[Federal Register Volume 68, Number 214 (Wednesday, November 5, 2003)]
[Proposed Rules]
[Pages 62690-62729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27372]
[[Page 62689]]
-----------------------------------------------------------------------
Part III
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 93
Transportation Conformity Rule Amendments for the New 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas; Proposed Rule
Federal Register / Vol. 68, No. 214 / Wednesday, November 5, 2003 /
Proposed Rules
[[Page 62690]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[FRL-7579-8]
RIN 2060-AL73
Transportation Conformity Rule Amendments for the New 8-Hour
Ozone and PM2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Today we (EPA) are proposing to amend the transportation
conformity rule to include criteria and procedures for the new 8-hour
ozone and fine particulate matter (PM2.5) national ambient
air quality standards (NAAQS or ``standards''). Transportation
conformity is required under Clean Air Act section 176(c) to ensure
that federally supported highway and transit project activities are
consistent with (``conform to'') the purpose of a State air quality
implementation plan (SIP). We are conducting this rulemaking to revise
the conformity regulation in the context of EPA's broader strategies
for implementing the new ozone and PM2.5 standards.
The proposal provides guidance for when conformity will first apply
in areas that are designated nonattainment for the 8-hour ozone and
PM2.5 standards. This portion of the proposal discusses the
implementation of the statutory one-year conformity grace period and
proposed revocation of the 1-hour ozone standard, although EPA is not
seeking comment through today's proposal on the revocation options
themselves. Today's proposal also describes when transportation
conformity applies in areas that have approved 8-hour ozone Early
Action Compacts (EACs).
The proposal also describes the general requirements for conducting
conformity determinations for the new standards, such as the conformity
test(s) that would apply before and after adequate or approved SIP
motor vehicle emissions budgets are established. In addition, this
rulemaking proposes to amend the conformity regulations to specifically
include PM2.5 as a criteria pollutant subject to
transportation conformity and outlines the specific conformity
requirements that would apply in newly designated PM2.5
nonattainment areas. In particular, the proposal includes options for
when conformity would apply for various PM2.5 precursors and
fugitive dust, as well as options for PM2.5 hot-spot
requirements for project-level conformity determinations. EPA seeks
comments and suggestions for future guidance on adjusting fugitive dust
emissions for PM2.5 conformity analyses.
In addition to issues related to the new ozone and PM2.5
standards, EPA is proposing a few miscellaneous rule revisions to
clarify the existing regulation and improve implementation.
The Department of Transportation (DOT) is EPA's Federal partner in
implementing the transportation conformity regulation. We have
consulted with DOT on the development of this rulemaking and DOT
concurs with this proposal. EPA has also met with transportation and
environmental organizations to discuss this rulemaking and the proposal
reflects the comments that we received through these stakeholder
discussions.
DATES: Written comments on this proposal must be received on or before
December 22, 2003. EPA will conduct one public hearing on this proposal
beginning at 9:30 a.m. on Thursday, December 4, 2003, in Washington,
DC. As described in Section XVI. of this proposal, the hearing will
continue throughout the day until all testimony has been presented or 5
p.m., whichever is earlier.
ADDRESSES: Comments may be submitted by mail to: Air Docket,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR-2003-0049.
Comments may also be submitted electronically, by facsimile, or through
hand delivery/courier. Follow the detailed instructions for submission
as provided in section I.C. of the SUPPLEMENTARY INFORMATION section.
The public hearing will be held in Washington, DC, at the
Washington Marriott Hotel at 1221 22nd St., NW., Washington, DC 20037,
(202) 872-1500.
FOR FURTHER INFORMATION CONTACT: Meg Patulski, State Measures and
Conformity Group, Transportation and Regional Programs Division, U.S.
Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI
48105, [email protected], (734) 214-4842; or, Rudy Kapichak, State
Measures and Conformity Group, Transportation and Regional Programs
Division, U.S. Environmental Protection Agency, 2000 Traverwood Road,
Ann Arbor, MI 48105, [email protected], (734) 214-4574.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. General Information
A. Regulated Entities
B. How Can I Get Copies of This Document?
C. How and to Whom Do I Submit Comments?
D. How Should I Submit CBI to the Agency?
E. What Should I Consider as I Prepare My Comments for EPA?
II. Background on the Transportation Conformity Rule
A. What Is Transportation Conformity?
B. Why Is EPA Conducting This Rulemaking?
C. Does This Proposal Include the Entire Transportation
Conformity Regulation?
III. Conformity Grace Period and Revocation of the 1-Hour Ozone
Standard
A. When Will Conformity Apply for the 8-Hour Ozone and
PM2.5 Standards?
B. When Does Conformity Stop Applying for the 1-Hour Ozone
Standard?
C. When and for What Ozone Standard Does Conformity Apply in
Areas With an Early Action Compact for the 8-Hour Ozone Standard?
IV. General Changes in Interim Emissions Tests
A. Background
B. Baseline Year Test for 8-Hour Ozone and PM2.5
Areas
C. Build/No-Build Test for Existing and New Nonattainment Areas
D. Test Options for Ozone and CO Nonattainment Areas of Higher
Classifications
V. Regional Conformity Tests in 8-Hour Ozone Areas That Do Not Have
1-Hour Ozone SIPs
A. What Are We Proposing?
B. Why Are We Proposing These Options?
VI. Regional Conformity Tests in 8-Hour Ozone Areas That Have 1-Hour
Ozone SIPs
A. What Are We Proposing?
B. Why Are We Proposing These Options?
VII. Regional Conformity Tests in PM2.5 Areas
A. What Are We Proposing?
B. Why Are We Proposing These Options?
VIII. Consideration of Direct PM2.5 and PM2.5
Precursors in Regional Emissions Analyses
A. What Are We Proposing?
B. Why Are We Proposing These Options?
IX. Re-Entrained Road Dust in PM2.5 Regional Emissions
Analyses
A. Background
B. What Are We Proposing?
C. Why Are We Proposing These Options?
D. Request for Comment on Estimating Road Dust Emissions
X. Construction-Related Fugitive Dust in PM2.5 Regional
Emissions Analyses
A. Background
B. What Are We Proposing?
C. Why Are We Proposing This Option?
D. Implementation and Request for Additional Information
XI. Compliance With PM2.5 SIP Control Measures
[[Page 62691]]
A. What Are We Proposing?
B. Why Are We Proposing This Option?
XII. PM2.5 Hot-Spot Analyses
A. What Are We Proposing?
B. Existing Research on PM2.5 Hot-Spots and Request for
Additional Information
C. Why Are We Proposing These Options?
XIII. PM10 Hot-spot Analyses
D. What Are We Proposing?
E. Why Are We Considering These Options?
XIV. Miscellaneous Revisions for New and Existing Areas
A. Definitions
B. Areas with Insignificant Motor Vehicle Emissions
C. Limited Maintenance Plans
D. Grace Period for Transportation Modeling and Plan Content
Requirements in Certain Ozone and CO Areas
E. Minor Clarification to the List of PM10 Precursors
F. Clarification of Requirements for Non-federal Projects in
Isolated Rural Areas
G. Use of Adequate and Approved Budgets in Conformity
XV. How Does Today's Proposal Affect Conformity SIPs?
XVI. Public Hearing
XVII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
G. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Regulated Entities
Entities potentially regulated by the conformity rule are those
that adopt, approve, or fund transportation plans, programs, or
projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories
and entities affected by today's action include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Local government....................... Local transportation and air
quality agencies, including
metropolitan planning
organizations (MPOs).
State government....................... State transportation and air
quality agencies.
Federal government..................... Department of Transportation
(Federal Highway
Administration (FHWA) and
Federal Transit Administration
(FTA)).
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
proposed rule. This table lists the types of entities of which EPA is
aware that potentially could be regulated by the conformity rule. Other
types of entities not listed in the table could also be regulated. To
determine whether your organization is regulated by this action, you
should carefully examine the applicability requirements in Sec. 93.102
of the transportation conformity rule. If you have questions regarding
the applicability of this action to a particular entity, consult the
persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. How Can I Get Copies of This Document?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OAR-2003-0049. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Air Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
2. Electronic Access. You may access this Federal Register document
electronically through EPA's Transportation Conformity Web site at
http://www.epa.gov/otaq/transp/traqconf.htm. You may also access this
document electronically under the Federal Register listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information for which disclosure
is restricted by statute is not included in the official public docket
and will not be available for public viewing in EPA's electronic public
docket. EPA's policy is that copyrighted material will not be placed in
EPA's electronic public docket but will be available only in printed,
paper form in the official public docket. To the extent feasible,
publicly available docket materials will be made available in EPA's
electronic public docket. When a document is selected from the index
list in EPA Dockets, the system will identify whether the document is
available for viewing in EPA's electronic public docket. Although not
all docket materials may be available electronically, you may still
access any of the publicly available docket materials through the
docket facility identified in section I.B.1. above. EPA intends to work
towards providing electronic access in the future to all of the
publicly available docket materials through EPA's electronic public
docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information for which
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
[[Page 62692]]
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify the appropriate docket identification number in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
Although EPA is not required to consider these late comments, we may do
so as appropriate, considering time and volume constraints.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. You should also include this contact information on
the outside of any disk or CD ROM you submit, and in any cover letter
accompanying the disk or CD ROM. This ensures that you can be
identified as the submitter of the comment and allows EPA to contact
you in case EPA cannot read your comment due to technical difficulties
or needs further information on the substance of your comment. EPA's
policy is that EPA will not edit your comment, and any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket,
and made available in EPA's electronic public docket. However, if EPA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to further consider
your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0049. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Air Docket ID No. OAR-2003-0049. In
contrast to EPA's electronic public docket, EPA's e-mail system is not
an ``anonymous access'' system. If you send an e-mail comment directly
to the docket without going through EPA's electronic public docket,
EPA's e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and are thus made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in section I.C.2. These
electronic submissions will be accepted only in either WordPerfect or
ASCII file format. Please avoid the use of special characters and any
form of encryption, as this may adversely affect our ability to read
these submissions.
2. By Mail. Send two copies of your comments to: Air Docket,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR-2003-0049.
3. By Hand Delivery or Courier. Deliver two copies of your comments
to: EPA Docket Center, Room B102, EPA West Building, 1301 Constitution
Avenue, NW., Washington, DC, Attention Air Docket ID No. OAR-2003-0049.
