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6 NYCRR Parts 240 and 200, General Provisions Express Terms Summary

Part 240 establishes the New York State Transportation Conformity requirements. The Department's Transportation Conformity regulations 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.

Part 240 establishes the consultation process for involved agencies to address the federal requirements for transportation conformity codified in 40 CFR Part 93. In general, Part 240 provides involved agencies (the Department, New York State Department of Transportation (NYSDOT), Environmental Protection Agency (EPA), Federal Highway Administration (FHWA), Federal Transit Administration (FTA) and affected Municipal Planning Organizations (MPOs)) with reasonable opportunity for consultation throughout the process of determining conformity for MPO long range transportation plans and transportation improvement programs (TIPs).

The communication provisions of Part 240 include communications requirements necessary to fully engage involved agencies in the development of the applicable transportation plans, TIPs, program of transportation projects and state implementation plan (SIP) revisions. This includes the minimum timeframe to convene meetings between technical representatives of at least every 180 days for MPO transportation plan, MPO TIP conformity determinations and proposed SIP revisions. For policy level representatives the minimum timeframe requires that meetings should occur at least once annually.

Part 240 includes requirements for transmittal of lists to involved agencies, of all expected SIP revisions and actions requiring a conformity determination for that calendar year. It also includes the requirement that all involved agencies provide the names and addresses of agency offices and officers to which all correspondence in furtherance of Part 240 is to be directed.

The draft document provisions require that the lead conformity agency and the department shall provide the other involved agencies with relevant draft documents such as transportation plans, TIPs, SIP revisions, regional emissions analyses, and other drafts to be utilized for conformity determinations. These provisions require the lead conformity agency or the department to share the draft documents 30 days prior to the beginning of the public comment period, where possible and allow for no less than 30 days, or an adequate amount of time as determined in consultation to submit written comments.

The regulation outlines the consultation obligations and procedures for the department, NYSDOT and affected MPOs. The following general duties apply:

The department shall cooperatively develop, with NYSDOT and the affected MPOs, a list of Transportation Control Measures (TCMs) for potential inclusion in the applicable SIP revision; consult 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; 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; provide guidance, expertise, and assistance to other involved agencies on the applicable SIP revision; and convene, as necessary, meetings among technical staff of participating agencies.

NYSDOT shall coordinate the review of MPO draft transportation plans and MPO draft TIP conformity determinations and administer the formal submittal of the MPO transportation plan and MPO TIP; coordinate the review of the program of transportation projects in nonattainment or maintenance areas outside MPO boundaries and administer the formal submittal; 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; cooperatively develop, with the department and affected MPOs, a list of TCMs for potential inclusion in the applicable SIP revision; develop a public involvement process which provides opportunity for public review and comment on conformity determinations for transportation programs; provide guidance, expertise, and assistance to affected MPOs and local transportation agencies; in cooperation with affected MPOs, provide transportation data and transportation related parameters to the department for calculation of mobile source emissions; maintain the list of all conformity contacts; and convene, as necessary, meetings among appropriate staff to facilitate review.

The affected MPOs shall develop metropolitan area transportation plan and TIP conformity determinations; develop a public involvement process which provides opportunity for public review and comment on conformity determinations; cooperatively develop, with NYSDOT and the department, a list of TCMs for potential inclusion in the applicable SIP revision; document consideration of all significant comments received from involved agencies with respect to conformity determinations; in consultation with NYSDOT and the department, involve local transportation planning and local air agencies as required; in consultation with NYSDOT, the department, EPA, FHWA and FTA, provide the proposed list of exempt and non-exempt projects, proposed list of regionally significant projects and pertinent supporting documentation as required in an agreed upon format.

In order to meet the consultation obligations involved agencies shall establish a meeting schedule at the beginning of each calendar year.

Part 240 contains provisions for development and application of Transportation Control Measures (TCMs) and emissions budgets in the applicable SIP revision. NYSDOT and the affected MPOs, in consultation with the department, shall develop a list of TCMs for potential inclusion in the applicable SIP revision. The TCMs designated shall be specifically identified in the applicable SIP revision. The department shall develop any proposed motor vehicle emissions budget in consultation with involved agencies and provide such proposed budget to NYSDOT and the affected MPOs for review and comment at least 30 days, or an adequate amount of time as determined through consultation with involved agencies, prior to the submittal of the motor vehicle emissions budget to EPA for inclusion in the applicable SIP revision. If there is not agreement on which TCMS or on the proposed motor vehicle emissions budget to include in the state air quality implementation plan, the matter shall be resolved in accordance with the conflict resolution procedures in the regulations.

The model evaluation and selection procedures in Part 240 require NYSDOT to consult with involved agencies to select the air quality model inputs and to consult with the department, FHWA/FTA, and EPA to select the air quality models and parameters to use; require the affected MPOs and NYSDOT to develop procedures for transportation models and transportation inputs and parameters in consultation with the department, affected local air and transportation agencies, FHWA/FTA, and EPA; and provide for the department to 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 involved agencies.

Part 240 contains provisions for determining 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 regulation contains criteria that shall be considered by the involved agencies to evaluate whether the project is regionally significant. There are also procedures for the evaluation of certain exempt projects that require the affected MPOs and NYSDOT, in consultation with the department, to determine which exempt projects should be treated as non-exempt due to significant emissions impacts.

The provisions in Part 240 for timely TCM implementation require that NYSDOT, the department, and the affected MPOs shall cooperatively determine whether TCMs are being implemented as scheduled; whether State and local agencies with the appropriate authority are giving maximum priority to approving or funding of TCMs; and whether delays in implementing TCMs specifically identified in the applicable SIP necessitate revision of the SIP. The procedures for projects in PM10 and/or PM2.5 nonattainment area require that the lead conformity agency determine if projects located in PM10 and/or PM2.5 nonattainment areas require a quantitative PM10 and/or PM2.5 hot-spot analysis in accordance with 40 CFR 93.123(b)(1).

