30 Tex. Admin. Code § 114.260 - Transportation Conformity
(a) Purpose. The
purpose of this section is to implement certain requirements set forth in 40
Code of Federal Regulations (CFR) Part 93, Subpart A (relating to Conformity to
State or Federal Implementation Plans of Transportation Plans, Programs, and
Projects Developed, Funded, or Approved Under Title 23 United States Code (USC)
or the Federal Transit Laws), which are the regulations developed by the United
States Environmental Protection Agency (EPA) under the Federal Clean Air Act
Amendments of 1990, §176(c)(4)(e). This section addresses the consultation
process and the written commitment requirements for control measures and
mitigation measures that are used to demonstrate and assure conformity of
transportation planning activities with the state implementation plan
(SIP).
(b) Applicability. This
section applies to transportation-related criteria pollutants for which an area
is designated nonattainment or is subject to a maintenance plan. The
transportation-related criteria pollutants are ozone, carbon monoxide, nitrogen
dioxide, particles with an aerodynamic diameter of ten micrometers (PM
10) and smaller, and particles with an aerodynamic
diameter less than or equal to a nominal 2.5 micrometers (PM
2.5). This section also applies to the precursors of
ozone, nitrogen dioxide, PM10, and
PM2.5 as required in
40
CFR §93.102.
(c) CFR incorporation. The written commitment
requirements as specified in
40
CFR §93.122(a)(4)(ii)
and §
93.125(c)
are adopted by reference.
(d)
Consultation. Under
40
CFR §93.105, regarding consultation, the
following procedures must be undertaken in nonattainment and maintenance areas
before making conformity determinations and before adopting applicable SIP
revisions.
(1) General factors.
(A) For the purposes of this subsection,
concerning consultation, the affected agencies include:
(i) EPA;
(ii) Federal Highway Administration
(FHWA);
(iii) Federal Transit
Administration (FTA);
(iv) Texas
Department of Transportation (TxDOT);
(v) metropolitan planning organizations
(MPOs) in nonattainment or maintenance areas;
(vi) local publicly owned transit services in
nonattainment or maintenance areas (the designated recipient of FTA §5307
funds);
(vii) Texas Commission on
Environmental Quality (commission);
(viii) local air quality agencies in
nonattainment or maintenance areas (recipients of
42
USC, §7405 funds).
(B) All correspondence with the affected
agencies in subparagraph (A) of this paragraph must be addressed to the
following designated points of contact:
(i)
MPO: executive director or designee;
(ii) commission: executive director or
designee;
(iii) TxDOT: director of
Transportation Planning and Programming or designee;
(iv) TxDOT: director of Environmental Affairs
Division or designee;
(v) FHWA:
administrator of Texas Division or designee;
(vi) FTA: director of Office of Program
Development or designee - FTA Region 6;
(vii) EPA: regional administrator or designee
- EPA Region 6;
(viii) TxDOT
District: district engineer or designee;
(ix) local publicly owned transit services
(the designated recipient of FTA §5307 funds): general manager or
designee;
(x) local air quality
agencies (recipients of
42
USC, §7405 funds): director or designee;
and
(xi) commission regions in
nonattainment or maintenance areas: regional director or designee.
(2) Roles and
responsibilities of affected agencies.
