Part 240: Conformity to State or Federal Implementation Plans - Page 1

(Statutory authority: Environmental Conservation Law, §§ 3-0301, 19-0301, 19-0303)

[Filed 9/22/04. Effective date 30 days after filing.]

[page 1 of 2] Pages in this Part: 1 (Sections 240.1 - 240.15) 2 (Sections 240.16 - 200.29)

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.

240.1 Purpose
240.2 Definitions
240.3 Applicability
240.4 Priority
240.5 Frequency of conformity determinations
240.6 Consultation
240.7 Content of transportation plans
240.8 Relationship of transportation plan and TIP conformity with the NEPA and SEQR processes
240.9 Fiscal constraints for transportation plans and TIPs
240.10 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General
240.11 Criteria and procedures: latest planning assumptions
240.12 Criteria and procedures: latest emissions model
240.13 Criteria and procedures: consultation
240.14 Criteria and procedures: timely implementation of TCMs
240.15 Criteria and procedures: currently conforming transportation plan and TIP

§240.1 Purpose

The purpose of this Part is to implement Environmental Protection Agency (EPA) regulations codified at 40 CFR part 51.390 (see section 200.9 of this Title), which requires each state to submit revisions to its State Implementation Plan (SIP) establishing criteria and procedures for assessing the conformity of transportation plans, programs, and projects which are developed, funded, or approved by the United States Department of Transportation (USDOT), and by metropolitan planning organizations (MPOs) or other recipients of funds under title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. chapter 53) (see section 200.9 of this Title). This Part sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such activities to an applicable state implementation plan (SIP) revisions developed pursuant to section 110 and part D of the act (see section 200.9 of this Title).

§240.2 Definitions

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

(b) Applicable state implementation plan (SIP) revision. For the purpose of this part an applicable state implementation plan (SIP) revision meets the requirements of an implementation plan as defined in section 302(q) of the Act (see section 200.9 of this Title) and means 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) (see section 200.9 of this Title) 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.

(1) to cause or contribute to a new violation of a national ambient air quality standard (NAAQS) in the area substantially affected by the project or over a region which would otherwise not be in violation of the NAAQS 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 NAAQS in such area.

(d) Clean data. Air quality monitoring data determined by EPA to meet the requirements of 40 CFR part 58 (see section 200.9 of this Title) that indicate attainment of a national ambient air quality standard.

(e) Control strategy implementation plan revision. A State Implementation Plan (SIP) revision which contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy the Act's requirements for demonstrations of reasonable further progress and attainment (see sections 182[b][1], 182[c][2][A], 182[c][2][B], 187[a][7], 189[a][1][B], and 189[b][1][A]; and sections 192[a] and 192[b], for nitrogen dioxide of the act) (see section 200.9 of this Title).

(f) 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 section 240.6 of this Part.

(g) Department. The New York State Department of Environmental Conservation.

(h) 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.

(i) 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 or stations, preferential treatment for high-occupancy vehicles, etc.

(j) Facility. For the purpose of this Part, a facility is that which is built, installed, established or operated to serve a transportation purpose.

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

(l) FHWA/FTA project. For the purpose of this Part, 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.

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

(n) Forecast period. With respect to a transportation plan the period covered by the transportation plan pursuant to 23 CFR part 450 (see section 200.9 of this Title).

(o) Governor. The Governor of the State of New York, or his or her designee.

(p) 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:

(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.

(q) Horizon year. A year for which the transportation plan describes the envisioned transportation system according to section 240.7 of this Part.

(r) Hot-spot analysis. An estimation of likely future localized CO and PM₁₀ 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.

(s) Increase the frequency or severity. To cause a location or region to exceed a national ambient air quality standard (NAAQS) more often or to cause a violation of a NAAQS at a greater concentration than previously existed and/or would otherwise exist during the future period in question, if the project were not implemented.

(t) Involved agencies. The department, NYSDOT, EPA, USDOT, affected MPOs, affected counties in nonattainment or maintenance areas outside MPO planning boundaries for state implementation plan (SIP) revisions and transportation conformity determinations directly affecting their jurisdictions, affected local air agencies and any other agencies responsible for project level conformity.

(u) Lapse. When the conformity determination for a Transportation Plan or TIP has expired, and there is no currently conforming Transportation Plan and TIP.

(v) 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.

(w) 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.

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

(y) Maintenance plan. An applicable SIP revision meeting the requirements of section 175A of the act, as amended (see section 200.9 of this Title).

(z) 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 section 200.9 of this Title). It is the forum for cooperative transportation decision-making.

(aa) Milestone. A milestone is the date on which an emissions level is required to be achieved under sections 182(g)(1) or section 198(c) of the act (see section 200.9 of this Title).

(ab) Motor vehicle emissions budget. 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.

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

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

(ae) NEPA process completion. For the purposes of this Part, with respect to FHWA or FTA, means 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.

(af) Nonattainment area. For the purpose of the Part, any geographic region of the United States which has been designated as nonattainment under section 107 of the CAA for any pollutant for which a national ambient air quality standard exists.

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

(ah) Project. A highway project or transit project.

(ai) Protective finding. A determination by EPA that a submitted control strategy SIP revision contains adopted control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for which the SIP revision was submitted, such as reasonable further progress or attainment.

(aj) Recipient of funds designated under title 23 U.S.C. or the Federal Transit Laws. Any agency at any level of State, county, city, or regional government that routinely receives title 23 U.S.C. or Federal Transit Laws (see section 200.9 of this Title) 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.

(ak) Regional Administrator. The Regional Administrator of the appropriate regional office of the EPA or the authorized representative of the Regional Administrator.

(al) Regionally significant project. 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.

(am) Safety margin. The amount by which the total projected emissions from all sources of a given pollutant are less than the total emissions that would satisfy the applicable requirement for reasonable further progress, attainment, or maintenance.

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

(ao) Title 23 U.S.C. Title 23 of the United States Code, which primarily deals with Federal-Aid highway projects (see section 200.9 of this Title).

(ap) 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.

(aq) 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:

(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.

(ar) Transportation control measure (TCM). Any measure that is specifically identified and committed to in the applicable SIP revision that is either one of the types listed in section 108 of the Act (see section 200.9 of this Title), or any other measure also specifically identified and committed to in the applicable SIP revision as a TCM 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.

(as) Transportation Improvement Program (TIP). 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 (see section 200.9 of this Title). A statewide transportation improvement program (STIP) is not a TIP subject to this Part.

(at) 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 section 200.9 of this Title) . For purposes of this Part, a statewide transportation plan is not a transportation plan subject to the conformity requirements.

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

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

(aw) Written commitment. For the purposes of this Part, a written commitment 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.

