NY.gov Portal State Agency Listing Search all of NY.gov
D E C banner
D E C banner

Part 240: Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws - Page 2

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

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

[page 2 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.

Contents:

Sec.

§240.16 Criteria and procedures: projects from a plan and TIP

(a) Metropolitan area projects must come from a conforming plan and program. If this criterion is not satisfied, the project must satisfy all criteria in Table 1 of section 240.10(b) of this Part for a project not from a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan if it meets the requirements of subdivision (b) of this section and from a conforming program if it meets the requirements of subdivision (c) of this section. Special provisions for TCMs in an applicable SIP revision are provided in subdivision (d) of this section.

(b) A project is considered to be from a conforming transportation plan if one of the following conditions applies:

(1) for projects which are required to be identified in the transportation plan in order to satisfy section 240.7 of this Part, the project is specifically included in the conforming transportation plan and the project's design concept and scope have not changed significantly from those which were described in the transportation plan, or in a manner which would significantly impact use of the facility; or

(2) for projects which are not required to be specifically identified in the transportation plan, the project is identified in the conforming transportation plan, or is consistent with the policies and purpose of the transportation plan and will not interfere with other projects specifically included in the transportation plan.

(c) A project is considered to be from a conforming program if the following conditions are met:

(1) the project is included in the conforming TIP and the design concept and scope of the project were adequate at the time of the TIP conformity determination to determine its contribution to the TIP's regional emissions, and the project design concept and scope have not changed significantly from those which were described in the TIP; and

(2) if the TIP describes a project design concept and scope which includes project-level emissions mitigation or control measures, written commitments to implement such measures must be obtained from the project sponsor and/or operator in accordance with section 240.26(a) of this Part in order for the project to be considered from a conforming program. Any change in these mitigation or control measures that would significantly reduce their effectiveness constitutes a change in the design concept and scope of the project.

(d) TCMs. This criterion is not required to be satisfied for TCMs specifically included in an applicable SIP revision.

§240.17 Criteria and procedures: localized CO and PM10 violations (hot spots)

(a) This subdivision applies at all times. The FHWA/FTA or regionally significant project must not cause or contribute to any new localized CO or PM10 violations or increase the frequency or severity of any existing CO or PM10 violations in CO and PM10 nonattainment and maintenance areas. This criterion is satisfied if it is demonstrated that no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project. The demonstration must be performed according to the consultation requirements of section 240.6 of this Part and the methodology requirements of section 240.24 of this Part.

(b) This subdivision applies for CO nonattainment areas as described in section 240.10(d)(1) of this Part. Each FHWA/FTA or regionally significant project must eliminate or reduce the severity and number of localized CO violations in the area substantially affected by the project (in CO nonattainment areas). This criterion is satisfied with respect to existing localized CO violations if it is demonstrated that existing localized CO violations will be eliminated or reduced in severity and number as a result of the project. The demonstration must be performed according to the consultation requirements of section 240.6 of this Part and the methodology requirements of section 240.24 of this Part.

§240.18 Criteria and procedures: compliance with PM10 control measures

The FHWA/FTA or regionally significant project must comply with PM10 control measures in the applicable SIP revision. This criterion is satisfied if the project-level conformity determination contains a written commitment from the project sponsor to include in the final plans, specifications, and estimates for the project those control measures (for the purpose of limiting PM10 emissions from the construction activities and/or normal use and operation associated with the project) that are contained in the applicable SIP revision.

§240.19 Criteria and procedures: motor vehicle emissions budget

(a) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must be consistent with the motor vehicle emissions budget(s) in the applicable SIP revision (or SIP submission). This criterion applies as described in section 240.10(c)-(g) of this Part. This criterion is satisfied if it is demonstrated that emissions of the pollutants or pollutant precursors described in subdivision (c) of this section are less than or equal to the motor vehicle emissions budget(s) established in the applicable SIP revision or SIP revision submission.

(b) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for which the applicable (and/or submitted) SIP revision specifically establishes motor vehicle emissions budget(s), for the last year of the transportation plan's forecast period, and for any intermediate years as necessary so that the years for which consistency is demonstrated are no more than ten years apart, as follows:

(1) Until a maintenance plan is submitted:

(i) emissions in each year (such as milestone years and the attainment year) for which the control strategy SIP revision establishes motor vehicle emissions budget(s) must be less than or equal to that year's motor vehicle emissions budget(s); and

(ii) emissions in years for which no motor vehicle emissions budget(s) are specifically established must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year. For example, emissions in years after the attainment year for which the SIP revision does not establish a budget must be less than or equal to the motor vehicle emissions budget(s) for the attainment year.

