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MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT, is made by and between the NORTH
CAROLINA DEPARTMENT OF TRANSPORTATION (hereinafter, "NCDOT"), the NORTH
CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY (hereinafter, "NCDEQ"),
the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (hereinafter,
"USEPA"), the FEDERAL HIGHWAY ADMINISTRATION (hereinafter, "FHWA"), the
FEDERAL TRANSIT ADMINISTRATION (hereinafter, "FTA"), and collectively referred to
hereinafter as the Parties.
RECITALS
WHEREAS, the Parties enter into this Memorandum of Agreement (hereinafter, "MOA" or
"Agreement") for the purpose of implementing interagency consultation procedures for
developing a State Implementation Plan (hereinafter, "SIP") and/or revisions, State
Transportation Improvement Programs (hereinafter, "STIP"), and conformity determinations of
MPO TIPs, and FHWA/FTA projects;
WHEREAS, the Parties enter into this Agreement in accordance with Section 176(c)(4)(E) of
the Clean Air Act (hereinafter, "CAA"), as amended (42 USC 7401 et seq.) with respect to the
conformity of Metropolitan Planning Organization (MPO) Transportation Improvement
Programs (TIPs) and FHWA/FTA projects, which are developed, funded or approved by the
United States Department of Transportation (hereinafter, "USDOT") and by the NCDOT or
other recipients of funds under Title 23 USC, or the Federal Transit Act (49 USC Chapter 53),
and Title 15A North Carolina Administrative Code (hereinafter, "NCAC"), Subchapter 02D
Section .2000, relating to nonattainment and maintenance areas;
WHEREAS, the NCDOT desires to comply with the aforementioned federal laws and
regulations and parallel state and local laws and regulations by preparing, modifying and
evaluating the applicable projects from the STIP and an MPOs TIP (which include Regionally
Significant Projects) in accordance with the SIP and making a conformity determination in
accordance with the state transportation plan and STIP and in order to preserve the integrity of
the SIP;
WHEREAS, NCDEQ desires to assist the NCDOT in its compliance with the aforementioned
federal requirements and must enforce applicable state environmental laws and regulations
regarding air quality;
WHEREAS, USEPA desires to effectively enforce the relevant federal laws and regulations
regarding air quality and compliance with SIP requirements;
WHEREAS, FHWA desires to effectively enforce and administer the relevant aforementioned
federal laws and regulations regarding metropolitan and statewide transportation planning and
transportation conformity;
WHEREAS, FTA desires to effectively enforce and administer the relevant aforementioned
federal laws and regulations regarding metropolitan and statewide transportation planning and
transportation conformity; and
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WHEREAS, the Parties wish to work together to perform the duties imposed upon them by law
and to coordinate among themselves for efficient and thorough planning for air quality in the
geographic area outside the MPOs.
THEREFORE, in consideration of these conditions and for good and valuable consideration and
the benefits flowing to the Parties from each other, the receipt of which is hereby
acknowledged, and in further consideration of the mutual covenants, terms, conditions, and
restrictions hereinafter set forth, the Parties hereby agree as follows:
PURPOSE
The purpose of this MOA is to satisfy the requirement in CAA Section 176(c)(4)(E) to create a
state conformity SIP containing the following three requirements of the Federal Transportation
Conformity Rule, 40 CFR, Part 93, Subpart A: (1) 40 CFR 93.105, which addresses
consultation procedures; (2) 40 CFR 93.122(a)(4)(ii), which states that conformity SIPs must
require written commitments to control measures to be obtained prior to a conformity
determination if the control measures are not included in an MPO's transportation plan and TIP,
and that such commitments be fulfilled; and (3) 40 CFR 93.125(c), which states that conformity
SIPs must require written commitments to mitigation measures to be obtained prior to a project-
level conformity determination, and that project sponsors comply with such commitments.
1.0 DEFINITIONS
1.1 "Conformity" -- refers to the status of transportation plans, programs and
projects within a region designated as nonattainment or maintenance for
transportation-related pollutants, as to whether they comply with air emission
levels and standards required by existing state and/or federal implementation
plans for that region.
1.2 "Consultation" -- means when one Party confers with another identified Party,
prior to any final decision, provides all information necessary to that Party
needed for meaningful input, and considers and responds to the views of that
Party in a timely and written manner.
1.3 "Interagency Consultation Conformity Determination Meeting" -- refers to a
meeting called by the NCDOT, the MPO or its designee and open to all Parties,
designed to establish agreed upon procedures, protocols, and schedules for
conducting a conformity analysis and determination.
1.4 "State Implementation Plan" (SIP) -- means documents, including, but not
limited to, State adopted regulations, attainment demonstrations, and
maintenance plans, submitted by North Carolina to, and approved by, the
USEPA, or the most recent revision thereof, in accordance with Sections 110,
301(d), and 175(A) of the CAA (42 USC 7410, 7601, and 7505(a)) and
regulations promulgated by USEPA pursuant to the provisions of those
Sections.
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1.5 "Statewide Interagency Consultation Meetings" (SICM) -- refers to regularly
scheduled informational meetings, sponsored by NCDEQ to which all Parties
that are required to have air quality conformity determinations pursuant to Title
15A NCAC Subchapter 02D, Section .2000 are invited, including all MPOs and
Regional Planning Organizations throughout the State.
