This chapter shall be known as the "Washington State Clean Air Conformity Act" hereinafter as "this chapter."

This chapter implements RCW 70.94.037 of the Washington Clean Air Act (chapter 70.94 RCW). The law requires the departments of ecology and transportation to develop criteria and guidance for demonstrating and assuring conformity of transportation plans, programs, and projects to the purpose of the state implementation plan for attaining and maintaining the national ambient air quality standards and meeting the requirements of the federal Clean Air Act (42 U.S.C. 7401) as amended. This chapter is jointly adopted by the departments of ecology and transportation and can be amended only by agreement between the departments. This chapter sets forth minimum requirements for evaluating transportation plans, programs, and projects for conformity with the purpose and intent of state implementation plans for air quality. This chapter clarifies state policy and procedures to achieve national ambient air quality standards, foster long-range planning for attainment and maintenance of those standards, provide at least as stringent requirements as the federal conformity regulation (40 C.F.R. Part 51 Subpart T), provide a basis for evaluating conformity determinations, and guide state, regional, and local agencies in making conformity determinations.

(1) Conformity determinations shall be made for the adoption, acceptance, approval, funding, or support of all transportation plans, improvement programs, and projects located in or affecting nonattainment and maintenance areas for any criteria pollutants.

(2) Regional transportation plans that contain either wholly or partially a nonattainment area for any criteria pollutant shall comply with this chapter. Transportation plans that do not contain either wholly or partially a nonattainment or maintenance area are exempt from this chapter.

(3) Transportation improvement programs shall comply with this chapter. The regional transportation improvement program shall include projects on the regional transportation system; transportation control measures of local government six-year street and road programs developed pursuant to RCW 36.81.121 and 35.77.010; and transit management plans developed pursuant to RCW 35.58.2795. Transportation improvement programs for areas that do not contain either wholly or partially a nonattainment or maintenance area for any criteria pollutants are exempt from this chapter.

(4) Projects contained in the regional transportation improvement program of a metropolitan area boundary and within a county that either wholly or partially contains a nonattainment area shall comply with this chapter. Projects not on the regional transportation system shall be considered to comply with the general provisions of this chapter; however they must be evaluated by the lead agency during compliance with the requirements of the State Environmental Policy Act (SEPA), (chapter 197-11 WAC), to determine if a conformity analysis and determination based upon this chapter is warranted. Preservation or maintenance projects in WAC 173-420-110 are exempt from the conformity requirements of this chapter.

(5) Projects on the regional transportation system that are located outside a nonattainment area but affect traffic or air quality of a nonattainment area shall comply with WAC 173-420-060, 173-420-065 and 173-420-100.

The following definitions will apply unless a different meaning is clearly required by context:

"Criteria pollutants" means air pollutants for which a NAAQS has been promulgated under the federal Clean Air Act (40 C.F.R. 50) and their precursors and, for this chapter, applies only to those pollutants for which nonattainment or maintenance areas have been designated.

"Action scenario" means the future transportation system determined pursuant to the federal transportation conformity regulation (40 C.F.R. Part 51 Subpart T) in a year that is being analyzed for conformity that will result from the implementation of the proposed plan and/or transportation improvement program.

"Baseline scenario" means the transportation system determined pursuant to the federal transportation conformity regulation (40 C.F.R. Part 51 Subpart T) in a year that is being analyzed for conformity that would result from the plan, improvement program, and facilities, services, and activities that are in effect in the year the conformity analysis is being conducted.

"Lead agency" means the agency with primary responsibility for ensuring plan, program, or project compliance with SEPA, (chapter 197-11 WAC).

"Maintenance area" means any geographic region of the United States previously designated nonattainment pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainments subject to the requirement to develop a maintenance plan under section 175A of the CAA, as amended.

"Metropolitan area boundary" (MAB) means an area determined by an agreement between the governor and the MPO as defined in 23 U.S.C. 134.

"Metropolitan planning organization" (MPO) means an organization for each urbanized area of more than fifty thousand people as defined in 23 U.S.C. 134, whose responsibilities include development of transportation plans and improvement programs for those areas.

