La. Admin. Code tit. 33 § III-1434

Current through Register Vol. 50, No. 6, June 20, 2024

Section III-1434 - Consultation

A. Pursuant to 40 CFR 93.105 interagency consultation (federal, state, and local) shall be undertaken before making conformity determinations and before adopting applicable State Implementation Plan (SIP) revisions.

B. Interagency Consultation: General Procedures

1. Representatives of the MPOs, DEQ, and the state and local transportation agencies shall collectively undertake an interagency consultation process in accordance with this Section with local or regional representatives of EPA, FHWA, and FTA on the development of the applicable implementation plan, the list of TCMs in the applicable implementation plan, the unified planning work program under Title 23 CFR Section 450 . 314, the transportation plan (TP), the TIP, any revisions to the preceding documents, and associated conformity determinations required by this regulation.

2. For the purposes of regular consultation, the affected agencies shall include:

a. DEQ (Louisiana Department of Environmental Quality);

b. DOTD (Louisiana Department of Transportation and Development);

c. EPA Region 6 (Environmental Protection Agency);

d. FHWA Region 6 (Federal Highway Administration);

e. FHWA Louisiana Division Office;

f. FTA (Federal Transit Administration);

g. local publicly-owned transit agencies in nonattainment or maintenance areas; and

h. MPOs (Metropolitan Planning Organizations) in nonattainment or maintenance areas.

3. The MPO, as the lead transportation planning agency, shall have the primary responsibility in the designated nonattainment or maintenance metropolitan area for developing the TP, the TIP, and project-level technical analyses by employing travel-demand modeling techniques, acquiring all necessary data, and coordinating these activities with agencies specified in Paragraph B.2 of this Section. The MPO shall work in consultation with DOTD and local publicly-owned transit agencies in developing these documents. The MPO shall be responsible for providing written notification of all regularly scheduled meetings concerning transportation and related air quality issues to each of the agencies specified in Paragraph B.2 of this Section. Notification shall be not less than seven calendar days prior to the meeting and any scheduling changes shall be coordinated in a timely manner. When the MPO is not the lead transportation planning agency, DOTD shall have the same responsibilities as the MPO in fulfilling all applicable provisions of the consultative process and transportation conformity determinations.

4. The MPO shall notify each agency in Paragraph B.2 of this Section of all transportation planning activities for nonfederal projects that are regionally significant and therefore need to be included in regional emissions analysis when estimating emissions from mobile sources in nonattainment and maintenance areas.

5. DEQ, as air quality lead agency, shall have primary responsibility for developing transportation-related SIPs, air quality modeling demonstrations, emissions inventories, and related activities. Transportation-related SIPs shall be prepared by DEQ with the assistance of the agencies specified in Paragraph B.2 of this Section. DEQ shall distribute documents to all agencies specified in Paragraph B.2 for review and comment. DEQ shall schedule public hearings to receive public comment on transportation-related SIPs. Comments and responses to comments shall be included in applicable SIP submittals to EPA.

6. For purposes of regular consultation, organizational representation shall be defined as follows:

a.MPO-executive director or designee;

b.DEQ-secretary of the Department of Environmental Quality, or designee;

c.DOTD-assistant secretary of the Office of Planning and Programming, or designee;

d.FHWA-division administrator or designee;

e.FTA-director, Office of Program Development or designee;

f.EPA-regional administrator or designee; and

g.Local Publicly-Owned Transit Agencies-general manager or designee.

7. Before adoption and approval of conformity analyses prepared for plans, Transportation Improvement Plans (TIPs), and projects, the Metropolitan Planning Organization (MPO) and/or Department of Transportation and Development (DOTD) shall distribute a final draft of the documents, including supporting technical materials, to the consulting agencies for review and comments. Lead agencies shall respond to significant comments made by the consulting agencies on plans, TIPs, projects, or SIPs in writing within 30 working days. Comments and responses to comments shall be distributed for review by all agencies identified in Paragraph B.2 of this Section. Following resolution of all significant issues, final documents shall be revised accordingly and submitted to the designated lead agency for formal adoption and approval.

