Chapter 3745-101 Transportation Conformity

3745-101-01 Purpose.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-101-02 of the Administrative Code titled"Incorporation by reference."]

The purpose of this chapter is to implement Section 176 (C) of the CAA the related requirements of 23 USC 109(j) , and regulations under 40 CFR Part 51, Subpart T, with respect to the conformity of transportation plans, programs, and projects which are developed, funded, or approved by the USDOT, by the Ohio DOT, and by metropolitan planning organizations or other recipients of funds under Title 23 of the United States Code or the Federal Transit Act contained in 49 USC 5303 . This chapter sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such activities to this applicable implementation plan, developed and applicable pursuant to section 110 of the CAA and part D of Title I of the CAA.

R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 3704.03(E)
Rule Amplifies: 3704.03(E) , 3704.033
Prior Effective Dates: 8/21/95, 11/3/06

3745-101-02 Definitions.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the "Incorporation by Reference" paragraph at the end of this rule.]

(A) Terms used but not defined in this chapter shall have the meaning given them by the CAA, Titles 23 and 49 of the United States Code, other USEPA regulations, other USDOT regulations, or other state or local air quality or transportation rules, in that order of priority. Except as otherwise provided in this rule, the definitions in rule 3745-15-01 of the Administrative Code shall apply to this chapter.

(B) As used in Chapter 3745-101 of the Administrative Code:

(1) "1-hour ozone NAAQS" means the one hour ozone national ambient air quality standard codified in 40 CFR 50.9 .

(2) "8-hour ozone NAAQS" means the eight hour ozone national ambient air quality standard codified in 40 CFR 50.10 .

(3) "Action scenario" means the future transportation system that would result from the implementation of the proposed transportation plan, program, and projects.

(4) "Applicable implementation plan" as defined in Section 302(q) of the CAA means the portion, or portions, of the state's implementation plan, or most recent revision thereof, which has been approved under Section 110 of the CAA, or promulgated under Section 110(c) of the CAA, or promulgated or approved pursuant to regulations promulgated under Section 301(d) of the CAA and which implements the relevant requirements of the CAA.

(5) "Baseline scenario" means the transportation system that would result from the continued implementation of current programs, as specified in 40 CFR 93.119 .

(6) "CAA" means the Clean Air Act as amended November 15, 1990; 42 USC 7401 to 42 USC 7671q .

(7) "Cause or contribute to a new violation" for a project means:

(a) To cause or contribute to a new violation of a standard in the area substantially affected by the project or over a region which would otherwise not be in violation of the standard during the future period in question, if the project were not implemented, or

(b) To contribute to a new violation in a manner that would increase the frequency or severity of a new violation of a standard in such area.

(8) "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act, contained in 42 USC 9601 to 42 USC 9675 .

(9) "Clean data" means air quality monitoring data determined by EPA to meet the requirements of 40 CFR Part 58 that indicate attainment of the national ambient air quality standard.

(10) "CO" means carbon monoxide.

(11) "Consultation" means that one party confers with another identified party, provides all appropriate information to that party needed for meaningful input, and prior to taking any action, considers the views of that party and, except with respect to those actions for which only notification is required and those actions subject to paragraph (C)(1)(f) of rule 3745-101-04 of the Administrative Code, responds to those views in a timely, substantive written manner prior to any final decision on such action.

(12) "Control strategy implementation plan revision" means the applicable 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 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 187(g), 189(a)(1)(B), and 189(b)(1)(A) of the CAA; and Sections 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).

(13) "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.

(14) "Design scope" means the design aspects of a facility 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.

(15) "Donut areas" are 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.

(16) "EAC" means early action compact.

(17) "EMFAC" means a computer-based mathematical model used by the state of California to calculate motor vehicle emissions.

(18) "Facility" means any building, structure, roadway, installation, operation, or combination thereof.

(19) "FHWA" means the federal highway administration of USDOT.

(20) "FHWA/FTA project", for the purpose of this chapter, 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.

(21) "FTA" means the federal transit administration of USDOT.

(22) "Fiscally constrained" means that full funding is reasonably anticipated to be available within the time period contemplated for completion of the projects in the transportation plan or in the transportation improvement plan in accordance with the metropolitan planning regulations at 23 CFR Part 450.

(23) "Forecast period" with respect to a transportation plan or the transportation improvement plan means the period covered by the transportation plan or the transportation improvement plan pursuant to 23 CFR Part 450.

(24) "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 shall be defined sufficiently to:

(a) Connect logical termini and be of sufficient length to address environmental matters on a broad scale;

(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.

(25) "Horizon year" means a year for which the transportation plan or the transportation improvement plan describes the envisioned transportation system in accordance with 40 CFR 93.106 .

(26) "Hot-spot analysis" means an estimation of likely future localized CO and PM10 pollutant concentrations and a comparison of those concentrations to the national ambient air quality standards. A 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.

(27) "HPMS" means highway performance monitoring system.

(28) "Incomplete data area" means any ozone nonattainment area which is classified by USEPA, as an incomplete data area, pursuant to 40 CFR Part 81.

(29) "Increase the frequency or severity" means to cause a location or region to exceed a standard more often or to cause a violation at a greater concentration than previously existed and/or would otherwise exist during the future period in question, if the project were not implemented.

(30) "Lapse" means that the conformity determination for a transportation plan or a transportation improvement plan has expired, and thus there is no currently conforming transportation plan and transportation improvement plan.

(31) "Lead agency" means the agency responsible for preparing the document, as referred to in paragraph (B)(2) of rule 3745-101-04 of the Administrative Code, unless otherwise provided by a memorandum of understanding or contract.

(32) "Isolated rural nonattainment and maintenance areas" are 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 transportation improvement plans and do not have projects that are part of the emissions analysis of any metropolitan planning organization's metropolitan transportation plan or transportation improvement plan. Projects in such areas are instead included in statewide transportation improvement programs. These areas are not donut areas.

(33) "Level of service" is a qualitative measure describing operational conditions of traffic, generally described in terms of speed and travel time, freedom to maneuver, traffic interruptions, comfort, convenience, and safety. The following six levels of service define a facility's operating condition:

(a) Level of service A - free flow, no restrictions on operating speed.

(b) Level of service B - stable flow, few speed restrictions

(c) Level of service C - stable flow, higher volumes, some restricted speed and lane changing

(d) Level of service D - approaching unstable flow, little freedom to maneuver

(e) Level of service E - unstable flow, lower speed with some stops

(f) Level of service F - forced flow, low speed with many stops

(g) "Limited maintenance plan" is a maintenance plan that USEPA has determined meets USEPA's limited maintenance plan policy criteria for a given NAAQS and pollutant. To qualify for a limited maintenance plan, for example, an area must have a design value that is significantly below a given NAAQS, and it must be reasonable to expect that a NAAQS violation will not result from any level of future motor vehicle emissions growth.

(34) "Local air agency" means an agency that has been delegated air pollution control responsibilities by the director of the Ohio EPA pursuant to Section 3704.03 of the Revised Code.

(35) "Maintenance area" means any geographic region of the United States previously designated nonattainment pursuant to the CAA and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under Section 175 (a) of the CAA.

(36) "Maintenance plan" means an implementation plan under Section 175(a) of the CAA.