(2) When a maintenance plan has been submitted:

(i) emissions must be less than or equal to the motor vehicle emissions budget(s) established for the last year of the maintenance plan, and for any other years for which the maintenance plan establishes motor vehicle emissions budgets. If the maintenance plan does not establish motor vehicle emissions budgets for any years other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissions budget(s) must be accompanied by a qualitative finding that there are no factors which would cause or contribute to a new violation or exacerbate an existing violation in the years before the last year of the maintenance plan. The interagency consultation process required by section 240.6 of this Part shall determine what must be considered in order to make such a finding;

(ii) for years after the last year of the maintenance plan, emissions must be less than or equal to the maintenance plan's motor vehicle emissions budget(s) for the last year of the maintenance plan; and

(iii) if an approved control strategy SIP has established motor vehicle emissions budgets for years in the timeframe of the transportation plan, emissions in these years must be less than or equal to the control strategy implementation plan's motor vehicle emissions budget(s) for these years.

(c) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant or pollutant precursor in section 240.3(b) of this Part for which the area is in nonattainment or maintenance and for which the applicable SIP revision (or SIP revision submission) establishes a motor vehicle emissions budget.

(d) Consistency with the motor vehicle emissions budget(s) must be demonstrated by including emissions from the entire transportation system, including all regionally significant projects contained in the transportation plan and all other regionally significant highway and transit projects expected in the nonattainment or maintenance area in the timeframe of the transportation plan.

(1) Consistency with the motor vehicle emissions budget(s) must be demonstrated with a regional emissions analysis that meets the requirements of sections 240.6[*] and 240.23 of this Part.

(2) The regional emissions analysis may be performed for any years in the timeframe of the transportation plan provided they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the timeframe of the transportation plan) and the last year of the plan's forecast period. Emissions in years for which consistency with motor vehicle emissions budgets must be demonstrated, as required in subdivision (b) of this section, may be determined by interpolating between the years for which the regional emissions analysis is performed.

(e) Motor vehicle emissions budgets in submitted control strategy SIP revisions and submitted maintenance plans.

(1) Consistency with the motor vehicle emissions budgets in submitted control strategy SIP revisions or maintenance plans must be demonstrated if EPA has declared the motor vehicle emissions budget(s) adequate for transportation conformity purposes, or beginning 45 days after the control strategy SIP revision or maintenance plan has been submitted (unless EPA has declared the motor vehicle emissions budget(s) inadequate for transportation conformity purposes). However, a submitted SIP revisions does not supersede the motor vehicle emissions budgets in approved SIP revisions for the period of years addressed by the approved SIP revision.

(2) If EPA has declared a SIP revision submission's motor vehicle emissions budget(s) inadequate for transportation conformity purposes, the inadequate budget(s) shall not be used to satisfy the requirements of this section. Consistency with the previously established motor vehicle emissions budget(s) must be demonstrated. If there is no previous approved SIP revisions or SIP revision submissions with motor vehicle emissions budgets, the emission reduction tests required by section 240.20 of this Part must be satisfied.

(3) If EPA declares the SIP revision submission's motor vehicle emissions budget(s) inadequate for transportation conformity purposes more than 45 days after its submission to EPA, and conformity of a transportation plan or TIP has already been determined by USDOT using the budget(s), the conformity determination will remain valid. Projects included in that transportation plan or TIP could still satisfy sections 240.15 and 240.16 of this Part, which require a currently conforming transportation plan and TIP to be in place at the time of a project's conformity determination and that projects come from a conforming transportation plan and TIP.

(4) EPA will not find a motor vehicle emissions budget in a submitted control strategy SIP revision or maintenance plan to be adequate for transportation conformity purposes unless the following minimum criteria are satisfied:

(i) the submitted control strategy SIP revision or maintenance plan was endorsed by the Governor (or his or her designee) and was subject to a State public hearing;

(ii) before the control strategy SIP revision or maintenance plan was submitted to EPA, consultation among federal, State, and local agencies occurred; full SIP revision documentation was provided to EPA; and EPA's stated concerns, if any, were addressed;

(iii) the motor vehicle emissions budget(s) is clearly identified and precisely quantified;

(iv) the motor vehicle emissions budget(s), when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given SIP revision submission);

(v) the motor vehicle emissions budget(s) is consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy SIP revision or maintenance plan; and

(vi) revisions to previously submitted control strategy SIP revisions or maintenance plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins (see section 240.2 of this Part for definition); and reasons for the changes (including the basis for any changes related to emission factors or estimates of vehicle miles traveled).

(5) Before determining the adequacy of a submitted motor vehicle emissions budget, EPA will review the State's compilation of public comments and response to comments that are required to be submitted with the SIP revision. EPA will document its consideration of such comments and responses in a letter to the State indicating the adequacy of the submitted motor vehicle emissions budget.

(6) When the motor vehicle emissions budget(s) used to satisfy the requirements of this section are established by the SIP revision submittal that has not yet been approved or disapproved by EPA, the MPO and DOT's conformity determinations will be deemed to be a statement that the MPO and USDOT are not aware of any information that would indicate that emissions consistent with the motor vehicle emissions budget will cause or contribute to any new violation of any NAAQS, increase the frequency or severity of any existing violation of any NAAQS, or delay timely attainment of any NAAQS or any required interim emission reductions or other milestones.

