06- 096 C.M.R. ch. 139, § 4

Current through 2024-51, December 18, 2024

Section 096-139-4 - Consultation

A.State and Federal Agency Consultation

(1)Roles and Responsibilities

(a) The Department of Environmental Protection (DEP)

(i) The DEP, prior to proposing any SIP revisions affecting transportation, will convene a special meeting or present SIP revisions affecting transportation at the next quarterly interagency consultation meeting. A detailed description, as outlined in 1(a)(iii) of this Chapter, will be provided to the interagency consultation committee members prior to the next meeting.

(ii) The DEP shall assist the MaineDOT and the MPOs in performing conformity analyses on Transportation Improvement Programs (TIPs)/Statewide Transportation Improvement Programs (STIPs) and Transportation Plans for the nonattainment and maintenance areas.

(iii) The DEP shall provide a detailed description of any SIP changes that affect transportation projects. This description should include but not be limited to the following:

a The relationship between VMT and emissions;

b The differences between the current model and past models, if applicable;

c A description of the model assumptions and how those assumptions affect future transportation projects;

d Proposed on-road mobile source control strategies, (i.e., inspection and maintenance program, low emission vehicle programs, retrofit programs, adoption of special fuels or alternatives fuel); and

e Changes to the inputs or assumptions in modeling motor vehicle emissions.

(b) The Maine Department of Transportation (MaineDOT)

(i) The MaineDOT shall convene an interagency consultation meeting(s) with representatives from the MPOs, DEP, EPA, MTA, FHWA, and FTA prior to such time that conformity analyses on transportation plans, transportation improvement programs (statewide transportation improvement program) and/or projects are performed, or at the request of an involved agency.

(ii) Prior to an interagency consultation meeting(s), the MaineDOT shall circulate a meeting agenda to the involved agencies.

(iii) The MaineDOT shall document the outcome(s) of the interagency consultation meeting(s) and shall circulate said documentation to the MPOs, DEP, EPA, MTA, FHWA and FTA.

(iv) The MaineDOT and MPOs will keep each MPO and DEP apprised of the design, schedule and funding of research and data collection efforts that produce the latest modeling assumptions for the regional and statewide transportation models.

(v) A representative from the MaineDOT will attend MPO policy and technical meetings as required.

(vi) The MaineDOT will assist the MPOs in their conformity analyses on their Long Range Plans and Transportation Improvement Programs (TIPs).

(vii) The MaineDOT with the assistance of DEP and the MPOs shall perform a conformity analysis on Transportation Improvement Programs (TIPs)/Statewide Transportation Improvement Programs (STIPs), and Transportation Plans for any nonattainment and maintenance areas.

(viii) The MaineDOT will provide DEP with a list of projects to be included in the conformity analysis for the TIP/STIP and/or long range transportation plan with sufficient lead time prior to the document print date to allow for adequate quality control.

(ix) During the development of the MaineDOT Capital Program, the MaineDOT will contact stakeholders including DEP and the MPOs to ask for transportation projects, which will provide for potential air emission reductions, reduced Vehicle Miles Traveled (VMT) and congestion and are eligible for Congestion Mitigation Air Quality (CMAQ) program funding.

(c) Metropolitan Planning Organizations (MPOs):

(i) Metropolitan Planning Organizations (MPOs) are federally designated planning organizations responsible for carrying out a continuous, comprehensive, and cooperative transportation planning process for urbanized areas with populations of 50,000 or more. There are four MPOs in the State of Maine:

a ATRC. The Androscoggin Transportation Resource Center (ATRC) is responsible for planning the transportation system for the Greater Lewiston-Auburn Area. Known as a Metropolitan Planning Organization, ATRC was established by federal requirement of the Federal Aid Highway Act of 1962 and designated to serve the urbanized area of Lewiston, Auburn, Lisbon, and a portion of Sabattus.

b BACTS. .Bangor Area Comprehensive Transportation System (BACTS) is the organization designated by federal and Maine state government to carry out transportation planning in the Greater Bangor urbanized area. The BACTS area includes Bangor, Brewer, Veazie, and major portions of Hampden, Orono, Old Town, Milford, Bradley, Eddington, Orrington and Penobscot Indian Nation.

