[Federal Register Volume 69, Number 238 (Monday, December 13, 2004)]
[Proposed Rules]
[Pages 72140-72156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27171]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[OAR-2003-0049; FRL-7847-2]
Options for PM2.5 and PM10 Hot-Spot
Analyses in the Transportation Conformity Rule Amendments for the New
PM2.5 and Existing PM10 National Ambient Air
Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental notice of proposed rule.
-----------------------------------------------------------------------
SUMMARY: This supplemental proposal follows EPA's recent final rule
that includes most of the transportation conformity requirements for
the new 8-hour ozone and fine particulate matter (PM2.5)
national ambient air quality standards. In today's action, EPA is
requesting further comment on options for consideration of localized
emissions impacts of individual transportation projects in particulate
matter (PM2.5 and PM10) nonattainment and
maintenance areas. The Clean Air Act requires federally supported
highway and transit projects to be consistent with (``conform to'') the
purpose of a state air quality implementation plan. EPA has consulted
with the Department of Transportation (DOT), and DOT concurs with this
supplemental proposal.
DATES: Written comments on this supplemental proposal must be received
on or before January 12, 2005.
ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2003-
0049 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://www.epa.gov/edocket. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: 202-566-1741.
Mail: Air Docket, Environmental Protection Agency,
Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC, 20460,
Attention Docket ID No. OAR-2003-0049.
Hand Delivery: EPA Docket Center, room B102, EPA West
Building, 1301 Constitution Avenue NW, Washington DC. Such deliveries
are only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. OAR-2003-0049.
EPA's
[[Page 72141]]
policy is that all comments received will be included in the public
docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov Web sites are
``anonymous access'' systems, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through EDOCKET or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit EDOCKET on-line or see the Federal Register of May 31,
2002 (67 FR 38102). For additional instructions on submitting comments,
go to Unit I.C. of the Supplementary Information section of this
document.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., 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 in EDOCKET or in hard
copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution
Avenue, 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 Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Rudy Kapichak, State Measures and
Conformity Group, Transportation and Regional Programs Division, U.S.
Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI
48105, e-mail address: [email protected], telephone number:
(734) 214-4574, fax number 734-214-4052; or Laura Berry, State Measures
and Conformity Group, Transportation and Regional Programs Division,
U.S. Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor,
MI 48105, e-mail address: [email protected], telephone number: (734)
214-4858, fax number 734-214-4052.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. General Information
II. Background
III. PM2.5 Hot-Spot Analyses
IV. PM10 Hot-Spot Analyses
V. Minor Change for Compliance With PM2.5 SIP Control
Measures
VI. 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:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
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)).
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
supplemental proposal. This table lists the types of entities of which
EPA is aware that potentially could be regulated by the 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
Sec. 93.102 of the transportation conformity rule. 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. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send or deliver information identified as ``CBI only'' to the following
address: Attention: Joe Pedelty, State Measures and Conformity Group,
Transportation and Regional Programs Division, U.S. Environmental
Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 48105, Docket ID
No. OAR-2003-0049. You may claim information that you submit to EPA as
CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
publicly disclosed except in accordance with procedures set forth in 40
CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly indicating that it does not contain CBI.
Information not marked as CBI will be included in the public docket and
EPA's electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please
[[Page 72142]]
consult Joe Pedelty. He can be contacted at: Joe Pedelty, State
Measures and Conformity Group, Transportation and Regional Programs
Division, U.S. Environmental Protection Agency, 2000 Traverwood Road,
Ann Arbor, MI 48105, e-mail address: [email protected], telephone
number: (734) 214-4410, fax number (734) 214-4052.
2. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
3. Docket Copying Costs
You may pay a reasonable fee for copying docket materials.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify the appropriate docket identification number in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
Although EPA is not required to consider these late comments, we may do
so as appropriate, considering time and volume constraints.
1. Electronically
If you submit an electronic comment as prescribed below, EPA
recommends that you include your name, mailing address, and an e-mail
address or other contact information in the body of your comment. You
should also include this contact information on the outside of any disk
or CD ROM you submit, and in any cover letter accompanying the disk or
CD ROM. This ensures that you can be identified as the submitter of the
comment and allows EPA to contact you in case EPA cannot read your
comment due to technical difficulties or needs further information on
the substance of your comment. EPA's policy is that EPA will not edit
your comment, and any identifying or contact information provided in
the body of a comment will be included as part of the comment that is
placed in the official public docket, and made available in EPA's
electronic public docket. However, if EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, EPA
may not be able to further consider your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0049. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Air Docket ID No. OAR-2003-0049. In
contrast to EPA's electronic public docket, EPA's e-mail system is not
an ``anonymous access'' system. If you send an e-mail comment directly
to the docket without going through EPA's electronic public docket,
EPA's e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and are thus made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Section I.C.2. These
electronic submissions will be accepted only in either WordPerfect or
ASCII file format. Please avoid the use of special characters and any
form of encryption, as this may adversely affect our ability to read
these submissions.
2. By Mail
Send two copies of your comments to: Air Docket, Environmental
Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW.,
Washington, DC, 20460, Attention Docket ID No. OAR-2003-0049.
3. By Hand Delivery or Courier
Deliver two copies of your comments to: EPA Docket Center, Room
B102, EPA West Building, 1301 Constitution Avenue, NW., Washington,
DC., Attention Air Docket ID No. OAR-2003-0049. Such deliveries can
only be accepted during the Docket's normal hours of operation as
identified in Section I.B.1.
4. By Facsimile
Fax your comments to: (202) 566-1741, Attention Docket ID. No. OAR-
2003-0049.
D. How Can I Get Copies of This Document?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. OAR-2003-0049. The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. Although a part
of the official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The official public docket is the collection of
materials that is available for public viewing at the Air Docket in the
EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution
Avenue, NW., Washington, DC. The EPA Docket Center 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 Docket is (202)
566-1742.
2. Electronic Access
You may access this Federal Register document electronically
through EPA's Transportation Conformity Web site at http://www.epa.gov/otaq/transp/traqconf.htm. You may also access this document
electronically under the ``Federal Register'' listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA
[[Page 72143]]
Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to 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 EPA Dockets.
Information claimed as CBI and other information for which disclosure
is restricted by statute is not included in the official public docket
and will not be available for public viewing in EPA's electronic public
docket. EPA's policy is that copyrighted material will not be placed in
EPA's electronic public docket but will be available only in printed,
paper form in the official public docket. To the extent feasible,
publicly available docket materials will be made available in EPA's
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 EPA's 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 Section I.B.1. above. EPA intends to work
towards providing electronic access in the future to all of the
publicly available docket materials through EPA's electronic public
docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information for which
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
II. Background
A. What Is Transportation Conformity?
Transportation conformity is required under Clean Air Act section
176(c) (42 U.S.C. 7506(c)) to ensure that federally supported highway
and transit project activities are consistent with (``conform to'') the
purpose of the state air quality implementation plan (SIP). Conformity
currently applies to areas that are designated nonattainment, and those
redesignated to attainment after 1990 (``maintenance areas'' with plans
developed under Clean Air Act section 175A) for the following
transportation-related criteria pollutants: ozone, particulate matter
(PM2.5 and PM10),\1\ carbon monoxide (CO), and
nitrogen dioxide (NO2). 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
``standards''). EPA's transportation conformity rule establishes the
criteria and procedures for determining whether transportation
activities conform to the SIP.
---------------------------------------------------------------------------
\1\ Section 93.102(b)(1) of the conformity rule defines
PM2.5 and PM10 as particles with an
aerodynamic diameter less than or equal to a nominal 2.5 and 10
micrometers, respectively.
---------------------------------------------------------------------------
EPA first promulgated the transportation conformity rule on
November 24, 1993 (58 FR 62188), and subsequently published a
comprehensive set of amendments on August 15, 1997 (62 FR 43780) that
clarified and streamlined language from the 1993 rule. EPA has made
other smaller amendments to the rule both before and after the 1997
amendments.
Most recently, on July 1, 2004, EPA published a final rule (69 FR
40004) that amends the current conformity rule to accomplish three
objectives. The final rule:
Provides conformity procedures for state and local
agencies under the new ozone and PM2.5 air quality
standards;
Incorporates existing EPA and DOT federal guidance into
the conformity rule consistent with a March 2, 1999 U.S. Court of
Appeals decision; and
Streamlines and improves the conformity rule.
The July 1, 2004 final conformity rule incorporated most of the
provisions from the November 5, 2003 proposal for conformity under the
new ozone and PM2.5 standards (68 FR 62690). EPA is
conducting its conformity rulemakings for the new standards in the
context of EPA's broader strategies for implementing the new ozone and
PM2.5 standards.
The final rule also incorporated all of the amendments resulting
from a separate June 30, 2003 proposal (68 FR 38974). This proposal
addressed the March 2, 1999 court ruling by the U.S. Court of Appeals
for the District of Columbia Circuit (Environmental Defense Fund v.
EPA, et al., 167 F. 3d 641, D.C. Cir. 1999), and incorporated existing
federal guidance consistent with the court decision.
B. Why Are We Issuing This Supplemental Proposal?
In the November 2003 proposal, EPA presented several options
concerning hot-spot analyses in PM2.5 and PM10
nonattainment and maintenance areas. EPA received substantial comment
on this portion of the November 2003 proposal. After considering these
comments, EPA, in consultation with the Department of Transportation
(DOT), has decided to request further public comment through this
supplemental proposal on PM2.5 and PM10 hot-spot
analyses, including additional options for PM2.5 and
PM10 hot-spot requirements and those options presented in
the November 2003 proposal. EPA is not requesting today further comment
on any other issues raised in the November 2003 proposal or the July 1,
2004 final rule.
