirements of 9VAC5-150-320 (in ozone and CO nonattainment areas) or
9VAC5-150-350 (in PM10 and NO2 nonattainment areas); or
5. During the transitional period, the project satisfies
the requirements of subdivisions 3 and 4 of this subsection.
9VAC5-150-380. Procedures for determining regional
transportation-related emissions. (Repealed.)
A. With regard to conducting regional analyses for
transportation-related emissions, the requirements of this subsection shall be
met.
1. The regional emissions analysis for the transportation
plan, TIP, or project not from a conforming plan and TIP shall include all
regionally significant projects expected in the nonattainment or maintenance
area, including FHWA/FTA projects proposed in the transportation plan and TIP
and all other regionally significant projects which are disclosed to the MPO as
required by 9VAC5-150-130. Projects which are not regionally significant are
not required to be explicitly modeled, but VMT from the projects shall be
estimated in accordance with reasonable professional practice. The effects of
TCMs and similar projects that are not regionally significant may also be
estimated in accordance with reasonable professional practice.
2. The emissions analysis may not include for emissions
reduction credit any TCMs which have been delayed beyond the scheduled date(s)
until such time as implementation has been assured. If the TCM has been
partially implemented and it can be demonstrated that it is providing
quantifiable emission reduction benefits, the emissions analysis may include
that emissions reduction credit.
3. Emissions reduction credit from projects, programs, or
activities which require a regulation in order to be implemented may not be
included in the emissions analysis unless the regulation is already adopted by
the enforcing jurisdiction. Adopted regulations are required for demand
management strategies for reducing emissions which are not specifically
identified in the applicable implementation plan, and for control programs
which are external to the transportation system itself, such as tailpipe or
evaporative emission standards, limits on gasoline volatility, inspection and
maintenance programs, and oxygenated or reformulated gasoline or diesel fuel. A
regulatory program may also be considered to be adopted if an opt-in to a
federally enforced program has been approved by EPA, if EPA has promulgated the
program (if the control program is a federal responsibility, such as tailpipe
standards), or if the federal Clean Air Act requires the program without need
for individual state action and without any discretionary authority for EPA to
set its stringency, delay its effective date, or not implement the program.
4. Notwithstanding subdivision 3 of this subsection, during
the transitional period, control measures or programs which are committed to in
an implementation plan submission as described in 9VAC5-150-260 through
9VAC5-150-280, but which has not received final EPA action in the form of a
finding of incompleteness, approval, or disapproval may be assumed for emission
reduction credit for the purpose of demonstrating that the requirements of
9VAC5-150-260 through 9VAC5-150-280 are satisfied.
5. A regional emissions analysis for the purpose of
satisfying the requirements of 9VAC5-150-300 through 9VAC5-150-320 may account
for the programs in subdivision 4 of this subsection, but the same assumptions
about these programs shall be used for both the "baseline" and
"action" scenarios.
6. Ambient temperatures shall be consistent with those used
to establish the emissions budget in the applicable implementation plan.
Factors other than temperatures, for example, the fraction of travel in a hot
stabilized engine mode, may be modified after interagency consultation
according to 9VAC5-150-130 if the newer estimates incorporate additional or
more geographically specific information or represent a logically estimated
trend in the factors beyond the period considered in the applicable
implementation plan.
B. For serious, severe, and extreme ozone nonattainment
areas and serious carbon monoxide areas after January 1, 1995, estimates of
regional transportation-related emissions used to support conformity
determinations shall be made according to procedures which meet the
requirements in subsection B of this section.