§240.3 Applicability

(a) Action applicability.

(1) Except as provided for in paragraph (c) of this section or section 240.27 of this Part, conformity determinations are required for:

(i) the adoption, acceptance, approval or support of transportation plans and transportation plan amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 (see section 200.9 of this Title) by an MPO or USDOT;

(ii) the adoption, acceptance, approval or support of TIPs and TIP amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 (see section 200.9 of this Title) by an MPO or USDOT; and

(iii) the approval, funding, or implementation of FHWA/FTA projects. START HERE (2) Conformity determinations are not required under this Part for individual projects which are not FHWA/FTA projects. However, sections 240.17, 240.18 and 240.22 of this Part apply to such projects if they are regionally significant.

(b) Geographic Applicability. The provisions of this Part 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.

(1) The provisions of this Part apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide (CO), nitrogen dioxide (NO₂), and particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM₁₀).

(2) The provisions of this Part apply with respect to emissions of the following precursor pollutants:

(i) Volatile organic compounds (VOC) and nitrogen oxides (NO_x) in ozone areas;

(ii) NO_x in NO₂ areas; and

(iii) VOC, NO_x, and PM₁₀ in PM₁₀ areas if the EPA Regional Administrator or the Commissioner 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 if the applicable SIP revision (or applicable SIP revision submission) establishes a budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy.

(3) The provisions of this Part apply to maintenance areas for 20 years from the date EPA approves the area's request under section 107(d) of the Act (see section 200.9 of this Title) for redesignation to attainment, unless the applicable SIP revision specifies that the provisions of this Part shall apply for more than 20 years.

(1) Projects subject to this regulation for which the NEPA process and a conformity determination have been completed by USDOT may proceed toward implementation without further conformity determinations unless more than three years have elapsed since the most recent major step occurred (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 will 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 three years have elapsed since the most recent major step to advance the project occurred.

§240.4 Priority

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 SIP revision prepared to attain and maintain the NAAQS. This priority shall be consistent with statutory requirements for allocation of funds among States or other jurisdictions.

§240.5 Frequency of conformity determinations

(a) Conformity determinations and conformity redeterminations for transportation plans, TIPs, and FHWA/FTA projects must be made according to the requirements of this section and the applicable SIP revision.

(b) Frequency of conformity determinations for transportation plans.

(1) Each new transportation plan must be demonstrated to conform pursuant to the provisions of this Part before the transportation plan is approved by the MPO or accepted by USDOT.

(2) All transportation plan revisions must be found to conform before the transportation plan revisions are approved by the MPO or accepted by USDOT, unless the revision merely adds or deletes exempt projects listed in section 240.27 or section 240.28 of this Part. The conformity determination must be based on the transportation plan and the revision taken as a whole.

(3) The MPO and USDOT must determine the conformity of the transportation plan pursuant to the provisions of this Part no less frequently than every three years. If more than three years elapse after USDOT's conformity determination without the MPO and USDOT determining conformity of the transportation plan, the existing conformity determination will lapse.

(1) A new TIP must be demonstrated 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 section 240.27 or section 240.28 of this Part.

(3) The MPO and USDOT must determine the conformity of the TIP no less frequently than every three years. If more than three years elapse after USDOT's conformity determination without the MPO and USDOT determining conformity of the TIP, the existing conformity determination will lapse.

(4) After an MPO adopts a new or revised transportation plan, conformity of the TIP must be redetermined by the MPO and USDOT within six months from the date of USDOT's conformity determination for the transportation plan, unless the new or revised plan merely adds or deletes exempt projects listed in sections 240.27 and 240.28 of this Part. Otherwise, the existing conformity determination for the TIP will lapse.

(d) Projects. FHWA/FTA projects must be found to conform before they are adopted, accepted, approved, or funded. Conformity must be redetermined for any FHWA/FTA project if three years have elapsed since the most recent major step to advance the project (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) occurred.

(e) Triggers for transportation plan and TIP conformity determinations. Conformity of existing transportation plans and TIPs must be redetermined within 18 months of the following, or the existing conformity determination will lapse, and no new project-level conformity determinations may be made until conformity of the transportation plan and TIP has been determined by the MPO and USDOT:

(1) The date of the State's initial submission to EPA of each control strategy SIP revision or maintenance plan establishing a motor vehicle emissions budget;

(2) EPA approval of a control strategy SIP revision or maintenance plan which establishes or revises a motor vehicle emissions budget;

(3) EPA approval of a SIP revision that adds, deletes, or changes TCMs; and

(4) EPA promulgation of a SIP revision which establishes or revises a motor vehicle emissions budget or adds, deletes, or changes TCMs.

§240.6 Consultation

(a) General. The affected MPOs and NYSDOT shall provide the department, local air agencies, other involved agencies where appropriate, USDOT and EPA with reasonable opportunity for consultation throughout the process of determining conformity of MPO long range transportation plans and TIPs. The department shall provide reasonable opportunity for consultation with NYSDOT, affected MPOs, local air agencies, other involved agencies where appropriate, FHWA/FTA, and EPA throughout the process of developing applicable SIP revisions. Such reasonable opportunity shall include substantial compliance with all applicable consultation procedures set forth in this section.

(b) Interagency department communications. In order to provide for an appropriate integration of air quality and transportation planning, the affected MPOs and NYSDOT shall provide an opportunity for the department and, where appropriate, local air agencies and other involved agencies to be fully and actively involved on a continuing basis throughout the development of MPO transportation plans, MPO TIPs, program of transportation projects and associated MPO transportation plan, MPO TIP, and program of projects conformity determinations. The department shall provide an opportunity for NYSDOT, affected MPOs, and, where applicable, other involved agencies, to be fully and actively involved on a continuing basis throughout the development of applicable SIP revisions, including, but not limited to, the TCM and emissions budget components.

(1) The communications required by this subdivision shall include communications necessary to allow a full and active involvement on a continuing basis by the department and, where appropriate, local air agencies and other involved agencies throughout the development of MPO transportation plans, MPO TIPs, and associated MPO transportation plan, MPO TIP and program of projects conformity determinations. The communications required by this subdivision shall also include communications necessary to allow a full and active involvement on a continuing basis by NYSDOT and affected MPOs in the development of the applicable SIP revision.

(2) The lead conformity agency developing MPO transportation plans, MPO TIPs, and associated MPO transportation plan and MPO TIP conformity determinations or the department shall convene meetings:

(i) between technical representatives of such agency and the department, NYSDOT, affected MPOs and, as appropriate, local air and transportation agencies;

(a) at least every 120 days for MPO transportation plan and MPO TIP conformity determinations applicable to serious or severe nonattainment areas;

(b) at least every 180 days for MPO transportation plan and MPO TIP conformity determinations applicable to other nonattainment or maintenance areas;

(c) at least every 120 days for proposed applicable SIP revisions for serious or severe nonattainment areas; and

(d) at least every 180 days for proposed applicable SIP revisions for other nonattainment areas.

