[Federal Register Volume 75, Number 56 (Wednesday, March 24, 2010)]
[Rules and Regulations]
[Pages 14260-14285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5703]
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Part II
Environmental Protection Agency
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40 CFR Part 93
Transportation Conformity Rule PM2.5 and PM10 Amendments; Final Rule
Federal Register / Vol. 75, No. 56 / Wednesday, March 24, 2010 /
Rules and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[EPA-HQ-OAR-2008-0540; FRL-9127-7]
RIN 2060-AP29
Transportation Conformity Rule PM2.5 and
PM10 Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In this action, EPA is amending the transportation conformity
rule to finalize provisions that were proposed on May 15, 2009. These
amendments primarily affect conformity's implementation in
PM2.5 and PM10 nonattainment and maintenance
areas. EPA is updating the transportation conformity regulation in
light of an October 17, 2006 final rule that strengthened the 24-hour
PM2.5 national ambient air quality standard (NAAQS) and
revoked the annual PM10 NAAQS. In addition, EPA is
clarifying the regulations concerning hot-spot analyses to address a
December 2007 remand from the Court of Appeals for the District of
Columbia Circuit. This portion of the final rule applies to
PM2.5 and PM10 nonattainment and maintenance
areas as well as carbon monoxide nonattainment and maintenance areas.
The Clean Air Act (CAA) requires federally supported transportation
plans, transportation improvement programs, and projects to be
consistent with (``conform to'') the purpose of the state air quality
implementation plan. The U.S. Department of Transportation (DOT) is
EPA's federal partner in implementing the transportation conformity
regulation. EPA has consulted with DOT, and they concur with this final
rule.
DATES: This final rule is effective on April 23, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0540. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy at the Air and Radiation Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744 and the telephone number for the
Air and Radiation Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Laura Berry, State Measures and
Conformity Group, Transportation and Regional Programs Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105, e-mail address: [email protected], telephone number: (734)
214-4858, fax number: (734) 214-4052; or Patty Klavon, State Measures
and Conformity Group, Transportation and Regional Programs Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105, e-mail address: [email protected], telephone number: (734)
214-4476, fax number: (734) 214-4052.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. General Information
II. Background on the Transportation Conformity Rule
III. General Overview of Transportation Conformity for the 2006
PM2.5 NAAQS
IV. Baseline Year for Certain 2006 PM2.5 Nonattainment
Areas
V. Regional Conformity Tests in 2006 PM2.5 Nonattainment
Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997
PM2.5 NAAQS
VI. Regional Conformity Tests in 2006 PM2.5 Areas That
Have 1997 PM2.5 SIP Budgets
VII. Other Conformity Requirements for 2006 PM2.5 Areas
VIII. Transportation Conformity in PM10 Nonattainment and
Maintenance Areas and the Revocation of the Annual PM10
NAAQS
IX. Response to the December 2007 Hot-Spot Court Decision
X. Statutory and Executive Order Reviews
I. General Information
A. Does This Action Apply to Me?
Entities potentially regulated by the conformity rule are those
that adopt, approve, or fund transportation plans, programs, or
projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories
and entities affected by today's action include:
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Category Examples of regulated entities
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Local government................................................. Local transportation and air quality
agencies, including metropolitan planning
organizations (MPOs).
State government................................................. State transportation and air quality
agencies.
Federal government............................................... Department of Transportation (Federal Highway
Administration (FHWA) and Federal Transit
Administration (FTA)).
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
final rule. This table lists the types of entities of which EPA is
aware that potentially could be regulated by the transportation
conformity rule. Other types of entities not listed in the table could
also be regulated. To determine whether your organization is regulated
by this action, you should carefully examine the applicability
requirements in 40 CFR 93.102. If you have questions regarding the
applicability of this action to a particular entity, consult the
persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. How Can I Get Copies of This Document?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OAR-2008-0540. You can get a paper copy of this
Federal Register document, as well as the documents specifically
referenced in this action, any public comments received, and other
information related to this action at the official public docket. See
the ADDRESSES section for its location.
2. Electronic Access
You may access this Federal Register document electronically
through EPA's Transportation Conformity Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm. You may also access this
document electronically under the Federal Register listings at http://www.epa.gov/fedrgstr/.
An electronic version of the official public docket is available
through http://www.regulations.gov. You may use http://www.regulations.gov to view public comments, access the index listing
of the contents of the official
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public docket, and access those documents in the public docket that are
available electronically. Once in the system, select ``search,'' then
key in the appropriate docket identification number.
Certain types of information will not be placed in the electronic
public docket. Information claimed as CBI and other information for
which disclosure is restricted by statute is not available for public
viewing in the electronic public docket. EPA's policy is that
copyrighted material is not placed in the electronic public docket but
is available only in printed, paper form in the official public docket.
To the extent feasible, publicly available docket materials will be
made available in the electronic public docket. When a document is
selected from the index list in EPA Dockets, the system will identify
whether the document is available for viewing in the electronic public
docket. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in the
ADDRESSES section. EPA intends to provide electronic access in the
future to all of the publicly available docket materials through the
electronic public docket.
For additional information about the electronic public docket,
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
II. Background on the Transportation Conformity Rule
A. What Is Transportation Conformity?
Transportation conformity is required under CAA section 176(c) (42
U.S.C. 7506(c)) to ensure that transportation plans, transportation
improvement programs (TIPs) and federally supported highway and transit
project activities are consistent with (``conform to'') the purpose of
the state air quality implementation plan (SIP). Conformity to the
purpose of the SIP means that transportation activities will not cause
new air quality violations, worsen existing violations, or delay timely
attainment of the relevant national ambient air quality standards
(NAAQS) or any interim milestones.\1\ Transportation conformity applies
to areas that are designated nonattainment, and those areas
redesignated to attainment after 1990 (``maintenance areas'') for
transportation-related criteria pollutants: Carbon monoxide (CO),
ozone, nitrogen dioxide (NO2) and particulate matter
(PM2.5, and PM10).\2\
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\1\ These requirements are found in Clean Air Act section
176(c)(B)(i), (ii), and (iii): ``That such activities will not cause
or contribute to any new violation of any standard in any area;
increase the frequency or severity of any existing violation of any
standard in any area; or delay timely attainment of any standard or
any required interim emissions reductions or other milestones in any
area.''
\2\ 40 CFR 93.102(b)(1) defines PM2.5 and
PM10 as particles with an aerodynamic diameter less than
or equal to a nominal 2.5 and 10 micrometers, respectively.
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EPA's transportation conformity rule (40 CFR Parts 51 and 93)
establishes the criteria and procedures for determining whether
transportation activities conform to the SIP. EPA first promulgated the
transportation conformity rule on November 24, 1993 (58 FR 62188), and
subsequently published several other amendments. DOT is EPA's federal
partner in implementing the transportation conformity regulation. EPA
has consulted with DOT, which concurs with this final rule.
A few recent amendments to the transportation conformity rule are
useful background for today's final rule. In a final rule EPA published
on July 1, 2004 (69 FR 40004), EPA provided conformity procedures for
state and local agencies under the 1997 8-hour ozone and
PM2.5 national ambient air quality standards (NAAQS). EPA's
nonattainment area designations for the 1997 8-hour ozone and
PM2.5 NAAQS were effective in June 2004 and April 2005,
respectively. The July 2004 update provided rules for implementing
conformity for these NAAQS. In addition, on May 6, 2005, EPA
promulgated a final rule entitled, ``Transportation Conformity Rule
Amendments for the New PM2.5 National Ambient Air Quality
Standard: PM2.5 Precursors'' (70 FR 24280). This final rule
specified transportation-related PM2.5 precursors and when
they must be considered in transportation conformity determinations in
PM2.5 nonattainment and maintenance areas.
On March 10, 2006, EPA promulgated a final rule (71 FR 12468)
entitled, ``PM2.5 and PM10 Hot-Spot Analyses in
Project-Level Transportation Conformity Determinations for the New
PM2.5 and Existing PM10 National Ambient Air
Quality Standards.'' This rule established the criteria and procedures
for determining which transportation projects must be analyzed for
local air quality impacts--or ``hot-spots''--in PM2.5 and
PM10 nonattainment and maintenance areas. See Section IX. of
today's preamble for more information regarding the March 2006 rule;
see EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm for further information about any of EPA's transportation
conformity rulemakings.\3\
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\3\ At this website, click on ``Regulations'' to find all of
EPA's proposed and final rules as well as the current transportation
conformity regulations.
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B. Why Are We Issuing This Final Rule?
Today's action is necessary because EPA promulgated a final rule on
October 17, 2006 that changed the PM2.5 and PM10
NAAQS, as described further below. Today's action provides rules for
implementing conformity for these revisions to the PM2.5 and
PM10 NAAQS. Sections III. through VIII. describe the changes
to the transportation conformity rule that are a result of the October
2006 revisions to the PM2.5 and PM10 NAAQS.
Today's final rule is the second transportation conformity
rulemaking undertaken primarily for the purpose of addressing a new or
revised NAAQS. Due to other statutory requirements, EPA will continue
to establish new or revised NAAQS in the future. Therefore, EPA may
consider restructuring certain sections of the conformity rule in a
future rulemaking so that existing rule requirements would clearly
apply to areas designated for future new or revised NAAQS, without
having to update the rule each time a new or revised NAAQS is
established.
Note that in 2009, EPA issued an interim conformity guidance for
areas designated nonattainment for the 2006 PM2.5 NAAQS \4\
(``2006 PM2.5 areas'').\5\ EPA issued this interim guidance
to help new nonattainment areas meet conformity requirements by the end
of the one-year grace period. While this interim guidance is superseded
by today's final rule, conformity determinations done according to the
interim guidance are consistent with the CAA, and with the
transportation conformity rule.\6\ Therefore, conformity determinations
based on the interim guidance and the transportation conformity rule in
effect at the time of the conformity determination will remain valid.
Conformity determinations completed on or after the effective date of
this final rule must meet all the requirements in the final rule. EPA
will work with the 2006 PM2.5
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areas to ensure they can meet conformity requirements on time.
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\4\ ``2006 PM2.5 NAAQS'' refers to the 24-hour
PM2.5 NAAQS promulgated in 2006.
\5\ ``Interim Transportation Conformity Guidance for 2006
PM2.5 Nonattainment Areas,'' EPA-420-B-09-036, November
2009, available on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09036.pdf.
\6\ Today's final rule changes the baseline year used to
demonstrate conformity for the 2006 PM2.5 NAAQS prior to
having an adequate or approved PM2.5 SIP budget; the
interim guidance addressed this change. Refer to Section IV. for
further discussion of the baseline year for conformity purposes.
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Today's final rule also responds to a court decision regarding the
March 2006 hot-spot rulemaking. Section IX. of this preamble describes
the issue, the court's decision, and EPA's response.
III. General Overview of Transportation Conformity for the 2006
PM2.5 NAAQS
A. Background on 2006 PM2.5 NAAQS Development
EPA issued a final rule on October 17, 2006, effective December 18,
2006, that strengthened the 24-hour PM2.5 NAAQS and revoked
the annual PM10 NAAQS (71 FR 61144). In that final rule, EPA
strengthened the 24-hour PM2.5 NAAQS from the 1997 level of
65 micrograms per cubic meter ([mu]g/m\3\) (average of 98th percentile
values for three consecutive years) to 35 [mu]g/m\3\, while the level
of the annual PM2.5 NAAQS remained unchanged at 15.0
[micro]g/m\3\ (average of three consecutive annual average values). EPA
selected levels for the final NAAQS after completing an extensive
review of thousands of scientific studies on the impact of fine and
coarse particles on public health and welfare. For additional
information about the October 17, 2006 rulemaking, the final rule and
EPA outreach materials can be found at: http://www.epa.gov/pmdesignations/.
The October 2006 rule establishing the 2006 PM2.5 NAAQS
did not revoke the 1997 annual or 24-hour PM2.5 NAAQS. See
Section III.D. below for details on how today's final rule interacts
with conformity requirements for those areas designated nonattainment
for the 1997 PM2.5 NAAQS.\7\
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\7\ ``1997 PM2.5 NAAQS'' includes both the annual and
the 24-hour 1997 PM2.5 NAAQS unless noted otherwise.
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EPA signed the final rule designating areas for the 2006
PM2.5 NAAQS on October 8, 2009.\8\ This final rule was
published in the Federal Register on November 13, 2009, and became
effective December 14, 2009. The designations for the 2006
PM2.5 NAAQS are separate from the existing designations for
the 1997 PM2.5 NAAQS.
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\8\ A Federal Register notice designating areas for the 2006
PM2.5 NAAQS had been signed in late December 2008 by
then-Administrator Johnson, where the designations were based on air
quality data from 2005-2007. The December 2008 notice was awaiting
publication in January 2009 when the newly elected Administration
identified the notice as one that should receive additional review
before publication. However, this notice was never published in the
Federal Register and, therefore, designations were not officially
promulgated. CAA section 107(d)(2)(A) requires EPA to publish the
notice in the Federal Register in order to promulgate designations.
Since January 2009, monitoring data for 2008 has become available
for areas across the U.S. Therefore, the final designations in the
final rule signed by Administrator Jackson on October 8, 2009 are
based on air quality monitoring data from Federal Reference Method
monitors for calendar years 2006-2008.
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However, in the final rule designating areas for the 2006
PM2.5 NAAQS, EPA has also clarified that all 39 areas
designated nonattainment for the 1997 PM2.5 NAAQS were
violating the annual PM2.5 NAAQS, and two of those were also
violating the 24-hour PM2.5 NAAQS.\9\ That is, EPA's
designations rule clarifies that only two areas were designated
nonattainment for the 1997 24-hour PM2.5 NAAQS, and that all
39 nonattainment areas were designated nonattainment for the 1997
annual PM2.5 NAAQS.
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\9\ The two areas designated as nonattainment for both the
annual and 24-hour 1997 PM2.5 NAAQS are the Los Angeles-
South Coast Air Basin, CA nonattainment area and the San Joaquin
Valley, CA nonattainment area.
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Transportation conformity applies for the NAAQS for which an area
is designated nonattainment.\10\ Therefore, in two of the 1997
PM2.5 areas, conformity applies for both the 1997 annual and
24-hour NAAQS. In the other 37 1997 PM2.5 areas, conformity
applies for the 1997 annual NAAQS, and not the 1997 24-hour
PM2.5 NAAQS.
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\10\ Clean Air Act section 176(c)(5) and 40 CFR 93.102(b).
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Refer to EPA's Web site at: http://www.epa.gov/pmdesignations/2006standards/index.htm for additional information about the
nonattainment designations.
B. When Does Conformity Apply for the 2006 PM2.5 NAAQS?
Transportation conformity for the 2006 PM2.5 NAAQS does
not apply until December 14, 2010, which is one year after the
effective date of nonattainment designations for this NAAQS. CAA
section 176(c)(6) and 40 CFR 93.102(d) provide a one-year grace period
from the effective date of designations before transportation
conformity applies in areas newly designated nonattainment for a
particular NAAQS.\11\
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\11\ EPA began the process of notifying state and local
agencies, via the EPA regional offices, of the timing of conformity
under the 2006 PM2.5 NAAQS in its April 16, 2007
memorandum entitled, ``Transportation Conformity and the Revised 24-
hour PM2.5 Standard,'' from Merrylin Zaw-Mon, Director,
Transportation and Regional Programs Division, EPA Office of
Transportation and Air Quality, to EPA Regional Air Directors,
Regions I-X.
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The following discussion provides more details on the application
of the one-year grace period in different types of newly designated
nonattainment areas for the 2006 PM2.5 NAAQS. This
information is consistent with how conformity for new NAAQS has been
implemented in the past.\12\ The conformity grace period will be
available to all newly designated nonattainment areas for the 2006
PM2.5 NAAQS.
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\12\ See EPA's July 1, 2004 final rule for further background on
how EPA has implemented this conformity grace period for the 1997
PM2.5 NAAQS (69 FR 40004).
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Metropolitan areas are urbanized areas that have a population
greater than 50,000 and a designated metropolitan planning organization
(MPO) responsible for transportation planning per 23 U.S.C. 134. Within
one year after the effective date of the initial nonattainment
designation for the 2006 PM2.5 NAAQS, a conformity
determination for this NAAQS must be made by the MPO and DOT for the
MPO's transportation plan and TIP. MPOs must continue to meet
conformity requirements for any other applicable NAAQS, including the
1997 PM2.5 NAAQS, if the area is designated nonattainment or
maintenance for such NAAQS as well.
In nonattainment and maintenance areas with a donut portion,\13\
adjacent MPOs must meet conformity requirements for the 2006
PM2.5 NAAQS. The MPO must also continue to ensure that
conformity is met for any other applicable NAAQS, including any 1997
PM2.5 NAAQS for which the donut area is designated
nonattainment.\14\ The interagency consultation partners for each newly
designated nonattainment area that includes a donut portion should
determine how best to consider the donut area transportation system and
new donut area projects in the MPO's regional emissions analyses and
transportation plan and TIP conformity determinations.
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\13\ For the purposes of transportation conformity, a ``donut''
area is the geographic area outside a metropolitan planning area
boundary, but inside a designated nonattainment or maintenance area
boundary that includes an MPO (40 CFR 93.101). For more discussion
on how conformity determinations should be made for donut areas, see
the preamble to the July 1, 2004 conformity rule (69 FR 40013).
\14\ Determining conformity for these other NAAQS during the
one-year grace period is not necessary unless required by 40 CFR
93.104 (for example, a new or amended transportation plan and TIP
are to be adopted).
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If, at the end of the one-year grace period, the MPO and DOT have
not made a transportation plan and TIP conformity determination for the
2006 PM2.5 NAAQS, the entire area, including any donut area,
would be in a conformity ``lapse.'' \15\ During a
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conformity lapse, only certain projects can receive additional federal
funding or approvals to proceed (e.g. exempt projects, project phases
that were approved before the lapse).\16\ The practical impact of a
conformity lapse will vary on an area-by-area basis.
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\15\ The lapse grace period provision in CAA section 176(c)(9)
does not apply to the deadline for newly designated nonattainment
areas to make the initial transportation plan/TIP conformity
determination within 12 months of the effective date of the
nonattainment designation. For additional details on the conformity
lapse grace period, see the preamble to the January 24, 2008
conformity rule (73 FR 4423-4425).
\16\ For additional information on projects that can proceed
during a conformity lapse, refer to the final rule of July 1, 2004
(69 FR 40005-40006), which addressed the March 2, 1999 U.S. Court of
Appeals decision that affected related provisions of the conformity
rule (Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir.
1999). See also the following guidance memoranda that address this
court decision: DOT's January 2, 2002 guidance, published in the
Federal Register on February 7, 2002 (67 FR 5882); DOT's May 20,
2003 and FTA's April 9, 2003 supplemental guidance documents; and,
EPA's May 14, 1999 guidance memorandum.
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The one-year grace period for conformity also applies to project-
level conformity determinations (including hot-spot analyses in certain
cases) in newly designated 2006 PM2.5 nonattainment areas.
At the end of the one-year grace period for conformity, requirements
for project-level conformity determinations must be met for the 2006
PM2.5 NAAQS (including hot-spot analyses in certain cases)
before any new federal approvals for such projects can occur. See Table
1 in 40 CFR 93.109 for the conformity criteria that apply for project-
level conformity determinations.