(37) "Memorandum of understanding" or "MOU" means an agreement among the agencies required to perform consultation under this chapter defining their respective responsibilities in air quality and transportation planning processes for each nonattainment area.

(38) "Metropolitan planning organization" or "MPO" means that organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive transportation planning process under 23 USC 134 and 49 USC 5303 within the MPO boundary as recognized by the governor of Ohio. It is the forum for cooperative transportation decision-making.

(39) "Milestone" has the meaning given in 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.

(40) "Motor vehicle emissions budget" means that portion of the total allowable emissions allocated by the applicable implementation plan to highway and transit vehicles. Such portion of the total allowable emissions is defined in a revision to the applicable implementation plan for a certain date for the purpose of meeting reasonable further progress milestones, or attainment or maintenance demonstrations, for any criteria pollutant or its precursors. Such portion can also be defined in an implementation plan revision which was endorsed by the governor or by the Ohio EPA, subject to a public hearing, and submitted to, but not yet approved by, the USEPA. The applicable implementation plan for an ozone nonattainment area may also designate a motor vehicle emissions budget for NOx for a reasonable further progress milestone year if the applicable implementation plan demonstrates that this NOx budget will be achieved with measures in the implementation plan (as an implementation plan shall do for VOC milestone requirements). The applicable implementation plan for an ozone nonattainment area includes a NOx budget if NOx reductions are being substituted for the reductions in VOC in milestone years which are required for reasonable further progress.

(41) "National ambient air quality standards" or "NAAQS" means those standards established pursuant to section 109 of the CAA.

(42) "NEPA" means the National Environmental Policy Act of 1969, contained in 42 USC 4321 to 42 USC 4370(f) .

(43) "NEPA process completion", for the purposes of this chapter, with respect to FHWA or FTA, means the point at which there is a specific action to make a formal final 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.

(44) "NH3" means ammonia.

(45) "Nonattainment area" means any geographic region of the United States which has been designated as nonattainment under Section 107 of the CAA for any pollutant for which a national ambient air quality standard exists.

(46) "Not classified area" means any carbon monoxide nonattainment area which USEPA has not classified as either moderate or serious.

(47) "NOx" means oxides of nitrogen.

(48) "NO2" means nitrogen dioxide.

(49) "Ohio DOT" means the Ohio department of transportation.

(50) "Ohio EPA" means the Ohio environmental protection agency.

(51) "PM10" means particulate matter with an aerodynamic diameter less than or equal to ten microns.

(52) "PM 2.5 " mean particulate matter with an aerodynamic diameter less than or equal to a nominal 2.5 microns.

(53) "Precursor for PM10" means transportation-related emissions of volatile organic compounds and oxides of nitrogen.

(54) "Precursor for PM 2.5 " means transportation-related emissions of sulfur oxides, ammonia, volatile organic compounds and oxides of nitrogen

(55) "Project" means a highway project or transit project.

(56) "Protective finding" means a determination by USEPA that the control strategy contained in a submitted control strategy implementation plan revision would have been considered approvable with respect to requirements for emissions reductions if all committed measures had been submitted in enforceable form as required by Section 110(a)(2)(A) of the CAA.

(57) "Recipient of funds designated under Title 23 of the United States Code USC or the Federal Transit Act" means any agency at any level of state, county, city or regional government that routinely receives Title 23 of the United States Code or Federal Transit Act funds to construct FHWA/FTA projects, operate FHWA/FTA projects or equipment, purchase equipment, or undertake other services or operations via contracts or agreements. This definition does not include private landowners or developers, or contractors or entities that are only paid for services or products created by their own employees.

(58) "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 which shall include, at a minimum:

(a) All principal arterial highways,

(b) All fixed guideway transit facilities that offer an alternative to regional highway travel,

(c) Any project that Ohio EPA identifies as having the potential to affect air quality on a regional basis.

(59) "Rural area" means an area external to all metropolitan planning organization boundaries recognized by the governor of Ohio.

(60) "Safety margin" means the amount by which the total projected emissions from all sources of a given pollutant are less than the total emissions that would satisfy the applicable requirement for reasonable further progress, attainment, or maintenance.

(61) "SOx" means sulfur oxides.

(62) "Standard" means a national ambient air quality standard.

(63) "State project" means any highway or transit project which is proposed to receive funding assistance or approval through any state or local transportation program.

(64) "Statewide transportation improvement program" or "STIP" means a staged, multi-year, intermodal program of transportation projects covering the state, or the nonattainment area, attainment area, or maintenance area, which is consistent with the statewide transportation plan and metropolitan transportation plans, and developed pursuant to 23 CFR Part 450.

(65) "Statewide transportation plan" means the official intermodal statewide transportation plan that is developed through the statewide planning process for the state, developed pursuant to 23 CFR Part 450.

(66) "Submarginal area" means any ozone nonattainment area which USEPA has classified as submarginal in 40 CFR Part 81.

(67) "TIP" means transportation improvement plan.

(68) "Title 23 USC" means Title 23 of the United States Code.

(69) "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.

(70) "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 local transit agencies, such as changes in routes, schedules, or fares. It may consist of several phases. For analytical purposes, it shall be defined inclusively enough to:

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

(71) "Transitional area" means any ozone nonattainment area which USEPA has classified as transitional in 40 CFR Part 81.

(72) "Transportation control measure" or "TCM" means any measure that is specifically identified and committed to in the applicable implementation plan that is either one of the types listed in Section 08 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 above, vehicle technology-based, fuel-based, and maintenance-based measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purpose of this chapter.

(73) "Transportation improvement program" or "TIP" means a staged, multi-year, intermodal program of transportation projects covering a metropolitan planning area which is consistent with the metropolitan transportation plan, and developed pursuant to 23 CFR Part 450.

(74) "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 CFR Part 450.

(75) "Transportation project" means a highway project or a transit project.

(76) "USDOT" means the United States department of transportation.

(77) "USEPA" means the United States environmental protection agency.

(78) "VMT" means total miles traveled by all vehicles on a given roadway.

(79) "VOC" means volatile organic compound as defined in paragraph (B)(6) of rule 3745-21-01 of the Administrative Code.

(80) "Written commitment" for the purposes of this chapter 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.

(C) Incorporation by reference. This chapter includes references to certain matter or materials. The text of the incorporated materials is not included in the regulations contained in this chapter. The materials are hereby made a part of the regulations in this chapter. For materials subject to change, only the specific version specified in the regulation are incorporated. Material is incorporated as it exists on the effective date of this rule. Except for subsequent annual publication of existing (unmodified) Code of Federal Regulation compilations, any amendment or revision to a referenced document is not incorporated unless and until this rule has been amended to specify the new dates.

(1) Availability. The materials incorporated by reference are available as follows:

(a) Clean Air Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the Act as amended in 1990 is also available in electronic format at www.epa.gov/oar/caa/. A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(b) Code of Federal Regulations. Information and copies may be obtained by writing to: "Superintendent of Documents, Attention: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the CFR is also available in electronic format at www.access.gpo.gov/nara/cfr/. The CFR compilations are also available for inspection and copying at most public libraries and "The State Library of Ohio."

