PURPOSE: This rule implements section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et. seq.), and the related requirements of 23 U.S.C. 109(j), with respect to the conformity of transportation plans, programs, and projects which are developed, funded, or approved by the United States Department of Transportation (DOT), and by metropolitan planning organizations (MPOs) or other recipients of funds under Title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. Chapter 53). This rule sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such activities to the applicable implementation plan, developed and applicable pursuant to section 110 and part D of the CAA. This rule applies to the St. Louis ozone and carbon monoxide nonattainment areas.

PUBLISHER’S NOTE: The publication of the full text of the material that the adopting agency has incorporated by reference in this rule would be unduly cumbersome or expensive. Therefore, the full text of that material will be made available to any interested person at both the Office of the Secretary of State and the office of the adopting agency, pursuant to section 536.031.4, RSMo. Such material will be provided at the cost established by state law.

1. (1) Definitions.

   1. (A) Terms used but not defined in this rule shall have the meaning given them by the CAA, Titles 23 and 49 U.S.C., other United States Environmental Protection Agency

2. (EPA) regulations, other DOT regulations, or other state or local air quality or transportation rules, in that order of priority. Definitions for some terms used in this rule may be found in 10 CSR 10-6.020.

   1. (B) Additional definitions specific to this rule are as follows:

      1. 1. Applicable implementation plan—

defined in section 302(q) of the CAA, the portion (or portions) of the state implementation plan for ozone or carbon monoxide, or most recent revision thereof, which has been approved under section 110, or promulgated under section 110(c), or promulgated or approved pursuant to regulations promulgated under section 301(d) and which implements the relevant requirements of the CAA;

1. 2. CAA—the Clean Air Act, as amend-

ed (42 U.S.C. 7401 et seq.);

1. 3. Cause or contribute to a new viola-

tion for a project—

1. 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

1. 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;

1. 4. Clean data—air quality monitoring

data determined by EPA to meet the requirements of 40 CFR part 58 that indicate attainment of the national ambient quality standard;

1. 5. Consultation—in the transportation

conformity process, one (1) party confers with another identified party, provides all information to that party needed for meaningful input, and considers the views of that Specific to the St. Louis Metropolitan Area

party and responds to those views in a timely, substantive written manner prior to any final decision on such action. Such views and written response shall be made part of the record of any decision or action;

1. 6. Control strategy implementation plan

revision—the implementation plan which contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy CAA requirements for demonstrations of reasonable further progress and attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192 (a) and 192(b), for nitrogen dioxide);

1. 7. Design concept—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.;

1. 8. Design scope—the design aspects

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

1. 9. DOT—the United States Department

of Transportation;

1. 10. EPA—the Environmental Protection

Agency;

1. 11. FHWA—the Federal Highway

Administration of DOT;

1. 12. FHWA/FTA project—for the pur-

pose of this rule, 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;

1. 13. Forecast period—with respect to a

transportation plan, the period covered by the transportation plan pursuant to 23 CFR part 450;

1. 14. FTA—the Federal Transit Admin-

istration of DOT;

1. 15. Highway project—an undertaking to

implement or modify a highway facility or highway-related program. Such an undertaking consists of all required phases necessary for implementation. For analytical purposes, it must be defined sufficiently to—

1. A. Connect logical termini and be of

sufficient length to address environmental matters on a broad scope;

1. B. Have independent utility or signif-

icance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and

1. C. Not restrict consideration of alter-

natives for other reasonably foreseeable transportation improvements;

1. 16. Horizon year—a year for which the

transportation plan describes the envisioned transportation system according to section (6) of this rule;

1. 17. Hot-spot analysis—an estimation of

likely future localized CO and PM10 pollutant concentrations and a comparison of those concentrations to the national ambient air quality standard(s). 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;

1. 18. Increase the frequency or severity—

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;

1. 19. Lapse—the conformity determina-

tion for a transportation plan or TIP has expired, and thus there is no currently conforming transportation plan and transportation improvement program (TIP);

1. 20. Maintenance area—any geographic

region of the United States previously designated nonattainment pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under section 175A of the CAA, as amended;

1. 21. Maintenance plan—an implemention

plan under section 175A of the CAA, as amended;

1. 22. Metropolitan planning area—the

geographic area in which the metropolitan transportation planning process required by 23 U.S.C. 134 and section 8 of the Federal Transit Act must be carried out;

1. 23. Metropolitan planning organization

(MPO)—that organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 5303. It is the forum for cooperative transportation decision-making. The East-West Gateway Coordinating Council is the MPO for the St. Louis metropolitan area and the organization 10 CSR 10-5

responsible for conducting the planning required under section 174 of the CAA;

1. 24. Milestone—the meaning given in

sections 182(g)(1) and 189(c) of the CAA. A milestone consists of an emissions level and the date on which it is required to be achieved;

1. 25. Motor vehicle emissions budget—

that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the National Ambient Air Quality Standards (NAAQS), for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions. For purposes of meeting the conformity test required under sections (17) and/or (18) of this rule, the motor vehicle emissions budget in the applicable Missouri State Implementation Plan shall be combined with the motor vehicle emissions budget for the same pollutant in the applicable Illinois State Implementation Plan;

1. 26. National ambient air quality stan-

dards (NAAQS)—those standards established pursuant to section 109 of the CAA;

1. 27. NEPA—the National Environmental

Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.);

1. 28. NEPA process completion—for the

purposes of this rule, with respect to FHWA or FTA, the point at which there is a specific action to make a determination that a project is categorically excluded, to make a Finding of No Significant Impact, or to issue a record of decision on a Final Environmental Impact Statement under NEPA;

1. 29. Nonattainment area—any geograph-

ic 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;

1. 30. Not classified area—any carbon

monoxide (CO) nonattainment area which EPA has not classified as either moderate or serious;

1. 31. Project—a highway project or transit

project;

1. 32. Protective finding—a determination

by EPA that a submitted control strategy implementation plan revision contains adopted control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements to the statutory provision for which the implementation plan revision was submitted, such as reasonable further progress or attainment;

1. 33. Recipient of funds designated under

Title 23 U.S.C. or the Federal Transit Laws— any agency at any level of state, county, city, or regional government that routinely receives Title 23 U.S.C. or Federal Transit Laws 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;

1. 34. Regionally significant project—a

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

1. 35. Safety margin—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;

1. 36. Standard—a national ambient air

quality standard;

1. 37. Statewide transportation improve-

ment program (STIP)—a staged, multiyear, intermodal program of transportation projects which is consistent with the statewide transportation plan and planning processes and metropolitan transportation plans, TIPs and processes, developed pursuant to 23 CFR part 450;

1. 38. Statewide transportation plan—the

official statewide, intermodal transportation plan that is developed through the statewide transportation planning process, pursuant to 23 CFR part 450;

1. 39. Transit—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;

1. 40. Transit project—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 must be defined inclusively enough to—

1. A. Connect logical termini and be of

sufficient length to address environmental matters on a broad scope;

1. B. Have independent utility or inde-

pendent significance, i.e., be a reasonable expenditure even if no additional transportation improvements in the area are made; and

1. C. Not restrict consideration of alter-

natives for other reasonably foreseeable transportation improvements;

1. 41. Transportation control measure

(TCM)—any measure that is specifically identified and committed to in the applicable implementation plan that is either one (1) of the types listed in section 108 of the CAA, or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the first sentence of this definition, vehicle technology-based, fuel-based, and maintenance-based measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of this rule;

1. 42. Transportation improvement pro-

gram (TIP)—a staged, multiyear, 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;

1. 43. Transportation plan—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;

1. 44. Transportation project—a highway

project or a transit project; and

1. 45. Written commitment—for the pur-

poses of this rule, 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 acknowledgement that the commitment is an enforceable obligation under the applicable implementation plan.

1. (2) Applicability.

   1. (A) Action Applicability.

      1. 1. Except as provided for in subsection

(2)(C) or section (25), conformity determinations are required for—

1. A. The adoption, acceptance, ap-

proval or support of transportation plans and transportation plan amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by a MPO or DOT;

1. B. The adoption, acceptance, approval

or support of TIPs and TIP amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by a MPO or DOT; and

1. C. The approval, funding, or imple-

mentation of FHWA/FTA projects.

1. 2. Conformity determinations are not

required under this rule for individual projects which are not FHWA/FTA projects. However, section (20) applies to such projects if they are regionally significant.

1. (B) Geographic Applicability. The provisions of this rule shall apply in the Franklin, Jefferson, St. Charles and St. Louis Counties and the City of St. Louis nonattainment area for transportation-related criteria pollutants for which the area is designated nonattainment.

   1. 1. The provisions of this rule apply with

respect to the emissions of the following criteria pollutants: ozone and carbon monoxide (CO) (The provisions of this rule shall apply in St. Louis City and that portion of St. Louis County extending north, south and west from the St. Louis City/County boundary to Interstate 270 for CO emissions).

1. 2. The provisions of this rule apply with

respect to emissions of the following precursor pollutants: volatile organic compounds (VOC) and nitrogen oxides (NOX) in ozone areas; and

1. 3. The provisions of this rule apply to

the Franklin, Jefferson, St. Charles and St. Louis Counties and the City of St. Louis nonattainment area for twenty (20) years from the date EPA 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 rule shall apply for more than twenty (20) years.

1. (C) Limitations.

   1. 1. Projects subject to this rule for which

the NEPA process and a conformity determination have been completed by DOT may proceed toward implementation without further conformity determinations unless more than three (3) years have elapsed since the most recent major step (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) occurred. 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, rightof-way acquisition, construction, or any combination of these phases. Specific to the St. Louis Metropolitan Area

1. 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 three (3) years have elapsed since the most recent major step to advance the project occurred.

1. (3) Priority. 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.

2. (4) Frequency of Conformity Determinations.

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

   2. (B) Frequency of Conformity Determinations for Transportation Plans.

      1. 1. Each new transportation plan must be

demonstrated to conform before the transportation plan is approved by the MPO or accepted by DOT.

1. 2. All transportation plan revisions must

be found to conform before the transportation plan revisions are approved by the MPO or accepted by DOT, unless the revision merely adds or deletes exempt projects listed in sections (25) and (26) and has been made in accordance with the notification provisions of subparagraph (5)(C)1.E. of this rule. The conformity determination must be based on the transportation plan and the revision taken as a whole.

1. 3. The MPO and DOT must determine

the conformity of the transportation plan no less frequently than every three (3) years. If more than three (3) years elapse after DOT’s conformity determination without the MPO and DOT determining conformity of the transportation plan, the existing conformity determination will lapse.

1. (C) Frequency of Conformity Determinations for Transportation Improvement Programs.