1. A network-based transportation demand model or models
relating travel demand and transportation system performance to land-use
patterns, population demographics, employment, transportation infrastructure,
and transportation policies shall be used to estimate travel within the
metropolitan planning area of the nonattainment area. The model shall possess
the following attributes:
a. The modeling methods and the functional relationships
used in the model(s) shall in all respects be in accordance with acceptable
professional practice, and reasonable for purposes of emission estimation;
b. The network-based model(s) shall be validated against
ground counts for a base year that is not more than 10 years prior to the date
of the conformity determination. Land use, population, and other inputs shall
be based on the best available information and appropriate to the validation
base year;
c. For peak-hour or peak-period traffic assignments, a
capacity sensitive assignment methodology shall be used;
d. Zone-to-zone travel times used to distribute trips
between origin and destination pairs shall be in reasonable agreement with the
travel times which result from the process of assignment of trips to network
links. Where use of transit currently is anticipated to be a significant factor
in satisfying transportation demand, these times should also be used for
modeling mode splits;
e. Free-flow speeds on network links shall be based on
empirical observations;
f. Peak and off-peak travel demand and travel times shall
be provided;
g. Trip distribution and mode choice shall be sensitive to
pricing, where pricing is a significant factor, if the network model is capable
of such determinations and the necessary information is available;
h. The model(s) shall utilize and document a logical
correspondence between the assumed scenario of land development and use and the
future transportation system for which emissions are being estimated. Reliance
on a formal land-use model is not specifically required but is encouraged;
i. A dependence of trip generation on the accessibility of
destinations via the transportation system (including pricing) is strongly
encouraged but not specifically required, unless the network model is capable
of such determinations and the necessary information is available;
j. A dependence of regional economic and population growth
on the accessibility of destinations via the transportation system is strongly
encouraged but not specifically required, unless the network model is capable
of such determinations and the necessary information is available; and
k. Consideration of emissions increases from
construction-related congestion is not specifically required.
2. Highway Performance Monitoring System (HPMS) estimates
of vehicle miles traveled shall be considered the primary measure of vehicle
miles traveled within the portion of the nonattainment or maintenance area and
for the functional classes of roadways included in HPMS, for urban areas which
are sampled on a separate urban area basis. A factor (or factors) shall be
developed to reconcile and calibrate the network-based model estimates of
vehicle miles traveled in the base year of its validation to the HPMS estimates
for the same period, and these factors shall be applied to model estimates of
future vehicle miles traveled. In this factoring process, consideration shall
be given to differences in the facility coverage of the HPMS and the modeled
network description. Departure from these procedures is permitted with the
concurrence of USDOT and EPA.
3. Reasonable methods shall be used to estimate
nonattainment area vehicle travel on off-network roadways within the urban
transportation planning area, and on roadways outside the urban transportation
planning area.
4. Reasonable methods in accordance with good practice
shall be used to estimate traffic speeds and delays in a manner that is
sensitive to the estimated volume of travel on each roadway segment represented
in the network model.
C. For areas which are not serious, severe, or extreme
ozone nonattainment areas or serious carbon monoxide areas, or before January
1, 1995, the requirements of this subsection shall be met.
1. Procedures which satisfy some or all of the requirements
of subsection B of this section shall be used in all areas not subject to
subsection B of this section in which those procedures have been the previous
practice of the MPO.
2. Regional emissions may be estimated by methods which do
not explicitly or comprehensively account for the influence of land use and
transportation infrastructure on vehicle miles traveled and traffic speeds and
congestion. The methods shall account for VMT growth by extrapolating
historical VMT or projecting future VMT by considering growth in population and
historical growth trends for vehicle miles travelled per person. These methods
shall also consider future economic activity, transit alternatives, and
transportation system policies.
D. This subsection applies to any nonattainment or
maintenance area or any 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 (because the
nonattainment or maintenance area or portion thereof does not contain a
metropolitan planning area or portion of a metropolitan planning area and is
not part of a Metropolitan Statistical Area or Consolidated Metropolitan
Statistical Area which is or contains a nonattainment or maintenance area).
1. Conformity demonstrations for projects in these areas
may satisfy the requirements of 9VAC5-150-280, 9VAC5-150-320, and 9VAC5-150-350
with one regional emissions analysis which includes all the regionally
significant projects in the nonattainment or maintenance area (or portion
thereof).