1.6 "Statewide Transportation Improvement Program" (STIP) -- means a statewide
prioritized listing/program of transportation projects that is consistent with the
long-range statewide transportation plan, the MTP, TIPs, and required for
projects to be eligible for funding pursuant to Title 23 USC and Title 49 USC
Chapter 53.
1.7 "Timely" -- means within the timeframe agreed to in the schedule set at the
Interagency Consultation Conformity Determination Meeting(s).
1.8 "Transportation Improvement Program" (TIP) -- means a prioritized
listing/program of transportation projects that are developed and formally
adopted by the MPO as part of the metropolitan planning process, consistent
with the MTP pursuant to 23 CFR, Part 450, and required for projects to be
eligible for funding pursuant to Title 23 USC and 49 USC Chapter 53.
1.9 "Transportation Providers" -- means public agencies that provide transportation
services to the public, these agencies are publicly owned and operated.
1.10 "Parties" -- means representatives from all signatory agencies to this
Agreement.
1.11 All other terms used herein but not defined in this Agreement shall have the
meaning given to them by the CAA, Title 23 and 49 USC, 40 CFR 93.101,
other USEPA regulations, other USDOT regulations, or 15A NCAC 02D.
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2.0 DUTIES OF THE PARTIES
The roles and responsibilities of each Party are defined below:
2.0.1 Each Party member shall determine which staff members will represent the
Party in the conformity process and shall take responsibility to see that the
appropriate representatives are available to ensure a cooperative process and
adequate communication among the Parties. Each Party shall choose its
representative(s) and at least one alternate staff person for interagency
consultation and provide their names and contact information to NCDEQ. It is
the responsibility of each Party to notify NCDEQ of changes in their appointed
designee(s) or contact(s).
2.0.2 All Parties shall review and provide comments to the NCDOT on draft TIPs
and conformity analyses. All Parties shall review and provide comments to
NCDEQ on draft SIP submissions. All Parties shall review and provide
comments to NCDOT and/or local project sponsors on project-level conformity
determination prepared during the National Environmental Policy Act (NEPA)
process for FHWA/FTA projects located in the NCDOT jurisdiction. Parties
shall provide their timely review comments to these agencies within twenty-one
(21) days of receipt of draft documents unless an alternate deadline has been
agreed upon at a consultation meeting. The NCDEQ or NCDOT, as
appropriate, shall respond in writing to all Parties to explain how comments
were addressed or why they were not addressed in the subsequent version of the
document that is distributed to all Parties.
2.1 NCDOT Duties
2.1.1 In regions where there is no Metropolitan Planning Organization
(hereinafter, "MPO") or another entity assigned such duties through
consultation with the Parties, the NCDOT shall sponsor the
Interagency Consultation Conformity Determination Meetings and
prepare meeting agendas and meeting materials required for
fulfillment of consultation procedures outlined in this Agreement.
NCDOT shall also participate in other appropriate
committees/meetings established to discuss with the Parties on the
development of a revised statewide transportation plan, including
programs and projects.
2.1.2 The NCDOT shall prepare meeting summaries and conclusions of
said Interagency Consultation Conformity Determination Meetings
and other appropriate meetings it sponsors. The NCDOT shall
provide meeting summaries and conclusions to all Parties within a
timely manner not to exceed fourteen (14) days after the meeting.
The other Parties may provide comments on meeting
summaries/conclusions to the NCDOT within a timely manner not to
exceed fourteen (14) days, copying other Parties. The NCDOT shall
respond to comments from Parties in writing in a timely manner not
to exceed fourteen (14) days of receiving comments. The NCDOT's
response to comments shall be distributed to all Parties.
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2.1.3 The NCDOT shall consult with the Parties on the development
process for TIPs, and amendments thereto. This process will begin no
later than one year prior to when the conformity determination is
needed.
2.1.4 NCDOT shall consult with the Parties to develop TIPs and
amendments thereto by the dates agreed to in the Interagency
Consultation Conformity Determination Meeting, as well as, provide
notification of the TIP revisions and amendments that add or delete
exempt projects as listed in 93.126 or 93.127.
2.1.5 NCDOT shall consult with the Parties to develop the STIP and
amendments thereto. Furthermore, NCDOT shall keep the Parties
apprised of the status and content of statewide transportation plans
and the STIP.
2.1.6 Before the NCDOT conducts conformity analyses and
determinations, as initiated under the terms and conditions of this
Agreement, the NCDOT shall initiate and facilitate an Interagency
Consultation Conformity Determination Meeting with all Parties on
proposed procedures and protocol for conducting and performing
conformity analysis prior to making a conformity determination. This
meeting will take place preferably one year prior to, but no less than
9 months before the determination is needed.
2.1.7 The NCDOT shall provide information requested by other Parties to
track the implementation of TCMs funded by the NCDOT, or local
municipalities, and included in the SIP by the dates agreed to in the
Interagency Consultation Conformity Determination Meeting.
2.1.8 The NCDOT shall be responsible for development and maintenance
of the travel demand model for the non MPO areas, or the
development of other tools appropriate for the conformity analysis.