(c) Comprehensive Environmental Response, Compensation, and Liability Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the Act as amended in 1980 is also available in electronic format at http://www4.law.cornell.edu/uscode/. A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(d) Federal Transit Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the Act as amended in 1998 is also available in electronic format at http://www4.law.cornell.edu/uscode/. A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(e) National Environmental Policy Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(f) United States Code. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the United States Code is also available in electronic format at http://www4.law.cornell.edu/uscode/. The USC compilations are also available for inspection and copying at most public libraries and "The State Library of Ohio."

(2) Incorporated materials

(a) 23 CFR Part 450; "Planning assistance and standards;" as published in the July 1, 2005 Code of Federal Regulations.

(b) 23 CFR 450.316(b) ; 58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996.

(c) 23 CFR 450.322(c) ; 58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996; 67 FR 62373, Oct. 7, 2002.

(d) 23 CFR 450.324(c) ; 58 FR 58064, Oct. 28, 1993, as amended at 61 FR 67175, Dec. 19, 1996.

(e) 23 USC 109 ; "Standards;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(f) 23 USC 134 ; "Metropolitan Planning;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(g) 40 CFR 50.9 ; "National 1-hour primary and secondary ambient air quality standards for ozone;" 62 FR 38894, July 18, 1997, as amended at 65 FR 45200, July 20, 2000; 68 FR 38163, June 26, 2003, 69 FR 23996, Apr. 30, 2004.

(h) 40 CFR 50.10 ; "National 8-hour primary and secondary ambient air quality standards for ozone;" 62 FR 38894, July 18, 1997.

(i) 40 CFR 51.390 ; "Implementation plan revision;" 62 FR 43801, Aug. 15, 1997.

(j) 40 CFR Part 51, Subpart T; "Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws;" 62 FR 43801, Aug. 15, 1997.

(k) 40 CFR Part 58; "Ambient Air Quality Surveillance;" as published in the July 1, 2005 Code of Federal Regulations.

(l) 40 CFR Part 81; "Designation of Areas for Air Quality Planning Purposes;" as published in the July 1, 2005 Code of Federal Regulations.

(m) 40 CFR 93.104 ; "Frequency of conformity determinations;" 62 FR 43801, Aug. 15, 1997, as amended at 67 FR 50817, Aug. 6, 2002; 69 FR 40072, July 1, 2004.

(n) 40 CFR 93.105 ; " Consultation;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July 1, 2004; 70 FR 24291, May 6, 2005.

(o) 40 CFR 93.105(c)(1)(i) ; "Consultation;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July 1, 2004; 70 FR 24291, May 6, 2005.

(p) 40 CFR 93.106 ; "Content of transportation plans;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July 1, 2004.

(q) 40 CFR 93.108 "Fiscal constraints for transportation plans and TIPs;" 58 FR 62235, Nov. 24, 1993.

(r) 40 CFR 93.109(l)(2) (iii) ; "Criteria and procedures for determining conformity of transportation plans, programs, and projects: General" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40093, July 1, 2004.

(s) 40 CFR 93.113(c)(1) ; "Criteria and procedures: Timely implementation of TCMs" 62 FR 43801, Aug. 15, 1997.

(t) 40 CFR 93.116 ; "Criteria and procedures: Localized CO and PM10 violations (hot spots);" 69 FR 40077, July 1, 2004.

(u) 40 CFR 93.118 ; "Criteria and procedures: Motor vehicle emissions budget;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40078, July 1, 2004.

(v) 40 CFR 93.119 ; "Criteria and procedures: Interim emissions in areas without motor vehicle emissions budgets;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40079, July 1, 2004; 70 FR 24291, May 6, 2005.

(w) 40 CFR 93.121 ; "Requirements for adoption or approval of projects by other recipients of funds designated under title 23 USC or the Federal Transit Laws;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004.

(x) 40 CFR 93.122 ; "Procedures for determining regional transportation-related emissions;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004.

(y) 40 CFR 93.123(b) ; "Procedures for determining localized CO and PM 10 concentrations (hot-spot analysis)" 58 FR 62235, Nov. 24, 1993.

(z) 40 CFR 93.126 ; "Exempt projects;" 62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40081, July 1, 2004.

(aa) 40 CFR 93.127 ; "Projects exempt from regional emissions analyses;" 62 FR 43801, Aug. 15, 1997.

(bb) 42 USC 4321 to 42 USC 4370f ; "National Environmental Policy"; published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(cc) 42 USC 7401 to 42 USC 7671q ; "The Public Health and Welfare-Air Pollution Prevention and Control;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(dd) "Comprehensive Environmental Response, Compensation, and Liability;" contained in 42 USC 9601 to 42 USC 9675 ; published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ee) 49 CFR 7.43 ; " Fee schedule;" Amdt. 1, 63 FR 38331, July 16, 1998.

(ff) 49 CFR Part 613; "Planning Assistance and Standards;" 58 FR 58079, Oct. 28, 1993; 41 FR 33443, Aug. 9, 1976.

(gg) 49 USC 5303 ; "Metropolitan Planning;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(hh) Federal Transit Act; contained in 49 USC 53 ; "Mass Transportation;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ii) Part D of Title Iof the Clean Air Act; contained in 42 USC 74501 to 42 USC 76515 "The Public Health and Welfare-Air Pollution Prevention and Control;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(jj) Section 107 of the Clean Air Act; contained in 42 USC 7408 ; "Air quality criteria and control techniques;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(kk) Section 107(d) of the Clean Air Act; contained in 42 USC 7407 ; "Air quality control regions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ll) Section 108 of the Clean Air Act; contained in 42 USC 7408 ; "Air quality criteria and control techniques;" published January 6, 2003 in Supplement III of the 2000 Edition of the United States Code.

(mm) Section 109 of the Clean Air Act; contained in 42 USC 7409 ; "National ambient air quality standards;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(nn) Section 110 of the Clean Air Act; contained in 42 USC 7410 ; "Implementation plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(oo) Section 110(a)(2)(A) of the Clean Air Act; contained in 42 USC 7410 ; "Implementation plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(pp) Section 110(c) of the Clean Air Act; contained in 42 USC 7410 ; "Implementation plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code

(qq) Section 172(c) of the Clean Air Act; contained in 42 USC 7502 ; "Nonattainment plan provisions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(rr) Section 175A of the Clean Air Act; contained in 42 USC 7505a ; "Maintenance plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ss) Section 176(c) of the Clean Air Act; contained in 42 USC 7506 ; "Limitation on certain federal assistance;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(tt) Section 182(b)(1) of the Clean Air Act; contained in 42 USC 7511a ; "Plan submissions and requirements;" published January 19, 2004 in Supplement II of the 2000 Edition of the United States Code.