2. The requirements of 9VAC5-150-280 shall be satisfied
according to the procedures in 9VAC5-150-280 C, with references to the
"transportation plan" taken to mean the statewide transportation
plan.
3. The requirements of 9VAC5-150-320 and 9VAC5-150-350
which reference "transportation plan" or "TIP" shall be
taken to mean those projects in the statewide transportation plan or statewide
TIP which are in the nonattainment or maintenance area (or portion thereof).
4. The requirement of 9VAC5-150-370 B shall be satisfied
if:
a. The project is included in the regional emissions
analysis which includes all regionally significant highway and transportation
projects in the nonattainment or maintenance area (or portion thereof) and
supports the most recent conformity determination made according to the
requirements of 9VAC5-150-280, 9VAC5-150-320, or 9VAC5-150-350 (as modified by
subdivisions 2 and 3 of this subsection), as appropriate for the time period
and pollutant; and
b. The project's design concept and scope have not changed
significantly from those which were included in the regional emissions
analysis, or in a manner which would significantly impact use of the facility.
E. For PM10 from construction-related fugitive
dust, the requirements of this subsection shall be met.
1. For areas in which the implementation plan does not
identify construction-related fugitive PM10 as a contributor to the
nonattainment problem, the fugitive PM10 emissions associated with highway
and transit project construction are not required to be considered in the
regional emissions analysis.
2. In PM10 nonattainment and maintenance areas
with implementation plans which identify construction-related fugitive PM10
as a contributor to the nonattainment problem, the regional PM10
emissions analysis shall consider construction-related fugitive PM10
and shall account for the level of construction activity, the fugitive PM10
control measures in the applicable implementation plan, and the dust-producing
capacity of the proposed activities.
9VAC5-150-390. Procedures for determining localized CO and PM10
concentrations (hot-spot analysis). (Repealed.)
A. In the following cases, CO hot-spot analyses shall be
based on the applicable air quality models, data bases, and other requirements
specified in Appendix W of 40 CFR Part 51, unless, after the interagency
consultation process described in 9VAC5-150-130 and with the approval of the
EPA Regional Administrator, these models, data bases, and other requirements
are determined to be inappropriate:
1. For projects in or affecting locations, areas, or
categories of sites which are identified in the applicable implementation plan
as sites of current violation or possible current violation;
2. For those intersections at Level-of-Service D, E, or F,
or those that will change to Level-of-Service D, E, or F because of increased
traffic volumes related to a new project in the vicinity;
3. For any project involving or affecting any of the intersections
which the applicable implementation plan identifies as the top three
intersections in the nonattainment or maintenance area based on the highest
traffic volumes;
4. For any project involving or affecting any of the
intersections which the applicable implementation plan identifies as the top
three intersections in the nonattainment or maintenance area based on the worst
Level-of-Service; and
5. Where use of the "guideline" models is
practicable and reasonable given the potential for violations.
B. In cases other than those described in subsection A of
this section, other quantitative methods may be used if they represent
reasonable and common professional practice.
C. CO hot-spot analyses shall include the entire project,
and may be performed only after the major design features which shall
significantly impact CO concentrations have been identified. The background
concentration can be estimated using the ratio of future-to-current traffic
multiplied by the ratio of future-to-current emission factors.
D. PM10 hot-spot analysis shall be performed for
projects which are located at sites at which violations have been verified by
monitoring, and at sites which have essentially identical vehicle and roadway
emission and dispersion characteristics (including sites near one at which a
violation has been monitored). The projects which require PM10
hot-spot analysis shall be determined through the interagency consultation
process required in 9VAC5-150-130. In PM10 nonattainment and
maintenance areas, new or expanded bus and rail terminals and transfer points
which increase the number of diesel vehicles congregating at a single location
require hot-spot analysis. USDOT may choose to make a categorical conformity
determination on bus and rail terminals or transfer points based on appropriate
modeling of various terminal sizes, configurations, and activity levels. The
requirements of this subsection for quantitative hot-spot analysis shall not
take effect until EPA releases modeling guidance on this subject and announces
in the Federal Register that these requirements are in effect.