The NCDOT may delegate such responsibility to a third party or
enter into agreements with NCDOT and/or neighboring MPOs to
develop a regional travel demand model or other tools. Any Party
delegating responsibility to a third party shall notify the third party,
in writing, that all documentation is subject to the applicable public
records law. Responsibility for development and maintenance of a
regional travel demand model should be established through a
separate memorandum of agreement between the affected MPOs and
NCDOT.
2.1.9 NCDOT shall participate in the development and review of
transportation system and emissions modeling activities and
projection procedures to ensure consistency of air quality and
transportation system evaluations.
2.1.10 Upon written request by the Parties, the NCDOT shall provide all
Parties with available travel data needed to determine various
transportation emissions budgets, if they are responsible for this data.
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2.1.11 The NCDOT shall assist NCDEQ as needed for modifications or
revisions to the SIP, which will include the assessment of
effectiveness of existing Transportation Control Measures (TCMs)
and implementation of potential TCMs for inclusion in the SIP, and
providing critical input to the SIP development process, such as
vehicle miles traveled (VMT) and speed assumptions for various road
classifications.
2.1.12 NCDOT shall also provide information requested by other Parties to
track the implementation of TCMs included in the SIP by the dates
agreed to in the Interagency Consultation Conformity Determination
Meeting.
2.1.13 NCDOT shall conduct project level conformity analysis for NCDOT
sponsored projects as part of the NEPA process for FHWA/FTA
projects located outside the MPO in the RPO Boundaries.
2.1.14 The NCDOT shall submit concurrently, upon completion, a draft
and/or final TIP document and related conformity determination to
the NCDOT, NCDEQ, and FHWA. FHWA will coordinate the
federal review effort and will forward the documents to FTA and
USEPA unless an alternate coordination process is specified through
interagency consultation. The NCDOT shall respond in writing to
comments made by the other Parties on draft documents.
2.1.15 The NCDOT shall maintain procedures for public involvement in the
conformity determination process consistent with its adopted Public
Involvement Procedures including receiving and responding to public
input on conformity findings, consistent with 23 CFR 450.316(a) and
40 CFR 93.105(e).
2.1.16 The NCDOT shall submit a written request for emissions modeling
results required for conformity determinations from NCDEQ or its
designee, and shall provide vehicle speed, VMT, and other data
necessary to generate the emissions modeling results.
2.1.17 Enforceability of design concept and scope and project-level
mitigation and control measures.
2.1.17.1 Prior to making a conformity determination on the
applicable projects from the STIP, the NCDOT will
ensure any project-level mitigation or control measures
are included in the project design concept and scope and
are appropriately identified in the regional emissions
analysis used in the conformity analysis.
2.1.17.2 The NCDOT shall fulfill commitments made for
mitigation measures that were required for facilitating
positive conformity determinations.
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2.1.17.3 Written commitments to mitigation measures must be
obtained prior to a positive conformity determination, and
project sponsors and/or operators must comply with the
agreed upon commitment obligations (in accordance with
40 CFR 93.122(a)(4)(ii)).
2.1.17.4 The NCDOT shall obtain written commitments from the
project sponsor and/or operator to fulfill and complete all
of the projects and operations identified by the project-
level NEPA mitigation or control measures with respect to
local hot-spot analysis.
2.2 NCDEQ DUTIES
2.2.1 NCDEQ shall maintain a list of current interagency consultation
members and distribute it to all members whenever a change in
membership occurs.
2.2.2 NCDEQ shall participate in the Interagency Consultation Conformity
Determination Meetings, sponsor the SICM meetings, and other
appropriate committees/meetings established to advise the Parties on
SIP and emissions control strategies and programs particularly as
these relate to transportation issues.
2.2.3 NCDEQ shall participate in consultations with the Parties regarding
the development process for TIPs and amendments thereto.
2.2.4 NCDEQ shall participate in the development and review of
transportation system and emissions modeling activities and
projection procedures to ensure consistency of air quality and
transportation system evaluations.
2.2.5 NCDEQ shall ensure the SIP is developed using appropriate
emissions and control measures. NCDEQ is to develop the
applicable motor vehicle emissions budgets in consultation with the
Parties to ensure that accurate and up-to-date data assumptions are
being used at the initial phases of the development of the SIP by the
deadline established by NCDEQ during the consultation process.
NCDEQ shall update the SIP consistent with federal CAA
requirements.
2.2.6 NCDEQ shall provide applicable transportation-related emissions
budgets and revisions to the NCDOT and USDOT (FHWA and
FTA).
2.2.7 NCDEQ shall keep the Parties apprised of its SIP revision submittals
and USEPA's approval thereof and provide for and respond in writing
to comments made by the NCDOT and the other Parties in
transportation-related SIP development processes.
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2.2.8 NCDEQ shall obtain NCDOT approval for the inclusion of
transportation-related TCMs (for any TCM funded by the federal and
state transportation budgets or local funds and where the
implementing agency is the NCDOT) in the SIP.
2.2.9 NCDEQ shall provide a list of TCMs included in the SIP as well as
their SIP implementation schedules at the Interagency Consultation
Conformity Determination Meeting.
2.2.10 Upon initiating a modification or revision to the SIP, NCDEQ shall
consult with NCDOT, which will include the assessment of
effectiveness of existing TCMs and implementation of potential
TCMs for inclusion in the SIP. A draft version of the SIP will be
shared with the Parties, at a minimum, thirty (30) days prior to the
public comment period ending.