   1. 1. A new TIP must be demonstrated to

conform before the TIP is approved by the MPO or accepted by DOT. The conformity determination must be completed in accordance with paragraph (5)(A)1. of this rule.

1. 2. A TIP amendment requires a new

conformity determination for the entire TIP before the amendment is approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listed in section (25) or section (26) and has been made in accordance with the notification provisions of subparagraph (5)(C)1.E. of this rule. Any new conformity determination for a TIP amendment must be completed in accordance with paragraph (5)(A)1. of this rule.

1. 3. The MPO and DOT must determine

the conformity of the TIP no less frequently than every three (3) years. If more than three (3) years elapse after DOT’s conformity determination without the MPO and DOT determining conformity of the TIP, the existing conformity determination will lapse.

1. 4. After the MPO adopts a new or

revised transportation plan, conformity of the TIP must be redetermined by the MPO and DOT within six (6) months from the date of DOT’s conformity determination for the transportation plan, unless the new or revised plan merely adds or deletes exempt projects listed in sections (25) and (26) and has been made in accordance with the notification provisions of subparagraph (5)(C)1.E. of this rule. Otherwise, the existing conformity determination for the TIP will lapse.

1. (D) Projects. FHWA/FTA projects must be found to conform before they are adopted, accepted, approved, or funded. Conformity must be redetermined for any FHWA/FTA project if three (3) years have elapsed since the most recent major step to advance the project (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) occurred.

2. (E) Triggers for Transportation Plan and TIP Conformity Determinations. Conformity of existing transportation plans and TIPs must be redetermined within eighteen (18) months of the following, or the existing conformity determination will lapse, and no new project-level conformity determinations may be made until conformity of the transportation plan and TIP has been determined by the MPO and DOT—

   1. 1. November 24, 1993;
   2. 2. The date of the state’s initial submis-

sion to EPA of each control strategy implementation plan or maintenance plan establishing a motor vehicle emissions budget;

1. 3. EPA approval of a control strategy

implementation plan revision or maintenance plan which establishes or revises a motor vehicle emissions budget;

1. 4. EPA approval of an implementation

plan revision that adds, deletes, or changes TCMs; and

1. 5. EPA promulgation of an implementa-

tion plan which establishes or revises a motor 10 CSR 10-5

vehicle budget or adds, deletes, or changes TCMs.

1. (5) Consultation.

   1. (A) General. Procedures for interagency consultation (federal, state and local), resolution of conflicts, and public consultation are described in subsections (A) through (F) of this section. Public consultation procedures meet the requirements for public involvement in 23 CFR part 450.

      1. 1. MPOs and state departments of trans-

portation will provide reasonable opportunity for consultation with state air agencies, local air quality and transportation agencies, DOT, and EPA, including consultation on the issues described in paragraph (C)1. of this section, before making conformity determinations.

1. (B) Interagency Consultation Procedures— General Factors.

   1. 1. Representatives of the MPO, state and

local air quality planning agencies, state and local transportation agencies shall undertake an interagency consultation process in accordance with this section with each other and with local or regional offices of the EPA, FHWA and FTA on the development of the implementation plan, the list of TCMs in the applicable implementation plan, the unified planning work program under 23 CFR section 450.314, the transportation plan, the TIP, and any revisions to the preceding documents.

1. 2. The state air quality agency shall be

the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process as required by this section with respect to the development of the applicable implementation plans and control strategy implementation plan revisions and the list of TCMs in the applicable implementation plan. The MPO shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process as required by this section with respect to the development of the unified planning work program under 23 CFR section 450.314, the transportation plan, the TIP, and any amendments or revisions thereto. The MPO shall also be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process as required by this section with respect to any determinations of conformity under this rule for which the MPO is responsible.

1. 3. In addition to the lead agencies iden-

tified in paragraph (5)(B)2., other agencies entitled to participate in any interagency consultation process under this rule include:

1. A. The Illinois Department of

Transportation, the Missouri Department of Transportation, the Federal Highway Administration, the Federal Transit Administration, the U.S. Environmental Protection Agency, the Illinois Environmental Protection Agency and the Missouri Department of Natural Resources;

1. B. Local transportation agencies

through the appointment of one (1) representative from local transportation agency interests on the Illinois side of the St. Louis area and the appointment of one (1) representative from local transportation agency interests on the Missouri side of the St. Louis area. The MPO and the Illinois Department of Transportation shall jointly appoint the Illinois representative, and the MPO and Missouri Department of Transportation shall jointly appoint the Missouri representative;

1. C. Local air quality agencies through

the appointment of one (1) representative from each of the two (2) local air quality agencies. The MPO and the Missouri Department of Natural Resources shall jointly appoint the local air quality agency representatives; and

1. D. Local mass transit agencies

through the appointment of one (1) representative from local mass transit agency interests on the Illinois side of the St. Louis area and the appointment of one (1) representative from local mass transit agency interests on the Missouri side of the St. Louis area. The MPO and the Illinois Department of Transportation shall jointly appoint the Illinois representative, and the MPO and Missouri Department of Transportation shall jointly appoint the Missouri representative;

1. E. Nothing in this paragraph shall

preclude the authority of the lead agency listed in paragraph (5)(B)2. to involve additional agencies in the consultation process which are directly impacted by any project or action subject to this rule;

1. F. Representatives appointed under

subparagraphs (5)(B)3.B., C., D., or E. shall not come from an agency already represented as a consulting agency under this section.

1. 4. It shall be the responsibility of the

appropriate lead agency designated in paragraph (5)(B)2. to solicit early and continuing input from all other consulting agencies, to provide those agencies with all relevant information needed for meaningful input and, where appropriate, to assure policy-level contact with those agencies. The lead agency shall, at a minimum, provide opportunities for discussion and comment in accordance with the interagency consultation procedures detailed in this section. The lead agency shall consider the views of each other consulting agency prior to making a final decision, shall respond in writing to those views and shall assure that such views and response (or where appropriate a summary thereof) are made part of the record of any decision or action.

1. 5. It shall be the responsibility of each

agency listed in paragraph (5)(B)3. (other than the lead agency designated under paragraph (5)(B)2.) to confer with the lead agency and the other participants in the consultation process, to review and make relevant comment on all proposed and final documents and decisions in a timely manner and to attend consultation and decision meetings. To the extent requested by the lead agency or other agencies involved, or as required by other provisions of this rule, each agency shall provide timely 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 shall comply with any reasonable request to render such technical assistance to the lead agency as may be needed to support the development of the document or decision.

1. 6. For documents or decisions subject to

this rule for which the MPO is the designated lead agency, the MPO shall, through the regular meetings of its board of directors and committees, be the primary forum for discussion at the policy level. The MPO shall ensure that all consulting agencies are provided with opportunity to participate throughout the decision-making process including the early planning stages. The MPO shall modify or supplement its normal schedule of meetings, if needed, to provide adequate opportunity for discussion of the matters subject to this rule.

1. 7. It shall be the responsibility of the

lead agency designated under paragraph (5)(B)2. to initiate the consultation process by notifying other consulting agencies of the following:

1. A. The decision(s) or document(s) for

which consultation is being undertaken; and

1. B. The proposed planning or pro-

gramming process for the development of the decision(s) or document(s). The proposed planning or programming process shall include at a minimum:

1. (I) The roles and responsibilities of

each agency at each stage in the planning process, including technical as well as policy aspects;

1. (II) The organizational level of reg-

ular consultation;

1. (III) The proposed schedule of, or

process for convening, consultation meetings, including the process and assignment of responsibilities for selecting a chairperson and setting meeting agendas;

1. (IV) The process for circulating or

otherwise making available all relevant materials in a timely fashion at each stage in the consultation process, and in particular for circulating or otherwise making available drafts of proposed documents or decisions before formal adoption or publication;

1. (V) The process and assignment of

responsibility for maintaining an adequate record of the consultation process; and

1. (VI) The process for responding to

the significant comments of involved agencies;

1. C. The consultation planning and pro-

gramming process to be followed for each document or decision subject to this rule shall be determined by consensus among the consulting agencies and shall thereafter be binding on all parties until such time as it may be revised by consensus among the consulting agencies.

1. 8. All drafts and supporting materials

subject to consultation shall be provided at such level of detail as each consulting agency may need to determine its response. Any consulting agency may request, and the appropriate lead agency shall supply, supplemental information as is reasonably available for the consulting agency to determine its response.

1. 9. The time allowed at each stage in the

consultation process shall not be less than that specified by regulation or this rule, published by the lead agency in any document describing the consultation procedures to be followed under 23 CFR part 450, 40 CFR part 51 or this rule, or otherwise previously agreed by consensus of the consulting agencies. Where no such time has been specified, published or agreed to, the time shall be determined by consensus of the consulting agencies based upon the amount of material subject to consultation, the extent of prior informal or technical consultation and discussion, the nature of the decision to be made, and such other factors as are previously agreed by the consulting agencies. The time allowed for consultation shall be the same for all agencies being consulted, and any extension of time granted to one (1) agency shall also be allowed all other agencies.

1. 10. Determining the adequacy of consul-

tation opportunities.

1. A. Representatives of the consulting

agencies listed in paragraph (5)(B)3. shall meet once each calendar year for the purpose of reviewing the sequence and adequacy of the consultation planning and programming processes established or proposed under paragraph (5)(B)7. for each type of document Specific to the St. Louis Metropolitan Area

or decision. Responsibility for convening this meeting shall rest with the appropriate lead agency designated in paragraph (5)(B)2.

1. B. In any year (other than the first

after the adoption of this rule) in which there is an agreed upon consultation planning or programming process in effect and no consulting agency has requested any change to that process, the appropriate lead agency may propose that this process remain in effect. Upon notification of acceptance of this proposal by all consulting agencies, no further action by the lead agency shall be required and the meeting and review required under subparagraph (5)(B)10.A. need not take place for that year.

