Air Pollution Control Regulation No. 49, "Transportation Conformity"


250-RICR-120-05-49 ACTIVE RULE

49.1 Purpose and Authority

49.1.1 Purpose

A. The purpose of this regulation is to fulfill the requirement in 40 C.F.R. § 51.390(b) to establish a SIP revision that includes the following three sections of the federal transportation conformity rule:

1. 40 C.F.R. § 93.105, which addresses consultation procedures;

2. 40 C.F.R. § 93.122(a)(4)(ii), which states that applicable implementation plans for conformity must require that written commitments to control measures be obtained prior to a conformity determination if the control measures are not included in a metropolitan planning organization’s (MPO’s) transportation plan and transportation improvement program (TIP); and that such a commitment be fulfilled; and

3. 40 C.F.R. § 93.125(c), which states that applicable implementation plans for conformity must require that written commitments to mitigation measures be obtained prior to a project-level conformity determination, and that project sponsors comply with such commitments.

B. Once this state regulation is approved by EPA into the Rhode Island implementation plan, it has full legal effect. Conformity determinations will be governed by these criteria and procedures as well as any applicable portions of the federal conformity rules that are not addressed by the state rule.

49.1.2 Authority

These regulations are authorized pursuant to R.I. Gen. Laws § 42-17.1-2(19) and R.I. Gen. Laws Chapter 23-23, and have been promulgated pursuant to the procedures set forth in the Rhode Island Administrative Procedures Act, R.I. Gen. Laws Chapter 42-35.

49.2 Application

The terms and provisions of this regulation shall be liberally construed to permit the Department to effectuate the purposes of state laws, goals and policies.

49.3 Severability

If any provision of this regulation or the application thereof to any person or circumstance, is held invalid by a court of competent jurisdiction, the validity of the remainder of the regulation shall not be affected thereby.

49.4 Incorporated Materials

These regulations hereby adopt and incorporate 40 C.F.R. §§ 93.101, 93.104, 93.105, 93.109(n)(2)(ii), 93.113(c)(1), 93.114, 93.121, 93.122(a)(4)(ii), 93.125(c), 93.126, and 93.127 (2018) by reference, not including any further editions or amendments thereof and only to the extent that the provisions therein are not inconsistent with these regulations.

49.5 Definitions

A. Unless otherwise expressly defined in this section, the terms used in this regulation shall be defined by reference to Part 0 of this Subchapter (General Definitions). Terms used but not defined in this regulation or Part 0 of this Subchapter (General Definitions) shall have the meaning given them by the CAA, 49 U.S.C. § 7401 et seq., R.I. Gen. Laws Chapter 23-23, other Environmental Protection Agency (EPA) regulations, or other DOT regulations, in that order of priority.

B. As used in this regulation, the following terms shall, where the context permits, be construed as follows:

1. “Applicable implementation plan” is defined in 42 U.S.C. § 7602(q) (section 302(q) of the CAA) and means the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under section 110, or promulgated under 42 U.S.C. § 7410(c) (section 110(c) of the CAA), or promulgated or approved pursuant to regulations promulgated under 42 U.S.C. § 7601(d) (section 301(d) of the CAA) and which implements the relevant requirements of the CAA.

2. “CAA” means the Clean Air Act, 42 U.S.C. § 7401 et seq.

3. “Control strategy implementation plan revision” means the implementation plan which contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy CAA requirements for demonstrations of reasonable further progress and attainment (including implementation plan revisions submitted to satisfy 42 U.S.C. §§ 7502(c), 7511a(b)(1), 7511a(c)(2)(A), 7511a(c)(2)(b), 7512a(a)(7), 7512a(g), 7513a(a)(1)(B), 7513a(b)(1)(A), 7513a(d), 7514a(a), 7514a(b) (sections 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d); §§ 192(a) and 192(b) of the CAA), for nitrogen dioxide; and any other applicable CAA provision requiring a demonstration of reasonable further progress or attainment).

4. “Design concept” means the type of facility identified by the project, e.g., freeway, expressway, arterial highway, grade-separated highway, reserved right-of-way rail transit, mixed-traffic rail transit, exclusive busway, etc.

