Streamline the rule and conform to Federal requirements.
Public hearing(s) will be held at:
2:00 p.m., June 4, 2013 at Department of Environmental Conservation, 625 Broadway, Public Assembly Rm. 129A, Albany, NY; 2:00 p.m., June 5, 2013 at Department of Environmental Conservation, Region 2 Office, One Hunters Point Plaza, 47-40 21st St., Rm. 834, Long Island City, NY; and 2:00 p.m., June 6, 2013 at Department of Environmental Conservation, Region 8 Office Conference Rm., 6274 E. Avon-Lima Rd. (Rtes. 5 and 20), Avon, NY.
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):
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 PM and/or PM nonattainment areas require a quantitative PM and/or PM 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, PM, and PM violations (hot-spots) applies at all times. The FHWA/FTA or regionally significant project must not cause or contribute to any new localized CO, PM, and/or PM violations, increase the frequency or severity of any existing CO, PM, and/or PM violations, or delay timely attainment of any NAAQS or any required interim emission reductions or other milestones in CO, PM, and PM nonattainment and maintenance areas. This criterion is satisfied without a hot-spot analysis in PM, and PM 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, PM, and PM 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 PM and PM control measures in Part 240, the regionally significant project must comply with any PM and PM 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.
Text of proposed rule and any required statements and analyses may be obtained from:
Michael Sheehan, P.E., NYSDEC, Division of Air Resources, 625 Broadway, Albany, NY 12233-3251, (518) 402-8396, email: 240conform@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
June 13, 2013.
Additional matter required by statute:
Pursuant to Article 8 of the State Environmental Quality Review Act, a Short Environmental Assessment Form, a Negative Declaration and a Coastal Assessment Form have been prepared and are on file.
Regulatory Impact Statement
STATUTORY AUTHORITY
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.
LEGISLATIVE OBJECTIVES
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 …”. 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 (PM) and less than 2.5 microns(PM); 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 PM 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.
Classifications and Attainment Dates 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).
COSTS
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.
PAPERWORK
No additional recordkeeping, reporting, or other requirements will be imposed under this rulemaking.
DUPLICATION
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.
ALTERNATIVES
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.
FEDERAL STANDARDS
There are no minimum federal standards exceeded by the revisions to Parts 200 and 240.
COMPLIANCE SCHEDULE
There is no compliance schedule required by the implementation of Part 240.
Regulatory Flexibility Analysis
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 must update its regulations to comport with the federal regulation. In order to carry out this commitment, the NYS Department of Environmental Conservation (Department) is proposing to repeal existing Part 240 and establish new transportation conformity regulations by promulgating 6 NYCRR Part 240, Transportation Conformity, and revising 6 NYCRR Part 200, General Provisions.
1. Effects on Small Businesses and Local Governments. No small businesses will be directly affected by the adoption of Part 240 and the amendments to Part 200.
2. Compliance Requirements. There are no compliance requirements for the implementation of Part 240 for small business or local governments.
3. Professional Services. There are no professional services requirements that will be imposed under this rulemaking.
4. Compliance Costs. There are no compliance costs as a result of this rulemaking. The only costs associated will be those associated with the rulemaking process including newspaper publication and the preparation of transcripts.
5. Minimizing Adverse Impact. The promulgation of the Program and the amendments to Part 200 do not directly affect small businesses.
6. Small Business and Local Government Participation. Small businesses and local government will have the opportunity to participate in the development of Part 240 during the public comment period which will commence when the regulation is formally proposed.
7. Economic and Technological Feasibility. After promulgation of Part 240, economics and technological feasibility will only be a factor if an area is proposing a transportation related project that requires a transportation conformity determination. Each individual project will be reviewed by all affected.
8. Cure Period. Pursuant to NYS State Administrative Procedures Act (SAPA) Section 202-b, this rulemaking does not include a cure period in the express language of the rule because the substantive requirements are federally mandated and compliance with those federal mandates is already required.
Rural Area Flexibility Analysis
New York State and other 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 must update its regulations to comport with the federal regulation. In order to carry out this commitment, the NYS Department of Environmental Conservation (Department) is proposing to repeal existing Part 240 and establish new transportation conformity regulations by promulgating 6 NYCRR Part 240, Transportation Conformity, and revising 6 NYCRR Part 200, General Provisions.
TYPES AND ESTIMATED NUMBER OF RURAL AREAS AFFECTED
The promulgation of the Program and the amendments to Part 200, apply to affected areas statewide including those located in rural areas if such areas are within a nonattainment or maintenance area. All public and private businesses subject to the regulations regardless of location, including those in rural areas, will be affected.
REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS
No additional recordkeeping, reporting, or other requirements will be imposed under this rulemaking.
COSTS
There are no costs to affected parties as a result of this rulemaking. The only costs associated will be those associated with the rulemaking process including newspaper publication and the preparation of transcripts.
MINIMIZING ADVERSE IMPACT
The promulgation of the Program and the amendments to Part 200 apply to affected areas statewide, including those located in rural areas if such areas are within a nonattainment or maintenance area. Since the regulations apply equally to affected areas statewide, rural areas are not impacted differently than other areas in the State. The Department has minimized the adverse economic impacts of the Program statewide.
RURAL AREA PARTICIPATION
All areas of the state including rural areas will have the opportunity to participate in the development of Part 240 during the public comment period which will commence when the regulation is formally proposed.
Job Impact Statement
1. Nature of Impact: 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 must update its regulations to comport with the federal regulation. In order to carry out this commitment, the NYS Department of Environmental Conservation (Department) is proposing to repeal existing Part 240 and establish new transportation conformity regulations by promulgating 6 NYCRR Part 240, Transportation Conformity, and revising 6 NYCRR Part 200, General Provisions.
2. Categories and Numbers Affected: Conformity applies to metropolitan transportation plans, metropolitan transportation improvement programs (TIPs), and projects that are funded or approved by the Federal Highway Administration (FHWA) or Federal Transit Administration (FTA). Conformity requirements apply to areas that do not meet or previously have not met the air quality standards for ozone, CO, PM, PM, or nitrogen dioxide. These areas are known as nonattainment or maintenance areas, respectively. The numbers affected vary relative to the total population in the specific nonattainment or maintenance area.
3. Regions of Adverse Impact: The promulgation of the Part 240 and the amendments to Part 200 apply to affected areas statewide. All areas subject to the regulations will be affected, regardless of location.
4. Minimizing Adverse Impact: The promulgation of Part 240 and the amendments to Part 200 are applicable statewide. The Department has minimized the adverse impacts of the regulations statewide.