EPA will address all comments received on PM2.5 and
PM10 hot-spot analysis requirements both in response to the
November 2003 proposal as well as this supplemental proposal in a final
rulemaking after the close of the comment period. EPA intends to
complete its rulemaking on PM2.5 and PM10 hot-
spot requirements before PM2.5 nonattainment designations
become effective. The existing PM10 hot-spot conformity
requirements are not affected by today's supplemental proposal, and
continue to apply in PM10 nonattainment and maintenance
areas unless and until EPA makes any final rule changes in response to
this supplemental proposal.
EPA has consulted with DOT, our federal partners in implementing
the transportation conformity regulation, in developing this
supplemental proposal, and DOT concurs with its content.
[[Page 72144]]
III. PM2.5 Hot-Spot Analyses
A. What Are We Proposing?
1. Background
EPA is proposing several additional options for hot-spot analyses
for project-level conformity determinations in PM2.5
nonattainment and maintenance areas. Some options were proposed in the
November 5, 2003 proposal, and other options are being newly proposed
today. Comments can be submitted on all PM2.5 hot-spot
options during the comment period for this supplemental proposal. The
options below are listed in terms of what would be required for
project-level conformity determinations before and after a
PM2.5 SIP is submitted in a given PM2.5
nonattainment or maintenance area. Today's proposed regulatory text
combines various PM2.5 and PM10 hot-spot options
as illustrative examples, since common sections and paragraphs of the
conformity rule would be affected under the supplemental proposal.
However, EPA believes that any combination of the proposed
PM2.5 or PM10 hot-spot options could be included
in the final rule.
A hot-spot analysis is defined in Sec. 93.101 of the conformity
rule for CO and PM10 areas as an estimation of likely future
localized pollutant concentrations and a comparison of those
concentrations to the relevant air quality standard. In general, a
quantitative or qualitative hot-spot analysis must show that a given
project does not cause or contribute to any new violations of the air
quality standard or increase the frequency or severity of existing
violations. A hot-spot analysis assesses impacts on a scale smaller
than an entire nonattainment or maintenance area, including for
example, congested roadway intersections and highways or transit
terminals.
The existing conformity rule requires a hot-spot analysis for all
Federal Highway Administration (FHWA) and Federal Transit
Administration (FTA) funded or approved non-exempt transportation
projects in CO and PM10 nonattainment and maintenance areas
(see 40 CFR 93.116 and 93.123). This requirement applies for all
project-level conformity determinations that occur both before and
after a SIP is submitted for the CO or PM10 air quality
standard.
The type of hot-spot analysis--quantitative or qualitative--varies
depending on the type of project involved. The current conformity rule
requires quantitative hot-spot analyses for projects of most concern in
CO and PM10 areas. For example, Sec. 93.123(b)(1) currently
requires quantitative PM10 hot-spot analyses for the
following types of transportation projects in PM10 areas:
Projects which are located at sites at which violations
have been verified by monitoring data;
Projects which are located at sites which have vehicle and
roadway emission and dispersion characteristics that are essentially
identical to those of sites with verified violations (including sites
near one at which a violation has been monitored); and
New or expanded bus and rail terminals and transfer points
which increase the number of diesel vehicles congregating at a single
location.
Section 93.123(b)(4) of the conformity rule clarifies that the
requirements for PM10 hot-spot quantitative analysis will
not take effect until EPA releases modeling guidance and announces in
the Federal Register that these requirements are in effect.
Quantitative hot-spot analyses use dispersion modeling to determine the
effects of motor vehicle emissions associated with a highway or transit
project on air quality. Qualitative reviews are required for all other
non-exempt projects in CO and PM10 areas. Qualitative
reviews are more streamlined and consider local factors, such as local
monitoring data near a proposed project rather than dispersion
modeling. See Section IV. of this notice for further information
regarding EPA's proposed options for retaining or changing the current
conformity rule's PM10 hot-spot analysis requirements.
In the November 5, 2003 proposal, EPA presented two options for
hot-spot analyses for project-level conformity determinations in
PM2.5 nonattainment and maintenance areas. Under the first
option (Option 1), hot-spot analyses would not be required for any
FHWA/FTA non-exempt projects in PM2.5 nonattainment and
maintenance areas at any time. Under the second option (Option 2),
quantitative PM2.5 hot-spot analyses would only be required
for FHWA/FTA projects at certain types of locations if the
PM2.5 SIP for an area identified such locations. Under
Option 2, PM2.5 hot-spot analyses would not be required for
any projects prior to the submission of a SIP and then only if the
PM2.5 SIP in a given nonattainment area identified
susceptible types of project locations. See the November 5, 2003
proposal (68 FR 62712-62713) for further information. These options are
also repeated below along with the additional options EPA is proposing
today.
2. PM2.5 Hot-Spot Analyses Before SIP Submission
EPA is proposing the following PM2.5 hot-spot options
for project-level conformity determinations that occur prior to the
submission of a PM2.5 SIP:
Options 1 and 2: Do not apply any PM2.5 hot-
spot analysis requirements for any PM2.5 area before the
submission of the PM2.5 SIP, as described in the November
2003 proposal;
Option 3: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5 in all PM2.5 areas;
Option 4: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5, unless the EPA Regional Administrator or state air
agency finds that localized PM2.5 violations are not a
concern for a given PM2.5 area; or
Option 5: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5, if the EPA Regional Administrator or state air agency
finds that localized PM2.5 violations are a concern for a
given PM2.5 area.
For Options 4 and 5, EPA intends localized PM2.5
concentrations to be a concern if the Clean Air Act requirements for
projects are not met, that is, if projects create new violations,
increase the severity or frequency of existing violations, or delay
timely attainment of the PM2.5 standard. Please note that
Options 3-5 would extend the existing PM10 hot-spot
requirements with respect to the PM2.5 standard, subject to
the conditions outlined in the options. EPA is not proposing to require
PM10 hot-spot analyses in PM2.5 areas. Although
EPA has not proposed specific language in Sec. 93.123(b) for Options 4
and 5, EPA has described these options sufficiently in this preamble to
include either or both of them in the final rule, if selected.
EPA requests comments on all of these options. Specifically, EPA
invites commenters to submit any data as well as argument regarding the
relevant statutory authority in support of their preferred option(s).
EPA requests commenters to submit any information that exists that
would support Options 1, 2, or 3. In addition, for Options 4 and 5
above, EPA requests comment today on whether state and local agencies
will have information available to make findings prior to
PM2.5 SIP submission, and what type of information will be
available during this time period.
An EPA or state air agency finding that PM2.5 localized
violations are or are not a concern (i.e., a ``hot-spot finding'')
prior to PM2.5 SIP submission would be
[[Page 72145]]
based on a case-by-case review of local factors for a given
PM2.5 area. For example, such a review could consider the
following local factors: PM2.5 monitoring data and proximity
to the PM2.5 standard, future modeling projections and
likelihood of new or worsening localized PM2.5 violations at
transportation-related project locations, the prevalence of heavy-duty
diesel vehicles at certain types of locations (e.g., highly congested
intersections or large transit stations where significant traffic and
engine idling occurs), site-specific terrain, meteorology, etc. As
noted in the November 2003 proposal, since secondary particles take
several hours to form in the atmosphere giving emissions time to
disperse beyond the immediate area of concern, hot spot findings under
options 4 and 5 would be based on direct particulate emissions that are
attributable to an individual project.
If EPA finalizes an option under which hot-spot findings would be
made, such findings would be made only after discussions among federal,
state, and local air quality and transportation agencies through the
interagency consultation process for a given PM2.5
nonattainment area. A hot-spot finding would be made through a letter
to the relevant state and local air quality and transportation
agencies, MPO(s), FHWA, FTA, and EPA (in the case of a state air agency
finding).
EPA notes that a hot-spot finding under Options 4 and 5 would not
be completed through EPA's adequacy process for submitted SIPs with
motor vehicle emissions budgets. Hot-spot findings would be done prior
to a SIP's submission and would not affect the development of future
SIPs and budgets for use in regional emissions analyses for conformity
determinations.
3. PM2.5 Hot-Spot Analyses After SIP Submission
EPA is proposing the following PM2.5 hot-spot options
for project-level conformity determinations that occur after the
submission of a PM2.5 SIP:
Option A: Do not apply any PM2.5 hot-spot
analysis requirements for any PM2.5 area (i.e., Option 1
from the November 2003 proposal);
Option B: Only require quantitative PM2.5 hot-
spot analyses for projects at those types of locations that the
PM2.5 SIP for a given area identifies as a localized
PM2.5 air quality concern (i.e., Option 2 from the November
2003 proposal). No quantitative or qualitative analyses would be
required for projects in other types of locations, or in
PM2.5 areas where the SIP does not identify types of
locations as a localized PM2.5 air quality concern; or
Option C: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5 for all projects in PM2.5 areas with one
minor addition, as described below.
Under Option B, PM2.5 hot-spot analyses would only be
required for projects at the types of locations identified in the
PM2.5 SIP; no qualitative hot-spot analyses would be done
for any other projects. Option B would not require hot-spot analyses
for all FHWA/FTA non-exempt projects in the PM2.5
nonattainment or maintenance areas, as is proposed under Option C and
currently required for CO and PM10 nonattainment and
maintenance areas.
