250 R.I. Code R. 250-RICR-120-05-49.7

Current through December 26, 2024

Section 250-RICR-120-05-49.7 - Consultation

A. This rule provides procedures for federal, state, and local interagency consultation, public consultation and resolution of conflicts. Such consultation procedures shall be undertaken by the MPO, RIDOT, RIPTA, and DOT with the Department and EPA before making conformity determinations and by the Department and EPA with the MPO, RIDOT, RIPTA, and DOT in developing applicable implementation plans.

B. Interagency consultation procedures: General factors

1. The MPO, the Department and RIDOT shall undertake an interagency consultation process in accordance with this section with each other and with local or regional offices of EPA, FHWA, and FTA on the development of the applicable implementation plan, the transportation plan, the TIP, and associated conformity determinations. RIPTA shall be provided the opportunity to participate and may participate if they choose.

2. The Department shall be the lead agency responsible for preparing the final document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the applicable implementation plan and the list of TCMs in the approved 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 with respect to the transportation plan, the TIP, any amendments or revisions thereto, and any conformity determinations.

3. In addition to the lead agencies identified in § 49.7(B)(2) of this Part, other agencies entitled to participate in any interagency consultation process under this rule include the RIDOT, RIPTA, FHWA, FTA, and EPA.

4. It shall be the role and responsibility of each lead agency in an interagency consultation process, as specified in § 49.7(B)(2) of this Part, to confer with all other agencies identified under § 49.7(B)(3) of this Part, with an interest in the document to be developed, provide all appropriate information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, conduct the consultation process described in the applicable paragraphs of 40 C.F.R. § 93.105, incorporated in § 49.4 of this Part, where required, assure policy-level contact with those agencies and prior to taking any action, consider the views of each such agency and respond to those views in a timely, substantive written manner prior to any final decision on such document, and assure that such views and written response are made part of the record of any decision or action. It shall be the role and responsibility of each agency specified in § 49.7(B)(3) of this Part, when not fulfilling the role and responsibilities of a lead agency, to confer with the lead agency and other participants in the consultation process, review and comment as appropriate (including comments in writing) on all proposed and final documents and decisions in a timely manner, attend consultation and decision meetings, assure policy-level contact with other participants, provide input on any area of substantive expertise or responsibility (including planning assumptions, modeling, information on status of TCM implementation, and interpretation of regulatory or other requirements), and provide technical assistance to the lead agency or consultation process in accordance with this paragraph when requested.

C. Specific roles, responsibilities, and organizational level of various participants in the interagency consultation process shall be as follows

1. The Department shall be responsible for developing emissions inventories, emissions budgets, air quality modeling, coordinating with the MPO for traffic related modeling, applicable implementation plan demonstrations, including emissions budgets as necessary and any applicable implementation plan TCMs.

2. The MPO shall be responsible for developing transportation plans and TIPs; evaluating TCM transportation impacts; developing transportation and socioeconomic data and planning assumptions for use in emissions analysis to determine conformity of transportation plans, TIPs, and projects; determining regionally significant projects, convening air quality technical review meetings on specific projects when requested by other agencies or as needed, identifying system- or facility-based or other programmatic TCMs; providing technical and policy input on emissions budgets; performing transportation modeling and regional emissions analyses and documenting timely implementation of TCMs needed for conformity assessments.

3. RIDOT shall be responsible for providing technical input on proposed revisions to motor vehicle emissions factors, distributing draft and final project environmental documents to other agencies, and identifying regionally significant highway and rail projects and project changes in the TIP and Long Range Transportation Plan.

4. RIPTA shall be responsible for identifying regionally significant bus transit projects and project changes in the TIP and Long Range Transportation Plan.

5. FHWA and FTA shall be responsible for assuring timely action on final findings of conformity, after consultation with other agencies as provided in this section, providing guidance on the transportation planning process to agencies in interagency consultation.

6. EPA shall be responsible for reviewing, finding adequate, and approving updated motor vehicle emissions budgets and providing guidance on conformity criteria and procedures to agencies in interagency consultation.

D. It shall be the affirmative responsibility of the agency with the responsibility for preparing the final document or decision subject to the interagency consultation process to initiate the process by notifying other participants, convene consultation meetings early in the process of decision on the final document, appoint the conveners of technical meetings, and assure that all relevant documents and information are supplied to all participants in the consultation process in a timely manner.

E. Regular consultation on major activities such as the development of an applicable implementation plan, the development of a transportation plan, the development of a TIP, or any determination of air quality conformity on transportation plans or TIPs, shall include meetings at regular, scheduled intervals no less frequently than semiannually, unless the consensus of the group determines that a meeting is not warranted and shall be attended by representatives of each agency. In addition, technical meetings shall be convened as necessary.

F. Each lead agency in the consultation process required under this section (that is, the agency with the responsibility for preparing the final document subject to the interagency consultation process) shall confer with all other agencies identified under § 49.7(B)(3) of this Part, with an interest in the document to be developed, provide all appropriate information to those agencies needed for meaningful input, and, prior to taking any action, consider the views of each such agency and respond to those views in a timely, substantive written manner prior to any final decision on such document. Such views and written response shall be made part of the record of any decision or action.

G. The Department will prepare a list of any TCMs in the approved applicable implementation plan and provide this list to the interagency consultation process in accordance with § 49.7(B) of this Part.