"Motor vehicle emission budget" means that portion of the total allowable emission defined in a state implementation plan for a certain date for the purpose of meeting attainment or maintenance demonstrations for any criteria pollutant or its precursors, that is allocated by the SIP to highway and transit vehicles.

"National ambient air quality standards" (NAAQS) means air quality standards promulgated for criteria pollutants under the federal Clean Air Act (40 C.F.R. 50). The standard for carbon monoxide is thirty-five parts per million over a one-hour period or nine parts per million over an eight-hour period. The standard for ozone is 0.12 parts per million over a one-hour period. The standard for PM10 is fifty µg/m3 annual arithmetic mean or 150 µg/m3 maximum twenty-four hour average concentration.

"Nonattainment area" means the geographic area designated as not meeting the NAAQS for a criteria pollutant. The boundaries are proposed by the governor, approved by the federal Environmental Protection Agency (EPA), and include that area required to implement plans and programs for attainment of the NAAQS published in the federal register.

"Regional transportation system" means the transportation system identified by an MPO in development of planning requirements under the federal Intermodal Surface Transportation Efficiency Act (ISTEA) (P.L. 102-240).

"Regionally significant project" means a transportation project that is on a facility which serves regional transportation needs and would normally be included in the modeling of a metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer an alternative for regional highway travel.

"State implementation plan" (SIP) means a plan as defined in section 302(q) of the CAA and which implements the relevant requirements of the CAA that is intended to eliminate or reduce the severity and number of violations of the national ambient air quality standards and expeditiously achieve those standards, and includes the revision referred to as the maintenance plan that provides for the maintenance of the NAAQS in the area concerned for at least ten years after the redesignation of a nonattaiment area to an attainment area.

"Transportation control measure" (TCM) means a transportation project, program, or action listed in the state implementation plan that will aid in elimination or reduction of the severity or number of violations of the national ambient air quality standards and help expeditiously attain and maintain those standards.

"Transportation improvement program" (TIP) means a schedule of intended transportation improvements (or continuation of current activities) as required in section 134 of Title 23 U.S.C. A TIP shall include projects within the MPO's area that are proposed for funding under Title 23 U.S.C. and the federal Transit Act, projects that are part of or consistent with the transportation plan as previously defined, and transportation control measures that are included in the state implementation plan for meeting NAAQS.

"Transportation plan" means a document that is required under the regulation implementing section 134 of Title 23 U.S.C., and section 8 of the federal Transit Act, and is intended to foster a continuing, cooperative, and comprehensive planning process.

"Transportation projects" means an action that expends funds on or approves physical and/or operational alterations to a transportation system.

(1) Conformity review will include transportation plans, improvement programs, and projects on the regional transportation system. The review utilizes requirements from the federal Clean Air Act, the Washington Clean Air Act (chapter 70.94 RCW), the Growth Management Act (GMA) (chapter 36.70A RCW), the State Environmental Policy Act (SEPA) (chapter 43.21C RCW), and the federal ISTEA (P.L. 102-240).

(2) Identification of transportation plans and improvement programs that affect nonattainment areas, identification of projects on the regional transportation system, and coordination and consistency among plans shall be accomplished through the planning processes required by the GMA and the ISTEA.

(3) Transportation plans and improvement programs on the regional transportation system within metropolitan area boundaries that contain nonattainment areas shall be coordinated through the MPO using the regional planning process required by ISTEA (P.L. 102-240).

(4) Transportation control measures shall be identified and incorporated into plans and programs through the SIP process required by the federal Clean Air Act.

(5) Early and continuous public participation shall be a component of the conformity process pursuant to requirements of the GMA (chapter 36.70A RCW) and ISTEA (P.L. 102-240). At least one public hearing shall be held on transportation plan and improvement program conformity determinations. Such hearings may be combined with general hearings required for the transportation plans or improvement programs. Public comment on project conformity shall be completed as part of the SEPA process (chapter 197-11 WAC).