§240.20 Criteria and procedures: emission reductions in areas without motor vehicle emissions budgets

(a) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must contribute to emissions reductions. This criterion applies as described in section 240.10(c)-(g) of this Part. It applies to the net effect of the action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) on motor vehicle emissions from the entire transportation system.

(b) This criterion may be met in moderate and above ozone nonattainment areas that are subject to the reasonable further progress requirements of the act section 182(b)(1) (see section 200.9 of this Title) and in moderate with design value greater than 12.7 ppm and serious CO nonattainment areas if a regional emissions analysis that satisfies the requirements of section 240.23 of this Part and subdivisions (e)-(h) of this section demonstrates that for each analysis year and for each of the pollutants described in subdivision (d) of this section:

(1) the emissions predicted in the "Action" scenario are less than the emissions predicted in the "Baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; and

(2) the emissions predicted in the "Action" scenario are lower than 1990 emissions by any nonzero amount.

(c) This criterion may be met in PM10 and NOx nonattainment areas, marginal and below ozone nonattainment areas and other ozone nonattainment areas that are not subject to the reasonable further progress requirements of the act section 182(b)(1) (see section 200.9 of this Title), and moderate with design value less than 12.7 ppm and below CO nonattainment areas if a regional emissions analysis that satisfies the requirements of section 240.23 of this part and subdivisions (e)-(h) of this section demonstrates that for each analysis year and for each of the pollutants described in subdivision (d) of this section, one of the following requirements is met:

(1) the emissions predicted in the "Action" scenario are less than the emissions predicted in the "Baseline" scenario, and this can be reasonably expected to be true in the periods between the analysis years; or

(2) the emissions predicted in the "Action" scenario are not greater than baseline emissions. Baseline emissions are those estimated to have occurred during calendar year 1990, unless the conformity SIP revision required by 40 CFR 51.390 defines the baseline emissions for a PM10 area to be those occurring in a different calendar year for which a baseline emissions inventory was developed for the purpose of developing a control strategy SIP revision.

(d) Pollutants. The regional emissions analysis must be performed for the following pollutants:

(1) VOC in ozone areas;

(2) NOx in ozone areas, unless the EPA Administrator determines that additional reductions of NOx would not contribute to attainment;

(3) CO in CO areas;

(4) PM10 in PM10 areas;

(5) transportation-related precursors of PM10 in PM10 nonattainment and maintenance areas if the EPA Regional Administrator or the commissioner has made a finding that such precursor emissions from within the area are a significant contributor to the PM10 nonattainment problem and has so notified the MPO and DOT; and

(6) NOx in NO2 areas.

(e) Analysis years. The regional emissions analysis must be performed for analysis years that are no more than ten years apart. The first analysis year must be no more than five years beyond the year in which the conformity determination is being made. The last year of transportation plan's forecast period must also be an analysis year.

(f) "Baseline" scenario. The regional emissions analysis required by subdivisions (b) and (c) of this section must estimate the emissions that would result from the "Baseline" scenario in each analysis year. The "Baseline" scenario must be defined for each of the analysis years. The "Baseline" scenario is the future transportation system that will result from current programs, including the following (except that exempt projects listed in section 240.27 of this Part and projects exempt from regional emissions analysis as listed in section 240.28 of this Part need not be explicitly considered):

(1) all in-place regionally significant highway and transit facilities, services and activities;

(2) all ongoing travel demand management or transportation system management activities; and

(3) completion of all regionally significant projects, regardless of funding source, which are currently under construction or are undergoing right-of-way acquisition (except for hardship acquisition and protective buying), come from the first year of the previously conforming transportation plan and/or TIP, or have completed the NEPA and SEQR process.

(g) "Action" scenario. The regional emissions analysis required by subdivisions (b) and (c) of this section must estimate the emissions that would result from the "Action" scenario in each analysis year. The "Action" scenario must be defined for each of the analysis years. The "Action" scenario is the transportation system that would result from the implementation of the proposed action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) and all other expected regionally significant projects in the nonattainment area. The "Action" scenario must include the following (except that exempt projects listed in section 240.27 of this Part and projects exempt from regional emissions analysis as listed in section 240.28 of this Part need not be explicitly considered):

(1) all facilities, services, and activities in the "Baseline" scenario;

(2) completion of all TCMs and regionally significant projects (including facilities, services, and activities) specifically identified in the proposed transportation plan which will be operational or in effect in the analysis year, except that regulatory TCMs may not be assumed to begin at a future time unless the regulation is already adopted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan;

(3) all travel demand management programs and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any Federal funding or approval, which have been fully adopted and/or funded by the enforcing jurisdiction or sponsoring agency since the last conformity determination;

(4) the incremental effects of any travel demand management programs and transportation system management activities known to the MPO, but not included in the applicable SIP revision or utilizing any Federal funding or approval, which were adopted and/or funded prior to the date of the last conformity determination, but which have been modified since then to be more stringent or effective;

(5) completion of all expected regionally significant highway and transit projects which are not from a conforming transportation plan and TIP; and

(6) completion of all expected regionally significant non-FHWA/FTA highway and transit projects that have clear funding sources and commitments leading toward their implementation and completion by the analysis year.