Isolated rural nonattainment and maintenance areas are areas that
do not contain or are not part of any metropolitan planning area as
designated by 23 U.S.C. 134 and 49 U.S.C. 5303 (40 CFR 93.101). As in
other newly designated nonattainment areas, the one-year conformity
grace period for the 2006 PM2.5 NAAQS will begin on the
effective date of an isolated rural area's initial nonattainment
designation. However, because these areas do not have federally
required metropolitan transportation plans and TIPs, they are not
subject to the frequency requirements for conformity determinations on
transportation plans and TIPs (40 CFR 93.104(b),(c), and (e)). Instead,
conformity determinations in isolated rural areas are required only
when a non-exempt FHWA/FTA project(s) needs approval.
Therefore, although the one-year conformity grace period is
available to isolated rural areas, most likely no conformity
consequences would occur upon the expiration date of the one-year grace
period because these areas most likely would not have any projects that
require federal funding or approval at that time. Once the conformity
grace period has expired, a conformity determination would only be
required in such areas when a non-exempt FHWA/FTA project needs
approval. Conformity requirements for isolated rural areas can be found
at 40 CFR 93.109(n).\17\
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\17\ Prior to today's rulemaking, the requirements for isolated
rural areas were found at Sec. 93.109(l). This section has been
renamed as Sec. 93.109(n), as a result of other revisions and
additions in this regulatory section. This is merely an
administrative change and the conformity requirements for isolated
rural areas remain unchanged.
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Response to comments about the grace period. Some commenters
believed that the one-year grace period would not allow enough time for
some areas to meet the conformity requirements. These same commenters
questioned whether a year would be enough time to adequately prepare
attainment SIPs, learn EPA's new emissions factor model (called the
Motor Vehicle Emissions Simulator, or MOVES model) when final, and
complete their conformity determinations. To address these concerns,
these commenters suggested lengthening the conformity grace period for
newly designated nonattainment areas from one to two years.
EPA understands that some areas, such as areas that have never done
conformity before and multi-jurisdictional nonattainment areas (e.g.,
areas with multiple states and/or multiple MPOs) may have additional
challenges in conducting their initial conformity determinations.
However, the CAA as amended on October 27, 2000 specifically provides
newly designated nonattainment areas with only a one-year grace period,
after which conformity applies as a matter of law under the statute.
Therefore, we believe that the statutory language precludes EPA from
extending the conformity grace period beyond one year for new
nonattainment areas.
In accordance with the CAA, states were initially required to
submit their recommendations for nonattainment areas based on monitored
data by December 18, 2007, well before designations became
effective.\18\ Additionally, EPA began the process of notifying state
and local agencies, via the EPA regional offices, of the timing of
conformity under the 2006 PM2.5 NAAQS in the April 16, 2007
memorandum cited earlier.\19\ As mentioned, EPA provided interim
guidance for the 2006 PM2.5 areas to assist in meeting
conformity requirements by the end of the one-year grace period.
Finally, EPA will be working with 2006 PM2.5 areas to
provide technical assistance in an expeditious manner, such as helping
each area determine which test applies for the first 2006
PM2.5 conformity determination.
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\18\ Information on 2006 PM2.5 nonattainment
designations, including copies of EPA's designation letters, can be
accessed from EPA's Web site at http://www.epa.gov/pmdesignations/2006standards/state.htm.
\19\ Memorandum entitled, ``Transportation Conformity and the
Revised 24-hour PM2.5 Standard,'' from Merrylin Zaw-Mon,
then-Director, Transportation and Regional Programs Division, EPA
Office of Transportation and Air Quality, to EPA Regional Air
Directors, Regions I- X, found on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/generalinfo/rev24hr-pm25.pdf.
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We also want to clarify that while areas will have to complete a
conformity determination for their transportation plans and TIPs within
one year, they are not required to complete their attainment
demonstration SIPs for the 2006 PM2.5 NAAQS in that same
time period as the commenter suggested. Instead, they will have three
years from the effective date of designations to submit their
attainment demonstrations, per CAA section 172(b).
Also, implementers will have additional time before MOVES is
required for conformity determinations, as a different grace period
will apply for MOVES once it is released. The conformity rule at 40 CFR
93.111 provides a grace period before a new emissions model is required
for conformity. This grace period can be anywhere from three months to
two years depending on the degree of change from one model to another
(40 CFR 93.111(b)(2)); EPA is intending to provide the maximum length
two-year grace period for the transition to MOVES. Therefore, MOVES
will not be required for the first transportation plan and TIP
conformity determination done for the 2006 PM2.5 NAAQS. EPA
will provide specific guidance regarding the MOVES grace period and
when MOVES will be required to be used for SIPs and conformity. This
guidance will be available on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm#models.
EPA and DOT understand the concern that the commenter notes with
respect to learning the new MOVES model, and therefore have devoted
significant staff time and resources to training state and local air
quality and transportation planners in using MOVES. During 2009, 20
MOVES training sessions were held at locations across the U.S. Once
MOVES is final, EPA intends to offer web-based training, and EPA and
DOT are planning to hold additional in-person training sessions as
well. See EPA's Web site: http://www.epa.gov/
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otaq/models/moves/trainingsessions.htm for information about upcoming
training sessions. Also note that other MOVES related guidance,
including user guides and other technical information is available on
EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm and
http://www.epa.gov/otaq/stateresources/transconf/policy.htm
C. Definitions for PM2.5 NAAQS
EPA is adding two new definitions to Sec. 93.101 of the conformity
rule to distinguish between the 1997 PM2.5 NAAQS and the
2006 PM2.5 NAAQS. These definitions will help implement
certain conformity requirements in areas that have been designated
nonattainment for 1997 PM2.5 NAAQS and/or 2006
PM2.5 NAAQS. Some areas designated nonattainment for the
2006 PM2.5 NAAQS also are designated nonattainment for the
1997 PM2.5 NAAQS. In addition, some areas are designated for
only the 2006 PM2.5 NAAQS.
These definitions are similar to the rule's definitions in 40 CFR
93.101 for the 1-hour ozone NAAQS and 8-hour ozone NAAQS, and are
generally consistent with how EPA is defining both kinds of
PM2.5 areas for air quality planning purposes. EPA also
notes that any provision of the conformity rule that references only
``PM2.5'' and does not specify which PM2.5 NAAQS
applies to any area designated nonattainment for a PM2.5
NAAQS. EPA received no comments regarding these definitions.
D. How Does This Final Rule Interact With Conformity Requirements for
the 1997 PM2.5 NAAQS?
Sections IV. through VI. of today's final rule describe conformity
requirements for areas designated nonattainment for the 2006
PM2.5 NAAQS. No changes have been made to the existing
transportation conformity requirements for areas designated
nonattainment for the 1997 PM2.5 NAAQS.
Nonattainment designations for the 1997 and 2006 PM2.5
NAAQS are different designations with separate SIP requirements,
different attainment dates, etc. As a result, CAA section 176(c)(5)
requires conformity requirements to be met in both 1997 and 2006
PM2.5 nonattainment and maintenance areas, as applicable.
Some areas designated nonattainment for the 2006 PM2.5
NAAQS have never been subject to PM2.5 conformity
requirements. Under today's final rule and CAA section 176(c)(5), these
areas must meet conformity requirements only for the 2006
PM2.5 NAAQS, and not for the 1997 PM2.5 NAAQS,
because these areas are not designated nonattainment for the 1997
PM2.5 NAAQS.
Other areas designated nonattainment for the 2006 PM2.5
NAAQS have been designated also, in whole or in part, for the 1997
PM2.5 NAAQS. (See Section III.A. for the clarification that
EPA has made in designations for the 1997 PM2.5 NAAQS
areas.) These areas must continue to meet their existing conformity
requirements for the 1997 PM2.5 NAAQS as well as those that
apply for the 2006 PM2.5 NAAQS.
One commenter was concerned that, given identical boundaries, an
area could potentially be required to prepare conformity determinations
for three different PM NAAQS (i.e., the 24-hr PM10 NAAQS,
1997 PM2.5 NAAQS, and 2006 PM2.5 NAAQS), and
believed that this could mean three separate analyses would be
required. This commenter recommended that an area should only have to
model to the most restrictive NAAQS.
As described in the May 2009 proposal, nonattainment designations
for these NAAQS are different designations with separate SIP
requirements, different attainment dates, etc. As a result, CAA section
176(c)(5) requires conformity to be met for all of the NAAQS for which
an area has been designated. However, MPOs subject to more than one PM
NAAQS will be able to use existing transportation models and data for
regional emissions analyses, especially where nonattainment area
boundaries are the same. Some analysis years for the regional emissions
analyses will be the same, such as the last year of the transportation
plan. In addition, MPOs in areas designated for more than one PM NAAQS
will be able to meet consultation and other conformity requirements
through the existing processes.
Furthermore, if an area is designated nonattainment for both the
1997 and 2006 PM2.5 NAAQS and it has no adequate or approved
PM2.5 budgets, it could use the same interim emissions test
for both NAAQS (see Section V.; note that the baseline year for these
two NAAQS are different, see Section IV.) If such an area has budgets
only for the 1997 PM2.5 NAAQS, conformity determinations for
the 2006 PM2.5 NAAQS will be based on the same conformity
test--i.e., the budget test--that is being used for the 1997
PM2.5 NAAQS (note that the attainment year for each of these
NAAQS, which is a required analysis year for the budget test, will
differ). As described in Section VI., MPOs must use any adequate or
approved SIP budgets for the 1997 PM2.5 NAAQS for conformity
determinations that are made prior to SIP budgets for the 2006
PM2.5 NAAQS being found adequate or approved.
Today's final rule does not impact project-level conformity
requirements for the 1997 PM2.5 NAAQS. For example, this
rule does not substantively change the PM2.5 hot-spot
analysis requirements, and EPA and FHWA's existing qualitative guidance
for such analyses continues to be available.\20\ For the purposes of
PM2.5 conformity, a hot-spot analysis must address the
PM2.5 NAAQS for which the area has been designated
nonattainment.\21\ See Section VII. for further information regarding
project-level conformity requirements for the 2006 PM2.5
NAAQS.
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\20\ ``Transportation Conformity Guidance for Qualitative Hot-
spot Analyses in PM2.5 and PM10 Nonattainment
and Maintenance Areas,'' EPA420-B-06-902, March 2006.
\21\ EPA notes that today's final rule does not address project
requirements for the National Environmental Policy Act or other
environmental programs.
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EPA will work with PM2.5 nonattainment areas as needed
to ensure that state and local agencies can meet conformity
requirements for both the applicable 1997 and 2006 PM2.5
NAAQS in a timely and efficient manner.
E. Precursors That Apply for 2006 PM2.5 Conformity
The existing transportation conformity rule at 40 CFR 93.102(b)
describes the pollutants and precursors that must be examined in a
regional emissions analysis in PM2.5 areas, and these
provisions apply to 2006 PM2.5 areas as well as 1997
PM2.5 areas. Direct PM2.5 must be analyzed per 40
CFR 93.102(b)(1). Before SIP budgets are adequate or approved,
NOX must also be analyzed, unless both EPA and the state air
quality agency find that transportation-related emissions of
NOX are not a significant contributor to the
PM2.5 nonattainment problem and notify the MPO and DOT (40
CFR 93.102(b)(iv)).\22\ Before SIP budgets are adequate or approved,
VOCs, sulfur dioxide, and ammonia do not have to be analyzed unless
either EPA or the state air quality agency finds that such a precursor
is a significant contributor, and notifies the MPO and DOT (40 CFR
93.102(b)(v)). Similarly, before SIP budgets are adequate or approved,
road dust does not have to be included in the regional emission
analysis of directly
[[Page 14265]]
emitted PM2.5 unless EPA or the state air agency find that
re-entrained road dust emissions are a significant contributor, and
notifies the MPO and DOT (40 CFR 93.102(b)(3)).
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\22\ Note that instead of establishing a budget for direct
PM2.5 or NOX, a SIP could demonstrate that the
pollutant or precursor is insignificant based on 40 CFR 93.109(k).
---------------------------------------------------------------------------
Once budgets from a submitted PM2.5 SIP have been found
adequate or approved, a conformity determination for the 2006
PM2.5 NAAQS must include any precursors for which budgets
are established (40 CFR 93.102(b)(iv) and (v)). If road dust is
included in the direct PM2.5 budget, it must also be
included in a regional emissions analysis (40 CFR 93.102(b)(3)).
Please use the interagency consultation process if there are
questions regarding whether a regional emissions analysis for the 2006
PM2.5 NAAQS must include specific precursors or road dust.
IV. Baseline Year for Certain 2006 PM2.5 Nonattainment Areas
A. Background
Conformity determinations for transportation plans, TIPs, and
projects not from a conforming transportation plan and TIP must include
a regional emissions analysis that fulfills CAA provisions. The
conformity rule provides for several different regional emissions
analysis tests that satisfy CAA requirements in different situations.
Once a SIP with a motor vehicle emissions budget (``budget'') is
submitted for an air quality NAAQS and EPA finds the budget adequate
for conformity purposes or approves it as part of the SIP, conformity
is demonstrated using the budget test for that pollutant or precursor,
as described in 40 CFR 93.118.
Before an adequate or approved SIP budget is available, conformity
of the transportation plan, TIP, or project not from a conforming
transportation plan and TIP is demonstrated using the interim emissions
test(s), as described in 40 CFR 93.119. The interim emissions tests
include different forms of the ``build/no-build'' test and ``baseline
year'' test. In general, for the baseline year test, emissions from the
planned transportation system are compared to emissions that occurred
in the baseline year. Today's rule updates section 93.119 of the
conformity rule for the 2006 PM2.5 NAAQS. The baseline year
for nonattainment areas under the 1997 PM2.5 NAAQS is 2002
(40 CFR 93.119(e)(2)). Sections V. and VI. of today's final rule go
into further detail about how the baseline year will be applied in 2006
PM2.5 areas.
B. Baseline Year for 2006 PM2.5 Areas
1. Description of Final Rule
In today's final rule, EPA is defining the baseline year as the
most recent year for which EPA's Air Emissions Reporting Requirements
(AERR) (40 CFR Part 51) requires submission of on-road mobile source
emissions inventories,\23\ as of the effective date of EPA's
nonattainment designations for any PM2.5 NAAQS other than
the 1997 PM2.5 NAAQS. EPA had proposed this definition under
``Option 2'' in the proposed rule. AERR requires on-road mobile source
emission inventories to be submitted every three years, for example,
2002, 2005, 2008, 2011, etc. See Sec. 93.119(e)(2)(B) for the
regulatory text.
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\23\ 40 CFR 51.30(b).
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Today's final rule results in a baseline year of 2008 for the 2006
PM2.5 areas. The year 2008 is the most recent year as of the
effective date of the 2006 PM2.5 designations, December 14,
2009, for which AERR requires submission of on-road mobile source
emissions inventories. In other words, the designations were effective
on December 14, 2009, and the most recent year for which an on-road
mobile source inventory was required as of that date was 2008.
Therefore, 2008 is the baseline year for 2006 PM2.5 areas.
This final rule would also govern the baseline year for conformity
purposes for any areas designated for a PM2.5 NAAQS that EPA
promulgates in the future. EPA will clarify the relevant baseline year
under today's regulation for each such future NAAQS for conformity
implementers in guidance and maintain a list of baseline years that
result from today's final rule on EPA's Web site.\24\
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\24\ See http://www.epa.gov/otaq/stateresources/transconf/index.htm.
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Today's action does not change the 2002 baseline year for areas
designated nonattainment for the 1997 PM2.5 NAAQS and the
conformity rule now clarifies that 2002 applies as the baseline year
only to areas designated nonattainment for the 1997 PM2.5
NAAQS. The baseline year for 1997 PM2.5 NAAQS areas is found
in Sec. 93.119(e)(2)(A).
The existing interagency consultation process (40 CFR
93.105(c)(1)(i)) must be used to determine the latest assumptions and
models for generating baseline year motor vehicle emissions to complete
any baseline year test. The baseline year emissions level that is used
in conformity must be based on the latest planning assumptions
available, the latest emissions model, and appropriate methods for
estimating travel and speeds as required by 40 CFR 93.110, 93.111, and
93.122 of the current conformity rule. The baseline year test can be
completed with a submitted or draft baseline year motor vehicle
emissions SIP inventory, if the SIP reflects the latest information and
models. If such a SIP baseline is not available, an MPO, in
consultation with state and local air agencies, could also develop
baseline year emissions as part of the conformity analysis.
2. Rationale and Response to Comments
General overview. EPA believes that today's definition for the
baseline year results in an environmentally protective and legal
baseline year for conformity under the 2006 PM2.5 NAAQS and
any future PM2.5 NAAQS revisions, and best accomplishes
several important goals.
First, as EPA discussed in the preamble to the proposed rule, EPA
believes that a more recent year than 2002 (the baseline year for 1997
PM2.5 areas) is appropriate for meeting CAA conformity
requirements for 2006 PM2.5 nonattainment areas. EPA also
believes that using a more recent year is more environmentally
protective than 2002, and more relevant for the 2006 PM2.5
NAAQS. Several commenters agreed with these points. Because the AERR
requires submission of inventories every three years, today's final
rule results in a baseline year that is recent for any PM2.5
NAAQS established after 1997. The baseline year will always be either
the same year as the year in which designations are effective, or one
or two years prior to the effective date of designations. For example,
in the case of the 2006 PM2.5 NAAQS, the baseline year,
2008, is the year before the year in which designations are effective,
2009.
EPA had also proposed 2005 as a baseline year as it is also more
recent than 2002. One commenter preferred a 2005 baseline year because
the introduction of Tier 2 and improved fuel and engine technologies
since then would allow transportation plans and TIPs to meet conformity
more easily. However, because of the implementation of EPA's Tier 2
Vehicle and Gasoline Program as well as other federal programs, motor
vehicle emissions in the year 2005 were higher than emissions in the
year 2008. Thus today's rule, which results in a baseline year of 2008,
provides more protection for the environment than would a baseline year
of 2005, in the time before an area has adequate or approved motor
vehicle emissions budgets from a SIP that addresses PM2.5.
Second, today's baseline year definition coordinates the conformity
[[Page 14266]]
baseline year with other air quality planning requirements, which
allows state and local governments to use their resources more
efficiently. Coordinating the conformity baseline year with the year
used for SIP planning and an emission inventory year was EPA's
rationale for using 2002 as the baseline year for conformity tests in
existing PM2.5 nonattainment areas for the 1997 NAAQS.
Today's regulatory text results in a conformity baseline year that is
consistent with emission inventory requirements, and most likely will
be consistent with the baseline year used for SIP planning as well.
Several commenters voiced support for coordinating the conformity
baseline year with these other air quality planning requirements.
Third, today's final rule provides transportation planners with
knowledge of the baseline year for any future PM2.5 NAAQS
upon the effective date of designations for that NAAQS, without having
to wait either for EPA to amend the transportation conformity rule or
select a SIP planning baseline year. As a result, MPOs and other
transportation planners would understand conformity requirements for
future PM2.5 NAAQS revisions more quickly, which may, in
turn, also allow more time to prepare and complete necessary conformity
determinations. Several commenters agreed that not having to wait for a
rule revision would be a benefit of defining the baseline year as in
today's rule, rather than choosing a specific year. Some commenters
preferred defining the baseline year in terms of the year used as the
baseline year for SIP planning. Today's final rule addresses these
concerns since it will most likely result in a conformity baseline year
that is consistent with the SIP baseline year, and in the future will
give transportation planners the advantage of knowing the baseline year
at the beginning of the grace period for newly designated areas.
Last, given that the CAA requires EPA to review the NAAQS for
possible revision once every five years, today's baseline year
provision potentially reduces the need for future rule revisions for
any future PM2.5 NAAQS.