1. 11. The consultation planning and pro-

gramming processes proposed and agreed to under paragraph (5)(B)7. shall comply with the following general principles:

1. A. Consultation shall be held early in

the planning process, so as to facilitate sharing of information needed for meaningful input and to allow the consulting agencies to confer with the lead agency during the formative stages of developing any document or decision subject to this rule;

1. B. For conformity determinations for

transportation plan revisions or TIPs, the consultation process shall, at a minimum, specifically include opportunities for the consulting agencies to confer upon the analysis required to make conformity determinations. This consultation shall normally take place at the technical level, except to the extent agreed by consensus under paragraph (5)(B)10., and shall take place prior to the consideration of draft documents or conformity determinations by the MPO;

1. C. For state implementation plans,

the consultation process shall, at a minimum, specifically include opportunities for the consulting agencies to confer upon the motor vehicle emissions budget. This consultation shall take place at the technical and policy levels, except to the extent agreed by consensus under paragraph (5)(B)10., and shall take place prior to the consideration of the draft budget by the state air quality agency;

1. D. In addition to the requirements of

subparagraphs (5)(B)11.B. and C., if TCMs are to be considered in transportation plans, TIPs or state implementation plans, specific opportunities to consult regarding TCMs by air quality and transportation agencies must be provided prior to the consideration of the TCMs by the appropriate lead agency; and

1. E. Additional consultation opportuni-

ties must be provided prior to any final action being taken by any of the lead agencies defined in paragraph (5)(B)2. on any document or decision subject to this rule. Before taking formal action to approve any plan, program, document or other decision subject to this rule, the consulting agencies shall be given an opportunity to communicate their views in writing to the lead agency. The lead agency shall consider those views and respond in writing in a timely and appropriate manner prior to any final action. Such views and written response shall be made part of the record of the final decision or action. Opportunities for formal consulting agency comment may run concurrently with other public review time frames.

1. 12. Consultation on planning assump-

tions.

1. A. The MPO shall convene a meeting

of the consulting agencies listed in paragraph (5)(B)3. no less frequently than once each calendar year for the purpose of reviewing the planning, transportation and air quality assumptions, and models and other technical procedures in use or proposed to be used for the state implementation plan (SIP) motor vehicle emissions inventory, motor vehicle emissions budget, and conformity determinations. This meeting shall normally take place at the technical level except to the extent agreed by consensus under paragraph (5)(B)10.

1. B. In all years when it is intended to

determine the conformity of a transportation plan revision or TIP, the meeting required in subparagraph (5)(B)12.A. shall be held before the MPO commences the evaluation of projects submitted or proposed for inclusion in the transportation plan revision or TIP, and before the annual public meeting held in accordance with 23 CFR section 450.322(c). The MPO shall consider the views of all consulting agencies before making a decision on the latest planning assumptions to be used for conformity determinations. The state air quality agencies shall consider the views of all consulting agencies before making a decision on the latest planning assumptions to be used for developing the SIP motor vehicle emissions inventory, motor vehicle emissions budget and for estimating the emissions reductions associated with TCMs.

1. C. It shall be the responsibility of

each of the consulting agencies to advise the MPO of any pending changes to their planning assumptions or methods and procedures used to estimate travel, forecast travel demand, or estimate motor vehicle emissions. Where necessary the MPO shall convene meetings, additional to that required under subparagraph (5)(B)12.A., to share information and evaluate the potential impacts of any proposed changes in planning assumptions, methods or procedures and to exchange information regarding the timetable 10 CSR 10-5

and scope of any upcoming studies or analyses that may lead to future revision of planning assumptions, methods or procedures.

1. D. Whenever a change in air quality

or transportation planning assumptions, methods or procedures is proposed that may have a significant impact on the SIP motor vehicle emissions inventory, motor vehicle emissions budget or conformity determinations, the agency proposing the change shall provide the consulting agencies an opportunity to review the basis for the proposed change. All consulting agencies shall be given at least thirty (30) days to evaluate the impact of the proposed change prior to final action by the agency proposing the change. To the fullest extent practicable, the time frame for considering and evaluating proposed changes shall be coordinated with the procedures for consultation on planning assumptions in subparagraphs (5)(B)12.A.–C.

1. 13. A meeting that is scheduled or

required for another purpose may be used for the purposes of consultation if the consultation purpose is identified in the public notice for the meeting and all consulting agencies are notified in advance of the meeting.

1. 14. On any matter which is the subject

of consultation, no consulting agency may make a final decision or move to finally approve a document subject to this rule until the expiry of the time allowed for consultation and the completion of the process notified under paragraph (5)(B)7. Notwithstanding the previous sentence, any consulting agency may make a final decision or move to finally approve a document subject to this rule if final comments on the draft document or decision have been received from all other consulting agencies. The lead agency designated under paragraph (5)(B)2. shall, in making its decision, take account of all views expressed in response to consultation.

1. (C) Interagency Consultation Procedures— Specific Processes. Interagency consultation procedures shall also include the following specific processes:

   1. 1. An interagency consultation process

in accordance with subsection (5)(B) of this rule involving the MPO, state and local air quality planning agencies, state and local transportation agencies, the EPA and the DOT shall be undertaken for the following (except where otherwise provided, the MPO shall be responsible for initiating the consultation process):

1. A. Evaluating and choosing a model

(or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses;

1. B. Determining which minor arterials

and other transportation projects should be considered “regionally significant” for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP;

1. C. Evaluating whether projects other-

wise exempted from meeting the requirements of this rule under sections (25) and (26) should be treated as nonexempt in cases where potential adverse emissions impacts may exist for any reason;

1. D. Making a determination, required

by paragraph (13)(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 over other projects within their control. This 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;

1. E. Notification of transportation plan

or TIP revisions or amendments which merely add or delete exempt projects listed in section (25) or section (26). In any year when it is intended to prepare a transportation plan revision, TIP or TIP amendment that merely adds or deletes exempt projects, the MPO shall notify all consulting agencies in writing within seven (7) calendar days after taking action to approve such exempt projects. The notification shall include enough information about the exempt projects for the consulting agencies to determine their agreement or disagreement that the projects are exempt under section (25) or section (26) of this rule;

1. F. Determining whether a project is

considered to be included in the regional emissions analysis supporting the currently conforming TIP’s conformity determination, even if the project is not strictly included in the TIP for the purposes of MPO project selection or endorsement, and whether the project’s design concept and scope have not changed significantly from those which were included in the regional emissions analysis, or in a manner which would significantly impact use of the facility;

1. G. Advising on the horizon years to

be used for conformity determinations, in accordance with section (6) of this rule;

1. H. Advising whether the modeling

methods and functional relationships used in the model are consistent with acceptable professional practice and are reasonable for the purposes of emission estimation, as specified in section (21) of this rule;

1. I. Reviewing the models, databases

and other requirements specified in section (22) of this rule and advising if there are grounds for recommending to the EPA regional administrator that these models, databases or requirements are inappropriate. In such an event, the consulting agencies shall propose alternative methods to satisfy the requirements for conformity in accordance with section (22);

1. J. Determining what forecast of vehi-

cle miles traveled to use in establishing or tracking motor vehicle emissions budgets, developing transportation plans, TIPs or applicable implementation plans, or in making conformity determinations;

1. K. Determining whether the project

sponsor or the MPO has demonstrated that the requirements of sections (16)–(18) are satisfied without a particular mitigation or control measure, as provided in section (24); and

1. L. Developing a list of TCMs to be

included in the applicable implementation plan;

1. 2. An interagency consultation process

in accordance with subsection (5)(B) involving the MPO, state and local air quality planning agencies and state and local transportation agencies for the following (except where otherwise provided, the MPO shall be responsible for initiating the consultation process):

1. A. Evaluating events which will trig-

ger new conformity determinations in addition to those triggering events established in section (4). Any of the consulting agencies listed in paragraph (5)(B)3. may request that the MPO initiate the interagency consultation process to evaluate an event which should, in the opinion of the consulting agency, trigger a need for a conformity determination. The MPO shall initiate appropriate consultation with the other consulting agencies in response to such request, and shall notify the consulting agencies and the requesting agency in writing of its proposed action in response to this evaluation and consultation; and

1. B. Consulting on the procedures to be

followed in performing emissions analysis for transportation activities which cross the borders of the MPO’s region or the St. Louis nonattainment area or air basin;

1. 3. Consultation on nonfederal projects.

   1. A. An interagency consultation pro-

cess in accordance with subsection (5)(B) involving the MPO, state and local air quality agencies and state and local transportation agencies shall be undertaken 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 all those by recipients of funds designated under 23 U.S.C. or the Federal Transit Laws, are disclosed to the MPO on a regular basis, and to assure that any changes to those plans are immediately disclosed.

1. B. Notwithstanding the provisions of

subparagraph (5)(C)3.A., it shall be the responsibility of the sponsor of any such regionally significant project, and of any agency that becomes aware of any such project through applications for approval, permitting or funding, to disclose such project to the MPO in a timely manner. Such disclosure shall be made not later than the first occasion on which any of the following actions is sought: any policy board action necessary for the project to proceed, the issuance of administrative permits for the facility or for construction of the facility, the execution of a contract to design or construct the facility, the execution of any indebtedness for the facility, any final action of a board, commission or administrator authorizing or directing employees to proceed with design, permitting or construction of the project, or the execution of any contract to design or construct or any approval needed for any facility that is dependent on the completion of the regionally significant project.

1. C. Any such regionally significant

project that has not been disclosed to the MPO in a timely manner shall be deemed not to be included in the regional emissions analysis supporting the conformity determination for the TIP and shall not be consistent with the motor vehicle emissions budget in the applicable implementation plan, for the purposes of section (20) of this rule.

1. D. For the purposes of this section

and of section (20) of this rule, the phrase adopt or approve of a regionally significant project means the first time any action necessary to authorizing a project occurs, such as any policy board action necessary for the project to proceed, the issuance of administrative permits for the facility or for construction of the facility, the execution of a contract to construct the facility, any final action of a board, commission or administrator authorizing or directing employees to proceed with construction of the project, or any written decision or authorization from the MPO that the project may be adopted or approved;

1. 4. This interagency consultation process

involving the agencies specified in paragraph Specific to the St. Louis Metropolitan Area

(5)(B)3. shall be undertaken for assuming the location and design concept and scope of projects which are disclosed to the MPO as required by paragraph (5)(C)3. but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of section (21) of this rule. This process shall be initiated by the MPO;

1. 5. The MPO shall undertake an

on-going process of consultation with the agencies listed in paragraph (5)(B)3. for the design, schedule, and funding of research and data collection efforts and regional transportation model development by the MPO. This process shall, as far as practicable, be integrated with the cooperative development of the Unified Planning Work Program under 23 CFR section 450.314; and

1. 6. This process insures 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 section, including federal agencies.

1. (D) Record Keeping and Distribution of Final Documents.

   1. 1. It shall be the responsibility of the

lead agency designated under paragraph (5)(B)2. to maintain a complete and accurate record of all agreements, planning and programming processes, and consultation activities required under this rule and to make these documents available for public inspection upon request. 2.It shall be the affirmative responsibilities of the lead agency designed under paragraph (5)(B)2. to provide to the other consulting agencies copies of any final document or final decision subject to this rule within thirty (30) days of final action by the lead agency.

1. (E) Resolving Conflicts.

   1. 1. Conflicts among state agencies or

between state agencies and the MPO regarding a final action on any conformity determination subject to this rule shall be escalated to the governor if the conflict cannot be resolved by the heads of the involved agencies. 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.

