42 U.S.C. § 7506 : US Code - Section 7506: Limitations on certain Federal assistance

Search 42 U.S.C. § 7506 : US Code - Section 7506: Limitations on certain Federal assistance

(a), (b) Repealed. Pub. L. 101-549, title I, Sec. 110(4), Nov. 15,
1990, 104 Stat. 2470
(c) Activities not conforming to approved or promulgated plans
(1) No department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or provide financial
assistance for, license or permit, or approve, any activity which
does not conform to an implementation plan after it has been
approved or promulgated under section 7410 of this title. No
metropolitan planning organization designated under section 134 of
title 23, shall give its approval to any project, program, or plan
which does not conform to an implementation plan approved or
promulgated under section 7410 of this title. The assurance of
conformity to such an implementation plan shall be an affirmative
responsibility of the head of such department, agency, or
instrumentality. Conformity to an implementation plan means - 
(A) conformity to an implementation plan's purpose of
eliminating or reducing the severity and number of violations of
the national ambient air quality standards and achieving
expeditious attainment of such standards; and
(B) that such activities will not - 
(i) cause or contribute to any new violation of any standard
in any area;
(ii) increase the frequency or severity of any existing
violation of any standard in any area; or
(iii) delay timely attainment of any standard or any required
interim emission reductions or other milestones in any area.
The determination of conformity shall be based on the most recent
estimates of emissions, and such estimates shall be determined from
the most recent population, employment, travel and congestion
estimates as determined by the metropolitan planning organization
or other agency authorized to make such estimates.
(2) Any transportation plan or program developed pursuant to
title 23 or chapter 53 of title 49 shall implement the
transportation provisions of any applicable implementation plan
approved under this chapter applicable to all or part of the area
covered by such transportation plan or program. No Federal agency
may approve, accept or fund any transportation plan, program or
project unless such plan, program or project has been found to
conform to any applicable implementation plan in effect under this
chapter. In particular - 
(A) no transportation plan or transportation improvement
program may be adopted by a metropolitan planning organization
designated under title 23 or chapter 53 of title 49, or be found
to be in conformity by a metropolitan planning organization until
a final determination has been made that emissions expected from
implementation of such plans and programs are consistent with
estimates of emissions from motor vehicles and necessary
emissions reductions contained in the applicable implementation
plan, and that the plan or program will conform to the
requirements of paragraph (1)(B);
(B) no metropolitan planning organization or other recipient of
funds under title 23 or chapter 53 of title 49 shall adopt or
approve a transportation improvement program of projects until it
determines that such program provides for timely implementation
of transportation control measures consistent with schedules
included in the applicable implementation plan;
(C) a transportation project may be adopted or approved by a
metropolitan planning organization or any recipient of funds
designated under title 23 or chapter 53 of title 49, or found in
conformity by a metropolitan planning organization or approved,
accepted, or funded by the Department of Transportation only if
it meets either the requirements of subparagraph (D) or the
following requirements - 
(i) such a project comes from a conforming plan and program;
(ii) the design concept and scope of such project have not
changed significantly since the conformity finding regarding
the plan and program from which the project derived; and
(iii) the design concept and scope of such project at the
time of the conformity determination for the program was
adequate to determine emissions.
(D) Any project not referred to in subparagraph (C) shall be
treated as conforming to the applicable implementation plan only
if it is demonstrated that the projected emissions from such
project, when considered together with emissions projected for
the conforming transportation plans and programs within the
nonattainment area, do not cause such plans and programs to
exceed the emission reduction projections and schedules assigned
to such plans and programs in the applicable implementation plan.
(E) The appropriate metropolitan planning organization shall
redetermine conformity of existing transportation plans and
programs not later than 2 years after the date on which the
Administrator - 
(i) finds a motor vehicle emissions budget to be adequate in
accordance with section 93.118(e)(4) of title 40, Code of
Federal Regulations (as in effect on October 1, 2004);
(ii) approves an implementation plan that establishes a motor
vehicle emissions budget if that budget has not yet been
determined to be adequate in accordance with clause (i); or
(iii) promulgates an implementation plan that establishes or
revises a motor vehicle emissions budget.
(3) Until such time as the implementation plan revision referred
to in paragraph (4)(C) is approved, conformity of such plans,
programs, and projects will be demonstrated if - 
(A) the transportation plans and programs - 
(i) are consistent with the most recent estimates of mobile
source emissions;
(ii) provide for the expeditious implementation of
transportation control measures in the applicable
implementation plan; and
(iii) with respect to ozone and carbon monoxide nonattainment
areas, contribute to annual emissions reductions consistent
with sections 7511a(b)(1) and 7512a(a)(7) of this title; and
(B) the transportation projects - 
(i) come from a conforming transportation plan and program as
defined in subparagraph (A) or for 12 months after November 15,
1990, from a transportation program found to conform within 3
years prior to November 15, 1990; and
(ii) in carbon monoxide nonattainment areas, eliminate or
reduce the severity and number of violations of the carbon
monoxide standards in the area substantially affected by the
project.