H. Interagency consultation procedures: Specific processes.

1. An interagency consultation process in accordance with § 49.7(B) of this Part, involving the Air Quality Working Group, comprised of the MPO, the Department, RIDOT, RIPTA, EPA, FHWA, and FTA shall be undertaken for the following:

a. Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses to be conducted in accordance with § 49.7(B) of this Part.

b. Determining which 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, to be conducted in accordance with § 49.7(B) of this Part;

c. Evaluating whether projects otherwise exempted from meeting the requirements of 40 C.F.R. § 93 (i.e. projects described in 40 C.F.R. §§ 93.126 and 93.127, incorporated in § 49.4 of this Part) should be treated as non-exempt in cases where potential adverse emissions impacts may exist for any reason, to be conducted in accordance with § 49.7(B) of this Part;

d. Making a determination, as required by 40 C.F.R. § 93.113(c)(1), incorporated in § 49.4 of this Part, 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, to be conducted in accordance with § 49.7(B) of this Part. This consultation process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs or substitute TCMs or other emission reduction measures;

e. Notification of transportation plan or TIP revisions or amendments which merely add or delete exempt projects listed in 40 C.F.R. § 93.126 or 40 C.F.R. § 93.127, to be conducted in accordance with § 49.7(B) of this Part;

f. Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by 40 C.F.R. § 93.109(n)(2)(iii), incorporated in § 49.4 of this Part, to be conducted in accordance with § 49.7(B) of this Part.

g. During preparation of the transportation plan and TIP, the MPO will request that participants of the interagency consultation process identify all non-FHWA/FTA transportation projects and their design concept and scope, including those where detailed design features have not yet been decided, and determine which ones meet the definition of regionally significant for regional emissions modeling. Any recipient of federal funding, as defined in 40 C.F.R. § 93.101, incorporated in § 49.4 of this Part, is required to disclose to the MPO information regarding all non-FHWA/FTA regionally significant projects and any changes to these plans shall be immediately disclosed.

2. An interagency consultation process in accordance with § 49.7(B) of this Part, involving the MPO, the Department, RIDOT, and RIPTA shall be undertaken for the following:

a. Evaluating events which will trigger new conformity determinations in addition to those triggering events established in 40 C.F.R. § 93.104, incorporated in § 49.4 of this Part, to be conducted in accordance with § 49.7(B) of this Part; and

b. Consulting on emissions analysis for transportation activities which cross the borders of MPOs or nonattainment areas or air basins, to be conducted in accordance with § 49.7(B) of this Part.

c. Cooperative planning and analysis for purposes of determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenance area, to be conducted in accordance with § 49.7(B) of this Part.

d. Assurance 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 title 23 U.S.C. or the Federal Transit Act are disclosed to the MPO on a regular basis, and to assure that any changes to those plans are immediately disclosed.

e. A process in accordance with § 49.7(B) of this Part, involving the MPO and other recipients of funds designated under title 23 U.S.C. or the Federal Transit Act shall be undertaken for assuming the location and design concept and scope of projects that are disclosed to the MPO as required by § 49.7(H)(4) of this Part but whose sponsors have not yet decided these features, in sufficient detail to perform the regional emissions analysis according to the requirements of 40 C.F.R. § 93.122, incorporated in § 49.4 of this Part, to be conducted in accordance with § 49.7(B) of this Part.

f. Designing, scheduling, and funding of research and data collection efforts and regional transportation model development by the MPO (e.g., household/ travel transportation surveys), to be conducted in accordance with § 49.7(B) of this Part.

g. Transportation Plan or TIP revisions or amendments that add or delete exempt projects as listed in 40 C.F.R. § 93.126, Table 2, or 40 C.F.R. § 93.127, Table 3.

3. If a Plan or TIP amendment project or action is deemed exempt under the EPA Air Quality Conformity Rule ( 40 C.F.R. §§ 51and 93), the MPO will issue a letter to the Department stating such, and ask the department for their concurrence.

4. The MPO will provide final documents (including the applicable implementation plan, transportation plans, TIPs, plan/TIP amendments and conformity determinations) and supporting information to each agency after approval or adoption. This process is applicable to all agencies including the MPO, RIDOT, RIPTA, the Department, FHWA, FTA and EPA.

I. Resolving conflicts

1. The Department shall refer any conflict between the Department and the MPO concerning a proposed determination of conformity (or other policy decision under this rule) to the Governor if the conflict cannot be resolved by the heads of the involved agencies. The agencies shall make every effort to resolve any differences, including personal meetings between the heads of such agencies or their policy-level representatives, to the extent possible.

2. The Department has fourteen (14) calendar days to appeal a proposed determination of conformity (or other policy decision under this rule) to the Governor after the MPO has notified the Department of the resolution of all comments on such proposed determination of conformity or policy decision. Such 14-day period shall commence when the MPO has confirmed receipt by the director of the Department of the resolution of the comments of the Department. If the Department appeals to the Governor, the final conformity determination must have the concurrence of the Governor. The Department must provide notice of any appeal under this subsection to the MPO. If the Department does not appeal to the Governor within fourteen (14) days, the MPO may proceed with the final conformity determination.

3. 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 Department, RIDOT, any agency that has responsibility for only one of these functions, or the MPO.

J. Public consultation procedures

1. The MPO will follow its adopted public involvement procedures, which were developed in accordance with the requirements for public involvement in 23 C.F.R. § 450, when making conformity determinations on transportation plans, programs, and projects.

2. These procedures establish a proactive public involvement process which provides opportunity for public review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the MPO at the beginning of the public comment period and prior to taking formal action on a conformity determination for the Long Range Transportation Plan and TIP, consistent with these requirements and those of 23 C.F.R. § 450.

3. Meetings of the Air Quality Working Group are open to the public. Any charges imposed for public inspection and copying are consistent with the fee schedule contained in 49 C.F.R. § 7.43. The Air Quality Working Group shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.

4. Additionally, the MPO will address in writing all public comments that plans for regionally significant non-FHWA/FTA projects are not properly reflected in the emissions analysis.

250 R.I. Code R. 250-RICR-120-05-49.7

Amended effective 12/26/2018