[Federal Register Volume 74, Number 93 (Friday, May 15, 2009)]
[Proposed Rules]
[Pages 23024-23043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11184]
[[Page 23023]]
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Part II
Environmental Protection Agency
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40 CFR Part 93
Transportation Conformity Rule PM2.5 and PM10
Amendments; Proposed Rule
Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed
Rules
[[Page 23024]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[EPA-HQ-OAR-2008-0540; FRL-8904-1]
RIN 2060-AP29
Transportation Conformity Rule PM2.5 and
PM10 Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing amendments to the transportation conformity
rule that primarily affect conformity's implementation in
PM2.5 and PM10 nonattainment and maintenance
areas. EPA is proposing to update the transportation conformity
regulation in light of the October 17, 2006 final rule that
strengthened the 24-hour PM2.5 air quality standard and
revoked the annual PM10 standard. In addition, EPA is
proposing to clarify the regulations concerning hot-spot analyses to
address a remand from the Court of Appeals for the District of Columbia
Circuit (Environmental Defense v. EPA, 509 F.3d 553 (DC Cir. 2007)).
This portion of the proposal applies to PM2.5 and
PM10 nonattainment and maintenance areas as well as carbon
monoxide nonattainment and maintenance areas.
The Clean Air Act requires federally supported transportation
plans, transportation improvement programs, and projects to be
consistent with (``conform to'') the purpose of the state air quality
implementation plan. DOT is EPA's federal partner in implementing the
transportation conformity regulation. EPA has consulted with DOT, and
they concur with this proposed rule.
DATES: Written comments on this proposal must be received on or before
June 15, 2009, unless a public hearing is requested by May 26, 2009. If
a public hearing is requested by a commenter, it will be held June 4,
2009 at the U.S. Environmental Protection Agency, 2000 Traverwood
Drive, Ann Arbor, Michigan. If a hearing is requested, written comments
must be received by June 29, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0540, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (202) 566-9744.
Mail: Air Docket, Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460,
Attention Docket ID No. EPA-HQ-OAR-2008-0540. Please include a total of
two copies.
Hand Delivery: Air Docket, Environmental Protection
Agency, Mailcode: EPA West Building, EPA Docket Center (Room 3334),
1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No.
EPA-HQ-OAR-2008-0540. Please include two copies. 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. EPA-HQ-OAR-
2008-0540. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, 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 www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
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 www.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 the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air and Radiation Docket,
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744 and the telephone number for the
Air and Radiation Docket is (202) 566-1742.
Public Hearing: If a public hearing is requested, it will be held
at the U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann
Arbor, Michigan, on June 4, 2009.
FOR FURTHER INFORMATION CONTACT: Laura Berry, State Measures and
Conformity Group, Transportation and Regional Programs Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105, e-mail address: [email protected], telephone number: (734)
214-4858, fax number: (734) 214-4052; or Patty Klavon, State Measures
and Conformity Group, Transportation and Regional Programs Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105, e-mail address: [email protected], telephone number: (734)
214-4476, fax number: (734) 214-4052.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. General Information
II. Background on the Transportation Conformity Rule
III. General Overview of Transportation Conformity for the 2006
PM2.5 NAAQS
IV. Baseline Year for Certain 2006 PM2.5 Nonattainment
Areas
V. Regional Conformity Tests in 2006 PM2.5 Nonattainment
Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997
PM2.5 NAAQS
VI. Regional Conformity Tests in 2006 PM2.5 Areas That
Have 1997 PM2.5 SIP Budgets
VII. Other Conformity Requirements for 2006 PM2.5 Areas
VIII. Transportation Conformity in PM10 Nonattainment and
Maintenance Areas and the Revocation of the Annual PM10
NAAQS
IX. Response to the December 2007 Hot-Spot Court Decision
X. Statutory and Executive Order Reviews
I. General Information
A. Does this Action Apply to Me?
Entities potentially regulated by the conformity rule are those
that adopt,
[[Page 23025]]
approve, or fund transportation plans, programs, or projects under
title 23 U.S.C. or title 49 U.S.C. Regulated categories and entities
affected by today's action include:
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Category Examples of regulated entities
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Local Local transportation and air
government............................. quality agencies, including
metropolitan planning
organizations (MPOs).
State State transportation and air
government............................. quality agencies.
Federal Department of Transportation
government............................. (Federal Highway
Administration (FHWA) and
Federal Transit Administration
(FTA)).
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
proposal. This table lists the types of entities of which EPA is aware
that potentially could be regulated by the transportation conformity
rule. Other types of entities not listed in the table could also be
regulated. To determine whether your organization is regulated by this
action, you should carefully examine the applicability requirements in
40 CFR 93.102. If you have questions regarding the applicability of
this action to a particular entity, consult the persons listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI
Do not submit this information to EPA through www.regulations.gov
or e-mail. Clearly mark the part or all of the information that you
claim to be CBI. For CBI information in a disk or CD-ROM that you mail
to EPA, 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 claimed as CBI. In addition to one complete version of the comment
that includes 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. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
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 be required to pay a reasonable fee for copying docket
materials.
C. How Do I Get Copies of This Proposed Rule and Other Documents?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OAR-2008-0540. You can get a paper copy of this
Federal Register document, as well as the documents specifically
referenced in this action, any public comments received, and other
information related to this action at the official public docket. See
the ADDRESSES section for its location.
2. Electronic Access
You may access this Federal Register document electronically
through EPA's Transportation Conformity Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm. You may also access this
document electronically under the Federal Register listings at http://www.epa.gov/fedrgstr/.
An electronic version of the official public docket is available
through www.regulations.gov. You may use www.regulations.gov 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 electronic
public docket. Information claimed as CBI and other information for
which disclosure is restricted by statute is not available for public
viewing in the electronic public docket. EPA's policy is that
copyrighted material will not be placed in the 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 the electronic public docket. When a document is
selected from the index list in EPA Dockets, the system will identify
whether the document is available for viewing in the electronic public
docket. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in the
ADDRESSES section. EPA intends to provide electronic access in the
future to all of the publicly available docket materials through the
electronic public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to the electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in the electronic public docket. Where practical,
physical objects will be photographed, and the photograph will be
placed in the electronic public docket along with a brief description
written by the docket staff.
For additional information about the electronic public docket,
visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
II. Background on the Transportation Conformity Rule
A. What Is Transportation Conformity?
Transportation conformity is required under Clean Air Act section
176(c) (42 U.S.C. 7506(c)) to ensure that transportation plans,
transportation improvement programs (TIPs) and federally supported
highway and transit project activities are consistent with (``conform
to'') the purpose of the state air quality implementation plan (SIP).
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the relevant national ambient
air quality standards (NAAQS). Transportation conformity applies to
areas that are designated nonattainment, and those areas redesignated
to attainment after 1990 (``maintenance areas'') for transportation-
related criteria
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pollutants: Carbon monoxide (CO), ozone, nitrogen dioxide
(NO2) and particulate matter (PM2.5, and
PM10).\1\
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\1\ 40 CFR 93.102(b)(1) defines PM2.5 and
PM10 as particles with an aerodynamic diameter less than
or equal to a nominal 2.5 and 10 micrometers, respectively.
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EPA's transportation conformity rule (40 CFR Parts 51 and 93)
establishes the criteria and procedures for determining whether
transportation activities conform to the SIP. EPA first promulgated the
transportation conformity rule on November 24, 1993 (58 FR 62188), and
subsequently published several other amendments. DOT is EPA's federal
partner in implementing the transportation conformity regulation. EPA
has consulted with DOT, which concurs with this proposed rule.
A few recent amendments to the transportation conformity rule are
useful background for today's proposal. In a final rule EPA published
on July 1, 2004 (69 FR 40004), EPA provided conformity procedures for
state and local agencies under the 1997 8-hour ozone and
PM2.5 national ambient air quality standards (NAAQS), among
other things. EPA's nonattainment area designations for the 1997 8-hour
ozone and PM2.5 NAAQS were effective in June 2004 and April
2005 respectively. The July 2004 update provided guidance and rules for
implementing conformity for these NAAQS. In addition, on May 6, 2005,
EPA promulgated a final rule entitled, ``Transportation Conformity Rule
Amendments for the New PM2.5 National Ambient Air Quality
Standard: PM2.5 Precursors'' (70 FR 24280). This final rule
specified transportation-related PM2.5 precursors and when
they must be considered in transportation conformity determinations in
PM2.5 nonattainment and maintenance areas.
On March 10, 2006, EPA promulgated a final rule (71 FR 12468)
entitled, ``PM2.5 and PM10 Hot-Spot Analyses in
Project-Level Transportation Conformity Determinations for the New
PM2.5 and Existing PM10 National Ambient Air
Quality Standards.'' This rule established the criteria and procedures
for determining which transportation projects must be analyzed for
local air quality impacts--or ``hot-spots''--in PM2.5 and
PM10 nonattainment and maintenance areas. See Section IX. of
today's preamble for more information regarding the March 2006 rule;
see EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm for further information about any of EPA's transportation
conformity rulemakings.\2\
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\2\ At this Web site, click on ``Regulations'' to find all of
EPA's proposed and final rules as well the current transportation
conformity regulations.
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B. Why Are We Issuing This Proposed Rule?
Today's proposed rule is necessary because EPA promulgated a final
rule on October 17, 2006 that changed the PM2.5 and
PM10 NAAQS, as described further below. These revisions to
the PM2.5 and PM10 NAAQS necessitate an update to
the transportation conformity rule to provide guidance and rules for
implementing conformity for these NAAQS. Sections III. through VIII.
describe the proposed changes to the transportation conformity rule
that are a result of the October 2006 revisions to the PM2.5
and PM10 NAAQS.
Today's proposed rule is also necessary because of a court decision
regarding the March 2006 hot-spot rulemaking. Section IX. of this
preamble describes the issue, the court's decision, and EPA's proposed
response.
III. General Overview of Transportation Conformity for the 2006
PM2.5 NAAQS
A. Background on 2006 PM2.5 NAAQS Development
EPA issued a final rule on October 17, 2006 that strengthened the
24-hour PM2.5 NAAQS and revoked the annual PM10
NAAQS (71 FR 61144). In that final rule, EPA strengthened the 24-hour
PM2.5 NAAQS from the 1997 level of 65 micrograms per cubic
meter ([mu]g/m\3\) (average of 98th percentile values for three
consecutive years) to 35 [mu]g/m\3\, while the level of the annual
PM2.5 NAAQS remained unchanged at 15.0 [mu]g/m\3\ (average
of three consecutive annual average values). This final rule was
effective on December 18, 2006. EPA selected levels for the final NAAQS
after completing an extensive review of thousands of scientific studies
on the impact of fine and coarse particles on public health and
welfare. For additional information about the October 17, 2006
rulemaking, the final rule and EPA outreach materials can be found at:
http://www.epa.gov/air/particlepollution/actions.html.
The October 2006 rule establishing the 2006 PM2.5 NAAQS
did not revoke the 1997 annual or 24-hour PM2.5 NAAQS. See
Section D. below for details on how this proposal would interact with
conformity requirements for those areas designated nonattainment for
the 1997 PM2.5 NAAQS.
EPA signed the final rule designating areas for the 2006
PM2.5 NAAQS on December 22, 2008. Conformity for the 2006
PM2.5 NAAQS will apply one year after the effective date of
the nonattainment designations.\3\ The designations for the 2006
PM2.5 NAAQS are separate from and do not impact existing
designations for the 1997 PM2.5 NAAQS.
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\3\ The effective date for these nonattainment designations will
be included in the Federal Register publication of the final
designations rule.
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B. When Does Conformity Apply for the 2006 PM2.5 NAAQS?
Transportation conformity for the 2006 24-hour PM2.5
NAAQS (``2006 PM2.5 NAAQS'') does not apply until one year
after the effective date of nonattainment designations for this NAAQS.
Clean Air Act section 176(c)(6) and 40 CFR 93.102(d) provide a one-year
grace period from the effective date of designations before
transportation conformity applies in areas newly designated
nonattainment for a particular NAAQS.\4\
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\4\ EPA began the process of notifying state and local agencies,
via the EPA regional offices, of the timing of conformity under the
2006 PM2.5 NAAQS in its April 16, 2007 memorandum
entitled, ``Transportation Conformity and the Revised 24-hour
PM2.5 Standard,'' from Merrylin Zaw-Mon, Director,
Transportation and Regional Programs Division, EPA Office of
Transportation and Air Quality, to EPA Regional Air Directors,
Regions I-X.
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The following discussion provides more details on the application
of the one-year grace period in specific types of newly designated
nonattainment areas for the 2006 PM2.5 NAAQS in
metropolitan, donut and isolated rural areas. This information is
consistent with how conformity for new NAAQS has been implemented in
the past.
1. Metropolitan Areas
Metropolitan areas are urbanized areas that have a population
greater than 50,000 and a designated metropolitan planning organization
(MPO) responsible for transportation planning per 23 U.S.C. 134. The
one-year grace period means that, in general, within one year after the
effective date of the initial nonattainment designation for a given
pollutant and NAAQS, the area's MPO and DOT must make a conformity
determination with regard to that pollutant and NAAQS for the area's
transportation plan and TIP. The procedures for interagency
consultation process found in 40 CFR 93.105 or a state's approved
conformity SIP must be used in making conformity determinations for
transportation plans and TIPs. MPOs must continue to meet conformity
requirements for any other
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applicable NAAQS, including the 1997 PM2.5 NAAQS, if the
area is designated nonattainment or maintenance for such NAAQS as well.
The one-year grace period for conformity also applies to project-
level conformity determinations (including hot-spot analyses in certain
cases) in newly designated 2006 PM2.5 nonattainment areas.
At the end of the one-year grace period for conformity, requirements
for project-level conformity determinations must be met for the 2006
PM2.5 NAAQS before any new federal approvals for such
projects can occur. For non-exempt Federal Highway Administration
(FHWA) or Federal Transit Administration (FTA) projects, a conformity
determination is normally required before the National Environmental
Policy Act (NEPA) process is completed, since NEPA is typically the
first stage requiring approval in a federal project's development.