With regard to subparagraph (B)(ii), such determination may be
made as part of either the conformity determination for the
transportation program or for the individual project taken as a
whole during the environmental review phase of project
development.
(4) Criteria and procedures for determining conformity. - 
(A) In general. - The Administrator shall promulgate, and
periodically update, criteria and procedures for determining
conformity (except in the case of transportation plans, programs,
and projects) of, and for keeping the Administrator informed
about, the activities referred to in paragraph (1).
(B) Transportation plans, programs, and projects. - The
Administrator, with the concurrence of the Secretary of
Transportation, shall promulgate, and periodically update,
criteria and procedures for demonstrating and assuring conformity
in the case of transportation plans, programs, and projects.
(C) Civil action to compel promulgation. - A civil action may
be brought against the Administrator and the Secretary of
Transportation under section 7604 of this title to compel
promulgation of such criteria and procedures and the Federal
district court shall have jurisdiction to order such
promulgation.
(D) The procedures and criteria shall, at a minimum - 
(i) address the consultation procedures to be undertaken by
metropolitan planning organizations and the Secretary of
Transportation with State and local air quality agencies and
State departments of transportation before such organizations
and the Secretary make conformity determinations;
(ii) address the appropriate frequency for making conformity
determinations, but the frequency for making conformity
determinations on updated transportation plans and programs
shall be every 4 years, except in a case in which - 
(I) the metropolitan planning organization elects to update
a transportation plan or program more frequently; or
(II) the metropolitan planning organization is required to
determine conformity in accordance with paragraph (2)(E); and
(iii) address how conformity determinations will be made with
respect to maintenance plans.
(E) Inclusion of criteria and procedures in sip. - Not later
than 2 years after August 10, 2005, the procedures under
subparagraph (A) shall include a requirement that each State
include in the State implementation plan criteria and procedures
for consultation required by subparagraph (D)(i), and enforcement
and enforceability (pursuant to sections 93.125(c) and
93.122(a)(4)(ii) of title 40, Code of Federal Regulations) in
accordance with the Administrator's criteria and procedures for
consultation, enforcement and enforceability.
(F) Compliance with the rules of the Administrator for
determining the conformity of transportation plans, programs, and
projects funded or approved under title 23 or chapter 53 of title
49 to State or Federal implementation plans shall not be required
for traffic signal synchronization projects prior to the funding,
approval or implementation of such projects. The supporting
regional emissions analysis for any conformity determination made
with respect to a transportation plan, program, or project shall
consider the effect on emissions of any such project funded,
approved, or implemented prior to the conformity determination.
(5) Applicability. - This subsection shall apply only with
respect to - 
(A) a nonattainment area and each pollutant for which the area
is designated as a nonattainment area; and
(B) an area that was designated as a nonattainment area but
that was later redesignated by the Administrator as an attainment
area and that is required to develop a maintenance plan under
section 7505a of this title with respect to the specific
pollutant for which the area was designated nonattainment.
(6) Notwithstanding paragraph 5,(!1) this subsection shall not
apply with respect to an area designated nonattainment under
section 7407(d)(1) of this title until 1 year after that area is
first designated nonattainment for a specific national ambient air
quality standard. This paragraph only applies with respect to the
national ambient air quality standard for which an area is newly
designated nonattainment and does not affect the area's
requirements with respect to all other national ambient air quality
standards for which the area is designated nonattainment or has
been redesignated from nonattainment to attainment with a
maintenance plan pursuant to section 7505a (!2) of this title
(including any pre-existing national ambient air quality standard
for a pollutant for which a new or revised standard has been
issued).
(7) Conformity horizon for transportation plans. - 
(A) In general. - Each conformity determination required under
this section for a transportation plan under section 134(i) of
title 23 or section 5303(i) of title 49 shall require a
demonstration of conformity for the period ending on either the
final year of the transportation plan, or at the election of the
metropolitan planning organization, after consultation with the
air pollution control agency and solicitation of public comments
and consideration of such comments, the longest of the following
periods:
(i) The first 10-year period of any such transportation plan.
(ii) The latest year in the implementation plan applicable to
the area that contains a motor vehicle emission budget.
(iii) The year after the completion date of a regionally
significant project if the project is included in the
transportation improvement program or the project requires
approval before the subsequent conformity determination.
(B) Regional emissions analysis. - The conformity determination
shall be accompanied by a regional emissions analysis for the
last year of the transportation plan and for any year shown to
exceed emission budgets by a prior analysis, if such year extends
beyond the applicable period as determined under subparagraph
(A).