5. “Design scope” means the design aspects which will affect the proposed facility's impact on regional emissions, usually as they relate to vehicle or person carrying capacity and control, e.g., number of lanes or tracks to be constructed or added, length of project, signalization, access control including approximate number and location of interchanges, preferential treatment for high-occupancy vehicles, etc.

6. “DOT” means the United States Department of Transportation.

7. “Donut areas” mean geographic areas outside a metropolitan planning area boundary, but inside the boundary of a nonattainment or maintenance area that contains any part of a metropolitan area(s). These areas are not isolated rural nonattainment and maintenance areas.

8. “Exempt projects” means projects of the type listed in 40 C.F.R. § 93.126, Table 2, “Exempt Projects" or 40 C.F.R. § 93.127 Table 3, “Projects Exempt from Regional Emissions Analyses," incorporated in § 49.4 of this Part.

9. “FHWA” means the Federal Highway Administration of DOT.

10. “FHWA/FTA project” means any highway or transit project which is proposed to receive funding assistance and approval through the Federal-Aid Highway program or the Federal mass transit program, or requires Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) approval for some aspect of the project, such as connection to an interstate highway or deviation from applicable design standards on the interstate system.

11. “FTA” means the Federal Transit Administration of DOT.

12. “Final document or decision” means the document or decision prepared after consideration of and responding to comments received, if any, during the interagency consultation process and, if applicable, the public comment process.

13. “Highway project” means an undertaking to implement or modify a highway facility or highway-related program. Such an undertaking consists of all required phases necessary for implementation. For analytical purposes, it must be defined sufficiently to:

a. Connect logical termini and be of sufficient length to address environmental matters on a broad scope;

b. Have independent utility or significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and

c. Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

14. “Hot-spot analysis” means an estimation of likely future localized CO, PM10, and/or PM2.5 pollutant concentrations and a comparison of those concentrations to the national ambient air quality standards. Hot-spot analysis assesses impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadway intersections and highways or transit terminals, and uses an air quality dispersion model to determine the effects of emissions on air quality.

15. “Isolated rural nonattainment and maintenance areas” means areas that do not contain or are not part of any metropolitan planning area as designated under the transportation planning regulations. Isolated rural areas do not have federally required metropolitan transportation plans or TIPs and do not have projects that are part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. Projects in such areas are instead included in statewide transportation improvement programs. These areas are not donut areas.

16. “Maintenance area” means any geographic region of the United States previously designated nonattainment pursuant to the CAA Amendments of 1990 and subsequently re-designated to attainment subject to the requirement to develop a maintenance plan under 42 U.S.C. § 7505a (section 175A of the CAA).

17. “Maintenance plan” means an implementation plan under 42 U.S.C. § 7505a (section 175A of the CAA).

18. “Metropolitan planning organization” or "MPO” means the State Planning Council and its staff in the Department of Administration, Division of Planning.

19. “Milestone” means the meaning given in 42 U.S.C. §§ 7511a(g)(1) and 42 U.S.C. § 7513a(c)(sections 182(g)(1) and 189(c) of the CAA) for serious and above ozone nonattainment areas and PM10 nonattainment areas, respectively. For all other nonattainment areas, a milestone consists of an emissions level and the date on which that level is to be achieved as required by the applicable CAA provision for reasonable further progress towards attainment.

20. "Motor vehicle emissions budget” means that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions.

21. “National ambient air quality standards” or “NAAQS” means those standards established pursuant to 42 U.S.C. § 7409 (section 109 of the CAA).

22. “NEPA” means the National Environmental Policy Act of 1969, as amended, 42 U.S.C. § 4321 et seq.

23. “NEPA process completion” means the point at which there is a specific action to make a determination that a project is categorically excluded, to make a Finding of No Significant Impact, or to issue a record of decision on a Final Environmental Impact Statement under NEPA.

24. “Nonattainment area” means any geographic region of the United States which has been designated as nonattainment under 42 U.S.C. § 7407 (section 107 of the CAA) for any pollutant for which a national ambient air quality standard exists.

25. “Project” means a highway project or transit project.