1. 2. It shall be the responsibility of the

state air quality agency to provide timely notification to the MPO and other consulting agencies of any proposed conformity determination where the agency identifies a potential conflict which, if unresolved, would, in the opinion of the agency, justify escalation to the governor. To the extent that consultation is not otherwise required under this rule, the state air quality agency shall consult with the other agencies listed in paragraph (5)(B)3. in advance of escalating a potential conflict to the governor, and, if necessary, shall convene the meetings required under paragraph (5)(E)1. of this rule.

1. 3. When the MPO intends to make a

final determination of conformity for a transportation plan, plan revision, TIP or TIP amendment, the MPO shall first notify the director of the state air quality agency of its intention and include in that notification a written response to any comments submitted by the state air quality agency on the proposed conformity determination. Upon receipt of such notification (including the written response to any comments submitted by the state air quality agency), the state air quality agency shall have fourteen (14) calendar days in which to appeal a proposed determination of conformity to the governor. If the Missouri air quality agency appeals to the governor of Missouri, the final conformity determination will automatically become contingent upon concurrence of the governor of Missouri. If the Illinois air quality agency presents an appeal to the governor of Missouri regarding a conflict involving both Illinois and Missouri agencies or the MPO, the final conformity determination will automatically become contingent upon concurrence of both the governor of Missouri and the governor of Illinois. The state air quality agency shall provide notice of any appeal under this subsection to the MPO, the state transportation agency and the Illinois air quality agency. If neither state air quality agency appeals to the governor(s) within fourteen (14) days of receiving written notification, the MPO may proceed with the final conformity determination.

1. 4. The governor may delegate the role of

hearing any such appeal under this subsection and of deciding whether to concur in the conformity determination to another official or agency within the state, but not to the head or staff of the state air quality agency or any local air quality agency, the state department of transportation, a state transportation commission or board, any agency that has responsibility for only one (1) of these functions, or an MPO.

1. (F) Interagency Consultation Procedures— Public Involvement.

   1. 1. The MPO shall establish and imple-

ment a proactive public involvement process which provides opportunity for public review and comment prior to taking formal action on a conformity determination for a transporta- 10 CSR 10-5

tion plan revision or a TIP. This process shall be consistent with the requirements of 23 CFR part 450, including sections 450.316(b)(1), 450.322(c) and 450.324(c).

1. 2. The public involvement process may

be fully integrated with the public involvement process for transportation plans and TIPs publicized under 23 CFR section 450.316(b)(1)(i) or may be established independently. In the case of an independent procedure, there shall be a minimum public comment period of forty-five (45) days before the public involvement process is initially adopted or revised. In either case, the following criteria shall apply:

1. A. The MPO shall provide timely

information about the conformity process to interested parties and segments of the community potentially affected by conformity determinations or by programs and policies proposed to ensure conformity, and to the public in general;

1. B. The public shall be assured reason-

able 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 these requirements and those of 23 CFR 450.316(b);

1. C. The MPO shall ensure adequate

public notice of public involvement activities and shall allow time for public review and comment at key decision points including, but not limited to, any proposed determination of conformity;

1. D. The MPO shall demonstrate ex-

plicit consideration and response to public input received during the conformity determination process. When significant written and oral comments are received on a proposed determination of conformity as a result of the public involvement process, a summary, analysis and report on the disposition of comments shall be made part of the final conformity determination;

1. E. The MPO shall specifically ad-

dress 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; and

1. F. The MPO will, when imposing any

charges for public inspections and copying, be consistent with the fee schedule contained in 49 CFR 7.95.

1. 3. The MPO and other agencies

involved in conformity determinations shall also provide opportunity for public involvement in conformity determinations for projects to the extent otherwise required by law.

1. 4. At such times as the MPO proposes

to adopt or revise the public involvement process under paragraph (5)(F)2., the MPO shall consult with the agencies listed in paragraph (5)(B)3. on that public involvement process as it relates to conformity determinations. A minimum of forty-five (45) days shall be allowed for these agencies to respond. The MPO shall consider all comments made by the consulting agencies and shall provide each agency with a written statement of its response before moving to adopt the revised public involvement process.

1. 5. In the first year after the adoption of

this rule, if there is an approved public involvement process in force and the MPO has not proposed to revise that process, any consulting agency may request such a revision. The MPO shall consider this request and provide a written statement of its response to the requesting agency and other interested parties. (6) Content of Transportation Plans.

1. (A) Transportation Plans Adopted after January 1, 1997, in Serious, Severe, or Extreme Ozone Nonattainment Areas and in Serious Carbon Monoxide Nonattainment Areas. If the metropolitan planning area contains and urbanized area population greater than two hundred thousand (>200,000), the transportation plan must specifically describe the transportation system envisioned for certain future years which shall be called horizon years.

   1. 1. The agency or organization develop-

ing the transportation plan, after consultation in accordance with section (5), may choose any years to be horizon years, subject to the following restrictions:

1. A. Horizon years may be no more

than ten (10) years apart;

1. B. The first horizon year may be no

more than ten (10) years from the base year used to validate the transportation demand planning model;

1. C. If the attainment year is in the time

span of the transportation plan, the attainment year must be a horizon year; and

1. D. The last horizon year must be the

last year of the transportation plan’s forecast period.

1. 2. For these horizon years—

   1. A. The transportation plan shall quan-

tify and document the demographic and employment factors influencing expected transportation demand, including land use forecasts, in accordance with implementation plan provisions and the consultation requirements specified by section (5);

1. B. The highway and transit system

shall be described in terms of the regionally significant additions or modifications to the existing transportation network which the transportation plan envisions to be operational in the horizon years. Additions and modifications to the highway network shall be sufficiently identified to indicate intersections with existing regionally significant facilities, and to determine their effect on route options between transportation analysis zones. Each added or modified highway segment shall also be sufficiently identified in terms of its design concept and design scope to allow modeling of travel times under various traffic volumes, consistent with the modeling methods for area-wide transportation analysis in use by the MPO. Transit facilities, equipment, and services envisioned for the future shall be identified in terms of design concept, design scope, and operating policies that are sufficient for modeling of their transit ridership. Additions and modifications to the transportation network shall be described sufficiently to show that there is a reasonable relationship between expected land use and the envisioned transportation system; and

1. C. Other future transportation poli-

cies, requirements, services, and activities, including intermodal activities, shall be described.

1. (B) Moderate Areas Reclassified to Serious. Ozone or CO nonattainment areas which are reclassified from moderate to serious and have an urbanized population greater than two hundred thousand (>200,000), must meet the requirements of subsection (6)(A) of this rule within two (2) years from the date of reclassification.
2. (C) Transportation Plans for Other Areas. Transportation plans for other areas must meet the requirements of subsection (6)(A) of this rule at least to the extent it has been the previous practice of the MPO to prepare plans which meet those requirements. Otherwise, transportation plans must describe the transportation system envisioned for the future must be sufficiently described within the transportation plans so that a conformity determination can be made according to the criteria and procedures of sections (9)–(18).
3. (D) Savings. The requirements of this section supplement other requirements of applicable law or regulation governing the format or content of transportation plans.

1. (7) Relationship of Transportation Plan and TIP Conformity With the NEPA Process. The degree of specificity required in the transportation plan and the specific travel network assumed for air quality modeling do not preclude the consideration of alternatives in the NEPA process or other project development studies. Should the NEPA process result in a project with design concept and scope significantly different from that in the transportation plan or TIP, the project must meet the criteria in sections (9)–(18) for projects not from a TIP before NEPA process completion.
2. (8) Fiscal Constraints for Transportation Plans and TIPs. Transportation plans and TIPs must be fiscally constrained consistent with DOT’s metropolitan planning regulations at 23 CFR part 450 as in effect on the date of adoption of this rule in order to be found in conformity. The determination that a transportation plan or TIP is fiscally constrained shall be subject to consultation in accordance with section (5) of this rule.

3. (9) Criteria and Procedures for Determining Conformity of Transportation Plans, Programs, and Projects—General.

   1. (A) In order for each transportation plan, program, and FHWA/FTA project to be found to conform, the MPO and DOT must demonstrate that the applicable criteria and procedures in sections (10)–(18) as listed in Table 1 in subsection (9)(B) of this rule are satisfied, and the MPO and DOT must comply with all applicable conformity requirements of implementation plans and this rule and of court orders for the area which pertain specifically to conformity. The criteria for making conformity determinations differ based on the action under review (transportation plans, TIPs, and FHWA/FTA projects), the relevant pollutant(s), and the status of the implementation plan.
   2. (B) The following table indicates the criteria and procedures in sections (10)–(18) which apply for transportation plans, TIPs, and FHWA/FTA projects. Subsection (C) of this section explains when budget and emission reduction tests are required for ozone nonattainment and maintenance areas. Subsection (D) of this section explains when budget and emission reduction tests are required for CO nonattainment and maintenance areas. Table 1 follows: Table 1—Conformity Criteria

All Actions at all times— Section (10) Latest planning assumptions Section (11) Latest emissions model Section (12) Consultation

Transportation Plan— Subsection (13)(B) TCMs Section (17) or Section (18) Emissions budget or Emission reduction TIP— Subsection (13)(C) TCMs Section (17) or Section (18) Emissions budget or Emission reduction Specific to the St. Louis Metropolitan Area

Project (From a Conforming Plan and TIP)— Section (14) Currently conforming plan and TIP Section (15) Project from a conforming plan and TIP Section (16) CO and PM10 hot spots. Project (Not From a Conforming Plan and TIP)— Subsection (13)(D) TCMs Section (14) Currently conforming plan and TIP Section (16) CO and PM10 hot spots Section (17) or Section (18) Emissions budget or Emission reduction

1. (C) Ozone Nonattainment and Maintenance Areas. In addition to the criteria listed in Table 1 in subsection (B) of this section that are required to be satisfied at all times, in ozone nonattainment and maintenance areas conformity determinations must include a demonstration that the budget and/or emission reduction tests are satisfied as described in the following:

   1. 1. In ozone nonattainment and mainte-

nance areas the budget test must be satisfied as required by section (17) for conformity determinations made—

1. A. Forty-five (45) days after a control

strategy implementation plan revision or maintenance plan has been submitted to EPA, unless EPA has declared the motor vehicle emissions budget inadequate for transportation conformity purposes; or

1. B. After EPA has declared that the

motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan is adequate for transportation conformity purposes.