(uu) Section 182(c)(2)(A) of the Clean Air Act; contained in 42 USC 7511a ; "Plan submissions and requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(vv) Section 182(c)(2)(B) of the Clean Air Act; contained in 42 USC 7511a ; "Plan submissions and requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ww) Section 182(g)(1) of the Clean Air Act; contained in 42 USC 7511a ; "Plan submissions and requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(xx) Section 187(a)(7) of the Clean Air Act; contained in 42 USC 7512a ; "Plan submissions and requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(yy) Section 187(g) of the Clean Air Act; contained in 42 USC 7512a ; "Plan submissions and requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(zz) Section 189(a)(1)(B) of the Clean Air Act; contained in 42 USC 7513a ; "Plan provisions and schedules for plan submissions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(aaa) Section 189(b)(1)(A) of the Clean Air Act; contained in 42 USC 7513a ; "Plan provisions and schedules for plan submissions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(bbb) Section 189(c) of the Clean Air Act; contained in 42 USC 7513a ; "Plan provisions and schedules for plan submissions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ccc) Section 189(d) of the Clean Air Act; contained in 42 USC 7513a ; "Plan provisions and schedules for plan submissions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ddd) Section 192(a) of the Clean Air Act; contained in 42 USC 7514a ; "Attainment dates;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(eee) Section 192(b) of the Clean Air Act; contained in 42 USC 7514a ; "Attainment dates;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(fff) Section 301(d) of the Clean Air Act; contained in 42 USC 7601 ; "Administration;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(ggg) Section 302(q) of the Clean Air Act; contained in 42 USC 7602 ; "Definitions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(hhh) Title 23 of the United States Code; "Highways;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code; as amended June 9, 1998; Pub. L. 105-178, title V, §5101(1), , 112 Stat. 422, Sept. 9, 1966, Pub. L. 89-564, title I, §102(b)(3), , 80 Stat. 735.

(iii) Title 49 of the United States Code; "Transportation;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 3704.03(E)
Rule Amplifies: 3704.03(E) , 3704.033
Prior Effective Dates: 8/21/95, 6/19/97, 2/16/99, 9/23/02, 11/3/06

3745-101-03 Applicability, priority, and frequency of conformity determinations.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-101-02 of the Administrative Code titled"Incorporation by reference."]

(A) Except as provided for in paragraph (F) of this rule or in 40 CFR 93.126 conformity determinations are required for:

(1) The adoption, acceptance, approval or support of transportation plans and transportation plan amendments developed pursuant to 23 CFR Part 450 or 49 CFR Part 613 by an MPO or Ohio DOT;

(2) The adoption, acceptance, approval or support of TIPs and TIP amendments or the STIP developed pursuant to 23 CFR Part 450 or 49 CFR Part 613 by an MPO or Ohio DOT; and

(3) The approval, funding, or implementation of FHWA/FTA projects.

(B) Conformity determinations are not required under this chapter for individual projects which are not FHWA/FTA projects. However, 40 CFR 93.121 applies to such projects if they are regionally significant.

(C) The provisions of this chapter 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.

(1) The provisions of this chapter apply with respect to emissions of the following criteria pollutants: ozone, CO, NO2, PM10 and PM 2.5.

(2) The provisions of this chapter also apply with respect to emissions of the following precursor pollutants:

(a) VOC and NOx in ozone areas;

(b) NOx in NO2 areas; and

(c) VOC and/or NOx in 10 areas if during the interim period, the USEPA regional administrator or the director has made a finding that transportation-related precursor emissions of one or both of these precusors within the nonattainment area are a significant contributor to the PM10 nonattainment problem and has so notified the MPO and Ohio 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 PM 2.5 areas, unless both the USEPA regional administrator and the director have made a finding that transportation-related emissions of NOx within the nonattainment area are not a significant contributor to the PM 2.5 nonattainment problem and has so notified the MPO and Ohio 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, SOx and/or NH3 in PM 2.5 areas if either the USEPA regional administrator or the director has made a finding that transportation-related emissions of any of these precursors within the nonattainment area are a significant contributor to the PM 2.5 nonattainment problem and has so notified the MPO and Ohio 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) The provisions of this chapter apply to PM 2.5 nonattainment and maintenance areas with respect to PM 2.5 from re-entrained road dust if the USEPA regional administrator or the director has made a finding that re-entrained road dust emissions within the area are a significant contributor to the PM 2.5 nonattainment problem and has so notified the MPO and Ohio DOT, or if the applicable implementation plan, or implementation plan submission includes re-entrained road dust in the approved or adequate budge 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.

(E) The provisions of this chapter apply to maintenance areas for twenty years from the date USEPA approves the area's request under Section 107 (d) of the CAA for redesignation to attainment, unless the applicable implementation plan specifies that the provisions of this chapter shall apply for more than twenty years.

(F) The following limitations shall apply to conformity determinations:

(1) Projects subject to this chapter for which the NEPA process and a conformity determination have been completed by FHWA or FTA may proceed toward implementation without further conformity determinations if one of the following major steps has occurred within the most recent four year period: NEPA process completion; start of final design; acquisition of a significant portion of the right-of-way; or approval of the plans, specifications and estimates. All phases of such projects which were considered in the conformity determination are also included, if those phases were for the purpose of funding, final design, right-of-way acquisition, construction, or any combination of these phases.

(2) A new conformity determination for the project will be required if there is a significant change in project design concept and scope, if a supplemental environmental document for air quality purposes is initiated, or if no major steps to advance the project have occurred within the most recent four year period.

(G) Grace period for new nonattainment areas. For areas or portions of areas which have been continously designated attainment or not designated for any NAAQS for ozone, CO, PM10, PM 2.5 or NO2 since 1990 and are subsequently redesignated to nonattainment or designated nonattainment for any NAAQS for any of these pollutants, the provisions of this chapter shall not apply with respect to that NAAQS for twelve months following the effective date of final designation to nonattainment of each NAAQS for such pollutant.

(H) When assisting or approving any action with air quality-related consequences, FHWA and FTA shall give priority to the implementation of those transportation portions of an applicable implementation plan prepared to attain and maintain the NAAQS. This priority shall be consistent with statutory requirements for allocation of funds among states or other jurisdictions.

(I) Conformity determinations and conformity redeterminations for transportation plans, TIPs, and FHWA/FTA projects shall be made according to the requirements of this rule and the applicable implementation plan.

(J) Each new transportation plan shall be found to conform, before the transportation plan is approved by the MPO or accepted by USDOT.

(1) All transportation plan revisions shall be found to conform before the transportation plan revisions are approved by MPO or accepted by USDOT, unless the revision merely adds or deletes exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127 and has been made in accordance with the notification provisions of paragraph (C)(1)(f) of rule 3745-101-04 of the Administrative Code. The conformity determination shall be based on the transportation plan and the revision taken as a whole.

(2) In any case, conformity determinations shall be made no less frequently than every four years, or the existing conformity determination will lapse.

(K)

(1) A new TIP shall be demonstrated to conform, before the TIP is approved by the MPO and approved by the governor or his designee or accepted by USDOT.

(2) A TIP amendment requires a new conformity determination for the entire TIP before the amendment is approved by the MPO and approved by the governor or his designee or accepted by USDOT, unless the amendment merely adds or deletes exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127 has been made in accordance with the notification provisions of paragraph (C)(1)(f) of rule 3745-101-04 of the Administrative Code.

(3) After an MPO adopts a new or revised transportation plan, conformity of the TIP shall be redetermined by the MPO and USDOT within six months, unless the new or revised plan merely adds or deletes exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127 has been made in accordance with the notification provisions of paragraph (C)(1)(f) of rule 3745-101-04 of the Administrative Code. Otherwise, the existing conformity determination for the TIP will lapse.