If EPA finalizes Option B, we would provide guidance on how to
identify locations where transportation-related PM2.5 hot-
spots may exist. Examples of types of possible project locations
include:
Highly congested intersections,
Large transit stations where significant traffic and
engine idling occurs,
Projects involving long or steep grades, or
Monitors where the PM2.5 standard has been
exceeded or violated.
EPA requests comment on the above examples, and requests further
information regarding other types of project locations that should be
considered in possible future guidance on potential PM2.5
hot-spots in a given area. Any future guidance would be available for
use when states prepare their PM2.5 SIPs.
Minor change to quantitative hot-spot requirements: For Option C,
EPA is proposing one minor change to the existing rule's
PM10 requirements for when quantitative analyses are
required in PM2.5 areas. As applied to PM2.5 hot-
spot analyses, the proposal would require that quantitative analyses be
performed in those types of project locations that the PM2.5
SIP identifies as a PM2.5 hot-spot concern, in addition to
the three types of projects where quantitative analysis would always be
required, as outlined in Section III.A.1. This criterion would only be
relevant after the PM2.5 SIP is submitted. If EPA finalizes
this minor change, we propose that it would apply to both
PM2.5 and PM10 hot-spot analyses. This change is
described in greater detail in Section IV. of today's supplemental
proposal relating to PM10 and the reader should refer to
that section for further details. Regulatory text for this minor change
is in Sec. 93.123(b)(1) of today's action.
EPA also proposes to make a minor change to Sec. 93.123(b)(1)(iii)
to clarify that quantitative analyses would be required for such
projects that significantly increase the number of diesel vehicles, so
that quantitative analyses are not required for insignificant vehicle
increases with de minimis localized emissions increases. The proposed
change may also cover the cases where the number of vehicles increases
but emissions do not increase because the added vehicles are cleaner
(e.g., retrofitted diesel vehicles).
4. Quantitative PM2.5 Hot-Spot Analyses and Future EPA
Guidance
For options that would require quantitative hot-spot analyses, EPA
proposes to extend the current rule's Sec. 93.123(b)(3) and (b)(4)
requirements with respect to PM2.5. Section 93.123(b)(3)
currently requires that the consultation process be used to identify
the specific cases in a given nonattainment or maintenance area under
which PM10 quantitative hot-spot analyses are performed, and
addresses categorical conformity determinations for certain transit
projects and FTA actions in PM10 areas. A categorical
conformity determination under the existing conformity rule and this
proposal allows FTA to determine that a quantitative hot-spot analysis
is not needed for a particular project if there is modeling that shows
that such a project will not cause or contribute to new or worsening
localized violations. Today's action would also propose to extend this
sub-paragraph for PM2.5 and allow DOT to choose to make a
categorical conformity determination for PM2.5 on bus and
rail terminals or transfer points based on appropriate modeling of
various terminal sizes, configurations, and activity levels. Today's
proposal does not substantively change Sec. 93.123(b)(3) for FTA
actions on certain transit projects, and EPA is not requesting comment
on this existing flexibility.
However, the proposal would modify Sec. 93.123(b)(3) to allow FHWA
to make a categorical conformity determination for PM2.5 and
PM10 on certain roadways and intersections based on
appropriate modeling of various configurations and activity levels. As
described above, the current rule provides for such FTA categorical
conformity determinations for only certain transit projects in
PM10 areas.
We request comment on allowing FHWA to make a categorical
determination for hot-spot analyses in appropriate cases if it believes
that Clean Air Act requirements are met without additional
PM2.5 hot-spot analyses. EPA also requests information on
what types of roadway and
[[Page 72146]]
intersection projects would be appropriately covered by this aspect of
today's proposal. If finalized, EPA and DOT would consult on the
development of additional guidance on the implementation of such a
provision.
Under the proposal, the modeled scenarios used to make the
categorical determinations would need to be derived in consultation
with EPA, and more refined analyses would be necessary for projects
which do not meet the parameters of the modeled scenario. See EPA's
January 11, 1993 proposal (58 FR 3780) for further information on the
current rule's requirements.
Similar to Sec. 93.123(b)(4) of the current rule for
PM10 areas, EPA also proposes to not require any
quantitative PM2.5 hot-spot analyses until EPA releases
quantitative modeling guidance and announces in the Federal Register
that PM2.5 quantitative modeling requirements are in effect.
If EPA finalizes an option that would require quantitative and/or
qualitative PM2.5 hot-spot analyses, we would provide
guidance and appropriate models for carrying out such analyses in a
timely manner. EPA would consult with conformity stakeholders when
developing quantitative guidance.
5. Other Requirements
General requirements: For options that would require a
PM2.5 hot-spot analysis, EPA is proposing to extend the
general requirements in Sec. 93.123(c) of the current conformity rule
to PM2.5 areas. EPA is not proposing any substantive changes
to these requirements in today's action. Under these current
requirements, all hot-spot analyses include:
The total emissions burden of direct PM2.5
emissions which may result from the implementation of the project
(including re-entrained road dust and construction dust as applicable),
summed together with future background concentrations;
The entire transportation project, after the
identification of major design features which will significantly impact
local concentrations;
Consistent assumptions with those used in regional
emissions analyses for inputs that are required for both analyses
(e.g., temperature, humidity);
Assumptions for the implementation of mitigation or
control measures only where written commitments for such measures have
been obtained; and
No temporary emissions increases from construction-related
activities which occur only during the construction phase and last five
years or less at any individual site.
See the preamble for the January 1, 1993 proposal (58 FR 3779-3780)
and November 24, 1993 final rule (58 FR 62212-62213) for further
information regarding the intent and rationale for these general hot-
spot requirements.
Finally, as described in the November 2003 proposal, EPA is
proposing to also extend the requirements of Sec. 93.125(a) of the
current conformity rule to PM2.5 areas if a PM2.5
hot-spot requirement is finalized. Section 93.125(a) of the existing
conformity rule currently applies to all projects in CO and
PM10 nonattainment and maintenance areas.
As described in the November 2003 proposal and today's action, FHWA
or FTA must obtain from the project sponsor and/or operator enforceable
written commitments to implement any required project-level control or
mitigation measures, prior to making a project-level conformity
determination in a PM2.5 nonattainment or maintenance area.
These control or mitigation measures may be a condition of either a
National Environmental Policy Act (NEPA) approval or a conformity
determination for a transportation plan or TIP or be included in the
design concept and scope of the project that is used in the regional
emissions analysis required by Sec. Sec. 93.118 or 93.119 of the
conformity rule, or used in the project-level hot-spot analysis
required by Sec. 93.116. These measures may be applicable during
construction and/or operation of the project. Such measures would
already be applicable to such projects through the mechanisms cited
above; however, including commitments to them in conformity
determinations will provide an additional enforcement tool.
Changes to other related existing requirements: Today's proposal
also includes minor clarifications with respect to PM2.5 to
various parts of the current conformity rule that are consistent with
existing CO and PM10 hot-spot analysis requirements. For
example, EPA has proposed to add PM2.5 to the current rule's
``hot-spot analysis'' definition in Sec. 93.101. EPA proposes that
this and the other minor clarifications in today's proposed regulatory
text would be finalized under any option that would require
PM2.5 hot-spot analyses.
B. Why Are We Proposing These Options?
1. General
EPA believes it is important to consider the full range of options
for addressing localized PM2.5 concentrations which may
cause or contribute to any new violation of the PM2.5
standard; increase the frequency or severity of any existing violation;
or delay timely attainment of the standard. In developing this
supplemental proposal, EPA considered several factors:
The Clean Air Act conformity requirements for individual
transportation projects;
The current scientific understanding of PM2.5
hot-spots and public health effects;
The feasibility of implementing proposed options; and
The impact of proposed options on state and local
resources.
The following paragraphs outline how these factors relate to the
proposed options.
First, EPA believes that any option that is selected in the final
rule must ensure that all federally funded and approved transportation
projects in PM2.5 areas are consistent with Clean Air Act
requirements. Section 176(c)(1)(B) of the Clean Air Act states that
federally-supported transportation projects must 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 emission reductions or other milestones in any area.'' While
these statutory requirements apply at all times for highway and transit
project conformity determinations, as noted in the November 3, 2003
proposal, Section 176 (c)(3)(B)(ii) only specifically requires hot-spot
analysis for projects in CO nonattainment areas and therefore, EPA has
discretion to decide if hot-spot analyses are necessary to protect air
quality in particulate matter nonattainment and maintenance areas. EPA
received comments concerning this interpretation of the Agency's
statutory authority during the comment period following the November 3,
2003 proposal and invites further comments on this matter.
EPA also considered what is currently known about the possibility
that transportation-related PM2.5 hot-spots exist in the
development of the November 2003 proposal and today's supplemental
proposal. In the November 3, 2003 proposal EPA indicated that the
Agency was not certain that hot-spots will occur, or that in the event
such hot-spots are confirmed, that requiring a qualitative hot-spot
analysis for every FHWA and FTA project in PM2.5
nonattainment and maintenance areas would provide an environmental
benefit due to the
[[Page 72147]]
regional nature of PM2.5 and the significant role of
secondary formation of these fine particles.
Understanding whether transportation projects can result in
PM2.5 hot-spots and if so, under what circumstances,
provides a basis for considering whether explicit hot-spot reviews must
be required. The state of scientific research continues to evolve on
the relationship between individual transportation projects and
PM2.5 air quality. EPA noted in the November 2003 proposal
that most of the research studies that had been reviewed at that time
indicated that concentrations of some components of PM2.5
increase near heavily traveled roadways. In the November 2003 proposal,
EPA noted its review of a number of key studies that represent the
range of available research on the impact of on-road mobile source
emissions of particles on air quality near roadways. The majority of
these studies indicate that concentrations of some components of
PM2.5, such as black carbon and ultrafine particles,
increase near roadways. However, many of these studies did not measure
PM2.5 directly. Several studies concluded that on-road
sources were one of several contributors to the concentrations measured
near roadways. Please see the November 2003 proposal for additional
information on these and other studies (68 FR 62713).