While today's final rule establishes a baseline year for any
PM2.5 NAAQS other than the 1997 PM2.5 NAAQS, the
same rationale would apply for establishing the same type of baseline
year definition for any future new or revised NAAQS of a
transportation-related criteria pollutant. Therefore, EPA may amend the
rule in the future to apply the baseline year language found in today's
Sec. 93.119(e)(2)(B) more generally. However, EPA did not propose such
an amendment, and intends to solicit and consider public comment before
it would adopt any such provision.
Specific comments. EPA is responding today to several comments
regarding the baseline year. A couple of commenters indicated that they
thought proposed Option 2 would create a ``rolling'' baseline year,
that is, one that would be updated every three years. One commenter did
not support such a rolling baseline; another did support it as long as
motor vehicle emissions in an inventory year were less than the prior
reporting year. However, today's final rule does not establish a
rolling baseline year for any PM2.5 NAAQS. It establishes a
single baseline year for each PM2.5 NAAQS that does not
change over time. For example, for the 2006 PM2.5 NAAQS, the
definition results in a baseline year of 2008. The year 2008 will
remain the baseline year for 2006 PM2.5 areas until it's no
longer needed, i.e., until adequate or approved budgets are available
in a given area.
One commenter who supported the option finalized in today's rule
expressed concern that final emissions data would not be available for
2008 for some time. However, if a final AERR inventory for 2008 is not
available in a particular area, there are other options for generating
the motor vehicle emissions in the baseline year, discussed above under
``IV.B.1. Description of Final Rule.''
Another commenter expressed concern that MOVES would not be
available in time for the year 2008 for the first conformity
determination for the 2006 PM2.5 NAAQS. At this time, the
current emissions model, MOBILE6.2, applies for conformity in all areas
except California, where EMFAC2007 applies. Therefore, if the MOVES
model is not available to generate a 2008 baseline estimate for use in
conformity, the MOBILE6.2 model must be used. Once MOVES is available,
areas can create a new baseline emissions estimate for use in
conformity using MOVES along with other interim analysis years. EPA
will provide a policy guidance document for using MOVES in conformity
determinations that will include more details about when MOVES must be
used. When available, this guidance will be found on EPA's Web site at:
http://www.epa.gov/otaq/stateresources/transconf/policy.htm#models. For
more information on MOVES, please see EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm.
One commenter thought that the baseline year should be determined
through interagency consultation. This was not a proposed option.
However, EPA believes that details for the baseline year test must be
determined through rulemaking, as EPA has done for other NAAQS since
1993. Today's rule better accomplishes the purposes of meeting the
CAA's requirements, coordinating with SIP and inventory planning, and
providing certainty to transportation planners. Furthermore, today's
rule ensures consistency across the nation, whereas allowing each area
to determine its own baseline year through interagency consultation
could result in different baseline years in different areas.
V. Regional Conformity Tests in 2006 PM2.5 Nonattainment
Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997
PM2.5 NAAQS
This section of the preamble discusses regional conformity tests
for nonattainment areas for the 2006 PM2.5 NAAQS that do not
have adequate or approved PM2.5 SIP budgets for the 1997
NAAQS. This part of the final rule applies to 2006 PM2.5
nonattainment areas that were not covered by the 1997 PM2.5
NAAQS, as well as nonattainment areas for both PM2.5 NAAQS
that do not have an adequate or approved 1997 PM2.5 SIP
budget. EPA has addressed conformity tests for these areas under
section 93.109(j) of the conformity rule. See Section VI. of today's
final rule for conformity tests in 2006 PM2.5 areas that
have adequate or approved SIP budgets for the 1997 PM2.5
NAAQS.
Note that the rule finalizes new requirements for conformity only
under the 2006 PM2.5 NAAQS. Today's final rule does not
address or change the requirements for demonstrating conformity for the
1997 PM2.5 NAAQS.
A. Conformity After 2006 PM2.5 SIP Budgets Are Adequate or Approved
1. Description of Final Rule
Once a SIP for the 2006 PM2.5 NAAQS is submitted with a
budget(s) that EPA has found adequate or approved, the budget test must
be used in accordance with 40 CFR 93.118 to complete all applicable
regional emissions analyses for the 2006 PM2.5 NAAQS. This
requirement is found at Sec. 93.109(j)(2). Conformity is demonstrated
if the transportation system emissions reflecting the proposed
transportation plan, TIP, or project not from a conforming
transportation plan and TIP are less than or equal to the motor vehicle
emissions budget level defined by the SIP as being consistent with CAA
requirements.
The first SIP for the 2006 PM2.5 NAAQS could be a
control strategy SIP
[[Page 14267]]
required by the CAA (i.e., reasonable further progress SIP or
attainment demonstration) or a maintenance plan. States could also
voluntarily choose to submit an ``early progress SIP'' prior to
required SIP submissions. Early progress SIPs must demonstrate a
significant level of future emissions reductions from a previous year's
emissions. For example, an area could submit an early progress SIP for
the 2006 PM2.5 NAAQS that demonstrates a specific percentage
of emissions reductions (e.g. 5-10%) in an area's attainment year from
the baseline year emissions (e.g., 2008). An early progress SIP would
include emissions inventories for all emissions sources for the entire
2006 PM2.5 nonattainment area and would meet applicable
requirements for reasonable further progress SIPs. EPA has discussed
this option in past conformity rule preambles, e.g. the July 1, 2004
transportation conformity final rule (69 FR 40028), and many states
have established early progress SIP budgets for conformity purposes.
Whatever the case, the interim emissions test(s) would no longer be
used for direct PM2.5 or a relevant precursor once an
adequate or approved SIP budget for the 2006 PM2.5 NAAQS is
established and effective for the pollutant or precursor. States are
required to develop their future 2006 PM2.5 SIPs in
consultation with MPOs, state and local transportation agencies, and
local air quality agencies in an effort to facilitate future conformity
determinations. EPA Regions will be available to assist states in the
development of early progress SIPs for the 2006 PM2.5 NAAQS,
if desired.
2. Rationale and Response to Comments
EPA believes that this provision meets statutory requirements for
conformity determinations that occur after SIP budgets are available
for the 2006 PM2.5 NAAQS. Section 176(c) of the CAA states
that transportation activities must ``conform to an implementation
plan[hellip]'' (SIP) and states further that conformity to an
implementation plan means conformity to the SIP's purpose. Once EPA
finds a budget for the 2006 PM2.5 NAAQS adequate or approves
the SIP that includes it, the budget test provides the best means to
determine whether transportation plans and TIPs meet the statutory
obligations in CAA sections 176(c)(1)(A) and (B) for that NAAQS. That
is, the budget test best shows that transportation plans and TIPs
conform to the SIP's purpose of eliminating or reducing the severity
and number of violations of the NAAQS and achieving expeditious
attainment of the NAAQS (176(c)(1)(A)); and best confirms the
requirement that transportation plans and TIPs not cause or contribute
to any new violation, worsen an existing violation, or delay timely
attainment or any interim milestones (176(c)(1)(B)). The budget test
also best demonstrates that transportation plans and TIPs comply with
the statutory obligation to be consistent with the emissions estimates
in SIPs, according to CAA section 176(c)(2)(A). By being consistent
with the on-road mobile source emissions levels in the SIP,
transportation planners can ensure that their activities remain
consistent with state and local air quality goals to protect public
health. EPA received no comments on this aspect of today's rule.
B. Conformity Before 2006 PM2.5 SIP Budgets Are Adequate or Approved
1. Description of Final Rule
The 2006 PM2.5 nonattainment areas that do not have
existing adequate or approved PM2.5 budgets for the 1997
PM2.5 NAAQS must meet one of the following interim emissions
tests for conformity determinations conducted before adequate or
approved 2006 24-hour PM2.5 SIP budgets are established:
The build-no-greater-than-no-build test (``build/no-build
test''), or
The no-greater-than-baseline year emissions test
(``baseline year test'').
This aspect of today's final rule is similar to the transportation
conformity rule at 40 CFR 93.119(e) for nonattainment areas for the
1997 PM2.5 NAAQS. Today's final rule allows 2006
PM2.5 nonattainment areas without SIP budgets to choose
between the two interim emissions tests, rather than require that one
specific test or both tests be completed. Conformity is demonstrated
if, for each analysis year, the transportation emissions reflecting the
proposed transportation plan or TIP (build) are less than or equal to
either the emissions from the existing transportation system (no-
build), or the level of motor vehicle emissions in the baseline year,
as described in 40 CFR 93.119. For the discussion of the baseline year
for the 2006 PM2.5 NAAQS, please refer to Section IV. of
today's notice.
2. Rationale and Response to Comments
EPA believes that this provision of today's rule meets statutory
requirements for conformity determinations that occur before SIP
budgets are available for the 2006 PM2.5 NAAQS. EPA believes
it is appropriate to provide flexibility and allow 2006
PM2.5 areas to meet only one interim emissions test before
adequate or approved PM2.5 SIP budgets are established.
Using either the build/no-build test or baseline year test is
sufficient to meet CAA section 176(c)(1)(B) requirements that
transportation activities do not cause or contribute to new air quality
violations, worsen existing violations, or delay timely attainment or
any interim milestones. The baseline year and the build/no-build tests
are sufficient for demonstrating conformity when an area does not have
a SIP budget for a portion of a nonattainment area.
Based on the CAA, EPA has previously determined that only in ozone
and CO areas of higher classifications \25\ are transportation plans
and TIPs required to also satisfy section 176(c)(3)(A)(iii), i.e., that
the transportation plan and TIP contribute to emissions reductions,
during the time period before adequate or approved SIP budgets are
available (58 FR 3782-3783; 62 FR 43784-43785; 69 FR 40018, 40019-
40031). As a result, the current rule requires these ozone and CO areas
to meet both interim emissions tests, rather than only one test.
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\25\ These areas include ozone areas classified as moderate and
above, CO areas classified as moderate with design value greater
than 12.7 ppm, and CO areas classified as serious.
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However, prior to today's rule, the conformity rule already allowed
areas designated for the other pollutants, as well as the lower
classifications of ozone and CO, to conform based on only one interim
emissions test, rather than having to complete two tests and thereby
contribute further reductions towards attainment. Today's final rule
requiring the 2006 PM2.5 areas also to meet only one of the
interim emissions tests meets the CAA's requirements in section
176(c)(1)(B) (described above in Section II.A., footnote 1). For more
information and the full rationale for allowing some areas to conform
based on only one interim emissions test, see the November 24, 1993
final rule (58 FR 62197) that addressed interim requirements for
PM10 and NO2 areas, the July 1, 2004 final rule
(69 FR 40029) that established interim requirements for 1997
PM2.5 areas, and the May 15, 2009 proposed rule.
EPA believes that the no-greater-than-baseline year interim
emissions test is an appropriate test for meeting section 176(c)(1)(B)
(refer to footnote 1 in Section II.A.) requirements in 2006
PM2.5 nonattainment areas. By definition, the no-greater-
than baseline year test ensures that emissions from on-road mobile
sources are no greater than they were during the baseline year that
will most likely be used for 2006
[[Page 14268]]
PM2.5 NAAQS SIP planning purposes. If future on-road
emissions do not increase above their base year levels, applicable
statutory requirements are met.
The build/no-build test also allows a 2006 PM2.5 area to
meet statutory requirements. As described above, the build/no-build
test requires a regional emissions analysis to demonstrate that the
emissions from the proposed transportation system in future years would
be less than the emissions from the built transportation system in
future years. Since for each analysis year, a new transportation plan,
TIP, or project (the build scenario) could not result in regional
emissions that are higher than those that would occur in the absence of
the proposed transportation activities (the no-build scenario) for the
system, CAA section 176(c)(1)(B) requirements are met. For these
reasons, EPA believes that the build/no-build test continues to be an
appropriate interim test prior to SIP budgets being available.
Most commenters supported allowing 2006 PM2.5 areas to
meet only one of the interim emissions tests because it would give
areas the flexibility to use the test they deem most appropriate, given
the available data and the unique circumstances of individual areas.
However, one commenter objected, arguing that the rule doesn't promote
the CAA or the SIP process because it doesn't require reduction of
PM2.5 emissions. The commenter also stated that the case EPA
cited in its proposal, Environmental Defense v. EPA 467 F .3d 1329 (DC
Cir. 2006), is not pertinent because it did not consider climate change
factors in any way.
EPA disagrees. First, it has already been clearly established in
case law that the conformity provisions of the CAA do not require that
transportation projects achieve additional emission reductions in
PM2.5 areas before SIP budgets are available. As discussed
above, allowing 2006 PM2.5 areas the choice of interim
emissions tests does meet the CAA's requirements. Today's rule is
parallel to the current rule's requirements for 1997 PM2.5
nonattainment areas (69 FR 40028-40031), which were upheld by an
October 2006 court decision. Environmental Defense v. EPA, 467 F.3d
1329 (D.C. Cir. 2006).\26\ Contrary to the commenter's view, this court
case is not rendered irrelevant because it doesn't consider climate
change factors; conformity applies only to nonattainment and
maintenance areas for transportation-related criteria pollutants and
their precursors.
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\26\ Petitioners challenged several aspects of the conformity
regulations. In its decision, the U.S. Court of Appeals for the
District of Columbia Circuit upheld EPA's regulations at 40 CFR
93.119(b)(2), (d), and (e) ``because the Act does not require that
activities involving transportation actually reduce pollutants, but
merely not frustrate an implementation plan's purpose to reduce
overall emissions.'' The court also upheld EPA's regulations at 40
CFR 93.118(b), (d), and (e)(6). The court vacated a narrow provision
at 40 CFR 93.109(e)(2)(v) which had allowed 8-hour ozone areas to
avoid using their existing 1-hour budgets under certain
circumstances. This provision was removed from the transportation
conformity regulation in the January 24, 2008 final rule (see 73 FR
4434).
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The same commenter thought that the 2006 court case does not
preclude EPA from reasonably determining that more stringent interim
rules are required to ``conform to a SIP's purpose of reducing overall
emissions.'' However, EPA believes that the best interpretation of the
Act is that reflected in today's rule, which allows 2006
PM2.5 areas the choice between the interim emissions tests.
This interpretation is also consistent with past rulemakings for
interim emissions test requirements for other pollutants, as described
above.
Finally, one commenter asked EPA to clarify whether an area that is
currently using one of the interim emissions tests for the 1997
PM2.5 NAAQS could use the results of that test for the 2006
PM2.5 NAAQS. When areas are determining conformity for the
1997 and 2006 PM2.5 NAAQS at the same time, they could apply
some of the information developed in the 1997 PM2.5 regional
emissions analysis in creating 2006 PM2.5 regional emissions
analysis.
First, note that regardless of whether the area is using the
baseline year test or build/no-build test, the same analysis years can
be used for 1997 PM2.5 conformity and 2006 PM2.5
conformity when the analyses are done at the same time (refer to 40 CFR
93.119(g) for analysis year requirements).
In most 1997 PM2.5 areas, conformity applies only for
the annual NAAQS.\27\ While the results of an interim emissions test
for the 1997 annual PM2.5 NAAQS cannot be directly applied
for the 2006 24-hour PM2.5 NAAQS, the option described below
could save implementers some effort when conformity is being determined
for both of these NAAQS at the same time. This option applies only when
using MOBILE6.2 for regional emissions analyses.\28\
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\27\ There are two areas where conformity for both the 1997
annual and 24-hour NAAQS applies. See Section III.A. for more
information.
\28\ Areas in California should use the interagency consultation
process to determine appropriate methods. In all other 2006
PM2.5 areas, EPA expects that MOBILE6.2 will be used for
the first 2006 PM2.5 conformity determinations.
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Areas should develop the annual emissions for the 1997
PM2.5 NAAQS by estimating emissions in two seasons, summer
and winter; four seasons; or the 12 months of the year.\29\
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\29\ This description reflects how analyses are to be done for
the 1997 PM2.5 NAAQS, which is covered in ``Guidance for
Creating Annual On-Road Mobile Source Emission Inventories for
PM2.5 Nonattainment Areas for Use in SIPs and
Conformity,'' EPA420-B-05-008, August 2005, found on EPA's Web site
at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b05008.pdf. In particular, Question 7 on pp. 5-8 of that guidance
addresses how analyses are to be done for the 1997 PM2.5
NAAQS.
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To apply information from the analysis done for the 1997
PM2.5 NAAQS to the 2006 PM2.5 analysis, for each
analysis year, areas should use the emission factors developed in the
1997 PM2.5 NAAQS regional emissions analysis for
PM2.5 and NOX in a season or month where
violations of the 2006 PM2.5 NAAQS occurred, and multiply
these emission factors by the seasonally-adjusted average daily VMT for
the area of the analysis year.\30\ If violations occurred in more than
one season or month, the interagency consultation process should be
used to choose the season or month that would best ensure that the CAA
is met, for example by choosing the season with the most frequent or
most severe violations, or the season with the highest vehicle miles
traveled, or both.\31\ The choice of season or seasons should be based
on air quality data from the three years used to make designations
(i.e., 2006-2008), unless more recent air quality data indicates that a
different season should be analyzed, as decided through consultation.
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\30\ If a 24-hour emissions estimate is available in the
appropriate season or month because this step has been completed for
1997 PM2.5 NAAQS conformity and conformity is being
determined for the 1997 PM2.5 NAAQS and the 2006
PM2.5 NAAQS at the same time, it does not need to be
redone but can be applied in the regional emissions analysis for
2006 PM2.5 conformity.
\31\ Note that this guidance regarding the choice of season
applies only when using MOBILE6.2 and not MOVES because MOBILE6.2
PM2.5 emission factors are not sensitive to changes in
temperature. EPA will provide guidance on this issue when MOVES is
released. See EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm and http://www.epa.gov/otaq/stateresources/transconf/policy.htm for future MOVES guidance.
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Whatever season is chosen to estimate the build scenario emissions,
the same season should be used for comparison whether using the
baseline year test or build/no-build test. For example, emissions for a
build scenario calculated using winter MOBILE6.2 inputs should be
compared to emissions in the winter of the baseline year, or emissions
in winter from the no-build scenario.
[[Page 14269]]
Note that after the effective date of today's final rule, the
baseline year for the 2006 PM2.5 NAAQS will be 2008 while
the baseline year for the 1997 PM2.5 NAAQS remains 2002. See
Section IV. for additional discussion of the baseline year.
As stated above, once an area has adequate or approved budgets for
any PM2.5 NAAQS, it must use the budget test instead of an
interim emissions test.
C. Implementation of Regional Tests
The existing conformity rule's general requirements for
PM2.5 regional emissions analyses apply to 2006
PM2.5 areas that do not have adequate or approved SIP
budgets for the 1997 PM2.5 NAAQS. EPA is including this
discussion of the existing regulation's requirements for clarity, to
help readers understand how the existing regulation applies to areas
designated nonattainment for the 2006 PM2.5 NAAQS. The
discussion below is intended to illustrate how today's final rule is to
be implemented in practice for 2006 PM2.5 areas without
adequate or approved 1997 PM2.5 SIP budgets.
1. Decisions Made Through the Interagency Consultation Process
The existing rule's consultation process must be used to determine
the test for completing any regional emissions analysis for the 2006
PM2.5 NAAQS, as required by 40 CFR 93.105(c)(1)(i). The
existing interagency consultation process must also be used to
determine the latest assumptions and models for generating motor
vehicle emissions regardless of the test used. Refer to Section IV. of
this preamble for details about generating baseline year emissions if
that interim emissions test is selected for a given conformity
determination.