However, if the NEPA process was completed before conformity applies,
then areas that are newly designated as nonattainment may also be
required to demonstrate conformity for subsequent funding and approvals
for project phases (e.g., right-of-way acquisition, final design,
construction). Conformity would be needed for a subsequent project
phase if it occurs after the grace period has ended, and the project
has not yet been included in a conformity determination for the
relevant pollutant and NAAQS or met other applicable conformity
requirements.
Before the end of the one-year grace period, FHWA or FTA could
voluntarily choose to make a project-level conformity determination
that meets the conformity rule's requirements. The procedures for
interagency consultation found in 40 CFR 93.105 or a state's approved
conformity SIP must be used in making project-level conformity
determinations for the 2006 PM2.5 NAAQS. As described
further below in D. of this section, areas that are designated
nonattainment for both the 1997 PM2.5 NAAQS and the 2006
PM2.5 NAAQS will need to address all of these NAAQS in
conformity determinations.
If, at the conclusion of the one-year grace period, the MPO and DOT
have not made a transportation plan and TIP conformity determination
for the 2006 PM2.5 NAAQS, the area would be in a conformity
``lapse.'' During a conformity lapse, only certain projects can receive
additional federal funding or approvals to proceed (e.g., exempt
projects, project phases that were approved before the lapse). The
practical impact of a conformity lapse will vary on an area-by-area
basis. For additional information on projects that can proceed during a
conformity lapse, read the following guidance memoranda that address
the March 2, 1999 U.S. Court of Appeals decision that affected related
provisions of the conformity rule (Environmental Defense Fund v. EPA,
167 F.3d 641 (DC Cir. 1999): DOT's January 2, 2002 guidance, published
in the Federal Register on February 7, 2002 (67 FR 5882); DOT's May 20,
2003 and FTA's April 9, 2003 supplemental guidance documents; and,
EPA's May 14, 1999 guidance memorandum. EPA's current conformity rule
reflects all of these guidance documents (69 FR 40005-40006).
2. Donut Areas
For the purposes of transportation conformity, a ``donut'' area is
the geographic area outside a metropolitan planning area boundary, but
inside a designated nonattainment or maintenance area boundary that
includes an MPO (40 CFR 93.101). The conformity requirements for donut
areas, including the application of the one-year conformity grace
period, are generally the same as those for metropolitan areas. Within
one year of the effective date of an area's initial nonattainment
designation for the 2006 PM2.5 NAAQS, the existing and
planned transportation network for the donut portion of the area (as
well as for the metropolitan portion of the area) must demonstrate
conformity, or conformity of the metropolitan transportation plan and
TIP will lapse as described above, and the entire nonattainment area
will be unable to obtain additional project funding and approvals for
the duration of the lapse.
The interagency consultation group for each newly designated
nonattainment area that includes a donut portion should determine how
best to consider the donut area transportation system and new donut
area projects in the MPO's regional emissions analyses and
transportation plan and TIP conformity determinations. For more
discussion on how conformity determinations should be made for donut
areas, see the preamble to the July 1, 2004 conformity rule (69 FR
40013).
In nonattainment and maintenance areas with a donut portion,
adjacent MPOs must meet conformity requirements for the 2006
PM2.5 and other applicable NAAQS, including requirements for
any 1997 PM2.5 NAAQS for which the donut area is designated
nonattainment.
The one-year grace period for conformity also applies to project-
level conformity determinations in newly designated nonattainment areas
that include a donut portion, as described above for projects in
metropolitan areas.
3. Isolated Rural Areas
Isolated rural nonattainment and maintenance areas are areas that
do not contain or are not part of any metropolitan planning area as
designated by 23 U.S.C. 134 and 49 U.S.C. 5303 (40 CFR 93.101).
Isolated rural areas do not have metropolitan transportation plans or
TIPs required under 23 U.S.C. 134 and 49 U.S.C. 5303 and 5304 for any
portion of the area, and do not have projects that are part of the
emissions analysis of any MPO's transportation plan or TIP. Instead,
projects in such areas are included only in statewide transportation
improvement programs and statewide transportation plans, when
appropriate.
As in other newly designated nonattainment areas, the one-year
conformity grace period for the 2006 PM2.5 NAAQS will begin
on the effective date of an isolated rural area's initial nonattainment
designation. However, because these areas do not have federally
required metropolitan transportation plans and TIPs, they are not
subject to the frequency requirements for conformity determinations on
transportation plans and TIPs (40 CFR 93.104(b), (c), and (e)).
Instead, conformity determinations in isolated rural areas are required
only when a non-exempt FHWA/FTA project(s) needs funding or approval.
In fact, many isolated rural areas may not have a transportation
project in need of federal funding or approval for some time after the
one-year grace period has ended, and therefore, would not have to
demonstrate conformity before that time. Once the conformity grace
period has expired, a conformity determination would only be required
in such areas when a non-exempt FHWA/FTA project needs funding or
approval. For more information on the conformity requirements for
isolated rural areas, see 40 CFR 93.109(l); corresponding discussions
on how to demonstrate conformity in isolated rural areas can also be
found in the preambles to the November 24, 1993 transportation
conformity final rule (58 FR 62207) and the August 15, 1997 final rule
(62 FR 43785).
Please note that the current regulation's Sec. 93.109(l) would be
renamed as Sec. 93.109(n) under today's proposal, due to the other
proposed revisions and additions in this regulatory section. As we are
simply renumbering this provision, we are not seeking comment because
it is an administrative change. The basic
[[Page 23028]]
conformity requirements for isolated rural areas remain unchanged.
C. Proposed Definitions for PM2.5 NAAQS
EPA is proposing two new definitions to Sec. 93.101 of the
conformity rule to distinguish between the 1997 PM2.5 NAAQS
and the 2006 PM2.5 NAAQS. These definitions would help
implement certain conformity requirements in areas that have been
designated nonattainment for 1997 PM2.5 NAAQS and/or 2006
PM2.5 NAAQS. Some areas designated nonattainment for the
2006 PM2.5 NAAQS also are designated nonattainment for the
1997 PM2.5 NAAQS. In addition, some areas are designated for
only the 2006 PM2.5 NAAQS.
The proposed addition of these definitions is also similar to the
existing rule's definitions in 40 CFR 93.101 for the 1-hour ozone NAAQS
and 8-hour ozone NAAQS, and the proposed definitions are generally
consistent with how EPA is defining both kinds of PM2.5
areas for air quality planning purposes. EPA also notes that any
provision of the conformity rule that references only
``PM2.5'' and does not specify which NAAQS will continue to
apply to any area designated nonattainment for a PM2.5
NAAQS.
D. How Would This Proposal Interact With Existing Conformity
Requirements for the 1997 PM2.5 NAAQS?
Sections IV. through VI. of today's proposal describe proposed
conformity requirements for areas designated nonattainment for the 2006
PM2.5 NAAQS. EPA is not proposing any changes to the
existing transportation conformity requirements for areas designated
nonattainment for the 1997 PM2.5 NAAQS, since EPA's
nonattainment designations for the 2006 PM2.5 NAAQS will not
affect existing 1997 PM2.5 NAAQS nonattainment designations.
Nonattainment designations for the 1997 and 2006 PM2.5
NAAQS are different designations with separate SIP requirements,
different attainment dates, etc. As a result, Clean Air Act section
176(c)(5) requires conformity requirements to be met in both 1997 and
2006 PM2.5 nonattainment and maintenance areas, as
applicable.
Some areas designated nonattainment for the 2006 PM2.5
NAAQS have never been subject to PM2.5 conformity
requirements. Under today's proposal and Clean Air Act section
176(c)(5), these areas would be required to meet only 2006
PM2.5 conformity requirements, and not conformity
requirements for the 1997 PM2.5 NAAQS, because these areas
are not designated nonattainment for the 1997 PM2.5 NAAQS.
Other areas designated nonattainment for the 2006 PM2.5
NAAQS have been designated also, in whole or in part, for the 1997
PM2.5 NAAQS. These areas would continue to meet their
existing conformity requirements for the 1997 PM2.5 NAAQS as
well as any additional requirements for the 2006 PM2.5
NAAQS.
EPA notes that MPOs where both the 1997 and 2006 PM2.5
NAAQS apply would have to determine conformity for both NAAQS. MPOs
subject to both the 1997 and 2006 PM2.5 NAAQS will be able
to:
Use existing transportation models and data for regional
emissions analyses for both NAAQS, especially where nonattainment area
boundaries are the same;
Rely on analysis years for conformity determinations that
are the same for both NAAQS (e.g., analysis years for the last year of
the transportation plan, an intermediate year, etc.); and
Meet consultation and other conformity requirements
through the existing processes.
EPA is also proposing that before budgets for the 2006
PM2.5 NAAQS are available, conformity determinations for
some 2006 PM2.5 areas would be based on the same conformity
test (i.e., the budget test) that is being used for the 1997
PM2.5 NAAQS. As described in Section VI., EPA is proposing
that MPOs use any adequate or approved SIP budgets for the 1997
PM2.5 NAAQS for conformity determinations that are made
prior to SIP budgets for the 2006 PM2.5 NAAQS being
available.
Today's proposal does not impact project-level conformity
requirements for the 1997 PM2.5 NAAQS. For example, EPA is
not proposing any changes to the PM2.5 hot-spot analysis
requirements, and EPA and FHWA's existing guidance for such analyses
continues to be available.\5\ For the purposes of PM2.5
conformity, a hot-spot analysis must address the PM2.5 NAAQS
for which the area has been designated nonattainment.\6\ See Section
VII. for further information regarding EPA's proposal for project-level
conformity requirements for the 2006 PM2.5 NAAQS.
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\5\ ``Transportation Conformity Guidance for Qualitative Hot-
spot Analyses in PM2.5 and PM10 Nonattainment
and Maintenance Areas,'' EPA420-B-06-902, March 2006.
\6\ EPA notes that today's proposal does not address project
requirements for the National Environmental Policy Act or other
environmental programs.
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EPA will work with PM2.5 nonattainment areas as needed
to ensure that state and local agencies can meet conformity
requirements for both the applicable 1997 and 2006 PM2.5
NAAQS in a timely and efficient manner. EPA requests comment on whether
additional information or training will be necessary for conformity
implementation under the 2006 PM2.5 NAAQS. If your agency
submits comments, please be as specific as possible regarding what
types of situations and issues may need to be addressed in future
implementation of PM2.5 conformity requirements.
IV. Baseline Year for Certain 2006 PM2.5 Nonattainment Areas
A. Background
Conformity determinations for transportation plans, TIPs, and
projects not from a conforming transportation plan and TIP must include
a regional emissions analysis that fulfills Clean Air Act provisions.
The conformity rule provides for several different regional emissions
analysis tests that satisfy Clean Air Act requirements in different
situations. Once a SIP with a motor vehicle emissions budget
(``budget'') is submitted for an air quality NAAQS and EPA finds the
budget adequate for conformity purposes or approves it as part of the
SIP, conformity is demonstrated using the budget test for that
pollutant or precursor, as described in 40 CFR 93.118.
Before an adequate or approved SIP budget is available, conformity
of the transportation plan, TIP, or project not from a conforming
transportation plan and TIP is demonstrated with the interim emissions
test(s), as described in 40 CFR 93.119. The interim emissions tests
include different forms of the ``build/no-build'' test and ``baseline
year'' test. In general, for the baseline year test, emissions from the
planned transportation system or project not from a conforming
transportation plan and TIP are compared to emissions that occurred in
the baseline year (please refer to Sec. 93.119 for the more detailed,
specific requirements). This part of today's proposal would update
Sec. 93.119 of the current conformity rule for the 2006
PM2.5 NAAQS. The baseline year for nonattainment areas under
the 1997 PM2.5 NAAQS is 2002 (40 CFR 93.119(e)(2)). Sections
V. and VI. of this proposal go into further detail about how any
baseline year option would be applied in 2006 PM2.5 areas.
[[Page 23029]]
B. Proposal
EPA is proposing that a year more recent than 2002 be used as the
baseline year for conformity purposes in 2006 PM2.5
nonattainment areas. EPA requests comment on the following proposed
options:
Option 1: Define the baseline year as 2008;
Option 2: Rather than naming a specific year, define the
baseline year for conformity purposes as whatever year would be used to
meet other air quality planning requirements, such as SIP planning and
inventory requirements;
Option 3: Define the baseline year as 2005.
Option 2 would establish the baseline year for conformity purposes
for the 2006 PM2.5 nonattainment areas as well as any areas
designated for a PM2.5 NAAQS that EPA promulgates in the
future. Therefore, if this option were finalized, the transportation
conformity rule would not have to be amended in the future to establish
a new baseline year for conformity if additional NAAQS changes are made
in the future.
There are different formulations of regulatory text that EPA could
use to define the baseline year under Option 2. For example, EPA could
define the baseline year for any area designated for a PM2.5
NAAQS promulgated after 1997 as the most recent year for which EPA's
Air Emissions Reporting Requirements (AERR) (40 CFR part 51) requires
submission of on-road mobile source emissions inventories, as of the
effective date of EPA's nonattainment designations for such NAAQS.
Another possibility would be to simply define the conformity baseline
year as the year that will be used as the baseline for SIP development
for given NAAQS, which EPA could specify in a guidance memorandum
issued in the future.
Option 2 would likely result in the year 2008 as the baseline year
in 2006 PM2.5 areas because this is the year anticipated to
be the baseline year for SIP planning and inventory requirements. The
year 2008 would also be the most recent year of on-road mobile source
emissions inventories available for SIP planning purposes when SIPs for
the 2006 PM2.5 NAAQS are likely to be due.
EPA is proposing rule language for Options 1 and 2 in Sec.
93.119(e)(2)(B), although all three of these options could be
considered for the final rule. EPA is therefore soliciting comment on
all three options. While today's action proposes no changes to the 2002
baseline year for areas designated nonattainment for the 1997
PM2.5 NAAQS, we propose to reorganize Sec. 93.119(e)(2) to
clarify that 2002 applies only to areas designated nonattainment for
the 1997 PM2.5 NAAQS.