EPA has also considered information that has become available since
the November 2003 proposal and has further considered the information
that was described in the November 2003 proposal. For example, one new
study published this year examines changes in traffic patterns
associated with a single transportation project that can result in
statistically significant differences in PM2.5 mass
concentrations measured along affected roadways (Burr, et al., 2004).
Some commenters also provided other information regarding
PM2.5 hot-spots for EPA's consideration. The information
available prior to the November 2003 proposal did not measure
PM2.5 directly and did not isolate the effects of new
transportation projects. However, both this information as well as the
most recent information does indicate a potential for higher localized
emissions and PM2.5 concentrations near transportation
projects. EPA is considering the context for how this information was
developed, including how localized emissions increases and existing
background concentrations relate to the potential for localized
violation of the PM2.5 standard. We invite others to submit
data or research relevant to the existence of transportation-related
hot-spots during the comment period for this supplemental proposal.
Please read C. of this section for further information.
EPA also considered what would be known about the potential for
PM2.5 hot-spots in individual PM2.5 nonattainment
areas, and as a consequence, the feasibility of implementing any
proposed option to meet statutory requirements before and after
PM2.5 SIP submission. We invite state and local agencies to
comment on the feasibility of implementing all of the proposed options,
including what state or local information would be available for
implementation purposes as appropriate.
In addition, EPA will be considering in the final rule the impact
of our new diesel fuel and engine standards (January 18, 2001, 66 FR
5002) for the necessity of applying any of the proposed options. Such
standards are expected to significantly impact the amount of
particulate emissions that will be emitted by new diesel vehicles, and
consequently may impact the potential for PM2.5
transportation-related hot-spots.
2. PM2.5 Hot-Spot Analyses Before SIP Submission
EPA has proposed several options for PM2.5 hot-spot
analyses prior to SIP submission (Options 1-5). As stated above, our
understanding of transportation-related PM2.5 and the
potential of PM2.5 hot-spots will continue to develop,
especially during the time period when conformity first applies for the
PM2.5 standard.
EPA is again proposing Options 1 and 2 which do not require any
explicit PM2.5 hot-spot analysis for any project before
PM2.5 SIP submission in PM2.5 nonattainment and
maintenance areas. Please see the November 2003 proposal (68 FR 62712-
62713) for further information on these options.
EPA has also proposed to apply the existing rule's PM10
hot-spot requirements to PM2.5 areas before PM2.5
SIP submission (Option 3). EPA believes that this option would meet
statutory requirements since it relies on an existing interpretation
that has already been implemented under the current conformity rule. In
the November 24, 1993 conformity rule (58 FR 62188), EPA promulgated
the existing conformity requirements for CO and PM10 hot-
spot analyses. A hot-spot analysis is currently required for all non-
exempt federal projects in CO and PM10 nonattainment and
maintenance areas, regardless of whether or not a SIP has been
submitted. Quantitative hot-spot analyses under the current rule are
required for projects that meet specific criteria in the conformity
rule, rather than based on criteria identified in a SIP.
The current conformity rule requires hot-spot analyses for all non-
exempt FHWA/FTA projects at all times in PM10 areas, since
we believed that emissions produced by individual highway and transit
projects in these areas could potentially result in a new air quality
violation or worsen an existing violation. Option 3 relies on this same
rationale.
Applying the current rule's provisions in PM2.5 areas
would provide an environmentally conservative approach to any
uncertainty regarding the potential or prevalence of PM2.5
hot-spots, since some type of hot-spot analysis would be completed for
every non-exempt FHWA/FTA project in PM2.5 areas. Although
state and local agencies have developed boundary recommendations for
PM2.5 designations, SIPs for individual nonattainment areas
will not be developed for three years after designations. As a result,
information regarding localized PM2.5 air quality challenges
in individual areas may not be available for most areas. EPA will
consider in the final rule whether sufficient information is available
to confidently confirm or eliminate the possibility of PM2.5
hot-spots for categories of project types or locations, and as a
result, if explicit hot-spot reviews are necessary before
PM2.5 SIP submission.
EPA is also proposing Options 4 and 5 for the time period prior to
PM2.5 SIP submission, due to the evolving nature of our
understanding of PM2.5 air quality issues. These options
would apply current PM10 hot-spot requirements with respect
to PM2.5 depending on whether or not worsening
PM2.5 concentrations would result in a new violation or
increased severity or frequency of an existing violation of the
PM2.5 standard in an area prior to PM2.5 SIP
submission. These options would rely on the proposed interpretation
stated in the November 2003 proposal (68 FR 62713): Clean Air Act
section 176(c)(1)(B) requirements could be met as long as explicit
reviews are performed at locations identified in the PM2.5
SIP as susceptible to PM2.5 hot-spots. If hot-spots are
found not to be a concern (Option 4) for any projects in a given area
prior to PM2.5 SIP submission, then statutory requirements
could be met in these areas without any explicit hot-spot review.
Conversely, if hot-spots are found to be a concern (Option 5) in a
given area, then all project-level conformity determinations in these
areas should include explicit
[[Page 72148]]
hot-spot reviews to ensure that statutory requirements are met. Both of
these options would allow EPA and states to target hot-spot
requirements in PM2.5 nonattainment areas where hot-spots
may or may not be an air quality concern.
As described in A.2. of this section, EPA is requesting comment on
whether state and local air agencies will have the necessary data and
other information to make the hot-spot findings described in Options 4
and 5 prior to PM2.5 SIP submission. The appropriateness and
feasibility of these options--that is, the ability to argue that
section 176(c)(1)(B) requirements are met under these options--depends
on whether well-considered, informed findings will be possible prior to
PM2.5 SIP submission.
3. PM2.5 Hot-Spot Analyses After SIP Submission
EPA has also proposed options for PM2.5 hot-spot
analyses after SIP submission (Options A-C). Option C would extend the
existing rule's PM10 hot-spot requirements (with a minor
addition) to PM2.5 areas after PM2.5 SIP
submission. Similar to Option 3 for the time period before
PM2.5 SIPs, EPA concludes that Option C would meet statutory
requirements since it relies on existing rationale for the current
conformity rule.
EPA also notes that extending the current rule's provisions for
PM10 hot-spot analyses to PM2.5 areas would
ensure that potential transportation-related PM2.5 hot-spots
for all areas are addressed, especially in cases where it is not
possible to determine through the SIP process what the potential for
localized PM2.5 violations would be in a given nonattainment
or maintenance area. As noted previously, EPA will consider in the
final rule the potential existence of PM2.5 hot-spots for
transportation projects, and whether explicit hot-spot reviews will be
needed to meet Clean Air Act requirements. Option C would require state
and local resources be used for all FHWA/FTA non-exempt projects in
PM2.5 areas, although EPA is proposing flexibility to
require more intensive quantitative hot-spot reviews only for a subset
of projects.
EPA also proposed Option B to require quantitative PM2.5
hot-spot analyses only at types of project locations identified as a
localized air quality concern in a given PM2.5 SIP. When the
SIP identifies such locations, a quantitative hot-spot analysis would
be completed for affected projects. No qualitative analyses would be
required for projects in other types of locations, or in
PM2.5 areas where the SIP does not identify types of
locations as a localized PM2.5 air quality concern. Under
Option B, EPA is proposing quantitative hot-spot analyses only for
projects at locations identified in the SIP as a localized concern,
since EPA believes that if a SIP identifies such a project location as
problematic, then a more thorough examination of the localized impacts
of transportation projects at such locations is necessary to ensure
that the SIP's purpose and Clean Air Act conformity requirements are
met.
As stated in the November 2003 proposal, Option B is consistent
with the purpose of conformity, which is to ensure that federally
funded or approved transportation projects are consistent with the SIP
in a given nonattainment or maintenance area. Section 176(c)(1)(A)
requires ``conformity to an implementation plan's purpose of
eliminating or reducing the severity and number of violations of the
national ambient air quality standards and achieving expeditious
attainment of such standards * * *.'' Under this option, the SIP would
define the types of locations where transportation projects are a
localized PM2.5 concern, and therefore, when explicit hot-
spot reviews are necessary to meet statutory requirements.
For Option B, EPA is considering whether PM2.5 SIPs can
be developed so potential transportation-related hot-spot locations are
defined for each PM2.5 nonattainment and maintenance area.
This option would be feasible in the case where sufficient information
exists that allows a state to specify susceptible locations for
PM2.5 hot-spots are or are not a concern. However, there may
be other cases where it is unclear whether susceptible locations for
hot-spots exist, or where there is a potential for localized
PM2.5 violations but it is difficult to specify which
project locations could create hot-spots. EPA is requesting comment on
whether such cases could occur in future PM2.5 areas, and
whether other proposed options would be more appropriate in such cases
after a PM2.5 SIP is submitted.
EPA also requests comment on how the proposed options should be
implemented in cases where the latest information available on the
potential for PM2.5 hot-spots is not reflected in the
PM2.5 SIP. For example, suppose an attainment demonstration
for the PM2.5 standard is developed that specifies that
there are no project locations susceptible to PM2.5 hot-
spots. However, after the attainment demonstration is submitted,
information becomes available outside the SIP process that indicates
that there may be potential transportation-related hot-spot locations.