E. Hot-spot analysis assumptions shall be consistent with
those in the regional emissions analysis for those inputs which are required
for both analyses.
F. PM10 or CO mitigation or control measures
shall be assumed in the hot-spot analysis only where there are written
commitments from the project sponsor, operator or both, to the implementation
of the measures, as required by 9VAC5-150-410 A.
G. CO and PM10 hot-spot analyses are not
required to consider construction-related activities which cause temporary
increases in emissions. Each site which is affected by construction-related
activities shall be considered separately, using established
"guideline" methods. Temporary increases are defined as those which
occur only during the construction phase and last five years or less at any
individual site.
9VAC5-150-400. Using the motor vehicle emissions budget in
the applicable implementation plan (or implementation plan submission). (Repealed.)
A. In interpreting an applicable implementation plan (or
implementation plan submission) with respect to its motor vehicle emissions
budget or budgets, the MPO and USDOT may not infer additions to the budget or
budgets that are not explicitly intended by the implementation plan (or
submission). Unless the implementation plan explicitly quantifies the amount by
which motor vehicle emissions could be higher while still allowing a
demonstration of compliance with the milestone, attainment, or maintenance
requirement and explicitly states an intent that some or all of this additional
amount should be available to the MPO and USDOT in the emission budget for
conformity purposes, the MPO may not interpret the budget to be higher than the
implementation plan's estimate of future emissions. This applies in particular
to applicable implementation plans (or submissions) which demonstrate that after
implementation of control measures in the implementation plan:
1. Emissions from all sources shall be less than the total
emissions that would be consistent with a required demonstration of an
emissions reduction milestone;
2. Emissions from all sources shall result in achieving
attainment prior to the attainment deadline or ambient concentrations in the
attainment deadline year shall be lower than needed to demonstrate attainment,
or both; or
3. Emissions shall be lower than needed to provide for continued
maintenance.
B. If an applicable implementation plan submitted before
November 24, 1993, demonstrates that emissions from all sources shall be less
than the total emissions that would be consistent with attainment and
quantifies that "safety margin," the state may submit a SIP revision
which assigns some or all of this safety margin to highway and transit mobile
sources for the purposes of conformity. The SIP revision, once it is endorsed
by the Governor and has been subject to a public hearing, may be used for the
purposes of transportation conformity before it is approved by EPA.
C. A conformity demonstration shall not trade emissions
among budgets which the applicable implementation plan (or implementation plan
submission) allocates for different pollutants or precursors, or among budgets
allocated to motor vehicles and other sources, without a SIP revision or a SIP
which establishes mechanisms for the trades.
D. If the applicable implementation plan (or implementation
plan submission) estimates future emissions by geographic subarea of the
nonattainment area, the MPO and USDOT are not required to consider this to
establish subarea budgets, unless the applicable implementation plan (or
implementation plan submission) explicitly indicates an intent to create the
subarea budgets for the purposes of conformity.
E. If a nonattainment area includes more than one MPO, the
SIP may establish motor vehicle emissions budgets for each MPO, or else the
MPOs shall collectively make a conformity determination for the entire
nonattainment area.
9VAC5-150-410. Enforceability of design concept and scope and
project-level mitigation and control measures. (Repealed.)