(h) Projects not from a conforming transportation plan and TIP. For the regional emissions analysis required by subdivisions (b) and (c) of this section, if the project which is not from a conforming transportation plan and TIP is a modification of a project currently in the plan or TIP, the 'Baseline' scenario must include the project with its original design concept and scope, and the 'Action' scenario must include the project with its new design concept and scope.

§240.21 Consequences of control strategy implementation plan failures

(a) Disapprovals.

(1) If EPA disapproves any submitted control strategy SIP revision (with or without a protective finding), the conformity status of the transportation plan and TIP shall lapse on the date that highway sanctions as a result of the disapproval are imposed on the nonattainment area under section 179(b)(1) (see section 200.9 of this Title) of the Act. No new transportation plan, TIP, or project may be found to conform until another control strategy SIP revision fulfilling the same Clean Air Act requirements is submitted and conformity to this submission is determined.

(2) If EPA disapproves a submitted control strategy SIP revision without making a protective finding, then beginning 120 days after such disapproval, only projects in the first three years of the currently conforming transportation plan and TIP may be found to conform. This means that beginning 120 days after disapproval without a protective finding, no transportation plan, TIP, or project which is not in the first three years of the currently conforming plan and TIP may be found to conform until another control strategy SIP revision fulfilling the same Clean Air Act requirements is submitted and conformity to this submission is determined. During the first 120 days following EPA's disapproval without a protective finding, transportation plan, TIP, and project conformity determinations shall be made using the motor vehicle emissions budget(s) in the disapproved control strategy SIP, unless another control strategy SIP revision has been submitted and its motor vehicle emissions budget(s) applies for transportation conformity purposes, pursuant to section 240.10 of this Part.

(3) In disapproving a control strategy implementation plan revision, EPA would give a protective finding where a submitted plan 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.

(b) Failure to submit and incompleteness. In areas where EPA notifies the State, MPO, and USDOT of the State's failure to submit a control strategy SIP revision or submission of an incomplete control strategy SIP revision (either of which initiates the sanction process under the Act section 179 or 110[m]) (see section 200.9 of this Title), the conformity status of the transportation plan and TIP shall lapse on the date that highway sanctions are imposed on the nonattainment area for such failure under section 179(b)(1) of the act (see section 200.9 of this Title), unless the failure has been remedied and acknowledged by a letter from the EPA Regional Administrator.

(c) Federal implementation plans. If EPA promulgates a Federal implementation plan that contains motor vehicle emissions budget(s) as a result of a State failure, the conformity lapse imposed by this section because of that State failure is removed.

§240.22 Requirements for adoption or approval of projects by other recipients of funds designated under Title 23 U.S.C. or the Federal Transit Laws

(a) Except as provided in subdivision (b) of this section, no recipient of Federal funds designated under title 23 U.S.C. or the Federal Transit Laws (see section 200.9 of this Title) shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following paragraphs are met:

(1) the project was included in the first three years of the most recently conforming transportation plan and TIP (or the conformity determination's regional emissions analyses), even if conformity status is currently lapsed; and the project's design concept and scope has not changed significantly from those analyses; or

(2) there is a currently conforming transportation plan and TIP, and a new regional emissions analysis including the project and the currently conforming transportation plan and TIP demonstrates that the transportation plan and TIP would still conform if the project were implemented (consistent with the requirements of sections 240.19 and/or 240.20 of this Part for a project not from a conforming transportation plan and TIP).

(b) In isolated rural nonattainment and maintenance areas subject to section 240.10(g) of this Part, no recipient of Federal funds designated under title 23 U.S.C. or the Federal Transit Laws (see section 200.9 of this Title) shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following paragraphs are met:

(1) the project was included in the regional emissions analysis supporting the most recent conformity determination for the portion of the statewide transportation plan and TIP which are in the nonattainment or maintenance area, and the project's design concept and scope has not changed significantly; or

(2) a new regional emissions analysis including the project and all other regionally significant projects expected in the nonattainment or maintenance area demonstrates that those projects in the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area would still conform if the project were implemented (consistent with the requirements of sections 240.19 and/or 240.20 of this Part for projects not from a conforming transportation plan and TIP).

§240.23 Procedures for determining regional transportation-related emissions

(a) General requirements.

(1) The regional emissions analysis required by sections 240.19 and 240.20 of this Part for the transportation plan, TIP, or project not from a conforming plan and TIP must include all regionally significant projects expected in the nonattainment or maintenance area. The analysis shall include FHWA/FTA projects proposed in the transportation plan and TIP and all other regionally significant projects which are disclosed to the MPO as required by section 240.6 of this Part. Projects which are not regionally significant are not required to be explicitly modeled using the network-based transportation demand model, but vehicle miles traveled (VMT) and emissions from such projects must be estimated in accordance with reasonable professional practice. The effects of TCMs and similar projects that are not regionally significant may also be estimated in accordance with reasonable professional practice.