(6) Disagreement over a conformity determination for a plan or program shall be presented in writing to the MPO and shall identify the changes considered necessary to achieve conformity. The MPO shall convene a meeting or meetings with the contesting party, parties of record, consulted agencies, and the state departments of ecology and transportation within fifteen working days of receipt of the written document contesting the determination. The meeting shall be to review the written reasons for contesting the determination. A written decision stating the changes, if any, in the conformity determination on the plan or program shall be provided to each of the meeting participants. The department of ecology or air pollution control authority may appeal the written decision, provided a written appeal to the governor is filed within fourteen calendar days of the written decision.

(7) Disagreements on project conformity findings shall be addressed through the SEPA process (chapter 197-11 WAC).

(8) If the classification or designation of a nonattainment or maintenance area changes, the next consultation meeting required under WAC 173-420-070 shall incorporate the criteria in the federal transportation conformity regulation (40 C.F.R. Part 93 Subpart A and 40 C.F.R. Part 51 Subpart T) that apply to the new classification or designation for use in all subsequent conformity determinations.

(1) Until EPA redesignates a nonattainment area to an attainment area the status of the applicable SIP shall have the following impact on the conformity of plans, TIPs and projects:

(2) If the applicable SIP is not submitted by the deadline for submittal:

(a) Four months after the applicable deadline no new plan or TIP shall be found to conform; and

(b) Twelve months after the applicable deadline the conformity status of the existing plan and TIP shall lapse and no new project-level conformity determinations shall be made.

(3) If the SIP submittal for a PM10 NAA or for a CO NAA with a design value of 12.7 ppm or greater is found to be incomplete by EPA:

(a) If the incompleteness finding is because measures committed to in the SIP are not in an enforceable form as required by section 110 (a)(2)(A) of the CAA then twelve months after the finding the conformity status of the existing plan and TIP shall lapse;

(b) Four months after the finding no new plan or TIP shall be found to conform; and

(c) Twelve months after the finding the conformity status of the existing plan and TIP shall lapse and no new project-level conformity determinations shall be made.

(4) For a complete SIP for a PM10 NAA or for a CO NAA with a design value of 12.7 ppm or greater or for a maintenance plan disapproved by EPA:

(a) No new plan, TIP or project shall be found to conform;

(b) If the disapproval is because the measures committed to in the SIP are not in an enforceable form as required by section 110 (a)(2)(A) of the CAA then twelve months after the disapproval the conformity status of the existing plan and TIP shall lapse; and

(c) Four months after the disapproval the conformity status of the existing plan and TIP shall lapse and no new project-level conformity determinations shall be made.

(5) If a SIP submitted for a marginal ozone NAA or a CO NAA with a design value less than 12.7 ppm contains control strategies then the requirements of subsections (3) and (4) of this section shall apply.

(6) The provisions of subsections (2), (3), (4), and (5) of this section shall be removed upon receipt of a letter from the EPA regional administrator acknowledging remedying of the deficiencies.

(1) Transportation plans, improvement programs, and projects shall meet the purpose and intent of the current SIP of eliminating or reducing the severity and number of violations of the NAAQS and expeditiously achieving those standards, comply with the federal transportation conformity regulations, (40 C.F.R. Part 51 Subpart T), and shall not preclude the implementation of any transportation control measures identified in the SIP.

(2) All transportation plans, improvement programs, and projects shall comply with the criteria in subsection (3) of this section, in addition to the specific criteria contained in WAC 173-420-080, 173-420-090, and 173-420-100, respectively.

(3) Transportation plans, improvement programs, or projects shall not:

(a) Cause or contribute to any new violation of the NAAQS;

(b) Increase the frequency or severity of any existing violation of the NAAQS; or

(c) Delay the timely attainment of the NAAQS.

(1) All transportation plans, improvement programs, and projects shall comply with the criteria in subsections (2), (3), and (4) of this section.

(2) At all times the following criteria shall be met:

(a) The conformity determination for plans, TIPs, and projects shall:

(i) Be based on the latest planning assumptions.