2.2.11 NCDEQ shall consult and review project narratives provided by
NCDOT or appropriate project sponsor to determine if a roadway
project is an air quality concern pursuant to 40 CFR, Part 93.
2.2.12 NCDEQ, at the written request of NCDOT, shall provide appropriate
emissions modeling results to NCDOT for completion of the
conformity analysis. NCDEQ shall provide a schedule for completion
of work within two (2) business days of the written request. NCDEQ
shall consult with NCDOT for the availability and appropriate use of
local data in the latest USEPA-approved emissions model.
2.2.13 NCDEQ shall review and provide comments to the NCDOT on draft
conformity analyses. NCDEQ shall provide timely review comments
to the NCDOT within twenty-one (21) days of receipt for inclusion in
the final report in accordance with the terms and conditions of this
Agreement.
2.3 FHWA and FTA (USDOT) DUTIES
2.3.1 FHWA and FTA shall consult with the Parties regarding the SICM
Meetings, the Interagency Consultation Conformity Determination
Meetings, and other appropriate committees/meetings established to
advise the Parties on the development of transportation plans,
programs, and projects, particularly as these relate to air quality-
related issues.
2.3.2 FHWA and FTA shall advise the Parties of changes to USDOT
technical, regulatory, and policy guidance as it relates to the planning
process and conformity.
2.3.3 FHWA and FTA shall assist NCDEQ and NCDOT as needed for
modifications or revisions to the SIP, which will include the
assessment of effectiveness of existing TCMs and implementation of
potential TCMs for inclusion in the SIP.
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2.3.4 FHWA and FTA shall assess the NCDOT's compliance with public
participation policy and procedures that meet the requirements of 23
CFR 450.316(a) and 40 CFR 93.105(e).
2.3.5 FHWA and FTA shall provide written comments to the other Parties
concerning both draft and final conformity findings in accordance
with the terms of this Agreement. The final conformity finding made
by FHWA shall be consistent with the requirements of the national
conformity memorandum of understanding.
2.3.6 FHWA shall review and provide timely approval or rejection, in
writing, of the final conformity determination report by the NCDOT
of an amended and/or adopted transportation plan, program, or
project subject to conformity analysis and determination according to
this Agreement by the dates agreed to in the Interagency Consultation
Conformity Determination Meetings.
2.3.7 The FHWA will coordinate the federal review effort and will forward
copies of the draft or final TIP document and related conformity
determination to the FTA and USEPA unless an alternate
coordination process is specified through interagency consultation.
2.3.8 In accordance with 40 CFR 93.125(c), prior to making a project-level
conformity determination for a transportation project, FHWA must
obtain from the project sponsor and/or operator written commitments,
as defined in 40 CFR 93.101, to implement any project-level
mitigation or control measures in the construction or operation of the
project identified as conditions for NEPA process completion. The
written commitments to implement those project-level mitigation or
control measures must be fulfilled by the appropriate entities.
2.3.9 FHWA shall be responsible for final approval or rejection of project-
level conformity determinations on FHWA projects.
2.4 USEPA DUTIES
2.4.1 USEPA shall participate in the SICM Meetings, the Interagency
Consultation Conformity Determination Meetings, and other
appropriate committees/meetings established to advise the Parties on
the development of transportation plans, programs, and projects,
particularly as these relate to air quality-related issues.
2.4.2 USEPA shall advise the Parties of changes to USEPA policy,
regulation, and guidance related to air quality and conformity.
2.4.3 USEPA shall review and comment, in writing to FHWA and the
NCDOT, on draft and final conformity analyses in accordance with
the terms of this Agreement and consistent with the requirements of
the national conformity memorandum of understanding within
twenty-one (21) days of receipt.
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2.4.4 USEPA shall assist NCDEQ and NCDOT as needed for
modifications or revisions to the SIP, which will include the
assessment of effectiveness of existing TCMs and implementation of
potential TCMs for inclusion in the SIP.
2.4.5 USEPA shall review the adequacy of the motor vehicle emissions
budgets, and determine the approvability of submitted SIPs,
including the Conformity SIP (the subject of this MOA) and any
subsequent revisions, and of control strategy SIPs and any revisions.
USEPA's determination of approvability shall be in writing and
provided to all Parties.
2.4.6 USEPA shall be consulted with and will review compliance for
hotspot requirements related to individual FHWA/FTA projects and
provide comment in writing.
3.0 CONTENT AND SUBMISSION OF TRANSPORTATION PLANS, PROGRAMS,
AND PROJECTS
3.1 CONTENT AND DESIGN
The STIP programs and/or projects to be analyzed for conformity shall meet the
requirements of the current federal transportation authorizing legislation, and the most
current USDOT and USEPA regulations. At the time that a new or revised
transportation plan is proposed, NCDOT and local transportation planning agencies,
shall prepare a list of new or modified transportation projects and services included in
the transportation plan and identify the time frame each new project or service is
expected to become operational.
3.2 PUBLIC PARTICIPATION
Conformity determinations for STIPs shall follow the specific public involvement
process established by the MPO, consistent with the requirements of 23 CFR, Part 450,
which provides opportunity for public review and comment prior to formal action on a
conformity determination. The public review must provide reasonable public access to
technical and policy information considered by the affected parties in making the
conformity determination.