(2) The emissions analysis may not include for emissions reduction credit any TCMs or other measures in the applicable implementation plan which have been delayed beyond the scheduled date(s) until such time as their implementation has been assured. If the measure has been partially implemented and it can be demonstrated that it is providing quantifiable emission reduction benefits, the emissions analysis may include that emissions reduction credit.

(3) Emissions reduction credit from projects, programs, travel demand strategies or activities which require a regulatory action in order to be implemented may not be included in the emissions analysis unless:

(i) the regulatory action is already adopted by the enforcing jurisdiction;

(ii) the project, program, or activity is included in the applicable SIP revision;

(iii) the control strategy SIP revision submission or maintenance plan submission that establishes the motor vehicle emissions budget(s) for the purposes of section 240.19 of this Part contains a written commitment to the project, program, or activity by the agency with authority to implement it; or

(iv) EPA has approved an opt-in to a Federally enforced program, EPA has promulgated the program (if the control program is a Federal responsibility, such as vehicle tailpipe standards), or the Clean Air Act requires the program without need for individual State action and without any discretionary authority for EPA to set its stringency, delay its effective date, or not implement the program.

(4) Emissions reduction credit from control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in order to be implemented may not be included in the emissions analysis unless the conformity determination includes written commitments to implementation from the appropriate entities.

(i) Persons or entities voluntarily committing to control measures must comply with the obligations of such commitments.

(ii) Written commitments to control measures that are not included in the transportation plan and TIP must be obtained prior to a conformity determination and that such commitments must demonstrate assurance that they will be fulfilled.

(5) A regional emissions analysis for the purpose of satisfying the requirements of section 240.20 of this Part must make the same assumptions in both the "Baseline" and "Action" scenarios regarding control measures that are external to the transportation system itself, such as vehicle tailpipe or evaporative emission standards, limits on gasoline volatility, vehicle inspection and maintenance programs, and oxygenated or reformulated gasoline or diesel fuel.

(6) The ambient temperatures used for the regional emissions analysis shall be consistent with those used to establish the emissions budget in the applicable SIP revision. All other factors, for example the fraction of travel in a hot stabilized engine mode, must be consistent with the applicable SIP revision, unless modified after interagency consultation according to section 240.6 of this Part to incorporate additional or more geographically specific information or represent a logically estimated trend in such factors beyond the period considered in the applicable SIP revision.

(7) Reasonable methods shall be used to estimate nonattainment or maintenance area VMT on off-network roadways within the urban transportation planning area, and on roadways outside the urban transportation planning area.

(b) Regional emissions analysis in serious, severe, and extreme ozone nonattainment areas and serious CO nonattainment areas must meet the requirements of paragraphs (1) through (3) of this subdivision if their metropolitan planning area contains an urbanized area population over 200,000.

(1) By January 1, 1997, estimates of regional transportation-related emissions used to support conformity determinations must be made at a minimum using network-based travel models according to procedures and methods that are available and in practice and supported by current and available documentation. These procedures, methods, and practices are available from USDOT and will be updated periodically. Agencies must discuss these modeling procedures and practices through the interagency consultation process, as required by section 240.6 of this Part. Network-based travel models must at a minimum satisfy the following requirements:

(i) network-based travel models must be validated against observed counts (peak and off-peak, if possible) for a base year that is not more than 10 years prior to the date of the conformity determination. Model forecasts must be analyzed for reasonableness and compared to historical trends and other factors, and the results must be documented;

(ii) land use, population, employment, and other network-based travel model assumptions must be documented and based on the best available information;

(iii) scenarios of land development and use must be consistent with the future transportation system alternatives for which emissions are being estimated. The distribution of employment and residences for different transportation options must be reasonable;

(iv) a capacity-sensitive assignment methodology must be used, and emissions estimates must be based on a methodology which differentiates between peak and off-peak link volumes and speeds and uses speeds based on final assigned volumes;

(v) zone-to-zone travel impedances used to distribute trips between origin and destination pairs must be in reasonable agreement with the travel times that are estimated from final assigned traffic volumes. Where use of transit currently is anticipated to be a significant factor in satisfying transportation demand, these times should also be used for modeling mode splits; and

(vi) network-based travel models must be reasonably sensitive to changes in the time(s), cost(s), and other factors affecting travel choices.

(2) Reasonable methods in accordance with good practice must be used to estimate traffic speeds and delays in a manner that is sensitive to the estimated volume of travel on each roadway segment represented in the network-based travel model.

(3) Highway Performance Monitoring System (HPMS) estimates of vehicle miles traveled (VMT) shall be considered the primary measure of VMT within the portion of the nonattainment or maintenance area and for the functional classes of roadways included in HPMS, for urban areas which are sampled on a separate urban area basis. For areas with network-based travel models, a factor (or factors) may be developed to reconcile and calibrate the network-based travel model estimates of VMT in the base year of its validation to the HPMS estimates for the same period. These factors may then be applied to model estimates of future VMT. In this factoring process, consideration will be given to differences between HPMS and network-based travel models, such as differences in the facility coverage of the HPMS and the modeled network description. Locally developed count-based programs and other departures from these procedures are permitted subject to the interagency consultation procedures of section 240.6 of this Part.