(ii) between policy level representatives of such agency and the department, NYSDOT, affected MPOs and, as appropriate, local air and transportation agencies:

(a) at least every 180 days for MPO transportation plan and MPO TIP conformity determinations applicable to serious or severe nonattainment areas;

(b) at least once annually for MPO transportation plan and MPO TIP conformity determinations applicable to other nonattainment or maintenance areas;

(c) at least every 180 days for proposed applicable SIP revisions for serious or severe nonattainment areas; and

(d) at least once annually for proposed applicable SIP revisions for other nonattainment or maintenance areas.

(3) The department, NYSDOT, and the affected MPOs may agree to waive any of the meetings required pursuant to paragraph (2) of this subdivision if the meeting is not necessary for adequate consultation.

(c) The department shall annually provide to NYSDOT a list of all applicable SIP revisions expected to be submitted to EPA that calendar year.NYSDOT shall annually provide to the department a list of all actions requiring a conformity determination that calendar year.

(d) Conformity contacts. The affected MPOs, NYSDOT, the department, local air agencies, and nonattainment and maintenance area counties outside MPO boundaries shall provide to all other involved agencies, the names and addresses of agency offices or officers to which all correspondence in furtherance of this Part is to be directed. Each involved agency shall provide the information required by this subdivision within 30 days of the effective date of this Part.

(e) Provision of draft documents. The lead conformity agency and the department shall provide the other involved agencies with relevant draft documents in accordance with this subdivision.

(1) MPOs developing the long range transportation plan, TIP, and associated transportation plan, MPO TIP conformity determinations shall provide involved agencies with draft documents including; draft long range transportation plans, draft TIPs, draft transportation plan conformity determinations, draft TIP conformity determinations, draft regional emissions analyses, and other draft emissions analyses to be utilized for conformity determinations. The draft conformity determination shall include the proposed list of exempt and non-exempt projects, proposed list of regionally significant projects, and pertinent supporting documentation. NYSDOT shall provide such materials for nonattainment and maintenance areas outside the MPO boundaries.

(2) The department shall provide NYSDOT, the affected MPOs, affected nonattainment and maintenance counties outside MPO boundaries, and other involved agencies with draft proposed applicable revisions to the SIP, draft emissions budgets, and pertinent supporting documentation.

(3) In the event that the documents and supporting materials to be provided pursuant to this subdivision are excessively voluminous, the agency providing such documentation may provide a list of pertinent supporting documents necessary to analyze the draft materials. Upon request the agency shall make the documents available.

(4) Within 30 days of receipt of such draft document described in this subdivision, involved agencies may make written comments in response to any draft proposed applicable SIP revision, draft transportation plan, draft TIP, or draft transportation plan TIP and program of projects conformity determination provided in accordance with this section. In cases where such written comments are provided, the agency issuing such draft materials shall prepare a written response fully addressing all issues raised therein. Where possible, the lead conformity agencies and the department, as applicable, shall provide pertinent draft documentation 15 days prior to the beginning of the public review period.

(f) Consultation obligations. In addition to any other responsibilities imposed by this section, the following general duties shall also apply:

(1) The department shall:

(i) cooperatively develop, with NYSDOT and the affected MPOs, a list of TCMs for potential inclusion in the applicable SIP revision in accordance with subdivision (g) of this section;

(ii) consult with NYSDOT and affected MPOs on the air quality parameters used to make conformity determinations to ensure that such parameters are consistent with air quality modeling performed for applicable SIP revision purposes;

(iii) consult with NYSDOT and affected MPOs with respect to the traffic data and parameters used for emissions forecasting and determining conformity of transportation plans and TIPs;

(iv) provide guidance, expertise, and assistance to other involved agencies on applicable SIP revision related issues which impact conformity determinations to affected MPOs, NYSDOT, and local agencies; and

(v) convene, as necessary, meetings among technical staff of participating agencies for purposes of consulting on air quality analysis procedures.

(2) NYSDOT shall:

(i) coordinate the review of MPO draft transportation plans and MPO draft TIP conformity determinations provided by affected MPOs and administer the formal submittal of the MPO transportation plan and MPO TIP conformity determinations to FHWA/FTA;

(ii) coordinate the review of the program of projects in nonattainment or maintenance areas outside MPO boundaries and administer the formal submittal of the conformity analysis to FHWA/FTA;

(iii) review, in consultation with the department, emission estimation procedures and traffic data and parameters employed by affected MPOs in making conformity determinations for consistency with the applicable SIP revision;

(iv) cooperatively develop, with the department and affected MPOs, a list of TCMs for potential inclusion in the applicable SIP revision in accordance with subdivision (g) of this section;

(v) develop a public involvement process which provides opportunity for public review and comment on conformity determinations for transportation programs for which NYSDOT is making a conformity determination in accordance with subsection 23 CFR 450.212 (see section 200.9 of this Title);

(vi) provide guidance, expertise, and assistance to affected MPOs and local transportation agencies making conformity determinations; and

(vii) in cooperation with affected MPOs, provide transportation data and transportation related parameters to the department for calculation of mobile source emissions for applicable SIP revisions.

(3) The affected MPOs shall:

(i) develop Metropolitan Area Transportation Plan and TIP conformity determinations;

(ii) develop a public involvement process which provides opportunity for public review and comment on conformity determinations for MPO transportation plans and MPO TIPs;

(iii) cooperatively develop, with NYSDOT and the department, a list of TCMs for potential inclusion in the applicable SIP revision in accordance with subdivision (g) of this section;

(iv) document consideration of all significant comments received from involved agencies with respect to conformity determinations for MPO transportation plans and MPO TIPs; and

(v) provide, in consultation with NYSDOT and the department, for local transportation planning and local air agencies to be involved to the extent required by this section.

(g) Transportation control measures and emissions budgets in the applicable SIP revision.

(1) Transportation Control Measures (TCMs).

(i) NYSDOT and the affected MPOs, in consultation with the department, shall develop a list of TCMs for potential inclusion in the applicable SIP revision.

(ii) In the event that NYSDOT, the department, and the affected MPOs cannot reach agreement as to which TCMS, if any, are to be included in the state air quality implementation plan, the matter shall be resolved in accordance with the procedures in subdivision (i) of this section.

(iii) The TCMs designated pursuant to this subdivision shall be specifically identified in the applicable SIP revision.

(2) Emissions Budget.