1. 2. In ozone nonattainment areas that are

required to submit a control strategy implementation plan revision (usually moderate and above areas), the emission reduction tests must be satisfied as required by section (18) for conformity determinations made—

1. A. During the first forty-five (45)

days after a control strategy implementation plan revision or maintenance plan has been submitted to EPA, unless EPA has declared a motor vehicle emissions budget adequate for transportation conformity purposes; or

1. B. If EPA has declared the motor

vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan inadequate for transportation conformity purposes, and there is no previously established motor vehicle emissions budget in the approved implementation plan or a previously submitted control strategy implementation plan revision or maintenance plan.

1. 3. An ozone nonattainment area must

satisfy the emission reduction test for NOx, as required by section (18), if the implementation plan or plan submission that is applicable for the purposes of conformity determinations is a fifteen percent (15%) plan or Phase I attainment demonstration that does not include a motor vehicle emissions budget for NOx. The implementation plan will be considered to establish a motor vehicle emissions budget for NOx if the implementation plan or plan submission contains an explicit NOx motor vehicle emissions budget that is intended to act as a ceiling on future NOx emissions, and the NOx motor vehicle emissions budget is a net reduction from NOx emissions levels in 1990.

1. 4. Ozone nonattainment areas that have

not submitted a maintenance plan and that are not required to submit a control strategy implementation plan revision (usually marginal and below areas) must satisfy one of the following requirements:

1. A. The emission reduction tests

required by section (18); or

1. B. The state shall submit to EPA an

implementation plan revision that contains motor vehicle emissions budget(s) and an attainment demonstration, and the budget test required by section (17) must be satisfied using the submitted motor vehicle emissions budget(s) (as described in paragraph (C)1. of this section).

1. 5. Notwithstanding paragraphs (C)1.

and (C)2. of this section, moderate and above ozone nonattainment areas with three (3) years of clean data that have not submitted a maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and attainment demonstration requirements must satisfy one of the following requirements:

1. A. The emission reduction tests as

required by section (18);

1. B. The budget test as required by sec-

tion (17), using the motor vehicle emissions budgets in the submitted control strategy implementation plan (subject to the timing requirements of paragraph (C)1. of this section); or

1. C. The budget test as required by sec-

tion (17), using the motor vehicle emissions of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are established by the EPA rulemaking that determines that the area has clean data.

1. (D) CO nonattainment and maintenance areas. In addition to the criteria listed in Table 1 in subsection (B) of this section that are required to be satisfied at all times, in CO 10 CSR 10-5

nonattainment and maintenance areas conformity determinations must include a demonstration that the hot spot, budget and/or emission reduction tests are satisfied as described in the following:

1. 1. FHWA/FTA projects in CO nonat-

tainment or maintenance areas must satisfy the hot spot test required by section (16) at all times. Until a CO attainment demonstration or maintenance plan is approved by EPA, FHWA/FTA projects must also satisfy the hot spot test required by subsection (16)(B).

1. 2. In CO nonattainment and mainte-

nance areas the budget test must be satisfied as required by section (17) for conformity determinations made—

1. A. Forty-five (45) days after a control

strategy implementation plan revision or maintenance plan has been submitted to EPA, unless EPA has declared the motor vehicle emissions budget inadequate for transportation conformity purposes; or

1. B. After EPA has declared that the

motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan is adequate for transportation conformity purposes.

1. 3. Except as provided in paragraph

(D)4. of this section, in CO nonattainment areas the emission reduction tests must be satisfied as required by section (18) for conformity determinations made—

1. A. During the first forty-five (45)

days after a control strategy implementation plan revision or maintenance plan has been submitted to EPA, unless EPA has declared a motor vehicle emissions budget adequate for transportation conformity purposes; or

1. B. If EPA has declared the motor

vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan inadequate for transportation conformity purposes, and there is no previously established motor vehicle emissions budget in the approved implementation plan or a previously submitted control strategy implementation plan revision or maintenance plan.

1. 4. CO nonattainment areas that have not

submitted a maintenance plan and that are not required to submit an attainment demonstration (e.g., moderate CO areas with a design value of 12.7 ppm or less or not classified CO areas) must satisfy one of the following requirements:

1. A. The emissions reduction tests

required by section (18); or

1. B. The state shall submit to EPA an

implementation plan revision that contains motor vehicle emissions budget(s) and an attainment demonstration, and the budget test required by section (17) must be satisfied using the submitted motor vehicle emissions budget(s) (as described in paragraph (D)2. of this section).

1. (10) Criteria and Procedures—Latest Planning Assumptions.

   1. (A) The conformity determination, with respect to all other applicable criteria in sections (11)–(18), must be based upon the most recent planning assumptions in force at the time of the conformity determination. The conformity determination must satisfy the requirements of subsections (10)(B)–(F).
   2. (B) Assumptions (including, but not limited to, vehicle miles traveled per capita or per household or per vehicle, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, and the geographic distribution of population growth) must be derived from the estimates of current and future population, employment, travel, and congestion most recently developed by the MPO or other agency authorized to make such estimates and approved by the MPO. The conformity determination must also be based on the latest assumptions about current and future background concentrations. Any revisions to these estimates used as part of the conformity determination, including projected shifts in geographic location or level of population, employment, travel, and congestion, must be approved by the MPO, and shall be subject to consultation in accordance with section (5).
   3. (C) The conformity determination for each transportation plan and TIP must discuss how transit operating policies (including fares and service levels) and assumed transit ridership have changed since the previous conformity determination.
   4. (D) The conformity determination must include reasonable assumptions about transit service and increases in transit fares and road and bridge tolls over time.
   5. (E) The conformity determination must use the latest existing information regarding the effectiveness of the TCMs and other implementation plan measures which have already been implemented.
   6. (F) Key assumptions shall be specified and included in the draft documents and supporting materials used for the interagency and public consultation required by section (5).

2. (11) Criteria and Procedures—Latest Emissions Model.

   1. (A) The conformity determination must be based on the latest emission estimation model available. This criterion is satisfied if the most current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of implementation plans in that state or area is used for the conformity analysis.

   2. (B) EPA will consult with DOT to establish a grace period following the specification of any new model.

      1. 1. The grace period will be no less than

three (3) months and no more than twentyfour (24) months after notice of availability is published in the Federal Register.

1. 2. The length of the grace period will

depend on the degree of change in the model and the scope of re-planning likely to be necessary by MPOs in order to assure conformity. If the grace period will be longer than three (3) months, EPA will announce the appropriate grace period in the Federal Register.

1. (C) Transportation plan and TIP conformity analyses for which the emissions analysis was begun during the grace period or before the Federal Register notice of availability of the latest emission model may continue to use the previous version of the model. Conformity determinations for projects may also be based on the previous model if the analysis was begun during the grace period or before the Federal Register notice of availability, and if the final environmental document for the project is issued no more than three (3) years after the issuance of the draft environmental document.

1. (12) Criteria and Procedures—Consultation. Conformity must be determined according to the consultation procedures in this rule and in the applicable implementation plan, and according to the public involvement procedures established in compliance with 23 CFR part 450. Until the implementation plan is fully approved by EPA, the conformity determination must be made according to paragraph (5)(A)2. and subsection (5)(E) and the requirements of 23 CFR part 450.

2. (13) Criteria and Procedures—Timely Implementation of TCMs.

   1. (A) The transportation plan, TIP, or any FHWA/FTA project which is not from a conforming plan and TIP must provide for the timely implementation of TCMs from the applicable implementation plan.

   2. (B) For transportation plans, this criterion is satisfied if the following two (2) conditions are met:

      1. 1. The transportation plan, in describing

the envisioned future transportation system, provides for the timely completion or implementation of all TCMs in the applicable implementation plan which are eligible for funding under Title 23 U.S.C. or the Federal Transit Laws, consistent with schedules included in the applicable implementation plan; and

1. 2. Nothing in the transportation plan

interferes with the implementation of any TCM in the applicable implementation plan.

1. (C) For TIPs, this criterion is satisfied if the following conditions are met:

   1. 1. An examination of the specific steps

and funding source(s) needed to fully implement each TCM indicates that TCMs which are eligible for funding under Title 23 U.S.C. or the Federal Transit Laws, are on or ahead of the schedule established in the applicable implementation plan, or, if such TCMs are behind the schedule established in the applicable implementation plan, the MPO and DOT have determined that past obstacles to implementation of the TCMs have been identified and have been or are being overcome, and that all state and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding of TCMs over other projects within their control, including projects in locations outside the nonattainment or maintenance area.

1. 2. If TCMs in the applicable implemen-

tation plan have previously been programmed for federal funding but the funds have not been obligated and the TCMs are behind the schedule in the implementation plan, then the TIP cannot be found to conform if the funds intended for those TCMs are reallocated to projects in the TIP other than TCMs, or if there are no other TCMs in the TIP, if the funds are reallocated to projects in the TIP other than projects which are eligible for federal funding intended for air quality improvement projects, e.g., the Congestion Mitigation and Air Quality Improvement Program; and

1. 3. Nothing in the TIP may interfere with

the implementation of any TCM in the applicable implementation plan.

1. (D) For FHWA/FTA projects which are not from a conforming transportation plan and TIP, this criterion is satisfied if the project does not interfere with the implementation of any TCM in the applicable implementation plan.

1. (14) Criteria and Procedures—Currently Conforming Transportation Plan and TIP. There must be a currently conforming transportation plan and currently conforming TIP at the time of project approval.

   1. (A) Only one (1) conforming transportation plan or TIP may exist in an area at any time; conformity determinations of a previous transportation plan or TIP expire once the current plan or TIP is found to conform by DOT. The conformity determination on a Specific to the St. Louis Metropolitan Area

transportation plan or TIP will also lapse if conformity is not determined according to the frequency requirements specified in section (4) of this rule.

1. (B) This criterion is not required to be satisfied at the time of project approval for a TCM specifically included in the applicable implementation plan, provided that all other relevant criteria of this subsection are satisfied.

1. (15) Criteria and Procedures—Projects From a Plan and TIP.

   1. (A) The project must come from a conforming plan and program. If this criterion is not satisfied, the project must satisfy all criteria in Table 1 of subsection (9)(B) for a project not from a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan if it meets the requirements of subsection (15)(B) of this rule and from a conforming program if it meets the requirements of subsection (15)(C) of this rule. Special provisions for TCMs in an applicable implementation plan are provided in subsection (15)(D) of this rule.

   2. (B) A project is considered to be from a conforming transportation plan if one (1) of the following conditions applies:

      1. 1. For projects which are required to be

identified in the transportation plan in order to satisfy section (6) Content of Transportation Plans of this rule, the project is specifically included in the conforming transportation plan and the project’s design concept and scope have not changed significantly from those which were described in the transportation plan, or in a manner which would significantly impact use of the facility; or

1. 2. For projects which are not required to

be specifically identified in the transportation plan, the project is identified in the conforming transportation plan, or is consistent with the policies and purpose of the transportation plan and will not interfere with other projects specifically included in the transportation plan.