(c) In all areas not otherwise subject to subdivision (b) of this section, regional emissions analyses must use those procedures described in subdivision (b) of this section if the use of those procedures has been the previous practice of the MPO. Otherwise, areas not subject to subdivision (b) of this section may estimate regional emissions using any appropriate methods that account for VMT growth by, for example, extrapolating historical VMT or projecting future VMT by considering growth in population and historical growth trends for VMT per person. These methods must also consider future economic activity, transit alternatives, and transportation system policies.

(d) PM10 from construction-related fugitive dust.

(1) For areas in which the implementation plan does not identify construction-related fugitive PM10 as a contributor to the nonattainment problem, the fugitive PM10 emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis.

(2) In PM10 nonattainment and maintenance areas with applicable SIP revisions which identify construction-related fugitive PM10 as a contributor to the nonattainment problem, the regional PM10 emissions analysis shall consider construction-related fugitive PM10 and shall account for the level of construction activity, the fugitive PM10 control measures in the applicable SIP revisions, and the dust-producing capacity of the proposed activities.

(e) Reliance on previous regional emissions analysis.

(1) The TIP may be demonstrated to satisfy the requirements of section 240.19 or 240.20 without new regional emissions analysis if the regional emissions analysis already performed for the plan also applies to the TIP. This requires a demonstration that:

(i) the TIP contains all projects which must be started in the TIP's timeframe in order to achieve the highway and transit system envisioned by the transportation plan;

(ii) all TIP projects which are regionally significant are included in the transportation plan with design concept and scope adequate to determine their contribution to the transportation plan's regional emissions at the time of the transportation plan's conformity determination; and

(iii) the design concept and scope of each regionally significant project in the TIP is not significantly different from that described in the transportation plan.

(2) A project which is not from a conforming transportation plan and a conforming TIP may be demonstrated to satisfy the requirements of section 240.19 or 240.20 of this Part without additional regional emissions analysis if allocating funds to the project will not delay the implementation of projects in the transportation plan or TIP which are necessary to achieve the highway and transit system envisioned by the transportation plan, and if the project is either:

(i) not regionally significant; or

(ii) included in the conforming transportation plan (even if it is not specifically included in the latest conforming TIP) with design concept and scope adequate to determine its contribution to the transportation plan's regional emissions at the time of the transportation plan's conformity determination, and the design concept and scope of the project is not significantly different from that described in the transportation plan.

§240.24 Procedures for determining localized CO and PM10 concentrations (hot-spot analysis)

(a) CO hot-spot analysis.

(1) The demonstrations required by section 240.17 of this Part must be based on quantitative analysis using the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51 appendix W (see section 200.9 of this Title). These procedures shall be used in the following cases, unless different procedures developed through the interagency consultation process required in section 240.6 of this Part and approved by the EPA Regional Administrator are used:

(i) for projects in or affecting locations, areas, or categories of sites which are identified in the applicable implementation plan as sites of violation or possible violation;

(ii) for projects affecting intersections that are at Level-of-Service D, E, or F, or those that will change to Level-of-Service D, E, or F because of increased traffic volumes related to the project;

(iii) for any project affecting one or more of the top three intersections in the nonattainment or maintenance area with highest traffic volumes, as identified in the applicable SIP revision; and

(iv) for any project affecting one or more of the top three intersections in the nonattainment or maintenance area with the worst level of service, as identified in the applicable SIP revision.

(2) In cases other than those described in paragraph (1) of this subdivision, the demonstrations required by section 240.17 of this Part may be based on either:

(i) quantitative methods that represent reasonable and common professional practice; or

(ii) a qualitative consideration of local factors, if this can provide a clear demonstration that the requirements of section 240.17 of this Part are met.

(b) PM10 hot-spot analysis.

(1) The hot-spot demonstration required by section 240.17 of this Part must be based on quantitative analysis methods for the following types of projects:

(i) projects which are located at sites at which violations have been verified by monitoring;

(ii) projects which are located at sites which have vehicle and roadway emission and dispersion characteristics that are essentially identical to those of sites with verified violations (including sites near one at which a violation has been monitored); and

(iii) new or expanded bus and rail terminals and transfer points which increase the number of diesel vehicles congregating at a single location.

(2) Where quantitative analysis methods are not required, the demonstration required by section 240.17 of this Part may be based on a qualitative consideration of local factors.

(3) The identification of the sites described in subparagraphs (1)(i) and (ii) of this subdivision, and other cases where quantitative methods are appropriate, shall be determined through the interagency consultation process required in section 240.6 of this Part. USDOT may choose to make a categorical conformity determination on bus and rail terminals or transfer points based on appropriate modeling of various terminal sizes, configurations, and activity levels.