Conformity determinations in isolated rural nonattainment and maintenance areas and
rural portions of nonattainment and maintenance areas outside the MPO boundaries
shall follow the specific public involvement process established by NCDOT, consistent
with the requirements of 23 CFR, Part 450, which provides opportunity for public
review and comment prior to formal action to update the STIP.
Any charges imposed for public review and copying should be consistent with
applicable fee schedules including but not limited to 49 CFR 7.43 and North Carolina
General Statute 132-6.2.
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4.0 STATEWIDE INTERAGENCY CONSULTATION MEETINGS
NCDEQ shall sponsor a SICM Meeting on a regular basis for the purpose of keeping all
Parties and all RPOs/MPOs abreast of new information concerning transportation
planning generally and as it relates to conformity analysis and determination.
4.1 MEETING FREQUENCY
SICM meetings shall be held monthly unless otherwise agreed upon by all Parties.
Meeting dates shall be determined by NCDEQ after consultation with the Parties. The
meeting shall consist of updates and other pertinent information provided by each Party.
4.2 SPECIAL MEETINGS
If NCDEQ determines, in consultation with other Parties, a need for an unscheduled
SICM meeting and there is a consensus among the Parties to have an unscheduled
meeting, NCDEQ must provide prior notice to all Parties, at least fourteen (14) days in
advance of the meeting. However, the Parties may waive the fourteen (14) day advance
notice requirement if all Parties agree that an earlier scheduled meeting is in the best
interest of the Parties.
4.3 MEETING LOCATION AND AGENDA
The SICM meeting location shall be determined based upon convenience and
agreement by the Parties. NCDEQ shall provide all Parties, including all RPOs/MPOs,
advance notice of the meeting time, location, and agenda. If necessary and convenient,
the SICM meeting need not be a face-to-face meeting but may occur by telephone,
video, or some other practical electronic means.
4.4 DISCUSSION OF SIP-RELATED ISSUES
NCDEQ shall use the SICM meeting as an opportunity to update the Parties on SIPs
under development and SIP revisions submitted to USEPA. NCDEQ shall allow the
Parties to review and comment on transportation-related SIP issues and respond to said
comments. See Section 2.0.2 for the general process for commenting and responding to
comments.
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5.0 INITIATING CONFORMITY DETERMINATIONS OR ANALYSIS
The Parties shall make conformity determinations and consultations consistent with this
Agreement and in accordance with the conditions described in 40 CFR, Part 93 for TIPs
and FHWA/FTA projects.
5.1 EXEMPTIONS TO CONFORMITY DETERMINATIONS
5.1.1 Notification of Exempt Status Required -- The NCDOT shall notify
the Parties of adoption or approval of projects determined to be
exempt by the NCDOT and provide a basis for such exempt status.
Notification by the NCDOT shall also be made when the TIP is
revised to add or delete exempt projects as defined in 40 CFR 93.126,
93.127, and 93.128. Notification of deleted projects does not have to
be made prior to an NCDOT action.
5.1.2 Objection to Exempt Determination -- If the Parties disagree with the
NCDOT's finding that the amendment to the TIP contains only
exempt projects, the objecting Party shall notify all Parties in writing.
See Section 9.0 for conflict resolution procedures.
6.0 INTERAGENCY CONSULTATION CONFORMITY DETERMINATION
MEETING
When the need for conformity analysis and determination is initiated in accordance with
this Agreement and aforementioned regulations, the NCDOT shall call an Interagency
Consultation Conformity Determination Meeting to which all Parties of this Agreement
shall be invited by the NCDOT. The Interagency Consultation Conformity
Determination Meeting shall be held prior to performing any conformity analysis or
determination and shall address the specific processes outlined in 40 CFR 93.105(c).
The purpose is to coordinate early with the Parties on information regarding the choice
of some major parameters of the conformity analysis and to determine the schedule of
preparation and review of the analysis. All of the information agreed upon by the
Parties will be documented in the pre-analysis plan. If during the meeting a conflict
arises, the Parties shall follow the conflict resolution procedures as outlined in Section
9.0 of this document.
6.1 NOTICE OF MEETING
The NCDOT shall provide at least fourteen (14) days prior written notice to the Parties
that an Interagency Consultation Conformity Determination Meeting has been
scheduled. Said prior notice shall also be given to local transportation providers
represented by the NCDOT. However, the Parties may waive the fourteen (14) day
advance notice requirement if all Parties agree that an earlier scheduled meeting is in
the best interest of the Parties.
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6.2 MEETING PLACE, TIME AND AGENDA
The meeting shall be scheduled at a time and location that allows representatives from
the Parties to participate. The NCDOT shall distribute to the Parties draft agenda and
meeting materials at least five (5) business days prior to the meeting. The Parties shall
have the opportunity to add agenda items and will be responsible for presenting them. If
it is agreed among the Parties that additional meetings are required, the NCDOT may
schedule such additional meetings.
Attendance at the Interagency Consultation Conformity Determination Meeting may be
by telephone or teleconference so long as all the Parties agree. If some Parties are
unable to attend the Interagency Consultation Conformity Determination Meeting(s),
the NCDOT or its designee shall consider whether meaningful consensus can be
reached with the available Parties. If the NCDOT or its designee determines the overall
Party representation to be adequate, it shall document the meeting and provide all
Parties with a summary of the important discussions and conclusions.