(C) Exception. - In any case in which an area has a revision to
an implementation plan under section 7505a(b) of this title and
the Administrator has found the motor vehicles emissions budgets
from that revision to be adequate in accordance with section
93.118(e)(4) of title 40, Code of Federal Regulations (as in
effect on October 1, 2004), or has approved the revision, the
demonstration of conformity at the election of the metropolitan
planning organization, after consultation with the air pollution
control agency and solicitation of public comments and
consideration of such comments, shall be required to extend only
through the last year of the implementation plan required under
section 7505a(b) of this title.
(D) Effect of election. - Any election by a metropolitan
planning organization under this paragraph shall continue in
effect until the metropolitan planning organization elects
otherwise.
(E) Air pollution control agency defined. - In this paragraph,
the term "air pollution control agency" means an air pollution
control agency (as defined in section 7602(b) of this title) that
is responsible for developing plans or controlling air pollution
within the area covered by a transportation plan.
(8) Substitution of transportation control measures. - 
(A) In general. - Transportation control measures that are
specified in an implementation plan may be replaced or added to
the implementation plan with alternate or additional
transportation control measures - 
(i) if the substitute measures achieve equivalent or greater
emissions reductions than the control measure to be replaced,
as demonstrated with an emissions impact analysis that is
consistent with the current methodology used for evaluating the
replaced control measure in the implementation plan;
(ii) if the substitute control measures are implemented - 
(I) in accordance with a schedule that is consistent with
the schedule provided for control measures in the
implementation plan; or
(II) if the implementation plan date for implementation of
the control measure to be replaced has passed, as soon as
practicable after the implementation plan date but not later
than the date on which emission reductions are necessary to
achieve the purpose of the implementation plan;
(iii) if the substitute and additional control measures are
accompanied with evidence of adequate personnel and funding and
authority under State or local law to implement, monitor, and
enforce the control measures;
(iv) if the substitute and additional control measures were
developed through a collaborative process that included - 
(I) participation by representatives of all affected
jurisdictions (including local air pollution control
agencies, the State air pollution control agency, and State
and local transportation agencies);
(II) consultation with the Administrator; and
(III) reasonable public notice and opportunity for comment;
and
(v) if the metropolitan planning organization, State air
pollution control agency, and the Administrator concur with the
equivalency of the substitute or additional control measures.
(B) Adoption. - (i) Concurrence by the metropolitan planning
organization, State air pollution control agency and the
Administrator as required by subparagraph (A)(v) shall constitute
adoption of the substitute or additional control measures so long
as the requirements of subparagraphs (A)(i), (A)(ii), (A)(iii)
and (A)(iv) are met.
(ii) Once adopted, the substitute or additional control
measures become, by operation of law, part of the State
implementation plan and become federally enforceable.
(iii) Within 90 days of its concurrence under subparagraph
(A)(v), the State air pollution control agency shall submit the
substitute or additional control measure to the Administrator for
incorporation in the codification of the applicable
implementation plan. Nothwithstanding (!3) any other provision of
this chapter, no additional State process shall be necessary to
support such revision to the applicable plan.
(C) No requirement for express permission. - The substitution
or addition of a transportation control measure in accordance
with this paragraph and the funding or approval of such a control
measure shall not be contingent on the existence of any provision
in the applicable implementation plan that expressly permits such
a substitution or addition.
(D) No requirement for new conformity determination. - The
substitution or addition of a transportation control measure in
accordance with this paragraph shall not require - 
(i) a new conformity determination for the transportation
plan; or
(ii) a revision of the implementation plan.
(E) Continuation of control measure being replaced. - A control
measure that is being replaced by a substitute control measure
under this paragraph shall remain in effect until the substitute
control measure is adopted by the State pursuant to subparagraph
(B).
(F) Effect of adoption. - Adoption of a substitute control
measure shall constitute rescission of the previously applicable
control measure.
(9) Lapse of conformity. - If a conformity determination required
under this subsection for a transportation plan under section
134(i) of title 23 or section 5303(i) of title 49 or a
transportation improvement program under section 134(j) of such
title 23 or under section 5303(j) of such title 49 is not made by
the applicable deadline and such failure is not corrected by
additional measures to either reduce motor vehicle emissions
sufficient to demonstrate compliance with the requirements of this
subsection within 12 months after such deadline or other measures
sufficient to correct such failures, the transportation plan shall
lapse.
(10) Lapse. - In this subsection, the term "lapse" means that the
conformity determination for a transportation plan or
transportation improvement program has expired, and thus there is
no currently conforming transportation plan or transportation
improvement program.
(d) Priority of achieving and maintaining national primary ambient
air quality standards
Each department, agency, or instrumentality of the Federal
Government having authority to conduct or support any program with
air-quality related transportation consequences shall give priority
in the exercise of such authority, consistent with statutory
requirements for allocation among States or other jurisdictions, to
the implementation of those portions of plans prepared under this
section to achieve and maintain the national primary ambient air-
quality standard. This paragraph extends to, but is not limited
to, authority exercised under chapter 53 of title 49, title 23, and
the Housing and Urban Development Act.