The existing interagency consultation process (40 CFR
93.105(c)(1)(i)) would be used to determine the latest assumptions and
models for generating baseline year motor vehicle emissions to complete
any baseline year test. The baseline year emissions level that is used
in conformity would be required to be based on the latest planning
assumptions available, the latest emissions model, and appropriate
methods for estimating travel and speeds as required by 40 CFR 93.110,
93.111, and 93.122 of the current conformity rule. The baseline year
test can be completed with a submitted or draft baseline year motor
vehicle emissions SIP inventory, if the SIP reflects the latest
information and models. If such a SIP baseline is not available, an
MPO, in consultation with state and local air agencies, could also
develop baseline year emissions as part of the conformity analysis.
C. Rationale
EPA believes that a more recent year than 2002 is appropriate for
meeting Clean Air Act conformity requirements for 2006 PM2.5
nonattainment areas. EPA also believes that using a more recent year
than 2002 is required to meet these statutory requirements, and is more
environmentally protective and relevant for the 2006 PM2.5
NAAQS.
Coordinating the conformity baseline year with the year used for
SIP planning and an emission inventory year was EPA's rationale for
using 2002 as the baseline year for conformity tests in existing
PM2.5 nonattainment areas for the 1997 NAAQS. As described
in the July 1, 2004 final rule (69 FR 40015), EPA selected 2002 as the
conformity baseline year because 2002 was identified as the anticipated
emission inventory base year for the SIP planning process under the
1997 PM2.5 NAAQS.\7\ EPA continues to believe that
coordinating the conformity's baseline with other data collection and
inventory requirements would allow state and local governments to use
their resources more efficiently. However, for the 2006
PM2.5 nonattainment areas, the year 2002 does not have the
same relevance and does not provide the same level of environmental
protection as a more recent year.
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\7\ Also, the AERR requires submission of point, nonpoint, and
mobile source emissions inventories every three years, and 2002 was
one of those required years for such updates.
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In choosing the baseline year for the 2006 PM2.5 NAAQS,
EPA also believes it could be important to coordinate the conformity
rule's baseline year with the year ultimately used as a baseline for
SIP planning for the 2006 PM2.5 NAAQS as well as other
emissions inventory requirements. EPA has proposed 2008 as a baseline
year for conformity purposes (Option 1) and believes such an option
would be appropriate to meet Clean Air Act conformity requirements. EPA
selected 2002 for the baseline year tests in 1997 8-hour ozone and
PM2.5 nonattainment areas in the July 1, 2004 final rule (69
FR 40015) not only because EPA believed that 2002 was the most
appropriate measure for meeting Clean Air Act conformity requirements
not to worsen air quality or delay timely attainment or achievement of
any required interim milestone prior to SIP budgets being established,
but also because EPA believed it was important to have transportation
and air quality planning coordinated. Having consistent baseline years
for SIPs, conformity determinations and other emissions inventory
requirements helps to achieve this goal.
Alternatively, EPA has also proposed 2005 as a baseline year for
conformity purposes (Option 3) because this year is also relevant for
2006 PM2.5 areas. The year 2005 is more recent than 2002,
and 2005 data would also be available for other inventory purposes such
as the AERR. In addition, most 2006 PM2.5 areas will be
designated nonattainment based in part on air quality monitoring data
from the year 2005. EPA is required to make nonattainment designations
for PM2.5 based on the most recent three years of air
quality data, i.e., 2005-2007 data for most 2006 PM2.5
areas. For this reason, 2005 is being proposed as a baseline year for
conformity purposes.
Whereas Options 1 and 3 would apply specifically to the 2006
PM2.5 NAAQS, EPA proposes in Option 2 to generalize the
language for the baseline year for areas designated under any
PM2.5 NAAQS established after 1997. Given that the Clean Air
Act requires EPA to review the NAAQS for possible revision once every
five years, adopting Option 2 would standardize the process for
selecting an appropriate baseline year to use in meeting conformity
requirements before SIP budgets have been established for any future
PM2.5 NAAQS. This would enable EPA, MPOs and other
transportation planners to identify the appropriate baseline year for
conformity purposes without EPA having to amend the conformity
regulation first.
In other words, Option 2 would allow EPA to identify an appropriate
baseline
[[Page 23030]]
year in an expeditious manner for transportation conformity purposes.
As a result, MPOs and other transportation planners would understand
conformity requirements for future PM2.5 NAAQS revisions
more quickly, which may, in turn, also allow more time to prepare and
complete necessary conformity determinations.
EPA believes that Option 2 would result in an appropriate baseline
year for a given PM2.5 NAAQS. Since Option 2 is based on the
same criteria that have been used for proposed Option 1 and for
establishing baseline years for other NAAQS (58 FR 62191, 69 FR 40014),
EPA believes this option would also result in an environmentally
protective and legal baseline year for conformity under the 2006
PM2.5 NAAQS and any future PM2.5 NAAQS revisions.
Finalizing Option 2 would most likely result in a baseline year of 2008
for the 2006 PM2.5 NAAQS.
If the regulatory text for this option referred to the AERR
requirement, the option would ensure that areas designated
nonattainment for the 2006 PM2.5 NAAQS, as well as areas
designated for revised PM2.5 NAAQS in the future, would use
the year for which the most recent emissions inventories are required
to be submitted as of the effective date of EPA's final designations.
The regulatory text for Option 2 could also be written to refer to the
year that will be used as the baseline year for SIP development for a
given PM2.5 NAAQS.
In either case, under Option 2 EPA would most likely clarify what
year is to be used for the baseline year test by issuing a memorandum.
If this option were finalized, EPA would issue such a memorandum prior
to conformity requirements applying.
EPA requests comment on all of these options. Though commenters can
simply express a preference, providing rationale for a preference is
especially useful to EPA. In particular, EPA seeks comment on whether
state and local agencies believe that establishing the baseline year
using Option 2 presents any implementation concerns, and if so, how EPA
could address such concerns.
V. Regional Conformity Tests in 2006 PM2.5 Nonattainment
Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997
PM2.5 NAAQS
This part of the proposal discusses regional conformity tests for
nonattainment areas for the 2006 PM2.5 NAAQS that do not
have adequate or approved PM2.5 SIP budgets for the 1997
NAAQS. This proposal would apply to 2006 PM2.5 nonattainment
areas that were not covered by the 1997 PM2.5 NAAQS, as well
as nonattainment areas for both PM2.5 NAAQS that do not have
an adequate or approved 1997 PM2.5 SIP budget. EPA would
address conformity tests for these areas under proposed section
93.109(j) of the conformity rule. See Section VI. of today's proposal
for conformity tests in 2006 PM2.5 areas that have adequate
or approved SIP budgets for the 1997 PM2.5 NAAQS.
Note that this section of the preamble proposes new requirements
for conformity only under the 2006 PM2.5 NAAQS. This
proposal does not address the requirements for demonstrating conformity
for the 1997 PM2.5 NAAQS.
A. Conformity After 2006 PM2.5 SIP Budgets Are Adequate or Approved
1. Proposal
Once a SIP for the 2006 PM2.5 NAAQS is submitted with a
budget(s) that EPA has found adequate or approved, EPA proposes that
the budget test must be used in accordance with 40 CFR 93.118 to
complete all applicable regional emissions analyses for the 2006
PM2.5 NAAQS. Conformity would be demonstrated if the
transportation system emissions reflecting the proposed transportation
plan, TIP, or project not from a conforming transportation plan and TIP
were less than or equal to the motor vehicle emissions budget level
defined by the SIP as being consistent with Clean Air Act requirements.
The first SIP for the 2006 PM2.5 NAAQS could be a
control strategy SIP required by the Clean Air Act (i.e., reasonable
further progress SIP or attainment demonstration) or a maintenance
plan. States could also voluntarily choose to submit an ``early
progress SIP'' prior to required SIP submissions. Early progress SIPs
must demonstrate a significant level of future emissions reductions
from a previous year's emissions. For example, an area could submit an
early progress SIP for the 2006 PM2.5 NAAQS that
demonstrates a specific percentage of emissions reductions (e.g., 5-
10%) in an area's attainment year from the baseline year emissions
(e.g., 2008). An early progress SIP would include emissions inventories
for all emissions sources for the entire 2006 PM2.5
nonattainment area and would meet applicable requirements for
reasonable further progress SIPs. EPA has discussed this option in past
conformity rule preambles, e.g., the July 1, 2004 transportation
conformity final rule (69 FR 40028), and many states have established
early progress SIP budgets for conformity purposes.
Whatever the case, the interim emissions test(s) would no longer be
used for direct PM2.5 or a relevant precursor once an
adequate or approved SIP budget for the 2006 PM2.5 NAAQS is
established for the pollutant or precursor. EPA encourages states to
develop their future 2006 PM2.5 SIPs in consultation with
MPOs, state and local transportation agencies, and local air quality
agencies to facilitate future conformity determinations. Once EPA's
nonattainment designations are finalized, EPA Regions would be
available to assist states in the development of early progress SIPs
for the 2006 PM2.5 NAAQS, if desired.
2. Rationale
EPA believes that this proposal meets statutory requirements for
conformity determinations that occur after SIP budgets are available
for the 2006 PM2.5 NAAQS. Section 176(c) of the Clean Air
Act states that transportation activities must ``conform to an
implementation plan * * * '' (SIP) and states further that conformity
to an implementation plan means conformity to the SIP's purpose. Once
EPA finds a budget for the 2006 PM2.5 NAAQS adequate or
approves the SIP that includes it, the budget test provides the best
means to determine whether transportation plans and TIPs meet the
statutory obligations in Clean Air Act sections 176(c)(1)(A) and (B)
for that NAAQS. That is, the budget test best shows that transportation
plans and TIPs conform to the SIP's purpose of eliminating or reducing
the severity and number of violations of the NAAQS and achieving
expeditious attainment of the NAAQS (176(c)(1)(A)); and best confirms
the requirement that transportation plans and TIPs not cause or
contribute to any new violation, worsen an existing violation, or delay
timely attainment or any required interim milestone (176(c)(1)(B)). The
budget test also best demonstrates that transportation plans and TIPs
comply with the statutory obligation to be consistent with the
emissions estimates in SIPs, according to Clean Air Act section
176(c)(2)(A). By being consistent with the on-road mobile source
emissions levels in the SIP, transportation planners can ensure that
their activities remain consistent with state and local air quality
goals to protect public health.
B. Conformity Before 2006 PM2.5 SIP Budgets Are Adequate or Approved
1. Proposal
EPA is proposing that these 2006 PM2.5 nonattainment
areas meet one of the following interim emissions tests for
[[Page 23031]]
conformity determinations conducted before adequate or approved 2006
24-hour PM2.5 SIP budgets are established:
The build-no-greater-than-no-build test (``build/no-build
test''), or
The no-greater-than-baseline year emissions test
(``baseline year test'').
Again, this part of the proposal would apply only in cases where a
2006 PM2.5 area does not have adequate or approved SIP
budgets for either the 2006 or 1997 PM2.5 NAAQS. Section VI.
of the proposal covers the case where a 2006 PM2.5
nonattainment area has a SIP budget for the 1997 PM2.5
NAAQS.
This proposal is similar to the transportation conformity rule at
40 CFR 93.119(e) for nonattainment areas for the 1997 PM2.5
NAAQS. Today's proposal would allow 2006 PM2.5 nonattainment
areas without SIP budgets to choose between the two interim emissions
tests, rather than require that one specific test or both tests be
completed. Conformity would be demonstrated under the proposal if the
transportation emissions reflecting the proposed transportation plan or
TIP (build) were less than or equal to either the emissions from the
existing transportation system (no-build), or the level of motor
vehicle emissions in the baseline year, as described in 40 CFR 93.119.
A full discussion of the proposed baseline year options for the 2006
PM2.5 NAAQS can be found in Section IV. of today's notice.
2. Rationale
EPA believes that this proposal meets statutory requirements for
conformity determinations that occur before SIP budgets are available
for the 2006 PM2.5 NAAQS. EPA believes it is appropriate to
provide flexibility and allow 2006 PM2.5 areas to meet only
one interim emissions test before adequate or approved PM2.5
SIP budgets are established. This proposal meets statutory requirements
and parallels the current rule's requirements for 1997 PM2.5
nonattainment areas (69 FR 40028-40031), which were upheld by an
October 2006 court decision. Environmental Defense v. EPA, 467 F.3d
1329 (DC Cir. 2006).\8\ In addition, this proposal is consistent with
past rulemakings for interim emissions test requirements for other
pollutants, as described below.
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\8\ Petitioners challenged several aspects of the conformity
regulations. In its decision, the U.S. Court of Appeals for the
District of Columbia Circuit upheld EPA's regulations at 40 CFR
93.119(b)(2), (d), and (e) ``because the Act does not require that
activities involving transportation actually reduce pollutants, but
merely not frustrate an implementation plan's purpose to reduce
overall emissions.'' The court also upheld EPA's regulations at 40
CFR 93.118(b), (d), and (e)(6). The court vacated a narrow provision
at 40 CFR 93.109(e)(2)(v) which had allowed 8-hour ozone areas to
avoid using their existing 1-hour budgets under certain
circumstances. This provision was removed from the transportation
conformity regulation in the January 24, 2008 final rule.
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Using either the build/no-build test or baseline year test is
sufficient to meet Clean Air Act section 176(c)(1)(B) requirements that
transportation activities do not cause new air quality violations,
worsen existing violations, or delay timely attainment or achievement
of interim reductions or milestones. The baseline year and the build/
no-build tests are sufficient for demonstrating conformity when an area
does not have a SIP budget for a portion of a nonattainment area.
Based on the Clean Air Act, EPA has previously determined that only
ozone and CO areas of higher classifications \9\ are required to also
satisfy section 176(c)(3)(A)(iii) requirements during the time period
before adequate or approved SIP budgets are available (58 FR 3782-3783;
62 FR 43784-43785; 69 FR 40018, 40019-40031). As a result, the current
rule requires these ozone and CO areas to meet both interim emissions
tests, rather than only one test.