One may argue that in such a case under Option B PM2.5 SIPs
would need to be updated in a timely manner to reflect new information
so that project-level conformity determinations could be made that meet
statutory requirements. On the other hand, there may be arguments to
allow the SIP process to evaluate any new information prior to its use
in the conformity process.
EPA has committed to issue SIP guidance under this option if it is
finalized. Due to the evolving nature of our understanding of
PM2.5, there may be challenges to any guidance document that
is developed in the near future. EPA requests in today's action further
comment on whether state and local air quality agencies will have the
necessary local information and resources to specify in
PM2.5 SIPs which project locations are a potential
PM2.5 hot-spot concern, in order to support Option B and
provide flexibility in the conformity process.
State and local agencies may identify types of locations in each
PM2.5 SIP that may increase or decrease the kinds of
projects requiring quantitative hot-spot analyses, as compared to the
current conformity rule's criteria for such PM10 hot-spot
analyses. Ultimately, EPA anticipates that this option would likely
result in fewer total projects having some type of PM2.5
hot-spot review as compared to the current conformity rule's
requirements, since not all PM2.5 areas may have future
PM2.5 SIPs that identify hot-spots as a concern.
EPA is again proposing options for not requiring any explicit
PM2.5 hot-spot analysis for any project after
PM2.5 SIP submission (Option A). As stated in B.2. of this
section, this option could be finalized based on the discussion of this
option in the November 3, 2003 proposal.
4. Specific Analysis Requirements
EPA continues to believe it has discretion both to decide if hot-
spot analyses are necessary and to establish the level of any
PM2.5 hot-spot analysis that would be required for
transportation projects. For example, the options that involve applying
the existing conformity rule's PM10 requirements with
respect to PM2.5 would require quantitative hot-spot
analyses only for certain projects. Qualitative hot-spot analyses would
be completed under these options for other projects that are not
subject to quantitative analyses. Applying the current conformity
rule's approach for requiring dispersion modeling only at certain
project locations would
[[Page 72149]]
streamline PM2.5 hot-spot reviews and utilize state and
local resources in an efficient and reasonable manner while still
satisfying Clean Air Act requirements.
EPA's minor proposal to add a new criterion under Option C to Sec.
93.123(b)(1) of the regulatory text for when PM quantitative hot-spot
analyses are required would ensure that Clean Air Act and SIP goals are
met. That is, requiring quantitative hot-spot analyses to also be
completed for types of project locations that the SIP identifies will
support the SIP's goals for an individual area in those cases where a
state has the information to identify specific types of locations.
Where a state does not have such information, EPA believes that the
remaining three criteria for when quantitative analyses are completed
sufficiently cover the cases where it is most likely to have a hot-spot
occur.
EPA notes that this minor proposal would be consistent with a
similar criterion in Sec. 93.123(a)(1)(i) of the existing rule's
requirements for quantitative CO hot-spot analyses. This criterion
requires quantitative CO hot-spot analyses ``[f]or projects in or
affecting locations, areas, or categories of sites which are identified
in the applicable implementation plan as sites of violation or possible
violation; * * *.''
5. Other Requirements
Finally, EPA is proposing to apply the current conformity rule's
other provisions for conducting hot-spot analyses with respect to
PM2.5 for any option that requires a PM2.5 hot-
spot analysis. As described in A.5. of this section, these minor
proposed changes would not substantively change these provisions of the
current conformity rule (e.g., Sec. Sec. 93.123(c) and 93.125(a)).
These proposed changes would allow EPA to implement any
PM2.5 hot-spot requirement in the final rule, if necessary.
C. Request for PM2.5 Hot-Spot Information
EPA again invites commenters to submit studies or data regarding
PM2.5 hot-spots during the comment period for this
supplemental proposal. All comments and information submitted for the
November 2003 proposal and today's action will be considered when EPA
develops the final rule that addresses PM2.5 hot-spot
requirements.
IV. PM10 Hot-Spot Analyses
A. What Are We Proposing?
1. Background
EPA is proposing several options for PM10 hot-spot
analyses in today's action for project-level conformity determinations
in PM10 nonattainment and maintenance areas. As described in
Section III. of today's action, a highway or transit project subject to
transportation conformity provisions of the Clean Air Act must not
cause or contribute to any new violations of the air quality standard,
increase the frequency or severity of existing violations or delay
timely attainment of any standard or interim emission reductions or
milestones.
Comments can be submitted on all options during the comment period
for this supplemental proposal. The options below are listed in terms
of what would be required for project-level conformity determinations
before and after a PM10 SIP is submitted in a given
PM10 nonattainment or maintenance area.
The following paragraphs describe the November 5, 2003 proposal's
PM10 hot-spot options along with new options proposed for
comment today. Today's proposed regulatory text combines various
PM2.5 and PM10 hot-spot options as illustrative
examples, since common sections and paragraphs of the conformity rule
would be affected under the supplemental proposal. However, EPA
believes that any combination of the proposed PM2.5 or
PM10 hot-spot options could be included in the final rule.
As described in Section III., the existing conformity rule requires
some type of hot-spot analyses for all FHWA/FTA non-exempt projects in
CO and PM10 nonattainment and maintenance areas (see 40 CFR
93.116 and 93.123). These requirements currently apply for all project-
level conformity determinations that occur before and after a SIP is
submitted for these standards.
2. PM10 Hot-Spot Analyses Prior to SIP Submission
In today's supplemental proposal, EPA is proposing the following
PM10 hot-spot options for project-level conformity
determinations that occur prior to the submission of a PM10
SIP:
Option 1: Retain the existing conformity rule's
PM10 hot-spot analysis requirements in all PM10
areas.
Option 2: Apply the existing conformity rule's
PM10 hot-spot analysis requirements, unless the EPA Regional
Administrator or state air agency finds that localized PM10
violations are not a concern for a given PM10 area;
Option 3: Only apply the existing conformity rule's
PM10 hot-spot analysis requirements, if the EPA Regional
Administrator or state air agency finds that localized PM10
violations are a concern for a given PM10 area; or
Option 4: Delete the current PM10 hot-spot
analysis requirements from the conformity rule and impose no hot-spot
analysis requirements.
For Options 2 and 3, EPA intends localized PM10
violations to be a concern if Clean Air Act requirements for projects
are not met, that is, if projects create new or worsen existing
PM10 violations. Although EPA has not proposed specific
language in Sec. 93.123(b) for Options 3 and 4, EPA has described
these options sufficiently in this preamble to include either or both
of them in the final rule, if selected.
For Options 2 and 3, EPA requests comment today on whether state
and local agencies that do not already have established PM10
SIPs have information available to make such findings (``hot-spot
findings''), and what type of information would be available in the
future for those limited number of PM10 areas without
PM10 SIPs. An EPA or state hot-spot finding that localized
PM10 violations are or are not a concern prior to
PM10 SIP submission would be based on a case-by-case review
of local factors for a given PM10 area. For example, such a
review could consider the following local factors: PM10
monitoring data and proximity to the PM10 standard, future
modeling projections and likelihood of new or worsening localized
PM10 violations at transportation-related project locations,
the prevalence of heavy-duty diesel vehicles at certain types of
locations (e.g., highly congested intersections or large transit
stations where significant traffic and engine idling occurs), site-
specific terrain, meteorology, etc.
The proposed rule would require hot-spot findings under the
proposed options to be made only after discussions with federal, state,
and local air quality and transportation agencies through the
interagency consultation process for a given PM10
nonattainment area. A hot-spot finding would be made through a letter
to the relevant state and local air quality and transportation
agencies, MPO(s), FHWA, FTA, and EPA (in the case of a state air agency
finding). A hot-spot finding under the proposed options would not be
completed through EPA's adequacy process for submitted SIPs with motor
vehicle emissions budgets, as noted in Section III.A.2. of today's
supplemental proposal.
[[Page 72150]]
3. PM10 Hot-Spot Analyses After SIP Submission
EPA is proposing the following PM10 hot-spot options for
project-level conformity determinations that occur after
PM10 SIP submission:
Option A: Retain the existing conformity rule's
PM10 hot-spot analysis requirements for FHWA/FTA non-exempt
projects in all PM10 areas with one minor addition, as
described below;
Option B: Only require quantitative PM10 hot-
spot analyses for projects at those types of locations that the
PM10 SIP for a given area identifies as a localized
PM10 air quality concern. No qualitative analyses would be
required for projects in other types of locations, or in
PM10 areas where the SIP does not identify types of
locations as a localized PM10 air quality concern; or
Option C: Do not apply any PM10 hot-spot
analysis requirements for any PM10 area and delete the
current PM10 requirements from the conformity rule.
EPA notes that all of these options were represented in the
November 2003 proposal. As described in Section III. for
PM2.5 PM10 quantitative hot-spot analyses under
Option B would only be required for projects at the types of locations
identified as a concern in the PM10 SIP; no qualitative hot-
spot analyses would be done for all other projects. This option would
not require some type of hot-spot analyses for all projects in the
PM10 nonattainment or maintenance area, as is currently
required. If EPA finalizes Option B, we would provide guidance on how
to identify locations where transportation-related PM10 hot-
spots may exist. The majority of PM10 areas already have an
attainment demonstration or a maintenance plan; therefore, SIP
revisions may be necessary under Option B to identify types of
locations where quantitative analyses must be performed.