1. (C) A project is considered to be from a conforming program if the following conditions are met:

   1. 1. The project is included in the con-

forming TIP and the design concept and scope of the project were adequate at the time of the TIP conformity determination to determine its contribution to the TIP’s regional emissions, and the project design concept and scope have not changed significantly from those which were described in the TIP; and

1. 2. If the TIP describes a project design

concept and scope which includes projectlevel emissions mitigation or control measures, written commitments to implement such measures must be obtained from the project sponsor and/or operator as required by subsection (24)(A) in order for the project to be considered from a conforming program. Any change in these mitigation or control measures that would significantly reduce their effectiveness constitutes a change in the design concept and scope of the project.

1. (D) TCMs. This criterion is not required to be satisfied for TCMs specifically included in an applicable implementation plan.

1. (16) Criteria and Procedures—Localized CO Violations (Hot Spots).

   1. (A) This subsection applies at all times. The FHWA/FTA project must not cause or contribute to any new localized CO violations or increase the frequency or severity of any existing CO violations in CO nonattainment and maintenance areas. This criterion is satisfied if it is demonstrated that 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. The demonstration must be performed according to the consultation requirements of subparagraph (5)(C)1.A. and the methodology requirements of section (22).
   2. (B) This subsection applies for CO nonattainment areas as described in paragraph (9)(D)1. Each FHWA/FTA 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 criteria is satisfied with respect to existing localized CO violations if it is demonstrated that existing localized CO violations will be eliminated or reduced in severity and number as a result of the project. The demonstration must be performed according to the consultation requirements of subparagraph (5)(C)1.A. and the methodology requirements of section (22).

2. (17) Criteria and Procedures—Motor Vehicle Emissions Budget.

   1. (A) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission). This criterion applies as described in subsection (9)(C). This criterion is satisfied if it is demonstrated that emissions of the pollutants or pollutant precursors described in subsection (C) of this section are less than or equal to the motor vehicle emissions budget(s) established in the applicable implementation plan or implementation plan submission. 10 CSR 10-5

   2. (B) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for which the applicable (and/or submitted) implementation plan specifically establishes motor vehicle emissions budget(s), for the last year of the transportation plan’s forecast period, and for any intermediate years as necessary so that the years for which consistency is demonstrated are no more than ten (10) years apart, as follows:

      1. 1. Until a maintenance plan is submit-

ted—

1. A. Emissions in each year (such as

milestone years and the attainment year) for which the control strategy implementation plan revision establishes motor vehicle emissions budget(s) must be less than or equal to that year’s motor vehicle emissions budget(s); and

1. B. Emissions in years for which no

motor vehicle emissions budget(s) are specifically established must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year. For example, emissions in years after the attainment year for which the implementation plan does not establish a budget must be less than or equal to the motor vehicle emissions budget(s) for the attainment year.

1. 2. When a maintenance plan has been

submitted—

1. A. Emissions must be less than or

equal to the motor vehicle emissions budget(s) established for the last year of the maintenance plan, and for any other years for which the maintenance plan establishes motor vehicle emissions budgets. If the maintenance plan does not establish motor vehicle emissions budgets for any years other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissions budget(s) must be accompanied by a qualitative finding that there are no factors which would cause or contribute to a new violation or exacerbate an existing violation in the years before the last year of the maintenance plan. The interagency consultation process required by section (5) shall determine what must be considered in order to make such a finding;

1. B. For years after the last year of the

maintenance plan, emissions must be less than or equal to the maintenance plan’s motor vehicle emissions budget(s) for the last year of the maintenance plan; and

1. C. If an approved control strategy

implementation plan has established motor vehicle emissions budgets for years in the time frame of the transportation plan, emissions in these years must be less than or equal to the control strategy implementation plan’s motor vehicle emissions budget(s) for these years.

1. (C) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant or pollutant precursor in subsection (2)(B) for which the area is in nonattainment or maintenance and for which the applicable implementation plan (or implementation plan submission) establishes a motor vehicle emissions budget.

2. (D) Consistency with the motor vehicle emissions budget(s) must be demonstrated by including emissions from the entire transportation system, including all regionally significant projects contained in the transportation plan and all other regionally significant highway and transit projects expected in the nonattainment or maintenance area in the time frame of the transportation plan.

   1. 1. Consistency with the motor vehicle

emissions budget(s) must be demonstrated with a regional emissions analysis that meets the requirements of section (21) and subparagraph (5)(C)1.A.

1. 2. The regional emissions analysis may

be performed for any years in the time frame of the transportation plan provided they are not more than ten (10) years apart and provided the analysis is performed for the attainment year (if it is in the time frame of the transportation plan) and the last year of the plan’s forecast period. Emissions in years for which consistency with motor vehicle emissions budgets must be demonstrated, as required in subsection (B) of this section, may be determined by interpolating between the years for which the regional emissions analysis is performed.

1. (E) Motor Vehicle Emissions Budgets in Submitted Control Strategy Implementation Plan Revisions and Submitted Maintenance Plans.

   1. 1. Consistency with the motor vehicle

emissions budgets in submitted control strategy implementation plan revisions or maintenance plans must be demonstrated if EPA has declared the motor vehicle emissions budget(s) adequate for transportation conformity purposes, or beginning forty-five (45) days after the control strategy implementation plan revision or maintenance plan has been submitted (unless EPA has declared the motor vehicle emissions budget(s) inadequate for transportation conformity purposes). However, submitted implementation plans do not supercede the motor vehicle emissions budgets in approved implementation plans for the period of years addressed by the approved implementation plan.

1. 2. If EPA has declared an implementa-

tion plan submission’s motor vehicle emissions budget(s) inadequate for transportation conformity purposes, the inadequate budget(s) shall not be used to satisfy the requirements of this section. Consistency with the previously established motor vehicle emissions budget(s) must be demonstrated. If there are no previous approved implementation plans or implementation plan submissions with motor vehicle emissions budgets, the emission reduction tests required by section (18) must be satisfied.

1. 3. If EPA declares an implementation

plan submission’s motor vehicle emissions budget(s) inadequate for transportation conformity purposes more than forty-five (45) days after its submission to EPA, and conformity of a transportation plan or TIP has already been determined by DOT using the budget(s), the conformity determination will remain valid. Projects included in that transportation plan or TIP could still satisfy sections (14) and (15), which require a currently conforming transportation plan and TIP to be in place at the time of a project’s conformity determination and that projects come from a conforming transportation plan and TIP.

1. 4. EPA will not find a motor vehicle

emissions budget in a submitted control strategy implementation plan revision or maintenance plan to be adequate for transportation conformity purposes unless the following minimum criteria are satisfied:

1. A. The submitted control strategy

implementation plan revision or maintenance plan was endorsed by the governor (or his or her designee) and was subject to a state public hearing;

1. B. Before the control strategy imple-

mentation plan or maintenance plan was submitted to EPA, consultation among federal, state, and local agencies occurred; full implementation plan documentation was provided to EPA; and EPA’s stated concerns, if any, were addressed;

1. C. The motor vehicle emissions bud-

get(s) is clearly identified and precisely quantified;

1. D. The motor vehicle emissions bud-

get(s), when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given implementation plan submission);

1. E. The motor vehicle emissions bud-

get(s) is consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy implementation plan revision or maintenance plan; and

1. F. Revisions to previously submitted

control strategy implementation plans or maintenance plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins (see section (1) for definition); and reasons for the changes (including the basis for any changes related to emission factors or estimates of vehicle miles traveled).

1. 5. Before determining the adequacy of a

submitted motor vehicle emissions budget, EPA will review the state’s compilation of public comments and response to comments that are required to be submitted with any implementation plan. EPA will document its consideration of such comments and responses in a letter to the state indicating the adequacy of the submitted motor vehicle emissions budget.

1. 6. When the motor vehicle emissions

budget(s) used to satisfy the requirements of this section are established by an implementation plan submittal that has not yet been approved or disapproved by EPA, the MPO and DOT’s conformity determinations will be deemed to be a statement that the MPO and DOT are not aware of any information that would indicate that emissions consistent with the motor vehicle emissions budget will cause or contribute to any new violation of any standard; increase the frequency or severity of any existing violation of any standard; or delay timely attainment of any standard or any required interim emission reductions or other milestones.

1. (18) Criteria and Procedures—Emission Reductions in Areas without Motor Vehicle Emissions Budgets.

   1. (A) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must contribute to emissions reductions. This criterion applies as described in subsection (9)(C). It applies to the net effect of the action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) on motor vehicle emissions from the entire transportation system.

   2. (B) This criterion may be met in moderate and above ozone nonattainment areas that are subject to the reasonable further progress requirements of CAA section 182(b)(1) and in moderate with design value greater than 12.7 ppm and serious CO nonattainment areas if a regional emissions analysis that satisfies the requirements of section (21) and subsections (E) through (H) of this section demonstrates that for each analysis year and for each of the pollutants described in subsection (D) of this section—

      1. 1. The emissions predicted in the

“Action” scenario are less than the emissions Specific to the St. Louis Metropolitan Area

predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; and

1. 2. The emissions predicted in the

“Action” scenario are lower than 1990 emissions by any nonzero amount.

1. (C) This criterion may be met in PM10 and NO2 nonattainment areas; marginal and below ozone nonattainment areas and other ozone nonattainment areas that are not subject to the reasonable further progress requirements of CAA section 182(b)(1); and moderate with design value less than 12.7 ppm and below CO nonattainment areas if a regional emissions analysis that satisfies the requirements of section (21) and subsections

1. (E) and (F) of this section demonstrates that for each analysis year and for each of the pollutants described in subsection (D) of this section, one (1) of the following requirements is met:

   1. 1. The emissions predicted in the

“Action” scenario are less than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or

1. 2. The emissions predicted in the

“Action” scenario are not greater than baseline emissions. Baseline emissions are those estimated to have occurred during calendar year 1990, unless a conformity plan defines the baseline emissions for a PM10 area to be those occurring in a different calendar year for which a baseline emissions inventory was developed for the purpose of developing a control strategy implementation plan.