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\9\ That is, ozone areas classified as moderate and above, and
CO areas classified as moderate with design value greater than 12.7
ppm and serious.
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However, the current conformity rule already allows areas
designated for the other pollutants, as well as the lower
classifications of ozone and CO, to conform based on only one interim
emissions test, rather than having to complete two tests and thereby
contribute further reductions towards attainment. EPA proposes that the
2006 PM2.5 areas also be required to meet only one of the
interim emissions tests to meet the Clean Air Act's requirements in
section 176(c)(1)(B). For more information and the full rationale for
allowing some areas to conform based on only one interim emissions
test, see the November 24, 1993 final rule (58 FR 62197) that addressed
interim requirements for PM10 and NO2 areas, and
the July 1, 2004 final rule (69 FR 40029) that established interim
requirements for 1997 PM2.5 areas.
EPA believes that the no-greater-than-baseline year interim
emissions test is an appropriate test for meeting section 176(c)(1)(B)
requirements in 2006 PM2.5 nonattainment areas. By
definition, the no-greater-than baseline year test ensures that
emissions from on-road mobile sources are no greater than they were
during the baseline year that will most likely be used for 2006
PM2.5 NAAQS SIP planning purposes. If future on-road
emissions do not increase above their base year levels, applicable
statutory requirements are met.
Finally, the build/no-build test would also allow a 2006
PM2.5 area to meet statutory requirements. As described
above, the build/no-build test requires a regional emissions analysis
to demonstrate that the emissions from the transportation system in
future years, if it included the proposed action and all other expected
regionally significant projects, would be less than the emissions from
the current transportation system in future years. Since a new
transportation plan, TIP, or project (in the build scenario) could not
result in regional emissions that are higher than those that would
occur in the absence of new transportation activities (in the no-build
scenario) for the system, the Clean Air Act section 176(c)(1)(B)
requirements are met. For these reasons, EPA believes that the build/
no-build test continues to be an appropriate interim test prior to SIP
budgets being available.
C. General Implementation of Regional Tests
This proposal would apply the existing conformity rule's general
requirements for PM2.5 regional emissions analyses in 2006
PM2.5 areas that do not have adequate or approved SIP
budgets for the 1997 PM2.5 NAAQS. EPA is including this
discussion of the existing regulation's requirements for clarity, to
help readers understand how the existing regulation would apply to
areas designated nonattainment for the 2006 PM2.5 NAAQS.
However, EPA is not soliciting comment on these existing requirements
that we are not proposing to change. The following examples are
intended to illustrate how today's proposal would be implemented in
practice for 2006 PM2.5 areas without adequate or approved
1997 PM2.5 SIP budgets.
1. Decisions Made Through the Interagency Consultation Process
The existing rule's consultation process would be used to determine
the test for completing any regional emissions analysis for the 2006
PM2.5 NAAQS, as required by 40 CFR 93.105(c)(1)(i). The
existing interagency consultation process would also be used to
determine the latest assumptions and models for generating motor
vehicle emissions regardless of the test used. Refer to Section IV. of
this preamble for details about generating baseline year emissions if
that interim emissions test is selected for a given conformity
determination.
The consultation process would also be used to determine which
analysis
[[Page 23032]]
years should be selected for regional emissions analyses. Before an
adequate or approved 2006 PM2.5 budget is available, areas
would be able to choose, through interagency consultation, either
interim emissions test for each conformity determination. However, the
same test would be required to be used for each analysis year for a
given determination. EPA believes that sufficient flexibility exists
without mixing and matching interim emissions tests for different
analysis years within one conformity determination, which is
unnecessarily complicated and may indicate that an area would not
conform using one test consistently.
2. General Conformity Test Requirements for All Areas
Regional emissions analyses under this proposal would be
implemented through existing conformity requirements such as 40 CFR
93.118, 93.119, and 93.122. For example, the existing conformity rule
requires that only certain years within the transportation plan (or
alternate timeframe) be examined. Under 40 CFR 93.118(d), the following
years would be analyzed for the budget test with 2006 PM2.5
SIP budgets:
The attainment year for the 2006 PM2.5 NAAQS
(if it is within the timeframe of the transportation plan and
conformity determination);
The last year of the timeframe of the conformity
determination (40 CFR 93.106(d)); and
Intermediate years as necessary so that analysis years are
no more than ten years apart.
For the interim emissions tests, the existing conformity rule (40
CFR 93.119(g)) requires the following analysis years:
A year no more than five years beyond the year in which
the conformity determination is being made;
The last year of the timeframe of the conformity
determination (as described in 40 CFR 93.106(d));
Intermediate years as necessary so that analysis years are
no more than 10 years apart.
See the relevant regulatory sections of the conformity rule and the
July 1, 2004 final rule preamble for further background on how tests
have been implemented for other pollutants and standards (69 FR 40020).
3. Cases Involving Multi-Jurisdictional Areas
In July 2004, EPA issued a guidance document for implementing
conformity requirements in multi-jurisdictional areas.\10\ Multi-
jurisdictional areas are nonattainment and maintenance areas with
multiple MPOs, one or more MPOs and a donut area, or multi-state areas.
EPA believes that this guidance should also apply to 2006
PM2.5 areas with multiple jurisdictions.
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\10\ ``Companion Guidance for the July 1, 2004, Final
Transportation Conformity Rule: Conformity Implementation in Multi-
Jurisdictional Nonattainment and Maintenance Areas for Existing and
New Air Quality Standard,'' EPA40-B-04-012, July 2004, found on
EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf.
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There are two parts of this existing guidance that are most
relevant for implementing conformity for multi-jurisdictional 2006
PM2.5 areas that do not have adequate or approved 1997
PM2.5 SIP budgets. Part 2 of this guidance describes how
conformity would be implemented in all 2006 PM2.5 areas
before adequate or approved SIP budgets are available for an applicable
NAAQS. Part 3 of this guidance is relevant for meeting conformity
requirements once adequate or approved 2006 PM2.5 SIP
budgets are available. For example, Part 3 of this guidance describes
how a state or MPO in a multi-state nonattainment area can operate
independently from other states/MPOs for conformity purposes once
adequate or approved SIP budgets for a state are established. This same
conformity guidance would also apply for the 2006 PM2.5
NAAQS in these types of areas. Part 3 would also apply to the cases
where subarea budgets are established for a nonattainment area within
one state with multiple MPOs. For further information, please refer to
EPA's 2004 multi-jurisdictional conformity guidance.
VI. Regional Conformity Tests in 2006 PM2.5 Areas That Have
Adequate or Approved 1997 PM2.5 SIP Budgets
This section proposes the conformity tests for completing regional
emissions analyses in areas designated for the 2006 PM2.5
NAAQS with adequate or approved SIP budgets for the 1997
PM2.5 NAAQS that cover either part or all of the 2006
PM2.5 area. EPA proposes to address conformity tests for
these areas under a new section 93.109(k). See Section V. of today's
proposal for conformity tests in 2006 PM2.5 areas that do
not have an adequate or approved 1997 PM2.5 SIP budget. As
stated elsewhere, EPA is not proposing any changes in conformity
requirements for the 1997 PM2.5 NAAQS.
A. Conformity After 2006 PM2.5 SIP Budgets Are Adequate or
Approved
1. Proposal
Once a SIP for the 2006 PM2.5 NAAQS is submitted with
budget(s) that EPA has found adequate or approved, EPA proposes that
the budget test must be used in accordance with 40 CFR 93.118 to
complete all applicable regional emissions analyses for the 2006
PM2.5 NAAQS. Conformity would be demonstrated if the
transportation system emissions reflecting the proposed transportation
plan, TIP, or project not from a conforming transportation plan and TIP
were less than or equal to the motor vehicle emissions budget level
defined by the SIP as being consistent with Clean Air Act requirements.
The first submitted SIP for the 2006 PM2.5 NAAQS may be
an attainment demonstration or a maintenance plan. Nonattainment areas
for the 2006 PM2.5 NAAQS could also voluntarily choose to
submit an ``early progress SIP'' to establish budgets for conformity
purposes prior to required SIPs. See Section V. for further details on
requirements for early progress SIPs. EPA has discussed this option in
past conformity rule preamble, e.g., the July 1, 2004 transportation
conformity final rule (69 FR 40028), and some states have established
early progress SIP budgets for conformity purposes.
Whatever the case, interim emissions tests and/or any existing 1997
PM2.5 SIP budget would no longer be used for conformity in
2006 PM2.5 areas for direct PM2.5 or a relevant
precursor once an adequate or approved SIP budget for the 2006
PM2.5 NAAQS is established for the pollutant or precursor.
Once a SIP budget for the 2006 PM2.5 NAAQS is adequate or
approved, the budget test for 2006 PM2.5 conformity would be
done based on 24-hour emissions (i.e., tons per day). As noted earlier
in Section III.D., areas that were also designated for the 1997
PM2.5 NAAQS would continue to meet their existing conformity
requirements for the 1997 PM2.5 NAAQS, which would include a
regional emissions analysis based on annual emissions (i.e., tons per
year). The conformity rule at 40 CFR 93.105 requires consultation on
the development of SIPs; EPA encourages states to consult with MPOs,
state and local transportation agencies, and local air quality agencies
sufficiently early when developing 2006 PM2.5 SIPs to
facilitate future conformity determinations. Once EPA's nonattainment
designations are finalized, EPA Regions would be available to assist
states in developing
[[Page 23033]]
early progress SIPs for the 2006 PM2.5 NAAQS, if desired.
2. Rationale
EPA's rationale for the use of the budget test once adequate or
approved SIP budgets addressing the 2006 PM2.5 NAAQS are
available is found in Section V.A.2. of this preamble, and not repeated
here.
B. Conformity Before 2006 PM2.5 SIP Budgets Are Adequate or
Approved
1. Proposal
Where all or a portion of the 2006 PM2.5 area is covered
by adequate or approved 1997 PM2.5 budgets, EPA is proposing
that the 1997 budgets would be used for 2006 PM2.5
conformity. In addition, in the case where the 1997 budget does not
cover the entire 2006 PM2.5 area, EPA is proposing that one
of the interim emissions tests would also be used, as described below.
Section IV. of this proposal covers the proposed change to the baseline
year test and Section V. covers interim emissions tests in 2006
PM2.5 areas before adequate or approved SIP budgets for the
2006 PM2.5 NAAQS are available.
Please note that this proposal is for completing conformity under
the 2006 PM2.5 NAAQS before 2006 PM2.5 SIP
budgets are established. For areas designated nonattainment for the
2006 PM2.5 NAAQS where all, or a portion, of the area is
covered by adequate or approved 1997 PM2.5 SIP budgets, EPA
is proposing that the budget test using 1997 PM2.5 SIP
budgets serve as a proxy for the 2006 PM2.5 NAAQS until 2006
PM2.5 SIP budgets are available.
Many nonattainment areas for the 1997 PM2.5 NAAQS may
have adequate or approved SIP budgets for the 1997 annual
PM2.5 NAAQS. For areas that use annual PM2.5
budgets to meet 2006 PM2.5 requirements, a regional
emissions analysis would be done based on an analysis of annual, rather
than 24-hour, emissions (i.e., tons per year).
Today's proposal is based on EPA's experience in establishing
conformity requirements for areas designated for the 1997 8-hour ozone
NAAQS that had SIP budgets for the 1-hour ozone NAAQS, found in 40 CFR
93.109(e)(2). This proposal covers the four possible scenarios that
could result when areas are designated nonattainment for the 2006
PM2.5 NAAQS: \11\
---------------------------------------------------------------------------
\11\ Although all four scenarios are included in this proposal,
most of the 2006 PM2.5 areas that have 1997
PM2.5 budgets will be Scenario 1 areas.
---------------------------------------------------------------------------
Scenario 1: The 2006 PM2.5 area nonattainment
boundary is the same as the 1997 PM2.5 area boundary.
Scenario 2: The 2006 PM2.5 area is smaller than
(and completely within) the 1997 PM2.5 area boundary.
Scenario 3: The 2006 PM2.5 area is larger than
(and contains) the 1997 PM2.5 area boundary.
Scenario 4: The 2006 PM2.5 area boundary
overlaps with a portion of the 1997 PM2.5 area boundary.
These four boundary scenarios are the same as the four boundary
scenarios EPA described for the 1997 8-hour ozone areas that had
existing 1-hour ozone budgets. EPA's 2004 guidance entitled,
``Companion Guidance for the July 1, 2004 Final Transportation
Conformity Rule, Conformity Implementation in Multi-Jurisdictional
Nonattainment and Maintenance Areas for Existing and New Air Quality
Standards,'' (EPA40-B-04-012), contains diagrams of the four scenarios
for 8-hour ozone areas. Readers may be interested in reviewing these
diagrams as they consider the following proposals. This document can be
found on EPA's transportation conformity Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf.
The following paragraphs describe today's proposals for each
possible scenario for 2006 PM2.5 nonattainment areas.
Scenario 1: 2006 PM2.5 areas where the nonattainment boundary is
exactly the same as the 1997 PM2.5 boundary. In this case, the 2006 and
1997 PM2.5 nonattainment boundaries cover exactly the same
geographic area. EPA proposes to require such areas to meet the budget
test for the 2006 PM2.5 NAAQS using existing adequate or
approved SIP budgets for the 1997 PM2.5 NAAQS.
Scenario 2: 2006 PM2.5 areas where the boundary is smaller than and
within the 1997 PM2.5 boundary. In this case, the 2006 PM2.5
nonattainment area is smaller than and completely encompassed by the
1997 PM2.5 nonattainment boundary. EPA proposes to require
such areas to meet one of the following versions of the budget test:
The budget test using the subset or portion of existing
adequate or approved 1997 PM2.5 SIP budgets that applies to
the 2006 PM2.5 nonattainment area, where such portion(s) can
be appropriately identified; or
The budget test using the existing adequate or approved
1997 PM2.5 SIP budgets for the entire 1997 PM2.5
nonattainment area. In this case, any additional reductions beyond
those addressed by control measures in the 1997 PM2.5 SIP
would be required to come from the 2006 PM2.5 nonattainment
area as described below.