(i) The department shall develop any proposed motor vehicle emissions budget and provide such proposed budget to NYSDOT and the affected MPOs for review and comment prior to the submittal of the motor vehicle emissions budget to EPA for inclusion in the applicable SIP revision.

(ii) In the event that NYSDOT, the department, and the affected MPOs cannot reach an agreement on the proposed motor vehicle emissions budget is appropriate for inclusion in the applicable SIP revision, the matter shall be resolved in accordance with the procedures in subdivision (i) of this section.

(h) Specific procedures.

(1) Model evaluation and selection:

(i) NYSDOT shall consult with the department, affected MPOs, affected local air agencies, affected local transportation agencies, USDOT, and EPA to select the air quality models and parameters to use for MPO transportation plan and TIP conformity determinations;

(ii) NYSDOT shall consult with the department, USDOT, and EPA to select the air quality models and parameters to use for regionally significant project conformity determinations and hot spot analyses;

(iii) affected MPOs and NYSDOT shall develop procedures for transportation models and transportation inputs and parameters in consultation with the department, affected local air and transportation agencies,USDOT, and EPA; and

(iv) the department shall select air quality models and develop non-transportation related inputs and parameters used to develop the emissions budget in the applicable SIP revision during the SIP revision process in consultation with NYSDOT, affected MPOs, affected local air and transportation agencies, USDOT, and EPA.

(2) Regional significance and significant project changes. The affected MPOs and NYSDOT shall, in consultation with the department, determine which transportation projects, other than exempt projects, constitute regionally significant projects. Where the regional significance of a project is in question, the following criteria shall be considered by the involved agencies to evaluate whether the project is regionally significant:

(i) The following list includes, but is not limited to, thresholds which shall be used to initiate a mutual consideration between the affected MPOs, the department and NYSDOT as to whether the subject project constitutes a regionally significant project:

(a) highway/roadway projects:

(1) new construction on new alignment. A principal arterial or above one mile or longer;

(2) widening of principal arterials or higher class roads to provide additional through-traffic lanes one mile or longer;

(3) widening of principal arterial or above to provide a new continuous turn lane two miles or longer, or affecting five signalized intersections;

(4) widening or reallocation of lane use for by high occupancy vehicles (HOVs) on principal arterials or above, one mile or longer;

(5) additional grade-separated ramps or new interchanges on principal arterials or above;

(6) widening or changes, as indicated above in subclauses (1) through (5) of this clause, to any roadway determined by the MPO to serve regional transportation needs, (e.g., minor arterial or higher classification), and included in the MPO's regional transportation forecasting model. If a regional transportation forecasting model is not used, widening or change, as indicated above in subclauses (1) through (5) of this clause, on any roadway that has been determined by the MPO or NYSDOT, through the interagency consultation process, to serve regional transportation needs.

(b) traffic signalization projects:

(1) coordination or upgrade of signal systems on principal arterials or above encompassing at least 10 signalized intersections and at least 2.5 miles of highway;

(2) coordination and upgrade of traffic signal systems on facilities indicated in subclause (a)(6) of this subparagraph for highways or roadways, encompassing at least 10 signalized intersections and at least 2.5 miles of highway;

(c) transit/rail projects:

(1) new passenger rail or bus service and extensions of existing service five miles or longer, including new rail stations and new or expanded rail/bus connections to provide new regional transit service;

(2) purchase of additional (not replacement) rolling stock to support increased frequency and higher ridership;

(3) new or expanded exclusive park-and-ride facilities resulting in at least 100 new parking spaces;

(d) other projects:

(1) automated toll collection facilities (ETTM or AVI) where a study is available that indicates potential impacts on regional travel;

(2) regional ITS facilities where a study is available that indicates potential impacts on regional travel;

(e) air quality or emissions impact. Any transportation project that the commissioner of the department identifies, after consultation with NYSDOT and the affected MPO, as having the potential to affect air quality on a regional basis.

(ii) Affected MPOs and NYSDOT shall, in consultation with the department, determine which minor arterials and transit projects, if any, have the principal purpose of serving regional transportation needs. Such minor arterials and transportation projects shall be included in the regional emissions analysis as required in this part.

(iii) The MPO shall, in consultation with the department and NYSDOT, determine which projects, based on information provided by the project sponsor, have undergone a significant change in design concept and scope from the MPO transportation plan and MPO TIP.

(iv) NYSDOT shall, in consultation with the appropriate affected local transportation and air agencies, make the determinations required under subparagraphs (i)-(iii) of this paragraph for arterials and projects in nonattainment and maintenance areas outside MPO boundaries.

(v) In the event that the department, NYSDOT, and the affected MPOs cannot reach agreement as to which projects are regionally significant, the matter shall be resolved in accordance with the procedures of subdivision (i) of this section.

(3) Procedures for the evaluation of certain exempt projects.

(i) The affected MPOs and NYSDOT shall, in consultation with the department, determine which projects, if any, that are otherwise exempt under sections 240.27 and 240.28 of this Part, should be treated as non-exempt due to significant emissions impacts.

(ii) NYSDOT shall, in consultation with the department and affected local air and transportation agencies, make the determination required under subparagraph (i) of this paragraph for projects in nonattainment and maintenance areas outside MPO boundaries.

(4) Timely TCM implementation.

(i) NYSDOT, the department, and the affected MPOs, shall cooperatively determine:

(a) whether TCMs specifically identified in the applicable SIP revision are being implemented as scheduled;

(b) whether State and local agencies with the appropriate authority are giving maximum priority, consistent with section 240.14 of this Part, to approving or funding of TCMs specifically identified in the applicable SIP revision; and

(c) whether delays in implementing TCMs specifically identified in the applicable SIP further revision necessitate revision of the SIP.

(5) Procedures for projects in PM₁₀ nonattainment area.

(i) The lead conformity agency shall determine if projects located at sites in PM₁₀ nonattainment areas have vehicle and roadway emission and dispersion characteristics that are essentially identical to those at sites which have violations verified by monitoring. Such projects shall require a quantitative PM₁₀ hot-spot analysis.

(6) Procedures for notification of MPO transportation plan or MPO TIP amendments adding or deleting only exempt projects.

(i) Each affected MPO shall determine, in consultation with NYSDOT, whether MPO TIP or MPO transportation plan amendments solely concern the addition or deletion of exempt projects listed in sections 240.27 and 240.28 of this Part.

(ii) NYSDOT shall make the determination required under subparagraph (i) of this paragraph for projects outside MPO boundaries in nonattainment or maintenance areas.

(iii) The department, NYSDOT, USDOT, EPA and, as appropriate, affected local air and transportation agencies, shall be notified in writing of any determinations made pursuant to this paragraph within 30 days of such determination.