26. “Regionally significant project” means a transportation project (other than an exempt project) that is on a facility which serves regional transportation needs (such as access to and from the area outside of the region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, etc., or transportation terminals as well as most terminals themselves) and would normally be included in the modeling of a metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional highway travel.

27. “RIDOT” means the Rhode Island Department of Transportation.

28. “RIPTA” means the Rhode Island Public Transit Authority.

29. “Transit” means mass transportation by bus, rail, or other conveyance which provides general or special service to the public on a regular and continuing basis. It does not include school buses or charter or sightseeing services.

30. “Transit project” means an undertaking to implement or modify a transit facility or transit-related program; purchase transit vehicles or equipment; or provide financial assistance for transit operations. It does not include actions that are solely within the jurisdiction of RIPTA, such as changes in routes, schedules, or fares. It may consist of several phases. For analytical purposes, it must be defined inclusively enough to:

a. Connect logical termini and be of sufficient length to address environmental matters on a regional scope;

b. Have independent utility or independent significance, i.e., be a reasonable expenditure even if no additional transportation improvements in the area are made; and

c. Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

31. “Transportation control measure" or "TCM” means any measure that is specifically identified and committed to in the applicable implementation plan, including a substitute or additional TCM that is incorporated into the applicable implementation plan through the process established in 42 U.S.C. § 7506(c)(8) (section 176(c)(8) of the CAA), that is either one of the types listed in 42 U.S.C. § 7408(section 108 of the CAA), or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the first sentence of this definition, vehicle technology-based, fuel-based, and maintenance-based measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of this subpart.

32. “Transportation improvement program" or "TIP” means a transportation improvement program developed by a metropolitan planning organization under 23 U.S.C. § 134(j).

33. “Transportation plan” means the official intermodal metropolitan transportation plan that is developed through the metropolitan planning process for the metropolitan planning area, developed pursuant to 23 C.F.R. § 450.

34. "Transportation project” means a highway project or a transit project.

35. “Written commitment” means a written commitment that includes a description of the action to be taken; a schedule for the completion of the action; a demonstration that funding necessary to implement the action has been authorized by the appropriating or authorizing body; and an acknowledgment that the commitment is an enforceable obligation under the applicable implementation plan.

49.6 Applicability

A. Action Applicability

1. Except as provided for in § 49.6(C) of this Part or 40 C.F.R. § 93.126, incorporated in § 49.4 of this Part, conformity determinations are required for:

a. The adoption, acceptance, approval or support of transportation plans and transportation plan amendments developed pursuant to 23 C.F.R. § 450 or 49 C.F.R. § 613 by the MPO or RIDOT;

b. The adoption, acceptance, approval or support of TIPs and TIP amendments developed pursuant to 23 C.F.R. § 450 or 49 C.F.R. § 613 by the MPO or RIDOT; and

c. The approval, funding, or implementation of FHWA/FTA projects.

2. Conformity determinations are not required under this subpart for individual projects which are not FHWA/FTA projects. However, 40 C.F.R. § 93.121, incorporated in § 49.4 of this Part, applies to such projects if they are regionally significant.

B. Geographic Applicability

1. The provisions of this regulation shall apply in all nonattainment and maintenance areas for transportation-related criteria pollutants for which the area is designated nonattainment or has a maintenance plan.

2. The provisions of this regulation apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide (CO), nitrogen dioxide (NO2), particles with an aerodynamic diameter less than or equal to a nominal ten (10) micrometers (PM10); and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM2.5).

3. The provisions of this regulation also apply with respect to emissions of the following precursor pollutants:

a. Volatile organic compounds (VOC) and nitrogen oxides (NOx) in ozone areas;

b. NOx in NO2 areas;

c. VOC and/or NOx in PM10 areas if the EPA Regional Administrator or the Chief of the Office of Air Resources has made a finding that transportation-related emissions of one or both of these precursors within the nonattainment area are a significant contributor to the PM10 nonattainment problem and has so notified the MPO, RIDOT, RIPTA, and DOT, or if the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy;

d. NOx in PM2.5 areas, unless both the EPA Regional Administrator and the Chief of the Office of Air Resources have made a finding that transportation-related emissions of NOx within the nonattainment area are not a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO, RIDOT, RIPTA, and DOT, or the applicable implementation plan (or implementation plan submission) does not establish an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy; and

e. VOC, sulfur dioxide (SO2) and/or ammonia (NH3) in PM2.5 areas either if the EPA Regional Administrator or the Chief of the Office of Air Resources has made a finding that transportation-related emissions of any of these precursors within the nonattainment area are a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO, RIDOT, RIPTA, and DOT, or if the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy.