As described in Section III. of today's notice, examples of types
of project locations include:
Highly congested intersections,
Large transit stations where significant traffic and
engine idling occurs,
Long or steep grades, or
Monitors where the PM10 standard has been
exceeded or violated.
EPA requests comment on the above examples, and requests further
information regarding other types of project locations where potential
PM10 hot-spots could occur in a given area.
Minor change to quantitative hot-spot requirements: For Option A,
EPA is proposing one minor change to the existing conformity rule's
requirements for PM10 hot-spot analyses after
PM10 SIPs are submitted. The proposal would add another
criterion for when quantitative (rather than qualitative) analyses
would be performed--in those types of project locations that the
PM10 SIP identifies as a PM10 hot-spot concern.
This criterion would only be relevant after the PM10 SIP is
submitted. If EPA finalizes this minor change, it would apply to both
PM2.5 and PM10 hot-spot analyses. This change is
also being proposed in Section III. of today's action for a similar
option for PM2.5 analyses. Regulatory text for this minor
change is in Sec. 93.123(b)(1).
Section 93.123(b)(1) currently requires quantitative
PM10 hot-spot analyses for the following types of
transportation projects:
Projects which are located at sites at which violations
have been verified by monitoring data;
Projects which are located at sites which have vehicle and
roadway emission and dispersion characteristics that are essentially
identical to those of sites with verified violations (including sites
near one at which a violation has been monitored); and
New or expanded bus and rail terminals and transfer points
which increase the number of diesel vehicles congregating at a single
location.
EPA proposes to make a minor change to Sec. 93.123(b)(1)(iii) to
clarify that quantitative analyses would be required for such projects
that significantly increase the number of diesel vehicles, so that
quantitative analyses are not required for insignificant vehicle
increases with de minimis localized emissions increases. The proposed
change may also cover the cases where the number of vehicles increases
but emissions do not increase because the added vehicles are cleaner
(e.g., retrofitted diesel vehicles).
EPA notes that today's action would not change Sec. 93.123(b)(2)
of the current rule for relevant options, which requires a qualitative
hot-spot analysis of local factors for all other projects, rather than
dispersion modeling.
Section 93.123(b)(3) currently requires that the consultation
process be used to identify the specific cases in a given nonattainment
or maintenance area under which PM10 quantitative hot-spot
analyses are performed, and addresses categorical conformity
determinations for certain transit projects and FTA actions in
PM10 areas. A categorical conformity determination under the
existing conformity rule and this proposal allows FTA to determine that
a quantitative hot-spot analysis is not needed for a particular project
if there is modeling that shows that such a project will not cause or
contribute to new or worsening localized violations. Today's proposal
does not substantively change Sec. 93.123(b)(3) for FTA actions on
certain transit projects, and EPA is not requesting comment on this
existing flexibility.
However, today's proposal would modify Sec. 93.123(b)(3) of the
current conformity rule to allow FHWA to also make a categorical
PM2.5 or PM10 conformity determination on certain
roadways and intersections based on appropriate modeling of various
configurations and activity levels. As described above, the current
rule provides for such FTA categorical conformity determinations for
only certain transit projects in PM10 areas. We request
comment on allowing FHWA to make a categorical determination without
additional PM10 hot-spot analyses if it believes this would
meet Clean Air Act requirements. EPA also requests information on what
types of roadway and intersection projects would be appropriately
covered by this proposal. If finalized, EPA and DOT would consult on
the development of additional guidance on the implementation of such a
provision. See Section III.A.4. of today's proposal for further
information.
4. Quantitative PM10 Hot-Spot Analyses and Future EPA
Guidance
If EPA finalizes an option that would require quantitative
PM10 hot-spot analyses, we would provide guidance and
appropriate models for carrying out such analyses in a timely
manner.\2\ Section 93.123(b)(4) of the current rule does not require
any quantitative PM10 hot-spot analyses until EPA releases
quantitative modeling guidance and announces in the Federal Register
that quantitative modeling requirements are in effect. EPA would
consult with conformity stakeholders when developing PM10
quantitative guidance.
---------------------------------------------------------------------------
\2\ PM10 qualitative hot-spot guidance has already
been issued, titled, ``Federal Highway Administration Guidance for
Qualitative Project Level ``Hot Spot'' Analysis in PM-10
Nonattainment and Maintenance Areas,'' September 2001. This guidance
can be downloaded from the following website: http://www.epa.gov/otaq/transp/conform/policy.htm
---------------------------------------------------------------------------
5. Other Requirements
For options that require PM10 hot-spot analyses, EPA is
proposing to continue to apply the general requirements for such
analyses in Sec. Sec. 93.123(c), 93.125(a), and other provisions of
the current conformity rule for all PM10 hot-spot analyses.
EPA is not proposing any substantive changes to these requirements. See
Section III. of this
[[Page 72151]]
preamble or the proposed regulatory text for further general
information regarding these requirements.
B. Why Are We Proposing These Options?
1. General
EPA considered the following factors in developing the
PM10 hot-spot options in the November 2003 proposal and
today's action:
The Clean Air Act conformity requirements for individual
transportation projects in PM10 areas;
The current scientific understanding of PM10
hot-spots and public health effects;
The feasibility of implementing proposed options; and
The impact of proposed options on state and local
resources.
As stated in the November 2003 proposal, EPA believes it is
important to re-evaluate the need for hot-spot analyses for
PM10 nonattainment and maintenance areas. EPA is addressing
hot-spots in PM10 areas, in addition to PM2.5
areas in this SNPRM, because of the similarity between sources of these
two pollutants and the similarity of the requirements. For example,
both types of particulate matter result from tailpipe emissions, as
well as brake and tire wear, and in some areas, road dust.
PM10 includes particles that are 2.5 microns in diameter and
smaller, as well as particles that range from 2.5 microns to 10
microns. In addition, because we are soliciting comment on a range of
options for hot-spot analyses in PM2.5 areas, EPA believes
it is reasonable to seek comment on a similar range of options for hot-
spot analyses in PM10 areas. We are soliciting input to
guide our decision on the proposed options both before and after a
PM10 SIP is submitted. The following paragraphs outline how
the above factors relate to the proposed options.
When the conformity rule was promulgated in 1993, EPA interpreted
Clean Air Act section 176(c)(1)(B) to require PM10 hot-spot
analyses because of the requirement to ensure that transportation
activities do not create new violations, worsen existing violations or
delay timely attainment of the air quality standard (January 11, 1993,
58 FR 3776). Any option that is selected in the final rule must be
consistent with these Clean Air Act requirements, which apply at all
times for highway and transit project conformity determinations.
EPA's developing understanding of potential PM10 hot-
spots is one of the factors that needs to be considered for applying
the proposed options. EPA believes it is appropriate to focus
conformity resources where air quality issues are significant and need
to be in place to address Clean Air Act requirements. To that end, EPA
will consider information that was available when the original
conformity rule was developed, as well as new information that is
submitted through the rulemaking process or has otherwise become
available. For example, in 1993, EPA believed that typically sized bus
terminals or transfer points would not create PM10 hot-
spots, however, we decided that it was practical to require a
determination to that effect to ensure that Clean Air Act requirements
were met. We also believed at that time that direct PM10
emissions would be capable of causing violations only in conditions of
unusually heavy diesel truck/bus traffic and limited dispersion, such
as street canyons (January 11, 1993, 58 FR 3780). On the other hand,
EPA may not have fully considered the role of re-entrained road dust in
contributing to potential PM10 hot-spots. EPA will consider
all past and current information on the potential for PM10
hot-spots in the development of the final rule.
In addition, EPA will be considering in the final rule the impact
of our new diesel fuel and engine standards (January 18, 2001, 66 FR
5002) for the necessity of applying any of the proposed options. Such
standards are expected to significantly impact the amount of
particulate emissions that will be emitted by new diesel vehicles, and
consequently may impact the potential for PM10
transportation-related hot-spots.
Understanding the potential for PM10 hot-spots provides
a basis for determining when explicit hot-spot reviews must be
required. As indicated in the November 3, 2003 proposal, section
176(c)(3)(B)(ii) specifically requires hot-spot analyses for projects
only in CO nonattainment areas.
EPA also considered the feasibility of implementing any proposed
option to meet statutory requirements before and after PM10
SIP submission. We invite state and local agencies to comment on the
feasibility of implementing all of the proposed options, including what
state or local information would be available for implementation
purposes.
2. PM10 Hot-Spot Analyses Before SIP Submission
EPA has proposed to apply the existing rule's PM10 hot-
spot requirements to PM10 areas before PM10 SIP
submission (Option 1). EPA believes that this option would meet
statutory requirements since it relies on the existing interpretation
for the current conformity rule. In the November 24, 1993 conformity
rule (58 FR 62188), EPA promulgated the existing conformity
requirements for PM10 hot-spot analyses. Section 93.116 of
the current conformity rule requires an explicit PM10 hot-
spot review to be completed for all non-exempt federal projects in
PM10 nonattainment and maintenance areas, regardless of
whether or not a SIP has been submitted. EPA believed that emissions
produced by individual highway and transit projects in PM10
nonattainment and maintenance areas could potentially result in a new
air quality violation or worsen an existing violation. Option 1 would
continue to rely on this same rationale.