(7) Procedures for events triggering new conformity determinations. NYSDOT shall, in consultation with the department and affected MPOs, identify instances when new conformity determinations are required, in addition to those determinations required by section 240.5 of this Part.

(8) Procedures for transportation activities crossing MPO or nonattainment areas boundaries. NYSDOT, in consultation with the department and affected MPOs, shall coordinate emissions analyses where a non-exempt transportation project crosses the border of nonattainment or maintenance areas or MPO boundaries.

(9) Nonattainment or maintenance areas not entirely included in a single MPO boundary.

(i) NYSDOT shall coordinate, in accordance with the provisions of section 240.6 of this Part, the preparation of conformity determinations and air quality analyses in nonattainment or maintenance areas which are not entirely included in MPO boundaries.

(ii) NYSDOT shall make, in accordance with the provisions of this Part, air quality analyses in nonattainment or maintenance areas which are not entirely included in MPO boundaries. The results of any regional emissions analysis outside the MPO boundary shall be coupled with the MPO analysis for the remainder of the nonattainment or maintenance area, as appropriate, to allow a conformity determination based on the entire nonattainment or maintenance area.

(iii) If more than one MPO is within the same nonattainment or maintenance area, NYSDOT shall coordinate, in accordance with the provisions of this section, the preparation of the conformity determinations.

(10) Isolated rural nonattainment or maintenance areas.

(i) In isolated rural nonattainment and maintenance areas, NYSDOT shall coordinate, in accordance with the provisions of this section, the preparation of conformity determinations and air quality analysis. As required by section 240.10(g) of this Part, the choice of conformity analysis to be used must be determined through consultation with all involved agencies, including the department, any local air quality or transportation agencies, EPA and USDOT.

(11) Consideration of regionally significant projects that are not FHWA/FTA projects.

(i) The affected MPOs and NYSDOT, as appropriate, shall work with the department to identify regionally significant projects that are not FHWA/FTA projects so that proper project information is included in the regional emissions analysis. The MPO shall solicit the necessary information from agencies that are recipients of federal funding under title 23 U.S.C. or the Federal Transit Act for any regionally significant projects, regardless of funding, in conjunction with MPO transportation plan and MPO TIP updates. In non-attainment and maintenance areas outside of MPO boundaries, NYSDOT shall solicit such information.

(ii) If during the public participation process, or interagency consultation process, other regionally significant projects are identified, or there are changes in the design concept and scope of a regionally significant project that would affect the air quality analysis, the NYSDOT or affected MPO shall appropriately refine the conformity analysis in accordance with the provisions of this section.

(12) Research and data collection and transportation model development. The affected MPOs shall consult with NYSDOT, the department, and affected local air and transportation agencies before formally adopting initiatives related to research and data collection efforts in support of regional transportation model development.

(13) Provision of final documents.

(i) The affected MPOs shall provide a final copy of the MPO transportation plans, MPO TIPs and associated MPO transportation plan and MPO TIP conformity determinations with pertinent supporting materials, to NYSDOT, the department, any affected local air or transportation agency, USDOT, and EPA.

(ii) NYSDOT shall provide a final copy of program of projects conformity determinations with pertinent supporting materials for nonattainment or maintenance areas outside MPO boundaries to the department, any affected local air or transportation agency, USDOT, and EPA.

(iii) The department shall provide a final copy of all applicable SIP revisions and pertinent supporting materials to NYSDOT, any affected local air or transportation agency, any affected MPO, FHWA/FTA , and EPA.

(iv) In the event that the final documents and supporting materials to be provided pursuant to this paragraph are excessively voluminous, the agency providing such documentation may provide a list of pertinent supporting documents necessary to analyze the final materials. Upon receipt of such list, the receiving agency may indicate which supporting documents on such list, or any other pertinent supporting materials, are necessary to analyze the final materials.

(i) Resolution of conflicts.

(1) Specific processes. In the event that the involved agencies are unable to reach agreement on any matter set forth in subdivision (g) or (h) of this section, the unresolved issue or issues shall be referred to the commissioners of the department and NYSDOT for resolution.

(2) Conformity determinations for MPO transportation plans, MPO TIPS, and programs of projects in areas outside any MPO. Each lead conformity agency making conformity determinations for a MPO transportation plan, MPO TIP, or program of projects in a nonattainment or maintenance area outside any MPO shall provide the department and any affected local air agency with the proposed conformity determination accompanied by pertinent supporting documentation.

(i) Upon closing of the consultation period provided for in this section, the agency making the transportation plan, TIP, or program of projects conformity determination shall transmit to the department the proposed conformity determination reflecting the resolution of comments submitted. The department shall have 14 calendar days from the receipt of such transmittal to appeal to the Governor as provided for in this subdivision.

(ii) The department may invoke the conflict resolution procedure provided for in this subdivision by delivering to the Governor or Governor's designee, the Commissioner of NYSDOT, and the conformity contacts designated pursuant to subdivision (c) of this section, a letter requesting that the Governor exercise his or her discretion under this subdivision.

(iii) In the event that the department invokes the conflict resolution procedure provided for in this subdivision, the final conformity determination must have the concurrence of the Governor or Governor's designee. If the department does not appeal to the Governor within the specified 14 days, the affected MPO or NYSDOT may proceed with the final conformity determination.

(3) TCMs and motor vehicle emissions budgets in the State Implementation Plan. The department shall provide NYSDOT with any proposed revision to the SIP which contains any TCMs or motor vehicle emissions budgets.

(i) In the event that NYSDOT and the department are unable to concur on the appropriate TCMs or motor vehicle emissions budgets for inclusion in the applicable SIP revision, NYSDOT may appeal the conflict to the Governor for resolution. NYSDOT shall have 14 calendar days from the receipt of notification from the department that concurrence has not been reached to appeal to the Governor as provided for in this subdivision.

(ii) NYSDOT may invoke the conflict resolution procedures provided for in this subdivision by delivering to the Governor or Governor's designee, the commissioner of the department, and the conformity contacts designated pursuant to subdivision (c) of this section, a letter requesting that the Governor exercise his or her discretion under this subdivision.

(iii) In the event that NYSDOT invokes the conflict resolution procedure provided for this subdivision, the proposed applicable SIP revision must be approved by the Governor or Governor's designee before it is submitted to the EPA. If NYSDOT does not appeal to the Governor within the specified 14 days, the department may proceed with the SIP revision.

(j) Public participation procedures.

(1) Conformity determinations for MPO transportation plans and MPO TIPs shall follow the specific public involvement process established by the MPO, consistent with the requirements of 23 CFR part 450 (see section 200.9 of this Title), which provides opportunity for public review and comment prior to formal action on a conformity determination for all MPO transportation plans and MPO TIPs. This process must provide reasonable public access to technical and policy information considered by the affected agencies, making the conformity determination at the beginning of the public review period.