Under today's proposal, areas could choose either test each time
they make a conformity determination. For any particular conformity
determination, however, the same choice would have to be used for each
analysis year. EPA believes that to do otherwise would be unnecessarily
complicated and may indicate that one test option used consistently for
all analysis years would not demonstrate conformity. The consultation
process would be used to determine whether using a portion of a 1997
PM2.5 SIP budget is appropriate and feasible, and if so, how
deriving such a portion would be accomplished. See the preamble of the
July 1, 2004 final rule (69 FR 40022-40023) for a description of a
similar provision for the 1997 8-hour ozone NAAQS.
EPA is proposing that a conformity determination using the entire
1997 PM2.5 budget would include a comparison between the on-
road regional emissions produced in the entire 1997 PM2.5
area and the existing 1997 PM2.5 SIP budget(s). However, if
additional reductions are required to meet conformity beyond those
produced by control measures in the 1997 PM2.5 SIP budgets,
EPA proposes that those reductions must be obtained from within the
2006 PM2.5 nonattainment area only, since the conformity
determination would be for the 2006 PM2.5 NAAQS.
Scenario 3: 2006 PM2.5 areas where the boundary is larger than the
1997 PM2.5 boundary. In this case, an entire 1997 PM2.5
nonattainment or maintenance area would be within a larger 2006
PM2.5 nonattainment area and the 1997 PM2.5
budgets would not cover the entire 2006 PM2.5 nonattainment
area. EPA proposes to require such areas to meet one of the following:
The budget test using the 1997 PM2.5 budget(s)
for the 1997 PM2.5 area, that is, the portion of the 2006
PM2.5 area that lies within the 1997 PM2.5 area
boundary, and one of the interim emissions tests for either the
remaining portion of the 2006 PM2.5 nonattainment area, the
entire 2006 PM2.5 area, or the entire portion of the 2006
PM2.5 area within an individual state, if 1997
PM2.5 budgets are established in each state in a multi-state
area; or
The budget test using the existing adequate or approved
1997 PM2.5 SIP budgets for the entire 2006 PM2.5
nonattainment area.\12\
---------------------------------------------------------------------------
\12\ While the existing regulation for 8-hour ozone areas does
not explicitly contain this option, it was addressed in the preamble
to the final rule addressing 8-hour ozone areas (July 1, 2004, 69 FR
40027).
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[[Page 23034]]
Under this proposal, the budget test would be completed according
to the requirements in 40 CFR 93.118, and the interim emissions test
requirements of 40 CFR 93.119.
Once an area selects a particular interim emissions test and the
geographic area it will address, EPA proposes that the same test must
be used consistently for all analysis years. The consultation process
would have to be used to determine which analysis years should be
selected for regional emissions analyses where the budget test and
interim emissions tests are used. It may be possible to choose analysis
years that would satisfy both the budget and interim emissions test
requirements for areas using both tests prior to adequate or approved
2006 PM2.5 SIP budgets being established. Further
information regarding the implementation of these requirements is
illustrated later in this section.
Scenario 4: 2006 PM2.5 areas where the boundary partially overlaps
a portion of the 1997 PM2.5 boundary. In this case, the 1997 and 2006
PM2.5 nonattainment boundaries partially overlap. As in the
case with Scenario 3 areas, the 1997 PM2.5 budgets would not
cover the entire 2006 PM2.5 nonattainment area. However,
unlike Scenario 3 areas, the 2006 area does not contain the entire 1997
PM2.5 nonattainment or maintenance area. Therefore, 1997
PM2.5 budgets cannot be the sole test of conformity for the
2006 PM2.5 NAAQS, since a conformity determination must
include a regional emissions analysis that includes the entire 2006
PM2.5 nonattainment area.
EPA proposes that 2006 PM2.5 areas covered under this
scenario would use the 1997 PM2.5 budget(s) to meet the
budget test for the portion of the 1997 PM2.5 area and
budgets that overlap with the 2006 PM2.5 area boundary, and
one of the interim emissions tests for either the remaining portion of
the 2006 PM2.5 nonattainment area, the entire 2006
PM2.5 area, or the entire portion of the 2006
PM2.5 area within an individual state, if 1997
PM2.5 budgets are established in each state in a multi-state
area. Under this proposal, the budget test would be completed according
to the requirements in 40 CFR 93.118, and the interim emissions test
requirements of 40 CFR 93.119.
Similar to Scenario 3 areas, once an area selects a particular
interim emissions test and the geographic area it will address, EPA
proposes that the same test must be used consistently for all analysis
years. Further information regarding the implementation of these
requirements is found in the discussion above for Scenario 3, and
illustrated later in this section.
2. Rationale
General. EPA believes that using the existing 1997 PM2.5
budgets as a proxy for the 2006 PM2.5 NAAQS is required by
the Clean Air Act. In Environmental Defense v. EPA, 467 F.3d 1329 (DC
Cir. 2006), the Court of Appeals for the District of Columbia Circuit
held that where a motor vehicle emissions budget developed for the
revoked 1-hour ozone NAAQS existed in an approved SIP, that budget must
be used to demonstrate conformity to the 8-hour ozone NAAQS until the
SIP is revised to include budgets for the new NAAQS. EPA reflected the
court's decision for ozone conformity tests in its January 24, 2008
final rule (73 FR 4434).
While the Environmental Defense case concerned ozone, EPA believes
the court's holding is relevant for other pollutants for which
conformity must be demonstrated. Consequently, EPA believes that 2006
PM2.5 areas that have 1997 PM2.5 budgets must use
them for 2006 PM2.5 conformity before 2006 PM2.5
SIP budgets are established.
The use of the 1997 PM2.5 budgets as a proxy for the
2006 PM2.5 NAAQS also would ensure that Clean Air Act
requirements are met. Section 176(c) of the Clean Air Act requires that
transportation activities may not cause new violations, increase the
frequency or severity of existing violations, or delay timely
attainment. In these areas, the budgets for the 1997 annual
PM2.5 NAAQS have been the measure of PM2.5
conformity thus far, and have been consistent with these areas'
PM2.5 air quality progress to date. Therefore, using budgets
that address the 1997 annual PM2.5 NAAQS where no other
PM2.5 budgets are available ensures that the requirements of
Clean Air Act 176(c) are met. Once 2006 PM2.5 budgets are
found adequate or approved, the budget test for that NAAQS provides the
best means to determine whether transportation plans, TIPs, or projects
meet Clean Air Act requirements.
EPA also believes the budget test is a better environmental measure
than the interim emissions tests when SIP budgets for a pollutant or
precursor are available. As EPA reiterated in its July 1, 2004 final
rule (69 FR 40026), when motor vehicle emissions budgets have been
established by SIPs, they provide a more relevant basis for conformity
determinations than the interim emissions tests. EPA believes this is
true even though in most cases the budgets established for the 1997
PM2.5 NAAQS would address an annual rather than a 24-hour
NAAQS. A 1997 PM2.5 budget represents the state's best
estimate of the level of permissible PM2.5 emissions from
the on-road transportation sector for a particular area. Such a budget
is created based on local information for that particular area--its
population, its estimated VMT and other travel data, its transit
availability, its particular vehicle fleet, its local controls, and so
forth. Hence EPA believes using budgets, designed for specific areas
and based on information from those specific areas, is preferable to
using either of the more generic interim emissions tests. The baseline
year and the build/no-build tests are sufficient for demonstrating
conformity when an area does not have a budget for a portion of a
nonattainment area. However, these interim emissions tests usually do
not ensure that transportation emissions promote progress for the NAAQS
to the same extent that the use of motor vehicle emissions budgets do.
In addition, using the 1997 PM2.5 budgets for 2006
PM2.5 conformity purposes may also streamline the conformity
process for areas designated nonattainment for both the 1997 and 2006
PM2.5 NAAQS. These areas would already be using 1997
PM2.5 budgets for conformity of that NAAQS. In areas where
the 1997 and 2006 PM2.5 nonattainment boundaries are the
same (Scenario 1), today's proposal would result in having to meet only
one type of test--the budget test--to demonstrate conformity for both
the 1997 and 2006 NAAQS.
For multi-state 2006 PM2.5 nonattainment areas, today's
proposal would also preserve states' ability to do conformity
independently from one another, if a state has already established
budgets for its own state (and/or MPO(s)) for the 1997 PM2.5
NAAQS. Further explanation and examples are given below in Section
VI.C.
Scenario 1 and 2 areas. Today's proposal for conformity in 2006
PM2.5 areas before budgets that address that NAAQS are
available is largely consistent with the process that EPA finalized for
8-hour ozone areas designated under the 1997 ozone NAAQS where 1-hour
ozone budgets exist (69 FR 40021-40028). Our proposals for Scenario 1
and 2 areas are identical to the final rule for these 8-hour ozone
areas. Scenario 2 2006 PM2.5 areas would also have the
choice of adjusting the existing 1997 PM2.5 budgets for the
new geographical area. As we indicated in the November 5, 2003 proposed
rule for the 8-hour ozone areas (68 FR 62702), using the relevant
portion of existing budgets for purposes of conducting conformity
[[Page 23035]]
determinations for a different NAAQS of the same pollutant is
appropriate since the budgets for the 1997 PM2.5 NAAQS would
only be used as a proxy for the 2006 PM2.5 NAAQS. These 1997
PM2.5 budgets still have to be met in the 1997
PM2.5 areas.
Scenario 3 and 4 areas. Some Scenario 3 areas and all Scenario 4
areas would also have to meet one of the interim emissions tests, for
either the portion of the 2006 PM2.5 area not covered by the
1997 PM2.5 SIP budgets, the entire PM2.5 area, or
the entire portion of the 2006 PM2.5 area within an
individual state. As explained in the November 2003 proposed rule for
8-hour ozone areas (68 FR 62702), in these cases budgets cannot be the
sole test of conformity because a conformity determination must include
a regional emissions analysis that covers the entire nonattainment
area.
However, some Scenario 3 areas may be able to demonstrate
conformity without an interim emissions test. For Scenario 3
PM2.5 areas, EPA is proposing an option that similar 8-hour
ozone areas also have: the entire larger, newly designated area could
meet budgets established for the smaller, existing area. In the July 1,
2004 final rule, EPA clarified that 8-hour ozone areas have this
ability. In that final rule, EPA noted that while this option was not
explicitly addressed by the regulatory text, it would be consistent
with the requirements and is available to interested 8-hour ozone areas
(69 FR 40027). Given the benefit of that history, EPA is proposing to
adopt regulatory text for this option for Scenario 3 2006
PM2.5 areas.
Finally, EPA believes that statutory requirements are met under the
proposal to use either interim emissions test when no adequate or
approved PM2.5 SIP budgets are available. See further
rationale regarding the flexibility offered by today's proposal in
Section V.
C. General Implementation of Regional Tests
This proposal would apply the existing conformity rule's general
requirements for PM2.5 regional emissions analyses to all
2006 PM2.5 areas. As described in Section V.C., EPA is
including this discussion of the existing regulation's requirements for
clarity, to help readers understand how the existing regulation would
apply to areas designated nonattainment for the 2006 PM2.5
NAAQS. However, EPA is not soliciting comment on existing requirements
that we are not proposing to change.
The following examples are intended to illustrate how today's
proposal would be implemented in practice for 2006 PM2.5
areas with adequate or approved 1997 PM2.5 SIP budgets.
1. General Conformity Test Requirements for Most Areas
Regional emissions analyses under this proposal would be
implemented through existing conformity requirements such as 40 CFR
93.118, 93.119, and 93.122. For example, the existing conformity rule
requires that only certain years within the transportation plan (or
alternate timeframe) be examined.
Although four scenarios are described in Section VI.B. for the time
period before 2006 PM2.5 SIP budgets are available, most
areas with 1997 PM2.5 SIP budgets will be covered by
Scenario 1 (i.e., the 1997 and 2006 PM2.5 NAAQS boundaries
are the same). Under Scenario 1, the consultation process would be used
to determine which analysis years should be selected for regional
emissions analyses for the budget test. The existing conformity rule at
40 CFR 93.118(d) requires the following analysis years for this test:
The attainment year for the 2006 PM2.5 NAAQS
(if it is within the timeframe of the transportation plan and
conformity determination);
The last year of the timeframe of the conformity
determination (40 CFR 93.106(d)); and
Intermediate years as necessary so that analysis years are
no more than 10 years apart.
Areas covered by this proposal would also be determining conformity for
the 1997 PM2.5 NAAQS, using adequate or approved budgets
established for that NAAQS.
See the relevant regulatory sections of the conformity rule and the
July 1, 2004 final rule preamble for further background on how tests
have been implemented for other pollutants and standards (69 FR 40020).
2. Cases Involving Multi-Jurisdictional Areas
As described earlier, EPA issued a guidance document in 2004 for
implementing conformity requirements in multi-jurisdictional areas.
There are two parts of this existing guidance that are relevant for
implementing conformity for these areas. Part 3 of the existing
guidance describes how conformity would be implemented in all 2006
PM2.5 areas once adequate or approved SIP budgets for the
2006 PM2.5 NAAQS are established. Part 4 of this guidance is
relevant for meeting conformity requirements when only 1997
PM2.5 budgets are available.\13\
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\13\ This section of the guidance covers how 8-hour ozone areas
that have 1-hour ozone budgets would proceed with developing their
regional emissions analyses and making conformity determinations,
which is analogous to any 2006 PM2.5 areas that have 1997
budgets in the interim.
---------------------------------------------------------------------------
This guidance is also applicable for conformity purposes in multi-
state and multi-MPO areas. For example, in multi-state 2006
PM2.5 nonattainment areas where each state has its own 1997
PM2.5 SIP budgets, the states could do conformity for the
2006 NAAQS (as well as the 1997 PM2.5 NAAQS) independently
of each other. In addition, MPOs in areas that have subarea budgets for
the 1997 PM2.5 NAAQS could use these subarea budgets for
conformity to the 2006 PM2.5 NAAQS.
For further information, please refer to Section V.C. and EPA's
2004 multi-jurisdictional conformity guidance.