6.3 CONSULTATION ON CONFORMITY ANALYSIS APPROACH
The NCDOT shall outline, in the pre-analysis plan, the proposed methodologies to be
used in the conformity analysis and share the pre-analysis plan with the Parties for
comment at least seven (7) days prior to the meeting unless otherwise agreed upon by
all Parties.
6.3.1 Interagency Consultation Procedures -- The issues listed in 40 CFR
93.105(c) shall be reviewed and discussed at this meeting, including
but not limited to, the following activities:
6.3.1.1 Evaluating and choosing an appropriate model (or
models) and associated methods and assumptions to be
used in hot-spot analyses and regional emissions analyses;
6.3.1.2 Determining which minor arterial and other transportation
projects should be considered Regionally Significant
Projects (RSPs);
6.3.1.3 Evaluating whether projects otherwise exempted from
meeting the requirements of 40 CFR 93.126 and 93.127
should be treated as non-exempt in cases where potential
adverse emissions impacts may exist;
6.3.1.4 Discussing whether or not adopted TCMs are on schedule
and performing as anticipated, as required by 40 CFR
93.113. If TCMs are not on schedule, Parties shall discuss
whether 40 CFR 93.113(c)(1) can be met and what will
occur if 40 CFR 93.113(c)(1) cannot be met;
6.3.1.5 Choosing conformity tests and methodologies for areas
outside the MPO boundary but within the nonattainment
or maintenance area as required by 93.109(g)(2)(iii);
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6.3.1.6 Consulting on emissions analysis for transportation
activities which cross MPO, nonattainment area, or air
basin boundaries;
6.3.1.7 For the metropolitan planning area that does not include
the entire nonattainment or maintenance area, establish a
process involving the NCDOT for cooperative planning
and analysis for the purposes of determining conformity
of all projects outside the metropolitan area and within the
nonattainment or maintenance area;
6.3.1.8 Ensuring that plans for construction of RSPs, that are not
FHWA/FTA projects, are disclosed to the NCDOT on a
regular basis and any changes to those plans disclosed in
writing to the NCDOT;
6.3.1.9 Process for consulting on the design, schedule, and
funding of research, data collection efforts, and regional
transportation model development by the NCDOT;
6.3.1.10 Process for providing final documents and supporting
information to each applicable Party after adoption or
approval as defined in Section 2.1.10;
6.3.1.11 Latest planning assumptions for developing emissions
modeling results for the conformity analysis;
6.3.1.12 Projects without a determined design concept and scope
shall be discussed at the Interagency Consultation
Conformity Determination Meeting; and
6.3.1.13 Parties must agree on sufficient details of the design
concept and scope for the project to be included in the
conformity analysis and determination.
6.3.2 TCM Analysis and Implementation -- The Interagency Consultation
Conformity Determination Meeting shall be used for assuring
implementation of TCMs, which shall be a joint responsibility of
NCDEQ and the NCDOT. NCDEQ shall submit (at the Interagency
Consultation Conformity Determination Meeting) a list of the TCMs
and their implementation schedules included in the applicable SIP, to
be included in the TIP.
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6.3.3 Scheduling Implementation -- NCDEQ or its designee (at the request
of the NCDOT) shall provide the emissions modeling results to the
NCDOT within a time agreed upon during the interagency
consultations and to allow the NCDOT sufficient time to complete
the conformity analysis on schedule. Additional meetings to address
schedule changes or modifications shall be scheduled as needed. Due
to the difficulty in assembling all Parties at one time, subsequent
meetings may involve various subsets of the larger group. However,
pertinent information discussed in these sub-meetings shall be shared
with the other Parties as defined in Section 2.1.2.
6.3.4 TIP Conformity Analysis and Determination -- The NCDOT shall
also discuss the STIP as it relates to conformity-related issues. The
discussion of the STIP conformity analysis and determination may be
made via e-mail or postal mail unless a Party member identifies
sufficient reasons for including such discussions in a scheduled face-
to-face meeting. If e-mail or postal mail is used, the NCDOT shall
outline the manner in which the upcoming STIP conformity
determination is to be carried out. The NCDOT shall inform the
Parties of any proposed changes in procedure from the last STIP
Conformity Analysis and Determination. The review and
commenting procedures are outlined in Section 2.0.2.
7.0 CONFORMITY ANALYSIS RESULTS AND REPORTING
The draft conformity analysis report shall be circulated to the Parties defined during the
Interagency Consultation Conformity Determination Meeting for their review prior to
releasing said draft report for public review as required by Title 15A NCAC 02D .2003.
After the Parties' twenty-one (21) day review period, or review period agreed upon by
all Parties, the NCDOT shall provide public review and comments of the draft report in
accordance with the NCDOT's public participation policies and procedures. The
NCDOT shall not make a conformity determination or plan adoption or approval until
after the agency review is completed or the required review period has ended and after
public participation.
7.1 DOCUMENTATION OF CONFORMITY ANALYSIS
The conformity analysis shall document all assumptions and relevant information used
to determine the impact of the TIP or FHWA/FTA project on travel and emissions in
the region.