(4) In any case, conformity determinations shall be made no less frequently than every four three years or the existing conformity determination will lapse.

(L) FHWA/FTA projects shall be found to conform by the FHWA and FTA before they are adopted, accepted, approved, or funded. Conformity shall be redetermined for any FHWA/FTA project if one of the following occurs: a significant change in the project's design concept and scope; three years elapse since the most recent major step to advance the project; or initiation of a supplemental environmental document for air quality purposes. Major steps include: NEPA process completion; start of final design; acquisition of a significant portion of the right-of-way; and, construction including or federal approval of the plans, specifications and estimates.

R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 3704.03(E)
Rule Amplifies: 3704.03(E) , 3704.033
Prior Effective Dates: 8/21/95, 6/19/97, 2/16/99, 11/3/06

3745-101-04 Consultation.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-101-02 of the Administrative Code titled"Incorporation by reference."]

(A) This rule provides procedures for federal, state and local interagency consultation, and resolution of conflicts, and public consultation. Public consultation procedures will be developed in accordance with the requirements for public involvement in 23 CFR Part 450.

(1) Such consultation procedures shall be undertaken by MPOs, Ohio DOT, and USDOT with Ohio EPA and local air agencies and USEPA before making conformity determinations, and by Ohio EPA and local air agencies and USEPA with MPOs, the Ohio DOT, and USDOT in developing applicable implementation plans.

(2) Before this chapter is approved by USEPA, MPOs before making any conformity determinations shall provide reasonable opportunity for consultation with Ohio EPA, local air and transportation agencies, the Ohio DOT, USDOT, and USEPA, including consultation on the issues described in paragraph (C)(1) of this rule.

(B) Interagency consultation procedures: general factors.

(1) Representatives of the MPOs, Ohio EPA, local air agencies, and Ohio DOT and local transportation agencies shall undertake an interagency consultation process in accordance with this rule with each other and with local or regional offices of USEPA, FHWA, and FTA on the development of the implementation plan, of the list of TCMs in the applicable implementation plan, of the transportation plan, of the TIP, of the STIP and of the statewide transportation plan, of any revisions to the preceding documents, and of all conformity determinations required by this chapter.

(2)

(a) Ohio EPA 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 applicable implementation plans and control strategy implementation plan revisions and the list of TCMs in the applicable implementation plan.

(b) The respective 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 development of the transportation plan, the TIP, and any amendments or revisions thereto. The respective 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 any determinations of conformity under this rule for which the MPO is responsible.

(c) In the case of non-metropolitan areas, Ohio DOT 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 statewide transportation plan, the STIP, and any amendments or revisions thereto.

(3) In addition to the lead agencies identified in paragraphs (B)(2)(a) and (B)(2)(b) of this rule, other agencies entitled to participate in any interagency consultation process under this rule include the Ohio DOT (headquarters and each affected regional or district office), each affected MPO, the FHWA regional office and state division, the FTA regional office, Ohio EPA, and local air agencies, and in interstate nonattainment areas and interstate maintenance areas the state and local transportation agencies and state and local air quality agencies from the states in the interstate nonattainment area and interstate maintenance area.

(4)

(a) It shall be the role and responsibility of each lead agency in an interagency consultation process, as specified in paragraphs (B)(2)(a) and (B)(2)(b) of this rule, to confer with all other agencies identified under paragraph (B)(3) of this rule 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 portions of paragraph (B) of this rule, where required; assure policy-level contact with those agencies; 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.

(b) It shall be the role and responsibility of each agency specified in paragraph (B)(3) of this rule, 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.

(5) Specific roles and responsibilities of various participants in the interagency consultation process shall be as follows:

(a) Ohio EPA, unless another agency is identified via a MOU or contract with Ohio EPA, shall be responsible for developing:

(i) Emissions inventories,

(ii) Emissions budgets,

(iii) Air quality modeling,

(iv) Attainment demonstrations,

(v) Control strategy implementation plan revisions,

(vi) Regulatory TCMs, and

(vii) Updated motor vehicle emissions factors.

(b) The respective MPO shall be responsible for:

(i) Developing transportation plans and TIPs,

(ii) Evaluating TCM transportation impacts,

(iii) Developing transportation and socioeconomic data and planning assumptions for use in air quality analysis to determine conformity of transportation plans, TIPs, and projects, and providing such data and planning assumptions to other agencies for air quality analysis,

(iv) Monitoring regionally significant projects,

(v) Developing system- or facility-based or other programmatic(non-regulatory) TCMs,

(vi) Providing technical and policy input on emissions budgets,

(vii) Performing transportation modeling, regional emissions analyses and documentation of timely implementation of TCMs needed for conformity assessments, or providing Ohio DOT with the data for this purpose,

(viii) And making conformity determinations on transportation plans, TIPs, and projects.

(c) The Ohio DOT shall be responsible for:

(i) Developing the statewide transportation plan and STIP,

(ii) Performing transportation modeling for MPOs as agreed to by the MPO,

(iii) Providing technical input on proposed revisions to motor vehicle emissions factors,

(iv) Distributing draft and final project environmental documents to other agencies,

(v) Convening air quality technical review meetings on specific projects when requested by other agencies or as needed,

(vi) And coordinating the conformity process and making conformity determinations for rural nonattainment areas.

(d) FHWA and FTA shall be responsible for:

(i) Assuring timely action on final findings of conformity, after consultation with other agencies as provided in this rule and 40 CFR section 51.402,

(ii) Providing guidance on conformity and the transportation planning process to agencies in interagency consultation.

(e) USEPA shall be responsible for:

(i) Reviewing and approving updated motor vehicle emissions factors,

(ii) Providing guidance on conformity criteria and procedures to agencies in interagency consultation,

(iii) Reviewing conformity findings.

(6) It shall be the affirmative responsibility of the lead agency to initiate the process by preparing an initial draft of the document, together with necessary supporting information; notifying other potential participants in the consultation process; circulating the draft document to those expressing an interest in participating; and convening consultation meetings early in the process of decision on the final document. Such lead agency shall convene technical meetings as necessary, and assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner.

(a) Regular consultation on major activities such as the development of an implementation plan or any control strategy implementation plan revision, the development of a transportation plan, the development of a TIP, or any determination of conformity on transportation plans or TIPs, shall include meetings beginning no later than three months prior to the date a final document is required (or the date on which such agency begins its own work on such document, if later). Representatives at the policy level of each agency shall receive adequate notice of such meetings. In addition, technical meetings shall be convened as necessary.

(b) Each lead agency with the responsibility for preparing the final document subject to the interagency consultation process shall confer with all other agencies identified under paragraphs (B)(1) to (B)(5) of this rule 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.

(7) Within sixty days of adopting or approving a document or making a determination, each lead agency subject to an interagency consultation process under this rule, including any federal agency, shall provide each final document that is the product of such consultation process, including applicable implementation plans or implementation plan revisions, transportation plans, TIPs, and determinations of conformity, together with all supporting information, to each other agency that has participated in the consultation process. Any such agency may supply a checklist of available supporting information, which such other participating agencies may use to request all or part of such supporting information, in lieu of generally distributing all supporting information.

(8) A meeting that is scheduled or required for another purpose may be used for the purposes of consultation if the conformity consultation purpose is identified in the public notice for the meeting.