VII. Other Conformity Requirements for 2006 PM2.5 Areas
The existing regulations already provide the remaining requirements
that will be necessary for conformity under the 2006 PM2.5
NAAQS. EPA believes that any existing conformity requirements that are
listed for ``PM2.5'' areas that are not being revised in
today's proposal would also apply to 2006 PM2.5
nonattainment or maintenance areas. These provisions have already been
promulgated, based on past rulemakings and rationale, and EPA is not
proposing any changes to these provisions. Therefore, EPA is not
requesting public comment on these provisions in today's proposal.
For example, a hot-spot analysis is required for certain projects
in any PM2.5 nonattainment and maintenance areas before such
projects can be found to conform. These requirements are found in
Sec. Sec. 93.116(a) and Sec. 93.123(b) of the current conformity
rule, although please note that EPA, for other reasons, is proposing
today to clarify amendments to section 93.116(a) of the conformity
rule. See Section IX. of this preamble for details. Any hot-spot
analysis requirements that were promulgated for ``PM2.5''
areas in the conformity rule do not need to be amended because they
would already apply to 2006 PM2.5 areas for this NAAQS.
A hot-spot analysis in an area designated for both the 1997 and
2006 PM2.5 NAAQS would have to demonstrate that the project
meets the conformity rule's hot-spot requirements for all of the
PM2.5 standards for which the area is designated
nonattainment.
[[Page 23036]]
For example, if an area is designated nonattainment for the 1997 annual
standard, and the 2006 24-hour standard, the analysis would have to
consider both standards. Similarly, in the case where an area is
designated nonattainment for both the 1997 annual and 24-hour
standards, as well as the 2006 24-hour standard, the analysis would
have to consider all of these standards. (See Section IX. for more
information regarding the requirements of hot-spot analyses.)
Please refer to the March 10, 2006 final rule for additional
information regarding hot-spot analyses (47 FR 12468) and EPA and
FHWA's current guidance for implementing this requirement
(Transportation Conformity Guidance for Qualitative Hot-spot Analyses
in PM2.5 and PM10 Nonattainment and Maintenance
Areas, March 2006, EPA420-B-06-902).
Section 93.117 of the conformity rule, which requires project-level
conformity determinations to comply with any PM2.5 control
measures in an approved SIP, would also apply for conformity under the
2006 PM2.5 NAAQS. Again, EPA promulgated this requirement in
general for nonattainment and maintenance areas under PM2.5
air quality NAAQS. Therefore, EPA is not reopening this provision for
comment in today's proposal, since it is unnecessary to do so in order
to implement conformity requirements under the 2006 PM2.5
NAAQS. See EPA's July 2004 final rule for further information on this
requirement (69 FR 40036-40037).
EPA will work with PM2.5 nonattainment areas as needed
to ensure that state and local agencies can meet existing and new
conformity requirements for the 2006 PM2.5 NAAQS in a timely
and efficient manner. EPA requests comment on whether additional
information or training will be necessary to ensure proper conformity
implementation under the existing rule and today's proposal for the
2006 PM2.5 NAAQS. If your agency submits comments, please be
as specific as possible regarding what types of situations and issues
may need to be addressed in future implementation of PM2.5
conformity requirements.
VIII. Transportation Conformity in PM10 Nonattainment and
Maintenance Areas and the Revocation of the Annual PM10
NAAQS
A. Background
On October 17, 2006, EPA issued a final rule establishing changes
to the PM2.5 and PM10 NAAQS (71 FR 61144). The
October 2006 final rule retained the 24-hour PM10 NAAQS of
150 [mu]g/m\3\, and revoked the annual PM10 NAAQS of 50
[mu]g/m\3\. EPA made a commitment in this October 2006 final rule to
provide information regarding how transportation conformity will be
implemented under the revised PM10 NAAQS (71 FR 61215). To
satisfy this commitment, EPA described which conformity tests would
apply in PM10 nonattainment and maintenance areas
(``PM10 areas'') in a guidance document.\14\ Today's
proposal to update the conformity rule also responds to this
commitment.
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\14\ Transportation Conformity in PM10 Nonattainment
and Maintenance Areas and the Revocation of the Annual
PM10 Standard, September 25, 2008, found on EPA's Web
site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm.
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Clean Air Act section 176(c)(5) requires conformity only in areas
that are designated nonattainment or maintenance for a given pollutant
and NAAQS. Therefore, transportation conformity has continued to apply
to all PM10 nonattainment and maintenance areas because
transportation conformity applies based on an area's status as a
nonattainment or maintenance area, and PM10 designations
were not affected by the October 2006 final rule. As stated in the
October 2006 final rule, ``both transportation and general conformity
will continue to apply to all PM10 nonattainment and
maintenance areas since no designations are changing'' (71 FR 61215).
As of the effective date of the October 2006 rule, conformity
determinations in PM10 areas have been required only for the
24-hour PM10 NAAQS. The October 2006 final rule stated,
``However, because EPA is revoking the annual PM10 NAAQS in
this final rule, after the effective date of this rule conformity
determinations in PM10 areas will only be required for the
24-hour PM10 NAAQS; conformity to the annual PM10
NAAQS will no longer be required'' (71 FR 61215). Please refer to the
October 17, 2006 final rule for additional information (71 FR 61144).
B. Proposed Definitions for PM10 NAAQS
EPA proposes to add new definitions to 40 CFR 93.101 of the
conformity rule to distinguish between the 24-hour PM10
NAAQS and the annual PM10 NAAQS. EPA is proposing these two
definitions to simplify the changes necessary for other conformity rule
provisions, as described further below. The addition of these
definitions parallels the existing definitions in 40 CFR 93.101 for the
1-hour ozone NAAQS and 8-hour ozone NAAQS.
C. Proposal for Conformity Tests in PM10 Areas With Budgets
EPA proposes to update one section of the regulation, consistent
with the October 2006 final rule and the September 25, 2008 guidance
entitled, ``Transportation Conformity in PM10 Nonattainment
and Maintenance Areas and the Revocation of the Annual PM10
NAAQS.'' This proposal would be consistent with how PM10
transportation conformity requirements have been applied since the
revocation of the annual PM10 NAAQS was effective.
Specifically, EPA is proposing to update 40 CFR 93.109(g) so that:
PM10 areas that have adequate or approved SIP
budgets for both the 24-hour and annual PM10 NAAQS would be
required to use only the budgets established for the 24-hour
PM10 NAAQS. Conformity to the annual PM10 budgets
in such a case would no longer be required.\15\
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\15\ Note that it would not be necessary to remove budgets
established for the annual PM10 NAAQS from a SIP for
conformity purposes; they do not apply if an area has budgets for
the 24-hour PM10 NAAQS. However, states can choose to
revise such SIPs to remove any annual PM10 budgets, since
this standard has been revoked and remaining 24-hour PM10
budgets would ensure that anti-backsliding SIP requirements are met.
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PM10 areas that have adequate or approved SIP
budgets for only the annual PM10 NAAQS would be required to
use them for PM10 conformity determinations until
PM10 SIP budgets for the 24-hour PM10 NAAQS are
found adequate or approved. For areas that use annual PM10
budgets, a regional emissions analysis would be done based on an
analysis of annual, rather than 24-hour, emissions.
EPA is not proposing to change any other existing conformity
requirements for PM10 nonattainment and maintenance areas.
For example, the existing requirement for project-level conformity
determinations in PM10 areas would also continue to apply,
including hot-spot analyses in some cases (see Sec. Sec. 93.116(a) and
93.123(b)). Although project-level conformity requirements and any
required hot-spot analysis would apply only with respect to the 24-hour
PM10 NAAQS, this requires no revisions to the current
conformity rule.
D. Rationale
Today's proposed rule changes for PM10 conformity tests
result from the revocation of the annual PM10 NAAQS. Where
annual PM10 budgets are the only PM10 budgets,
EPA believes it is necessary to use such budgets to demonstrate
conformity for the 24-hour
[[Page 23037]]
PM10 NAAQS to meet Clean Air Act requirements. As discussed
above in Section VI.B.2., a 2006 decision by the Court of Appeals for
the DC Circuit clarified this point. In this decision, the court
stated, ``A current SIP, even one tied to outdated NAAQS, remains in
force until replaced by another but later-approved SIP. The Clean Air
Act provides that the current SIPs are legally sufficient until they
are replaced by new SIPs.'' (Environmental Defense v. EPA, 467 F.3d
1329, 1335 (DC Cir. 2006)). Refer to Section VI.B.2. for further
information about the decision. EPA believes that today's proposal is
consistent with this decision.
Consequently, EPA believes that annual PM10 budgets must
be used to demonstrate conformity for the 24-hour PM10 NAAQS
when adequate or approved 24-hour PM10 budgets are not yet
established. In areas with PM10 budgets that address only
the annual PM10 NAAQS, these budgets have been the measure
of PM10 conformity thus far, and have been consistent with
these areas' PM10 air quality progress to date. Therefore,
using annual PM10 budgets where no other PM10 SIP
budgets are available ensures that air quality progress to date is
maintained, air quality will not be worsened and attainment and any
interim milestones for the 24-hour PM10 NAAQS will not be
delayed because of emissions increases. Once 24-hour PM10
budgets are found adequate or approved, the budget test solely for the
24-hour PM10 NAAQS provides the best means to determine
whether transportation plans, TIPs, or projects meet Clean Air Act
conformity requirements.
Most PM10 areas already have adequate or approved
budgets for only the 24-hour PM10 NAAQS. However, there are
a limited number of PM10 areas that have SIP budgets only
for the annual PM10 NAAQS. EPA believes that the statute as
interpreted by the court requires such areas to continue to use these
adequate or approved annual PM10 SIP budgets, rather than
use one of the interim emissions tests in 40 CFR 93.119(d) which could
be less environmentally protective tests than SIP budgets.
While EPA addressed how the revocation affected PM10
transportation conformity requirements in its September 2008 guidance,
updating the regulation clarifies the requirements and simplifies
implementation. This proposed rule also saves resources in some areas
with adequate or approved SIP budgets for both the 24-hour and annual
PM10 NAAQS because these areas are no longer required to use
budgets for the annual PM10 NAAQS. As mentioned above,
today's minor revision to the conformity rule is consistent with what
is already required in the field for PM10 nonattainment and
maintenance areas.
IX. Response to the December 2007 Hot-Spot Court Decision
A. Background
EPA promulgated a final rule on March 10, 2006 (71 FR 12468) that
revised the previous PM10 conformity hot-spot analysis
requirements and applied these revised requirements to
PM2.5.\16\ A hot-spot analysis is defined in 40 CFR 93.101
as an estimation of likely future localized pollutant concentrations
and a comparison of those concentrations to relevant NAAQS. A hot-spot
analysis assesses the air quality impacts of an individual
transportation project on a scale smaller than a regional emissions
analysis for an entire nonattainment or maintenance area.
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\16\ The March 10, 2006 rule constituted final action on EPA's
original proposal from November 5, 2003 (68 FR 62690, 62712) and a
supplemental proposal from December 13, 2004 (69 FR 72140, 72144-45,
and 72149-50).
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Section 93.116(a) of the current conformity rule requires that
projects in PM2.5, PM10, and CO nonattainment and
maintenance areas ``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* * *.'' This requirement is satisfied for
applicable projects \17\ ``if it is demonstrated that during the time
frame of the transportation plan no new local violations will be
created and the severity or number of existing violations will not be
increased as a result of the project.'' Sections 93.105(c)(1)(i) and
93.123 contain the consultation and methodology requirements for
conducting hot-spot analyses.
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\17\ Section 93.123(b) contains the types of projects for which
a hot-spot analysis applies in PM2.5 and PM10
areas. For additional discussion, please refer to ``V. Projects of
Air Quality Concern and General Requirements for PM2.5
and PM10 Hot-spot Analyses'' in the preamble of the March
10, 2006 final rule at 71 FR 12490-12498.
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A hot-spot analysis, when required, is only one part of a project-
level conformity determination. In order to meet all Clean Air Act
requirements, an individual project must also be included in a
conforming transportation plan and TIP (and regional emissions analysis
for the entire nonattainment or maintenance area) and meet any other
applicable requirements.
Environmental petitioners challenged the March 2006 final rule, and
raised several issues related to it. First, petitioners alleged that
the final rule did not ensure that transportation projects complied
with Clean Air Act section 176(c)(1)(A) and (c)(1)(B)(iii). Second,
petitioners alleged that EPA had previously approved its MOBILE6.2 on-
road mobile source emissions model for use in quantitative
PM2.5 and PM10 hot-spot analyses, and withdrew
such approval in the March 2006 final rule without providing adequate
notice and opportunity for public comment.\18\
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\18\ EPA and petitioners settled a third issue that was not
raised to the court. The settlement was finalized on June 22, 2007
(72 FR 34460), and described a stakeholder process that EPA will use
to develop its future PM2.5 and PM10
quantitative hot-spot modeling guidance.
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On December 11, 2007, the DC Circuit Court of Appeals issued its
decision, and upheld EPA's March 2006 final rule and remanded one issue
for clarification. Environmental Defense v. EPA, 509 F.3d. 553 (DC Cir.
2007). The court agreed with EPA's position that Clean Air Act section
176(c)(1)(A) does not require that an individual transportation project
reduce emissions, but only that such a project not worsen air quality
compared to what would have otherwise occurred if the project was not
implemented. The court held that, assuming section 176(c)(1)(A) applies
in the local area surrounding an individual project, EPA's position
that this provision is met if a transportation project conforms to the
emissions estimates and control requirements of the SIP was a
reasonable one. The court also rejected petitioners' arguments
regarding MOBILE6.2 and found that EPA had in fact provided adequate
notice and comment on its decision not to require quantitative PM hot-
spot analyses using MOBILE6.2 due to the model's technical limitations
at the project-level (71 FR 12498-12502).
However, the court remanded to EPA for further explanation of the
Agency's interpretation of Clean Air Act section 176(c)(1)(B)(iii). The
court instructed EPA on remand to interpret how this provision of the
Act is met within the local area affected by an individual project, or
explain why this statutory provision does not apply within such an
area. Environmental Defense v. EPA, 509 F.3d. 553 (DC Cir. 2007).