Contents of the Regional Conformity Analysis Report -- The conformity analysis report
shall include, but not be limited to, the following documentation:
7.1.1 Forecasts of population, households, and employment in the analysis;
7.1.2 Mobile model inputs and outputs used to develop road network
emissions modeling results; and
7.1.3 VMT and average speed for each federal functional classification.
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7.2 COMMENTS BY THE PARTIES AND THE PUBLIC
The Parties may comment upon the analysis results after receiving the results of the
draft conformity analysis and report. The results shall also be made available to the
public for review and comment in accordance with the NCDOT's public participation
policy and procedures and 23 CFR 450.316(a) and 40 CFR 93.105(e).
7.2.1 Evaluation of Comments from the Public -- After the completion of
the public comment period, the comments received from the public
on the conformity analysis shall be addressed in the final report and
may be raised in an additional meeting between the Parties.
Comments may be addressed individually or in summary form at the
discretion of the NCDOT.
7.2.2 Evaluation of Comments from the Parties -- If the Parties disagree
with the conclusions of the analysis, the NCDOT shall convene a
meeting or consult with the Parties via an electronic communication
means (telephone, teleconference, e-mail, etc.) if agreed to by the
Parties, to consider and discuss the comments and determine
whether further conformity-related analysis is needed.
8.0 CONFORMITY DETERMINATION ADOPTED BY NCDOT RESOLUTION
The NCDOT may make a conformity determination and approval/adoption of the TIP,
RSP, or applicable transit project after addressing conformity-related objections and
concerns raised by both the public and the Parties.
8.1 NOTIFICATION OF NCDOT RESOLUTION
The NCDOT shall provide FHWA with written notification of a conformity
determination by NCDOT resolution within the time period agreed upon during
interagency consultation meetings. The NCDOT shall include, along with the
notification, a copy of the final conformity analysis and report. FHWA will be
responsible for distribution of the final conformity analysis and report to the USEPA
and FTA for formal review.
8.2 NCDEQ OBJECTION TO CONFORMITY DETERMINATION
If NCDEQ objects to the NCDOT's conformity determination, NCDEQ may appeal the
NCDOT determination within fourteen (14) days of receiving notification of the
NCDOT's determination. The appeal process and procedure to be followed shall be in
accordance with the Conflict Resolution Section of this Agreement. Notwithstanding
NCDEQ's right of appeal, NCDEQ may waive its right to object, in writing, at any time
during the fourteen (14) day appeal period.
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9.0 CONFLICT RESOLUTION
The purpose of this Agreement is to ensure that necessary conformity analyses and
determinations are made efficiently and with limited conflict. The Parties believe this
Agreement establishes a means and protocol for consultation and document review that
will avoid conflicts and disagreements among the Parties regarding final conformity
determinations. Nevertheless, a means must be established to address the possibility
that certain conflicts may arise that cannot be resolved among the designated
representatives of the Parties. It is the purpose of this Section to address such situations.
9.1 RESOLUTION OF CONFLICTS AT THE STATE LEVEL
9.1.1 Conflicts Arising Prior to Conformity Determination -- Any conflict
or disagreement between NCDOT and NCDEQ causing a lack of
consensus among the state Parties as to acceptance of NCDOT
conformity analysis may be resolved in the manner described below.
If NCDEQ objects to the proposed conformity analysis prior to the
NCDOT making a conformity determination by resolution, the issue
may be resolved by the following procedure:
9.1.1.1 Level I Resolution -- After the objecting Party gives five
(5) days written notice to the other Party members
explaining the reasons for objection, each staff level
Party member shall forward written objections to the
Level I Resolution Negotiators who are defined as
follows:
NCDOT -- the Transportation Planning Division Director
NCDEQ -- the Division of Air Quality Director
The Level I Resolution negotiators shall have five (5)
business days, from notice, to resolve the matter by
mutually agreed upon meeting forum, including, but not
limited to, face-to-face meetings, telephone, and e-mail.
9.1.1.2 Level II Resolution - If the Level I Resolution
Negotiators are unable to resolve the dispute, it may be
raised to Level II Resolution negotiators who are defined
as follows:
NCDOT -- The Secretary of the NCDOT
NCDEQ -- The Secretary of NCDEQ
The Level II Resolution Negotiators shall have ten (10)
business days to resolve the matter by mutually agreed
upon meeting forum, including, but not limited to face-
to-face meetings, telephone, and e-mail.
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9.1.2 Conflicts Arising After NCDOT Regional Conformity
Determination -- After the NCDOT has made its conformity
determination by resolution and adoption/approval, NCDEQ may
appeal said conformity determination by resolution and
adoption/approval to the Governor of North Carolina within
fourteen (14) days of confirmation that NCDEQ received notice. If
NCDEQ appeals to the Governor, the final conformity analysis and
determination must have the concurrence of the Governor of North
Carolina. NCDEQ shall provide written notice of appeal under this
Subsection to the Secretary of NCDOT, the FHWA North Carolina
Division Administrator, and the USEPA and FTA Region 4
Administrators. Notwithstanding NCDEQ's right of appeal, if
NCDEQ supports the final conformity determination, NCDEQ may
voluntarily waive its right of appeal, in writing.