c KACTS. The Kittery Area Comprehensive Transportation Study (KACTS) is the Metropolitan Planning Organization (MPO) for the Maine portion of the Portsmouth-Dover-Rochester, New Hampshire urbanized area. In the case of the KACTS MPO, this area includes Kittery, Eliot, South Berwick, Berwick, and Lebanon.

d PACTS. In 1975, the Portland Area Comprehensive Transportation Committee (PACTS) was designated as the federally mandated "metropolitan planning organization" for the Portland region. The PACTS area includes portions or all of 15 communities: Biddeford, Cape Elizabeth, Cumberland, Falmouth, Freeport, Gorham, North Yarmouth, Old Orchard Beach, Portland, Saco, Scarborough, South Portland, Westbrook, Windham and Yarmouth.

(ii) The MPOs with the assistance of MaineDOT and DEP are required to perform conformity analyses on Transportation Improvement Programs (TIP)/Statewide Transportation Improvement Programs (STIPs) and Transportation Plans for the nonattainment and maintenance areas.

(iii) The MPOs will provide the MaineDOT a complete list of projects that require a conformity evaluation to be included in the conformity analyses prepared for the long range transportation plans or transportation improvement program/statewide transportation improvement program.

(iv) The MPOs shall invite a representative of DEP to each Policy and Technical MPO committee meeting. When appropriate there will be an agenda item at such meeting which will provide the MPO, the MaineDOT, or DEP an opportunity to update each other on any new regionally significant transportation projects planned for and reasonably anticipated to be funded in that MPO area regardless of funding source. To the extent possible, these new or revised projects are to be detailed sufficiently to allow a transportation emission analysis to be performed.

(v) The MPOs shall maintain and update Long-Range Transportation Plans and Transportation Improvement Programs that conform to all federal and state laws. MPOs will consult MaineDOT prior to requiring air conformity analyses in support of the MPO's Long-Range Plan, plan update, or transportation improvement program.

(2)The specific purposes of the interagency consultation meetings are to:

(a) Provide a forum for the MaineDOT, DEP, MPO's and MTA to consult with each other and with local or regional offices of EPA, FHWA, FTA on the development of the implementation plan, the transportation plan, the TIP and associated conformity documents;

(b) Evaluate events which will trigger new conformity determinations, in addition to those triggering events established in 40 CFR 93.104(e) "Triggers for Transportation Plan and TIP Conformity Determinations";

(c) Establish public participation processes that shall run concurrently with and adhere to 23 CFR Part 450 "Federal Highway Administration Planning Assistance and Standards";

(d) Provide the group with periodic updates, sufficient in detail, on all Long Range Plans, TIP/STIP, lists of projects and regional significant projects as these documents are updated;

(e) Evaluate whether current air quality conformity analysis can be used for a new conformity evaluation in accordance with 40 CFR 93.122(g) "Reliance on Previous Regional Emission Analysis";

(f) Select the conformity test(s) to be used in accordance with the Transportation Conformity Rule;

(g) Develop and coordinate a list of TCMs which are in the applicable implementation plan;

(h) Evaluate SIP approved TCMs for progress, funding and substitution;

(i) Determine, as required by 40 CFR 93.113(c)(1), whether past obstacles to implementation of TCMs which are behind the schedule established in the applicable implementation plan have been identified, and are being overcome and whether State and local agencies with influence over approvals or funding for TCMs are given maximum priority to approval or funding of TCMs over other projects within their control, including projects in locations outside the nonattainment or maintenance area. 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;

(j) Identify projects requiring hot-spot analyses (CO, PM₁₀, PM_2.5). Once the projects are identified then evaluate and choose a model (or models) and associated methods and assumptions to be used in hot-spot analysis and regional emissions analysis;

(k) Select regional emissions analysis models including consulting on model development and assessing project design factors for modeling;

(l) Allow for interagency consultation on the design, schedule and funding of research and data collection efforts and regional transportation model development by the MPO (e.g. household/travel transportation surveys);

(m) Identify analysis methods to estimate VMT and emissions from non-regionally significant projects;

(n) Identify regionally significant projects to be included in the regional emissions analysis including non-federally funded projects;

(o) Ensure that plans for construction of regionally significant projects which are not FHWA or FTA funded projects (including projects for which alternative locations, design concepts and scope or the no-build option are still being considered), including those by recipients of funds designated under Title 23 U.S.C. or the Federal Transit Laws are disclosed to the MPO on a regular basis and to ensure that any changes to those plans are immediately disclosed;