(A) The
MPO, in cooperation with TxDOT and publicly owned transit services, shall
consult with the agencies in paragraph (1)(A) of this subsection in the
development of Metropolitan Transportation Plans (MTPs), Transportation
Improvement Programs (TIPs), projects, technical analyses, travel demand or
other modeling, and data collection. Specifically, the MPOs shall:
(i) allow the commission's executive director
or a designated representative, to be a voting member of technical committees
on surface transportation and air quality in each nonattainment and maintenance
area in order to consult directly with the particular committee during the
development of the transportation plans, programs, and projects;
(ii) send information on time and location,
an agenda, and supporting materials (including preliminary versions of MTPs and
TIPs) for all regularly scheduled meetings on surface transportation or air
quality to each of the contacts specified in paragraph (1)(B) of this
subsection. This information must be provided in accordance with the locally
adopted public participation process as required in 23 CFR Part 450 ;
(iii) after preparation of final draft
versions of MTPs and TIPs, and before adoption and approval by the affected
governing body, ensure that the contacts specified in paragraph (1)(B) of this
subsection receive a copy, and that they are included in the local area's
public participation process as required in 23 CFR Part 450. Upon approval of
MTPs and TIPs, MPOs shall distribute final approved copies of the documents to
the contacts specified in paragraph (1)(B) of this subsection;
(iv) for the purposes of regional emissions
analysis, initiate a consultation process with the affected agencies specified
in paragraph (1)(A) of this subsection during the development stage of new or
revised MTPs and TIPs to determine which transportation projects should be
considered regionally significant and which projects should be considered to
have a significant change in design concept and scope from the effective MTP
and TIP. Regionally significant projects will include, at a minimum, all
facilities classified as principal arterial or higher, or fixed guideway
systems or extensions that offer an alternative to regional highway travel.
Also, these include minor arterials included in the travel demand modeling
process that serve significant interregional and intraregional travel, and
connect rural population centers not already served by a principal arterial, or
connect with intermodal transportation terminals not already served by a
principal arterial. A significant change in design concept and scope is defined
as a revision of a project in the MTP or TIP that would significantly affect
model speeds, vehicle miles traveled, or network connections. In addition to
new facilities, examples include changes in the number of through lanes or
length of project (more than one mile), access control, addition of major
intermodal terminal facilities (such as new international bridges,
park-and-ride lots, and transfer terminals), addition/deletion of interchanges,
or changing between free and toll facilities. When a significant change in the
design and scope of a project is proposed, the MPO shall document the rationale
for the change and give the affected agencies specified in paragraph (1)(A) of
this subsection a 30-day opportunity to comment on the rationale. The MPO shall
consider the views of each agency that comments, and respond in writing before
any final action on these issues. If the MPO receives no comments within 30
days, the MPO may assume concurrence by the agencies specified in paragraph
(1)(A) of this subsection;
(v)
include in the TIP a list of projects exempted from the requirements of a
conformity determination under
40 CFR
§93.126 and §
93.127.
The MPO shall consult with the affected agencies specified in paragraph (1)(A)
of this subsection in determining if a project on the list has potentially
adverse emissions for any reason, including whether or not the exempt project
will interfere with implementation of an adopted transportation control measure
(TCM). The MPO shall respond in writing to all comments within 30 days on final
MTP and TIP documents. In addition, if no comments are received as part of the
subsequent public participation process for the TIP, the MPO may proceed with
implementation of the exempt project;
(vi) notify the affected agencies specified
in paragraph (1)(A) of this subsection in writing of any MTP or TIP revisions
or amendments that add or delete the exempt projects identified in
40 CFR
§93.126;
(vii) before adoption of any new or
substantially different methods or assumptions used in the hot spot or regional
emissions analysis, provide an opportunity for the agencies specified in
paragraph (1)(A) of this subsection to review and comment;
(viii) in coordination with TxDOT and the
local transit agencies, disclose all known, regionally significant, non-federal
projects, even if the sponsor has not made a final decision on its
implementation; include all disclosed, or otherwise known, regionally
significant, non-federal projects in the regional emissions analysis for the
nonattainment area; respond in writing to any comments that known plans for a
regionally significant, non-federal project have not been properly reflected in
the regional emissions analysis; and have recipients of federal funds determine
annually that their regionally significant, non-federal projects are included
in a conforming MTP or TIP, or are included in a regional emissions analysis of
the MTP and TIP. The MPO shall consult with project sponsors to determine the
non-federal projects' location and design concept and scope to be used in the
regional emissions analysis, particularly for projects that the sponsor does
not report a single intent because the sponsor's alternatives selection process
is not yet complete. If the MPO assumes a design concept and scope that is
different from the sponsor's ultimate choice, the next regional emissions
analysis for a conformity determination must reflect the most recent
information regarding the project's design concept and scope;
(ix) ensure timely TCM implementation and
report on the implementation and emissions reductions status of adopted TCMs
annually to the commission;
(x)
cooperatively share the responsibility for conducting conformity determinations
on transportation activities that cross the borders of MPOs or nonattainment
and maintenance areas. The affected MPOs will enter into a Memorandum of
Agreement (MOA) that will define the effective boundary and the respective
responsibilities of each MPO for regional emissions analysis. The MPOs will be
responsible within their respective metropolitan area boundaries and, at their
option, beyond to the boundaries of the nonattainment/maintenance areas, for
regional emissions analysis. Adjacent MPOs or nonattainment/maintenance areas
or basins will share information concerning air quality modeling assumptions
and emission rates that affect both areas; and
(xi) for the purpose of determining the
conformity of all projects outside the metropolitan planning area, but within
the nonattainment or maintenance area, enter into an MOA involving the MPO and
TxDOT for cooperative planning and analysis of projects.
