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Related Practices
Related Practices

EPA / USDOT Propose Changes to Transportation Conformity Regulations

Beveridge & Diamond, P.C., May 7, 2007

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On May 2, 2007, EPA published proposed amendments to the Transportation Conformity Regulations for public comment (72 Fed. Reg. 24472).  Comments are due by June 1, 2007.

The draft regulations, issued with the concurrence of USDOT, would amend existing regulations at 40 C.F.R. Part 93 to implement certain changes made by the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act - A Legacy for Users (SAFETEA-LU), Pub. L. 109-59.  Overall, the changes are mostly non-controversial, as they in large part incorporate mandatory statutory revisions to the transportation planning process.  Some of the provisions have been legally in effect since August 10, 2005, when SAFETEA was signed into law, and thus the regulation merely updates existing regulations or provides additional guidance.  However, there may be some areas of stakeholder disagreement.

The principal changes implicate the following planning components.

  • Planning Cycle.  The frequency of conformity determinations for plans and TIPs in air quality non-attainment and maintenance areas would be every 4 years (increased from 3 years) to match the longer 4-year planning cycle under SAFETEA-LU (increased from 2 years for TIPs and 3 years for plans).  MPOs would retain discretion to update plans and TIPs more frequently.
  • Conformity Triggers.  Under the proposed rule, MPOs would have 2 years (increased from 18 months) to re-determine plan and TIP conformity following a "trigger," i.e., an adequacy finding on a new motor vehicle emissions budget (MVEB) or adoption of a new state or federal air quality implementation plan with new MVEBs.
  • Conformity Lapse.  During a "lapse," i.e., the 1-year period following a deadline for a conformity determination, projects may proceed if they were included in the previously conforming TIP, even if the plan (but not the TIP) subsequently expires.  EPA acknowledges some ambiguity in the statutory language here, and this interpretation is likely to be challenged.  Note that this provision does not apply to newly designated nonattainment areas that miss the one-year deadline for making a conformity determination on an initial plan/TIP, although such areas have a separate 1-year phase-in period.
  • Conformity Freeze.  During a conformity freeze, projects in the first 4 years of a conformity TIP can proceed despite the freeze.  This change may draw some negative comments from certain advocacy groups that have historically attempted to use conformity lapses and freezes to halt road expansions.
  • Conformity Analysis Timeframe.  SAFETEA-LU allows MPOs to elect to shorten the conformity analysis to cover a shorter period than the 20-year transportation plan in some circumstances.  EPA is proposing a number of alternatives for implementing this new concept for various situations.
  • Substitute TCMs.  The proposed rule states that new statutory provisions in SAFETEA-LU Section 6011(d) that streamline the process for adding or replacing Transportation Control Measures in a state implementation plan are sufficiently detailed and do not require further regulatory guidance.
  • CO Categorical Hot Spots.  The rule proposes to extend existing policy allowing the use of categorical hot-spot findings for particulate matter (PM) to be also used for carbon monoxide (CO).
  • Interim Test Deletion.  The proposed rule deletes the provision in 40 CFR 93.109 that allowed use of interim emissions tests for newly designated 8-hour ozone nonattainment areas.  That provision was vacated by a federal court in Environmental Defense v. EPA, 467 F.3d 1329 (D.C. Cir. 2006), which mandated the use of existing 1-hour budgets.
  • Technical Amendments.  EPA is proposing a number of housekeeping amendments to align 40 CFR Part 93 with FHWA/FTA's February 14, 2007 transportation planning regulations (72 Fed. Reg. 7224).
For more information about EPA's transportation conformity rule or the FHWA/FTA planning regulations, contact Max Williamson at (202) 789-6084, dwilliamson@bdlaw.com or Fred Wagner at (202) 789-6041, fwagner@bdlaw.com .