(p) Involve the MPO and other recipients of funds designated under Title 23 U.S.C. or the Federal Transit Laws for assuming the location and design concept and scope of projects which are disclosed to the MPO as required by Section 4A.(2)(o) of this Chapter but whose sponsors have not yet decided these features, in sufficient detail to perform the regional emissions analysis according to the requirements of 40 CFR 93.122;

(q) Determine which minor arterials and other transportation projects should be considered "regionally significant" for the purposes of regional emissions analyses (in addition to those functionally classified as principle 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;

(r) Identify exempt project as defined by 40 CFR 93.126 Table 2, and 40 CFR 93.127 Table 3;

(s) Identify exempt projects and categories of exempt projects which should be treated as non-exempt because they may have adverse air quality impacts and determine appropriate air quality analysis methodologies for analyzing such projects;

(t) Identify transportation plan and TIP/STIP revisions which add or delete exempt projects, as defined in 40 CFR 93.126 by Tables 2 and 40 CFR 93.127 Table 3;

(u) Identify the latest planning assumptions and evaluate consistency with SIP assumptions;

(v) Determine if the transportation plan and TIP are fiscally constrained;

(w) Choose conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 CFR 93.109(1)(2)(iii);

(x) Consult on emissions analyses for transportation activities which cross the borders of MPO or nonattainment areas;

(y) Consult on conformity analyses outside MPO boundaries and yet within nonattainment or maintenance areas;

(z) Consult on the proposed development of, or changes to the motor vehicle emission budget;

(aa) Consult on the proposed use of mobile source emission credits; and

(bb) Update each other on relevant issues.

(3)Projects that Benefit Air Quality

(a) During the development of the MaineDOT's Capital Program and prior to the time that DEP performs required conformity analyses on transportation plans, TIPs and projects, the MaineDOT shall convene a consultation meeting(s) with representatives from the MPOs, DEP, MTA, all pertinent Federal partners and any interested stakeholders. The specific purposes of these consultation meetings are to:

(i) Propose and identify projects which have an air quality benefit and are eligible for CMAQ funding. The MaineDOT shall evaluate these projects using MaineDOT transportation goals, Regional Councils (formerly called Regional Planning Organizations) developed Regional Transportation Assessments (formerly called Regional Needs Assessments), recommendations from DEP, and input from municipalities. Criteria to select projects shall include but not be limited to whether or not the project is a Transportation Control Measure (TCM) in the State Implementation Plan or listed as TCM under Section 108(f) of the Clean Air Act, quantity of potential emissions reductions, timing of air quality benefits, impact on multiple pollutants, potential to reduce VMT, potential to alleviate congestion, the inter-modal aspects of the projects, cost effectiveness, regional applicability, public awareness, promotion of technology, educational value, innovation and potential to reduce emissions from heavy duty vehicles; and

(ii) Evaluate and determine air quality benefits for projects which include potential air emission reductions, reduced VMT and congestion.

B.Specific Processes

(1)Consulting members. Interagency consultation meetings will be attended by individuals from the MPOs, the MaineDOT, and DEP. These individuals are herein described as the consulting members. Representatives from the MTA, FHWA, FTA, and EPA will also be invited to these consultation meetings and provided an agenda of topics to be discussed at the meeting.

(2)Circulation of documents. Documentation of the outcome of each Air Quality Interagency Consultation meeting will be distributed to the members by the MaineDOT as outlined above. Draft Transportation Plans, TIPs, and STIPs will be provided to each of the State's regional planning commission offices and will be available for public comment at the MaineDOT and DEP state offices in Augusta and at the MPO offices. DEP will provide draft SIP revisions which pertain to emission budgets for transportation projects to the MaineDOT and other consulting members for their comments prior to the initial submission to the Board of Environmental Protection unless otherwise agreed to by the MaineDOT and DEP. Final SIP submittals will be made available to each of the MPOs and the MaineDOT as well as to MTA, EPA, FHWA and FTA.