(B) The commission, as the lead air quality
planning agency, shall work in consultation with the agencies specified in
paragraph (1)(A) of this subsection in developing applicable
transportation-related SIP revisions, air quality modeling, general emissions
analysis, emissions inventory, and all related activities. Specifically, the
commission shall:
(i) set agendas and
schedule meetings to seek advice and comments from all agencies specified in
paragraph (1)(A) of this subsection during preparation of applicable
transportation-related SIP revisions;
(ii) schedule public hearings in order to
gather public input on the applicable transportation-related SIP revisions in
accordance with
40 CFR
§51.102 and notify the agencies
specified in paragraph (1)(B) of this subsection of the hearings;
(iii) provide copies of final documents,
including applicable adopted or approved transportation-related SIP revisions
and supporting information, to all agencies specified in paragraph (1)(B) of
this subsection;
(iv) after
consultation with the MPO regarding TCMs, distribute to all agencies specified
in paragraph (1)(B) of this subsection and other interested persons the list of
TCMs proposed for inclusion in the SIP. In consultation with the agencies
specified in paragraph (1)(A) of this subsection, the commission shall
determine whether past obstacles to implementation of TCMs have been identified
and are being overcome, and determine whether the MPOs and the implementing
agencies are giving maximum priority to approval or funding for TCMs. Also, the
commission shall consider, in consultation with the affected agencies, whether
delays in TCM implementation necessitate a SIP revision to remove TCMs or to
substitute TCMs or other emission reduction measures; and
(v) consult with the applicable agencies
specified in paragraph (1)(A) of this subsection, in order to cooperatively
choose conformity tests and methodologies for isolated rural nonattainment and
maintenance areas, as required by
40
CFR
§93.109(l)(2)(iii).
(C) Any group, entity, or
individual planning to construct a regionally significant transportation
project that is not an FHWA-FTA project (including projects for which
alternative locations, design concept and scope, or the no-build option are
still being considered) shall disclose project plans to the MPO on a regular
basis and disclose any changes to those plans immediately. This requirement
also applies to recipients of funds designated under 23 USC or the federal
transit laws.
(3)
General procedures.
(A) The MPO, TxDOT, or the
commission, as applicable, shall respond to comments of affected agencies on
MTPs, TIPs, projects, or SIP revisions in accordance with the public
participation procedures that govern the involved action. The MPO, TxDOT, or
the commission, as applicable, shall include all comments and the replies to
those comments with final documents when they are submitted for adoption by the
agency's governing board. In the event that comments are not adequately
resolved, the procedures outlined in paragraph (4) of this subsection regarding
conflict resolution apply.
(B)
Because the validity of the regional emissions analysis depends on
transportation modeling assumptions that need periodic updates, the MPO, with
the assistance of TxDOT and local publicly owned transit agencies, will conduct
meetings with the agencies specified in paragraph (1)(A) of this subsection to
cooperatively establish research and data collection efforts and regional model
development (e.g., household/transportation surveys).
(C) For the purposes of evaluating and
choosing a model (or models) and associated methods and assumptions to be used
in hot spot and regional emissions analyses, agencies specified in paragraph
(1)(A) of this subsection shall participate in a working group. The frequency
of meetings and agendas for them will be cooperatively determined by the
agencies specified in paragraph (1)(A) of this subsection.