(4) The requirements for quantitative analysis contained in this subdivision will not take effect until EPA releases modeling guidance on this subject and announces in the Federal Register that these requirements are in effect.

(c) General requirements.

(1) Estimated pollutant concentrations must be based on the total emissions burden which may result from the implementation of the project, summed together with future background concentrations. The total concentration must be estimated and analyzed at appropriate receptor locations in the area substantially affected by the project.

(2) Hot-spot analyses must include the entire project, and may be performed only after the major design features which will significantly impact concentrations have been identified. The future background concentration should be estimated by multiplying current background by the ratio of future to current traffic and the ratio of future to current emission factors.

(3) Hot-spot analysis assumptions must be consistent with those in the regional emissions analysis for those inputs which are required for both analyses.

(4) PM10 or CO mitigation or control measures shall be assumed in the hot-spot analysis only where there are written commitments from the project sponsor and/or operator to implement such measures, as required by section 240.26(a) of this Part.

(5) CO and PM10 hot-spot analyses are not required to consider construction-related activities which cause temporary increases in emissions. Each site which is affected by construction-related activities shall be considered separately, using established "Guideline" methods. Temporary increases are defined as those which occur only during the construction phase and last five years or less at any individual site.

§240.25 Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission)

(a) In interpreting an applicable SIP revision (or SIP revision submission) with respect to its motor vehicle emissions budget(s), the MPO, NYSDOT and USDOT may not infer additions to the budget(s) that are not explicitly intended by the SIP revision (or submission). Unless the SIP revision explicitly quantifies the amount by which motor vehicle emissions could be higher while still allowing a demonstration of compliance with the milestone, attainment, or maintenance requirement and explicitly states an intent that some or all of this additional amount should be available to the MPO, NYSDOT and USDOT in the emissions budget for conformity purposes, the MPO may not interpret the budget to be higher than the SIP's revision estimate of future emissions. This applies in particular to applicable SIP revisions (or submissions) which demonstrate that after implementation of control measures in the SIP revision:

(1) emissions from all sources will be less than the total emissions that would be consistent with a required demonstration of an emissions reduction milestone;

(2) emissions from all sources will result in achieving attainment prior to the attainment deadline and/or ambient concentrations in the attainment deadline year will be lower than needed to demonstrate attainment; or

(3) emissions will be lower than needed to provide for continued maintenance.

(b) If an applicable SIP revision submitted before November 24, 1993, demonstrates that emissions from all sources will be less than the total emissions that would be consistent with attainment and quantifies that "safety margin," the State may submit an SIP revision which assigns some or all of this safety margin to highway and transit mobile sources for the purposes of conformity. Such an implementation plan revision, once it is endorsed by the Governor and has been subject to a public hearing, may be used for the purposes of transportation conformity before it is approved by EPA.

(c) A conformity demonstration shall not trade emissions among budgets which the applicable SIP revision (or SIP revision submission) allocates for different pollutants or precursors, or among budgets allocated to motor vehicles and other sources, unless the SIP revision establishes appropriate mechanisms for such trades.

(d) If the applicable SIP revision (or SIP revision submission) estimates future emissions by geographic subarea of the nonattainment area, the MPO and USDOT are not required to consider this to establish subarea budgets, unless the applicable SIP revision (or SIP revision submission) explicitly indicates an intent to create such subarea budgets for the purposes of conformity.

(e) If a nonattainment area includes more than one MPO, the SIP revision may establish motor vehicle emissions budgets for each MPO. Otherwise the MPOs must collectively make a conformity determination for the entire nonattainment area.

§240.26 Enforceability of design concept and scope and project-level mitigation and control measures

(a) Prior to determining that a transportation project is in conformity, the MPO, other recipient of funds designated under title 23 U.S.C. or the Federal Transit Laws (see section 200.9 of this Title), FHWA, or FTA must obtain from the project sponsor and/or operator written commitments to implement in the construction of the project and operation of the resulting facility or service any project-level mitigation or control measures which are identified as conditions for NEPA process completion with respect to local PM10 or CO impacts. Before a conformity determination is made, written commitments must also be obtained for project-level mitigation or control measures which are conditions for making conformity determinations for a transportation plan or TIP and are included in the project design concept and scope which is used in the regional emissions analysis required by sections 240.19 and 240.20 of this Part or used in the project-level hot-spot analysis required by section 240.17 of this Part.

(b) Project sponsors voluntarily committing to mitigation measures to facilitate positive conformity determinations must comply with the obligations of such commitments.

(c) Written commitments to mitigation measures must be obtained prior to a positive conformity determination, and that project sponsors must comply with such commitments.