(C) Interagency consultation procedures: specific processes.

(1) An interagency consultation process in accordance with paragraph (B) of this rule involving the MPO, Ohio EPA and local air agencies, Ohio DOT and local transportation agencies, USEPA, and USDOT shall be undertaken for the following:

(a) Evaluating and choosing each model, or models, and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses, including VMT forecasting, to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule;

(b) Determining which minor arterials and other transportation projects, 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, should be considered "regionally significant" for the purposes of regional emissions analysis, and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP. This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule;

(c) Evaluating whether projects otherwise exempted from meeting the requirements of this chapter, according to 40 CFR 93.126 and 40 CFR 93.127 should be treated as non-exempt in cases where potential adverse emissions impacts may exist for any reason. This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule;

(d) Making a determination, as required by 40 CFR 93.113(c)(1) , 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. This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule. 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) Identifying, as required by 40 CFR 93.123(b) , projects located at sites in PM10 nonattainment areas with vehicle and roadway emission and dispersion characteristics which are essentially identical to those at sites with violations verified by monitoring, and which therefore require quantitative PM10 hot-spot analysis. This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule;

(f) Receiving notification of transportation plan or TIP revisions or amendments which merely add or delete exempt projects listed in 40 CFR 93.126 or 40 CFR 93.127 , to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule, other than the requirement that such notice be provided prior to final action;

(g) Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 CFR 93.109(l)(2) (iii) .

(2) An interagency consultation process in accordance with paragraph (B) of this rule involving the MPO, Ohio EPA and local air agencies, Ohio DOT and local transportation agencies, shall be undertaken for the following:

(a) Evaluating events which will trigger new conformity determinations in addition to those triggering events established in 40 CFR 93.104 . This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule; and

(b) Consulting on emissions analysis for transportation activities which cross the borders of MPOs or nonattainment areas or air basins. This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule.

(3) Where the metropolitan planning area does not include the entire nonattainment or maintenance area, an interagency consultation process in accordance with paragraph (B) of this rule involving the MPOs and the Ohio DOT shall be undertaken for cooperative planning and analysis for purposes of determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenance area. This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph(B)(6) of this rule.

(4) A process involving all entities pursuing non-federally funded regionally significant projects (including local transportation agencies) to ensure 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 those by recipients of funds designated under Title 23 USC or the federal transit laws, are disclosed to the MPO on a regular basis, and to ensure that any changes to those plans are immediately disclosed.

(5) An interagency consultation process, in accordance with paragraph (B) of this rule, involving the MPO and other recipients of funds designated under Title 23 USC or the Federal Transit Act shall be undertaken for assuming the location and design concept and scope of projects which are disclosed to the MPO, as required by paragraph (C)(4) of this rule, but whose sponsors have not yet decided these features, in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR 93.122 . This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule.

(6) An interagency consultation process, in accordance with paragraph (B) of this rule, involving the MPO, Ohio EPA and local air agencies, Ohio DOT and local transportation agencies, shall be undertaken for the design, schedule, and funding of research and data collection efforts and regional transportation model development by the MPO (e.g., household/travel transportation surveys). This consultation process is to be initiated by the lead agency and conducted in accordance with paragraph (B)(6) of this rule.

(7) A process for providing final documents (including applicable implementation plans and implementation plan revisions) and supporting information to each agency after approval or adoption. This process is applicable to all agencies described in paragraph (A)(1) of this rule, including federal agencies.

(D) Resolving conflicts.

(1) Any conflict concerning conformity process among state agencies or between state agencies and an MPO shall be submitted for resolution to the governor if the conflict cannot be resolved by the heads of the involved agencies. Before submittal to the governor, such 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) Ohio EPA has fourteen calendar days to appeal a proposed determination of conformity, or other policy decision under this chapter, to the governor after the Ohio DOT or MPO has notified Ohio EPA of the resolution of all comments on such proposed determination of conformity or policy decision.

(a) Such fourteen day period shall commence when the MPO or Ohio DOT has confirmed receipt by the director of Ohio EPA of the resolution of the comments of the Ohio EPA. If Ohio EPA appeals to the governor, the final conformity determination shall have the concurrence of the governor. The Ohio EPA shall provide notice of any appeal under this paragraph to the MPO and the Ohio DOT. If Ohio EPA does not appeal to the governor within fourteen days, the MPO or Ohio DOT may proceed with the final conformity determination.

(b) In the case of any comments with regard to findings of fiscal constraint under 40 CFR 93.108 or to the air quality effects of any proposed determination of conformity, the Ohio DOT has fourteen calendar days to appeal a proposed determination of conformity, or other policy decision under this chapter, to the governor after the MPO has notified the Ohio EPA or Ohio DOT of the resolution of all comments on such proposed determination of conformity or policy decision. Such fourteen day period shall commence when the MPO has confirmed receipt by the director of the Ohio EPA or Ohio DOT of the resolution of the comments of Ohio DOT. If Ohio DOT appeals to the governor, the final conformity determination shall have the concurrence of the governor. Ohio DOT shall provide notice of any appeal under paragraph (D) of this rule to the MPO and the Ohio EPA. If Ohio DOT does not appeal to the governor within fourteen days, the MPO may proceed with the final conformity determination.

(3) The governor may delegate the role of hearing any such appeal under paragraph (D) of this rule 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 Ohio EPA or to any local air agency, to Ohio DOT, to a state transportation commission or board, to any agency that has responsibility for only one of these functions, or to an MPO.

(E) Public consultation procedures.

(1) Affected agencies making conformity determinations on transportation plans, programs, and projects shall establish and continuously implement a proactive public involvement process which provides opportunity for public review and comment and by, at a minimum, providing reasonable public access to technical and policy information considered by the agency at the beginning of the public comment period and prior to taking formal action on a conformity determination for all transportation plans and TIPs, consistent with the requirements of 23 CFR Part 450, including 23 CFR 450.316(b) , 23 CFR 450.322(c) , and 23 CFR 450.324(c) as in effect on the effective date of this chapter. Any charges imposed for public inspection and copying should be no more stringent than with the fee schedule contained in 49 CFR 7.43 .

(2) In addition, any such agency shall specifically address in writing all public comments 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 transportation plan or TIP.

(3) Any such agency shall also provide opportunity for public involvement in conformity determinations for projects to the extent otherwise required by law, e.g. NEPA. The opportunity for public involvement provided under this paragraph shall include access to information, emissions data, analyses, models and modeling assumptions used to perform a conformity determination, and the obligation of any such agency to consider and respond to significant comments. No transportation plan, TIP, or project may be found to conform unless the conformity determination has been subject to a public involvement process in accordance with this paragraph, without regard to whether the USDOT has certified any process under 23 CFR Part 450.

R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 3704.03(E)
Rule Amplifies: 3704.03(E) , 3704.033
Prior Effective Dates: 8/21/85, 6/19/97, 2/16/99, 11/3/06

3745-101-05 Procedures for determining regional transportation-related emissions.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-101-02 of the Administrative Code titled"Incorporation by reference."]

(A) General requirements.