(2) Conformity determinations must specifically address, in writing, all significant public comments that known plans for a regionally significant project which is not receiving FHWA or FTA funding or approval have not been properly reflected in the emissions analysis supporting a proposed conformity finding for a MPO transportation plan or MPO TIP.

(3) Conformity determinations in isolated rural nonattainment and maintenance areas and rural portions of nonattainment and maintenance areas outside MPO boundaries shall follow the specific public involvement process established by NYSDOT, consistent with the requirements of 23 CFR part 450 (see section 200.9 of this Title), which provides opportunity for public review and comment prior to formal action to update the statewide transportation improvement program (STIP) and the statewide transportation plan.

(4) Public involvement in conformity determinations for transportation projects shall be provided where otherwise required by law.

(k) Consultation process for regionally significant projects not from a conforming plan or TIP.

(1) In the event that any transportation project in a nonattainment or maintenance area not from a conforming plan or TIP is determined to be regionally significant pursuant to the provisions of paragraphs (h)(2) and (11) of this section, the conformity determination applicable to such project shall be made in accordance with Table 1 of section 240.10(b) of this Part, as applicable to projects not from a conforming plan or TIP.

(2) In the event that the conformity determination or regional emissions analysis for a regionally significant project not from a conforming MPO transportation plan or MPO TIP is made using input or assumptions different from the air quality model inputs and parameters; the transportation model, inputs, and parameters; and the non-transportation inputs and parameters identified pursuant to subparagraphs (h)(1)(ii), (iii) and (iv) of this section, paragraph (3) of this subdvision shall apply.

(3) If required by paragraph (2) of this subdivision, NYSDOT, and other involved agencies making conformity determinations or regional emissions analyses, shall provide the department, prior to the issuance of a draft environmental document, an opportunity to review and comment on the air quality model inputs and parameters used in the regional emissions analysis, transportation models, inputs, and parameters associated with the project, and non-transportation inputs and parameters necessary to evaluate the air quality impacts and analysis of a regionally significant project not from a conforming MPO transportation plan or MPO TIP.

(4) The opportunity to review and comment provided for in this subdivision shall not extend beyond the issuance of a final environmental document issued pursuant to the SEQR or NEPA, whichever may be applicable.

§240.7 Content of transportation plans

(a) Transportation plans adopted after January 1, 1997 in serious, severe, or extreme ozone nonattainment areas and in serious CO nonattainment areas. If the metropolitan planning area contains an urbanized area population greater than 200,000, the transportation plan must specifically describe the transportation system envisioned for certain future years which shall be called horizon years.

(1) The lead conformity agency or organization developing the transportation plan may choose any years to be horizon years, subject to the following restrictions:

(i) horizon years may be no more than 10 years apart;

(ii) the first horizon year may be no more than 10 years from the base year used to validate the transportation demand planning model;

(iii) if the attainment year is in the time span of the transportation plan, the attainment year must be a horizon year; and

(iv) the last horizon year must be the last year of the transportation plan's forecast period.

(2) For these horizon years:

(i) 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 the consultation requirements specified by section 240.6 of this Part;

(ii) 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 that are sufficient for modeling of their transit ridership. Additions and modifications to the transportation network shall be described sufficiently to show that there is a reasonable relationship between expected land use and the envisioned transportation system; and

(iii) other future transportation policies, requirements, services, and activities, including intermodal activities, shall be described.

(b) Moderate areas reclassified to serious. Ozone or CO nonattainment areas which are reclassified from moderate to serious and have an urbanized population greater than 200,000 must meet the requirements of paragraph (a) of this section within two years from the date of reclassification.

(c) Transportation plans for other areas. Transportation plans for other areas must meet the requirements of paragraph (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, the transportation system envisioned for the future must be sufficiently described within the transportation plans so that a conformity determination can be made according to the criteria and procedures of sections 240.10 through 240.20.

(d) Savings. The requirements of this section supplement other requirements of applicable federal or state law or regulation governing the format or content of transportation plans.

§240.8 Relationship of transportation plan and TIP conformity with the NEPA and SEQR processes

(a) The degree of specificity in the MPO transportation plan, its conformity determination, the MPO TIP, or its conformity determination, does not limit or preclude consideration of reasonable or feasible alternatives in the NEPA or SEQR processes or other project development studies. Similarly, the travel network identified in the conformity determination of the MPO transportation plan or MPO TIP does not limit or preclude consideration of reasonable or feasible alternatives in the NEPA or SEQR processes or other project development studies.

(b) An alternative does not become infeasible or unreasonable merely because its design concept or design scope is significantly different from that specified in the conforming MPO transportation plan or conforming MPO TIP.

(c) If the alternative selected during the NEPA or SEQR process has a design concept or scope significantly different from that specified in the conforming MPO transportation plan or the conforming MPO TIP, the project must meet the criteria for a projects not from a conforming MPO transportation plan or MPO TIP in Table 1 of section 240.10 of this Part before NEPA or SEQR process completion.

§240.9 Fiscal constraints for transportation plans and TIPs

Transportation plans and TIPs must be fiscally constrained consistent with USDOT's metropolitan planning regulations at 23 CFR part 450 (see section 200.9 of this Title) in order to be found in conformity.

§240.10 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General

(a) In order for each transportation plan, program, and FHWA/FTA project to be found to conform, the MPO and USDOT shall demonstrate that the applicable criteria and procedures in this Part are satisfied, and the MPO and USDOT must comply with all applicable conformity requirements of the the applicable SIP revision and of court orders for the area which pertain specifically to conformity. The criteria for making conformity determinations differ based on the action under review (transportation plans, TIPs, and FHWA/FTA projects), the relevant pollutant(s), and the status of the SIP revision.