8. Meetings of the group of agencies as a whole (as found in Paragraph B.6 of this Section) shall convene for the specific purpose of considering issues with regard to the conformity of TPs, TIPs, and projects with the transportation conformity SIP. The frequency of these meetings shall be determined jointly by the specified transportation and air quality lead agencies. Agencies shall meet on a regular basis, at least quarterly, unless the lead agencies decide there is a need for an earlier meeting or, alternatively, that there is no need for the regularly scheduled meeting. If the comments and issues on draft documents are substantial and warrant a group meeting, the lead agency may schedule a meeting where consultation with all agencies concerned can be accomplished simultaneously for the resolution of comments and issues. Meeting agendas are the responsibility of the designated lead agency.

9. Where TCMs are to be included in applicable SIPs in urbanized nonattainment or maintenance areas, a list of TCMs shall be selected and developed by the MPO in cooperation with other agencies specified in Paragraph B.2. This list of TCMs shall be distributed to all cooperating agencies by DEQ after its review and consultation with the MPO. The list of TCMs shall be made available for inspection or copying for all interested persons and agencies.

C. Interagency Consultation: Specific Procedures

1. An interagency consultation process in accordance with Subsection B of this Section involving the MPO, state and local air quality and transportation agencies, EPA, and DOT shall be undertaken for the following:

a. DEQ, in cooperation with the MPO and/or DOTD, shall evaluate and choose a model(s) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses. Prior to final selection, DEQ shall consult with the agencies specified in Paragraph B.2 of this Section;

b. for purposes of regional emissions analysis, the MPO shall actively consult with the agencies in Paragraph B.2 of this Section to determine which minor arterials and other transportation projects should be considered regionally significant (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. The MPO shall consider the views of each agency that comments or responds in writing prior to any final action on these issues. If the MPO receives no comments within 30 days, the MPO may assume consensus by the agencies specified in Paragraph B.2 of this Section;

c. the MPO shall submit a list of exempt projects to agencies specified in Paragraph B.2 of this Section to evaluate whether projects otherwise exempted from meeting the requirements of 40 CFR Part 93, Subpart A (see Sections 93.126 and 127, as incorporated by reference in LAC 33.III.1432) should be treated as nonexempt in cases where potential adverse emissions impacts may exist for any reason. The MPO shall allow 30 days for comments;

d. the MPO and/or DOTD, in consultation with the agencies in Paragraph B.2 of this Section, shall make a determination, as required by 40 CFR 93.113(c)(1) (as incorporated by reference in LAC 33:III.1432), whether past obstacles to implementation of TCMs that 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 highest priority to approval or funding for TCMs. 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;

e. the MPO and/or DOTD, in consultation with the agencies in Paragraph B.2 of this Section, shall identify, as required by 40 CFR 93.123(b) (as incorporated by reference in LAC 33:III.1432), projects located at sites in PM₁₀ nonattainment areas that have vehicle and roadway emission and dispersion characteristics that are essentially identical to those at sites which have violations verified by monitoring and, therefore, require quantitative PM₁₀ hot-spot analysis;

f. the MPO shall notify the agencies specified in Paragraph B.2 of this Section of transportation plan or TIP amendments that merely add or delete exempt projects listed in 40 CFR 93.126 or 93.127 (as incorporated by reference in LAC 33:III.1432), and allow a 30-day comment period; and

g. DOTD, in consultation with the agencies specified in Paragraph B.2 of this Section, shall cooperatively choose the appropriate conformity test(s) and methodologies for use in isolated rural nonattainment and maintenance areas, as required by 40 CFR 93.109(g)(2)(iii).

2. An interagency consultation process in accordance with Subsection B of this Section involving the MPO and state and local air quality and transportation agencies shall be undertaken for the following:

a. DEQ, in cooperation with the MPO and DOTD, shall evaluate events that will trigger new conformity determinations in addition to those triggering events established in 40 CFR 93.104 (as incorporated by reference in LAC 33:III.1432). DEQ may require a new conformity determination in the event of any unforeseen circumstances; and

b. the MPOs shall share cooperatively the responsibilities of conducting conformity determinations on transportation activities which cross the borders of two or more MPOs' nonattainment or maintenance areas. The MPOs will enter into a memorandum of agreement which will define the effective boundary and the respective responsibilities for each MPO for regional emissions analysis. Adjacent MPOs of nonattainment or maintenance areas shall share information concerning air quality modeling assumptions and emission rates that affect both areas.