Such deliveries can only be accepted during the Docket's normal hours
of operation as identified in Section I.B.1.
4. By Facsimile. Fax your comments to: (202) 566-1741, Attention
Docket ID No. OAR-2003-0049.
D. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send or deliver information identified as ``CBI only'' to the following
address: Attention: Meg Patulski, State Measures and Conformity Group,
Transportation and Regional Programs Division, U.S. Environmental
Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 48105, Docket ID
No. OAR-2003-0049. You may claim information that you submit to EPA as
CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
publicly disclosed except in accordance with procedures set forth in 40
CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly indicating that it does not contain CBI.
Information not marked as CBI will be included in the public docket and
EPA's electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
E. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
[[Page 62693]]
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 federally supported highway
and transit project activities are consistent with (``conform to'') the
purpose of the state air quality implementation plan (SIP). Conformity
currently applies under EPA's rules to areas that are designated
nonattainment, and those redesignated to attainment after 1990
(``maintenance areas'' with plans developed under Clean Air Act section
175A) for the criteria pollutants: ozone, coarse particulate matter
(PM10), carbon monoxide (CO), and nitrogen dioxide
(NO2). Today's proposal would also apply the conformity rule
provisions in fine particulate matter (PM2.5) areas.
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the relevant national ambient
air quality standards (NAAQS or ``standards''). EPA's transportation
conformity rule establishes the criteria and procedures for determining
whether transportation activities conform to the SIP.
EPA first promulgated the transportation conformity rule on
November 24, 1993 (58 FR 62188), and subsequently published a
comprehensive set of amendments on August 15, 1997 (62 FR 43780) that
clarified and streamlined language from the 1993 rule. EPA has made
other smaller amendments to the rule both before and after the 1997
amendments.
On June 30, 2003, EPA published a proposal that would amend the
current conformity rule to be consistent with a March 2, 1999, U.S.
Court of Appeals decision (68 FR 38974). The ``court proposal'' also
included several proposed amendments to regulatory provisions that did
not directly result from the court decision. EPA has not yet taken a
final action on this proposed rulemaking. We are reviewing the public
comments on the court proposal and will promulgate a final rule in the
future.
Today's proposal should be considered a separate action from the
June 30, 2003 court proposal. However, some sections and paragraphs of
the conformity rule are addressed in both proposals. For those
sections, EPA has repeated the court proposal's regulatory language in
today's proposal along with the proposed revisions that address the
conformity requirements in 8-hour ozone and PM2.5 areas.
Other changes to the conformity program could occur through the
reauthorization of the Surface Transportation Act, currently entitled
the Transportation Equity Act for the 21st Century (TEA-21). However,
EPA believes it is prudent to expeditiously pursue the regulatory
changes proposed today to ensure that entities subject to conformity
for the new air quality standards understand applicable requirements as
close to area designations as possible. EPA will continue to monitor
the proposed reauthorization proposals for their potential impact on
the conformity regulation. If statutory amendments to the conformity
program result from TEA-21 reauthorization, EPA would take appropriate
action to address such changes.
EPA has consulted with the Department of Transportation (DOT), our
federal partners in implementing the transportation conformity
regulation, in developing this rulemaking, and DOT concurs with this
proposal. EPA has also met with state and local transportation and
environmental organizations to discuss this rulemaking. The proposal
reflects our consideration of the comments that we received through
these stakeholder discussions. Documentation of these stakeholder
meetings and specific comments are included in the docket for this
rulemaking.
B. Why Is EPA Conducting This Rulemaking?
EPA has developed new 8-hour ozone and PM2.5 air quality
standards, and anticipates designating areas as nonattainment for these
new standards in April and December 2004, respectively. EPA is
conducting this rulemaking to provide clear guidance and rules for
implementing conformity for these standards. Some of the proposed
revisions to the current regulation would provide more options and
flexibility in demonstrating conformity. Other proposed changes would
also apply to existing 1-hour ozone, CO, PM10 and
NO2 nonattainment and maintenance areas.
The following table provides a roadmap for determining whether a
specific proposal included in this rulemaking would apply in your area.
----------------------------------------------------------------------------------------------------------------
Issue being addressed
Type of area in this proposal Preamble section Proposed regulatory section
----------------------------------------------------------------------------------------------------------------
8-hour ozone................. Conformity grace III.A Sec. 93.102(d).
period.
Revocation of 1-hour III.B No proposed regulatory amendments.
ozone standard.
Early Action Compacts. III.C No proposed regulatory amendments.
Baseline year test.... IV.B Sec. 93.119(b).
Build/no-build test IV.C Sec. 93.119(b)(2).
(marginal and below Sec. 93.119(g)(2).
classifications and
subpart 1 areas).
Regional conformity IV.D Sec. 93.119(b)(1).
tests (moderate and
above
classifications).
Regional Conformity V Sec. 93.109(k).
tests (areas without
1-hour ozone budgets).
Regional conformity VI Sec. 93.109(e).
tests (areas with 1-
hour ozone budgets.
Definitions........... XIV.A. Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(d).
Sec. 93.121(c).
Transportation plan XIV.D Sec. 93.106(b).
and modeling Sec. 93.122(c).
requirements
(moderate and above
classifications).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
PM2.5........................ Applicability......... III.A Sec. 93.102(b)(1).
Conformity grace III.A Sec. 93.102(d)
period.
Baseline year test.... IV.B Sec. 93.119(e)
Build/no-build test... IV.C Sec. 93.119(e)
Sec. 93.119(g)(2)
Regional conformity VII Sec. 93.109(i)
tests.
[[Page 62694]]
Precursors in regional VIII Sec. 93.102(b)(2)
analyses. Sec. 93.119(f)
Re-entrained road dust IX Sec. 93.102(b)(3)
in regional analyses. Sec. 93.119(f)
Construction-related X Sec. 93.122(f)
fugitive dust in
regional analyses.
Compliance with SIP XI Sec. 93.117.
control measures.
Hot-spots............. XII No proposed regulatory amendments.
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k).
Sec. 93.121(c).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
1-hour ozone................. Revocation of 1-hour III.B No proposed regulatory amendments.
ozone standard.
Build/no-build test IV.C Sec. 93.119(b)(2).
(marginal and below Sec. 93.119(g)(2).
classifications).
Regional conformity IV.D Sec. 93.119(b)(1).
tests (moderate and
above
classifications).
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k)
Sec. 93.121(c).
Limited maintenance XIV.C Sec. 93.101.
plans. Sec. 93.109(j).
Sec. 93.121(c).
Transportation plan XIV.D Sec. 93.106(b).
and modeling Sec. 93.122(c).
requirements
(moderate and above
classifications).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(c).
of approved budgets
in conformity.
PM 10........................ Build/no-build test... IV.C Sec. 93.119(d).
Sec. 93.119(g)(2).
Compliance with SIP XI No proposed regulatory amendments.
control measures
(Request for
information only).
Hot-spots............. XIII No proposed regulatory amendments.
Clarification to XIV.E Sec. 93.102(b)(2).
Precursors. Sec. 93.119(f)(5).
Definitions........... XIV.A & Sec. 93.101.
Insignificance........ XIV.B & Sec. 93.109(k).
Sec. 93.121(c).
Limited maintenance XIV.C Sec. 93.101.
plans. Sec. 93.109(j).
Sec. 93.121(c).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(g).
of approved budgets
in conformity.
CO........................... Build/no-build test IV.C Sec. 93.119(c).
(lower CO Sec. 93.119(g)(2).
classifications).
Regional conformity IV.D Sec. 93.119(c)(1).
tests (higher CO
classifications).
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k).
Sec. 93.121(c).
Limited maintenance XIV.C Sec. 93.101.
plans. Sec. 93.109(j).
Sec. 93.121(c).
Transportation plan XIV.D Sec. 93.106(b).
and modeling Sec. 93.122(c).
requirements
(moderate and serious
classifications).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(f).
of approved budgets
in conformity.
NO2.......................... Build/no-build test... IV.C Sec. 93.119(d).
Sec. 93.119(g)(2).
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k).
Sec. 93.121(c).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(h).
of approved budgets
in conformity.
----------------------------------------------------------------------------------------------------------------
This table illustrates which parts of the proposal are relevant for
various pollutants and standards. Please note that Sections V.-VII.
provide stand-alone descriptions of the proposed emissions tests for
PM2.5 areas and 8-hour ozone areas with and without existing
1-hour ozone SIPs. For example, if your area expects only to be
designated nonattainment under the PM2.5 standard, you
should read section VII. but not sections V. and VI (for 8-hour ozone
areas). EPA believes that any redundancy between these sections
[[Page 62695]]
is warranted to assist readers who may not need to read the entire
proposal.
C. Does This Proposal Include the Entire Transportation Conformity
Regulation?
No. The proposed regulatory text is limited to proposed changes to
affected portions of the conformity rule. However, a complete version
of the conformity rule is available to the public on our transportation
conformity website listed in Section I.B.2. of this proposal. The
complete version is intended to help reviewers understand today's
proposed changes in context with the June 30, 2003 conformity proposal
and other existing rule sections that are not proposed to be changed.
III. Conformity Grace Period and Revocation of the 1-Hour Ozone
Standard
A. When Will Conformity Apply for the 8-Hour Ozone and PM2.5
Standards?
Conformity applies one year after the effective date of EPA's
initial nonattainment designation for a given pollutant and standard.
This one-year conformity grace period is provided by Clean Air Act
section 176(c)(6) and Sec. 93.102(d) of the conformity regulation.
Section 93.102(d) currently addresses newly designated
nonattainment areas for ozone, CO, PM10 and NO2.
This proposal would add PM2.5 to Sec. 93.102(d) of the
conformity rule even though the grace period is already available to
all newly designated nonattainment areas as a matter of law. Today's
proposed change would simply reflect the statutory flexibility in the
regulation.