4. The provisions of this subpart apply to PM2.5 nonattainment and maintenance areas with respect to PM2.5 from re-entrained road dust if the EPA Regional Administrator or the Chief of the Office of Air Resources has made a finding that re-entrained road dust emissions within the area are a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO, RIDOT, RIPTA, and DOT, or if the applicable implementation plan (or implementation plan submission) includes re-entrained road dust in the approved (or adequate) budget as part of the reasonable further progress, attainment or maintenance strategy. Re-entrained road dust emissions are produced by travel on paved and unpaved roads (including emissions from anti-skid and deicing materials).

5. The provisions of this regulation apply to maintenance areas through the last year of a maintenance area's approved 42 U.S.C. § 7505a(b) (section 175A(b) of the CAA) maintenance plan, unless the applicable implementation plan specifies that the provisions of this subpart shall apply for more than twenty (20) years.

C. Limitations. In order to receive any FHWA/FTA approval or funding actions, including NEPA approvals, for a project phase subject to this subpart, a currently conforming transportation plan and TIP must be in place at the time of project approval as described in 40 C.F.R. § 93.114, incorporated in § 49.4 of this Part, except as provided by 40 C.F.R. § 93.114(b).

D. Grace period for new nonattainment areas. For areas or portions of areas which have been continuously designated attainment or not designated for any NAAQS for ozone, CO, PM10, PM2.5 or NO2 since 1990 and are subsequently re-designated to nonattainment or designated nonattainment for any NAAQS for any of these pollutants, the provisions of this subpart shall not apply with respect to that NAAQS for twelve (12) months following the effective date of final designation to nonattainment for each NAAQS for such pollutant.

49.7 Consultation

A. This rule provides procedures for federal, state, and local interagency consultation, public consultation and resolution of conflicts. Such consultation procedures shall be undertaken by the MPO, RIDOT, RIPTA, and DOT with the Department and EPA before making conformity determinations and by the Department and EPA with the MPO, RIDOT, RIPTA, and DOT in developing applicable implementation plans.

B. Interagency consultation procedures: General factors

1. The MPO, the Department and RIDOT shall undertake an interagency consultation process in accordance with this section with each other and with local or regional offices of EPA, FHWA, and FTA on the development of the applicable implementation plan, the transportation plan, the TIP, and associated conformity determinations. RIPTA shall be provided the opportunity to participate and may participate if they choose.

2. The Department shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the applicable implementation plan and the list of TCMs in the approved applicable implementation plan. The MPO shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the transportation plan, the TIP, any amendments or revisions thereto, and any conformity determinations.

3. In addition to the lead agencies identified in § 49.7(B)(2) of this Part, other agencies entitled to participate in any interagency consultation process under this rule include the RIDOT, RIPTA, FHWA, FTA, and EPA.

4. It shall be the role and responsibility of each lead agency in an interagency consultation process, as specified in § 49.7(B)(2) of this Part, to confer with all other agencies identified under § 49.7(B)(3) of this Part, with an interest in the document to be developed, provide all appropriate information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, conduct the consultation process described in the applicable paragraphs of 40 C.F.R. § 93.105, incorporated in § 49.4 of this Part, where required, assure policy-level contact with those agencies and prior to taking any action, consider the views of each such agency and respond to those views in a timely, substantive written manner prior to any final decision on such document, and assure that such views and written response are made part of the record of any decision or action. It shall be the role and responsibility of each agency specified in § 49.7(B)(3) of this Part, when not fulfilling the role and responsibilities of a lead agency, to confer with the lead agency and other participants in the consultation process, review and comment as appropriate (including comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, assure policy-level contact with other participants, provide input on any area of substantive expertise or responsibility (including planning assumptions, modeling, information on status of TCM implementation, and interpretation of regulatory or other requirements), and provide technical assistance to the lead agency or consultation process in accordance with this paragraph when requested.