(3)Frequency of meetings. In order to facilitate effective communication between DEP, the MaineDOT, MTA, FHWA, FTA, EPA and the MPOs throughout the transportation planning process, the MaineDOT will hold regular interagency consultation meetings with these agencies. The MaineDOT will hold these meetings at least quarterly, unless the consensus of the group determines that a meeting is not warranted, or more often as needed. Any member of the consultation process may request a special meeting to discuss an issue requiring immediate attention by the consultation conformity group. The party requesting the special meeting must establish a meeting location and time that the interagency consultation committee is able to attend in person or via telephone/video conference call. The requesting party will also forward a synopsis/agenda for the special meeting and provide sufficient background material to allow members to be prepared to fully discuss the issue at the meeting.

(4)Responding to significant comments. Any significant comments by an involved agency will be documented in writing and distributed to all the committee members. If a regularly scheduled meeting is to be held within a reasonable time frame of the receipt of the significant comment it should be made a part of that meeting's agenda and information on the issue will be forwarded to all members to arrive in time for the meeting. If the information cannot be received in time for the regular meeting, it can be handed out at that meeting and a special meeting scheduled to answer the issue. The issue will be considered a reason to convene a special meeting with the commenting agency as the requester and the agenda consisting of the significant comment. As an agenda item, the significant comment will be made a part of the official minutes. If at the meeting, special or regularly scheduled, the issue cannot be satisfactorily resolved and/or answered the procedures under Section 4.(C). of this Chapter Resolving Conflicts between State Agencies and MPOs will apply.

C.Resolving conflicts between State Agencies and MPOs. The MaineDOT, DEP and the MPOs shall meet to outline conformity requirements as indicated above in Section 4(A) of this Chapter, and provide for the early identification and resolution of potential conflicts through the SIP conformity revision and transportation planning process.

(1) Where conflicts arise from issues important to either the conformity determinations or potential SIP revisions, they shall be thoroughly discussed in an open and non-critical manner. If conflicts can not be resolved at one meeting, the area of conflict will be outlined and documented for distribution and verification by the participating parties. Each party is thereafter encouraged to support and substantiate its position with credible documentation which the party is to distribute to the other consulting members for further education on the conflicting positions. The conflict will thereafter be revisited at a mutually agreed upon time.

(2) Where conflicts cannot be resolved between the consulting members, these areas of conflict are again to be outlined and verified by the parties and then presented to Commissioners of the MaineDOT and DEP and/or the directors of the MPO for resolution.

(3) If a conformity determination is supported by MaineDOT or an MPO which the other consulting members cannot support the disagreeing members have 14 days from the date of notification of MaineDOT's or MPO's final position on the conformity issue, to request resolution of the conflict by the Governor. The Governor must make a determination on the issue of conformity within 30 days of the request to do so.

(4) If a SIP revision is proposed by DEP which the MaineDOT or an MPO cannot support, the Maine DOT or MPO shall have 14 days from the date of notification of DEP's final position on the SIP revision to request resolution of the conflict by the Governor or his designee. The Governor or his designee must make a determination on the issue of the SIP revision within 30 days of the request to do so.

D.Public consultation procedures. Draft Transportation Plans, TIPs/STIPs, and amendments thereof that add or delete nonexempt projects will contain a conformity analysis with stated assumptions and methodologies. These drafts will be made available by MaineDOT for public comment as outlined above in Section 4(B)(2) of this Chapter prior to any formal determination of conformity. All comments will be addressed and made part of the plan or TIP submittal for review by the public and the appropriate state and federal agencies in accordance with requirements for public involvement in 23 CFR Part 450 and/or the Maine Sensible Transportation Policy Act.

E.Public Notice Requirement. Air Quality Conformity Analysis documents for Long Range Plans require a 45 day comment period and conformity analysis for TIPs and STIPs require a 30 day comment period. Whenever practicable the MaineDOT and the MPOs will publish public notices of availability concurrently for all of the aforementioned documents. The Air Quality Conformity Analysis will be posted by MaineDOT, along with the most recent TIP/STIP and/or Long Range Plan, atwww.maine.gov/mdot. Hard copies of all documents are made available at all Metropolitan Planning Organizations, MaineDOT Division Offices and depository libraries across the state. Comments will be accepted for at least 30 days after notification for the TIP/STIP Air Quality Conformity Analysis and up to 45 days after notification for the Long Range Plan Air Quality Conformity Analysis.

06- 096 C.M.R. ch. 139, § 4