(ii) Be based on the latest EPA approved emission estimation model available.

(iii) Be made according to the consultation procedures contained in WAC 173-420-070.

(b) The plan and TIP shall provide for the timely implementation of TCMs from the SIP or maintenance plan.

(c) There shall be a currently conforming plan and currently conforming TIP at the time of project approval.

(d) The project shall come from a conforming plan and conforming TIP.

(e) In CO and PM10 nonattainment and maintenance areas the project shall not cause or contribute to any new localized CO or PM10 violations or increase the frequency or severity of any existing CO or PM10 violations.

(f) In PM10 nonattainment and maintenance areas the project shall comply with PM10 measures in the applicable SIP or maintenance plan.

(3) Until approval of an applicable SIP by EPA the following criteria shall also be met:

(a) Plans and TIPs:

(i) In O3 nonattainment areas the action scenario emissions shall be less than the baseline scenario emissions.

(ii) In O3 nonattainment areas the action scenario emissions shall be less than the 1990 emissions.

(iii) In all CO nonattainment areas the action scenario emissions shall be less than the baseline scenario emissions.

(iv) In all CO nonattainment areas the action scenario emissions shall be less than the 1990 emissions.

(v) In CO nonattainment areas with a design value of 12.7 ppm or greater, the emissions shall be less than or equal to the motor vehicle emissions budget.

(vi) In PM10 nonattainment areas the emissions shall be less than or equal to the motor vehicle emissions budget.

(vii) In PM10 nonattainment areas the action scenario emissions shall be less than or equal to the baseline scenario emissions or the 1990 emissions.

(b) Projects in CO nonattainment areas shall eliminate or reduce the severity and number of localized CO violations in the area substantially affected by the project.

(4) After approval of the SIP by EPA or when the maintenance plan is in effect the following criteria shall be met:

(a) The plan and TIP shall be consistent with the Motor Vehicle Emissions Budget (MVEB) in the applicable SIP or maintenance plan.

(b) No additional criteria are required for projects.

(1) Air quality analysis for transportation plans, programs, and projects shall be modeled for criteria pollutants using EPA and the federal Department of Transportation approved methods.

(2) Air quality analysis procedures and methodology used in determining conformity for transportation plans and improvement programs shall be determined through consultation with the MPO, the United States Department of Transportation and the Environmental Protection Agency, the state departments of ecology and transportation, the local air authority, and other interested representatives of the public. The consultation procedure for SIP and maintenance plan development in the applicable SIP shall be used for the consultation process required by this section. The consultation process shall also be used for determining research and data collection efforts, and regional transportation model development, events that will trigger new conformity determinations, the status of TCMs, significant changes in project design and scope, and projects which require PM10 analysis. The specific analysis procedures and methodology selected shall comply with this chapter, the federal transportation conformity regulation (40 C.F.R. Part 51 Subpart T), and the applicable SIP. Agreement on the methods and assumptions including modeling parameters, model accuracy, and the base year against which alternatives are compared, shall be reached on all programs and plans prior to the conformity determination. Procedures, methodologies, and input parameters shall be reviewed and updated at least once every two years under the direction of the departments of ecology and transportation. Such review shall occur prior to conformity determination of transportation plan or TIP revisions.

(3) Procedures, methodologies, and assumptions for project analysis shall be consistent with those procedures, methodologies, and assumptions developed for analysis of transportation plans and improvement programs in subsection (2) of this section.

(4) Each MPO shall conduct conformity analyses of the transportation plan and improvement program developed in its region.

(5) The lead agency shall be responsible for project conformity analysis.

(6) The impact of preferred alternative transportation plans, improvement programs, and projects shall be quantified and compared for compliance to the SIP requirements, and the requirements of WAC 173-420-060, and 173-420-065. If modeling does not indicate that the requirements of this section are met, mitigating measures shall be required and the plan, improvement program, or project remodeled. All else being equal, the alternative with the lowest concentration shall be chosen over all other alternatives.