In addition, the consultation process must be used to determine
which analysis years should be selected for regional emissions
analyses. Before an adequate or approved 2006 PM2.5 budget
is available, areas would be able to choose, through interagency
consultation, either interim emissions test for each conformity
determination. However, the same test must be used for each analysis
year for a given determination. EPA believes that sufficient
flexibility exists without mixing and matching interim emissions tests
for different analysis years within one conformity determination, which
is unnecessarily complicated and may indicate that an area would not
conform using one test consistently.
2. How a Regional Emissions Analysis Can Be Developed When Using An
Interim Emissions Test
Under the ``Rationale and Response to Comments'' above, EPA
described how an area using an interim emissions test for 1997
PM2.5 conformity could apply it to 2006 PM2.5
conformity. This section provides general guidance for creating a 2006
PM2.5 regional emissions analysis.
Because the 2006 PM2.5 NAAQS designations were only for
the 2006 24-hour PM2.5 NAAQS, the regional emissions
analysis will be based on emissions for a 24-hour time period.
For either the baseline year test or the build/no-build test, for
each analysis year, emissions must be estimated for the build scenario
according to 40 CFR 93.119(i) with a 24-hour emissions inventory. (The
build scenario is referred to as the ``Action'' scenario at 40 CFR
93.119(i).)
This emissions inventory would include direct PM2.5,
NOX, and any other relevant precursor emissions \32\ that
result from the build scenario using MOBILE6.2 for a 24-hour period.
For each analysis year chosen, areas should choose MOBILE6.2 inputs for
the season of the year where violations of the 2006 PM2.5
NAAQS occurred.\33\ If violations occurred in more than one season,
implementers should use the interagency consultation process to choose
the season (or seasons) that would best ensure that the CAA is met, for
example by choosing the season with the most frequent or most severe
violations, or the season with the highest vehicle miles traveled, or
both.\34\ The choice of season or seasons should be based on air
quality data from the three years used to make designations (i.e.,
2006-2008), unless more recent air quality data indicates that a
different season should be analyzed, as decided through consultation.
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\32\ Refer to 40 CFR 93.102(b) for which precursors apply. To
date, before they have adequate or approved budgets from a
PM2.5 SIP, PM2.5 areas have determined
conformity for only direct PM2.5 and NOX.
\33\ In California where EMFAC is used, areas should use the
interagency consultation process to determine appropriate methods.
\34\ Note that this guidance regarding the choice of season
applies only when using MOBILE6.2 and not MOVES because MOBILE6.2
PM2.5 emission factors are not sensitive to changes in
temperature. EPA will provide guidance on this issue when MOVES is
released. See EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm and http://www.epa.gov/otaq/stateresources/transconf/policy.htm for future MOVES guidance.
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For each analysis year, these emission factors from MOBILE6.2 for
direct PM2.5, NOX, and any other relevant
precursor for the season chosen should be multiplied by the seasonally-
adjusted average daily VMT in that analysis year to create an estimate
of transportation emissions in a 24-hour period. For additional
guidance on creating daily emissions inventories, refer to EPA's
existing guidance documents.\35\
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\35\ Specifically, see EPA's ``Technical Guidance on the Use of
MOBILE6.2 for Emission Inventory Preparation,'' EPA420-R-04-013,
August 2004, found on EPA's Web site at: http://www.epa.gov/otaq/models/mobile6/420r04013.pdf and ``Procedures for Emission Inventory
Preparation--Vol IV: Mobile Sources,'' found at: http://ntl.bts.gov/DOCS/AQP.html.
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Note that whatever season is chosen to estimate the build scenario
emissions, the same season should be used for comparison whether using
the baseline year test or build/no-build test. For example, emissions
for a build scenario calculated using winter MOBILE6.2 inputs should be
compared to emissions in the winter of the baseline year (see Section
IV. for a discussion of the baseline year in 2006 PM2.5
areas), or emissions in winter from the no-build scenario.
Refer to 40 CFR 93.119 for additional information about conducting
the build/no-build and baseline year tests.
3. Conformity Test Requirements for All Areas
Regional emissions analyses under today's final rule are to be
implemented through existing conformity requirements such as 40 CFR
93.118, 93.119, and 93.122. For example, the existing conformity rule
requires that certain years within the transportation plan (or
alternate timeframe) be examined. Under 40 CFR 93.118(d), the following
years would be analyzed for the budget test with 2006 PM2.5
SIP budgets:
The attainment year for the 2006 PM2.5 NAAQS
(if it is within the timeframe of the transportation plan and
conformity determination);
The last year of the timeframe of the conformity
determination (40 CFR 93.106(d)); and
Intermediate years as necessary so that analysis years are
no more than ten years apart.
For the interim emissions tests, the existing conformity rule (40
CFR 93.119(g)) requires the following analysis years:
A year no more than five years beyond the year in which
the conformity determination is being made;
The last year of the timeframe of the conformity
determination (as described in 40 CFR 93.106(d));
Intermediate years as necessary so that analysis years are
no more than 10 years apart.
[[Page 14270]]
See the relevant regulatory sections of the conformity rule and the
July 1, 2004 final rule preamble for further background on how tests
have been implemented for other pollutants and NAAQS (69 FR 40020).
4. Cases Involving Multi-Jurisdictional Areas
In July 2004, EPA issued a guidance document for implementing
conformity requirements in multi-jurisdictional areas.\36\ Multi-
jurisdictional areas are nonattainment and maintenance areas with
multiple MPOs, one or more MPOs and a donut area, or multi-state areas.
EPA believes that this guidance should also apply to 2006
PM2.5 areas with multiple jurisdictions.
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\36\ ``Companion Guidance for the July 1, 2004, Final
Transportation Conformity Rule: Conformity Implementation in Multi-
Jurisdictional Nonattainment and Maintenance Areas for Existing and
New Air Quality Standard,'' EPA420-B-04-012, July 2004, found on
EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf.
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There are two parts of this existing guidance that are most
relevant for implementing conformity for multi-jurisdictional 2006
PM2.5 areas that do not have adequate or approved 1997
PM2.5 SIP budgets. Part 2 of this guidance describes how
conformity would be implemented in all 2006 PM2.5 areas
before adequate or approved SIP budgets are available for an applicable
NAAQS. Part 3 of this guidance is relevant for meeting conformity
requirements once adequate or approved 2006 PM2.5 SIP
budgets are available.
For example, Part 3 of this guidance describes how a state or MPO
in a multi-state nonattainment area can operate independently from
other states/MPOs for conformity purposes once adequate or approved SIP
budgets for a state are established. This same conformity guidance also
applies for the 2006 PM2.5 NAAQS in these types of areas.
Part 3 applies to the cases where subarea budgets are established for a
nonattainment area within one state with multiple MPOs. For further
information, please refer to EPA's 2004 multi-jurisdictional conformity
guidance.
VI. Regional Conformity Tests in 2006 PM2.5 Areas That Have
Adequate or Approved 1997 PM2.5 SIP Budgets
This section describes the conformity tests required for completing
regional emissions analyses in areas designated for the 2006
PM2.5 NAAQS that have adequate or approved SIP budgets for
the 1997 PM2.5 NAAQS that cover either part or all of the
2006 PM2.5 area. The conformity tests for these areas are
found under a new section 93.109(k). See Section V. of this preamble
for conformity tests in 2006 PM2.5 areas that do not have an
adequate or approved 1997 PM2.5 SIP budget.
A. Conformity After 2006 PM2.5 SIP Budgets Are Adequate or Approved
1. Description of Final Rule
Once a SIP for the 2006 PM2.5 NAAQS is submitted with
budget(s) that EPA has found adequate or approved, the budget test must
be used in accordance with 40 CFR 93.118 to complete all applicable
regional emissions analyses for the 2006 PM2.5 NAAQS.
Conformity is demonstrated if the transportation system emissions
reflecting the proposed transportation plan, TIP, or project not from a
conforming transportation plan and TIP were less than or equal to the
motor vehicle emissions budget level defined by the SIP as being
consistent with CAA requirements.
The first submitted SIP for the 2006 PM2.5 NAAQS may be
an attainment demonstration or a maintenance plan. Nonattainment areas
for the 2006 PM2.5 NAAQS could also voluntarily choose to
submit an ``early progress SIP'' to establish budgets for conformity
purposes prior to required SIPs. See Section V. for further details on
requirements for early progress SIPs. EPA has discussed this option in
past conformity rule preamble, e.g. the July 1, 2004 transportation
conformity final rule (69 FR 40028), and some states have established
early progress SIP budgets for conformity purposes.
Whatever the case, interim emissions tests and/or any existing 1997
PM2.5 SIP budget would no longer be used for conformity in
2006 PM2.5 areas for direct PM2.5 or a relevant
precursor once an adequate or approved SIP budget for the 2006
PM2.5 NAAQS is established for the pollutant or precursor.
Once a SIP budget for the 2006 PM2.5 NAAQS is adequate or
approved, the budget test for 2006 PM2.5 conformity would be
done based on 24-hour emissions (i.e., tons per day). As noted earlier
in Section III.D., areas that were also designated for the 1997
PM2.5 NAAQS would continue to meet their existing conformity
requirements for the 1997 PM2.5 NAAQS, which would include a
regional emissions analysis based on annual emissions (i.e., tons per
year). The conformity rule at 40 CFR 93.105 requires consultation on
the development of SIPs; EPA encourages states to consult with MPOs,
state and local transportation agencies, and local air quality agencies
sufficiently early when developing 2006 PM2.5 SIPs to
facilitate future conformity determinations. Once EPA's nonattainment
designations are finalized, EPA Regions would be available to assist
states in developing early progress SIPs for the 2006 PM2.5
NAAQS, if desired.
2. Rationale and Response to Comments
EPA's rationale for the use of the budget test once adequate or
approved SIP budgets addressing the 2006 PM2.5 NAAQS are
available, and the summary of comments received on this provision, is
found in Section V.A.2. of this preamble. It is not repeated here.
B. Conformity Before 2006 PM2.5 SIP Budgets Are Adequate or Approved
1. Description of the Final Rule
This portion of the final rule is for completing conformity under
the 2006 PM2.5 NAAQS before 2006 PM2.5 SIP
budgets are established. For areas designated nonattainment for the
2006 PM2.5 NAAQS where all, or a portion, of the area is
covered by adequate or approved 1997 PM2.5 SIP budgets, the
1997 PM2.5 SIP budgets serve as the surrogate for budgets
for the 2006 PM2.5 NAAQS until the point when 2006
PM2.5 SIP budgets are adequate or approved. The interagency
consultation process should be used if there are questions about what
adequate or approved budgets are established in an area's 1997
PM2.5 SIP. In addition, in the case where the 1997 budget
does not cover the entire 2006 PM2.5 area, one of the
interim emissions tests must also be used, as described below. Section
IV. of today's rule covers the baseline year to be used for the
baseline year interim emissions test and Section V. covers interim
emissions tests in 2006 PM2.5 areas before adequate or
approved SIP budgets for the 2006 PM2.5 NAAQS are available.
Many nonattainment areas for the 1997 PM2.5 NAAQS may
have adequate or approved SIP budgets for the 1997 annual
PM2.5 NAAQS. For areas that use annual PM2.5
budgets to meet 2006 PM2.5 requirements, a regional
emissions analysis would be done based on an analysis of annual, rather
than 24-hour, emissions (i.e., tons per year).
The final rule creates a new provision in Sec. 93.109(k) that
covers the four possible scenarios that could result when areas are
designated nonattainment for the 2006 PM2.5 NAAQS:
Scenario 1: the 2006 PM2.5 area nonattainment
boundary is the same as the 1997 PM2.5 area boundary.
[[Page 14271]]
Scenario 2: the 2006 PM2.5 area is smaller than
(and completely within) the 1997 PM2.5 area boundary.
Scenario 3: the 2006 PM2.5 area is larger than
(and contains) the 1997 PM2.5 area boundary.
Scenario 4: the 2006 PM2.5 area boundary
overlaps with a portion of the 1997 PM2.5 area boundary.
Most of the 2006 PM2.5 areas that are also designated
for the 1997 PM2.5 NAAQS are Scenario 1 areas; there are
areas that belong to Scenarios 2 and 3 as well. EPA is including rules
for all four scenarios for the sake of completeness.\37\ The following
paragraphs describe today's rule provisions for each possible scenario
for 2006 PM2.5 nonattainment areas.
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\37\ Today's final rule is based on EPA's experience in
establishing conformity requirements for areas designated for the
1997 8-hour ozone NAAQS that had SIP budgets for the 1-hour ozone
NAAQS, found in 40 CFR 93.109(e)(2). The four boundary scenarios are
the same as the four boundary scenarios EPA described for the 1997
8-hour ozone areas that had existing 1-hour ozone budgets. EPA's
2004 guidance entitled, ``Companion Guidance for the July 1, 2004
Final Transportation Conformity Rule, Conformity Implementation in
Multi-Jurisdictional Nonattainment and Maintenance Areas for
Existing and New Air Quality Standards,'' (EPA420-B-04-012),
contains diagrams of the four scenarios for 8-hour ozone areas.
Readers may be interested in reviewing these diagrams as they read
the following description of the regulation. This document can be
found on EPA's transportation conformity website at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf.
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Scenario 1: 2006 PM2.5 areas where the nonattainment boundary is
exactly the same as the 1997 PM2.5 boundary. In this case, the 2006 and
1997 PM2.5 nonattainment boundaries cover exactly the same
geographic area. Such areas must meet the budget test for the 2006
PM2.5 NAAQS using existing adequate or approved SIP budgets
for the 1997 PM2.5 NAAQS.
Scenario 2: 2006 PM2.5 areas where the boundary is smaller than and
within the 1997 PM2.5 boundary. In this case, the 2006 PM2.5
nonattainment area is smaller than and completely encompassed by the
1997 PM2.5 nonattainment boundary. Such areas must meet one
of the following versions of the budget test:
The budget test using the subset or portion of existing
adequate or approved 1997 PM2.5 SIP budgets that applies to
the 2006 PM2.5 nonattainment area, where such portion(s) can
be appropriately identified; or
The budget test using the existing adequate or approved
1997 PM2.5 SIP budgets for the entire 1997 PM2.5
nonattainment area. In this case, any additional reductions beyond
those addressed by control measures in the 1997 PM2.5 SIP
would be required to come from the 2006 PM2.5 nonattainment
area as described below.
Under today's rule, areas could choose either test each time they
make a conformity determination. For any particular conformity
determination, however, the same choice would have to be used for each
analysis year. EPA believes that to do otherwise would be unnecessarily
complicated and may indicate that one test option used consistently for
all analysis years would not demonstrate conformity. The consultation
process must be used to determine whether using a portion of a 1997
PM2.5 SIP budget is appropriate and feasible, and if so, how
deriving such a portion would be accomplished. See the preamble of the
July 1, 2004 final rule (69 FR 40022-40023) for a description of a
similar provision for the 1997 8-hour ozone NAAQS.
A conformity determination using the entire 1997 PM2.5
budget would have to include a comparison between the on-road regional
emissions produced in the entire 1997 PM2.5 area and the
existing 1997 PM2.5 SIP budget(s). However, if additional
reductions are required to meet conformity beyond those produced by
control measures in the 1997 PM2.5 SIP budgets, those
reductions must be obtained from within the 2006 PM2.5
nonattainment area only, since the conformity determination is being
made for the 2006 PM2.5 NAAQS.
Scenario 3: 2006 PM2.5 areas where the boundary is larger than the
1997 PM2.5 boundary. In this case, an entire 1997 PM2.5
nonattainment or maintenance area would be within a larger 2006
PM2.5 nonattainment area and the 1997 PM2.5
budgets would not cover the entire 2006 PM2.5 nonattainment
area. Such areas are required to meet one of the following:
The budget test using the 1997 PM2.5 budget(s)
for the 1997 PM2.5 area, that is, the portion of the 2006
PM2.5 area that lies within the 1997 PM2.5 area
boundary, and one of the interim emissions tests for either the
remaining portion of the 2006 PM2.5 nonattainment area, the
entire 2006 PM2.5 area, or the entire portion of the 2006
PM2.5 area within an individual state, if 1997
PM2.5 budgets are established in each state in a multi-state
area; or
The budget test using the existing adequate or approved
1997 PM2.5 SIP budgets for the entire 2006 PM2.5
nonattainment area.\38\
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\38\ While the existing regulation for 8-hour ozone areas does
not explicitly contain this option, it was addressed in the preamble
to the final rule addressing 8-hour ozone areas (July 1, 2004, 69 FR
40027).
The budget test must be completed according to the requirements in 40
CFR 93.118, and the interim emissions test must follow the requirements
of 40 CFR 93.119.
Once an area selects a particular interim emissions test and the
geographic area it will address, the same test must be used
consistently for all analysis years. The consultation process must be
used to determine which analysis years should be selected for regional
emissions analyses where the budget test and interim emissions tests
are used. It may be possible to choose analysis years that satisfy both
the budget and interim emissions test requirements for areas using both
tests prior to adequate or approved 2006 PM2.5 SIP budgets
being established. Further information regarding the implementation of
these requirements is illustrated later in this section.
Scenario 4: 2006 PM2.5 areas where the boundary partially overlaps
a portion of the 1997 PM2.5 boundary. In this case, the 1997 and 2006
PM2.5 nonattainment boundaries partially overlap. As in the
case with Scenario 3 areas, the 1997 PM2.5 budgets would not
cover the entire 2006 PM2.5 nonattainment area. However,
unlike Scenario 3 areas, the 2006 area does not contain the entire 1997
PM2.5 nonattainment or maintenance area. Therefore, 1997
PM2.5 budgets cannot be the sole test of conformity for the
2006 PM2.5 NAAQS, since a conformity determination must
include a regional emissions analysis that includes the entire 2006
PM2.5 nonattainment area.
The 2006 PM2.5 areas covered under this scenario must
use the 1997 PM2.5 budget(s) to meet the budget test for the
portion of the 1997 PM2.5 area and budgets that overlap with
the 2006 PM2.5 area boundary, and one of the interim
emissions tests for either the remaining portion of the 2006
PM2.5 nonattainment area, the entire 2006 PM2.5
area, or the entire portion of the 2006 PM2.5 area within an
individual state, if 1997 PM2.5 budgets are established in
each state in a multi-state area. Under this final rule, the budget
test must be completed according to the requirements in 40 CFR 93.118,
and the interim emissions test must follow the requirements of 40 CFR
93.119.
Similar to Scenario 3 areas, once an area selects a particular
interim emissions test and the geographic area it will address, the
same test must be used consistently for all analysis years. Further
information regarding the implementation of these requirements is found
in the discussion above for Scenario 3, and illustrated later in this
section.
[[Page 14272]]
2. Rationale and Response to Comments
General. EPA believes that using the existing 1997 PM2.5
budgets as a surrogate for the 2006 PM2.5 NAAQS is required
by the CAA. In Environmental Defense v. EPA, 467 F.3d 1329 (D.C. Cir.
2006), the Court of Appeals for the District of Columbia Circuit held
that where a motor vehicle emissions budget developed for the revoked
1-hour ozone NAAQS existed in an approved SIP, that budget must be used
to demonstrate conformity to the 8-hour ozone NAAQS until the SIP is
revised to include budgets for the new NAAQS. EPA reflected the court's
decision for ozone conformity tests in its January 24, 2008 final rule
(73 FR 4434).
While the Environmental Defense case concerned ozone, EPA believes
the court's holding is relevant for other pollutants for which
conformity must be demonstrated. Consequently, EPA believes that 2006
PM2.5 areas that have 1997 PM2.5 budgets must use
them for 2006 PM2.5 conformity before 2006 PM2.5
SIP budgets are established.