A. Prior to determining that a transportation project is in
conformity, the MPO, other recipient of funds designated under Title 23 USC or
the Federal Transit Act, FHWA, or FTA shall obtain from the project sponsor,
operator or both, written commitments to implement in the construction of the
project and operation of the resulting facility or service any project-level
mitigation or control measures which are identified as conditions for NEPA
process completion with respect to local PM10 or CO impacts. Before
making conformity determinations written commitments shall also be obtained for
project-level mitigation or control measures which are conditions for making
conformity determinations for a transportation plan or TIP and included in the
project design concept and scope which is used in the regional emissions
analysis required by 9VAC5-150-260 through 9VAC5-150-280 and 9VAC5-150-300
through 9VAC5-150-320 or used in the project-level hot-spot analysis required
by 9VAC5-150-240 and 9VAC5-150-290.
B. Project sponsors voluntarily committing to mitigation
measures to facilitate positive conformity determinations shall comply with the
obligations of the commitments.
C. The implementation plan revision required in this
regulation shall provide that written commitments to mitigation measures shall
be obtained prior to a positive conformity determination, and that project
sponsors shall comply with the commitments.
D. During the control strategy and maintenance periods, if
the MPO or project sponsor believes the mitigation or control measure is no
longer necessary for conformity, the project sponsor or operator may be
relieved of its obligation to implement the mitigation or control measure if it
can demonstrate that the requirements of 9VAC5-150-240, 9VAC5-150-260, and
9VAC5-150-270 are satisfied without the mitigation or control measure, and so
notifies the agencies involved in the interagency consultation process required
under 9VAC5-150-130. The MPO and USDOT shall confirm that the transportation
plan and TIP still satisfy the requirements of 9VAC5-150-260 and 9VAC5-150-270
and that the project still satisfies the requirements of 9VAC5-150-240, and
therefore that the conformity determinations for the transportation plan, TIP,
and project are still valid.
9VAC5-150-420. Exempt projects. (Repealed.)
Notwithstanding the other requirements of this chapter,
highway and transit projects of the types listed in Table 2 are exempt from the
requirement that a conformity determination be made. The projects may proceed
toward implementation even in the absence of a conforming transportation plan
and TIP. A particular action of the type listed in Table 2 is not exempt if the
MPO in consultation with other agencies (see 9VAC5-150-130 C 1 c), the EPA, and
the FHWA (in the case of a highway project) or the FTA (in the case of a
transit project) concur that it has potentially adverse emissions impacts for
any reason. States and MPOs shall ensure that exempt projects do not interfere
with TCM implementation.
Table 2.
Exempt Projects.
SAFETY
Railroad/highway crossing
Hazard elimination program
Safer non-federal-aid system roads
Shoulder improvements
Increasing sight distance
Safety improvement program
Traffic control devices and operating assistance other than
signalization projects
Railroad/highway crossing warning devices
Guardrails, median barriers, crash cushions
Pavement resurfacing, rehabilitation or both
Pavement marking demonstration
Emergency relief (23 USC 125)
Fencing
Skid treatments
Safety roadside rest areas
Adding medians
Truck climbing lanes outside the urbanized area
Lighting improvements
Widening narrow pavements or reconstructing bridges (no
additional travel lanes)
Emergency truck pullovers
MASS TRANSIT
Operating assistance to transit agencies
Purchase of support vehicles
Rehabilitation of transit vehicles1
Purchase of office, shop, and operating equipment for
existing facilities
Purchase of operating equipment for vehicles (e.g., radios,
fareboxes, lifts, etc.)
Construction or renovation of power, signal, and
communications systems
Construction of small passenger shelters and information
kiosks
Reconstruction or renovation of transit buildings and
structures (e.g., rail or bus buildings, storage and maintenance facilities,
stations, terminals, and ancillary structures)
Rehabilitation or reconstruction of track structures,
track, and trackbed in existing rights-of-way
Purchase of new buses and rail cars to replace existing
vehicles or for minor expansions of the fleet1
Construction of new bus or rail storage/maintenance
facilities categorically excluded in 23 CFR 771
AIR QUALITY
Continuation of ride-sharing and van-pooling promotion
activities at current levels Bicycle and pedestrian facilities
OTHER
Specific activities which do not involve or lead directly
to construction, such as:
Planning and technical studies
Grants for training and research programs
Planning activities conducted pursuant to Titles 23 and 49
USC
Federal-aid systems revisions
Engineering to assess social, economic, and environmental
effects of the proposed action or alternatives to that action
Noise attenuation
Advance land acquisitions (23 CFR 712 or 23 CFR 771)
Acquisition of scenic easements
Plantings, landscaping, etc.