Transportation plans shall include policies and provisions that promote the reduction of criteria pollutants. Transportation plans shall identify those aspects of the existing transportation system whose modification offers the best opportunity for improving air quality. Transportation plans shall include descriptions of the existing and proposed transportation system in sufficient detail, to permit conformity determinations using the criteria in WAC 173-420-060 and 173-420-065. Plans shall be analyzed with regional emission analysis for criteria pollutants. Local plans that are consistent under RCW 47.80.030 with a conforming regional transportation plan are deemed to comply with this chapter provided that the requirements of WAC 173-420-050 are met. Upon a conformity finding by the MPO, the plan shall be submitted to the United States Department of Transportation for federal conformity determination.

(1) This section applies to all transportation improvement programs that authorize purchase of right of way or that fund construction of projects on the regional transportation system within a metropolitan area boundary of any region that is contained either wholly or partially in a nonattainment area for each criteria pollutant. The metropolitan planning organization that has responsibility for such a program shall complete all program modeling as required herein and shall conduct an analysis to determine conformity with the current SIP. After a conformity finding by the MPO, the TIP shall be submitted to the United States Department of Transportation for federal conformity determination.

(2) The current SIP is the plan that has been adopted by the department of ecology and submitted to the United States Environmental Protection Agency. Upon adoption of a new state implementation plan, a MPO may use the previous SIP for up to ninety days when making conformity determinations on new TIPs. Ninety days after adoption of a new SIP, MPOs shall use the current SIP when making conformity determinations for new TIPs.

(3) Transportation improvement programs shall comply with WAC 173-420-060. After the attainment year, projects contained in a transportation program shall not cause any violations of the NAAQS. Transportation improvement programs shall be consistent with a conforming transportation plan as described in WAC 173-420-080. Local improvement programs that are consistent with a conforming regional TIP are deemed to comply with this chapter provided that the requirements of WAC 173-420-050 are met.

(4) Metropolitan planning organizations shall update TIP conformity findings whenever the TIP is updated. Projects that are no longer current to the program, or that are no longer intended to begin construction within the period of the program, shall be removed from the conformity analysis.

(5) Transportation improvement programs that have been approved and found to conform to the state implementation plan before adoption of this chapter need not be updated until two years after the enactment of this chapter.

(6) The lead agency of each transportation project on the regional transportation system within the MPO's jurisdiction shall submit sufficient documentation to support the MPO's modeling efforts. This documentation shall include design speed, anticipated speed limit, number of lanes, and lane capacity as relevant for all transportation projects that must comply with WAC 173-420-100 and that are not exempted under WAC 173-420-110.

(7) The TIP shall include the status of each transportation control measure in the state implementation plan as an attached appendix. All transportation control measures shall be scheduled for implementation and funded for completion before the proposed attainment demonstration date for each criteria pollutant. Projects in the transportation improvement program shall not interfere with or cause a delay in the implementation of a transportation control measure. Those transportation control measures that are no longer viable shall be documented and removed from the status report.

(1) This section applies to all transportation projects on the regional transportation system regardless of funding base within a metropolitan area boundary of any region that is contained either wholly or partially in a nonattainment area. Projects that are exempted from these requirements because they are deemed to have neutral impact on air quality are listed in WAC 173-420-110.

(2) Transportation projects shall meet the analysis requirements of this section before approval of plans, specifications, and estimates; before acquisition of right of way not exempted under WAC 173-420-110; and before expenditure of funds for construction. In no instance shall funds be obligated nor approvals granted that will commit a lead agency to construction of a project if the requirements of this section have not been met.

(3) Transportation projects on the regional transportation system that are located outside a nonattainment area but affect a nonattainment area shall meet the requirements of this section and SEPA (chapter 197-11 WAC). Such transportation projects need not come from a conforming transportation improvement program.

(4) Any temporary construction-related measures shall not prevent a conformity determination, but shall be subject to permit conditions to minimize pollution during construction.

(5) Transportation projects shall be modeled by the lead agency with the methodology determined in WAC 173-420-070. The lead agency shall provide sufficient documentation to demonstrate to the MPO that the requirements of this section are met. Such transportation projects shall be included in a conforming transportation improvement program as described in WAC 173-420-090.