Although the same pollutant, the 8-hour and 1-hour ozone standards
are different NAAQS. Therefore, every area that is designated
nonattainment for the 8-hour ozone standard will also have a 1-year
grace period before conformity applies for that standard, even if the
area was designated nonattainment for the 1-hour ozone standard. Areas
currently subject to conformity for the 1-hour ozone standard would
continue to be subject to such requirements during the 1-year grace
period for the 8-hour ozone standard. EPA anticipates designating areas
for the 8-hour ozone standard in April 2004. If, for example,
designations have a 30-day delayed effective date, conformity for the
8-hour ozone standard would begin to apply in May 2005, since under
EPA's regulations the one-year grace period begins upon the effective
date of an area's designation. EPA is proposing to include new
regulatory definitions for the 1-hour and 8-hour ozone standards in
Sec. 93.101. These proposed definitions are consistent with how the
standards are described in existing EPA regulations at 40 CFR 50.9 and
40 CFR 50.10, respectively.
Similarly, every area that is designated nonattainment for the
PM2.5 standard will have a one-year grace period before
conformity applies for that standard. EPA plans to designate areas for
PM2.5 by December 2004. Under today's proposed Sec.
93.102(b), the conformity rule would apply in areas designated
nonattainment for PM2.5. Therefore, conformity for the
PM2.5 standard would apply beginning in January 2006, for
example, if a 30-day effective date is provided in accordance with
Sec. 93.102(d). It is important to note that PM10 is a
different pollutant than PM2.5, and today's proposal does
not affect the applicability and general implementation of conformity
in PM10 nonattainment and maintenance areas.
EPA anticipates that some areas will be designated as nonattainment
for both the 8-hour ozone and PM2.5 standards. In these
areas, conformity for the 8-hour ozone standard will apply one year
after the effective date of the area's 8-hour ozone designation, while
conformity for PM2.5 will apply one year after the effective
date of the area's PM2.5 designation.
The following discussion provides more details on the application
of the one-year conformity grace period in specific types of newly
designated nonattainment areas--metropolitan, donut, and isolated rural
areas.
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. In
general, within one year after the effective date of the initial
nonattainment designation for a given pollutant and standard, the
area's MPO and DOT must make a conformity determination with regard to
that pollutant and standard for the area's transportation plan and TIP.
If, at the conclusion of the one-year grace period, the MPO and DOT
have not made a plan and TIP conformity determination for the relevant
pollutant and standard, the area would be in a conformity ``lapse.'' As
described in section III.B., MPOs must continue to meet conformity
requirements for the 1-hour ozone standard for plan, TIP, and project
approvals made up until the time that the 1-hour standard is revoked.
During a conformity lapse, only certain projects can receive
additional federal funding or approvals to proceed. Such projects
include: exempt projects (e.g., safety projects) listed in Sec. Sec.
93.126, 93.127 and 93.128 of the current conformity rule;
transportation control measures in an approved SIP; and, projects or
project phases (e.g., right-of-way, final design, construction) that
received all required federal funding or approval prior to the
conformity 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, see the following guidance
memoranda that implement the March 2, 1999 U.S. Court of Appeals
decision that affected related provisions of the conformity rule: 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; as well as EPA's May 14, 1999 guidance
memorandum. EPA proposed to incorporate this existing guidance into the
conformity regulation on June 30, 2003 (68 FR 38974). A copy of this
proposed rulemaking, as well as the guidance listed above, can be
downloaded from EPA's transportation conformity Web site listed in
section I.B.2. of this proposal.
2. Donut Areas
For the purposes of 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. 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 after the
effective date of an area's initial nonattainment designation, 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 discussed above, and the
entire nonattainment area will be unable to obtain additional project
funding and approvals at that time.
To demonstrate conformity of its plan and TIP, the adjacent MPO
must include in its regional emissions analysis the emissions from the
donut area's proposed transportation network and planned project
activities. To demonstrate conformity of projects in the donut portion,
such projects must have been included in the regional emissions
analysis that supports the conformity determination of the metropolitan
area's plan and TIP. In nonattainment and maintenance areas with a
donut portion, the MPO and
[[Page 62696]]
State DOT may choose to include donut area projects in the MPO's plan
and TIP. However, this approach is not required by either DOT's
planning regulations or the conformity rule.
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 conformity
determinations. For more discussion on how conformity determinations
should be made for donut areas, see the preamble to the original
conformity rule published on November 24, 1993 (58 FR 62207).
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 under 23 U.S.C. 134 and 49 U.S.C. 5303. 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 metropolitan transportation plan or TIP. Projects in such areas
are instead included only in statewide transportation improvement
programs (STIPs) and statewide transportation plans, when appropriate.
Like all newly designated nonattainment areas, the one-year
conformity grace period 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 plans and TIPs specified in Sec.
93.104(b), (c) and (e) of the current rule. Instead, conformity
determinations in isolated rural areas are required only when a non-
exempt FHWA/FTA project(s) needs funding or approval. Therefore,
although the one-year conformity grace period is available to isolated
rural areas, no conformity consequences may apply upon the expiration
of the one-year grace period because these areas may not have any
projects that require funding and approval at that time.
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, will not have to
demonstrate conformity before that time. Once the conformity grace
period has expired, a conformity determination will only be required in
such areas the next time a non-exempt project needs funding or
approval. For non-exempt FHWA/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,
isolated rural 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) that occur after the grace period has ended, if
these projects have not yet been included in a conformity determination
and regional emissions analysis for the relevant pollutant and
standard. For more information on the conformity requirements for
isolated rural areas, see Sec. 93.109(g) of the current conformity
regulation; 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 rule's Sec. 93.109(g) would become Sec. 93.109(l) under
today's proposal, due to other proposed revisions and additions to this
regulatory section. The proposed changes to Sec. 93.109 do not change
the basic conformity requirements for isolated rural areas.
B. When Does Conformity Stop Applying for the 1-Hour Ozone Standard?
EPA proposed in a separate rulemaking to revoke the 1-hour ozone
standard--in whole or in part--one year after the effective date of
EPA's 8-hour ozone standard designations (June 2, 2003, 68 FR 32819).
Today's conformity proposal is consistent with the revocation options
in the June 2003 proposal, but does not seek additional comment on the
proposed revocation options.
Clean Air Act section 176(c)(5) requires conformity only in areas
that are designated nonattainment or maintenance for a given pollutant
and standard. Therefore, under either of the revocation options in
EPA's proposed 8-hour ozone implementation rule, conformity for the 1-
hour ozone standard would no longer apply in existing 1-hour ozone
nonattainment and maintenance areas once the standard and area
designations are revoked. The proposed one-year delay in the revocation
of the 1-hour ozone standard is linked to the one-year statutory
conformity grace period for newly designated 8-hour ozone nonattainment
areas. To preserve the progress that areas have made in achieving clean
air to date, EPA believes that 1-hour ozone nonattainment and
maintenance areas should continue to ensure that transportation
activities conform to the existing 1-hour ozone standard until
conformity for the new 8-hour ozone standard applies.
During the one-year grace period, areas that are currently subject
to the 1-hour ozone standard must continue to adhere to 1-hour
conformity requirements. Additionally, areas should consider at what
point they will determine conformity for the 8-hour ozone standard. For
example, if a conformity determination is made in June 2004, an area
may choose to demonstrate conformity for the 1-hour ozone standard and
address the 8-hour ozone standard at a later date near the end of the
one-year grace period. In contrast, if a conformity determination is
made in January 2005, an area may choose to demonstrate conformity for
both ozone standards because of the approaching end of the one-year
grace period.
Under EPA's June 2003 implementation proposal, when the 1-hour
standard is revoked, conformity would no longer apply for either ozone
standard in areas that are attaining the 8-hour ozone standard. See
EPA's proposed 8-hour implementation rule for more discussion on the
proposed options for revoking the 1-hour ozone standard (June 2, 2003;
68 FR 32818-32825).
C. When and for What Ozone Standard Does Conformity Apply in Areas With
an Early Action Compact for the 8-Hour Ozone Standard?
Areas that are violating the 8-hour ozone standard but are
attaining the 1-hour ozone standard--including 1-hour ozone maintenance
areas--were eligible for an Early Action Compact (EAC) as described in
EPA's November 14, 2002 memorandum entitled, ``Schedule for 8-Hour
Ozone Designations and its Effect on Early Action Compacts'' and EPA's
June 2, 2003 proposal for the implementation of the 8-hour ozone
standard (68 FR 32859-32860).
For areas participating in an EAC, EPA plans to provisionally defer
the effective date of the area's 8-hour ozone nonattainment designation
into the future. The deferral of the 8-hour designation effective date
is contingent upon the participating area's adherence to all the terms
and milestones of its EAC. If the EAC area attains the 8-hour
[[Page 62697]]
ozone standard by December 2007, EPA would take action in Spring 2008
to end the deferred nonattainment designation effective date and
replace it with an attainment designation that would become effective
shortly thereafter. If, however, an area misses a key EAC milestone,
the November 14, 2002 memorandum states that EPA would retract its
deferral, and the nonattainment designation would be effective shortly
after the missed milestone. Neither today's proposal nor the June 2,
2003 rulemaking take comment on the EAC program itself.
A deferred effective date for 8-hour ozone designations in areas
that opted into an EAC has certain implications for when conformity
applies for both the 8-hour and 1-hour ozone standards. Consistent with
the current conformity rule Sec. 93.102(d) and Clean Air Act section
176(c)(6), conformity for the 8-hour ozone standard would not apply
until one year after the effective date of an EAC area's 8-hour
nonattainment designation. Therefore, conformity for the 8-hour ozone
standard would apply in an EAC area only if the area fails to meet all
the terms and milestones of its compact and the nonattainment
designation becomes effective. In this case, conformity for the 8-hour
standard would be required one year after the effective date of EPA's
nonattainment designation that would occur shortly after a missed EAC
milestone. Conversely, if the area meets all of the EAC milestones and
attains the 8-hour ozone standard by December 2007, conformity for the
8-hour ozone standard would never apply since the area's ultimate
effective designation would be attainment for the 8-hour ozone
standard.
Conformity for the 1-hour ozone standard will continue to apply in
EAC areas that are currently 1-hour ozone maintenance areas, and
therefore are required to demonstrate conformity for that standard. For
these areas, the effective date of 8-hour designations would be
deferred and the 1-hour standard would not be revoked. If a maintenance
area meets all of its EAC milestones and attains the 8-hour ozone
standard by December 2007, conformity for the 1-hour standard would no
longer apply once EPA revokes that standard one year after the
effective date of EPA's 8-hour attainment designation (i.e., Spring
2009).
If, however, a 1-hour ozone maintenance area fails to meet a
milestone in its EAC, EPA would remove its deferral of the effective
date and the area's 8-hour ozone nonattainment designation would become
effective shortly after the missed milestone. Under this scenario,
conformity for the 1-hour ozone standard would continue to apply for
one year after the effective date of EPA's nonattainment designation,
at which time the 1-hour ozone standard would be revoked, the one-year
conformity grace period would expire and conformity for the 8-hour
ozone standard would begin to apply.
