6 NYCRR Parts 240 and 200 Regulatory Impact Statement
New York State (NYS) and local agencies are continuously looking for strategies to relieve traffic congestion, improve air quality, and provide communities with a safe and efficient transportation system. Transportation Conformity, a Clean Air Act (CAA) requirement, helps ensure that federally supported highway and transit project activities are consistent with (conform to) air quality State Implementation Plans (SIPs). The United States Environmental Protection Agency (EPA) recently amended the federal transportation conformity rule. Therefore, the Department of Environmental Conservation (Department) must update its regulations to comport with the federal regulation. In order to carry out this commitment, the Department proposes repealing the existing Part 240 and replacing it with new transportation conformity regulations as required by the amended federal regulations, and revising 6 NYCRR Part 200, General Provisions.
Transportation conformity applies to metropolitan transportation plans, metropolitan transportation improvement programs (TIPs), and projects, in nonattainment or maintenance areas, that are funded or approved by the Federal Highway Administration (FHWA) or Federal Transit Administration (FTA). This rule lays out the framework for interagency review of these plans, programs and projects for compliance with National Ambient Air Quality Standards (NAAQS) and the SIP. The rule identifies agencies involved in the review, includes document submission requirements, establishes time frames for review, and lays out the procedures for consultation between involved agencies. The rule defines involved agencies as the Department, the NYS Department of Transportation (DOT), EPA, FHWA, FTA and Municipal Planning Organizations (MPOs) and outlines each agency's respective role. The regulation also includes procedures for determining regional transportation-related emissions.
The statutory authority to promulgate Part 240 in NYS derives primarily from the Department's obligation to prevent and control air pollution, as set out in the Environmental Conservation Law (ECL) at Sections 1-0101, 1-0303, 3-0301, 19-0103, 19-0105, 19-0301, 19-0303, and 19-0305. Following are brief synopses and legislative objectives for these sections.
ECL Section 1-0101. This section declares NYS's policy to: conserve, improve and protect its natural resources and environment and to prevent, abate and control air pollution in order to enhance the health, safety and welfare of the people of NYS and their overall economic and social well being; coordinate the State's environmental plans, functions, powers and programs with those of the federal government and other regions and manage air resources so that the State may fulfill its responsibility as trustee of the environment for present and future generations; and foster, promote, create and maintain conditions by which man and nature can thrive in harmony by preserving special resources such as the Adirondack and Catskill forest preserves and taking care of air resources that are shared with other states in the manner of a good neighbor.
ECL Section 1-0303. This section defines the term "pollution" as "the presence in the environment of conditions and/or contaminants in quantities of characteristics which are or may be injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property throughout such areas of the state as shall be affected thereby."
ECL Section 3-0301. This section empowers the Department to coordinate and develop programs to carry out the environmental policy of NYS set forth in section 1-0101. Section 3-0301 specifically empowers the Department to: provide for the prevention and abatement of air pollution; cooperate with officials and representatives of the federal government, other States and interstate agencies regarding problems affecting the environment of NYS; encourage and undertake scientific investigation and research on the ecological process, pollution prevention and abatement, and other areas essential to understanding and achievement of the environmental policy set forth in section 1-0101; monitor the environment to afford more effective and efficient control practices; identify changes in ecological systems and to warn of emergency conditions; enter into contracts with any person to do all things necessary or convenient to carry out the functions, powers and duties of the Department; and adopt such regulations as may be necessary, convenient or desirable to effectuate the environmental policy of the State.
ECL Section 19-0103. This section declares the policy of NYS to maintain a reasonable degree of purity of air resources. The Department is required to balance public health and welfare, the industrial development of the State, propagation and protection of flora and fauna, and the protection of personal property and other resources. To that end, the Department must use all practical and reasonable methods to prevent and control air pollution in the State.
ECL Section 19-0105. This section declares that it is the purpose of Article 19 of the ECL to safeguard the air resources of NYS under a program which is consistent with the policy expressed in section 19-0103 and in accordance with other provisions of Article 19.
ECL Section 19-0301. This section declares that the Department has the power to promulgate regulations for preventing, controlling or prohibiting air pollution, and shall include in such regulations provisions prescribing the degree of air pollution that may be permitted and the extent to which air contaminants may be emitted to the air by any source in any area of the State.
ECL Section 19-0303. This section provides that the terms of any air pollution control regulation promulgated by the Department may differentiate between particular types and conditions of air pollution and air contamination sources. Section 19-0303 also provides that the Department, in adopting any regulation which contains a requirement that is more stringent than the CAA or its implementing regulations, must include in the Regulatory Impact Statement an evaluation of the cost-effectiveness of the proposed regulation in comparison to the cost-effectiveness of reasonably available alternatives and a review of the reasonably available alternative measures along with an explanation of the reasons for rejecting such alternatives.
ECL Section 19-0305. This section authorizes the Department to enforce the codes, rules and regulations established in accordance with Article 19. Section 19-0905 also empowers the Department to conduct or cause to be conducted studies and research with respect to air pollution control, abatement or prevention.