3. For the purposes of determining the conformity of all projects outside the metropolitan planning area, but within the nonattainment or maintenance area, the MPO shall enter into a memorandum of agreement involving the MPO and DOTD for cooperative planning and analysis of projects.

4. The MPO, in accordance with Subsection B of this Section and with the cooperation of DOTD and local transportation agencies and recipients of funds designated under Title 23 U.S.C. or the Federal Transit Laws, shall coordinate and ensure that plans for construction of regionally significant projects that are not FHWA/FTA projects including projects for which alternate locations, design concept and scope, or the no-build option are still being considered, as well as all 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 ensure that any changes to those plans are immediately disclosed. The sponsors of non-FHWA/FTA projects and recipients of funds designated under Title 23 U.S.C. or the Federal Transit Laws shall disclose to the MPO on a regular basis significant projects and their status.

5. The MPO, in accordance with Subsection B and Paragraph C.4 of this Section, and other recipients of funds designated under Title 23 U.S.C. or the Federal Transit Laws, shall cooperatively assume the location and design concept and scope of projects that are disclosed to the MPO as required by Paragraph C.4 of this Section, 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 (as incorporated by reference in LAC 33:III.1432).

6. The MPO, in accordance with Subsection B of this Section, shall notify DEQ, DOTD, and local transportation agencies and shall seek their input for the design, schedule, and funding of research and data collection efforts and regional transportation model development by the MPO (e.g., household/travel transportation surveys).

7. Within 15 days subsequent to approval and adoption of final documents, including TPs, TIPs, conformity approvals, applicable implementation plans and implementation plan revisions, the lead agency; that is, either DEQ, the MPO or DOTD, shall provide copies of such documents and supporting information to all agencies specified in Paragraph B.2 of this Section.

D. Resolving Conflicts

1. Any conflicts among state agencies or between state agencies and an MPO shall be remanded to the governor if the conflict cannot be resolved by the heads of the involved agencies.

2. In the event that the MPO or DOTD determines that every effort has been made to address DEQ concerns and no further progress is possible, the MPO or DOTD shall notify the secretary of DEQ in writing to this effect. This Section of the regulation shall be cited by the MPO or DOTD in any notification of a conflict which may require action by the governor.

3. DEQ has 14 calendar days from the date of receipt of notification as required in Paragraph D.2 of this Section to appeal any decision or action under this regulation to the governor. If DEQ appeals to the governor, the final conformity determination must have the concurrence of the governor. DEQ must provide notice of any appeal under this Subsection to the MPO and DOTD. If DEQ does not appeal to the governor within 14 days, the MPO or DOTD (in the absence of an MPO) may proceed with the final conformity determination or action.

4. The governor may delegate the role of hearing any such appeal under this Subsection, but not to the head or staff of DEQ, DOTD, a state transportation commission or board, or an MPO.

E. Public Consultation Procedures. Consistent with the requirements of 23 CFR 450.316(a), relating to public involvement, affected agencies making conformity determinations on transportation plans, programs, and projects shall establish a proactive public involvement process that provides opportunity for public review and comment. This process shall, at a minimum, provide reasonable public access to technical and policy information considered by the agency at the beginning of the public comment period and before taking formal action on conformity determinations for all transportation plans and TIPs. Any charges imposed for public inspection and copying of conformity-related materials shall be consistent with the fee schedule contained in 49 CFR 7.43. In addition, any such agency must specifically address in writing any public comments claiming that known plans for a regionally significant project that 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. Any such agency shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.

La. Admin. Code tit. 33, § III-1434

Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1278 (November 1994), repromulgated LR 24:1280 (July 1998), amended LR 24:1684 (September 1998), repromulgated LR 24:1925 (October 1998), amended by the Office of Environmental Assessment, Environmental Planning Division, LR 26:2451 (November 2000), amended by the Office of the Secretary, Legal Affairs Division, LR 33:2085 (October 2007), LR 35:462 (March 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2054.