IV. General Changes in Interim Emissions Tests
A. Background
Conformity determinations for transportation plans and TIPs as well
as transportation projects not from a conforming plan and TIP must
include a regional emissions analysis that fulfills certain Clean Air
Act provisions. Section 176(c) requires that transportation activities
in nonattainment and maintenance areas must not worsen air quality. In
addition, transportation activities in ozone and CO areas of higher
nonattainment classifications need to contribute emission reductions
towards attainment.
The conformity rule provides for several different regional
emissions analysis tests that satisfy these Clean Air Act requirements
in different situations. Once a SIP with a motor vehicle emissions
budget (``budget'') is submitted for an air quality standard and EPA
finds the budget adequate or approves it as part of the SIP, conformity
is demonstrated using the budget test for that pollutant or precursor,
as described in Sec. 93.118 of the conformity rule. Before an adequate
or approved SIP budget is available, conformity of the transportation
plan, TIP, or project not from a conforming plan and TIP is
demonstrated with the interim emissions tests, as described in Sec.
93.119.
Today's proposal outlines several options for completing regional
emissions analyses for the new standards before SIP budgets for these
standards are available. According to EPA's proposed implementation
rule (June 2, 2003, 68 FR 32830-32837), 8-hour ozone nonattainment
areas of moderate and above classifications and some areas designated
under Clean Air Act subpart 1 would have two or three years from the
effective date of designations to submit a SIP (either for attainment
or reasonable further progress) with budgets for that standard. Areas
classified as marginal and some areas designated under subpart 1 (those
with early attainment dates) may not have 8-hour ozone SIP budgets for
some time, since their attainment dates would be relatively soon after
the date of their 8-hour ozone designations. These areas would only
have 8-hour ozone SIP budgets if they voluntarily submitted a control
strategy SIP or submitted a maintenance plan for redesignation. In
addition, EPA currently anticipates that PM2.5 nonattainment
areas would submit a SIP with budgets within three years of
PM2.5 nonattainment designations.
Therefore, as proposed, conformity would likely apply in all 8-hour
ozone and PM2.5 nonattainment areas before SIP budgets for
the new standards are available, and during this time period, interim
emissions tests would be used for conformity determinations. It is
important to note that EPA has historically called such tests the
``emission reduction tests.'' However, since the actual reduction of
emissions would not always be required in many areas (as described
below and in proposed Sec. 93.119), EPA is proposing to change
``emission reduction test'' to ``interim emissions test'' throughout
the conformity regulation.
The following paragraphs generally describe the proposed changes to
the interim emissions tests (under Sec. 93.119). Sections V., VI., and
VII. describe the application of these tests in different 8-hour ozone
and PM2.5 areas (under Sec. 93.109).
B. Baseline Year Test for 8-Hour Ozone and PM2.5 Areas
1. What Are We Proposing?
We are proposing to add the following tests to the conformity rule
for use in 8-hour ozone and PM2.5 nonattainment areas:
[sbull] The ``less-than-2002 emissions'' test, and
[sbull] The ``no-greater-than-2002 emissions'' test.
Under these interim emissions tests, conformity would be demonstrated
if the emissions from the proposed transportation system are less than
or no greater than 2002 motor vehicle emissions in a given area.
Proposed regulatory text for the 2002 baseline year tests can be found
in Sec. 93.119. See Sections V.-VII. for how these tests are proposed
to be applied in 8-hour ozone and PM2.5 areas.
Although today's action proposes no substantive change to the 1990
baseline year tests for existing areas, Sec. 93.119 has been
reorganized to also include the provisions for new 8-hour ozone and
PM2.5 areas.
2. Why Are We Proposing These Changes?
EPA believes that the year 2002 is more appropriate than the year
1990 in
[[Page 62698]]
meeting Clean Air Act provisions in new 8-hour ozone and
PM2.5 areas. Under the statute, transportation activities in
nonattainment and maintenance areas cannot increase the frequency or
severity of air quality violations. EPA selected the year 1990 as the
baseline year for nonattainment areas under the existing standards,
since that was the baseline year for many requirements in the Clean Air
Act Amendments of 1990, including the base year for SIP inventories. It
was also the year that the relevant Clean Air Act legislation was
enacted.\1\ However, 1990 has little relevance as a baseline year for
emissions under the new standards.
---------------------------------------------------------------------------
\1\ Please note that PM10 areas can use an alternate
baseline year for conformity if the applicable SIP is based on a
baseline inventory from a different calendar year (40 CFR
93.119(c)(2)). EPA is not proposing to offer an alternate baseline
year for PM2.5 areas since all PM2.5 areas
should be establishing 2002 baseline SIP inventories.
---------------------------------------------------------------------------
Therefore, EPA has preliminarily selected 2002 as the baseline year
for SIP inventories under the new 8-hour ozone and PM2.5
standards. EPA's November 18, 2002 memorandum, ``2002 Base Year
Emission Inventory SIP Planning: 8-hr Ozone, PM2.5, and
Regional Haze Programs,'' identifies 2002 as the anticipated emission
inventory base year for the SIP planning process to address both of
these pollutants and standards. In addition, EPA's 8-hour ozone
implementation rule proposes 2002 as the base year for 8-hour ozone SIP
inventories (June 2, 2003, 68 FR 32810). The 2002 SIP inventories would
provide the baseline level of motor vehicle emissions in 2002 to
complete either proposed baseline year test. In addition, EPA's memo
explains that ``the selection of 2002 harmonizes dates for other
reporting requirements, e.g., EPA's Consolidated Emissions Reporting
Rule (CERR) that requires submission of emission inventories every
three years; 2002 is one of the required years for such updates.''
Therefore, coordinating conformity's baseline with other data
collection and inventory requirements would allow state and local
governments to use their resources more efficiently.
Under Sec. 93.105(c)(1)(i) of the current rule, the interagency
consultation process would be used to determine the latest assumptions
and models for generating 2002 motor vehicle emissions to complete
either baseline year test. In general, the 2002 baseline year test can
be completed with the baseline year SIP's 2002 motor vehicle emissions
inventory, if the SIP has been submitted in time for the current
conformity determination. If the SIP has not been submitted, conformity
could be completed using draft 2002 baseline year emissions from a SIP
inventory under development. Alternatively, an MPO, in consultation
with state and local air agencies, could develop 2002 baseline year
emissions as part of the conformity analysis. Whatever the source, the
2002 baseline year emissions level that is used in conformity must be
based on the latest planning assumptions available for the year 2002,
the latest emissions model, and appropriate methods for estimating
travel and speeds as required by Sec. Sec. 93.110, 93.111 and 93.122
of the current conformity rule.
C. Build/No-Build Test for Existing and New Nonattainment Areas
1. What Are We Proposing?
EPA is proposing a revised build/no-build test for certain existing
and new nonattainment areas. Under the current rule, conformity is
demonstrated with the ``build-less-than-no-build'' test for all ozone,
CO, PM10, and NO2 areas. The proposal would amend
Sec. 93.119 to create the ``build-no-greater-than-no-build'' test,
where conformity would be met if emissions from the proposed
transportation system (``build'') were less than or equal to emissions
from the existing transportation system (``no-build'').
Under this proposal, the build-no-greater-than-no-build test would
be available to the following subset of new and existing areas:
[sbull] 8-hour ozone areas of marginal and below classifications,
[sbull] 8-hour ozone areas designated nonattainment under Clean Air
Act subpart 1,
[sbull] All PM2.5 areas,
[sbull] 1-hour ozone areas of marginal and below classifications,
[sbull] CO areas of moderate classification with design values less
than 12.7 ppm,
[sbull] Not classified CO areas,
[sbull] All PM10 areas, and
[sbull] All NO2 areas.
Sections V., VI., and VII. of this proposal provide more detail
regarding the application of the build/no-build test in various 8-hour
ozone and PM2.5 areas.
For areas that would be using the build-no-greater-than-no-build
test, EPA is also proposing to modify Sec. 93.119(e) of the current
rule so that a regional emissions analysis would not be necessary for
future analysis years where the build (or ``action'' scenario) and no-
build (or ``baseline'' scenario) contain exactly the same
transportation projects and planning assumptions, for the reasons
described below. Such a case may occur in smaller areas that do not
have projects planned for later years in the regional emissions
analysis, and population, land use, economic, and other assumptions do
not change between the build and no-build scenarios for those years.
Under this proposal, a regional emissions analysis would continue to be
required for applicable years where the action and baseline scenarios
contain different projects and assumptions.
This proposed change can be found in Sec. 93.119(g)(2) of the
proposed regulatory text. This proposal would require that the
conformity determination include documentation that a regional
emissions analysis is not completed for analysis years in which no new
projects are proposed and no change in planning assumptions has
occurred.
Finally, Sec. 93.119 is being reorganized in general to
accommodate the above and other changes articulated in this proposal
for new and existing areas.
2. Why Are We Proposing These Changes?
EPA believes that changing the build/no-build test for certain
areas is consistent with Clean Air Act section 176(c)(3)(A)(iii) which
specifically requires that transportation plans and TIPs contribute to
annual emissions reductions only in the higher classifications of ozone
and CO areas. This statutory provision does not apply to any other type
of nonattainment area.
Instead, all other areas must demonstrate only that transportation
activities do not cause or contribute to new violations, increase the
frequency or severity of existing violations, or delay timely
attainment, pursuant to Clean Air Act section 176(c)(1)(B). EPA
believes that if the ``build'' is no greater than (i.e., less than or
equal to) the ``no-build,'' that such a demonstration is made, since
only an increase in emissions would worsen air quality.
This change to the build/no-build test would make its
implementation consistent with the implementation of the baseline year
tests: in ozone and CO areas of higher classifications, expected
emissions from the proposed transportation system must be less than
emissions in the baseline year, while in all other areas, expected
emissions must be no greater than emissions in the baseline year. For
further discussion of the rationale for how and where the baseline year
tests apply, please refer to the preamble to the January 11, 1993
proposed rule (58 FR 3782-3784) and the preamble to the July 9, 1996
proposed rule (61 FR 36116-36117).
