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Subpart 240-1 Transportation Conformity General Provisions

(Statutory authority: Environmental Conservation Law, §§ 1-0101, 1-0303, 3-0301, 19-0103, 19-0105, 19-0301, 19-0303, and 19-0305)

[Filed 9/22/04. Effective date 30 days after filing. Adoption filed 8/14/13. Effective 30 days after filing.]

For administrative information about this posting, contact: Division of Air Resources. The Bureau of Air Quality Planning at (518) 402-8396 is the contact for technical questions pertaining to this rule.

Contents:

Sec.

§240-1.1 Definitions

(a) The general definitions of Part 200 of this Title apply to this Part unless they are inconsistent with the specific definitions in subdivision (b) of this section.

(b) The following specific definitions apply to this Part:

(1) Affected MPO. A metropolitan planning organization (MPO) with a planning boundary that includes a nonattainment or maintenance area.

(2) Applicable State implementation plan (SIP) revision. The portion (or portions) of the State implementation plan, or most recent revision thereof, which has been approved under section 110, or promulgated under section 110(c), or promulgated or approved pursuant to regulations promulgated under section 301(d) of the act, and which implements the relevant requirements of the act for the purpose of determining conformity of federally funded transportation plans, programs or projects to State implementation plans, and meets the requirements of an implementation plan as defined in section 302(q) of the act (see Table 1, section 200.9 of this Title).

(3) Consultation. The process by which involved agencies confer with each other, provide appropriate information needed for meaningful input, and consider the views of other involved agencies prior to any final decisions made pursuant to this Part. At a minimum, consultation means substantial compliance with the requirements of subpart 240-2 of this Part.

(4) Design concept. 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.

(5) Design scope. 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.

(6) Facility. That which is built, installed, established or operated to serve a transportation purpose.

(7) FHWA. The Federal Highway Administration of USDOT.

(8) FHWA/FTA project. 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.

(9) FTA. The Federal Transit Administration of USDOT.

(10) Governor. The Governor of the State of New York, or the Governor's designee.

(11) Highway project. 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 must be defined sufficiently to:

(i) connect logical termini and be of sufficient length to address environmental matters on a broad scope;

(ii) 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

(iii) not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

(12) Hot-spot analysis. An estimation of likely future localized CO, PM10, and/or PM2.5 pollutant concentrations and a comparison of those concentrations to the national ambient air quality standards (NAAQS). 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.

(13) Involved agencies. The department, NYSDOT, EPA, FHWA, FTA, affected MPOs, affected counties in nonattainment or maintenance areas outside MPO planning boundaries, affected local air agencies, and any other agencies responsible for project level conformity.

(14) Lead conformity agency. Any agency primarily responsible for the development of a transportation plan, a transportation improvement program (TIP), a transportation project or the associated conformity determinations.

(15) Local air agency. A local agency responsible for air quality issues which has been specifically identified in the state implementation plan as a local air agency.

(16) Maintenance area. Any geographic region of the United States previously designated nonattainment pursuant to the act and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under section 175A of the act (see Table 1, section 200.9 of this Title).

(17) Maintenance plan. An applicable SIP revision meeting the requirements of section 175A of the act (see Table 1, section 200.9 of this Title).

(18) Metropolitan planning organization (MPO). That organization designated as being responsible, together with the State, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. section 134 and 49 U.S.C. section 5303 (see Table 1, section 200.9 of this Title). It is the forum for cooperative transportation decision-making. The metropolitan planning organizations in New York are the Adirondack-Glens Falls Transportation Council, Binghamton Metropolitan Transportation Study, Capital District Transportation Committee, Elmira-Chemung Transportation Council, Genesee Transportation Council, Greater Buffalo-Niagara Regional Transportation Council, Herkimer-Oneida Counties Transportation Study, Ithaca-Tompkins County Transportation Council, Orange County Transportation Council, New York Metropolitan Transportation Council, Poughkeepsie-Dutchess County Transportation Council, Syracuse Metropolitan Transportation Council and the Ulster County Transportation Council.

(19) Milestone. A milestone has the meaning given in sections 182(g)(1) or section 189(c) of the act (see Table 1, section 200.9 of this Title) for serious and above ozone nonattainment areas and PM10 nonattainment areas, respectively. For all other nonattainment areas, a milestone consists of an emissions level and the date on which that level is to be achieved as required by the applicable act provision for reasonable further progress towards attainment.

(20) Motor vehicle emissions budget (MVEB). That portion of the total allowable emissions defined in the applicable submitted or approved control strategy SIP revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions.

(21) National ambient air quality standards (NAAQS). Those standards established pursuant to section 109 of the act (see Table 1, section 200.9 of this Title).

(22) NEPA. The National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.).

(23) Nonattainment area. Any geographic region of the United States which has been designated as nonattainment under section 107 of the act (see Table 1, section 200.9 of this Title) for any pollutant for which a national ambient air quality standard exists.

(24) NYSDOT. The New York State Department of Transportation.

(25) Project. highway project or transit project.

(26) Recipient of funds designated under title 23 U.S.C. or the Federal Transit Laws. Any State, county, city, or regional government agency that routinely receives title 23 U.S.C. or Federal Transit Laws 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.

(27) Regionally significant project. A transportation project (other than an exempt project as defined in 40 CFR 93.126 and 93.127 (see Table 1, section 200.9 of this Title)) that is on a facility which serves regional transportation needs (such as access to and from transportation terminals, the area outside of the region, major activity centers in the region, and major planned developments such as new retail malls, sports complexes, etc., or transportation terminals) 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.

(28) SEQR. The State Environmental Quality Review Act, article 8 of the Environmental Conservation Law.

(29) Transit. 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.

(30) Transit project. 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 must be defined inclusively enough to:

(i) connect logical termini and be of sufficient length to address environmental matters on a broad scope;

(ii) have independent utility or independent significance, i.e., be a reasonable expenditure even if no additional transportation improvements in the area are made; and

(iii) not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

(31) Transportation control measure (TCM). Any measure that is specifically identified and committed to in the applicable SIP revision, including a substitute or additional TCM that is incorporated in the applicable SIP revision through the process established in section 176(c)(8) of the act (see Table 1, section 200.9 of this Title) , that is either one of the types listed in section 108 of the act (see Table 1, section 200.9 of this Title), or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing travel 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 TCMs for the purposes of this Part.

(32) Transportation Improvement Program (TIP). A transportation improvement program developed by a MPO under 23 U.S.C. 134(j) (see Table 1, section 200.9 of this Title). A statewide transportation improvement program (STIP) is not a TIP subject to this Part.

(33) Transportation plan. 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 (see Table 1, section 200.9 of this Title). A statewide transportation plan is not a transportation plan subject to the conformity requirements.

(34) Transportation project. A highway project or a transit project.

(35) USDOT. The United States Department of Transportation.

(36) Written commitment. A written commitment that includes a description of the action to be taken, a schedule for the completion of the action; a demonstration that funding necessary to implement the action has been authorized by the appropriating or authorizing body; and an acknowledgment that the commitment is an enforceable obligation under the applicable SIP revision.

§240-1.2 Applicability

Part 240 establishes the department's transportation conformity requirements. Applicability for this program is defined at 40 CFR 93.102 (see Table 1, section 200.9 of this Title).