(b) Table 1 in this subdivision indicates the criteria and procedures in sections 240.11 through 240.20 of this Part which apply for transportation plans, TIPs, and FHWA/FTA projects. Subdivisions (c) through (f) of this section explain when the budget, emission reduction, and hot spot tests are required for each pollutant. Subdivision (g) of this section addresses isolated rural nonattainment and maintenance areas. Table 1 follows:

Table 1. Conformity Criteria and Procedures

ALL ACTIONS AT ALL TIMES

Section 240.11 LATEST PLANNING ASSUMPTIONS
Section 240.12 LATEST EMISSIONS MODEL
Section 240.13 CONSULTATION

TRANSPORTATION PLAN

Section 240.14(b) TCMs
Section 240.19 OREMISSIONS BUDGET
Section 240.20 OR EMISSION REDUCTION

TIP

Section 240.14(c) TCMs
Section 240.19 OR EMISSIONS BUDGET
Section 240.20 OR EMISSION REDUCTION

PROJECT (FROM A CONFORMING PLAN AND TIP)

Section 240.15 CURRENTLY CONFORMING PLAN AND TIP
Section 240.16 PROJECT FROM A CONFORMING PLAN AND TIP
Section 240.17 CO AND PM₁₀ HOT SPOTS
Section 240.18 PM₁₀ CONTROL MEASURES

PROJECT (NOT FROM A CONFORMING PLAN AND TIP)

Section 240.14(d) TCMs
Section 240.15 CURRENTLY CONFORMING PLAN AND TIP
Section 240.17 CO AND PM₁₀ HOT SPOTS
Section 240.18 PM₁₀ CONTROL MEASURES
Section 240.19 OR EMISSIONS BUDGET
Section 240.20 OR EMISSION REDUCTION

(c) Ozone nonattainment and maintenance areas. In addition to the criteria listed in Table 1, in subdivision (b) of this section that are required to be satisfied at all times, in ozone nonattainment and maintenance areas conformity determinations must include a demonstration that the budget and/or emission reduction tests are satisfied as described in the following:

(1) In ozone nonattainment and maintenance areas the budget test must be satisfied as required by section 240.19 of this Part for conformity determinations made:

(i) 45 days after a control strategy SIP revision or maintenance plan has been submitted to EPA, unless EPA has declared the motor vehicle emissions budget inadequate for transportation conformity purposes; or

(ii) after EPA has declared that the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan is adequate for transportation conformity purposes.

(2) In ozone nonattainment areas that are required to submit a control strategy SIP revision (usually moderate and above areas), the emission reduction tests must be satisfied as required by section 240.20 of this Part for conformity determinations made:

(i) during the first 45 days after a control strategy SIP revision or maintenance plan has been submitted to EPA, unless EPA has declared a motor vehicle emissions budget adequate for transportation conformity purposes; or

(ii) if EPA has declared the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan inadequate for transportation conformity purposes, and there is no previously established motor vehicle emissions budget in the approved applicable SIP revision or a previously submitted control strategy SIP revision or maintenance plan.

(3) An ozone nonattainment area must satisfy the emission reduction test for NO_x, as required by section 240.20 of this Part, if the applicable applicable SIP revision or plan submission that is applicable for the purposes of conformity determinations is a 15 percent plan or Phase I attainment demonstration that does not include a motor vehicle emissions budget for NO_x. The applicable SIP revision will be considered to establish a motor vehicle emissions budget for NO_x if the applicable SIP revision or plan submission contains an explicit NO_x motor vehicle emissions budget that is intended to act as a ceiling on future NO_x emissions, and the NO_x motor vehicle emissions budget is a net reduction from NO_x emissions levels in 1990.

(4) Ozone nonattainment areas that have not submitted a maintenance plan and that are not required to submit a control strategy SIP revision (usually marginal and below areas) must satisfy one of the following requirements:

(i) the emission reduction tests required by section 240.20 of this Part; or

(ii) the State shall submit to EPA a SIP revision that contains motor vehicle emissions budget(s) and an attainment demonstration, and the budget test required by section 240.19 of this Part must be satisfied using the submitted motor vehicle emissions budget(s) (as described in paragraph [1] of this subdivision).

(5) Notwithstanding paragraphs (1) and (2) of this subdivision, moderate and above ozone nonattainment areas with three years of clean data that have not submitted a maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and attainment demonstration requirements must satisfy one of the following requirements:

(i) the emission reduction tests as required by section 240.20 of this Part;

(ii) the budget test as required by section 240.19 of this Part, using the motor vehicle emissions budgets in the submitted control strategy SIP (subject to the timing requirements of paragraph [1] of this subdivision); or

(iii) the budget test as required by section 240.19 of this Part, using the motor vehicle emissions of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are established by the EPA rulemaking that determines that the area has clean data.

(d) CO nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in subdivsion (b) of this section that are required to be satisfied at all times, in CO nonattainment and maintenance areas conformity determinations must include a demonstration that the hot spot, budget and/or emission reduction tests are satisfied as described in the following paragraphs.

(1) FHWA/FTA projects in CO nonattainment or maintenance areas must satisfy the hot spot test required by section 240.17(a) of this Part at all times. Until a CO attainment demonstration or maintenance plan is approved by EPA, FHWA/FTA projects must also satisfy the hot spot test required by section 240.17(b) of this Part.

(2) In CO nonattainment and maintenance areas the budget test must be satisfied as required by section 240.19 of this Part for conformity determinations made:

(ii) after EPA has declared that the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan is adequate for transportation conformity purposes.

(3) Except as provided in paragraph (4) of this subdivsion, in CO nonattainment areas the emission reduction tests must be satisfied as required by section 240.20 of this Part for conformity determinations made:

(ii) if EPA has declared the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan inadequate for transportation conformity purposes, and there is no previously established motor vehicle emissions budget in the approved SIP revision or a previously submitted control strategy SIP revision or maintenance plan.

(4) CO nonattainment areas that have not submitted a maintenance plan and that are not required to submit an attainment demonstration (e.g., moderate CO areas with a design value of 12.7 ppm or less or not classified CO areas) must satisfy one of the following requirements:

(i) the emission reduction tests required by section 240.20 of this Part; or

(e) PM₁₀ nonattainment and maintenance areas. In addition to the criteria listed in Table 1, in subdivision (b) of this section that are required to be satisfied at all times, in PM₁₀ nonattainment and maintenance areas conformity determinations must include a demonstration that the hot spot, budget and/or emission reduction tests are satisfied as described in the following:

(1) FHWA/FTA projects in PM₁₀ nonattainment or maintenance areas must satisfy the hot spot test required by section 240.17(a) of this Part;

(2) In PM₁₀ nonattainment and maintenance areas the budget test must be satisfied as required by section 240.19 of this Part for conformity determinations made:

(ii) after EPA has declared that the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan is adequate for transportation conformity purposes.

(3) In PM₁₀ nonattainment areas the emission reduction tests must be satisfied as required by section 240.20 of this Part for conformity determinations made:

(ii) if EPA has declared the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan inadequate for transportation conformity purposes, and there is no previously established motor vehicle emissions budget in the approved SIP or a previously submitted control strategy SIP revision or maintenance plan; or

(iii) if the submitted SIP revision is a demonstration of impracticability under the act's section 189(a)(1)(B)(ii) and does not demonstrate attainment.