Today's proposal would provide flexibility to certain areas by
allowing
[[Page 62699]]
emissions from the proposed transportation system to be less than or
equal to the emissions from the current system, rather than requiring
an actual reduction in emissions as is required for ozone and CO areas
with higher classifications. Where the Clean Air Act does not require
such emission reductions, EPA believes that if transportation
activities can be found to conform by producing no adverse impacts on
the number and severity of air quality violations, such a demonstration
would be consistent with the Clean Air Act requirements.
The proposal would also reduce the resource burden for analysis
years where no new projects are proposed to be completed and
assumptions do not change. Under the current rule, a regional emissions
analysis is required for all analysis years, even if no new projects
are proposed for analysis years in the distant future. For such
analysis years, the emissions from the build and no-build scenarios
contain the same projects and assumptions, and therefore, result in
exactly the same level of emissions.
One may argue that it would be obvious that the build-no-greater-
than-no-build test is passed without calculating the emissions for such
analysis years. Furthermore, the Clean Air Act requirement to not
worsen air quality may be met by documenting in the conformity
determination that projects, assumptions, and thus emissions would
remain the same for affected analysis years. On the other hand, one may
argue that a build/no-build regional analysis should still be completed
for all analysis years to inform long-term transportation and air
quality planning. However if such information is deemed appropriate,
analyses could still be done voluntarily. EPA requests comment on this
proposed change to the build/no-build analysis year requirements.
D. Test Options for Ozone and CO Nonattaintment Areas of Higher
Classifications
1. What Are We Proposing?
EPA is proposing three options that would affect regional emissions
analyses before adequate or approved SIP budgets are established in
ozone and CO areas of higher nonattainment classifications. Under the
current rule, these areas are required to complete both the build-less-
than-no-build and less-than-baseline year tests when a conformity
determination is completed during this time period. This proposal would
affect moderate and above 1-hour and 8-hour ozone areas, moderate CO
areas with design values greater than 12.7ppm, and serious CO areas.
EPA requests comment on the following proposed options for these
areas:
(1) Complete both the build-less-than-no-build and less-than-
baseline year tests;
(2) Complete either the build-less-than-no-build or less-than-
baseline year test; or
(3) Require that only one of these tests be met and eliminate the
second test as an option altogether.
The proposed regulatory text in Sec. 93.119(b)(1) reflects the
first option, although EPA could finalize any one of the three proposed
options.
The first option would retain the current conformity rule
requirement that such areas use both the current build-less-than-no-
build test and the less-than-baseline year test. Under this option,
emissions from the proposed transportation system (build) would have to
be less than emissions from the existing system (no build) and less
than emissions in 1990 (for higher classification 1-hour ozone and CO
areas) or 2002 (for higher classification 8-hour ozone areas).
The second proposed option would allow these areas to choose
between the current build-less-than-no-build test and the less-than-
baseline year test (either 1990 or 2002, as applicable). The final
option would require only one test in these areas while eliminating the
second test as an option altogether. For example, this option could
require the less-than-baseline year test and delete the build/no-build
test from the conformity rule as an option for affected areas.
2. Why Are We Proposing These Options?
EPA is interested in exploring alternatives in an effort to provide
the most flexible and least burdensome way of meeting statutory
requirements. When EPA first promulgated the transportation conformity
rule (January 11, 1993, 58 FR 3782), EPA determined that moderate and
above 1-hour ozone areas and CO areas of higher classifications would
have to meet both the build-less-than-no-build test and the less-than-
baseline year test to satisfy both statutory requirements that
transportation planning activities not cause or contribute to
violations of the standards (Clean Air Act section 176(c)(1)(B)) and
that such activities contribute to annual emissions reductions (Clean
Air Act section 176(c)(3)(A)(iii)).
The current conformity rule requires higher classification ozone
and CO areas to meet both of these tests in the absence of an adequate
or approved SIP budget (option 1). For the same reasons described in
previous rulemakings,\2\ EPA proposes as its first option to continue
these same requirements for current 1-hour ozone and CO and new 8-hour
ozone nonattainment areas with higher classifications. EPA believes
that the current conformity rule would continue to assist areas in
meeting Clean Air Act requirements.
---------------------------------------------------------------------------
\2\ January 11, 1993, proposed conformity rule (58 FR 3782-3784)
and the July 9, 1996, proposed rule (61 FR 36116-36117).
---------------------------------------------------------------------------
However, ten years of experience in implementing the conformity
rule has caused EPA to consider whether either the build-less-than-no-
build test or less-than-baseline year test (option 2) may also be
sufficient to meet both the statutory requirements that transportation
activities not contribute to violations and contribute to emissions
reductions. First, the build-less-than-no-build test may by itself
demonstrate that emissions from the proposed transportation plan would
be lower than projected future emissions from the existing planned
transportation system, since the build scenario must be less than the
no-build scenario. Thus, one might conclude that emissions from the
proposed transportation plan contribute to emissions reductions and may
not cause or contribute to new violations of the ozone standard.
Alternatively, if emissions are reduced from baseline year levels,
then one might conclude that air quality would not be worsened from
current levels. The less-than-baseline year test by itself might also
demonstrate that implementation of the proposed transportation system
may produce actual emissions reductions from the motor vehicle emission
baseline year, since emissions must be less than or reduced from the
baseline year. Thus, by using only the less-than-baseline year test,
the transportation plan may both contribute to emissions reductions and
not itself produce emissions that could cause or contribute to any
violations. EPA requests comment on this alternative of offering a
choice between the build-less-than-no-build and less-than-baseline year
tests to meet both statutory conformity requirements, for ozone areas
and CO areas of higher classifications.
Further, EPA proposes a third option that such areas be required to
meet only one interim emissions test while eliminating the other
interim emissions test as an option altogether. As described above for
option 2, if it can be concluded that either test is sufficient
[[Page 62700]]
for meeting statutory requirements, then retaining only one test in the
conformity regulation would also meet the statute. EPA requests comment
on this alternate proposal.
V. Regional Conformity Tests in 8-Hour Ozone Areas That Do Not Have 1-
Hour Ozone SIPs
A. What Are We Proposing?
EPA is proposing several options for completing regional emissions
analyses in 8-hour ozone areas that do not have an existing 1-hour
ozone SIP with applicable budgets. These 8-hour ozone areas either were
never designated nonattainment under the 1-hour ozone standard or were
1-hour ozone nonattainment areas that for various reasons never
submitted a control strategy SIP or maintenance plan with approved or
adequate motor vehicle emissions budgets. A regional emissions analysis
is the part of a conformity determination that assesses whether the
emissions produced by transportation activities are consistent with
state and local air quality goals.
1. Conformity After 8-Hour Ozone SIP Budgets Are Adequate or Approved
Once a SIP for the 8-hour ozone standard is submitted with a
budget(s) that EPA has found adequate or approved, the budget test
would be used in accordance with Sec. 93.118 to complete all
applicable regional emissions analyses. Conformity would be
demonstrated if the transportation system emissions reflecting the
proposed transportation plan, TIP, or project not from a conforming
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.
The first 8-hour ozone SIP could be a control strategy SIP required
by the Clean Air Act (e.g., rate-of-progress SIP or attainment
demonstration) or a maintenance plan. The first SIP could also be
submitted earlier and demonstrate a significant level of emission
reductions from the current level of emissions. For example, an area
could submit an early 8-hour ozone SIP that demonstrates a specific
percentage of emission reductions (e.g., 5-10%) in the year 2007, from
2002 baseline year emissions. An early 8-hour SIP would include
emissions inventories for all emissions sources for the entire 8-hour
nonattainment area and would meet applicable requirements for
reasonable further progress SIPs. EPA has discussed such an option in
the context of its 8-hour ozone implementation rule (June 2, 2003, 68
FR 32822) and the 1997 final conformity rule (August 15, 1997, 62 FR
43798-43799).
Whatever the case, the interim emissions test(s) would no longer
apply for conformity purposes for either NOX or VOCs once an
8-hour ozone SIP is submitted and EPA has found adequate or approved
its budget(s) for that ozone precursor. Section 93.118 of the current
rule describes the budget test; references in Sec. 93.118(a) are being
updated in this proposal to be consistent with proposed changes in
Sec. 93.109.
EPA encourages nonattainment areas to develop their 8-hour ozone
SIPs in consultation with state and local air quality and
transportation agencies to facilitate future conformity determinations.
EPA Regions are available to assist on an ``as needed'' basis,
including consultation on the development of early 8-hour ozone SIPs.
2. Conformity Before 8-Hour Ozone SIP Budgets Are Adequate or Approved
The following paragraphs outline the options for doing conformity
before adequate or approved 8-hour ozone SIP budgets are established in
8-hour ozone areas covered by this section of the proposal.
Marginal and below classifications and subpart 1 areas. 8-hour
ozone areas that are not of moderate and above classifications include:
8-hour ozone areas of marginal and below classifications and 8-hour
ozone areas designated nonattainment under Clean Air Act subpart 1.
EPA proposes that these 8-hour ozone areas must pass one of the
following tests for conformity determinations that occur before
adequate or approved 8-hour ozone SIP budgets are in place:
[sbull] The build-no-greater-than-no-build test, or
[sbull] The no-greater-than-2002 emissions test.
In other words, this proposal would give these 8-hour ozone areas a
choice between two interim emissions tests, rather than provide only
one test or require that both tests be completed. Conformity would be
demonstrated if the transportation system emissions reflecting a
proposed transportation plan or TIP were less than or equal to either
the emissions from the existing transportation system (no-build) or the
level of motor vehicle emissions in 2002.
A discussion of the proposed changes to the interim emissions tests
can be found in Section IV. of this proposal. See the proposed
regulatory text in Sec. 93.119(b)(2). See EPA's June 2, 2003, proposed
implementation rule for the 8-hour ozone standards (68 FR 32811-32816)
for more information on the proposal to designate some 8-hour ozone
areas under Clean Air Act subpart 1.
Moderate and above classifications. As described in Section IV.D.,
EPA proposes three options for regional emissions analyses in moderate
and above 8-hour ozone areas that do not have adequate or approved 1-
hour ozone SIPs. The options are:
(1) Complete both the build-less-than-no-build and less-than-
baseline year tests;
(2) complete either the build-less-than-no-build or less-than-
baseline year test; or
(3) require that only one of these tests be met and eliminate the
remaining test as an option altogether.
The proposed regulatory text in Sec. 93.119(b)(1) reflects the first
option, although EPA could finalize any one of the three proposed
options.