Section 176(c) of the CAA states that "No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan approved or promulgated under section 7410 of this title &133;". In accordance with this requirement, on January 24, 2008, EPA issued final regulations that amended the transportation conformity rule to implement the provisions contained in the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A legacy for Users (SAFETEA-LU). The amendments are codified in 40 CFR Part 93. These amendments require the state to submit a transportation conformity SIP that addresses the sections of the federal rule that must be tailored to a state's individual circumstances.
The Department must revise Part 240 to comply with the streamlined conformity SIP requirements contained in EPA's final regulation as well as meet the requirement to update its regulations to comport with the federal regulations within one year of promulgation.
Needs and Benefits
The air quality provisions of the CAA require a planning process that integrates air quality and transportation planning such that transportation investments support clean air goals. This process is known as transportation conformity. Transportation conformity was introduced in the CAA of 1977 which included a provision to ensure that transportation investments conform to a state's air quality plan for meeting the Federal air quality standards. Conformity requirements were made substantially more rigorous in the CAA Amendments of 1990. The transportation conformity regulations were first issued in November 1993, and have been revised numerous times since. The regulations detail the process for transportation agencies to demonstrate conformity.
Conformity applies to metropolitan transportation plans, metropolitan TIPs, and projects that are funded or approved by the FHWA or FTA, in nonattainment areas - those that do not meet the NAAQS, and maintenance areas - those that previously exceeded but now comply with the NAAQS. Conformity relates to four separate categories of NAAQS pollutants including:
- ground level ozone formed by volatile organic compounds (VOCs) and oxides of nitrogen (NOx), the primary ingredients of smog;
- carbon monoxide (CO);
- particulate matter (less than 10 microns (PM10) and less than 2.5 microns(PM2.5); and,
- nitrogen dioxide.
EPA has established standards for these four transportation-related pollutants. The standards are based upon EPA's assessment of the health risks associated with each of the pollutants on at-risk populations. These assessments are based upon short and long-term scientific studies by noted health professionals and medical research institutions. At-risk groups include children, the elderly, people with respiratory illnesses, and even healthy people who exercise outdoors. The PM2.5 standard was established in 1997 while the 1997 8-hour ozone standard was revoked and replaced by the 2008 8-hour ozone standard based upon an assessment of the health-risks associated with exposure to these pollutants. The following table shows the classifications and attainment dates for the 8-hour ozone nonattainment areas.
|Classification||Years to Attain||Attainment Date|
|Marginal||3 years||December 31, 2015|
|Moderate||6 years||December 31, 2018|
|Serious||9 years||December 31, 2021|
|Severe||15 years||December 31, 2027|
|Extreme||20 years||December 31, 2032|
Prior to EPA's revised rule, states were required to address all of the federal conformity rule provisions in their conformity SIPs. This required states to copy verbatim most of the sections of the federal rule into the state's conformity SIP, 40 CFR 51.390(d). EPA's amendments now require states to submit conformity SIPs that address only the following sections of the federal rule that are tailored to a state's individual circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii), (requires written commitments for control measures prior to a conformity determination if control measures are not included in an MPO's transportation plan and TIP, and compliance with commitments); and 40 CFR 93.125(c), (requires written commitments for mitigation measures prior to a project-level conformity determination, and compliance with commitments).
Consistent with EPA's revised rule, this proposal would change the regulations to provide more time for state and local governments to meet conformity requirements, provide a one-year grace period before the consequences of not meeting certain conformity requirements apply, allow shorter timeframe for conformity determinations, and streamline other provisions.
Transportation conformity encourages cooperation among various governmental entities and can lead to new and innovative transportation projects and air pollution control measures. Effective consultation on transportation conformity brings together professionals and officials from the transportation and air quality sectors to work together and achieve consistent goals. The interagency consultation procedure is a major part of this rulemaking and it requires ongoing dialogue between the Department, the NYS Department of Transportation (DOT), EPA, FHWA, FTA and Municipal Planning Organizations (MPOs).
The only costs associated with this rulemaking will be the Department's costs for newspaper publication and the preparation of transcripts.
Local Government Mandates
There are no local government mandates associated with these proposed revisions.
No additional record keeping, reporting, or other requirements will be imposed under this rulemaking.
These revisions coincide with the federally required sections of the transportation conformity rule as codified in 40 CFR Part 93. The provisions in Part 240 do not duplicate any of the provisions of the federal regulations.
The Department evaluated "no action," "verbatim," and "streamlined" alternatives.
The "no action" alternative was rejected because federal regulation requires the state to update its regulations to comport with the federal regulations.
The "verbatim" alternative would require the Department to adopt the entire federal regulation "verbatim" and include it in the SIP. This alternative was not selected because once EPA approves the "verbatim" conformity SIP, the Department would not be able to apply any subsequent changes to the federal rule without first revising the State conformity SIP and obtaining EPA's approval.
The "streamlined" alternative requires that the Department only adopt certain sections of the EPA regulation. This alternative was selected as it will result in a more efficient regulation and SIP process, and negate the need for redundant federal review.
There are no minimum federal standards exceeded by the revisions to Parts 200 and 240.
There is no compliance schedule required by the implementation of Part 240.