Today's proposal is intended to respond to this part of the court's
decision.
B. Proposal
EPA is proposing to make two minor changes to section 93.116(a) of
the conformity rule to address the court's remand. First, EPA is
explicitly stating in this provision that federally funded or approved
highway and transit projects in PM2.5 and PM10
[[Page 23038]]
nonattainment and maintenance areas must meet the requirements of Clean
Air Act section 176(c)(1)(B)(iii) within the local area affected by the
project. EPA is also proposing to make explicit in Sec. 93.116 the
existing requirement that projects must be included in a regional
emissions analysis under 40 CFR 93.118 or 93.119. Consistent with the
Court's decision, EPA is not proposing additional requirements, such as
requiring that an individual project reduce emissions in the local
project area.
EPA is not proposing any substantive changes to existing
requirements for project-level conformity determinations. Under today's
proposal, project-level conformity determinations, including any hot-
spot analyses, would continue to be performed in the same manner as
current practice. Projects would continue to be required to be a part
of a regional emissions analysis that supports a conforming
transportation plan and TIP. Hot-spot analyses would need to
demonstrate that during the time frame of the transportation plan no
new local violations would be created and the severity or number of
existing violations would not be increased as a result of a new
project. By making these demonstrations, it can be assured that the
project would not delay timely attainment or any required interim
reductions or milestones, as described further below. In addition,
project sponsors would continue to document the hot-spot analysis as
part of the project-level conformity determination, and the public
would continue to be able to comment on any aspects of the conformity
determination through existing public involvement requirements.
EPA notes that today's proposal would also address new projects in
CO nonattainment and maintenance areas, since the hot-spot analysis
requirements in section 93.116(a) also apply to such areas. Although
the March 2006 final rule and the December 2007 court case did not
involve CO hot-spot requirements, EPA believes it is appropriate to
clarify that Clean Air Act section 176(c)(1)(B)(iii) must also be met
for projects in CO nonattainment and maintenance areas.
Solely for purposes of ensuring that state and local implementers
and the public understand today's proposed change within the context of
existing conformity requirements, EPA is also including section
93.116(a) regulatory text in its entirety in today's proposal. However,
EPA is not proposing to amend the existing regulatory text in 40 CFR
93.116(a) that is not addressed by the issues discussed in today's
proposal. As described above, EPA is proposing only to add regulatory
text to section 93.116(a) to clarify that federally funded or approved
highway and transit projects in PM2.5, PM10, and
CO nonattainment and maintenance areas must meet the requirements of
Clean Air Act section 176(c)(1)(B)(iii) within the local area affected
by the project. EPA is not reopening for public comment any other
aspects of the current section 93.116(a), or any other provisions in
the conformity rule regarding project-level conformity determinations
(e.g., what projects require hot-spot analyses or methodology
requirements, as described in 40 CFR 93.123).
C. Rationale
1. General
Project-level conformity determinations must demonstrate that all
of the requirements in Clean Air Act section 176(c)(1)(B) are met.
Section 176(c)(1)(B) defines conformity to a SIP to mean ``that such
activities will not (i) cause or contribute to any new violation of any
NAAQS in any area; (ii) increase the frequency or severity of any
existing violation of any NAAQS in any area; or (iii) delay timely
attainment of any NAAQS or any required interim emission reductions or
other milestones in any area.''
In Environmental Defense, the court held that EPA did not explain
how it interpreted the language of Clean Air Act section
176(c)(1)(B)(iii) in conjunction with related language in sections
176(c)(1)(B)(i) and (ii). Although section 93.116(a) of the existing
conformity rule includes the statutory text for section 176(c)(1)(B)(i)
and (ii), it does not explicitly include the statutory language in
section 176(c)(1)(B)(iii). The court stated that, if ``any area'' in
the first two provisions refers to a ``local area,'' then EPA must
either interpret the term ``any area'' in section 176(c)(1)(B)(iii) to
also mean ``local area,'' or explain why a different interpretation is
reasonable. 509 F.3d at 560-61. EPA agrees with the court that it is
reasonable to conclude that all of section 176(c)(1)(B) requirements
must be met in the local project area.
EPA believes that its existing conformity hot-spot regulations, as
well as other conformity requirements, already require that individual
projects comply with section 176(c)(1)(B)(iii) in the local project
area. EPA has always intended the term ``any area'' in all three
statutory provisions of section 176(c)(1)(B) to include the local area
affected by the emissions produced by a new project. For example, as
EPA stated in the March 2006 final hot-spot rule (71 FR 12483), ``a
regional emissions analysis for an area's entire planned transportation
system is not sufficient to ensure that individual projects meet the
requirements of section 176(c)(1)(B) where projects could have a
localized air quality impact.''
To implement section 176(c)(1)(B) requirements in PM2.5,
PM10, and CO nonattainment and maintenance areas (40 CFR
93.109(b)), EPA's current conformity rule requires project-level
conformity determinations to address the regional and local emissions
impacts from new projects. Section 93.115(a) requires that an
individual project must be consistent with the emissions projections
and control measures in the SIP, either by inclusion in a conforming
transportation plan and TIP or through a separate demonstration (and
regional emissions analysis developed under 40 CFR 93.118 or 93.119).
In addition, section 93.116(a) requires that some project-level
conformity determinations include a hot-spot analysis that demonstrates
emissions from a single project do not negatively impact air quality
within the area substantially affected by the project.\19\ Through
meeting all of these requirements, it can be assured that a project
does not cause or contribute to a new or worsened air quality
violation, delay timely attainment, or delay required interim emission
reductions or other milestones.
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\19\ Hot-spot analyses must be based on the latest data and
models under 40 CFR 93.109(b), 93.111, and 93.123, and therefore any
growth in other emissions sources or the impact of new or existing
emissions controls (including those in any required SIP) would
always be considered in a hot-spot analysis prior to approving a
project.
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However, in light of the court's request for further explanation,
EPA is clarifying in this proposal that it interprets the term ``any
area'' in Clean Air Act section 176(c)(1)(B) to mean any portion of a
nonattainment or maintenance area, including the local area affected by
a transportation project. The proposed clarifications and the existing
conformity requirements ensure that transportation planners address the
requirement that there be no delay in timely attainment or required
interim reductions or other milestones in the local project area.
EPA notes that Clean Air Act section 176(c)(1)(B)(iii) does not
require an individual project to reduce emissions in the local project
area for it to be consistent with the requirement not to delay timely
attainment or required interim reductions or milestones, as EPA
explained in the preamble to its March 2006 hot-spot regulations (71 FR
12482), with which the Court agreed.
[[Page 23039]]
See also Environmental Defense v. EPA, 467 F.3d 1329, 1337 (DC Cir.
2006) (``EPA argues, and we agree, that conformity to a SIP can be
demonstrated by using the build/no-build test, even if individual
transportation plans do not actively reduce emissions''). Clean Air Act
section 176(c)(1)(B)(iii) does not require a new project to mitigate
new or worsened air quality violations that it does not cause. This
statutory provision also does not require a new project to contribute
new interim reductions beyond those that are already required in the
SIP.
The only case where Congress specifically required individual
projects to provide emission reductions in hot-spot analyses is for
projects in certain CO nonattainment areas. Clean Air Act section
176(c)(3)(B)(ii) requires individual projects in CO nonattainment areas
to ``eliminate or reduce the severity and number of violations of the
carbon monoxide NAAQS in areas substantially affected by the project.''
\20\ Since Congress did not establish such a requirement for any
project in PM2.5 and PM10 areas under section
176(c)(3)(B)(ii), and for the reasons described in today's proposal,
EPA does not interpret such a requirement to apply to projects in
PM2.5 or PM10 areas under section
176(c)(1)(B)(iii).
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\20\ This requirement is included in section 93.116(b) of the
existing conformity rule.
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2. Requirement for No Delay in Timely Attainment of the NAAQS
Today's proposal would clarify that a project would meet Clean Air
Act section 176(c)(1)(B)(iii) requirements not to delay timely
attainment as long as no new or worsened violations are predicted to
occur, which is already required under the existing hot-spot
requirements. While overall emissions can increase in a local area
above those expected without a new project's implementation, a project
will not delay timely attainment if air quality concentrations meet
federal air quality NAAQS or air quality is improved from what would
have occurred without the new project's implementation.
For example, suppose a hot-spot analysis is performed for a new
highway project that is predicted to significantly increase the number
of diesel trucks from what is expected in the local area without the
project. A year is chosen in this example to analyze when peak
emissions from the project are expected and future air quality is most
likely to be impacted due to the cumulative impacts of the project and
background emissions in the project area. Under both the current
conformity rule and the proposed clarification, the project would meet
section 176(c)(1)(B)(iii) requirements not to delay timely attainment
in the local project area as long as the project's new emissions do not
create new violations or worsen existing violations in the local
project area. Such a demonstration would examine the total impact of
the project's new emissions in the context of the future transportation
system, any expected growth in other emissions sources, and any
existing or new control measures that are expected to impact the local
project area. If the hot-spot analysis demonstrated that the proposed
project would improve or not impact air quality, then timely attainment
would also not be delayed from what would have occurred without the
project. In contrast, if such a project increased emissions enough to
cause a new violation or worsen an existing violation in the local
project area, then the project would delay timely attainment, since
worsening air quality above the NAAQS would impede the ability to
attain in the local project area. In such a case, the project could not
be found to conform until the new or worsened future violation was
mitigated.
3. Requirement for No Delay in Timely Attainment of Any Required
Interim Reductions or Milestones
Today's proposal also ensures that a project would meet Clean Air
Act section 176(c)(1)(B)(iii) requirements for no delay in the timely
attainment of any required interim reductions or other milestones. EPA
interprets ``any required interim emission reductions or other
milestones'' to refer to Clean Air Act requirements associated with
reductions and milestones addressed by reasonable further progress
SIPs, rather than other reductions required for other purposes.
However, EPA believes there is added value in referencing in section
93.116(a) the existing conformity requirement that a project be
consistent with the budgets and control measures in any applicable SIP.
Therefore, EPA is proposing to clarify that this requirement is
satisfied in the local project area if a project is consistent with the
motor vehicle emissions budget(s) and control measures in the
applicable SIP or interim emission test(s) (in the absence of a SIP
budget). Although such a demonstration is already required under the
current rule, EPA's proposed reference to the requirements in 40 CFR
93.118 and 93.119 would clarify that a project's emissions--when
combined with all other emissions from all other existing and other
proposed transportation projects--are consistent with any applicable
required interim reductions and milestones.
Today's proposal also supports the implementation of control
measures that are relied upon in reasonable further progress
demonstrations and could impact air quality in the local project area.
Under the existing conformity rule, control measures that are relied
upon for reasonable further progress SIPs must have sufficient state
and local commitments to be included in a regional emissions analysis
or a hot-spot analysis. If the implementation of a control measure is
not assured, then such reductions cannot be included in the regional
emissions analysis for the entire nonattainment or maintenance area (40
CFR 93.122(a)) or within the local project area considered in a hot-
spot analysis (40 CFR 93.123(c)(3) and (4)). EPA believes that these
existing requirements also ensure that ``any required interim emissions
reductions or other milestones'' are not delayed within a local project
area as a result of a single project's emissions.
For example, a project may not meet Clean Air Act section
176(c)(1)(B)(iii) requirements if SIP control measures were not being
implemented as expected and as a result, a project's emissions (when
combined with expected future emissions without the SIP control
measures) caused a new violation or worsened an existing violation in
the local project area. In such a case, additional control measures as
part of the conformity determination may be required in order to offset
any emissions increases from a project.
Today's proposal would also result in all Clean Air Act section
176(c)(1)(B)(iii) requirements being met when air quality improves as a
result of the project, e.g., an existing air quality violation that
would have occurred without the project is estimated to be reduced or
eliminated if the new project were implemented. EPA believes that all
of section 176(c)(1)(B) requirements would be met in the local project
area in such a case since the Act requires that individual projects do
not worsen air quality or affect an area's ability to attain or achieve
interim requirements. Certainly, if air quality improves in the local
project area with the implementation of a new project, EPA believes
that timely attainment and required reasonable further progress interim
requirements are not delayed. In fact, the opposite would be true in
such a case, since future air quality would be improved and attainment
possibly expedited from what would have occurred without the project's
implementation.
[[Page 23040]]
4. Summary
In summary, today's proposed clarifications and the existing
conformity rule would ensure that transportation projects meet Clean
Air Act section 176(c)(1)(B)(iii) requirements. As long as a
transportation project does not worsen air quality concentrations
within the local project area, and is consistent with the motor vehicle
emissions budget(s) and control measures in the applicable SIP or
interim emissions test(s) (in the absence of budgets), it would not
delay timely attainment, or interfere with required interim reductions
and other milestones, even if it does not reduce emissions levels
within a project's location. For these reasons, EPA is not proposing to
add any new requirements to the existing conformity rule. Instead, EPA
is proposing simply to clarify the rule in Sec. 93.116(a) to address
the Environmental Defense court's remand of the March 2006 hot-spot
regulation for further explanation of the applicability of Clean Air
Act section 176(c)(1)(B)(iii).
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735; October 4, 1993), this
action is a ``significant regulatory action'' because it raises novel
legal and policy issues. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under EO 12866 and any
changes made in response to OMB recommendations have been documented in
the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
The information collection requirements of EPA's existing
transportation conformity regulations and the proposed revisions in
today's action are already covered by EPA information collection
request (ICR) entitled, ``Transportation Conformity Determinations for
Federally Funded and Approved Transportation Plans, Programs and
Projects.'' The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations at 40 CFR part 93 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0561. The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to prepare a regulatory flexibility analysis of rules subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the Agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
organizations and small government jurisdictions.
For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise that is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed 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. We continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
The purpose of this proposal is to amend the conformity rule to clarify
how certain highway and transit projects meet statutory conformity
requirements for particulate matter (PM) in response to a December 2007
court ruling, and to update the regulation to accommodate revisions to
the PM10 and PM2.5 NAAQS. This proposal 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 proposal is not
subject to the requirements of sections 202 and 205 of the UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule will not
significantly or uniquely impact small governments because it directly
affects federal agencies and metropolitan planning organizations that,
by definition, are designated under federal transportation laws only
for metropolitan areas with a population of at least 50,000.