C. Specific roles, responsibilities, and organizational level of various participants in the interagency consultation process shall be as follows

1. The Department shall be responsible for developing emissions inventories, emissions budgets, air quality modeling, coordinating with the MPO for traffic related modeling, applicable implementation plan demonstrations, including emissions budgets as necessary and any applicable implementation plan TCMs.

2. The MPO shall be responsible for developing transportation plans and TIPs; evaluating TCM transportation impacts; developing transportation and socioeconomic data and planning assumptions for use in emissions analysis to determine conformity of transportation plans, TIPs, and projects; determining regionally significant projects, convening air quality technical review meetings on specific projects when requested by other agencies or as needed, identifying system- or facility-based or other programmatic TCMs; providing technical and policy input on emissions budgets; performing transportation modeling and regional emissions analyses and documenting timely implementation of TCMs needed for conformity assessments.

3. RIDOT shall be responsible for providing technical input on proposed revisions to motor vehicle emissions factors, distributing draft and final project environmental documents to other agencies, and identifying regionally significant highway and rail projects and project changes in the TIP and Long Range Transportation Plan.

4. RIPTA shall be responsible for identifying regionally significant bus transit projects and project changes in the TIP and Long Range Transportation Plan.

5. FHWA and FTA shall be responsible for assuring timely action on final findings of conformity, after consultation with other agencies as provided in this section, providing guidance on the transportation planning process to agencies in interagency consultation.

6. EPA shall be responsible for reviewing, finding adequate, and approving updated motor vehicle emissions budgets and providing guidance on conformity criteria and procedures to agencies in interagency consultation.

D. It shall be the affirmative responsibility of the agency with the responsibility for preparing the final document or decision subject to the interagency consultation process to initiate the process by notifying other participants, convene consultation meetings early in the process of decision on the final document, appoint the conveners of technical meetings, and assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner.

E. Regular consultation on major activities such as the development of an applicable implementation plan, the development of a transportation plan, the development of a TIP, or any determination of air quality conformity on transportation plans or TIPs, shall include meetings at regular, scheduled intervals no less frequently than semiannually, unless the consensus of the group determines that a meeting is not warranted and shall be attended by representatives of each agency. In addition, technical meetings shall be convened as necessary.

F. Each lead agency in the consultation process required under this section (that is, the agency with the responsibility for preparing the final document subject to the interagency consultation process) shall confer with all other agencies identified under § 49.7(B)(3) of this Part, with an interest in the document to be developed, provide all appropriate information to those agencies needed for meaningful input, and, prior to taking any action, consider the views of each such agency and respond to those views in a timely, substantive written manner prior to any final decision on such document. Such views and written response shall be made part of the record of any decision or action.

G. The Department will prepare a list of any TCMs in the approved applicable implementation plan and provide this list to the interagency consultation process in accordance with § 49.7(B) of this Part.

H. Interagency consultation procedures: Specific processes.

1. An interagency consultation process in accordance with § 49.7(B) of this Part, involving the Air Quality Working Group, comprised of the MPO, the Department, RIDOT, RIPTA, EPA, FHWA, and FTA shall be undertaken for the following:

a. Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses to be conducted in accordance with § 49.7(B) of this Part.