9.1.2.1 Resolution of NCDEQ Appeal -- The Governor may
delegate his or her role in this appeals process to another
official or agency within the State, but not to the head or
staff of NCDEQ, NCDOT, the North Carolina Board of
Transportation, or any agency that has responsibility for
any one of these functions.
If the NCDEQ does not appeal to the Governor within
fourteen (14) days of the NCDOT's notification of
conformity on the TIP, the NCDOT may continue
submission of its conformity determination to USDOT
for their final review and conformity determination. The
NCDOT does not have to make conformity
determinations on projects.
9.2 RESOLUTION OF CONFLICTS AT THE FEDERAL LEVEL
It is the affirmative responsibility of FHWA and FTA to raise issues prior to the end of
any agreed upon review period. If FHWA or FTA determines there is a significant
issue, it is that agency's affirmative responsibility to arrange a meeting with the Parties
to resolve the issue prior to writing negative comments or finding that the TIP in
question does not conform to the intent of the SIP.
If, after the fourteen (14) day prior notice of the NCDOT's final conformity
determination by resolution and approval/adoption, NCDEQ has not appealed said final
conformity determination (or waived its right to appeal earlier), FHWA and FTA may
provide written approval or rejection of the final conformity determination within forty-
five (45) days of notice of the final conformity determination.
9.2.1 Consensus Among Federal Agencies -- If, within the forty-five (45)
day period the FHWA and FTA are in disagreement over the
approval or rejection of the conformity determination, the FHWA
and FTA may escalate the conflict among their respective agencies
in an attempt to resolve the issue within the forty-five (45) days'
time period.
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9.2.2 Rejection by the Federal Agencies -- If the FHWA and FTA reject
the conformity determination, the NCDOT or NCDEQ may appeal
said rejection to the Secretary of USDOT.
9.2.3 No Action after Forty-Five (45) Days -- If after forty-five (45) days,
no written approval or rejection has been provided from FHWA and
FTA, the Secretary of NCDOT, the Secretary of NCDEQ may
provide a written request of review by the Secretary of the USDOT
seeking a resolution among the FHWA and FTA.
10.0 MODIFICATIONS OF AGREEMENT
10.1 The Parties may propose revision(s) to this MOA, and request that Parties meet
to consider such a revision. A change in duties will require this MOA to be
reviewed.
10.2 The NCDEQ may make administrative amendments if necessary to preserve the
accuracy and integrity of this MOA. The following administrative amendments
shall not require the Parties to sign a new MOA:
10.2.1 Change information that is readily available to the public, such as
when an organization or position is renamed;
10.2.2 Correct a citation to a referenced law or regulation when the citation
has become inaccurate because of the repeal or reorganization of the
cited text; or
10.2.3 Correct a typographical error.
If an administrative amendment is made, documentation of the change shall be
submitted to each of the Parties. If no Party provides objections to the revision
within twenty-one (21) days of receipt, the revised Agreement shall be adopted
as final.
If a Party provides objections to the administrative amendment within twenty-
one (21) days of receipt, the NCDEQ shall attempt to resolve the issue. If
consensus cannot be obtained by the Parties, the revised Agreement shall not be
adopted as final.
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11.0 SAVINGS PROVISIONS AND OTHER
11.1 This MOA does not change any of the requirements and obligations contained
in any existing law or regulation, including but not limited to CAA,
transportation conformity regulations (40 CFR Parts 51 and 93), NEPA, or 15A
NCAC. In the event of conflict between the provisions of this Agreement and
an existing regulatory provision, the regulatory provision shall prevail.
11.2 Upon its execution by the Parties, this MOA supersedes any and all previous
Agreements between the signatories with respect to matters addressed herein.
11.3 This MOA does not create any, nor does it affect any existing, administrative or
judicial right of the Parties.
11.4 If any provision of this MOA is rendered or declared invalid by any final court
action or decree, or by reason of preemptive legislation, the remaining Sections
of this MOA shall remain in full force and effect for the duration of the MOA.
11.5 Unless otherwise specified, in computing any period of time prescribed or
allowed in this MOA, Rule 6 "Time" of the North Carolina Rules of Civil
Procedure shall apply.
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT on
this the _________________ day of _________________, 2021.
NCDOT
By: _______________________________
Name: _______________________________
Title: _______________________________
15th
J. Eric Boyette
Secretary, NCDOT
February
23 of 25 Rural MOA
IN WITNESS WHEREOF, the parties have executed this AGREEMENT
on this the day of -DQXDU\, 202.
USEPA
By:_____________________________
Name:'DQLHO%ODFNPDQ
Title:5HJLRQDO$GPLQLVWUDWRU5HJLRQ
DANIEL BLACKMAN
Digitally signed by DANIEL
BLACKMAN
Date: 2023.01.27 19:07:10 -05'00'
24 of 25 Rural MOA
IN WITNESS WHEREOF, the parties have executed this AGREEMENT on
this the _________________ day of _________________, 2021.
FHWA
By: _______________________________
Name: _______________________________
Title: _______________________________
9th March
John F. Sullivan III
Division Administrator
25 of 25 Rural MOA
IN WITNESS WHEREOF, the parties have executed this AGREEMENT
on this the 9th day of March, 2021.
FTA
By: _______________________________
Name: Yvette Taylor, PhD
Title: Regional Administrator
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