3. Options for 8-Hour Ozone Areas That Qualify for EPA's Clean Data
Policy
The proposal would also extend the current conformity rule's
flexibility for certain 1-hour ozone ``clean data areas'' to 8-hour
ozone areas that are required to meet certain SIP requirements (e.g.,
moderate and above ozone areas). Today's conformity proposal is also
consistent with the clean data option in EPA's proposed 8-hour ozone
implementation rule (June 2, 2003, 68 FR 32835).
As background, EPA issued a policy memorandum on May 10, 1995 that
addressed SIP requirements in a small number of moderate and above
ozone areas (entitled ``Reasonable Further Progress, Attainment
Demonstrations, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard''). Under the
May 1995 policy, EPA could declare through rulemaking that a moderate
or above 1-hour ozone area was a ``clean data area,'' if an area had
sufficient monitoring data showing attainment of the 1-hour ozone
standard. A clean data area is not required to submit any outstanding
reasonable further progress or attainment SIPs, since the area is
already attaining the standard. Section 93.109(c)(5) of the existing
conformity rule allows clean data areas for the 1-hour ozone standard
to request that a budget based on the level of motor vehicle emissions
in the most recent year of clean data be established through EPA's
rulemaking that determines an area to be a clean data area.
Similarly, today's proposal would allow 8-hour ozone areas that
have clean data and are required to submit
[[Page 62701]]
control strategy SIPs to use one of the following three tests to
complete conformity:
[sbull] The interim emissions tests, as described above;
[sbull] The budget test using the adequate or approved motor
vehicle emissions budgets in a submitted 8-hour ozone SIP; or
[sbull] The budget test using the motor vehicle emissions level in
the most recent year of clean data as budgets, if the state or local
air quality agency requests that budgets be established by EPA's clean
data rulemaking for the 8-hour ozone standard.
The proposed regulatory text for these options is in Sec.
93.109(d)(5).
This part of the proposal would be provided to moderate and above
ozone areas with three years of clean data for the 8-hour ozone
standard that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act's reasonable further
progress and attainment demonstration requirements. In addition, some
subpart 1 areas would also be covered by this conformity proposal if
such areas are required to submit control strategy SIPs, as proposed in
the June 2003 ozone implementation rule. Please note that EPA's
proposed clean data SIP policy and therefore today's conformity
proposal might not be used by any area for the first conformity
determination, since newly designated nonattainment areas may not yet
have three years of clean data for the 8-hour ozone standard.
4. General Implementation of Regional Tests
The proposal also retains the existing rule's general requirement
that regional emissions analyses for ozone areas must address ozone
precursors, which are nitrogen oxides (NOX) and volatile
organic compounds (VOCs) (40 CFR 93.102(b)(2)(i)). All proposed interim
emissions test options would be required to address both VOC and
NOX precursors, unless EPA determines that additional
reductions of NOX would not contribute to attainment for the
8-hour ozone standard and issues a NOX waiver under Clean
Air Action section 182(f). This is consistent with the current
conformity rule, although the proposal moves these provisions to Sec.
93.119(f) due to reorganization of Sec. 93.119. Finally, the proposal
retains the current rule's provision that the interim emissions test(s)
be completed for NOX if a reasonable further progress SIP is
submitted with only a budget for VOCs (e.g., a 15% SIP). See Sec.
93.109(d)(3) for this proposed regulatory text.
The consultation process should be used to determine the models and
assumptions for completing either the interim emissions tests or the
budget test, as required by Sec. 93.105(c)(1)(i) of the current rule.
See the proposed regulatory text in Sec. 93.109(d) for a general
overview of when the budget test and interim emissions tests would
apply in 8-hour ozone nonattainment areas without 1-hour ozone SIP
budgets.
B. Why Are We Proposing These Options?
EPA has been told by some stakeholders that it is reasonable and
credible to provide 8-hour ozone areas with the same flexibility that
applies under the 1-hour ozone standard. To that end, EPA has proposed
that 8-hour ozone areas with fewer SIP requirements (e.g., marginal and
subpart 1 areas) continue to have the choice offered by the current
rule between the baseline year and build/no-build tests. EPA gave this
choice to 1-hour ozone areas as described in the preamble to a previous
proposal (July 9, 1996, 61 FR 36116-36117). EPA continues to believe
that allowing these areas a choice of conformity tests during the time
period before adequate or approved 8-hour ozone SIP budgets are in
place is environmentally protective and meets the statutory
requirements.
As noted above, we are also considering three options for moderate
and above ozone areas to ensure that every flexibility is provided to
new 8-hour ozone areas while achieving environmental benefits. Please
see EPA's rationale for these proposed options in Section IV.D.2.
EPA is also responding to stakeholder requests that the rule
continue to provide more choices to areas that would qualify for EPA's
proposed 8-hour ozone clean data policy. If the proposed clean data
policy is included in the final 8-hour ozone implementation rule, EPA
proposes to also include the proposed conformity options for such areas
in the final conformity rule for the new standards. See EPA's previous
discussion and rationale for the clean data options from the preamble
to the 1996 proposal and 1997 final rules (July 9, 1996, 61 FR 36116;
and August 15, 1997, 62 FR 43784-43785, respectively).
VI. Regional Conformity Tests in 8-Hour Ozone Areas That Have 1-Hour
Ozone SIPs
A. What Are We Proposing?
EPA is proposing several options for completing regional emissions
analyses in 8-hour ozone areas that have an existing 1-hour ozone SIP
that covers either some or all of the 8-hour ozone nonattainment area.
1. Conformity After 8-Hour Ozone SIP Budgets Are Adequate or Approved
Once a SIP for the 8-hour ozone standard is submitted with
budget(s) that EPA has found adequate or approved, the budget test
would be used to complete the regional emissions analysis. The first 8-
hour ozone SIP could be a control strategy SIP required by the Clean
Air Act (e.g., rate-of-progress SIP or attainment demonstration). The
first SIP could also be submitted earlier and demonstrate a significant
level of emission reductions from the current level of emissions, as
described in Section V.A.1. Interim emissions tests and/or any existing
1-hour ozone SIP budgets (as described below) would no longer be used
for conformity for either NOX or VOCs once an adequate or
approved 8-hour ozone SIP is established for such a precursor. State,
local, and Federal air quality and transportation agencies should
consult on the development of 8-hour ozone SIPs as appropriate.
2. Conformity Before 8-Hour Ozone SIP Budgets Are Adequate or Approved
The following paragraphs outline the options for determining
conformity before adequate or approved 8-hour ozone SIP budgets are in
place in 8-hour ozone areas with existing 1-hour ozone SIP budgets. EPA
is proposing that these 8-hour ozone areas be able to select one test
option from among a menu of test options for completing the regional
emissions analysis requirement, rather than be required to complete a
specific test(s).
Summary of Options: The following table summarizes the menu of
proposed options, based on the placement of 1-hour and 8-hour ozone
nonattainment boundaries:
----------------------------------------------------------------------------------------------------------------
Boundary scenario Menu of options Proposed regulatory text
----------------------------------------------------------------------------------------------------------------
8-hour area = 1-hour area.............. Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
OR.
Budget test using 1-hour Sec. 93.109(e)(2)(ii)(A).
budget(s).
8-hour area < 1-hour area.............. Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
OR.
[[Page 62702]]
Budget test for 1-hour Sec. 93.109(e)(2)(ii)(B) OR
area (with 1-hour
budget(s)) OR.
Budget test for 8-hour Sec. 93.109(e)(2)(ii)(B).
area (with applicable
subset of 1-hour
budget(s)).
8-hour area 1-hour area.... Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
OR.
Budget test (with 1-hour Sec. 93.109(e)(2)(ii)(C).
budget(s)) PLUS Interim
emissions test(s) (for
remainder of 8-hour area).
Portions of 8-hour and 1-hour areas Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
overlap. OR.
Budget test (with Sec. 93.109(e)(2)(ii)(C)
applicable subset of
areas 1-hour budget(s))
PLUS Interim emissions
test(s) (for remainder of
8-hour area).
----------------------------------------------------------------------------------------------------------------
EPA has posted pictures of hypothetical boundary scenarios for
further clarification on the transportation conformity website listed
in Section I.B.2.
Please note that the proposed options are for completing conformity
under the 8-hour ozone standard. EPA is proposing that the budget test
with existing 1-hour ozone SIP budgets be used as a test option (or
proxy) for the 8-hour ozone standard, rather than the 1-hour ozone
standard. Conformity for the 1-hour and 8-hour ozone standards would
not apply at the same time, as proposed in EPA's 8-hour ozone
implementation rule (June 2, 2003, 68 FR 32819). In addition, for the
reasons explained below, EPA is not proposing that 8-hour ozone areas
must use their 1-hour ozone budgets if such budgets exist; we are
proposing only that the budget test using the 1-hour ozone budgets
would be an option as appropriate in addition to the interim emissions
test(s).
The following paragraphs describe the above table in further detail
as well as sub-options that are being proposed for some boundary
scenarios. For all scenarios, once an area selects a particular
test(s), EPA proposes that it must be used consistently for all
regional analysis years.
Scenario where 8-hour and 1-hour ozone boundaries are exactly the
same. In this case, the 8-hour and 1-hour ozone boundaries cover
exactly the same geographic area. EPA proposes to require such areas
meet one of the following:
[sbull] The interim emissions tests, depending upon an area's
classification or designation; or
[sbull] The budget test using existing adequate or approved 1-hour
ozone SIP budgets.
See Section V. for further description of which interim emissions
test(s) would apply in a given 8-hour ozone area.
Scenario where the 8-hour ozone boundary is smaller than and within
the 1-hour ozone boundary. In this case, the 8-hour nonattainment area
is smaller than and completely encompassed by the 1-hour nonattainment
boundary. Again, EPA proposes to require such areas meet one of the
following:
[sbull] The interim emissions tests, depending upon an area's
classification or designation;
[sbull] The budget test using the subset or portion of existing
adequate or approved 1-hour ozone SIP budgets that overlaps with the 8-
hour nonattainment area; or
[sbull] The budget test using the existing adequate or approved 1-
hour ozone SIP budgets for the entire 1-hour nonattainment area (any
additional reductions must come from the 8-hour nonattainment area, as
described below).