(1) The regional emissions analysis required by 40 CFR 93.118 and 40 CFR 93.119 for the transportation plan, TIP, or project not from a conforming plan and TIP must include all regionally significant projects expected in the nonattainment or maintenance area. The analysis must include FHWA/FTA projects proposed in the transportation plan and TIP and all other regionally significant projects which the are disclosed to the MPO as required by 40 CFR 93.105 . Projects which are not regionally significant are not required to be explicitly modeled, but vehicle miles traveled (VMT) from such projects must be estimated in accordance with reasonable professional practice. The effects of TCMs and similar projects that are not regionally significant may also be estimated in accordance with reasonable professional practice.

(2) The emissions analysis may not include for emissions reduction credit any TCMs or other measures in the applicable implementation plan which have been delayed beyond the scheduled date(s) until such time as their implementation has been assured. If the measure has been partially implemented and it can be demonstrated that it is providing quantifiable emission reduction benefits, the emissions analysis may include that emissions reduction credit.

(3) Emissions reduction credit from projects, programs, or activities which require a regulatory action in order to be implemented may not be included in the emissions analysis unless:

(a) The regulatory action is already adopted by the enforcing jurisdiction;

(b) The project, program, or activity is included in the applicable implementation plan;

(c) The control strategy implementation plan submission or maintenance plan submission that establishes the motor vehicle emissions budget(s) for the purposes of 40 CFR 93.118 contains a written commitment to the project, program, or activity by the agency with authority to implement it; or

(d) USEPA has approved an opt-in to a federally enforced program, USEPA has promulgated the program (if the control program is a federal responsibility, such as vehicle tailpipe standards), or the CAA requires the program without need for individual state action and without any discretionary authority for USEPA to set its stringency, delay its effective date, or not implement the program.

(4) Emissions reduction credit from control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in order to be implemented may not be included in the emissions analysis unless the conformity determination includes written commitments to implementation from the appropriate entities.

(a) Persons or entities voluntarily committing to control measures must comply with the obligations of such commitments.

(b) The conformity implementation plan revision required in 40 CFR 51.390 must provide 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 that such commitments must be fulfilled.

(5) A regional emissions analysis for the purpose of satisfying the requirements of 40 CFR 93.119 must make the same assumptions in both the "baseline" and "action" scenarios regarding control measures that are external to the transportation system itself, such as vehicle tailpipe or evaporative emission standards, limits on gasoline volatility, vehicle inspection and maintenance programs, and oxygenated or reformulated gasoline or diesel fuel.

(6) The ambient temperatures used for the regional emissions analysis must be consistent with those used to establish the emissions budget in the applicable implementation plan. All other factors, for example the fraction of travel in a hot stabilized engine mode, must be consistent with the applicable implementation plan, unless modified after interagency consultation according to 40 CFR 93.105(C)(1)(i) to incorporate additional or more geographically specific information or represent a logically estimated trend in such factors beyond the period considered in the applicable implementation plan.

(7) Reasonable methods must be used to estimate nonattainment or maintenance area VMT on off-network roadways within the urban transportation planning area, and on roadways outside the urban transportation planning area.

(B) Regional emissions analysis in serious, severe, and extreme ozone nonattainment areas and serious CO nonattainment areas must meet the requirements of paragraphs (B)(1) to (B)(3) of this rule if their metropolitan planning area contains an urbanized area population over two hundred thousand.

(1) Estimates of regional transportation-related emissions used to support conformity determinations must be made at a minimum using network-based travel models according to procedures and methods that are available and in practice and supported by current and available documentation. These procedures, methods, and practices are available from DOT and will be updated periodically. Agencies must discuss these modeling procedures and practices through the interagency consultation process, as required by 40 CFR 93.105 . Network-based travel models must at a minimum satisfy the following requirements:

(a) Network-based travel models must be validated against observed counts (peak and off-peak, if possible) for a base year that is not more than ten years prior to the date of the conformity determination. Model forecasts must be analyzed for reasonableness and compared to historical trends and other factors, and the results must be documented;

(b) Land use, population, employment, and other network-based travel model assumptions must be documented and based on the best available information;

(c) Scenarios of land development and use must be consistent with the future transportation system alternatives for which emissions are being estimated. The distribution of employment and residences for different transportation options must be reasonable;

(d) A capacity-sensitive assignment methodology must be used, and emissions estimates must be based on a methodology which differentiates between peak and off-peak link volumes and speeds and uses speeds based on final assigned volumes;

(e) Zone-to-zone travel impedances used to distribute trips between origin and destination pairs must be in reasonable agreement with the travel times that are estimated from final assigned traffic volumes. Where use of transit currently is anticipated to be a significant factor in satisfying transportation demand, these times should also be used for modeling mode splits; and

(f) Network-based travel models must be reasonably sensitive to changes in the time(s), cost(s), and other factors affecting travel choices.

(2) Reasonable methods in accordance with good practice must be used to estimate traffic speeds and delays in a manner that is sensitive to the estimated volume of travel on each roadway segment represented in the network-based travel model.

(3) Highway performance monitoring system (HPMS) estimates of vehicle miles traveled (VMT) must be considered the primary measure of VMT within the portion of the nonattainment or maintenance area and for the functional classes of roadways included in HPMS, for urban areas which are sampled on a separate urban area basis. For areas with network-based travel models, a factor (or factors) may be developed to reconcile and calibrate the network-based travel model estimates of VMT in the base year of its validation to the HPMS estimates for the same period. These factors may then be applied to model estimates of future VMT. In this factoring process, consideration will be given to differences between HPMS and network-based travel models, such as differences in the facility coverage of the HPMS and the modeled network description. Locally developed count- based programs and other departures from these procedures are permitted subject to the interagency consultation procedures of 40 CFR 93.105(c)(1)(i) .

(C) Two-year grace period for regional emissions analysis requirements in certain ozone and CO areas. The requirements of paragraph (B) of this rule apply to such areas or portions of such areas that have not previously been required to meet these requirements for any existing NAAQS two years from the following:

(1) The effective date of USEPA's reclassification of an ozone or CO nonattainment area that has an urbanized area population greater than two hundred thousand to serious or above;

(2) The official notice by the United States census bureau that determines the urbanized area population of a serious or above ozone or CO nonattainment area to be greater than two hundred thousand; or

(3) The effective date of USEPA's action that classifies newly designated ozone or CO nonattainment area population greater than two hundred thousand as serious or above.

(D) In all areas not otherwise subject to paragraph (B) of this rule, regional emissions analyses must use those procedures described in paragraph (B) of this rule if the use of those procedures has been the previous practice of the MPO. Otherwise, areas not subject to paragraph (B) of this rule may estimate regional emissions using any appropriate methods that account for VMT growth by, for example, extrapolating historical VMT or projecting future VMT by considering growth in population and historical growth trends for VMT per person. These methods must also consider future economic activity, transit alternatives, and transportation system policies.

(E) PM10 from construction-related fugitive dust.

(1) For areas in which the implementation plan does not identify construction-related fugitive PM10 as a contributor to the nonattainment problem, the fugitive PM10 emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis.

(2) In PM10 nonattainment and maintenance areas with implementation plans which identify construction-related fugitive PM10 as a contributor to the nonattainment problem, the regional PM10 emissions analysis must consider construction-related fugitive PM10 and must account for the level of construction activity, the fugitive PM10 control measures in the applicable implementation plan, and the dust-producing capacity of the proposed activities.