b. Determining which transportation projects should be considered "regionally significant" for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP, to be conducted in accordance with § 49.7(B) of this Part;

c. Evaluating whether projects otherwise exempted from meeting the requirements of 40 C.F.R. § 93 (i.e. projects described in 40 C.F.R. §§ 93.126 and 93.127, incorporated in § 49.4 of this Part) should be treated as non-exempt in cases where potential adverse emissions impacts may exist for any reason, to be conducted in accordance with § 49.7(B) of this Part;

d. Making a determination, as required by 40 C.F.R. § 93.113(c)(1), incorporated in § 49.4 of this Part, whether past obstacles to implementation of TCMs which are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs, to be conducted in accordance with § 49.7(B) of this Part. This consultation process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs or substitute TCMs or other emission reduction measures;

e. Notification of transportation plan or TIP revisions or amendments which merely add or delete exempt projects listed in 40 C.F.R. § 93.126 or 40 C.F.R. § 93.127, to be conducted in accordance with § 49.7(B) of this Part;

f. Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 C.F.R. § 93.109(n)(2)(iii), incorporated in § 49.4 of this Part, to be conducted in accordance with § 49.7(B) of this Part.

g. During preparation of the transportation plan and TIP, the MPO will request that participants of the interagency consultation process identify all non-FHWA/FTA transportation projects and their design concept and scope, including those where detailed design features have not yet been decided, and determine which ones meet the definition of regionally significant for regional emissions modeling. Any recipient of federal funding, as defined in 40 C.F.R. § 93.101, incorporated in § 49.4 of this Part, is required to disclose to the MPO information regarding all non-FHWA/FTA regionally significant projects and any changes to these plans shall be immediately disclosed.

2. An interagency consultation process in accordance with § 49.7(B) of this Part, involving the MPO, the Department, RIDOT, and RIPTA shall be undertaken for the following:

a. Evaluating events which will trigger new conformity determinations in addition to those triggering events established in 40 C.F.R. § 93.104, incorporated in § 49.4 of this Part, to be conducted in accordance with § 49.7(B) of this Part; and

b. Consulting on emissions analysis for transportation activities which cross the borders of MPOs or nonattainment areas or air basins, to be conducted in accordance with § 49.7(B) of this Part.

c. Cooperative planning and analysis for purposes of determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenance area, to be conducted in accordance with § 49.7(B) of this Part.

d. Assurance that plans for construction of regionally significant projects which are not FHWA/FTA projects (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered), including all those by recipients of funds designated under title 23 U.S.C. or the Federal Transit Act are disclosed to the MPO on a regular basis, and to assure that any changes to those plans are immediately disclosed.

e. A process in accordance with § 49.7(B) of this Part, involving the MPO and other recipients of funds designated under title 23 U.S.C. or the Federal Transit Act shall be undertaken for assuming the location and design concept and scope of projects that are disclosed to the MPO as required by § 49.7(H)(4) of this Part but whose sponsors have not yet decided these features, in sufficient detail to perform the regional emissions analysis according to the requirements of 40 C.F.R. § 93.122, incorporated in § 49.4 of this Part, to be conducted in accordance with § 49.7(B) of this Part.

f. Designing, scheduling, and funding of research and data collection efforts and regional transportation model development by the MPO (e.g., household/ travel transportation surveys), to be conducted in accordance with § 49.7(B) of this Part.

g. Transportation Plan or TIP revisions or amendments that add or delete exempt projects as listed in 40 C.F.R. § 93.126, Table 2, or 40 C.F.R. § 93.127, Table 3.

3. If a Plan or TIP amendment project or action is deemed exempt under the EPA Air Quality Conformity Rule (40 C.F.R. §§ 51 and 93), the MPO will issue a letter to the Department stating such, and ask the department for their concurrence.

4. The MPO will provide final documents (including the applicable implementation plan, transportation plans, TIPs, plan/TIP amendments and conformity determinations) and supporting information to each agency after approval or adoption. This process is applicable to all agencies including the MPO, RIDOT, RIPTA, the Department, FHWA, FTA and EPA.

I. Resolving conflicts

1. The Department shall refer any conflict between the Department and the MPO concerning a proposed determination of conformity (or other policy decision under this rule) to the Governor if the conflict cannot be resolved by the heads of the involved agencies. The agencies shall make every effort to resolve any differences, including personal meetings between the heads of such agencies or their policy-level representatives, to the extent possible.