EPA is also proposing today Options 2 and 3 to apply current
PM10 hot-spot requirements depending on whether or not new
or worsening localized PM10 violations could occur in a
given area prior to PM10 SIP submission. These options would
rely on the proposed interpretation stated in the November 2003
proposal (68 FR 62713): Clean Air Act section 176(c)(1)(B) requirements
could be met as long as explicit reviews are performed at locations
susceptible to PM10 hot-spots. If hot-spots are found not to
be a potential concern (Option 2) in a given area, then EPA believes
that statutory requirements could be met in these areas without an
explicit hot-spot review. Conversely, if potential hot-spots are found
to be a concern (Option 3) in a given area, then all project-level
conformity determinations in these areas should include explicit hot-
spot reviews to ensure that statutory requirements are met. Both of
these options would allow EPA and states to target hot-spot
requirements in PM10 nonattainment areas where hot-spots may
or may not be an air quality concern.
Commenters should consider the practical impact of all of the
options that are being proposed for the time period prior to
PM10 SIP submission. Since most PM10
nonattainment and maintenance areas already have submitted or approved
PM10 SIPs, the proposed options may impact a small number of
PM10 areas. EPA requests information on the appropriateness
of the proposed options in any PM10 areas without SIPs,
including whether there are unique circumstances of these areas that
would be relevant to the potential for PM10 hot-spots and
necessity of project-level conformity analyses.
As described in A.2. of this section, EPA is requesting comment on
whether state and local air agencies that have not yet established
PM10 SIPs will have the
[[Page 72152]]
necessary information to make the hot-spot findings described in
Options 2 and 3. The appropriateness and feasibility of these options
in meeting Clean Air Act requirements depends on whether well-
considered, informed findings will be possible prior to PM10
SIP submission.
EPA is again proposing Option 4 to not require any explicit
PM10 hot-spot analysis for any project before
PM10 SIP submission in PM10 nonattainment and
maintenance areas. See the November 5, 2003 proposal (68 FR 62713--
62714) for further information.
3. PM10 Hot-spot Analyses After SIP Submission
EPA continues to consider the November 2003 proposal's options for
PM10 hot-spot analyses after SIP submission (Options A-C).
Option A would continue to apply the existing rule's PM10
hot-spot requirements (with a minor addition) after PM10 SIP
submission. Similar to Option 1 for the time period before
PM10 SIPs, EPA concludes that Option A would meet statutory
requirements since it relies on existing rationale for the current
conformity rule.
Like similar PM2.5 hot-spot options discussed in Section
III., EPA notes that retaining the current PM10 hot-spot
requirements would ensure that potential transportation-related hot-
spots for all areas are addressed, especially in cases where it is not
possible to determine through the SIP process the potential for
localized PM10 violations in a given nonattainment or
maintenance area. EPA will consider in the final rule the potential
existence of PM10 hot-spots for transportation projects, and
whether explicit hot-spot reviews will be needed to meet Clean Air Act
requirements. Option A would require state and local resources be used
for all FHWA/FTA non-exempt projects in PM10 areas, although
the existing conformity rule and today's proposal streamlines hot-spot
analyses for projects that do not require quantitative analyses.
EPA also proposed Option B to require quantitative PM10
hot-spot analyses only at types of project locations identified as a
localized air quality concern in a given PM10 SIP. When the
SIP identifies such locations, a quantitative hot-spot analysis would
be completed for affected projects. No qualitative analyses would be
required for projects in other types of locations, or in
PM10 areas where the SIP does not identify types of
locations as a localized PM10 air quality concern. Under
Option B, EPA is proposing quantitative hot-spot analyses only for
projects at locations identified in the SIP as a localized concern,
since EPA believes that if a SIP identifies such a project location,
then a more thorough examination of the localized impacts of projects
at such locations is necessary to ensure that the SIP's purpose and
Clean Air Act conformity requirements are met.
As indicated in the November 2003 proposal, Option B is consistent
with the purpose of conformity, which is to ensure that federally
funded or approved transportation projects are consistent with the SIP
in a given nonattainment or maintenance area. See Section III.B. for
more information regarding similar rationale for PM2.5.
However, it is unclear how Option B would be implemented in current
PM10 nonattainment and maintenance areas since most
PM10 areas may not have considered the potential for
PM10 hot-spots during the development of existing
PM10 SIPs. In such cases, should existing SIPs be revised to
consider potential PM10 hot-spots? Should states evaluate
the potential for PM10 hot-spots outside the SIP process?
How do the practical circumstances of Option B affect the other
proposed PM10 options? EPA requests comments on all of these
questions.
Like PM2.5 SIPs, EPA is also considering whether
PM10 SIPs can be developed so potential transportation-
related hot-spot locations are defined for each PM10
nonattainment and maintenance area. EPA is requesting comment on
whether such cases could occur in PM10 areas, and whether
other proposed options would be more appropriate in such cases after a
PM10 SIP is submitted. EPA also requests comment on how the
proposed options should be implemented in cases where the latest
information available on the potential for PM10 hot-spots is
not reflected in the PM10 SIP. See Section III.B.3. of
today's proposal for further information.
EPA has committed to issue SIP guidance under this option if it is
finalized. EPA requests further comment on whether state and local air
quality agencies will have the necessary local information and
resources to specify in PM10 SIPs which project locations
are a potential PM10 hot-spot concern, in order to support
Option B and provide flexibility in the conformity process.
State and local agencies may identify types of locations in each
PM10 SIP that may increase or decrease the kinds of projects
requiring quantitative hot-spot analyses, as compared to current
conformity requirements. EPA anticipates that this option would likely
result in fewer total projects having some type of PM10 hot-
spot review as compared to the current conformity rule's requirements,
since not all PM10 areas may have future PM10
SIPs that identify hot-spots as a concern.
Finally, EPA is again proposing options for not requiring any
explicit PM10 hot-spot analysis for any project after
PM10 SIP submission (Option C), for reasons cited above and
in the November 2003 proposal.
4. Specific Analysis Requirements and Other Requirements
EPA continues to believe it has discretion to define what level of
PM10 hot-spot analysis would be required for proposed
options that involve such analyses, as described in Section III. of
today's proposal. EPA believes that applying the current conformity
rule's approach would streamline hot-spot reviews and utilize state and
local resources in an efficient and reasonable manner while still
satisfying Clean Air Act requirements.
Finally, EPA has proposed to add a new criterion for when
quantitative PM10 hot-spot analyses are completed after a
PM10 SIP is submitted for Option A. As stated in Section
III.B., EPA believes that if Option A is finalized for PM10
hot-spot requirements, quantitative analyses should also be done if the
PM10 SIP identifies certain types of locations as a
PM10 hot-spot concern. Since the primary intent of the Clean
Air Act is to ensure consistency between transportation decisions and
SIP air quality objectives, it is appropriate to require more intensive
hot-spot reviews in cases where the SIP specifically identifies a type
of transportation project location as having the potential to increase
local emissions and worsen air quality. EPA notes that this minor
proposal would be consistent with a similar criterion in Sec.
93.123(a)(1)(i) of the existing rule's requirements for quantitative CO
hot-spot analyses.
EPA is also proposing to retain the existing conformity rule's
general provisions for conducting PM10 hot-spot analyses for
those options that would apply the existing rule's requirements.
Examples would include related provisions in Sec. Sec. 93.101, 93.123,
and 93.125 of the conformity rule.
C. Request for PM10 Hot-Spot Information
EPA again invites commenters to submit studies or data regarding
PM10 hot-spots during the comment period for this
supplemental proposal. All information submitted for the November 2003
proposal and today's action will be considered when EPA develops the
final
[[Page 72153]]
rule that addresses PM10 hot-spot requirements.
V. Minor Change for Compliance With PM2.5 SIP Control
Measures
Today EPA is proposing a small change to the footnote at the bottom
of Table 2 in Sec. 93.126. Section 93.126 is titled, ``Exempt
projects'' and Table 2 lists these projects under several different
headings. Projects listed in the table are exempt from the requirement
to determine conformity, and may proceed even in the absence of a
conformity transportation plan and TIP.
Today's proposed change would add ``and PM2.5'' after
``PM10'' in the footnote at the bottom of Table 2.
Currently, the footnote reads, ``Note: In PM10 nonattainment
or maintenance areas, such projects are exempt only if they are in
compliance with control measures in the applicable implementation
plan.'' However, PM2.5 areas also need to be included in
this note to make Sec. 93.126 consistent with Sec. 93.117. In the
July 1, 2004, final rule, EPA updated Sec. 93.117, which discusses
compliance with control measures in PM areas, to include
PM2.5 as well as PM10. EPA should have updated
the footnote in Sec. 93.126 in the July 1, 2004 rule; we are proposing
to correct this oversight in today's action. With this change, projects
on the exempt list in Sec. 93.126 would be exempt in a
PM2.5 area only if they are in compliance with control
measures in the applicable SIP.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735; October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review and the requirements of the Executive
Order. The Order defines significant ``regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or otherwise adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this supplemental proposal is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to review by the Office of
Management and Budget (OMB).
B. Paperwork Reduction Act
The information collection requirements for this supplemental
proposal have been submitted for approval to OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and as ICR 2130.02. The
information collection requirements are not enforceable until OMB
approves them.
Transportation conformity determinations are required under Clean
Air Act section 176(c) (42 U.S.C. 7506(c)) to ensure that federally
supported highway and transit project activities are consistent with
(``conform to'') the purpose of the SIP. Conformity to the purpose of
the SIP means that transportation activities will not cause or
contribute to new air quality violations, worsen existing violations,
or delay timely attainment of the relevant air quality standards.
Transportation conformity applies under EPA's conformity regulations at
40 CFR parts 51.390 and 93 to areas that are designated nonattainment
and those redesignated to attainment after 1990 (``maintenance areas''
with SIPs developed under Clean Air Act section 175A) for
transportation-source criteria pollutants. The Clean Air Act gives EPA
the statutory authority to establish the criteria and procedures for
determining whether transportation activities conform to the SIP.