EPA also requests comment on when it would be feasible and
appropriate to allow an area to use a subset or portion of a 1-hour
ozone SIP budget for 8-hour ozone conformity. Such a test option
requires an area to subtract from the 1-hour ozone budget and
conformity analysis those emissions that are not produced in the 8-hour
ozone area. For example, this would be straightforward if the on-road
mobile inventory for the 1-hour ozone SIP budget is calculated by
county, and the portion to be subtracted is a specific county that is
not part of the 8-hour ozone area. However, this may not be appropriate
in the case where the SIP does not clearly specify the amount of
emissions in the portion of the 1-hour ozone area not covered by the 8-
hour ozone area. The consultation process would be used to determine
when using a portion of a 1-hour ozone SIP budget is appropriate, and
if so, how deriving such a portion would be accomplished. EPA requests
other examples for when using a portion of a 1-hour ozone SIP budget
would be feasible and appropriate.
In addition, EPA notes that adjusting the 1-hour ozone budgets for
purposes of conducting 8-hour ozone conformity analyses would be
legally appropriate since any 1-hour ozone SIP demonstrations and
budgets would only be used as a proxy for the 8-hour ozone standard and
would themselves no longer be for an applicable standard (i.e., since
the 1-hour ozone standard would be revoked under EPA's proposed 8-hour
ozone implementation rule).
A conformity determination based on the entire 1-hour ozone budget
would include a comparison between the on-road regional emissions
produced in the entire 1-hour ozone area and existing 1-hour ozone
budgets. However, if additional reductions are required to meet
conformity, EPA proposes that such reductions could only be obtained
within the 8-hour ozone nonattainment area, since the conformity
determination would be for the 8-hour ozone standard.
Scenarios where the 8-hour ozone boundary is larger than or
overlaps with a portion of the 1-hour ozone boundary. This part of the
proposal covers the third and fourth scenarios listed in the above
table in this section. The third scenario would result if an entire 1-
hour ozone nonattainment area is within a larger 8-hour ozone
nonattainment area. The fourth scenario would result if 1-hour and 8-
hour ozone nonattainment boundaries partially overlap. In both types of
8-hour ozone areas, the 1-hour ozone budgets would not cover the entire
8-hour nonattainment area. Therefore, existing 1-hour ozone budgets
cannot be the sole test of conformity under the 8-hour ozone standard
in these scenarios, since a conformity determination must include a
regional emissions analysis that covers the entire 8-hour ozone
nonattainment area.
EPA is proposing that areas in these scenarios meet one of the
following:
[sbull] The applicable interim emissions tests for the entire 8-
hour ozone area; or
[sbull] The budget test based on the 1-hour ozone budget(s) for the
1-hour ozone area or relevant subset or portion of the 1-hour ozone
area, plus the interim emissions test(s) for the remaining portion of
the 8-hour ozone nonattainment area.
As stated above, once an area selects a particular test(s), EPA
proposes that it must be used consistently for all regional analysis
years.
For example, a marginal or below 8-hour ozone area that is larger
than the
[[Page 62703]]
1-hour ozone area (third scenario) could choose to complete the budget
test for the 1-hour ozone nonattainment area and the no-greater-than-
2002 test for the remaining portion of the 8-hour ozone area for the
attainment year, an intermediate year, and the last year of the
transportation plan. EPA is not proposing to require such an area to
complete the interim emissions test for the entire 8-hour ozone
nonattainment area in all cases, in addition to the budget test with
the 1-hour ozone SIP. EPA acknowledges that there may be cases where it
is difficult to separately model the remaining portion of the 8-hour
ozone area, e.g., in an area where the remaining 8-hour ozone area is a
ring of counties around the 1-hour ozone area. However, in this case,
an area could always choose to complete only the interim emissions
test(s) for the entire 8-hour ozone area, rather than the budget test
with 1-hour ozone SIP budgets for the 1-hour ozone area.
For areas covered by the third boundary scenario in the above table
where the 8-hour ozone area is larger than the 1-hour ozone area, the
budget test would be completed for the entire 1-hour ozone area, as is
done for conformity determinations for the 1-hour ozone standard. For
areas covered by the fourth scenario where 8-hour and 1-hour ozone
areas overlap, the budget test would only be done for the portion of
the 1-hour ozone area and budgets that overlap with the 8-hour ozone
area. EPA acknowledges that the budget test with a portion of a 1-hour
ozone budget may be difficult to implement in many areas, since it
assumes that areas will be able to determine easily the amount of
budget emissions that are in the relevant portion. EPA requests
examples for when using a portion of a 1-hour ozone budget would be
appropriate and how to calculate such a portion. The consultation
process would be used to determine whether the budget test for the
fourth scenario is appropriate and if so, how it should be implemented.
Finally, EPA notes that the consultation process should be used to
determine which analysis years should be selected for regional
emissions analyses where the budget test and interim emissions tests
are used. Sections 93.118(d) and 93.119(e) of the current conformity
rule require similar analysis years for modeling in the last year of
the transportation plan and for any intermediate years for both budget
and interim emissions tests. However, the analysis years for the short-
term may be different for the budget test and interim emissions tests
in some cases. For example, Sec. 93.118 requires modeling for the
budget test to be completed for the attainment year if it is within the
timeframe of the transportation plan; Sec. 93.119 requires the first
analysis year for the interim emissions tests to be within the first
five years of the transportation plan. The consultation process can be
used to pick analysis years that would satisfy both the budget and
interim emissions test requirements for areas using both tests prior to
adequate or approved 8-hour ozone SIP budgets being established.
3. Options for 8-hour Ozone Areas That Qualify for EPA's Clean Data
Policy
As described in Section V.A.3., today's conformity proposal would
also extend the current rule's flexibility for certain 1-hour ozone
areas to 8-hour ozone areas that are covered by EPA's June 2, 2003
proposal (68 FR 32835). The June 2003 proposal extends the existing 1-
hour ozone clean data policy for the SIP process to future 8-hour ozone
areas that are required to submit control strategy SIPs.
Specifically, we are proposing to require such 8-hour ozone areas
with adequate or approved 1-hour ozone SIP budgets to meet one of the
following four options to complete conformity:
[sbull] The interim emissions tests, as described in Section V.;
[sbull] The budget test using the adequate motor vehicle emissions
budgets in a submitted control strategy SIP for the 8-hour ozone
standard;
[sbull] The budget and/or interim emissions tests using existing 1-
hour ozone SIP budgets and/or applicable interim emissions tests, as
described in A.3. of this section for different scenarios of 1-hour and
8-hour ozone nonattainment boundaries; or
[sbull] The budget test using the motor vehicle emissions level in
the most recent year of clean data as budgets, if such budgets are
established by the EPA rulemaking that determines an area to have clean
data for the 8-hour ozone standard.
See the proposed regulatory text for these options in Sec.
93.109(e)(4).
4. General Implementation of Regional Tests
The proposal also retains the existing rule's general requirements
that regional emissions analyses for ozone areas must address
NOX and VOC precursors (40 CFR 93.102(b)(2)(i)). All
proposed interim emissions test options would be required to address
both precursors, unless EPA determines that additional reductions of
NOX would not contribute to attainment for the 8-hour ozone
standard and issues a NOX waiver under Clean Air Action
section 182(f). This is consistent with the current conformity rule,
although the proposal moves these provisions to Sec. 93.119(f) due to
reorganization of Sec. 93.119. Finally, the proposal retains the
current rule's provision that the interim emissions test(s) be
completed for NOX if a reasonable further progress SIP is
submitted with only a budget for VOCs (e.g., a 15% SIP). See Sec.
93.109(e)(3) for this proposed regulatory text.
The consultation process should be used to determine the models and
assumptions for completing the interim emissions tests and/or the
budget test, as required by Sec. 93.105(c)(1)(i) of the current rule.
The consultation process can also be used to select the conformity
test(s) before 8-hour ozone SIPs are submitted. See the proposed
regulatory text in Sec. 93.109(e) for a general overview of when the
budget test and interim emissions tests apply in 8-hour ozone
nonattainment areas with 1-hour ozone SIP budgets.
B. Why Are We Proposing These Options?
EPA has received stakeholder input asking EPA to provide 8-hour
ozone areas with conformity flexibility in the time period before 8-
hour ozone SIPs are established. In response, EPA is proposing a menu
of options for 8-hour ozone areas that have existing 1-hour ozone SIP
budgets, rather than requiring only one conformity test be used.
Allowing areas to choose between the interim emissions tests and/or the
budget test based on 1-hour ozone SIPs would accommodate the many
different boundary scenarios described in VI.A.2.
EPA has previously found that the interim emissions tests are
sufficient for meeting the Clean Air Act requirements for a given
standard before a SIP with adequate budgets is in place for that
standard. As discussed in Sections IV. and V. of this proposal, EPA
believes that Clean Air Act sections 176(c)(1) and (c)(3)(A)(iii) can
be met through only one or a combination of interim emissions tests,
depending upon an area's classification.
Our proposal to allow areas to use the 1-hour ozone budgets before
8-hour ozone budgets are available does not mean that areas would be
determining conformity for the 1-hour ozone standard. As articulated in
the proposed 8-hour ozone implementation rule, EPA is proposing that
conformity for only one ozone standard apply at a time (June 2, 2003,
68 FR 32823-32824).
We are proposing to offer the budget test as a choice because we
think that many 1-hour ozone budgets provide as good an analytical test
as the other tests that exist or are proposed for use before
[[Page 62704]]
8-hour ozone budgets are available: the build/no-build and baseline
year tests. In general, EPA believes the 1-hour ozone budgets may be an
appropriate test like the build/no-build test, because the 1-hour ozone
VOC and NOX budgets that an area has represent a reduction
in emissions that is consistent with the applicable SIP for that
standard. Although the 8-hour ozone standard is more stringent than the
1-hour ozone standard, many 1-hour ozone budgets have in fact served to
reduce emissions over time. For example, the Clean Air Act requires
that transportation plans and TIPs reduce emissions in the higher
classifications of ozone and CO areas before a SIP for a given
pollutant and standard is developed. We believe that the budget test
using 1-hour ozone budgets may meet this requirement at least as well
as the build/no-build test.