The use of the 1997 PM2.5 budgets as a surrogate for the
2006 PM2.5 NAAQS also would ensure that CAA requirements are
met. Section 176(c) of the CAA requires that transportation activities
may not cause or contribute to new violations, worsen existing
violations, or delay timely attainment or any interim milestones. In
these areas, the budgets for the 1997 annual PM2.5 NAAQS
have been the measure of PM2.5 conformity thus far, and have
been consistent with these areas' PM2.5 air quality progress
to date. Therefore, using budgets that address the 1997 annual
PM2.5 NAAQS where no other PM2.5 budgets are
available ensures that the requirements of CAA 176(c) are met. Once
2006 PM2.5 budgets are found adequate or approved, the
budget test for that NAAQS provides the best means to determine whether
transportation plans, TIPs, or projects meet CAA requirements.
The budget test is also a better environmental measure than the
interim emissions tests when SIP budgets for a pollutant or precursor
are available. As EPA reiterated in its July 1, 2004 final rule (69 FR
40026), when motor vehicle emissions budgets have been established by
SIPs, they provide a more relevant basis for conformity determinations
than the interim emissions tests. EPA believes this is true even though
in most cases the budgets established for the 1997 PM2.5
NAAQS would address an annual rather than a 24-hour NAAQS. A 1997
PM2.5 budget represents the state's best estimate of the
level of permissible PM2.5 emissions from the on-road
transportation sector for a particular area. Such a budget is created
based on local information for that particular area--its population,
its estimated vehicle miles traveled and other travel data, its transit
availability, its particular vehicle fleet, its local controls, and so
forth. Hence EPA believes using budgets, designed for specific areas
and based on information from those specific areas, is preferable to
using either of the more generic interim emissions tests. The baseline
year and the build/no-build tests are sufficient for demonstrating
conformity when an area does not have a budget for a portion of a
nonattainment area. However, these interim emissions tests usually do
not ensure that transportation emissions promote progress for the NAAQS
to the same extent that the use of motor vehicle emissions budgets do.
In addition, using the 1997 PM2.5 budgets for 2006
PM2.5 conformity purposes may also streamline the conformity
process for areas designated nonattainment for both the 1997 and 2006
PM2.5 NAAQS. These areas would already be using 1997
PM2.5 budgets for conformity of that NAAQS. In areas where
the 1997 and 2006 PM2.5 nonattainment boundaries are the
same (Scenario 1), today's final rule requires these areas to meet only
one type of test--the budget test--to demonstrate conformity for both
the 1997 and 2006 PM2.5 NAAQS, although the attainment year,
which is a required analysis year, will be different for these two
NAAQS.
For multi-state 2006 PM2.5 nonattainment areas, today's
final rule preserves states' ability to determine conformity
independently from one another, if a state has already established
budgets for its own state (and/or MPO(s)) for the 1997 PM2.5
NAAQS. Further explanation and examples are given below in Section
VI.C.
While today's final rule concerns the 2006 PM2.5 NAAQS,
this same rationale regarding conformity tests would apply for future
new or revised NAAQS of any transportation-related criteria pollutant.
Therefore, EPA may amend the rule in the future to apply the conformity
test language found in today's Sec. 93.109(j) and (k) more generally.
EPA is not doing so in today's final rule as such a provision was not
proposed, and EPA intends to solicit and consider public comments on
applying this language to future new or revised NAAQS before adopting
any such provision.
Scenario 1 and 2 areas. Today's final rule for conformity in 2006
PM2.5 areas before budgets that address that NAAQS are
available is largely consistent with the process that EPA finalized for
8-hour ozone areas designated under the 1997 ozone NAAQS where 1-hour
ozone budgets exist (69 FR 40021-40028). Requirements for Scenario 1
and 2 areas are identical to the final rule for these 8-hour ozone
areas. Scenario 2 2006 PM2.5 areas also have the choice of
adjusting the existing 1997 PM2.5 budgets for the new
geographical area. As we indicated in the November 5, 2003 proposed
rule for the 8-hour ozone areas (68 FR 62702), using the relevant
portion of existing budgets for purposes of conducting conformity
determinations for a different NAAQS of the same pollutant is
appropriate since the budgets for the 1997 PM2.5 NAAQS would
only be used as a surrogate for the 2006 PM2.5 NAAQS. These
1997 PM2.5 budgets still have to be met in the 1997
PM2.5 areas.
Scenario 3 and 4 areas. Some Scenario 3 areas and all Scenario 4
areas must also meet one of the interim emissions tests, for either the
portion of the 2006 PM2.5 area not covered by the 1997
PM2.5 SIP budgets, the entire PM2.5 area, or the
entire portion of the 2006 PM2.5 area within an individual
state. As explained in the November 2003 proposed rule for 8-hour ozone
areas (68 FR 62702), in these cases budgets cannot be the sole test of
conformity because a conformity determination must include a regional
emissions analysis that covers the entire nonattainment area.
However, some Scenario 3 areas may be able to demonstrate
conformity without an interim emissions test. Scenario 3
PM2.5 areas have an option that similar 8-hour ozone areas
also have: The entire larger, newly designated area could meet budgets
established for the smaller, existing area. In the July 1, 2004 final
rule, EPA clarified that 8-hour ozone areas have this option. In that
final rule, EPA noted that while this option was not explicitly
addressed by the regulatory text, it is consistent with the
requirements and is available to interested 8-hour ozone areas (69 FR
40027).
Finally, EPA believes that statutory requirements are met under the
proposal to use either interim emissions test when no adequate or
approved PM2.5 SIP budgets are available. See further
rationale regarding this flexibility in today's final rule in Section
V.
EPA did not receive any specific comments on this portion of the
rulemaking, but one commenter supported the use of EPA's 2004 multi-
jurisdictional guidance for 2006 PM2.5 areas. This guidance,
discussed further
[[Page 14273]]
below in C.2. of this section, reflects the requirements finalized
today.
C. General Implementation of Regional Tests
Today's final rule applies the existing conformity rule's general
requirements for PM2.5 regional emissions analyses to all
2006 PM2.5 areas. As described in Section V.C., EPA is
including this discussion of the existing regulation's requirements for
clarity, to help readers understand how the existing regulation would
apply to areas designated nonattainment for the 2006 PM2.5
NAAQS.
The discussion below is intended to illustrate how today's rule
will be implemented in practice for 2006 PM2.5 areas with
adequate or approved 1997 PM2.5 SIP budgets.
1. Conformity Test Requirements for Most Areas
Regional emissions analyses under today's final rule must be
implemented through existing conformity requirements such as 40 CFR
93.118, 93.119, and 93.122. For example, the conformity rule requires
that only certain years within the transportation plan (or alternate
timeframe) be examined.
The consultation process must be used to determine which analysis
years should be selected for regional emissions analyses for the budget
test. The conformity rule at 40 CFR 93.118(d)(2) requires the following
analysis years for this test:
The attainment year for the 2006 PM2.5 NAAQS
(if it is within the timeframe of the transportation plan and
conformity determination);
The last year of the timeframe of the conformity
determination (40 CFR 93.106(d)); and
Intermediate years as necessary so that analysis years are
no more than ten years apart.
Areas covered by Sec. 93.109(k) of today's final rule will also be
determining conformity for the 1997 PM2.5 NAAQS, using
adequate or approved budgets established for that NAAQS, although there
will be some differences in analysis years required for the 2006 and
1997 PM2.5 NAAQS (e.g., the attainment year, which is a
required analysis year, will be different for these two NAAQS).
See the relevant regulatory sections of the conformity rule and the
July 1, 2004 final rule preamble for further background on how tests
have been implemented for other pollutants and standards (69 FR 40020).
2. Cases Involving Multi-Jurisdictional Areas
As described earlier, EPA issued a guidance document in 2004 for
implementing conformity requirements in multi-jurisdictional areas.
There are two parts of this existing guidance that are relevant for
implementing conformity for these areas. Part 3 of the existing
guidance describes how conformity would be implemented in all 2006
PM2.5 areas once adequate or approved SIP budgets for the
2006 PM2.5 NAAQS are established. Part 4 of this guidance is
relevant for meeting conformity requirements when only 1997
PM2.5 budgets are available.\39\
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\39\ This section of the guidance covers how 8-hour ozone areas
that have 1-hour ozone budgets would proceed with developing their
regional emissions analyses and making conformity determinations,
which is analogous to any 2006 PM2.5 areas that have 1997
budgets in the interim.
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This guidance is also applicable for conformity purposes in multi-
state and multi-MPO areas. For example, in multi-state 2006
PM2.5 nonattainment areas where each state has its own 1997
PM2.5 SIP budgets, the states could determine conformity for
the 2006 NAAQS (as well as the 1997 PM2.5 NAAQS)
independently of each other. In addition, MPOs in areas that have
subarea budgets for the 1997 PM2.5 NAAQS could use these
subarea budgets for conformity to the 2006 PM2.5 NAAQS.
For further information, please refer to Section V.C. and EPA's
2004 multi-jurisdictional conformity guidance.
VII. Other Conformity Requirements for 2006 PM2.5 Areas
The conformity regulations already provide the remaining
requirements that are necessary for conformity under the 2006
PM2.5 NAAQS. Any existing conformity requirements that are
listed for ``PM2.5'' areas that have not been revised by
today's final rule apply to 2006 PM2.5 nonattainment or
maintenance areas as well. These provisions have already been
promulgated, based on past rulemakings and rationale, and are unchanged
by today's rule. For example, a hot-spot analysis is required for
certain projects in any PM2.5 nonattainment and maintenance
areas before such projects can be found to conform. These requirements
are found in Sec. Sec. 93.116(a) and Sec. 93.123(b) of the conformity
rule, although please note that EPA for other reasons has clarified
amendments to section 93.116(a) in today's final rule; see Section IX.
The hot-spot analysis requirements that were promulgated for
``PM2.5'' areas in the conformity rule did not need to be
amended to apply to 2006 PM2.5 areas, because they already
apply for this NAAQS.
A hot-spot analysis in an area designated for both the 1997 and
2006 PM2.5 NAAQS would have to demonstrate that the project
meets the conformity rule's hot-spot requirements for all of the
PM2.5 NAAQS for which the area is designated nonattainment:
If an area is designated nonattainment for only the 2006
PM2.5 NAAQS, the analysis would have to consider only this
NAAQS;
If an area is designated nonattainment for the 1997 annual
NAAQS and the 2006 24-hour NAAQS, the analysis would have to consider
both NAAQS;
If an area is designated nonattainment for both the 1997
annual and 1997 24-hour NAAQS, as well as the 2006 24-hour NAAQS, the
analysis would have to consider all of these NAAQS.
Please refer to the March 10, 2006 final rule for additional
information regarding hot-spot analyses (47 FR 12468) and EPA and
FHWA's current guidance for implementing this requirement
(Transportation Conformity Guidance for Qualitative Hot-spot Analyses
in PM2.5 and PM10 Nonattainment and Maintenance
Areas, March 2006, EPA420-B-06-902). EPA will also be releasing PM
quantitative hot-spot modeling guidance in the near future. Please
check EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm.
Section 93.117 of the conformity rule, which requires project-level
conformity determinations to comply with any PM2.5 control
measures in an approved SIP, also applies for conformity under the 2006
PM2.5 NAAQS. Again, EPA promulgated this requirement in
general for nonattainment and maintenance areas under the
PM2.5 NAAQS. See EPA's July 2004 final rule for further
information on this requirement (69 FR 40036-40037).
EPA will work with PM2.5 nonattainment areas as needed
to ensure that state and local agencies can meet existing and new
conformity requirements for the 2006 PM2.5 NAAQS in a timely
and efficient manner.
VIII. Transportation Conformity in PM10 Nonattainment and
Maintenance Areas and the Revocation of the Annual PM10
NAAQS
A. Background
On October 17, 2006, EPA issued a final rule establishing changes
to the PM2.5 and PM10 NAAQS (71 FR 61144). The
October 2006 final rule retained the
[[Page 14274]]
24-hour PM10 NAAQS of 150 [mu]g/m\3\, and revoked the annual
PM10 NAAQS of 50 [mu]g/m\3\. EPA made a commitment in the
October 2006 final rule to provide information regarding how
transportation conformity will be implemented under the revised
PM10 NAAQS (71 FR 61215). To satisfy this commitment, EPA
described which conformity tests would apply in PM10
nonattainment and maintenance areas (``PM10 areas'') in a
guidance document.\40\ Today's final rule updates the conformity rule
in response to this commitment.
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\40\ Transportation Conformity in PM10 Nonattainment
and Maintenance Areas and the Revocation of the Annual
PM10 Standard, September 25, 2008, found on EPA's Web
site at: http://www.epa.gov/otaq./stateresources/transconf/policy.htm.
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CAA section 176(c)(5) requires conformity only in areas that are
designated nonattainment or maintenance for a given pollutant and
NAAQS. Therefore, transportation conformity has continued to apply to
all PM10 nonattainment and maintenance areas because
transportation conformity applies based on an area's status as a
nonattainment or maintenance area, and PM10 designations
were not affected by the October 2006 final rule. As stated in the
October 2006 final rule, ``both transportation and general conformity
will continue to apply to all PM10 nonattainment and
maintenance areas since no designations are changing'' (71 FR 61215).
As of the effective date of the October 2006 rule, conformity
determinations in PM10 areas have been required only for the
24-hour PM10 NAAQS. The October 2006 final rule stated,
``However, because EPA is revoking the annual PM10 NAAQS in
this final rule, after the effective date of this rule conformity
determinations in PM10 areas will only be required for the
24-hour PM10 NAAQS; conformity to the annual PM10
NAAQS will no longer be required'' (71 FR 61215). Please refer to the
October 17, 2006 final rule for additional information (71 FR 61144).
B. Description of the Final Rule
EPA has added two new definitions to 40 CFR 93.101 of the
conformity rule to distinguish between the 24-hour PM10
NAAQS and the annual PM10 NAAQS. EPA has also updated 40 CFR
93.109(g) so that:
PM10 areas that have adequate or approved SIP
budgets for both the 24-hour and annual PM10 NAAQS are
required to use only the budgets established for the 24-hour
PM10 NAAQS. Conformity to the annual PM10 budgets
in such a case is no longer required.
PM10 areas that have adequate or approved SIP
budgets for only the annual PM10 NAAQS are required to use
them for PM10 conformity determinations until
PM10 SIP budgets for the 24-hour PM10 NAAQS are
found adequate or approved. For areas that use annual PM10
budgets, a regional emissions analysis must be done based on an
analysis of annual, rather than 24-hour, emissions.
No other conformity requirements for PM10 nonattainment
and maintenance areas have been changed by the final rule. For example,
the requirement for project-level conformity determinations in
PM10 areas continues to apply, including hot-spot analyses
in some cases (see Sec. Sec. 93.116(a) and 93.123(b)). Although
project-level conformity requirements and any required hot-spot
analyses apply only with respect to the 24-hour PM10 NAAQS,
this requires no revisions to the conformity rule to implement.
Where an area has adequate or approved PM10 budgets for
both the annual and 24-hour PM10 NAAQS, it is not necessary
to remove the annual PM10 NAAQS budgets from the SIP. Such
annual budgets do not apply for conformity purposes if an area has
budgets for the 24-hour PM10 NAAQS. However, states can
choose to revise such SIPs to remove any annual PM10
budgets, since this NAAQS has been revoked and remaining 24-hour
PM10 budgets ensure that anti-backsliding SIP requirements
are met.
C. Rationale and Response to Comments
Today's update to the rule for PM10 conformity tests
results from the revocation of the annual PM10 NAAQS. In
areas where annual PM10 budgets are the only PM10
budgets that are adequate or approved, EPA believes it is necessary to
use such budgets to demonstrate conformity for the 24-hour
PM10 NAAQS to meet CAA requirements. As discussed above in
Section VI.B.2., a 2006 decision by the Court of Appeals for the DC
Circuit clarified this point. In this decision, the court stated, ``A
current SIP, even one tied to outdated NAAQS, remains in force until
replaced by another but later-approved SIP. The CAA provides that the
current SIPs are legally sufficient until they are replaced by new
SIPs.'' (Environmental Defense v. EPA, 467 F.3d 1329, 1335 (DC Cir.
2006)). Refer to Section VI.B.2. for further information about the
decision. EPA believes that today's final rule is consistent with this
decision.
Consequently, EPA believes that annual PM10 budgets must
be used to demonstrate conformity for the 24-hour PM10 NAAQS
when adequate or approved 24-hour PM10 budgets are not yet
established. In areas with PM10 budgets that address only
the annual PM10 NAAQS, these budgets have been the measure
of PM10 conformity thus far, and have been consistent with
these areas' PM10 air quality progress to date. Therefore,
using annual PM10 budgets where no other PM10 SIP
budgets are available ensures that air quality progress to date is
maintained, air quality will not be worsened and attainment and any
interim milestones for the 24-hour PM10 NAAQS will not be
delayed because of emissions increases. Once 24-hour PM10
budgets are found adequate or approved, the budget test using only the
budgets for the 24-hour PM10 NAAQS provides the best means
to determine whether transportation plans, TIPs, or projects meet CAA
conformity requirements.
Most PM10 areas already have adequate or approved
budgets for only the 24-hour PM10 NAAQS. However, there are
a limited number of PM10 areas that have SIP budgets only
for the annual PM10 NAAQS. EPA believes that the statute as
interpreted by the court requires such areas to continue to use these
adequate or approved annual PM10 SIP budgets, rather than
use one of the interim emissions tests in 40 CFR 93.119(d) which could
be less environmentally protective tests than SIP budgets.
While EPA addressed how the revocation affected PM10
transportation conformity requirements in its September 2008 guidance,
updating the regulation clarifies the requirements and simplifies
implementation. This final rule also saves resources in some areas with
adequate or approved SIP budgets for both the 24-hour and annual
PM10 NAAQS because these areas are no longer required to use
budgets for the annual PM10 NAAQS. As mentioned above,
today's minor revision to the conformity rule is consistent with what
is already required in the field for PM10 nonattainment and
maintenance areas.
EPA received one comment supporting this rule change and no
comments opposing it.
IX. Response to the December 2007 Hot-Spot Court Decision
A. Background
EPA promulgated a final rule on March 10, 2006 (71 FR 12468) that
revised the previous PM10 conformity hot-spot analysis
requirements and applied these revised requirements to
[[Page 14275]]
PM2.5.\41\ A hot-spot analysis is defined in 40 CFR 93.101
as an estimation of likely future localized pollutant concentrations
and a comparison of those concentrations to relevant NAAQS. A hot-spot
analysis assesses the air quality impacts of an individual
transportation project on a scale smaller than a regional emissions
analysis for an entire nonattainment or maintenance area.
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\41\ The March 10, 2006 rule constituted final action on EPA's
original proposal from November 5, 2003 (68 FR 62690, 62712) and a
supplemental proposal from December 13, 2004 (69 FR 72140, 72144-45,
and 72149-50).
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Prior to today, section 93.116(a) of the conformity rule read: ``*
* * The FHWA/FTA project must not cause or contribute to any new
localized CO, PM10, and/or PM2.5 violations or
increase the frequency or severity of any existing CO, PM10,
and/or PM2.5 violations * * *.'' These requirements continue
to apply in today's rule, and are satisfied for applicable projects
\42\ ``if it is demonstrated that during the time frame of the
transportation plan no new local violations will be created and the
severity or number of existing violations will not be increased as a
result of the project.'' Sections 93.105(c)(1)(i) and 93.123 contain
the consultation and methodology requirements for conducting hot-spot
analyses.