The procedures for notification of MPO transportation plan or MPO TIP amendments in Part 240 require each affected MPO to determine, in consultation with NYSDOT, whether MPO TIP or MPO transportation plan amendments solely concern the addition or deletion of exempt projects. NYSDOT shall make the determination for projects outside MPO boundaries in nonattainment or maintenance areas. The department, NYSDOT, USDOT, EPA and, as appropriate, affected local air and transportation agencies shall be notified in writing of any determinations within 30 days of such determination.

Part 240 includes procedures for events triggering new conformity determinations that require NYSDOT, in consultation with the department and affected MPOs, to identify instances when new conformity determinations are required. When transportation activities cross MPO or nonattainment areas boundaries, NYSDOT, in consultation with the department and affected MPOs, shall coordinate emissions analyses. For nonattainment or maintenance areas not entirely included in a single MPO boundary, NYSDOT shall coordinate the preparation of conformity determinations and air quality analyses and it shall make air quality analyses in nonattainment or maintenance areas that do not include any 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. If more than one MPO is within the same nonattainment or maintenance area, NYSDOT shall coordinate the preparation of the conformity determinations. In isolated rural nonattainment and maintenance areas, NYSDOT shall coordinate the preparation of conformity determinations and air quality analyses as determined through consultation with all involved agencies.

For regionally significant projects that are not FHWA/FTA projects, Part 240 requires the affected MPOs and NYSDOT to work with the department to identify the projects so that proper project information is included in the regional emissions analysis. 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.

The criteria and procedures for localized CO, PM10, and PM2.5 violations (hot-spots) applies at all times. The FHWA/FTA or regionally significant project must not cause or contribute to any new localized CO, PM10, and/or PM2.5 violations, increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations, or delay timely attainment of any NAAQS or any required interim emission reductions or other milestones in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied without a hot-spot analysis in PM10, and PM2.5 nonattainment and maintenance areas for FHWA/FTA or regionally significant projects that are not identified in 40 CFR 93.123(b)(1). This criterion is satisfied for all other FHWA/FTA or regionally significant projects in CO, PM10, and PM2.5 nonattainment and maintenance areas if it is demonstrated that during the time frame of the transportation plan 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 and the project has been included in a regional emissions analysis. For CO nonattainment 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 during the time frame of the transportation plan (or regional emissions analysis) existing localized CO violations will be eliminated or reduced in severity and number as a result of the project.

In order to comply with the criteria and procedures for PM10 and PM2.5 control measures in Part 240, the regionally significant project must comply with any PM10 and PM2.5 control measures in the applicable implementation plan. The project-level conformity determination must contain a written commitment from the project sponsor to include those control measures that are contained in the applicable implementation plan.

Under Part 240, 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. They must also 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 involved agencies. NYSDOT shall provide a final copy of program of transportation projects conformity determinations with pertinent supporting materials for nonattainment or maintenance areas outside MPO boundaries to the involved agencies and the department shall provide a final copy of all applicable SIP revisions and pertinent supporting materials to involved agencies.

In the event that the involved agencies are unable to reach agreement on any matter set forth in Part 240, the unresolved issue or issues shall be referred to the commissioners of the department and NYSDOT for resolution. For conformity determinations for MPO transportation plans, MPO TIPS, and programs of transportation projects in areas outside any MPO each lead conformity agency making conformity determinations for a MPO transportation plan, MPO TIP, or program of transportation 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. Upon closing of the consultation period provided for the department shall have fourteen calendar days from receipt of such transmittal to appeal to the Governor as provided for in this section. For 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. 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 shall have 14 calendar days from the receipt of notification from the department that concurrence has not been reached to appeal to the Governor.

The department or NYSDOT may invoke the conflict resolution procedure by delivering to the Governor or Governor's designee, the Commissioner of NYSDOT or the department, and the conformity contacts, a letter requesting that the Governor exercise his or her discretion under Part 240. In event that the department or NYSDOT invokes the conflict resolution procedure, the final conformity determination must have the concurrence of the Governor or Governor's designee. If the department or NYSDOT do not appeal to the Governor within the specified 14 days, the affected MPO or NYSDOT may proceed with the final conformity determination or the department may proceed with its SIP revision.

Part 240 contains public participation procedures that conformity determinations for MPO transportation plans and MPO TIPs follow the specific public involvement process which provides opportunity for public review and comment prior to formal action on a conformity determination for all MPO transportation plans and MPO TIPs. Reasonable public access to technical and policy information considered by the affected agencies making the conformity determination must be provided at the beginning of the public review period. Conformity determinations must specifically address, in writing, all significant public comments claiming 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. 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 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. Public involvement in conformity determinations for transportation projects shall also be provided where otherwise required by law and copy fees shall be assessed in accordance with the access to records policy, rule or regulation of the involved agency responsible for the creation of the applicable record.

For regionally significant projects not from a conforming plan or TIP, Part 240 requires that the conformity determination applicable to such project shall be made in accordance with Table 1 of 40 CFR 93.109(b). 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 inputs or assumptions different from those identified in paragraphs 240-2.8(a)(2), (3) and (4) of Part 240, subdivision 240-11(c) shall apply. As required, 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 model 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. 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.

Part 240 also requires that written commitments to control measures that are not included in the transportation plan and TIP must be obtained prior to a conformity determination and must demonstrate assurance that they will be fulfilled. Written commitments to mitigation measures must also be obtained prior to a positive conformity determination, and the project sponsors must comply with such commitments.

Part 200 cites the portions of Federal statute and regulations that are incorporated by reference into Part 240.


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