(f) NO₂ nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in subdivision (b) of this section, that are required to be satisfied at all times, in NO₂ nonattainment and maintenance areas conformity determinations must include a demonstration that the budget and/or emission reduction tests are satisfied as described in the following:

(1) In NO₂ nonattainment and maintenance areas the budget test must be satisfied as required by section 240.19 for conformity determinations made:

(ii) after EPA has declared that the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan is adequate for transportation conformity purposes.

(2) In NO₂ nonattainment areas the emission reduction tests must be satisfied as required by section 240.20 of this Part for conformity determinations made:

(ii) if EPA has declared the motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan inadequate for transportation conformity purposes, and there is no previously established motor vehicle emissions budget in the approved SIP or a previously submitted control strategy SIP revision or maintenance plan.

(g) Isolated rural nonattainment and maintenance areas. This paragraph applies to any nonattainment or maintenance area (or portion thereof) which does not have a metropolitan transportation plan or TIP and whose projects are not part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. This paragraph does not apply to "donut" areas which are outside the metropolitan planning boundary and inside the nonattainment/maintenance area boundary.

(1) FHWA/FTA projects in all isolated rural nonattainment and maintenance areas must satisfy the requirements of sections 240.11, 240.12, 240.13, 240.14(d), 240.17 and 240.18 of this Part. Until EPA approves the control strategy SIP or maintenance plan for a rural CO nonattainment or maintenance area, FHWA/FTA projects must also satisfy the requirements of section 240.17(b) of this Part.

(2) Isolated rural nonattainment and maintenance areas are subject to the budget and/or emission reduction tests as described in subdivisions (c) through (f) of this section, with the following modifications:

(i) When the requirements of sections 240.19 and 240.20 of this Part apply to isolated rural nonattainment and maintenance areas, references to transportation plan or TIP should be taken to mean those projects in the statewide transportation plan or statewide TIP which are in the rural nonattainment or maintenance area.

(ii) In isolated rural nonattainment and maintenance areas that are subject to section 240.19 of this Part, FHWA/FTA projects must be consistent with motor vehicle emissions budget(s) for the years in the timeframe of the attainment demonstration or maintenance plan. For years after the attainment year (if a maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWA/FTA projects must satisfy one of the following requirements:

(a) section 240.19 of this Part;

(b) section 240.20 (including regional emissions analysis for NO_x in all ozone nonattainment and maintenance areas, notwithstanding section 240.20[d][2] of this Part); or

(c) as demonstrated by the air quality dispersion model or other air quality modeling technique used in the attainment demonstration or maintenance plan, the FHWA/FTA project, in combination with all other regionally significant projects expected in the area in the timeframe of the statewide transportation plan, must not cause or contribute to any new violation of any NAAQS in any areas, increase the frequency or severity of any existing violation of any NAAQS in any area, or delay timely attainment of any NAAQS or any required interim emission reductions or other milestones in any area. Control measures assumed in the analysis must be enforceable.

(iii) The choice of requirements in subparagraph (ii) of this Part and the methodology used to meet the requirements of clause (ii)(c) of this paragraph must be determined through the interagency consultation process required in section 240.6(h)(10) of this Part through which the relevant recipients of Title 23 U.S.C. or Federal Transit Laws funds, the local air quality agency, the department, and NYSDOT should reach consensus about the option and methodology selected. EPA and USDOT must be consulted through this process as well. In the event of unresolved disputes, conflicts may be escalated to the Governor consistent with the procedure in section 240.6(i) of this Part.

§240.11 Criteria and procedures: latest planning assumptions

(a) The conformity determination, with respect to all other applicable criteria in sections 240.12-240.20 of this Part, shall be based upon the most recent planning assumptions in force at the time of the conformity determination. The conformity determination shall satisfy the requirements of subdivisions (b)-(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 such 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 and other implementation plan measures 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 section 240.6 of this Part.

§240.12 Criteria and procedures: latest emissions model

(a) The conformity determination must be based on the latest emission estimation model available. This criterion is satisfied if the most current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of the SIP 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 SIP, new versions must be approved by EPA before they are used in the conformity analysis.

(b) Transportation plan and TIP conformity analyses for which the emissions analysis was begun during the grace period announced by EPA in the Federal Register or before the Federal Register notice of availability of the latest emission model may continue to use the previous version of the model. Conformity determinations for projects may also be based on the previous model if the analysis was begun during the grace period or before the Federal Register notice of availability, and if the final environmental document (including but not limited to an EIS required under SEQR, categorical exclusion, finding of no significant impact, record of decision, negative declarations) for the project is issued no more than three years after the issuance of the draft environmental document.

§240.13 Criteria and procedures: consultation

Conformity must be determined according to the consultation procedures in this Part and in the applicable SIP revision, and according to the public involvement procedures established in compliance with 23 CFR part 450 (see section 200.9 of this Title).

§240.14 Criteria and procedures: timely implementation of TCMs

(a) The transportation plan, TIP, or any FHWA/FTA project which is not from a conforming plan and TIP must provide for the timely implementation of TCMs from the applicable SIP revision.

(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 SIP revision which are eligible for funding under title 23 U.S.C. or the Federal Transit Laws (see section 200.9 of this Title), consistent with schedules included in the applicable SIP revision; and

(2) nothing in the transportation plan interferes with the implementation of any TCM in the applicable SIP revision.

(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 U.S.C. or the Federal Transit Laws (see section 200.9 of this Title) are on or ahead of the schedule established in the applicable SIP revision, or, if such TCMs are behind the schedule established in the applicable SIP revision, 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 applicable SIP revision, 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 intended for air quality improvement projects, e.g., the 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 SIP revision.

§240.15 Criteria and procedures: currently conforming transportation plan and TIP

There must be a currently conforming transportation plan and currently conforming TIP at the time of project approval in metropolitan nonattainment or maintenance areas.

(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 DOT. The conformity determination on a transportation plan or TIP will also lapse if conformity is not determined according to the frequency requirements specified in section 240.5 of this Part.

(b) This criterion is not required to be satisfied at the time of project approval for a TCM specifically included in the applicable SIP revision, provided that all other relevant criteria of this Part are satisfied.

Part 240: Conformity to State or Federal Implementation Plans - Page 1

Contents:

§240.1 Purpose

§240.2 Definitions

§240.3 Applicability

§240.4 Priority

§240.5 Frequency of conformity determinations

§240.6 Consultation

§240.7 Content of transportation plans

§240.8 Relationship of transportation plan and TIP conformity with the NEPA and SEQR processes

§240.9 Fiscal constraints for transportation plans and TIPs

§240.10 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General

§240.11 Criteria and procedures: latest planning assumptions

§240.12 Criteria and procedures: latest emissions model

§240.13 Criteria and procedures: consultation

§240.14 Criteria and procedures: timely implementation of TCMs

§240.15 Criteria and procedures: currently conforming transportation plan and TIP