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\42\ Section 93.123(b) contains the types of projects for which
a hot-spot analysis applies in PM2.5 and PM10
areas. For additional discussion, please refer to ``V. Projects of
Air Quality Concern and General Requirements for PM2.5
and PM10 Hot-Spot Analyses'' in the preamble of the March
10, 2006 final rule at 71 FR 12490-12498.
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A hot-spot analysis, when required, is only one part of a project-
level conformity determination. In order to meet all CAA requirements,
an individual project must also be included in a conforming
transportation plan and TIP (and regional emissions analysis for the
entire nonattainment or maintenance area) and meet any other applicable
requirements.
Environmental petitioners challenged the March 2006 final rule, and
raised several issues related to it. First, petitioners alleged that
the final rule did not ensure that transportation projects complied
with CAA section 176(c)(1)(A) and (c)(1)(B)(iii). Second, petitioners
alleged that EPA had previously approved its MOBILE6.2 on-road mobile
source emissions model for use in quantitative PM2.5 and
PM10 hot-spot analyses, and withdrew such approval in the
March 2006 final rule without providing adequate notice and opportunity
for public comment.\43\
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\43\ EPA and petitioners settled a third issue that was not
raised to the court. The settlement was finalized on June 22, 2007
(72 FR 34460), and described a stakeholder process that EPA will use
to develop its future PM2.5 and PM10
quantitative hot-spot modeling guidance.
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On December 11, 2007, the D.C. Circuit Court of Appeals issued its
decision, and upheld EPA's March 2006 final rule and remanded one issue
for clarification. Environmental Defense v. EPA, 509 F.3d. 553 (D.C.
Cir. 2007). The court agreed with EPA's position that CAA section
176(c)(1)(A) does not require that an individual transportation project
reduce emissions, but only that such a project not worsen air quality
compared to what would have otherwise occurred if the project was not
implemented. The court held that, assuming section 176(c)(1)(A) applies
in the local area surrounding an individual project, EPA's position
that this provision is met if a transportation project conforms to the
emissions estimates and control requirements of the SIP was a
reasonable one. The court also rejected petitioners' arguments
regarding MOBILE6.2 and found that EPA had in fact provided adequate
notice and comment on its decision not to require quantitative PM hot-
spot analyses using MOBILE6.2 due to the model's technical limitations
at the project-level (71 FR 12498-12502).
However, the court remanded one issue to EPA for further
explanation of the Agency's interpretation of CAA section
176(c)(1)(B)(iii). The court instructed EPA on remand to interpret how
this provision of the Act is met within the local area affected by an
individual project, or explain why this statutory provision does not
apply within such an area. Today's final rule responds to this part of
the court's decision.
B. Description of the Final Rule
EPA has made two changes to section 93.116(a) of the conformity
rule to address the court's remand. First, EPA is explicitly stating in
this provision that federally funded or approved highway and transit
projects in PM2.5 and PM10 nonattainment and
maintenance areas must meet the requirements of CAA section
176(c)(1)(B)(iii) within the local area affected by the project. That
is, Sec. 93.116(a) now expressly says that project must not delay
timely attainment or any interim milestones. EPA has also explicitly
stated in Sec. 93.116 the requirement that projects must be included
in a regional emissions analysis under 40 CFR 93.118 or 93.119.
Consistent with the court's decision, as explained below, EPA is not
requiring an individual project to reduce emissions in the local
project area.
These revisions are intended to clarify and make more explicit
EPA's longstanding interpretation of the CAA as it applies to hot-spot
analyses, and do not reflect any substantive changes to existing
requirements for project-level conformity determinations. Under today's
final rule, project-level conformity determinations, including any hot-
spot analyses, will continue to be performed in the same manner as
current practice. Projects will continue to be required to be a part of
a regional emissions analysis that supports a conforming transportation
plan and TIP. Hot-spot analyses will need to demonstrate that during
the time frame of the transportation plan no new local violations would
be created and the severity or number of existing violations would not
be increased as a result of a new project. By making these
demonstrations, it can be assured that the project would not delay
timely attainment or any required interim reductions or milestones, as
described further below. In addition, project sponsors must continue to
document the hot-spot analysis as part of the project-level conformity
determination, and the public continues to be able to comment on any
aspects of the conformity determination through existing public
involvement requirements.
EPA notes that today's final rule also addresses new projects in CO
nonattainment and maintenance areas, since the hot-spot analysis
requirements in section 93.116(a) also apply to such areas. Although
the March 2006 final rule and the December 2007 court case did not
involve CO hot-spot requirements, EPA believes it is appropriate to
clarify that CAA section 176(c)(1)(B)(iii) must also be met for
projects in CO nonattainment and maintenance areas.
C. Rationale and Response to Comments
1. General
Project-level conformity determinations must demonstrate that all
of the requirements in CAA section 176(c)(1)(B) are met. Section
176(c)(1)(B) defines conformity to a SIP to mean ``that such activities
will not (i) cause or contribute to any new violation of any NAAQS in
any area; (ii) increase the frequency or severity of any existing
violation of any NAAQS in any area; or (iii) delay timely attainment of
any NAAQS or any required interim emission reductions or other
milestones in any area.''
[[Page 14276]]
In Environmental Defense, the court held that EPA did not
adequately explain how it interpreted the language of CAA section
176(c)(1)(B)(iii) in conjunction with related language in sections
176(c)(1)(B)(i) and (ii). The court stated that, if ``any area'' in the
first two provisions refers to a ``local area,'' then EPA must either
interpret the term ``any area'' in section 176(c)(1)(B)(iii) to also
mean ``local area,'' or explain why a different interpretation is
reasonable. 509 F.3d at 560-61. EPA believes that ``any area'' as used
in the first two provisions does include local areas, and that the same
interpretation should apply to the third provision as well; therefore
all of section 176(c)(1)(B) requirements must be met in the local
project area.
EPA believes that its conformity hot-spot regulations, as well as
other conformity requirements, already require that individual projects
comply with section 176(c)(1)(B)(iii) in the local project area. EPA
has always intended the term ``any area'' in all three statutory
provisions of section 176(c)(1)(B) to include the local area affected
by the emissions produced by a new project. For example, as EPA stated
in the March 2006 final hot-spot rule (71 FR 12483), ``a regional
emissions analysis for an area's entire planned transportation system
is not sufficient to ensure that individual projects meet the
requirements of section 176(c)(1)(B) where projects could have a
localized air quality impact.''
To implement section 176(c)(1)(B) requirements in PM2.5,
PM10, and CO nonattainment and maintenance areas (40 CFR
93.109(b)), EPA's conformity rule has required and continues to require
project-level conformity determinations to address the regional and
local emissions impacts from new projects. Section 93.115(a) of the
conformity rule requires that an individual project must be consistent
with the emissions projections and control measures in the SIP, either
by inclusion in a conforming transportation plan and TIP or through a
separate demonstration (and regional emissions analysis developed under
40 CFR 93.118 or 93.119). In addition, section 93.116(a) requires that
some project-level conformity determinations include a hot-spot
analysis that demonstrates emissions from a single project do not
negatively impact air quality within the area substantially affected by
the project.\44\ EPA concludes that through meeting all of these
requirements, it can be assured that a project does not cause or
contribute to a new violation, worsen a violation, or delay timely
attainment or any interim milestones.
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\44\ Hot-spot analyses must be based on the latest data and
models under 40 CFR 93.109(b), 93.111, and 93.123, and therefore any
growth in other emissions sources or the impact of new or existing
emissions controls (including those in any required SIP) would
always be considered in a hot-spot analysis prior to approving a
project.
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However, in light of the court's request for further explanation,
today's rule specifically clarifies that the term ``any area'' in CAA
section 176(c)(1)(B) applies to any portion of a nonattainment or
maintenance area, including the local area affected by a transportation
project. Today's final rule thus ensures that transportation planners
address the requirement that there be no delay in timely attainment or
any interim milestones in the local project area.
EPA notes that CAA section 176(c)(1)(B)(iii) does not require that
transportation activities provide additional emissions reductions in a
local project area in order to meet the requirement not to delay timely
attainment or any interim milestones. EPA explained this interpretation
in the preamble to its March 2006 hot-spot regulations (71 FR 12482),
and the court upheld this interpretation in Environmental Defense v.
EPA (509 F.3d 553, 560 (D.C. Cir. 2007). See also Environmental Defense
v. EPA, 467 F.3d 1329, 1337 (DC Cir. 2006) (``EPA argues, and we agree,
that conformity to a SIP can be demonstrated by using the build/no-
build test, even if individual transportation plans do not actively
reduce emissions''). CAA section 176(c)(1)(B)(iii) does not require a
new project to mitigate new or worsened air quality violations that it
does not cause. This statutory provision also does not require a new
project to contribute new interim reductions beyond those that are
already required in the SIP. Rather, the hot-spot determination must
instead conclude that the new project, in conjunction with all other
emissions increases and decreases in the local project area, is
consistent with the emissions budgets in the SIP and does not produce
any new or worsen any existing violations.
The only case where Congress specifically required individual
projects to provide emission reductions in hot-spot analyses is for
projects in certain CO nonattainment areas. CAA section
176(c)(3)(B)(ii) requires individual projects in CO nonattainment areas
to ``eliminate or reduce the severity and number of violations of the
carbon monoxide NAAQS in areas substantially affected by the project.''
\45\ Since Congress did not establish such a requirement for any
project in PM2.5 and PM10 areas under section
176(c)(3)(B)(ii), and for the reasons described in today's final rule,
EPA does not interpret such a requirement to apply to projects in
PM2.5 or PM10 areas under section
176(c)(1)(B)(iii).
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\45\ This requirement is in section 93.116(b) of the conformity
rule.
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Some commenters supported EPA's interpretation, while others
disagreed. The other commenters believed that, despite the court's
decision, a project should not be allowed to proceed unless it reduces
emissions sufficient to offset emissions from other sources that
negatively impact meeting the NAAQS. Commenters thought today's rule
would allow a project to conform even when there are NAAQS violations
after the attainment date and that EPA's rule eliminates the
opportunity to identify and remedy violations.
The commenters' argument--that section 176(c)(1)(B)(iii) requires
transportation projects to reduce emissions in the area affected by the
project--has been raised in earlier transportation conformity
rulemakings and repeatedly rejected by the D.C. Circuit Court of
Appeals. In Environmental Defense Fund v. EPA, the court explained that
``[a]lthough the Act states that SIPs must reduce violations, and
therefore emissions, it is notably silent on whether transportation
plans themselves, which are but one part of the SIP, must reduce
emissions.'' 467 F.3d 1329, 1338 (D.C. Cir. 2006) (emphasis in
original). The court went on to uphold as reasonable EPA's
interpretation that individual transportation plans need not reduce
emissions to comply with the statutory requirement to conform to the
SIP. Id. In the 2006 EDF decision, the court also referred to its
earlier decision in Environmental Defense Fund v. EPA, 82 F.3d. 451
(D.C. Cir. 1996), in which it rejected a challenge to EPA's 1993
conformity regulations for similar reasons. In the 2006 EDF decision,
the court noted that it had previously decided a similar issue in the
1996 EDF opinion, in which it ``agreed with EPA `that plans and
improvement programs may contribute to emissions reductions by avoiding
or reducing increases in emissions over the years,' because although
the statute `require[d] reductions in [several pollutants],' it `d[id]
not require that the emissions come entirely from mobile sources'[.]''
EDF v. EPA, 467 F.3d at 1338. Thus, the 2006 EDF decision was the
second time the D.C. Circuit rejected the same
[[Page 14277]]
argument commenters raise here. The fact that the 1996 and 2006 D.C.
Circuit decisions addressed transportation plans and TIPs, rather than
individual projects, is not relevant because the court's analysis of
what section 176(c)(1) requires applies equally to transportation
plans, TIPs, and individual projects, since section 176(c) imposes the
same requirements for all three, and contains no additional or
different requirements for individual projects.
In its 2007 decision in Environmental Defense v. EPA, the court for
a third time upheld EPA's interpretation that a transportation project
that does not increase violations of the NAAQS conforms to the SIP's
purpose of eliminating or reducing the severity and number of NAAQS
violations and achieving expeditious attainment of the NAAQS, even if
the project does not itself achieve emissions reductions. 509 F.3d 553,
560 (DC Cir. 2007). In that decision, the court did remand to EPA for
further explanation the issue of whether section 176(c)(1)(B)(iii)
applies to hot-spot analyses, and if it does, how its conditions are to
be met. Today's final rule responds to that remand. As explained below,
EPA interprets section 176(c)(1)(B)(iii) as applying to hot-spot
analyses, and the requirements of the regulations as amended in today's
action will ensure that transportation projects do not interfere with
timely attainment of the NAAQS or any interim milestones.
Section 176(c)(1) prohibits federal agencies from supporting,
providing financial assistance for, licensing, permitting, or approving
any activity that does not conform to an approved SIP. This provision
defines ``conformity to a SIP'' to mean (1) conformity to the SIP's
purpose of eliminating or reducing the severity and number of NAAQS
violations and achieving expeditious attainment of the NAAQS, (2) that
the activity will not cause or contribute to any new violation of the
NAAQS in any area, (3) that the activity will not increase the
frequency or severity of any existing NAAQS violation in any area, and
(4) that the activity will not delay timely attainment of any NAAQS or
interim milestones. Commenters focus on the fourth requirement above--
that an activity will not delay timely attainment of any NAAQS or any
interim milestones--to support their argument that EPA's May 2009
proposal is inconsistent with the CAA because it would allow a new or
expanded transportation project to conform to the SIP if the project
does not achieve attainment of the NAAQS. EPA disagrees with the
commenters' assertion.
EPA first notes that two of the four elements in the statutory
definition of ``conformity to an implementation plan'' contain some
redundancy. Section 176(c)(1)(A) states that ``conformity to an
implementation plan'' means conformity to the SIP's purpose of
eliminating or reducing the severity and number of NAAQS violations and
achieving expeditious attainment of the NAAQS. Section
176(c)(1)(B)(iii) states that conformity to the SIP means that the
transportation activity will not delay timely attainment of the NAAQS
or any interim milestones. Both of these criteria seek to ensure
attainment of the SIP in a timely manner--by requiring that projects
not delay timely attainment or any interim milestones in any area and
thereby ensuring expeditious attainment of the NAAQS. If a project
conforms to the SIP's purpose of achieving expeditious attainment of
the NAAQS, it cannot be delaying timely attainment of the NAAQS, since
``expeditious attainment'' would require attainment at least as early
as would ``timely attainment.'' ``Expeditious'' means ``characterized
by speed and efficiency,'' whereas ``timely'' is defined as ``before a
time limit expires'' or ``done or happening at the appropriate or
proper time.'' \46\ Thus, EPA is not reading section 176(c)(1)(B)(iii)
out of the statute, as commenters assert, but is instead reading it in
conjunction with a closely related provision which also addresses
projects' relationship to attainment of the NAAQS.
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\46\ Definitions from Webster's On-line Dictionary, see http://www.websters-online-dictionary.org/.
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Further, the regulatory requirements for hot-spot analyses meet the
requirement that a project not delay timely attainment of the NAAQS or
any interim milestones. See 40 CFR 93.123(c). The hot-spot analysis
must evaluate air quality concentrations resulting from emissions from
the project and the future background pollutant concentrations. Such
concentrations must be examined at receptor locations in the localized
area substantially affected by the project. Future background
concentrations at the project location are based on either available
monitoring data near the project location, or when such information is
not available, the latest information must be used as determined
through the interagency consultation process (40 CFR 93.105(c)(1)(i)).
Based on a review of the available data, the hot-spot analysis must
include future expected air quality concentrations at the project
location. The concentrations must then be compared to the NAAQS and the
project will conform to the SIP only if it can be shown that the
project does not cause or contribute to any new localized violations,
increase the frequency or severity of any existing violations, or delay
timely attainment of any NAAQS or any interim milestones. See 40 CFR
93.116(a). The fact that the regulations provide that these criteria
are met if, during the time frame of the transportation plan, (1) no
new local violations will be created, (2) the severity or number of
existing violations will not be increased as a result of the project,
and (3) the project has been included in a regional emissions analysis
that meets applicable Sec. Sec. 93.118 and/or 93.119 requirements does
not mean that the project may delay timely attainment of the NAAQS and
still be found to conform.
Specifically, commenters assert that the requirement that a project
must be included in a regional emissions analysis does not suffice to
ensure that it will not delay timely attainment of the NAAQS, because
the regional emissions analysis is based on the approved SIP, and EPA's
SIP guidance does not require states to model the incremental impact of
highway emissions in the ambient air near highways or to develop
control strategies to remedy near-highway NAAQS violations. Commenters
assert that only if EPA were to modify its SIP guidance accordingly
would it be reasonable to interpret section 176(c)(1)(B)(iii) as EPA
has done in the proposed rule. Commenters also state that section
176(c)(1)(B)(iii) requires some remedial action to be taken if a NAAQS
violation is projected after the attainment deadline, even if the
project itself does not adversely affect emissions. EPA disagrees.
First, EPA notes that any comments requesting that EPA revise its
regulations and/or policies regarding establishment of the
PM2.5 NAAQS, designation of PM2.5 nonattainment
areas and development of PM2.5 SIPs are beyond the scope of
this rulemaking. Further, the requirement that a project is included in
a regional emissions analysis, in conjunction with the other
requirements of Sec. 93.116(a) and the requirements of Sec. 93.123,
is sufficient to ensure that transportation projects do not delay
timely attainment of the NAAQS as explained below. And finally, as
described above, the DC Circuit has already held that a project need
not achieve additional emissions reductions needed to attain the NAAQS
in order to conform to the SIP.
The approved SIP for a nonattainment area contains the control
measures and emissions projections that demonstrate
[[Page 14278]]
attainment of the NAAQS by the required attainment date, including the
motor vehicle emissions budget that defines the upper limit of
transportation sector emissions above which attainment could be
delayed. Therefore, a project will not delay attainment beyond the
required date if its transportation emissions (along with all other
transportation emissions) are included in a conformity analysis that
meets the SIP budgets in the attainment year and all other future
years. Commenters point to EPA's statement in the preamble to the 2006
PM2.5 hot-spot rule that PM2.5 SIP modeling is
unlikely to be performed at the level of detail necessary to identify
PM2.5 hot-spots to support their assertion that EPA cannot
rely on the regional emissions analysis as part of the hot-spot
analysis. However, that statement in the 2006 preamble is taken out of
context by commenters. The original statement was part of EPA's
explanation for not finalizing a proposed option for which projects
need a PM10 or PM2.5 hot-spot analysis (rather
than how the analysis is actually completed). In the 2006 rule, EPA did
not finalize the proposed option to require hot-spot analyses only in
the cases where the SIP identifies projects of local air quality
concern.\47\ The 2006 statement was not, as suggested by commenters, a
judgment on the value of the regional emissions analysis that supports
a conformity determination. EPA continues to believe that regional
conformity analyses are critical to meeting all of section 176(c)(1)
requirements for project-level conformity determinations, in
conjunction with hot-spot analyses of emissions resulting from the
project in the local affected area along with other future expected
emissions in that area. Rather, it only indicates EPA's view that SIP
modeling is unlikely to identify all locations that warrant a hot-spot
analysis.
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\47\ Under 40 CFR 93.123(b)(1), EPA has identified projects of
local air quality concern that require a localized hot-spot
analysis. These projects include all new or expanded highway
projects that have a significant number of or a significant increase
in diesel vehicles).