(d) If the MPO or project sponsor believes the mitigation or control measure is no longer necessary for conformity, the project sponsor or operator may be relieved of its obligation to implement the mitigation or control measure if it can demonstrate that the applicable hot-spot requirements of section 240.17 of this Part, emission budget requirements of section 240.19 of this Part, and emission reduction requirements of section 240.20 of this Part are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under section 240.6 of this Part. The MPO and USDOT must find that the transportation plan and TIP still satisfy the applicable requirements of sections 240.19 and/or 240.20 of this Part and that the project still satisfies the requirements of section 240.17 of this Part, and therefore that the conformity determinations for the transportation plan, TIP, and project are still valid. This finding is subject to the applicable public consultation requirements in section 240.6(e) of this Part for conformity determinations for projects.

§240.27 Exempt projects

Notwithstanding the other requirements of this subpart, highway and transit projects of the types listed in Table 2 of this section are exempt from the requirement to determine conformity. Such projects may proceed toward implementation even in the absence of a conforming transportation plan and TIP. A particular action of the type listed in Table 2 of this section is not exempt if the MPO in consultation with other agencies (see section 240.6 of this Part), the EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has significant emissions impacts for any reason. States and MPOs must ensure that exempt projects do not interfere with TCM implementation. Table 2 follows:

Table 2. - Exempt Projects

SAFETY

  • Railroad/highway crossing.
  • Hazard elimination program.
  • Safer non-Federal-aid system roads.
  • Shoulder improvements.
  • Increasing sight distance.
  • Safety improvement program.
  • Traffic control devices and operating assistance other than signalization projects.
  • Railroad/highway crossing warning devices.
  • Guiderails, median barriers, crash cushions.
  • Pavement resurfacing and/or rehabilitation.
  • Pavement marking demonstration.
  • Emergency relief (23 U.S.C. 125).
  • Fencing.
  • Skid treatments.
  • Safety roadside rest areas.
  • Adding medians.
  • Truck climbing lanes outside the urbanized area.
  • Lighting improvements.
  • Widening narrow pavements or reconstructing bridges (no additional travel lanes).
  • Emergency truck pullovers.

MASS TRANSIT

  • Operating assistance to transit agencies.
  • Purchase of support vehicles.
  • Rehabilitation of transit vehicles1.
  • Purchase of office, shop, and operating equipment for existing facilities.
  • Purchase of operating equipment for vehicles (e.g., radios, fareboxes, lifts, etc.).
  • Construction or renovation of power, signal, and communications systems.
  • Construction of small passenger shelters and information kiosks.
  • Reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings, storage and maintenance facilities, stations, terminals, and ancillary structures).
  • Rehabilitation or reconstruction of track structures, track, and trackbed in existing rights-of-way.
  • Purchase of new buses and rail cars to replace existing vehicles or for minor expansions of the fleet1.
  • Construction of new bus or rail storage/maintenance facilities categorically excluded in 23 CFR Part 771 (see section 200.9 of this Title).

AIR QUALITY

  • Continuation of ride-sharing and van-pooling promotion activities at current levels.
  • Bicycle and pedestrian facilities.

OTHER

  • Specific activities which do not involve or lead directly to construction, such as:
    • Planning and technical studies.
    • Grants for training and research programs.
    • Planning activities conducted pursuant to titles 23 and 49 U.S.C. (see section 200.9 of this Title).
    • Federal-aid systems revisions.
    • Engineering to assess social, economic, and environmental effects of the proposed action or alternatives to that action.
    • Noise attenuation.
    • Emergency or hardship advance land acquisitions (23 CFR 712.204[d]) (see section 200.9 of this Title).
    • Acquisition of scenic easements.
    • Plantings, landscaping, etc.
    • Sign removal.
    • Directional and informational signs.
    • Transportation enhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities).
    • Repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects involving substantial functional, locational or capacity changes.

___________________________

1In PM10 nonattainment or maintenance areas, such projects are exempt only if they are in compliance with control measures in the applicable implementation plan.

§240.28 Projects exempt from regional emissions analyses

Notwithstanding the other requirements of this subpart, highway and transit projects of the types listed in Table 3 of this section are exempt from regional emissions analysis requirements. The local effects of these projects with respect to CO or PM10 concentrations must be considered to determine if a hot-spot analysis is required prior to making a project-level conformity determination. These projects may then proceed to the project development process even in the absence of a conforming transportation plan and TIP. A particular action of the type listed in Table 3 of this section is not exempt from regional emissions analysis if the MPO in consultation with other agencies (see section 240.6[h][3] of this Part), EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has potential regional impacts for any reason. Table 3 follows:

Table 3. - Projects Exempt From Regional Emissions Analyses

  • Intersection channelization projects.
  • Intersection signalization projects at individual intersections.
  • Interchange reconfiguration projects.
  • Changes in vertical and horizontal alignment.
  • Truck size and weight inspection stations.
  • Bus terminals and transfer points.

§240.29 Traffic signal synchronization projects

Traffic signal synchronization projects may be approved, funded, and implemented without satisfying the requirements of this subpart. However, all subsequent regional emissions analyses required by sections 240.19 and 240.20 of this Part for transportation plans, TIPs, or projects not from a conforming plan and TIP must include such regionally significant traffic signal synchronization projects.