Sign removal
Directional and informational signs
Transportation enhancement activities (except
rehabilitation and operation of historic transportation buildings, structures,
or facilities)
Repair of damage caused by natural disasters, civil unrest,
or terrorist acts, except projects involving substantial functional, locational
or capacity changes
1In PM10 nonattainment or maintenance areas, the
projects are exempt only if they are in compliance with control measures in the
applicable implementation plan.
9VAC5-150-430. Projects exempt from regional emissions
analyses. (Repealed.)
Notwithstanding the other requirements of this chapter,
highway and transit projects of the types listed in Table 3 are exempt from
regional emissions analysis requirements. The local effects of these projects
with respect to CO or PM10 concentrations shall be considered to
determine if a hot-spot analysis is required prior to making a project-level
conformity determination. These projects may then proceed to the project
development process even in the absence of a conforming transportation plan and
TIP. A particular action of the type listed in Table 3 is not exempt from
regional emissions analysis if the MPO in consultation with other agencies (see
9VAC5-150-130 C 1 c), the EPA, and the FHWA (in the case of a highway project)
or the FTA (in the case of a transit project) concur that it has potential
regional impacts for any reason.
Table 3.
Projects Exempt From Regional Emissions Analyses.
Intersection channelization projects
Intersection signalization projects at individual
intersections
Interchange reconfiguration projects
Changes in vertical and horizontal alignment
Truck size and weight inspection stations
Bus terminals and transfer points
9VAC5-150-440. Special provisions for nonattainment areas
which are not required to demonstrate reasonable further progress and
attainment. (Repealed.)
A. This section applies in the following areas:
1. Rural transport ozone nonattainment areas;
2. Marginal ozone areas;
3. Submarginal ozone areas;
4. Transitional ozone areas;
5. Incomplete data ozone areas;
6. Moderate CO areas with a design value of 12.7 ppm or
less; and
7. Not classified CO areas.
B. The criteria and procedures in 9VAC5-150-300 through 9VAC5-150-320
shall remain in effect throughout the control strategy period for
transportation plans, TIPs, and projects (not from a conforming plan and TIP)
in lieu of the procedures in 9VAC5-150-260 through 9VAC5-150-280, except as
otherwise provided in subsection C of this section.
C. The LPO may voluntarily develop an attainment
demonstration and corresponding motor vehicle emissions budget like those
required in areas with higher nonattainment classifications. In this case, the
DEQ shall submit an implementation plan revision which contains that budget and
attainment demonstration. Once EPA has approved this implementation plan
revision, the procedures in 9VAC5-150-260 through 9VAC5-150-280 apply in lieu
of the procedures in 9VAC5-150-300 through 9VAC5-150-320.
9VAC5-150-450. Review and confirmation of this chapter by
board. (Repealed.)
A. Prior to January 1, 2000, the department shall provide
the board with an analysis to include (i) an assessment of the effectiveness of
this chapter, (ii) the status of any specific federal requirements and the
identification of any provisions more stringent than the federal requirements,
(iii) the federal approval status of this chapter and (iv) an assessment of the
need for continuation of this chapter.
B. Upon review of the department's analysis, the board
shall confirm (i) the continuation of this chapter, (ii) the repeal of this
chapter or (iii) the need to amend this chapter. If a decision is made in
either of the latter two cases, the board shall authorize the department to
initiate the applicable regulatory process to carry out the decision of the
board.