(6) Transportation projects that are not on the regional transportation system and are located in a MAB with a conforming transportation plan and improvement program are deemed to comply with this chapter. Such projects may include, but are not limited to, intersection signalization and channelization, or construction of local or collector streets. In no instances shall the requirements of WAC 173-420-060 be contravened. Transportation projects that are not on a regional transportation system and are not located in a nonattainment area for criteria pollutants are deemed to comply with this chapter.

(7) Transportation projects that are included in a conforming transportation improvement program and that have completed the public comment period of the environmental review requirements of the SEPA or the NEPA before adoption of this chapter, are not required to comply with the conformity requirements of this chapter unless there are significant changes in the project scope.

The following types of projects because of their nature, will not affect the outcome of any air quality analyses nor add any substance to those analyses and are exempted from all conformity requirements.

(1) Safety, preservation, or maintenance projects of the following type:

(a) Railroad/highway crossing signing;

(b) Pavement marking that does not add lanes or capacity;

(c) Hazard elimination program;

(d) Off-system road safety;

(e) Emergency relief;

(f) Shoulder improvements;

(g) Truck size and weight inspection stations;

(h) Safety improvement program;

(i) Railroad/highway crossing warning devices;

(j) Increasing sight distance that does not require changes in horizontal or vertical alignments;

(k) Guardrails, median barriers, crash cushions;

(l) Pavement resurfacing or rehabilitation;

(m) Widening narrow pavements or bridges (less than one travel lane);

(n) Noise attenuation;

(o) Fencing;

(p) Skid treatments;

(q) Safety roadside rest areas;

(r) Truck climbing lanes outside the urbanized area;

(s) Lighting improvements;

(t) Median additions;

(u) Emergency truck pullovers.

(2) Mass transit projects of the following type:

(a) Purchase of office, shop, and operating equipment for existing facilities;

(b) Purchase of operating equipment for vehicles, including ferries, trains, and buses;

(c) Construction or renovation of power, signal, and communication systems;

(d) Operating assistance;

(e) Rehabilitation of transit vehicles, including buses, ferries, and trains;

(f) Reconstruction or renovation of transit buildings and structures;

(g) Construction of small passenger shelters and information/ticketing kiosks;

(h) Rehabilitation or reconstruction of track structures, track, and trackbed in existing right of way;

(i) Noise attenuation;

(j) Purchase of vehicles to replace existing vehicles or for minor expansions of fleets to provide new service (less than five percent per year);

(k) Construction of new vehicle storage and maintenance facilities;

(l) Purchase of support vehicles.

(3) Air quality projects of the following type:

(a) Continuation of rideshare and vanpooling promotion activities at current levels;

(b) Bicycle projects;

(c) Pedestrian facilities.

(4) Other projects of the following type:

(a) Acquisition of scenic easements;

(b) Planting and landscaping;

(c) Sign removal;

(d) Wetland mitigation, fish passage mitigation, and other environmental mitigation not related to air quality;

(e) Historical and cultural markers;

(f) Preliminary engineering through design, provided that funds are not expended or assurance is not made that will commit to the construction of a project;

(g) Access permits except when there is a break in full, modified, or partial access control;

(h) Advanced land acquisitions that do not influence the environmental assessment of a project, the decision of the need to construct the project, or the selection of project design or location;

(i) Planning and technical studies that do not commit to project implementation;

(j) Training and research programs;

(k) Engineering to assess social, economic, and environmental effects of the proposed action or alternatives to that action.

The following types of projects because of their nature, will not affect the outcome of regional air quality emissions analyses nor add substance to those analyses and are exempted from regional conformity analysis. Project level conformity analysis is required for these types of projects.

(1) Intersection channelization projects;

(2) Intersection signalization projects at individual intersections;

(3) Interchange reconfiguration projects;

(4) Changes in vertical and horizontal alignment;

(5) Truck size and weight inspection stations;

(6) Bus terminals and transfer points.