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Moreover, in addition to demonstrating that the project is
consistent with the regional emissions analysis (which supports the
budget), there can be no new local violations and the severity or
number of existing violations cannot increase as a result of the
project. In practice, EPA's regulations will ensure that any project
that creates a new violation or worsens an existing violation of the
NAAQS in the local area affected by the project (either by increasing
the number of violations or the severity of an existing violation) will
not be found to conform. A project will be found to conform only if it
is demonstrated that the project will not adversely impact air quality
concentrations in the affected local area, and has been included in a
regional emissions analysis that meets the rule's conformity test
requirements. Therefore, for the reasons explained above, EPA is
finalizing the proposed regulations, which will ensure that project-
level conformity determinations will comply with all the statutory
criteria in section 176(c)(1)(A) and (B).
EPA has responded to other comments related to the hot-spot
provisions at the end of this section, below.
2. Requirement for No Delay in Timely Attainment of the NAAQS
The provisions of today's final rule clarify that a project will
meet CAA section 176(c)(1)(B)(iii) requirements not to delay timely
attainment as long as no new or worsened violations are predicted to
occur, which is already required under the existing hot-spot
requirements. While overall emissions can increase in a local area
above those expected without a new project's implementation, a project
will not delay timely attainment if air quality concentrations continue
to meet federal air quality NAAQS or any violations of the NAAQS are
not worsened.
Furthermore, in the case where the analysis shows that air quality
concentrations are above the NAAQS, a project would not delay timely
attainment if air quality is improved or unchanged from what would have
occurred without the new project's implementation. In other words, even
where air quality concentrations are above the NAAQS, a project does
not delay timely attainment if it improves air quality associated with
a violation that existed prior to completion of the project, or does
not increase such violation. In this case, the project also would still
meet section 176(c)(1)(B)(i) and (B)(ii), in that it does not cause or
worsen an existing violation.
For example, suppose a hot-spot analysis is performed for a new
highway project that is predicted to significantly increase the number
of diesel trucks from what is expected in the local area without the
project. A year is chosen in this example to analyze when peak
emissions from the project are expected and future air quality is most
likely to be impacted due to the cumulative impacts of the project and
background emissions in the project area. Under the conformity rule,
both as it existed and as it is amended today, the project would meet
section 176(c)(1)(B)(iii) requirements not to delay timely attainment
in the local project area as long as the project's new emissions do not
create new violations or worsen existing violations in the local
project area. Such a demonstration would examine the total impact of
the project's new emissions in the context of the future transportation
system, any expected growth in other emissions sources, and any
existing or new control measures that are expected to impact the local
project area. If the hot-spot analysis demonstrated that the proposed
project would improve or not impact air quality, then timely attainment
would also not be delayed from what would have occurred without the
project. If a violation still exists with the project, but the project
itself improves or does not change air quality, it does not delay
timely attainment and it can conform. In contrast, if such a project
increased emissions enough to cause a new violation or worsen an
existing violation in the local project area, then the project would
delay timely attainment, since worsening air quality above the NAAQS
would impede the ability to attain in the local project area. In such a
case, the project could not be found to conform until the new or
worsened future violation was mitigated.
3. Requirement for No Delay in Timely Attainment of Any Required
Interim Reductions or Milestones
Today's final rule also ensures that a project would meet CAA
section 176(c)(1)(B)(iii) requirements for no delay in the timely
attainment of any required interim reductions or other milestones. EPA
interprets ``any required interim emission reductions or other
milestones'' to refer to CAA requirements associated with reductions
and milestones addressed by reasonable further progress SIPs, rather
than other reductions required for other purposes. However, EPA
believes there is added value in referencing in section 93.116(a) the
conformity requirement that a project be consistent with the budgets
and control measures in any applicable SIP, not just reasonable further
progress SIPs. Therefore, the provisions of today's final rule clarify
that this requirement is satisfied in the local project area if a
project is consistent with the motor vehicle emissions budget(s) and
control measures in the applicable SIP or interim emission test(s) (in
the absence of a SIP budget). Although such a demonstration is already
required under the current rule, EPA's reference to the requirements in
40 CFR 93.118 and 93.119 clarify that a project's emissions--when
combined
[[Page 14279]]
with all other emissions from all other existing and other proposed
transportation projects--must be consistent with any applicable
required interim reductions and milestones.
Today's final rule also supports the implementation of control
measures that are relied upon in reasonable further progress
demonstrations and could impact air quality in the local project area.
Under today's final rule, control measures that are relied upon for
reasonable further progress SIPs must have sufficient state and local
commitments to be included in a regional emissions analysis or a hot-
spot analysis. If the implementation of a control measure is not
assured, then such reductions cannot be included in the regional
emissions analysis for the entire nonattainment or maintenance area (40
CFR 93.122(a)) or within the local project area considered in a hot-
spot analysis (40 CFR 93.123(c)(3) and (4)), and conformity may not be
demonstrated for a project. EPA believes that these requirements also
ensure that ``any required interim emissions reductions or other
milestones'' are not delayed within a local project area as a result of
a single project's emissions.
For example, a project may not meet CAA section 176(c)(1)(B)(iii)
requirements if SIP control measures were not being implemented as
expected and as a result, a project's emissions (when combined with
expected future emissions without the SIP control measures) caused a
new violation or worsened an existing violation in the local project
area. In such a case, additional control measures as part of the
conformity determination may be required in order to offset any
emissions increases from a project.
Today's final rule also clarifies that all CAA section
176(c)(1)(B)(iii) requirements are met when air quality improves as a
result of the project, e.g., an existing air quality violation that
would have occurred without the project is estimated to be reduced or
eliminated if the new project were implemented. EPA believes that all
of section 176(c)(1)(B) requirements would be met in the local project
area in such a case since the Act requires that individual projects do
not worsen air quality or affect an area's ability to attain or achieve
interim requirements. Certainly, if air quality improves in the local
project area with the implementation of a new project, EPA believes
that timely attainment and required reasonable further progress interim
requirements are not delayed. In fact, the opposite would be true in
such a case, since future air quality would be improved and attainment
possibly expedited from what would have occurred without the project's
implementation.
4. Other Comments
EPA is including responses to other relevant comments on this
portion of today's rule below.
Comment: One commenter thought that based on the statutory language
in CAA 176(c)(1)(A) and (B), promulgating rules that require
PM2.5 emission reductions would be permissible and
reasonable. Another commenter believed that EPA had not responded to
the court's remand, since it was not expanding on existing conformity
rule requirements for hot-spot analyses.
Response: As explained above, EPA disagrees that section 176(c)(1)
requires projects to reduce emissions. As such, EPA believes its
interpretation of these provisions is the most reasonable one. Hot-spot
analyses in PM2.5 (and PM10) nonattainment and
maintenance areas are required for transportation projects of local air
quality concern. Such projects are those highway and transit projects
that involve significant diesel traffic, significant increases in
diesel traffic, or significant numbers of diesel vehicles congregating
in one location. These types of projects are unlikely to improve air
quality in and of themselves.
The structure of section 176(c) supports EPA's interpretation as
the most reasonable interpretation of the statutory language. The
conformity provisions of the CAA in 176(c)(1)(A) and (B) do not require
that transportation activities reduce emissions, only that they be
consistent with the purpose of the SIP. Only in the specific provision
of 176(c)(3)(A)(iii) does the statute require transportation projects
to ``contribute to annual emissions reductions,'' and this requirement
applies to projects only in certain CO areas before such areas have a
SIP, not generally to all projects. Had Congress intended for projects
subject to sections 176(c)(1)(A) and (B) to ``contribute to annual
emissions reductions,'' it would have included explicit language
stating so, as it did in section 176(c)(3). See further details in our
general rationale earlier in this section.
Comment: One commenter requested that EPA add language to the
conformity rule that prescribes procedures for requesting assistance
from the air quality agency in developing offsetting emissions
reductions, to reduce air quality concentrations at appropriate
receptor locations to levels that attain the NAAQS on or after the
attainment deadline.
Response: EPA does not believe additional language is necessary
because existing requirements adequately address the state air agency's
involvement in developing offsetting measures. First, the existing
regulation at 40 CFR 93.123(c)(4) states: ``CO, PM10, or
PM2.5 mitigation or control measures shall be assumed in the
hot-spot analysis only where there are written commitments from the
project sponsor and/or operator to implement such measures, as required
by Sec. 93.125(a).'' \48\ The air quality agency as well as EPA has
the opportunity to review any such written commitments during
interagency consultation on the conformity determination per 40 CFR
93.105(c). Second, if offsetting measures are added to the SIP, then
the state air quality agency would have to agree on these measures. In
addition, the development of offsetting emissions reductions would be
subject to the public process required for a SIP revision. Third, in
the case where a new transportation control measure (TCM) is to be
added to the SIP without a full SIP revision, the CAA requires the TCM
to be developed through a collaborative process that includes the state
air quality agency; in addition, the state air quality agency as well
as EPA must concur before such a TCM is added to the SIP. See EPA's
guidance, entitled, ``Guidance for Implementing the Clean Air Act
Section 176(c)(8) Transportation Control Measure Substitution and
Addition Provision,'' found on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09002.pdf.
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\48\ In addition, the conformity rule at 40 CFR 93.101 defines
``written commitment'' as follows: ``Written commitment for the
purposes of this subpart means a written commitment that includes a
description of the action to be taken; a schedule for the completion
of the action; a demonstration that funding necessary to implement
the action has been authorized by the appropriating or authorizing
body; and an acknowledgement that the commitment is an enforceable
obligation under the applicable implementation plan.'' Since these
obligations are ``an enforceable obligation under the applicable
implementation plan,'' state air agencies will have a role in
ensuring that any necessary measures are properly implemented and
enforced.
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Comment: One commenter thought the regulations at 40 CFR 93.116(a)
and 93.123 are unclear regarding the specifics of performing a PM hot-
spot analysis, including whether the conformity rule requires a
comparison of emissions from the build case with the emissions from the
no-build case in the same future year, or whether it allows a
comparison of the build case with emissions in the current year as the
baseline. The commenter was concerned that if the analysis is based on
a comparison of the build case for a future
[[Page 14280]]
year with current emissions, a project could conform even if it adds
more vehicle trips to the project location, because the build analysis
would include the effect of new engine control technologies and fleet
turnover. The commenter believes that the analysis should examine the
impacts of the project itself. Therefore, the commenter urged that the
rule be clarified to require an estimate of future peak year emissions
using a build/no-build analysis, which the commenter asserted would
provide a lawful basis for assessing the impact of emissions from a
proposed project.
Response: This comment is beyond the scope of this rulemaking. For
purposes of EPA's hot-spot regulations, EPA is only addressing in
today's rule the specific issue that was remanded by the Court in
December 2007, i.e., whether CAA section 176(c)(1)(B)(iii) applies in
the local area affected by a project. As stated in the May 2009
proposal, EPA did not propose or seek public comment on any other
aspect of EPA's preexisting rules for performing hot-spot analyses
under 40 CFR 93.123 or any other parts of the conformity rule.
In addition, EPA has already addressed how hot-spot analyses are to
be conducted to avoid the situation described by the commenter. In the
original conformity rule, EPA stated its intentions for applying the
hot-spot requirement--``that the hot-spot analysis compare
concentrations with and without the project based on modeling of
conditions in the analysis year.'' (58 FR 62212). The July 2004 final
rule clarified the horizon years for hot-spot analyses. In this rule,
EPA stated that ``[t]o ensure that the requirement for hot-spot
analysis is being satisfied, areas should examine the year(s) within
the transportation plan or regional emissions analysis, as appropriate,
during which peak emissions from the project are expected and a new
violation or worsening of an existing violation would most likely occur
due to the cumulative impacts of the project and background regional
emissions in the project area.'' See 69 FR 40056-58 for more details on
this rulemaking.
Furthermore, EPA agrees that it would be inappropriate to ignore
the future air quality impacts from building a proposed project. As
stated above, EPA's rule requires that in the future year(s) where
emissions are expected to be the highest, the concentrations of the
pollutant that result from the project's emissions in combination with
background emissions from other sources are compared to the NAAQS.
However, this analysis is performed by examining future air quality
impacts from a project, rather than comparing emissions from the
project in the future to emissions in a baseline year. EPA strongly
disagrees that the current rule can be interpreted in this way. An
analysis under the rule does provide a lawful basis for assessing the
impact of emissions from a proposed project, because it compares
resulting air quality concentrations to the NAAQS, which by law are
established by EPA through rulemaking.
As stated above, in the case where the analysis shows that the air
quality concentrations are greater than the NAAQS, the project may
still be able to conform. If building the project leads to improved air
quality concentrations over not building the project, then the project
could still be found to conform, even if the concentrations are above
the NAAQS. In this case, a build/no-build analysis would show that the
project is helping to reduce concentrations, and improve air quality by
reducing a future violation. In this case, the project neither creates
a new violation nor worsens an existing violation, nor does it delay
timely attainment.
Last, it is entirely appropriate that a hot-spot analysis include
the effects of new technologies and fleet turnover that is expected to
occur in a future analysis year. The conformity rule has always allowed
the future effects of federal vehicle emissions standards, fleet
turnover, fuel programs, and other control measures to be reflected in
hot-spot analyses when they are assured to occur, because including
such effects provides a reasonable estimate of future emissions that is
more accurate than not including such effects.
Comment: One commenter opined that off-road emissions that result
from a transportation project being built should be included in the
hot-spot analysis as part of the background emissions, because the
conformity regulations at 40 CFR 93.123(c) require them to be included:
``[e]stimated pollutant concentrations must be based in the total
emissions burden which may result from the implementation of the
project.'' The commenter asserted that a highway project that
facilitates additional diesel vehicles such as ocean-going vessels,
locomotives, harborcraft, and cargo-handling equipment cannot ignore
these significant sources of emissions that affect the air quality at
the location of the project.
Response: This comment is outside the scope of today's rulemaking
for the reasons discussed above. However, EPA notes that it agrees with
this comment. As the commenter points out, the regulations at 40 CFR
93.123(c)(1) state: ``Estimated pollutant concentrations must be based
on the total emissions burden which may result from the implementation
of the project, summed together with future background
concentrations.'' EPA agrees that if a highway project will facilitate
additional diesel ships or locomotives, these additional non-road
emissions must be included as part of the background concentrations in
the hot-spot analysis. The current conformity rule also requires hot-
spot analyses to consider any emissions that are already expected to
occur from other sources in the local project area, in addition to any
emissions created by the project being built.
Comment: One commenter suggested that hot-spot analyses should
apply to existing projects, not just new projects, and that the
language of CAA section 176(c) would support ``an ongoing duty'' to
ensure compliance with the hot-spot rule. To the extent that the
federal government ``engage[s] in'' or ``supports'' a facility, the
commenter believed that a hot-spot analysis is required. For example,
when the government provides funds for maintenance and repair of
freight facilities, the commenter believed there should be an ongoing
requirement to perform a hot-spot analysis.
Response: This comment is outside the scope of today's action. EPA
did not propose or seek comment on any revision to the hot-spot
regulations addressing when hot-spot analyses are required. Since the
original 1993 transportation conformity rule, EPA's hot-spot
requirements have applied only to those projects that require project-
level conformity determinations under 40 CFR 93.102(a) and 93.104(d),
which are those new non-exempt highway and transit projects that
receive FHWA or FTA funding or approval. After that point, conformity
of a project does not need to be redetermined unless one of three
things occur: (1) The project's design concept and scope significantly
changes; (2) three years elapse since the most recent major step to
advance the project; or (3) a supplemental environmental document has
been initiated for air quality purposes (40 CFR 93.104(d)). EPA has
previously concluded that a new project-level conformity determination
is warranted in these cases. Barring one of these cases, it is
reasonable to conclude that conformity continues to be demonstrated,
based on both the initial project-level conformity determination as
well as the periodic regional conformity determination needed for the
transportation plan and TIP, which
[[Page 14281]]
includes the project. Today's final rule addresses none of these
requirements.
Comment: One commenter stated that the proposed rule is
inconsistent with EPA's definition for ``hot-spot analysis'' and the
CAA because the proposed rule fails to require a comparison of
localized PM2.5 concentrations to the NAAQS. The commenter
opines that EPA's regulatory definition is consistent with the
statutory text but the proposed rule is not in that it fails to
expressly require that, where emissions from a highway project subject
to hot-spot review would cause or contribute to NAAQS violations after
the attainment deadline, approval of the project must be prohibited
unless some remedial action is taken to avoid the NAAQS violation after
the attainment deadline.
The same commenter also stated that EPA's proposal is not
consistent with the CAA because it would allow a project to conform
even if emissions are maintained at levels that will continue to cause
NAAQS violations after the statutory deadline.
Response: EPA disagrees with this commenter and the description of
the May 2009 proposal. Today's final rule does require a comparison of
localized pollutant concentrations to the NAAQS. By requiring a
demonstration that no new local violations are created and no existing
violations are worsened, the regulation does require a comparison to
the NAAQS. In addition, today's final rule would not result in the
outcome in the example provided by commenters. As stated earlier, a
project could not be found to conform if its emissions caused or
contributed to a future NAAQS violation.
In the commenter's second example, the project could be found to
conform, since the project's emissions would not have caused or
worsened a NAAQS violation. If a hot-spot analysis shows that air
quality concentration levels would be the same with and without a
project, then such a project would not be `maintaining' any NAAQS
violation, as suggested by the commenter. Instead, such a hot-spot
analysis would show that a project is not the cause or contributor to
the local area's air quality problem, and consequently, the project
would not be delaying timely attainment. See other parts of today's
final rule preamble for rationale on similar comments.
Comment: One commenter requested that EPA add a definition to the
conformity rule for the term ``delay timely attainment.'' The commenter
requested that the term be defined as follows: If emissions from a
project are expected to cause or contribute to concentrations that are
greater than the NAAQS at appropriate receptor locations after the
attainment deadline, the project would fail to meet CAA
176(c)(1)(B)(iii).
Response: EPA does not believe it is necessary to promulgate a
separate regulatory definition of the term ``delay timely attainment''
in section 93.101 of the conformity rule. Section 93.116(a) of today's
final rule and section 93.123(c) of the existing conformity rule
include this regulatory text, and the discussion in this preamble and
earlier preambles to transportation conformity regulations adequately
explain the meaning of ``delay timely attainment'' in the context of
section 176(c)(1)(B)(iii), including how the hot-spot analysis must
comply with that provision.
Comment: One commenter requested that EPA define ``local area'' for
hot-spot analysis purposes, because neither the proposed nor existing
conformity rule clearly defines it. The commenter opined that depending
upon the definition, the results of the analysis might be different. As
an example, the commenter indicated that a project such as a bus
terminal might result in increased emissions in the immediate area
(although not enough to violate other portions of section
176(c)(1)(B)), but may be part of a larger group of projects that would
reduce emissions overall in a larger area.
Response: EPA agrees that PM hot-spot analyses under the conformity
rule must examine the air quality impacts of the PM10 and
PM2.5 NAAQS, including the area immediately surrounding the
project. In developing the March 2006 final PM hot-spot rule, EPA
completed a thorough review of more than 70 studies representing a
cross-section of available studies looking at particle concentrations
near roadways and transit projects (71 FR 12472-12474). Many of these
studies were completed in the types of local communities cited by the
commenter.
However, EPA is not defining ``local area'' in this final rule
because the existing conformity rule, along with previous conformity
preambles, provide the necessary information for hot-spot analyses.
First, the rule's ``hot-spot analysis'' provisions are applied at a
local level to an individual ``highway project'' or ``transit
project,'' and the rule defines all three of these terms in detail (see
40 CFR 93.101). As a result, the hot-spot requirements for individual
projects in conformity rule sections 93.116 and 93.123 are applied
within the local project area. Another example is the rule's definition
of ``cause or contribute to a new violation,'' which includes the
phrase about this requirement being met ``in an area substantially
affected by the project.'' EPA believes that all of the conformity
rule's hot-spot provisions provide adequate information regarding what
is a ``local area,'' and a separate ``local area'' definition is not
necessary or required by the December 2007 court remand.