(F) PM 2.5 from construction-related fugitive dust.

(1) For PM 2.5 areas in which the implementation plan does not identify construction-related fugitive PM 2.5 as a significant contributor to the nonattainment problem, the fugitive PM 2.5 emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis.

(2) In PM 2.5 nonattainment and maintenance areas with implementation plans which identify construction-related fugitive PM 2.5 as a significant contributor to the nonattainment problem, the regional PM 2.5 emissions analysis shall consider construction-related fugitive PM 2.5 and shall account for the level of construction activity, the fugitive PM 2.5 control measures in the applicable implementation plan, and the dust-producing capacity of the proposed activities.

(G) Reliance on previous regional emissions analysis.

(1) Conformity determinations for a new transportation plan and/or TIP may be demonstrated to satisfy the requirements of 40 CFR 93.118 "Criteria and procedures: Motor vehicle emissions budget" or 40 CFR 93.119 "Criteria and procedures: Interim emissions in areas without motor vehicle emissions budgets" without new regional emissions analysis if the regional emissions analysis already performed for the plan also applies to the TIP. This requires a demonstration that:

(a) The new plan and/or TIP contain all projects which must be started in the plan and TIP's timeframes in order to achieve the highway and transit system envisioned by the transportation plan;

(b) All plan and TIP projects which are regionally significant are included in the transportation plan with design concept and scope adequate to determine their contribution to the transportation plan's regional emissions at the time of the transportation plan's conformity determination;

(c) The design concept and scope of each regionally significant project in the new plan and/or TIP are not significantly different from that described in the transportation plan; and

(d) The previous regional emissions analysis is consistent with the requirements of 40 CFR 93.118 (including that conformity to all currently applicable budgets is demonstrated) and/or 40 CFR 93.119 as applicable.

(2) A project which is not from a conforming transportation plan and a conforming TIP may be demonstrated to satisfy the requirements of 40 CFR 93.118 or 40 CFR 93.119 without additional regional emissions analysis if allocating funds to the project will not delay the implementation of projects in the transportation plan or TIP which are necessary to achieve the highway and transit system envisioned by the transportation plan, and if the project is either:

(a) Not regionally significant; or

(b) Included in the conforming transportation plan (even if it is not specifically included in the latest conforming TIP) with design concept and scope adequate to determine its contribution to the transportation plan's regional emissions at the time of the transportation plan's conformity determination, and the design concept and scope of the project is not significantly different from that described in the transportation plan.

(3) A conformity determination that relies on paragraph (G) of this rule does not satisfy the frequency requirements of paragraph (J) or (K) of rule 3745-101-03 of the Administrative Code.

Replaces: 3745-101-14

R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 3704.03(E)
Rule Amplifies: 3704.03(E) , 3704.033
Prior Effective Dates: 8/21/95, 2/16/99, 11/3/06

3745-101-06 Enforceability of design concept and scope and project-level mitigation and control measures.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-101-02 of the Administrative Code titled"Incorporation by reference."]

(A) Prior to determining that a transportation project is in conformity, the MPO, other recipient of funds designated under Title 23 USC or the Federal Transit Act, the FHWA, or FTA shall obtain, from the project sponsor or operator, enforceable written commitments to implement in the construction of the project and operation of the resulting facility or service, any project-level mitigation or control measures which are identified as conditions for NEPA process completion with respect to local PM10 or CO impacts. Before making conformity determinations, enforceable written commitments shall also be obtained for project-level mitigation or control measures which are conditions for making conformity determinations for a transportation plan or TIP and included in the project design concept and scope which is used in the regional emissions analysis required by 40 CFR 93.118 "Criteria and procedures: Motor vehicle emissions budget" and 40 CFR 93.119 "Criteria and procedures: Interim emissions in areas without motor vehicle emissions budgets" or used in the project-level hot-spot analysis required by 40 CFR 93.116 .

(B) Project sponsors voluntarily committing to mitigation measures to facilitate positive conformity determinations shall provide enforceable written commitments and shall comply with the obligations of such commitments.

(C) Enforceable written commitments to mitigation or control measures shall be obtained prior to a positive conformity determination, and project sponsors shall comply with such commitments.

(D) If the MPO or project sponsor believes the mitigation or control measure is no longer necessary for conformity, then the project sponsor or operator may be relieved of its obligation to implement the mitigation or control measure if it can demonstrate that the applicable hot-spot requirements of 40 CFR 93.116 , the emission budget requirements of 40 CFR 93.118 , and emission reduction requirements of 40 CFR 93.119 are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under rule 3745-101-04 of the Administrative Code. The MPO and USDOT shall confirm that the transportation plan and TIP still satisfy the requirements of 40 CFR 93.118 and /or 40 CFR 93.119 , that the project still satisfies the requirements of 40 CFR 93.116 , and that the conformity determinations for the transportation plan, TIP, and project are therefore still valid. This finding is subject to the applicable public consultation requirements in paragraph (E) of rule 3745-101-04 of the Administrative Code for conformity determinations for projects.

Replaces: 3745-101-17

R.C. 119.032 review dates: 01/07/2014 and 01/07/2019
Promulgated Under: 119.03
Statutory Authority: 3704.03(E)
Rule Amplifies: 3704.03(E) , 3704.033
Prior Effective Dates: 8/21/95, 2/16/99, 11/3/06

3745-101-07 Criteria and procedures for conformity determination, assumptions, emissions model, and consultation. [Rescinded].

Rescinded eff 11-3-06

3745-101-08 Criteria and procedures for implementation of TCMs, current conformity, and projects from a plan and TIP. [Rescinded].

Rescinded eff 11-3-06

3745-101-09 Localized CO and PM10 violations and compliance with PM10 control measures. [Rescinded].

Rescinded eff 11-3-06

3745-101-10 Motor vehicle emissions budgets. [Rescinded].

Rescinded eff 11-3-06

3745-101-11 Criteria and procedures: Emission reductions in areas without motor vehicle emissions budgets. [Rescinded].

Rescinded eff 11-3-06

3745-101-12 Consequences of control strategy implementation plan failures. [Rescinded].

Rescinded eff 11-3-06

3745-101-13 Requirements for adoption or approval of projects by other recipients of funds designated under Title 23 U.S.C. or the federal transit laws. [Rescinded].

Rescinded eff 11-3-06

3745-101-14 Procedures for determining regional transportation-related emissions. [Rescinded].

Rescinded eff 11-3-06

3745-101-15 Procedures for determining localized CO and PM10 concentrations (hot-spot analysis). [Rescinded].

Rescinded eff 11-3-06

3745-101-16 Using the motor vehicle emissions budget in the applicable implementation plan. [Rescinded].

Rescinded eff 11-3-06

3745-101-17 Enforceability of design concept and scope and project-level mitigation and control measures. [Rescinded].

Rescinded eff 11-3-06

3745-101-18 Exempt projects. [Rescinded].

Rescinded eff 11-3-06

3745-101-19 Traffic signal synchronization projects. [Rescinded].

Rescinded eff 11-3-06

3745-101-20 Savings provisions. [Rescinded].

Rescinded eff 11-3-06