Amendments in today's supplemental proposal that are related to
conformity requirements in existing PM10 nonattainment and
maintenance areas do not impose any new information collection
requirements from EPA that require approval by OMB under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq. An agency may not conduct
or sponsor, and a person is not required to respond to a collection of
information, unless it displays a currently valid OMB control number.
The information collection requirements of EPA's existing
transportation conformity rule and any revisions in today's action for
existing PM10 areas are covered under the DOT information
collection request (ICR) entitled, ``Metropolitan and Statewide
Transportation Planning,'' with the OMB control number of 2132-0529.
EPA provided two opportunities for public comment on the
incremental burden estimates for transportation conformity
determinations under the new 8-hour ozone and PM2.5
standards. EPA received comments on both the initial burden estimates
provided in the November 5, 2003 proposal (68 FR 62720) and on the
revised estimates in the January 2004 ICR (69 FR 336). EPA responded to
all of these comments, including accounting for some PM2.5
hot-spot burden during the time period of the ICR in the final ICR that
was submitted to OMB for approval for all aspects of the conformity
rulemaking effort for the new air quality standards (ICR 2130.02). EPA
estimated burden in this ICR based on implementing the most intensive
options proposed.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When ICR 2130.02 is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, requires the Agency to
conduct a regulatory flexibility analysis of any significant impact a
rule will have 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 final 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
[[Page 72154]]
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 which 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
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this supplemental proposal itself 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 primary purpose
of this supplemental proposal is to determine requirements for hot-spot
analyses in PM2.5 and PM10 nonattainment and
maintenance areas. Clean Air Act section 176(c)(5) requires the
applicability of conformity to such areas as a matter of law one year
after nonattainment designations. Thus, although this rule explains how
these analyses should be conducted, it 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 supplemental proposal is not
subject to the requirements of sections 202 and 205 of the UMRA and EPA
has not prepared a statement with respect to budgetary impacts.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The Clean Air Act requires
conformity to apply in certain nonattainment and maintenance areas as a
matter of law, and this supplemental action merely proposes to
establish and revise 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.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 6, 2000) requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
Today's proposed amendments to the conformity rule do not
significantly or uniquely affect the communities of Indian tribal
governments, as the Clean Air Act requires transportation conformity to
apply in any area that is designated nonattainment or maintenance by
EPA. This supplemental proposal would incorporate into the conformity
rule provisions addressing newly designated PM 2.5
nonattainment and maintenance areas subject to conformity requirements
under the Act that would not have substantial direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175. Accordingly, the requirements of Executive Order
13175 are not applicable to this supplemental proposal.
G. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of
[[Page 72155]]
the planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This supplemental proposal is not subject to Executive Order 13045
because it is not economically significant within the meaning of
Executive Order 12866 and does not involve the consideration of
relative environmental health or safety risks on children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This supplemental proposal is not subject to Executive Order 13211,
``Action Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355; May 22, 2001) because it
will not have a significant adverse effect on the supply, distribution,
or use of energy. Further, we have determined that this supplemental
proposal is not likely to have any significant adverse effects on
energy supply.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 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., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This supplemental proposal does not involve technical standards.
Therefore, the use of voluntary consensus standards does not apply to
this supplemental proposal.
List of Subjects in 40 CFR Part 93
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Transportation, Volatile
organic compounds.
Dated: December 7, 2004.
Michael O. Leavitt,
Administrator.
For the reasons set out in the preamble, 40 CFR part 93 is proposed
to be amended as follows:
PART 93--[AMENDED]
1. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Sec. 93.101 [Amended]
2. Section 93.101 is amended in the first sentence of the
definition for ``Hot-spot analysis'' by removing ``CO and
PM10'' and adding in its place ``CO, PM10, and/or
PM2.5''.
3. Section 93.105(c)(1)(v) is revised to read as follows:
Sec. 93.105 Consultation.
* * * * *
(c) * * *
(1) * * *
(v) Identifying, as required by Sec. 93.123(b), projects located
at sites in PM10 and PM2.5 nonattainment areas
which have vehicle and roadway emission and dispersion characteristics
which are essentially identical to those at sites which have violations
verified by monitoring, and therefore require quantitative
PM10 and/or PM2.5 hot-spot analysis;
* * * * *
4. Section 93.109 is amended as follows:
a. In Table 1 of paragraph (b), revising both entries for ``Sec.
93.116'';
b. By redesignating paragraphs (i)(1) and (2) as paragraphs (i)(2)
and (3) and adding new paragraph (i)(1);
c. In paragraph (k) by removing ``CO and PM10'' and
adding in its place ``CO, PM10, and PM2.5''; and
d. In paragraph (l)(1) by removing ``(``Localized CO and
PM10 violations (hot spots)'')'' and adding in its place
``(``Localized CO, PM10, and PM2.5 violations
(hot-spots)'')''.
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
* * * * *
(b) * * *
Table 1.--Conformity Criteria
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * *
Sec. 93.116............................. CO, PM10, and PM2.5 hot
spots
* * * * *
Sec. 93.116............................. CO, PM 10, and PM 2.5 hot
spots
* * * * *
------------------------------------------------------------------------
* * * * *
(i) * * *
(1) FHWA/FTA projects in PM2.5 nonattainment or
maintenance areas must satisfy the appropriate hot-spot test required
by Sec. 93.116(a).
* * * * *
5. In Sec. 93.116 the section heading and paragraph (a) are revised
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 or increase the frequency or severity of
any existing CO, PM10, and/or PM2.5 violations in
CO, PM10, and PM2.5 nonattainment and maintenance
areas. This criterion is satisfied if it is demonstrated that during
the time frame of the transportation plan (or regional emissions
analysis) 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. 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.
* * * * *
6. Section 93.123 is amended as follows:
a. Revising the section heading;
b. Revising the first sentence of paragraph (a)(1) introductory
text;
c. Amending paragraph (b) by either:
Under Option A
i. Revising paragraph (b)(1)(iii);
ii. Adding new paragraph (b)(1)(iv); and
iii. Revising paragraph (b)(3); or
Under Option B
i. Revising paragraph (b)(1) and (2); and
ii. Removing paragraph (b)(3) and redesignating paragraph (b)(4) as
(b)(3);
d. Amending paragraph (c)(4) by removing ``PM10 or CO''
in the first sentence and adding in its place ``CO, PM10, or
PM2.5''; and e. Amending paragraph (c)(5) by removing ``CO
and PM10'' in the first sentence and adding in its place
``CO, PM10, and PM2.5''.
Sec. 93.123 Procedures for determining localized CO, PM10, and PM2.5
concentrations (hot-spot analysis).
(a) CO hot-spot analysis. (1) The demonstrations required by Sec.
93.116 (``Localized CO, PM10, and PM2.5 violations'') must
be based on quantitative analysis using the applicable air quality
models, data bases, and other requirements specified
[[Page 72156]]
in 40 CFR part 51, Appendix W (Guideline on Air Quality Models).* * *
* * * * *
Option A for paragraph (b):
(b) PM10 and PM2.5 hot-spot analyses. (1) * *
*
(iii) New or expanded bus and rail terminals and transfer points
which significantly increase the number of diesel vehicles congregating
at a single location;
(iv) Projects in or affecting locations, areas, or categories of
sites which are identified in the PM10 or PM2.5
applicable implementation plan or implementation plan submission, as
appropriate, as sites of violation or possible violation.
* * * * *
(3) The identification of the sites described in paragraphs
(b)(1)(i), (ii), (iii), and (iv) of this section, and other cases where
quantitative methods are appropriate, shall be determined through the
interagency consultation process required in Sec. 93.105. DOT, in
consultation with EPA, may choose to make a categorical conformity
determination on bus and rail terminals or transfer points based on
appropriate modeling of various terminal sizes, configurations, and
activity levels. DOT, in consultation with EPA, may also choose to make
a categorical conformity determination on roadways and intersection
based on appropriate modeling of various configurations and activity
levels.
* * * * *
Option B for paragraph (b):
(b) PM10 and PM2.5 hot-spot analyses. (1) The
hot-spot demonstration required by Sec. 93.116 must be based on
quantitative analysis methods for projects in or affecting locations,
areas, or categories of sites which are identified in the
PM10 or PM2.5 applicable implementation plan or
implementation plan submission, as appropriate, as sites of violation
or possible violation.
(2) The identification of the sites described in paragraph (b)(1)
of this section shall be determined through the interagency
consultation process required in Sec. 93.105. DOT, in consultation
with EPA, may choose to make a categorical conformity determination on
bus and rail terminals or transfer points based on appropriate modeling
of various terminal sizes, configurations, and activity levels. DOT, in
consultation with EPA, may also choose to make a categorical conformity
determination on roadways and intersection based on appropriate
modeling of various configurations and activity levels.
* * * * *
Sec. 93.125 [Amended]
7. Section 93.125(a) is amended by removing ``PM10 or
CO'' in the first sentence and adding in its place ``CO,
PM10, or PM2.5''.
Sec. 93.126 [Amended]
8. Section 93.126 is amended in footnote 1 by removing
``PM10'' and adding in its place ``PM10 and
PM2.5''.
Sec. 93.127 [Amended]
9. Section 93.127 is amended by removing ``CO or PM10''
and adding in its place ``CO, PM10, or PM2.5''.
[FR Doc. 04-27171 Filed 12-10-04; 8:45 am]
BILLING CODE 6560-50-P