2. The Department has fourteen (14) calendar days to appeal a proposed determination of conformity (or other policy decision under this rule) to the Governor after the MPO has notified the Department of the resolution of all comments on such proposed determination of conformity or policy decision. Such 14-day period shall commence when the MPO has confirmed receipt by the director of the Department of the resolution of the comments of the Department. If the Department appeals to the Governor, the final conformity determination must have the concurrence of the Governor. The Department must provide notice of any appeal under this subsection to the MPO. If the Department does not appeal to the Governor within fourteen (14) days, the MPO may proceed with the final conformity determination.

3. The Governor may delegate the role of hearing any such appeal under this subsection and of deciding whether to concur in the conformity determination to another official or agency within the State, but not to the head or staff of the Department, RIDOT, any agency that has responsibility for only one of these functions, or the MPO.

J. Public consultation procedures

1. The MPO will follow its adopted public involvement procedures, which were developed in accordance with the requirements for public involvement in 23 C.F.R. § 450, when making conformity determinations on transportation plans, programs, and projects.

2. These procedures establish a proactive public involvement process which provides opportunity for public review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the MPO at the beginning of the public comment period and prior to taking formal action on a conformity determination for the Long Range Transportation Plan and TIP, consistent with these requirements and those of 23 C.F.R. § 450.

3. Meetings of the Air Quality Working Group are open to the public. Any charges imposed for public inspection and copying are consistent with the fee schedule contained in 49 C.F.R. § 7.43. The Air Quality Working Group shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.

4. Additionally, the MPO will address in writing all public comments that plans for regionally significant non-FHWA/FTA projects are not properly reflected in the emissions analysis.

49.8 Commitments for Regional Emissions Analysis

In accordance with 40 C.F.R. § 93.122(a)(4)(ii), incorporated in § 49.4 of this Part, the MPO will not include emissions reduction credits from control measures that are not included in the transportation plan or transportation improvement program and that do not require a regulatory action in the regional emissions analysis used in the conformity determination unless the MPO or FHWA/FTA obtains written commitments, as defined in 40 C.F.R. § 93.101, incorporated in § 49.4 of this Part, from the appropriate entities to implement those control measures. The written commitments to implement those control measures must be fulfilled by the appropriate entities.

49.9 Commitments for Project-Level Mitigation and Control Measures

In accordance with 40 C.F.R. § 93.125(c), incorporated in § 49.4 of this Part, prior to making a project-level conformity determination for a transportation project, FHWA/FTA must obtain from the project sponsor and/or operator a written commitment, as defined in 40 C.F.R. § 93.101, to implement any project-level mitigation or control measure in the construction or operation of the project identified as a condition for NEPA process completion. The written commitment to implement such a project-level mitigation or control measure must be fulfilled by the appropriate entity. Prior to making a conformity determination for the transportation plan or TIP, the project sponsor will ensure any project level mitigation or control measures for which a written commitment has been made are included in the project design concept and scope and are appropriately identified in the regional emissions analysis used in the conformity analysis. Written commitments must be obtained before such mitigation or control measures are used in a project-level hot-spot conformity analysis for a project-level determination and project sponsors must comply with such commitments.

Title 250 Department of Environmental Management
Chapter 120 Air Resources
Subchapter 05 Air Pollution Control
Part 49 Air Pollution Control Regulation No. 49, "Transportation Conformity"
Type of Filing Amendment
Regulation Status Active
Effective 12/26/2018

Regulation Authority :

R.I. Gen. Laws § 42-17.1-2(19)
R.I. Gen. Laws Chapter 23-23
R.I. Gen. Laws Chapter 42-35

Purpose and Reason :

The federal transportation conformity rule sets forth policy, criteria and procedures for demonstrating and assuring conformity of transportation activities.  Part 49 formally incorporates procedures to be followed in RI to complete this process.  The Department of Environmental Management (DEM), Office of Air Resources, is proposing to amend air pollution control regulation, 250-RICR-120-05-49 “Transportation Conformity” (Part 49).   The regulation has been updated to current RI Code of Regulations (RICR) format which required the addition of an incorporated materials section.

Although R.I. Gen. Laws § 42-35-2.8, require that an oral hearing be granted if requested by twenty-five (25) persons, by an agency or by an association having at least twenty-five (25) members, an oral hearing will be granted if requested by one (1) or more persons during the public comment period.