E. Executive Order 13132: Federalism
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 states, on the relationship
between the national government and states, or on the distribution of
power and responsibilities among the various levels of government, as
specified in Executive Order 13132. The Clean Air Act requires
conformity to apply in certain nonattainment and maintenance areas as a
matter of law, and this proposed 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 communication 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
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The Clean Air
Act requires transportation conformity to apply in
[[Page 23041]]
any area that is designated nonattainment or maintenance by EPA. This
proposal would amend the conformity rule to clarify how certain highway
and transit projects meet statutory conformity requirements for
particulate matter in response to a December 2007 court ruling, and to
update the conformity rule to accommodate revisions to the
PM10 and PM2.5 NAAQS. Because today's proposed
amendments to the conformity rule do not significantly or uniquely
affect the communities of Indian tribal governments, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
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 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 proposed rule is not subject to Executive Order 13045 because
the Agency does not have reason to believe the environmental health or
safety risks addressed by this action present a disproportionate risk
to children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 18355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. It does not create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency regarding energy. Further, this rule is not likely to
have any adverse energy effects because it does not raise novel legal
or policy issues adversely affecting the supply, distribution or use of
energy arising out of legal mandates, the President's priorities, or
the principles set forth in Executive Orders 12866 and 13211.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 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., material 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 proposal does not involve technical standards. Therefore, EPA
is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. This proposal would simply amend the conformity rule
to clarify how certain highway and transit projects meet statutory
requirements for particulate matter in response to a December 2007
court ruling, and updates the conformity rule to accommodate revisions
to the PM10 and PM2.5 NAAQS.
K. Determination Under Section 307(d)
Pursuant to Clean Air Act Section 307(d)(1)(U), the Administrator
determines that this section is subject to the provisions of section
307(d). Section 307(d)(1)(U) provides that the provisions of section
307(d) apply to ``such other actions as the Administrator may
determine.''
List of Subjects in 40 CFR Part 93
Administrative practice and procedure, Air pollution control,
Carbon monoxide, Clean Air Act, Environmental protection, Highways and
roads, Intergovernmental relations, Mass transportation, Nitrogen
dioxide, Ozone, Particulate matter, Transportation, Volatile organic
compounds.
Dated: May 6, 2009.
Lisa P. Jackson,
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.
2. Section 93.101 is amended by adding new definitions for ``24-
hour PM10 NAAQS'', ``1997 PM2.5 NAAQS'', ``2006
PM2.5 NAAQS'', and ``Annual PM10 NAAQS'' to read
as follows:
Sec. 93.101 Definitions.
* * * * *
24-hour PM10 NAAQS means the 24-hour PM10 national
ambient air quality standard codified at 40 CFR 50.6.
* * * * *
1997 PM2.5 NAAQS means the PM2.5 national ambient air
quality standards codified at 40 CFR 50.7.
* * * * *
2006 PM2.5 NAAQS means the 24-hour PM2.5 national
ambient air quality standard codified at 40 CFR 50.13.
* * * * *
Annual PM10 NAAQS means the annual PM10 national ambient
air quality standard that EPA revoked on December 18, 2006.
* * * * *
Sec. 93.105 [Amended]
3. Section 93.105 is amended in paragraph (c)(1)(vi) by removing
the citation ``Sec. 93.109(l)(2)(iii)'' and adding in its place
``Sec. 93.109(n)(2)(iii)''.
4. Section 93.109 is amended as follows:
a. In paragraph (b):
i. By removing the citation ``(c) through (i)'' and adding in its
place the citation ``(c) through (k)'';
ii. By removing the reference ``(j)'' and adding in its place
``(l)'';
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iii. By removing the reference ``(k)'' and adding in its place
``(m)'';
iv. By removing the reference ``(l)'' and adding in its place
``(n)'';
b. By revising paragraph (g)(2) introductory text;
c. By redesignating paragraph (g)(3) as (g)(4);
d. By adding new paragraph (g)(3);
e. By revising the heading of paragraph (i);
f. By adding the words ``such 1997'' before the words
``PM2.5 nonattainment and maintenance areas'' in paragraphs
(i)(1), (i)(2) introductory text, and (i)(3);
g. By redesignating paragraphs (j), (k), and (l) as (l), (m), and
(n), respectively;
h. In newly designated paragraph (n)(2) introductory text by
removing the citation ``(c) through (k)'' and adding in its place the
citation ``(c) through (m)'';
i. In newly designated paragraph (n)(2)(iii):
i. By removing the citation ``(l)(2)(ii)'' and adding in its place
the citation ``(n)(2)(ii)'';
ii. By removing the citation ``(l)(2)(ii)(C)'' and adding in its
place the citation ``(n)(2)(ii)(C)'';
j. By adding new paragraphs (j) and (k).
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
* * * * *
(g) * * *
(2) In PM10 nonattainment and maintenance areas where a
budget is submitted for the 24-hour PM10 NAAQS, the budget
test must be satisfied as required by Sec. 93.118 for conformity
determinations made on or after:
* * * * *
(3) Prior to paragraph (g)(2) of this section applying, the budget
test must be satisfied as required by Sec. 93.118 using the approved
or adequate motor vehicle emissions budget established for the revoked
annual PM10 NAAQS, if such a budget exists.
* * * * *
(i) 1997 PM2.5 nonattainment and maintenance areas. * * *
(j) 2006 PM2.5 NAAQS nonattainment and maintenance areas without
1997 PM2.5 NAAQS motor vehicle emissions budgets for any portion of the
2006 PM2.5 NAAQS area. In addition to the criteria listed in Table 1 in
paragraph (b) of this section that are required to be satisfied at all
times, in such 2006 PM2.5 nonattainment and maintenance
areas conformity determinations must include a demonstration that the
budget and/or interim emissions tests are satisfied as described in the
following:
(1) FHWA/FTA projects in such PM2.5 nonattainment and
maintenance areas must satisfy the appropriate hot-spot test required
by Sec. 93.116(a).
(2) In such PM2.5 nonattainment and maintenance areas
the budget test must be satisfied as required by Sec. 93.118 for
conformity determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for the 2006 PM2.5 NAAQS is
adequate for transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(3) In such PM2.5 nonattainment areas the interim
emissions tests must be satisfied as required by Sec. 93.119 for
conformity determinations made if there is no approved motor vehicle
emissions budget from an applicable implementation plan for the 2006
PM2.5 NAAQS and no adequate motor vehicle emissions budget
from a submitted control strategy implementation plan revision or
maintenance plan for the 2006 PM2.5 NAAQS.
(k) 2006 PM2.5 NAAQS nonattainment and maintenance areas with motor
vehicle emissions budgets for the 1997 PM2.5 NAAQS that cover all or a
portion of the 2006 PM2.5 nonattainment area. In addition to the
criteria listed in Table 1 in paragraph (b) of this section that are
required to be satisfied at all times, in such 2006 PM2.5
nonattainment and maintenance areas conformity determinations must
include a demonstration that the budget and/or interim emissions tests
are satisfied as described in the following:
(1) FHWA/FTA projects in such PM2.5 nonattainment and
maintenance areas must satisfy the appropriate hot-spot test required
by Sec. 93.116(a).
(2) In such PM2.5 nonattainment and maintenance areas
the budget test must be satisfied as required by Sec. 93.118 for
conformity determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation plan
revision or maintenance plan for the 2006 PM2.5 NAAQS is
adequate for transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget in the
Federal Register; or
(iii) The effective date of EPA's approval of such a budget in the
Federal Register, if such approval is completed through direct final
rulemaking.
(3) Prior to paragraph (k)(2) of this section applying, the
following test(s) must be satisfied:
(i) If the 2006 PM2.5 nonattainment area covers the same
geographic area as the 1997 PM2.5 nonattainment or
maintenance area(s), the budget test as required by Sec. 93.118 using
the approved or adequate motor vehicle emissions budgets in the 1997
PM2.5 applicable implementation plan or implementation plan
submission;
(ii) If the 2006 PM2.5 nonattainment area covers a
smaller geographic area within the 1997 PM2.5 nonattainment
or maintenance area(s), the budget test as required by Sec. 93.118 for
either:
(A) The 2006 PM2.5 nonattainment area using
corresponding portion(s) of the approved or adequate motor vehicle
emissions budgets in the 1997 PM2.5 applicable
implementation plan or implementation plan submission where such
portion(s) can reasonably be identified through the interagency
consultation process required by Sec. 93.105; or
(B) The 1997 PM2.5 nonattainment area using the approved
or adequate motor vehicle emissions budgets in the 1997
PM2.5 applicable implementation plan or implementation plan
submission. If additional emissions reductions are necessary to meet
the budget test for the 2006 PM2.5 NAAQS in such cases,
these emissions reductions must come from within the 2006
PM2.5 nonattainment area;
(iii) If the 2006 PM2.5 nonattainment area covers a
larger geographic area and encompasses the entire 1997 PM2.5
nonattainment or maintenance area(s):
(A) The budget test as required by Sec. 93.118 for the portion of
the 2006 PM2.5 nonattainment area covered by the approved or
adequate motor vehicle emissions budgets in the 1997 PM2.5
applicable implementation plan or implementation plan submission; and
the interim emissions tests as required by Sec. 93.119 for either: The
portion of the 2006 PM2.5 nonattainment area not covered by
the approved or adequate budgets in the 1997 PM2.5
implementation plan, the entire 2006 PM2.5 nonattainment
area, or the entire portion of the 2006 PM2.5 nonattainment
area within an individual state, in the case where separate 1997
PM2.5 SIP budgets are established for each state of a multi-
state 1997 PM2.5 nonattainment or maintenance area; or
(B) The budget test as required by Sec. 93.118 for the entire 2006
PM2.5 nonattainment area using the approved or adequate
motor vehicle emissions budgets in the applicable 1997 PM2.5
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implementation plan or implementation plan submission.
(iv) If the 2006 PM2.5 nonattainment area partially
covers a 1997 PM2.5 nonattainment or maintenance area(s):
(A) The budget test as required by Sec. 93.118 for the portion of
the 2006 PM2.5 nonattainment area covered by the
corresponding portion of the approved or adequate motor vehicle
emissions budgets in the 1997 PM2.5 applicable
implementation plan or implementation plan submission where they can be
reasonably identified through the interagency consultation process
required by Sec. 93.105; and
(B) The interim emissions tests as required by Sec. 93.119, when
applicable, for either: The portion of the 2006 PM2.5
nonattainment area not covered by the approved or adequate budgets in
the 1997 PM2.5 implementation plan, the entire 2006
PM2.5 nonattainment area, or the entire portion of the 2006
PM2.5 nonattainment area within an individual state, in the
case where separate 1997 PM2.5 SIP budgets are established
for each state in a multi-state 1997 PM2.5 nonattainment or
maintenance area.
* * * * *
5. Section 93.116 is amended by revising paragraph (a) to read as
follows:
Sec. 93.116 Criteria and procedures: Localized CO, PM10,
and PM2.5 violations (hot-spots).
(a) This paragraph applies at all times. The FHWA/FTA project must
not cause or contribute to any new localized CO, PM10, and/
or PM2.5 violations, increase the frequency or severity of
any existing CO, PM10, and/or PM2.5 violations,
or delay timely attainment of any standard or any required interim
emission reductions or other milestones in CO, PM10, and
PM2.5 nonattainment and maintenance areas. This criterion is
satisfied without a hot-spot analysis in PM10 and
PM2.5 nonattainment and maintenance areas for FHWA/FTA
projects that are not identified in Sec. 93.123(b)(1). This criterion
is satisfied for all other FHWA/FTA projects in CO, PM10 and
PM2.5 nonattainment and maintenance areas if it is
demonstrated that during the time frame of the transportation plan no
new local violations will be created and the severity or number of
existing violations will not be increased as a result of the project,
and the project has been included in a regional emissions analysis that
meets applicable Sec. Sec. 93.118 and/or 93.119 requirements. The
demonstration must be performed according to the consultation
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements
of Sec. 93.123.
Sec. 93.118 [Amended]
6. Section 93.118 is amended in paragraph (a) by removing the
citation ``Sec. 93.109(c) through (l)'' and adding in its place
``Sec. 93.109(c) through (n)''.
7. Section 93.119 is amended as follows:
a. In paragraph (a), by removing the citation ``Sec. 93.109(c)
through (l)'' and adding in its place ``Sec. 93.109(c) through (n)'';
and
b. By revising paragraph (e)(2).
Sec. 93.119 Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.
* * * * *
(e) * * *
Option 1 for paragraph (e)(2):
(2) The emissions predicted in the ``Action'' scenario are not
greater than:
(A) 2002 emissions, in areas designated nonattainment for the 1997
PM2.5 NAAQS as described in Sec. 93.109(i); or
(B) 2008 emissions, in areas designated nonattainment for the 2006
PM2.5 NAAQS as described in Sec. 93.109(j) and (k).
Option 2 for paragraph (e)(2):
(2) The emissions predicted in the ``Action'' scenario are not
greater than:
(A) 2002 emissions, in areas designated nonattainment for the 1997
PM2.5 NAAQS; or
(B) Emissions in the most recent year for which EPA's Air Emissions
Reporting Requirements (40 CFR Part 51, Subpart A) requires submission
of on-road mobile source emissions inventories, as of the effective
date of nonattainment designations for any PM2.5 NAAQS other
than the 1997 PM2.5 NAAQS.
* * * * *
Sec. 93.121 [Amended]
8. Section 93.121 is amended:
a. In paragraph (b) introductory text by removing the citation
``Sec. 93.109(l)'' and adding in its place ``Sec. 93.109(n)'';
b. In paragraph (c) introductory text by removing the citation
``Sec. 93.109(j) and (k)'' and adding in its place ``Sec. 93.109(l)
and (m)''.
[FR Doc. E9-11184 Filed 5-14-09; 8:45 am]
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