(D) The commission, affected MPOs, affected
local air quality agencies, and TxDOT shall cooperatively evaluate events that
will trigger the need for new conformity determinations. New conformity
determinations may be triggered by events established in
40 CFR
§93.104 as well as other events,
including emergency relief projects that require substantial functional,
locational, and capacity changes, or in the event of any other unforeseeable
circumstances.
(E) The MPO and its
governing body, or TxDOT if applicable, shall make conformity determinations
for all MTPs, TIPs, regionally significant projects, and all other events as
required by 40 CFR Part 93, Subpart A and this section. Upon completion of the
transportation conformity determination review process (including consultation,
public participation, and all other requirements of this section), FHWA and FTA
will issue a joint conformity finding, indicating the transportation conformity
status of the document(s) under review. The effective date of the conformity
determination for an area is the date of the joint conformity finding made by
FHWA-FTA.
(4) Conflict
resolution.
(A) The commission and the MPO
(or TxDOT where appropriate) shall make a good-faith effort to address the
major concerns of the other party in the event they are unable to reach
agreement on the conformity determination of a proposed MTP or TIP. The efforts
must include meetings of the agency executive directors, if
necessary.
(B) In the event that
the MPO or TxDOT determines that every effort has been made to address the
commission's concerns, and that no further progress is possible, the MPO or
TxDOT shall notify the commission's executive director in writing to this
effect. This subparagraph must be cited by the MPO or TxDOT in any notification
of a conflict that may require action by the governor, or his or her delegate
under subparagraph (C) of this paragraph.
(C) The commission has 14 calendar days from
date of receipt of notification, as required in subparagraph (B) of this
paragraph, to appeal to the governor. If the commission appeals to the
governor, the final conformity determination must then have the concurrence of
the governor. The governor may delegate his or her role in this process, but
not to the commission or commission staff, a local air quality agency, the
Texas Transportation Commission or TxDOT staff, or an MPO. This subparagraph
must be cited by the commission in any notification of a conflict that may
require action by the governor or his or her delegate. If the commission does
not appeal to the governor within 14 calendar days from receipt of written
notification, the MPO or TxDOT may proceed with the final conformity
determination.
(5)
Public comment on conformity determinations. Consistent with the requirements
of 23 CFR Part 450, concerning public participation, the agencies making
conformity determinations on transportation plans, programs, and projects must
establish a proactive public participation process that provides opportunity
for public review and comment. Any charges imposed for public inspection and
copying should be consistent with the fee schedule contained in
49
CFR §7.43. In addition, these agencies
shall address in writing any public comment claiming that a non-FHWA/FTA
funded, regionally significant project has not been properly represented in the
conformity determination for an MTP or TIP. Finally, these agencies shall
provide opportunity for public involvement in conformity determinations for
projects where otherwise required by law.
(6) Good-faith effort made by the consulting
agencies. In formulating an enforcement policy regarding a violation of this
subsection (relating to the consultation process) the commission may consider
any good-faith effort made by the consulting agencies to comply.
(e) Regionally significant,
non-federal projects. For the purposes of
40
CFR §93.121, adoption or approval of a
regionally significant, non-federal project (a regionally significant project
that does not require FHWA or FTA approval or funding) occurs when affected
agencies that are recipients of federal funds designated under 23 USC or the
federal transit laws take one of the following actions:
(1) board approval, action, or resolution
(such approval, action, or resolution does not include MPO approval for the
purposes of approving a project in a currently conforming MTP or
TIP);
(2) issuance of
administrative permits for the regionally significant project;
(3) action of official authorizing the
regionally significant project to proceed;
(4) providing grants or loans for the
construction of a regionally significant project; or
(5) contract execution for the regionally
significant project.
(f)
Compliance date. Compliance with this section is required for transportation
conformity determinations that begin the interagency consultation process after
the date of EPA approval of the transportation conformity SIP associated with
this rule.
Notes
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