1. (D) Pollutants. The regional emissions analysis must be performed for the following pollutants:

   1. 1. VOC in ozone areas;
   2. 2. NOx in ozone areas, unless the EPA

administrator determines that additional reductions of NOx would not contribute to attainment;

1. 3. CO in CO areas;
2. 4. PM10 in PM10 areas;
3. 5. Transportation-related precursors of

PM10 in PM10 nonattainment and maintenance areas if the EPA regional administrator or the director of the state air agency has made a finding that such precursor emissions from within the area are a significant contributor to the PM10 nonattainment problem and has so notified the MPO and DOT; and

1. 6. NOx in NO2 areas.
2. (E) Analysis years. The regional emissions analysis must be performed for analysis years that are no more than ten (10) years apart. The first analysis year must be no more than five (5) years beyond the year in which the conformity determination is being made. The last year of transportation plan’s forecast period must also be an analysis year.
3. (F) “Baseline” scenario. The regional emissions analysis required by subsections

1. (B) and (C) of this section must estimate the emissions that would result from the “Baseline” scenario in each analysis year. The “Baseline” scenario must be defined for each of the analysis years. The “Baseline” scenario is the future transportation system that will result from current programs, including the following (except that exempt projects listed in section (25) and projects exempt from regional emissions analysis as listed in section (26) need not be explicitly considered):

   1. 1. All in-place regionally significant

highway and transit facilities, services and activities;

1. 2. All ongoing travel demand manage-

ment or transportation system management activities; and

1. 3. Completion of all regionally signifi-

cant projects, regardless of funding source, which are currently under construction or are undergoing right-of-way acquisition (except for hardship acquisition and protective buying); come from the first year of the previously conforming transportation plan and/or TIP; or have completed the NEPA process.

1. (G) “Action” scenario. The regional

emissions analysis required by subsections (B) and (C) of this section must estimate the emissions that would result from the “Action” scenario in each analysis year. The “Action” scenario must be defined for each of the analysis years. The “Action” scenario is the transportation system that would result from the implementation of the proposed action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) and all other expected regionally significant projects in the nonattainment area. The “Action” scenario must include the following (except that exempt projects listed in section (25) and projects exempt from regional emissions analysis as listed in section (26) need not be explicitly considered):

1. 1. All facilities, services, and activities

in the “Baseline” scenario;

1. 2. Completion of all TCMs and region-

ally significant projects (including facilities, services, and activities) specifically identified in the proposed transportation plan which will be operational or in effect in the analysis year, except that regulatory TCMs may not be assumed to begin at a future time unless the regulation is already adopted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan; 10 CSR 10-5

1. 3. All travel demand management pro-

grams and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any federal funding or approval, which have been fully adopted and/or funded by the enforcing jurisdiction or sponsoring agency since the last conformity determination;

1. 4. The incremental effects of any travel

demand management programs and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any federal funding or approval, which were adopted and/or funded prior to the date of the last conformity determination, but which have been modified since then to be more stringent or effective;

1. 5. Completion of all expected regionally

significant highway and transit projects which are not from a conforming transportation plan and TIP; and

1. 6. Completion of all expected regionally

significant non-FHWA/FTA highway and transit projects that have clear funding sources and commitments leading toward their implementation and completion by the analysis year.

1. (H) Projects not from a conforming transportation plan and TIP. For the regional emissions analysis required by subsections

1. (B) and (C) of this section, if the project which is not from a conforming transportation plan and TIP is a modification of a project currently in the plan or TIP, the “Baseline” scenario must include the project with its original design concept and scope, and the “Action” scenario must include the project with its new design concept and scope.

2. (19) Consequences of Controlled Strategy Implementation Plan Failures.

   1. (A) Disapprovals.

      1. 1. If EPA disapproves any submitted

control strategy implementation plan revision (with or without a protective finding) the conformity status of the transportation plan and TIP shall lapse on the date that highway sanctions as a result of the disapproval are imposed on the nonattainment area under section 179(b)(1) of the CAA. No new transportation plan, TIP, or project may be found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted and conformity to this submission is determined.

1. 2. If EPA disapproves a submitted con-

trol strategy implementation plan revision without making a protective finding, then beginning one hundred twenty (120) days after such disapproval, only projects in the first three (3) years of the currently conforming transportation plan and TIP may be found to conform. This means that beginning one hundred twenty (120) days after disapproval without a protective finding, no transportation plan, TIP, or project not in the first three (3) years of the currently conforming plan and TIP may be found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted and conformity to this submission is determined. During the first one hundred twenty (120) days following EPA’s disapproval without a protective finding, transportation plan, TIP, and project conformity determinations shall be made using the motor vehicle emissions budget(s) in the disapproved control strategy implementation plan revision, unless another control strategy implementation plan revision has been submitted and its motor vehicle emissions budget(s) applies for transportation conformity purposes pursuant to section (9).

1. 3. In disapproving a control strategy

implementation plan revision, EPA would give a protective finding where a submitted plan contains adopted control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for which the implementation plan revision was submitted, such as reasonable further progress or attainment.

1. (B) Failure to Submit and Incompleteness. In areas where EPA notifies the state, MPO, and DOT of the state’s failure to submit a control strategy implementation plan or submission of an incomplete control strategy implementation plan revision, (either of which initiates the sanction process under CAA section 179 or 110(m)), the conformity status of the transportation plan and TIP shall lapse on the date that highway sanctions are imposed on the nonattainment area for such failure under section 179(b)(1) of the CAA, unless the failure has been remedied and acknowledged by a letter from the EPA regional administrator.
2. (C) Federal Implementation Plans. If EPA promulgates a federal implementation plan that contains motor vehicle emissions budget(s) as a result of a state failure, the conformity lapse imposed by this section because of that state failure is removed.

1. (20) Requirements for Adoption or Approval of Projects by Other Recipients of Funds Designated Under Title 23 U.S.C. or the Federal Transit Laws. No recipient of federal funds designated under Title 23 U.S.C. or the Federal Transit Laws shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following are met:

   1. (A) The project was included in the first three (3) years of the most recently conforming transportation plan and TIP (or the conformity determination’s regional emissions analyses), even if conformity status is currently lapsed; and the project’s design concept and scope has not changed significantly from those analyses; or
   2. (B) There is a currently conforming transportation plan and TIP, and a new regional emissions analysis including the project and the currently conforming transportation plan and TIP demonstrates that the transportation plan and TIP would still conform if the project were implemented (consistent with the requirements of sections (17) and/or (18) for a project not from a conforming transportation plan and TIP).

2. (21) Procedures for Determining Regional Transportation-Related Emissions.

   1. (A) General Requirements.

      1. 1. The regional emissions analysis

required by section (17) and section (18) of this rule 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 shall include FHWA/FTA projects proposed in the transportation plan and TIP and all other regionally significant projects which are disclosed to the MPO as required by section (5) of this rule. 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.

1. 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.

1. 3. Emissions reduction credit from pro-

jects, programs, or activities which require a regulatory action in order to be implemented may not be included in the emissions analysis unless—

1. A. The regulatory action is already

adopted by the enforcing jurisdiction;

1. B. The project, program, or activity is

included in the applicable implementation plan;

1. C. The control strategy implementa-

tion plan submission or maintenance plan submission that establishes the motor vehicle emissions budget(s) for the purposes of section (17) contains a written commitment to the project, program, or activity by the agency with authority to implement it; or

1. D. EPA has approved an opt-in to a

federally enforced program, EPA has promulgated the program (if the control program is a federal responsibility, such as tailpipe standards), or the Clean Air Act requires the program without need for individual state action and without any discretionary authority for EPA to set its stringency, delay its effective date, or not implement the program.

1. 4. Notwithstanding paragraph (21)(A)3.

emission 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 appropriate entities.

1. A. Persons or entities voluntarily

committing to control measures must comply with the obligations of such commitments.

1. B. Written commitments to mitigation

measures must be obtained prior to a conformity determination, and project sponsors must comply with such commitments.

1. 5. A regional emissions analysis for the

purpose of satisfying the requirements of section (18) 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.

1. 6. The ambient temperatures used for

the regional emissions analysis shall be consistent with those used to establish 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 in accordance with subparagraph (5)(C)1.A. 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. Specific to the St. Louis Metropolitan Area

1. 7. Reasonable methods shall be used to

estimate nonattainment or maintenance area vehicle miles traveled (VMT) on off-network roadways within the urban transportation planning area, and on roadways outside the urban transportation planning area.

1. (B) Regional emissions analysis in serious, severe, and extreme ozone nonattainment and serious carbon monoxide areas must meet the requirements of paragraphs (B)1. through 3. of this section if their metropolitan planning area contains an urbanized area population over two hundred thousand (200,000).

   1. 1. Beginning January 1, 1997, estimates

of regional transportation-related emissions used to support conformity determinations must be made at a minimum using networkbased 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 subparagraph (5)(C)1.A. Network-based travel models must at a minimum satisfy the following requirements:

1. A. Network-based travel models must

be validated against observed counts (peak and off-peak, if possible) for base year that is not more than ten (10) 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;

1. B. Land use, population, employ-

ment, and other network-based travel model assumptions must be documented and based on the best available information;

1. 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;

1. D. A capacity-sensitive assignment

methodology must be used, and emissions estimates must be based on a methodology which differentiates between peak and offpeak link volumes and speeds and uses of speeds based on final assigned volumes;

1. E. Zone-to-zone travel impedances

used to distributive 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

1. F. Network-based travel models must

be reasonably sensitive to changes in the time(s), cost(s), and other factors affecting travel choices.

1. 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.

1. 3. Highway Performance Monitoring

System (HPMS) estimates of vehicle miles traveled (VMT) shall 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 subparagraph (5)(C)1.A.

1. (C) In all areas not otherwise subject to subsection (B) of this section, regional emissions analyses must use those procedure described in subsection (B) of this section if the use of those procedures has been the previous practice of the MPO. Otherwise, areas not subject to subsection (B) of this section 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. from Construction-Related

2. (D) PM10 Fugitive Dust.

   1. 1. For areas in which the implementa-

tion 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.

1. 2. In PM10 nonattainment and mainte-

nance areas with implementation plans which 10 CSR 10-5

identify construction-related fugitive PM10 as a contributor to the nonattainment problem, the regional PM10 emissions analysis shall consider construction-related fugitive PM10 and shall 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.

1. (E) Reliance on Previous Regional Emissions Analysis.

   1. 1. The TIP may be demonstrated to sat-

isfy the requirements of section (17) Motor Vehicle Emissions Budget or section (18) Emissions Reductions in Areas without Motor Vehicle Emissions Budgets of this rule without new regional analysis if the regional emissions analysis already performed for the plan also applies to the TIP. This requires a demonstration that—

1. A. The TIP contains all projects

which must be started in the TIP’s time frame in order to achieve the highway and transit system envisioned by the transportation plan;

1. B. All TIP projects which are region-

ally 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; and

1. C. The design concept and scope of

each regionally significant project in the TIP is not significantly different from that described in the transportation plan.

1. 2. A project which is not from a con-

forming transportation plan and a conforming TIP may be demonstrated to satisfy the requirements of section (17) or section (18) of this rule 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—

1. A. Not regionally significant; or
2. B. Included in the conforming trans-

portation 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.