EPA does not believe that ``local area'' can be more specifically
defined and still be appropriate for all projects, because projects
where a hot-spot analysis is needed can differ in type, location,
scale, scope, and neighboring populations. EPA believes that the
existing regulation allows the appropriate local area to be determined
in a hot-spot analysis.
EPA also notes that in the commenter's example, a bus terminal
increases emissions in the immediate area but does not violate other
portions of section 176(c)(1)(B), i.e., this project increases
emissions but would not create a new violation or worsen an existing
NAAQS violation. Therefore, this project could be found to conform
under the PM hot-spot conformity rules.
Comment: One commenter requested that EPA define ``appropriate
receptor location'' in section 93.123(c)(1) of the conformity rule to
be ``locations near the project where the public has daily access and
where exposure risks will be greatest with regard to the frequency or
severity.'' The commenter stated that the rule should clarify that
receptor or monitor locations should not be located outside the zone of
observed highway impacts because at those distances no difference would
be detected regardless of how many additional vehicles are added. The
commenter cited examples of past PM hot-spot analyses where emissions
impacts were examined at monitors or locations that were a mile and a
half or more from the highway or from the residential and school
facilities adjacent to the proposed project. The commenter stated that
in both cases, evidence was submitted showing that highway emissions
decrease to the level of regional background within the first 300
meters.
In addition, this and another commenter provided EPA with recent
studies and data illustrating the air quality impacts of highways in
the near-highway environment, and with data tallying the millions of
people who live within this range as well as the number of schools
located within it.
Response: EPA appreciates the data that commenters provided, and
agrees with commenters that hot-spot analyses are important to ensure
that public health is protected. As noted in the previous response, EPA
finalized the PM10 and PM2.5 hot-spot
requirements based on the type of information
[[Page 14282]]
submitted by commenters (71 FR 12472-12474). However, the location of
modeling receptors, which is addressed in 40 CFR 93.123(c), is outside
the scope of today's final rule.
EPA also notes that the U.S. District Court in Maryland has upheld
the appropriateness of one of the PM qualitative hot-spot analyses
cited by the commenter (Audubon Naturalist Society of the Central
Atlantic States, Inc., et al v. USDOT, et al., 524 F.Supp.2d 642 (Md.
2007), appeal dismissed without decision Environmental Defense, et al.
v. USDOT, et al., No. 08-1107 (4th Cir., dismissed Nov. 17. 2008)).
EPA intends to describe appropriate receptor locations in its
forthcoming quantitative PM hot-spot guidance, which is required under
40 CFR 93.123(b)(4). Interested parties will have an opportunity to
comment on this document before it is finalized.\49\
---------------------------------------------------------------------------
\49\ EPA will provide opportunity for public comment on the PM
quantitative hot-spot guidance according to the terms of a
settlement agreement with Environmental Defense, Natural Resources
Defense Council, and Sierra Club. Refer to the June 22, 2007
``Notice of proposed settlement agreement; request for public
comment'' at 72 FR 34460.
---------------------------------------------------------------------------
Comment: One commenter recommended that EPA require projects to
reduce the severity and number of local 2006 PM2.5 NAAQS
violations as a way to reduce black carbon. This commenter noted that
in EPA's recent proposed endangerment finding for greenhouse gases, EPA
explained that it did not include black carbon because EPA is
addressing black carbon through its review of the primary and secondary
PM NAAQS. This commenter cited a large body of new science explaining
black carbon's climate forcing effect and impacts on sensitive
ecosystems, and believed that this rule should include some specific
requirements for black carbon.
Response: Transportation conformity applies only to transportation-
related criteria pollutants for which a NAAQS is established and their
precursor pollutants as described in 40 CFR 93.102(b) of the
regulation. There is no NAAQS specifically for black carbon, therefore
EPA lacks authority to require conformity analysis specifically for
black carbon. To the extent that black carbon is a component of
PM2.5 (as defined by 40 CFR 93.102(b)(1) and EPA's
rulemakings for the development of any PM2.5 NAAQS), it is
included as part of any conformity analysis for PM2.5.
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866, (58 FR 51735; October 4, 1993) and
is therefore not subject to review under the EO.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The information collection requirements of EPA's existing
transportation conformity regulations and the proposed revisions in
today's action are already covered by EPA information collection
request (ICR) entitled, ``Transportation Conformity Determinations for
Federally Funded and Approved Transportation Plans, Programs and
Projects.'' The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations at 40 CFR Part 93 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0561. The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR Part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of rules subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the Agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
organizations and small government jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
regulation directly affects federal agencies and metropolitan planning
organizations that, by definition, are designated under federal
transportation laws only for metropolitan areas with a population of at
least 50,000. These organizations do not constitute small entities
within the meaning of the Regulatory Flexibility Act.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
The purpose of this final rule is to amend the conformity rule to
clarify how certain highway and transit projects meet statutory
conformity requirements for particulate matter in response to a
December 2007 court ruling, and to update the regulation to accommodate
revisions to the PM10 and PM2.5 NAAQS. This final
rule merely implements already established law that imposes conformity
requirements and does not itself impose requirements that may result in
expenditures of $100 million or more in any year. Thus, today's final
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule will not
significantly or uniquely impact small governments because it directly
affects federal agencies and metropolitan planning organizations that,
by definition, are designated under federal transportation laws only
for metropolitan areas with a population of at least 50,000.
E. Executive Order 13132: Federalism
This final rule does not have federalism implications. It will not
have substantial direct effects on states, on the relationship between
the national government and states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. The CAA requires conformity to apply in
certain nonattainment and maintenance areas as a matter of law, and
this action merely establishes and revises procedures for
transportation planning entities in subject areas to follow in meeting
their existing statutory obligations. Thus, Executive Order 13132 does
not apply to this rule.
[[Page 14283]]
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The CAA requires
transportation conformity to apply in any area that is designated
nonattainment or maintenance by EPA. This rule amends the conformity
rule to clarify how certain highway and transit projects meet statutory
conformity requirements for particulate matter in response to a
December 2007 court ruling, and updates the conformity rule to
accommodate revisions to the PM10 and PM2.5
NAAQS. Because today's amendments to the conformity rule do not
significantly or uniquely affect the communities of Indian tribal
governments, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This final rule is not subject to Executive Order 13045 62 FR
19885, April 23, 1997) because it is not economically significant as
defined in Executive Order 12866, and because the Agency does not
believe the environmental health or safety risks addressed by this
action present a disproportionate risk to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 18355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. It does not create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency regarding energy. Further, this rule is not likely to
have any adverse energy effects because it does not raise novel legal
or policy issues adversely affecting the supply, distribution or use of
energy arising out of legal mandates, the President's priorities, or
the principles set forth in Executive Orders 12866 and 13211.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., material specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. This final rule simply amends the conformity rule to
clarify how certain highway and transit projects meet statutory
requirements for particulate matter in response to a December 2007
court ruling, and updates the conformity rule to accommodate revisions
to the PM10 and PM2.5 NAAQS.
K. Determination Under Section 307(d)
Pursuant to CAA Section 307(d)(1)(U), the Administrator determines
that this action is subject to the provisions of section 307(d).
Section 307(d)(1)(U) provides that the provisions of section 307(d)
apply to ``such other actions as the Administrator may determine.''
L. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This action Transportation Conformity Rule
PM2.5 and PM10 Amendments
Page 134 of 145 is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective April 23, 2010.
List of Subjects in 40 CFR Part 93
Administrative practice and procedure, Air pollution control,
Carbon monoxide, Clean Air Act, Environmental protection, Highways and
roads, Intergovernmental relations, Mass transportation, Nitrogen
dioxide, Ozone, Particulate matter, Transportation, Volatile organic
compounds.
Dated: March 10, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons set out in the preamble, 40 CFR part 93 is amended as
follows:
PART 93--[AMENDED]
0
1. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
0
2. Section 93.101 is amended as follows:
0
a. By removing the definitions for ``1-hour ozone NAAQS'' and ``8-hour
ozone NAAQS''; and
0
b. By revising the definition of ``National ambient air quality
standards (NAAQS)''.
Sec. 93.101 Definitions.
* * * * *
National ambient air quality standards (NAAQS) are those standards
established pursuant to section 109 of the CAA.
(1) 1-hour ozone NAAQS means the 1-hour ozone national ambient air
quality standard codified at 40 CFR 50.9.
(2) 8-hour ozone NAAQS means the 8-hour ozone national ambient air
quality standard codified at 40 CFR 50.10.
(3) 24-hour PM10 NAAQS means the 24-hour PM10 national
ambient air quality standard codified at 40 CFR 50.6.
(4) 1997 PM2.5 NAAQS means the PM2.5 national ambient
air quality standards codified at 40 CFR 50.7.
(5) 2006 PM2.5 NAAQS means the 24-hour PM2.5 national
ambient air quality standard codified at 40 CFR 50.13.
[[Page 14284]]
(6) Annual PM10 NAAQS means the annual PM10 national
ambient air quality standard that EPA revoked on December 18, 2006.
* * * * *
Sec. 93.105 [Amended]
0
3. Section 93.105 is amended in paragraph (c)(1)(vi) by
removing the citation ``Sec. 93.109(l)(2)(iii)'' and adding in its
place ``Sec. 93.109(n)(2)(iii)''.
0
4. Section 93.109 is amended as follows:
0
a. In paragraph (b):
0
i. By removing the citation ``(c) through (i)'' and adding in its place
the citation ``(c) through (k)'';
0
ii. By removing the reference ``(j)'' and adding in its place ``(l)'';
0
iii. By removing the reference ``(k)'' from the fourth sentence and
adding in its place ``(m)'';
0
iv. By removing the reference ``(l)'' from the fifth sentence and
adding in its place ``(n)'';
0
b. By revising paragraph (g)(2) introductory text;
0
c. By redesignating paragraph (g)(3) as (g)(4);
0
d. By adding new paragraph (g)(3);
0
e. By revising the heading of paragraph (i);
0
f. By adding the words ``such 1997'' before the words
``PM2.5 nonattainment or maintenance areas'' in
paragraph(i)(1);
0
g. By adding the words ``such 1997'' before the words
``PM2.5 nonattainment and maintenance areas'' in paragraph
(i) introductory text and paragraph (i)(2) introductory text;
0
h. By adding the words ``such 1997'' before the words
``PM2.5 nonattainment areas'' in paragraph (i)(3);
0
i. By redesignating paragraphs (j), (k), and (l) as (l), (m), and (n),
respectively;
0
j. In newly designated paragraph (n)(2) introductory text by removing
the citation ``(c) through (k)'' and adding in its place the citation
``(c) through (m)'';
0
k. In newly designated paragraph (n)(2)(iii):
0
i. By removing the citation ``(l)(2)(ii)'' and adding in its place the
citation ``(n)(2)(ii)'';
0
ii. By removing the citation ``(l)(2)(ii)(C)'' and adding in its place
the citation ``(n)(2)(ii)(C)'';
0
l. By adding new paragraphs (j) and (k).
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
* * * * *
(g) * * *
(2) In PM10 nonattainment and maintenance areas where a
budget is submitted for the 24-hour PM10 NAAQS, the budget
test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
* * * * *
(3) Prior to paragraph (g)(2) of this section applying, the budget
test must be satisfied as required by Sec. 93.118 using the approved
or adequate motor vehicle emissions budget established for the revoked
annual PM10 NAAQS, if such a budget exists.
* * * * *
(i) 1997 PM2.5 NAAQS nonattainment and maintenance areas. * * *
(j) 2006 PM2.5 NAAQS nonattainment and maintenance areas without
1997 PM2.5 NAAQS motor vehicle emissions budgets for any portion of the
2006 PM2.5 NAAQS area. In addition to the criteria listed in Table 1 in
paragraph (b) of this section that are required to be satisfied at all
times, in such 2006 PM2.5 nonattainment and maintenance
areas conformity determinations must include a demonstration that the
budget and/or interim emissions tests are satisfied as described in the
following:
(1) FHWA/FTA projects in such PM2.5 nonattainment and
maintenance areas must satisfy the appropriate hot-spot test required
by Sec. 93.116(a).
(2) In such PM2.5 nonattainment and maintenance areas
the budget test must be satisfied as required by Sec. 93.118 for
conformity determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for the 2006 PM2.5 NAAQS is
adequate for transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(3) In such PM2.5 nonattainment areas the interim
emissions tests must be satisfied as required by Sec. 93.119 for
conformity determinations made if there is no approved motor vehicle
emissions budget from an applicable implementation plan for the 2006
PM2.5 NAAQS and no adequate motor vehicle emissions budget
from a submitted control strategy implementation plan revision or
maintenance plan for the 2006 PM2.5 NAAQS.
(k) 2006 PM2.5 NAAQS nonattainment and maintenance areas with motor
vehicle emissions budgets for the 1997 PM2.5 NAAQS that cover all or a
portion of the 2006 PM2.5 nonattainment area. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in such 2006 PM2.5
nonattainment and maintenance areas conformity determinations must
include a demonstration that the budget and/or interim emissions tests
are satisfied as described in the following:
(1) FHWA/FTA projects in such PM2.5 nonattainment and
maintenance areas must satisfy the appropriate hot-spot test required
by Sec. 93.116(a).
(2) In such PM2.5 nonattainment and maintenance areas
the budget test must be satisfied as required by Sec. 93.118 for
conformity determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for the 2006 PM2.5 NAAQS is
adequate for transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(3) Prior to paragraph (k)(2) of this section applying, the
following test(s) must be satisfied:
(i) If the 2006 PM2.5 nonattainment area covers the same
geographic area as the 1997 PM2.5 nonattainment or
maintenance area(s), the budget test as required by Sec. 93.118 using
the approved or adequate motor vehicle emissions budgets in the 1997
PM2.5 applicable implementation plan or implementation plan
submission;
(ii) If the 2006 PM2.5 nonattainment area covers a
smaller geographic area within the 1997 PM2.5 nonattainment
or maintenance area(s), the budget test as required by Sec. 93.118 for
either:
(A) The 2006 PM2.5 nonattainment area using
corresponding portion(s) of the approved or adequate motor vehicle
emissions budgets in the 1997 PM2.5 applicable
implementation plan or implementation plan submission where such
portion(s) can reasonably be identified through the interagency
consultation process required by Sec. 93.105; or
(B) The 1997 PM2.5 nonattainment area using the approved
or adequate motor vehicle emissions budgets in the 1997
PM2.5 applicable implementation plan or implementation plan
submission. If additional emissions reductions are necessary to meet
the budget test for the 2006 PM2.5 NAAQS in such cases,
these emissions
[[Page 14285]]
reductions must come from within the 2006 PM2.5
nonattainment area;
(iii) If the 2006 PM2.5 nonattainment area covers a
larger geographic area and encompasses the entire 1997 PM2.5
nonattainment or maintenance area(s):
(A) The budget test as required by Sec. 93.118 for the portion of
the 2006 PM2.5 nonattainment area covered by the approved or
adequate motor vehicle emissions budgets in the 1997 PM2.5
applicable implementation plan or implementation plan submission; and
the interim emissions tests as required by Sec. 93.119 for either: the
portion of the 2006 PM2.5 nonattainment area not covered by
the approved or adequate budgets in the 1997 PM2.5
implementation plan, the entire 2006 PM2.5 nonattainment
area, or the entire portion of the 2006 PM2.5 nonattainment
area within an individual state, in the case where separate 1997
PM2.5 SIP budgets are established for each state of a multi-
state 1997 PM2.5 nonattainment or maintenance area; or
(B) The budget test as required by Sec. 93.118 for the entire 2006
PM2.5 nonattainment area using the approved or adequate
motor vehicle emissions budgets in the applicable 1997 PM2.5
implementation plan or implementation plan submission.
(iv) If the 2006 PM2.5 nonattainment area partially
covers a 1997 PM2.5 nonattainment or maintenance area(s):
(A) The budget test as required by Sec. 93.118 for the portion of
the 2006 PM2.5 nonattainment area covered by the
corresponding portion of the approved or adequate motor vehicle
emissions budgets in the 1997 PM2.5 applicable
implementation plan or implementation plan submission where they can be
reasonably identified through the interagency consultation process
required by Sec. 93.105; and
(B) The interim emissions tests as required by Sec. 93.119, when
applicable, for either: The portion of the 2006 PM2.5
nonattainment area not covered by the approved or adequate budgets in
the 1997 PM2.5 implementation plan, the entire 2006
PM2.5 nonattainment area, or the entire portion of the 2006
PM2.5 nonattainment area within an individual state, in the
case where separate 1997 PM2.5 SIP budgets are established
for each state in a multi-state 1997 PM2.5 nonattainment or
maintenance area.
* * * * *
0
5. Section 93.116 is amended by revising paragraph (a) to read as
follows:
Sec. 93.116 Criteria and procedures: Localized CO, PM10, and PM2.5
violations (hot-spots).
(a) This paragraph applies at all times. The FHWA/FTA project must
not cause or contribute to any new localized CO, PM10, and/
or PM2.5 violations, increase the frequency or severity of
any existing CO, PM10, and/or PM2.5 violations,
or delay timely attainment of any NAAQS or any required interim
emission reductions or other milestones in CO, PM10, and
PM2.5 nonattainment and maintenance areas. This criterion is
satisfied without a hot-spot analysis in PM10 and
PM2.5 nonattainment and maintenance areas for FHWA/FTA
projects that are not identified in Sec. 93.123(b)(1). This criterion
is satisfied for all other FHWA/FTA projects in CO, PM10 and
PM2.5 nonattainment and maintenance areas if it is
demonstrated that during the time frame of the transportation plan no
new local violations will be created and the severity or number of
existing violations will not be increased as a result of the project,
and the project has been included in a regional emissions analysis that
meets applicable Sec. Sec. 93.118 and/or 93.119 requirements. The
demonstration must be performed according to the consultation
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements
of Sec. 93.123.
* * * * *
Sec. 93.118 [Amended]
0
6. Section 93.118 is amended in paragraph (a) by removing the citation
``Sec. 93.109(c) through (l)'' and adding in its place ``Sec.
93.109(c) through (n)''.
0
7. Section 93.119 is amended as follows:
0
a. In paragraph (a), by removing the citation ``Sec. 93.109(c) through
(l)'' and adding in its place ``Sec. 93.109(c) through (n)''; and
0
b. By revising paragraph (e)(2).
Sec. 93.119 Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.
* * * * *
(e) * * *
(2) The emissions predicted in the ``Action'' scenario are not
greater than:
(i) 2002 emissions, in areas designated nonattainment for the 1997
PM2.5 NAAQS; or
(ii) Emissions in the most recent year for which EPA's Air
Emissions Reporting Requirements (40 CFR Part 51, Subpart A) requires
submission of on-road mobile source emissions inventories, as of the
effective date of nonattainment designations for any PM2.5
NAAQS other than the 1997 PM2.5 NAAQS.
* * * * *
Sec. 93.121 [Amended]
0
8. Section 93.121 is amended:
0
a. In paragraph (b) introductory text by removing the citation ``Sec.
93.109(l)'' and adding in its place ``Sec. 93.109(n)'';
0
b. In paragraph (c) introductory text by removing the citation ``Sec.
93.109(j) or (k)'' and adding in its place ``Sec. 93.109(l) or (m)''.
[FR Doc. 2010-5703 Filed 3-23-10; 8:45 am]
BILLING CODE 6560-50-P