1. (22) Procedures for Determining Localized CO Concentrations (Hot-Spot Analysis).

   1. (A) CO Hot-Spot Analysis.

      1. 1. The demonstrations required by sec-

tion (16) Localized CO Violations must be based on quantitative analysis using air quality models, databases, and other requirements specified in 40 CFR part 51, Appendix W Guideline on Air Quality Models. These procedures shall be used in the following cases, unless different procedures developed through the interagency consultation process required in section (5) and approved by the EPA regional administrator are used:

1. A. For projects in or affecting loca-

tions, areas, or categories of sites which are identified in the applicable implementation plan as sites of violation or possible violation;

1. B. For projects affecting intersections

that are at Level-of-Service D, E, or F, or those that will change to Level-of-Service D, E, or F because of increased traffic volumes related to the project;

1. C. For any project affecting one or

more of the top three (3) intersections in the nonattainment or maintenance area with highest traffic volumes, as identified in the applicable implementation plan; and

1. D. For any project affecting one or

more of the top three (3) intersections in the nonattainment or maintenance area with the worst level-of-service, as identified in the applicable implementation plan.

1. 2. In cases other than those described in

paragraph (A)1. of this section, the demonstrations required by section (16) may be based on either—

1. A. Quantitative methods that repre-

sent reasonable and common professional practice; or

1. B. A quantitative consideration of

local factors, if this can provide a clear demonstration that the requirements of section (16) are met.

1. (B) General Requirements.

   1. 1. Estimated pollutant concentrations

must be based on the total emissions burden which may result from the implementation of the project, summed together with future background concentrations. The total concentrations must be estimated and analyzed at appropriate receptor locations in the area substantially affected by the project.

1. 2. CO hot-spot analyses must include

the entire project, and may be performed only after the major design features which will significantly impact CO concentrations have been identified. The future background concentration should be estimated by multiplying current background by the ratio of future to current traffic and the ratio of future to current emission factors.

1. 3. Hot-spot analysis assumptions must

be consistent with those in the regional emissions analysis for those inputs which are required for both analyses.

1. 4. CO mitigation or control measures

shall be assumed in the hot-spot analysis only where there are written commitments from the project sponsor and/or operator to implement such measures, as required by subsection (24)(A).

1. 5. CO hot-spot analyses are not required

to consider construction-related activities which cause temporary increases in emissions. Each site which is affected by construction-related activities shall be considered separately, using established “Guideline” methods. Temporary increases are defined as those which occur only during the construction phase and last five (5) years or less at any individual site.

1. (23) Using the Motor Vehicle Emissions Budget in the Applicable Implementation Plan (or Implementation Plan Submission).

   1. (A) In interpreting an applicable implementation plan (or implementation plan submission) with respect to its motor vehicle emissions budget(s), the MPO and DOT may not infer additions to the budget(s) that are not explicitly intended by the implementation plan (or submission). Unless the implementation plan explicitly quantifies the amount by which motor vehicle emissions could be higher while still allowing a demonstration of compliance with the milestone, attainment, or maintenance requirement and explicitly states an intent that some or all of this additional amount should be available to the MPO and DOT in the emission budget for conformity purposes, the MPO may not interpret the budget to be higher than the implementation plan’s estimate of future emissions. This applies in particular to applicable implementation plans (or submissions) which demonstrate that after implementation of control measures in the implementation plan—

      1. 1. Emissions from all sources will be

less than the total emissions that would be consistent with a required demonstration of an emissions reduction milestone;

1. 2. Emissions from all sources will result

in achieving attainment prior to the attainment deadline and/or ambient concentrations in the attainment deadline year will be lower than needed to demonstrate attainment; or

1. 3. Emissions will be lower than needed

to provide for continued maintenance.

1. (B) If an applicable implementation plan submitted before November 24, 1993, demonstrates that emissions from all sources will be less than the total emissions that would be consistent with attainment and quantifies that “safety margin,” the state may submit an implementation plan revision which assigns some or all of this safety margin to highway and transit motor vehicles for the purposes of conformity. Such an implementation plan revision, once it is endorsed by the governor and has been subject to a public hearing, may be used for the purposes of transportation conformity before it is approved by EPA.
2. (C) A conformity demonstration shall not trade emissions among budgets which the applicable implementation plan (or implementation plan submission) allocates for different pollutants or precursors, or among budgets allocated to motor vehicles and other sources, unless the implementation plan establishes appropriate mechanisms for such trades.
3. (D) If the applicable implementation plan (or implementation plan submission) estimates future emissions by geographic subarea of the nonattainment area, the MPO and DOT are not required to consider this to establish subarea budgets, unless the applicable implementation plan (or implementation plan submission) explicitly indicates an intent to create such subarea budgets for the purposes of conformity.
4. (E) If a nonattainment area includes more than one MPO, the implementation plan may establish motor vehicle emissions budgets for each MPO, or else the MPOs must collectively make a conformity determination for the entire nonattainment area.

1. (24) Enforceability of Design Concept and Scope and Project-Level Mitigation and Control Measures.

   1. (A) Prior to determining that a transportation project is in conformity, the MPO, other recipient of funds designated under Title 23 U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the project sponsor and/or operator 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 CO impacts. Before a conformity determination is made, written commitments must also be obtained for project-level mitigation or control measures which are conditions for making conformity determinations for a transportation plan or TIP and are included in the project design concept and scope which is used in the regional emissions analysis required by sections (17) Motor Vehicle Emissions Budget and (18) Emission Reductions in Areas Without Motor Vehicle Emissions Budgets or used in the project-level hotspot analysis required by section (16). Specific to the St. Louis Metropolitan Area
   2. (B) Project sponsors voluntarily committing to mitigation measures to facilitate positive conformity determinations must comply with the obligations of such commitments.
   3. (C) Written commitments to mitigation measures must be obtained prior to a conformity determination, and project sponsors must comply with such commitments.
   4. (D) If the MPO or project sponsor believes the mitigation or control measure is no longer necessary for conformity, 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 section (16), emission budget requirements of section (17) and emissions reduction requirements of section
2. (18) are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under section (5). The MPO and DOT must find that the transportation plan and TIP still satisfy applicable requirements of sections (17) and/or (18) and that the project still satisfies the requirements of section (16) and therefore that the conformity determinations for the transportation plan, TIP, and project are still valid. This finding is subject to the applicable public consultation requirements in subsection (5)(F) for conformity determination for projects.

3. (25) Exempt Projects. Notwithstanding the other requirements of this rule, highway and transit projects of the types listed in Table 2 of this section are exempt from the requirement to determine conformity. Such projects may proceed toward implementation even in the absence of a conforming transportation plan and TIP. A particular action of the type listed in Table 2 of this section is not exempt if the MPO in consultation with other agencies (see subparagraph (5)(C)1.C.), the EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has potentially adverse emissions impacts for any reason. The state and the MPO must ensure that exempt projects do not interfere with TCM implementation. Table 2 follows:

   Table 2—Exempt Projects

Safety Railroad/highway crossing Hazard elimination program Safer nonfederal-aid system roads Shoulder improvements Increasing sight distance Safety improvement program Traffic control devices and operating assistance other than signalization projects Railroad/highway crossing warning devices Guardrails, median barriers, crash cushions Pavement resurfacing or rehabilitation Pavement marking demonstration Emergency relief (23 U.S.C. 125) Fencing Skid treatments Safety roadside rest areas Adding medians Truck climbing lanes outside the urbanized area Lighting improvements Widening narrow pavements or reconstructing bridges (no additional travel lanes) Emergency truck pullovers

Mass Transit Operating assistance to transit agencies Purchase of support vehicles Rehabilitation of transit vehicles1 Purchase of office, shop, and operating equipment for existing facilities Purchase of operating equipment for vehicles (e.g., radios, fare boxes, lifts, etc.) Construction or renovation of power, signal, and communications systems Construction of small passenger shelters and information kiosks Reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings, storage and maintenance facilities, stations, terminals, and ancillary structures) Rehabilitation or reconstruction of track structures, track, and trackbed in existing rights-of-way Purchase of new buses and rail cars to replace existing vehicles or for minor expansions of the fleet1 Construction of new bus or rail storage/maintenance facilities categorically excluded in 23 CFR part 771 Air Quality Continuation of ride-sharing and van-pooling promotion activities at current levels Bicycle and pedestrian facilities

Other Specific activities which do not involve or lead directly to construction, such as— Planning and technical studies Grants for training and research programs Planning activities conducted pursuant to Titles 23 and 49 U.S.C. Federal-aid systems revisions Engineering to assess social, economic, and environmental effects of the proposed action or alternatives to that action Noise attenuation Emergency or hardship advance land acquisitions (23 CFR part 712.204(d)) Acquisition of scenic easements Plantings, landscaping, etc. 10 CSR 10-5

Sign removal Directional and informational signs Transportation enhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities) Repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects involving substantial functional, locational, or capacity changes

1Note—In PM10 nonattainment or maintenance areas, such projects are exempt only if they are in compliance with control measures in the applicable implementation plan.

1. (26) Projects Exempt From Regional Emissions Analyses. Notwithstanding the other requirements of this rule, highway and transit projects of the types listed in Table 3 of this section are exempt from regional emissions analysis requirements. The local effects of these projects with respect to CO concentrations must be considered to determine if a hot-spot analysis is required prior to making a project-level conformity determination. These projects may then proceed to the project development process even in the absence of a conforming transportation plan and TIP. A particular action of the type listed in Table 3 of this section is not exempt from regional emissions analysis if the MPO in consultation with other agencies (see subparagraph (5)(C)1.C.), the EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has potential regional impacts for any reason. Table 3 follows:

Table 3—Projects Exempt from Regional Emissions Analyses Intersection channelization projects Intersection signalization projects at individual intersections Interchange reconfiguration projects Changes in vertical and horizontal alignment Truck size and weight inspection stations Bus terminals and transfer points

1. (27) Traffic Signal Synchronization Projects. Traffic signal synchronization projects may be approved, funded, and implemented without satisfying the requirements of this section. However, all subsequent regional emissions analyses required by sections (17) and
2. (18) for transportation plans, TIPs, or projects not from a conforming plan and TIP must include such regionally significant traffic signal synchronization projects.

AUTHORITY: section 643.050, RSMo Supp. 1997.* Original rule filed Oct. 4, 1994, effective May 28, 1995. Amended: Filed May 1, 1996, effective Dec. 30, 1996. Amended: Filed June 15, 1998, effective Jan. 30, 1999. *Original authority 1965, amended 1972, transferred from 203.050 in 1986, 1992, 1993, 1995.