EPA also believes that the 1-hour ozone budgets may be comparable
to the baseline year test for conformity under the 8-hour ozone
standard. The baseline year test could actually be thought of as a type
of budget test before 8-hour ozone budgets are established: emissions
in the year 2002 become the ceiling on emissions, a defacto budget. The
budgets in 1-hour ozone SIPs are at least as good as the 2002 baseline
year test if areas are meeting them when they are designated for the 8-
hour ozone standard. In the case where 2002 emissions are higher than
established 1-hour ozone budgets, the budget test would actually be a
more conservative test. However, in the case where 2002 emissions are
lower than the 1-hour ozone budgets, the budgets should still be a
valid test since they provide for attainment of the 1-hour ozone
standard. In other words, consistency with the 1-hour budgets would
have resulted in a certain level of emissions at the time areas were
designated for the 8-hour ozone standard. An area's designation as a
nonattainment area for the 8-hour ozone standard would be based on its
air quality monitoring data for the years 2001-2003. Therefore, EPA
does not anticipate that many areas will have 2002 emissions
significantly lower than 1-hour budgets since areas would not have
likely put control measures in place by 2002 that would result in lower
emissions for that year. We believe that consistency with the 1-hour
ozone budgets would assure an emissions level that is in line with the
baseline year test, since the baseline year is 2002.
However, EPA does not believe that 8-hour ozone areas that have 1-
hour ozone budgets must use these budgets for conformity prior to the
development of 8-hour ozone budgets. Although an area could conclude
through the consultation process that use of a 1-hour ozone budget
would be appropriate, there may be many cases where the 1-hour ozone
budget would not provide the best test for conformity to the 8-hour
ozone standard. For instance, 1-hour ozone budgets could be for a year
different than the year for which 8-hour ozone conformity is being
demonstrated. For example, 1-hour budgets could be from a rate-of-
progress SIP (e.g., a 15% plan) for a past milestone year, such as
1996, that is no longer relevant to projected emissions in the post-
2002 period for the 8-hour ozone standard. In contrast, an area may
only have a 1-hour ozone maintenance plan with budgets for a year
beyond the 8-hour ozone attainment year. The planning assumptions (such
as VMT, vehicle fleet characteristics, speeds) underlying the 1-hour
budget may also be significantly out-of-date.
Thus, although it is appropriate to offer areas the opportunity to
use 1-hour ozone budgets, EPA believes that they should not be mandated
and that the consultation process should be used to select the most
appropriate test for a particular area prior to the development of
adequate or approved 8-hour ozone SIP budgets. EPA requests comment on
this proposal to allow areas to use applicable 1-hour ozone budgets to
demonstrate conformity prior to the development of 8-hour ozone
budgets, and to use the consultation process to determine whether such
budgets should be used.
Finally, today's proposal responds to stakeholder requests that the
rule continue to offer more choices to new ozone areas that would
qualify for EPA's proposed 8-hour ozone clean data policy. If the
proposed 8-hour ozone clean data policy is included in the final 8-hour
ozone implementation rule, EPA would also include the proposed
conformity options for such areas in the final conformity rule for the
new standards. See EPA's previous discussion and rationale for the
clean data options in the preamble to the 1996 proposal and 1997 final
rules (July 9, 1996, 61 FR 36116, and August 15, 1997, 62 FR 43785,
respectively).
VII. Regional Conformity Tests in PM2.5 Areas
A. What Are We Proposing?
EPA proposes that the budget test would be used to complete a
regional emissions analysis once a PM2.5 SIP is submitted
with budget(s) that EPA has found adequate or approved. Although the
first PM2.5 SIP may be an attainment demonstration,
PM2.5 nonattainment areas ``are free to establish, through
the SIP process, a motor vehicle emissions budget [or budgets] that
addresses the new NAAQS in advance of a complete SIP attainment
demonstration. That is, a state could submit a motor vehicle emissions
budget that does not demonstrate attainment but is consistent with
projections and commitments to control measures and achieves some
progress towards attainment.'' (August 15, 1997, 62 FR 43798-43799).
Such a SIP would include inventories for all emissions sources. EPA
encourages nonattainment areas to develop their PM2.5 SIPs
in consultation with Federal, state, and local air quality and
transportation agencies as appropriate.
EPA is proposing that PM 2.5 nonattainment areas meet
one of the following interim emissions tests for conformity
determinations conducted before adequate or approved PM2.5
SIP budgets are established:
[sbull] The build-no-greater-than-no-build test, or
[sbull] The no-greater-than-2002 emissions test.
This proposal would allow PM2.5 nonattainment areas to
choose between the two interim emissions tests, rather than require
that only one test or both tests be completed. Conformity would be
demonstrated if the transportation system emissions reflecting the
proposed 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 2002. A discussion of the proposed
changes to the interim emissions tests can be found in Section IV.
The proposal would require that regional emissions analyses always
be completed for directly emitted PM2.5 from motor vehicle
tailpipe, brake wear, and tire wear emissions. Once a SIP is submitted,
the budget test would also be completed for any PM2.5
precursor for which an adequate or approved budget is established.
Prior to adequate or approved SIP budgets, an interim emissions test
would be completed for each applicable PM2.5 precursor, as
described in Section VIII. Sections IX. and X. describe proposed
options for when regional emissions analyses would include direct
PM2.5 emissions from re-entrained road dust and
construction-related dust.
The consultation process should be used to determine the models and
assumptions for completing any regional emissions analysis, as required
by Sec. 93.105(c)(1)(i). See the proposed regulatory text in Sec.
93.109(i) for a general overview of when the budget test and interim
emissions tests apply in
[[Page 62705]]
PM2.5 areas, and Sec. 93.119(e) for a description of the
interim emissions tests for PM2.5 nonattainment areas.
B. Why Are We Proposing These Options?
We believe that the proposal addresses the concerns of many
stakeholders by providing flexibility before adequate or approved
PM2.5 SIP budgets are established. While many
PM2.5 areas will have prior conformity experience with
different pollutants, others will be doing conformity for the first
time. In either case, the conformity process provides an important
opportunity to begin addressing transportation-related PM2.5
emissions early to ensure that air quality is not worsened before SIPs
are submitted. Proposing a choice of interim emissions tests before
SIPs are submitted addresses the desire for flexibility and
environmental protection.
EPA has previously determined that only ozone and CO areas of
higher classifications are required to satisfy both statutory
requirements that transportation planning activities not cause or
contribute to violations of the standards (Clean Air Act section
176(c)(1)(B)) and that such activities contribute to annual emissions
reductions (Clean Air Act section 176(c)(3)(A)(iii)) (January 11, 1993
proposed rule, 58 FR 3782-3783). EPA continues to believe that Clean
Air Act section 176(c)(3)(A)(iii) does not apply to any other areas,
including PM2.5 areas; only Clean Air Act section
176(c)(1)(B) applies to these areas.
To that end, the current conformity rule already allows many areas
to conform based on only one interim emissions test if transportation
emissions are consistent with current air quality expectations, rather
than having to complete two tests and contribute further reductions
towards attainment. Today's proposal continues to apply this same test
structure and rationale to PM2.5 areas.
VIII. Consideration of Direct PM2.5 and PM2.5
Precursors in Regional Emissions Analyses
A. What Are We Proposing?
We are proposing to require that all regional emissions analyses in
PM2.5 nonattainment and maintenance areas consider all
sources of directly emitted PM2.5 motor vehicle emissions
from the tailpipe, brake wear, and tire wear. Proposed regulatory text
can be found in Sec. 93.102(b)(1). See Sections IX. and X. for the
proposed options for including direct PM2.5 from re-
entrained road dust and construction-related dust in conformity
analyses.
This proposal would also add potential transportation-related
PM2.5 precursors--NOX, VOCs, sulfur oxides
(SOX ), and ammonia (NH3)-for consideration in
the conformity process. Once a PM2.5 SIP is submitted, a
regional emissions analysis would be required for a given precursor if
the SIP establishes an adequate or approved budget for that particular
precursor.
The following two options address how the various PM2.5
precursors would be considered in conformity determinations conducted
before adequate or approved PM2.5 SIP budgets are
established, for the reasons explained below. EPA is proposing
regulatory text in Sec. Sec. 93.102(b)(2) and 93.119(f) for both of
these options. We are providing the regulatory text for both options to
maximize the public's opportunity to provide meaningful comments.
The first proposed option would require regional emissions analyses
for NOX and VOC precursors in all areas, unless the State
air agency or the EPA Regional Administrator makes a finding that one
or both of these specific precursors are not a significant contributor
to the PM2.5 air quality problem in a given area. Regional
emissions analyses would not be required for SOX and
NH3 before an adequate or approved SIP budget for such
precursors is established, unless the State or EPA makes a finding that
on-road emissions of one or both of these precursors is a significant
contributor. Under the first option, the MPO and DOT would document in
their conformity determinations when regional emissions analyses are
not being conducted when EPA or the State has determined NOX
or VOCs to be insignificant.\3\
---------------------------------------------------------------------------
\3\ The public would be notified of when NOX or VOC
is considered insignificant through the documentation in a
conformity determination under the first option.
---------------------------------------------------------------------------
EPA's second option would only require regional emissions analyses
for one or more PM2.5 precursors (i.e., NOX, VOC,
SOX and NH3) before adequate or approved
PM2.5 SIPs have been established if the State or EPA makes a
finding that one or more of these precursors are significant
contributors to the PM2.5 air quality problem in a given
area.
A State air agency or EPA finding of significance or insignificance
(a ``significance finding'') would be based on criteria similar to the
general criteria currently used by EPA to evaluate SIPs that claim on-
road emissions are insignificant for a given pollutant or precursor.
EPA's existing policy for insignificance serves as the basis for
today's proposal, as described in Section XIV.B. of this notice. The
following criteria should be considered in making significance findings
for PM2.5 precursors under either proposed option: the
contribution of on-road emissions of the precursor to the total 2002
baseline SIP inventory; the current state of air quality for the area;
the results of speciation monitoring for the area; the likelihood of
future motor vehicle control measures for a given precursor; and
projections of future on-road emissions of the precursor. The State air
agency or EPA Regional Administrator would determine significance or
insignificance of motor vehicle emissions in a given area on a case-by-
case basis.
Under either option, a significance finding should be made only
after discussions with the interagency consultation group for the
PM2.5 nonattainment area. These discussions should include a
review of the available data being considered to support the
significance finding. Interagency consultation also ensures that all of
the relevant agencies are aware that such a finding is being
considered. It is important to provide transportation agencies with
adequate notice of which, if any, precursors they may need to address
in conformity analyses. A significance finding would be made through a
letter to the relevant State and local air quality and transportation
agencies, MPO(s), DOT and EPA (in the case of a State air agency
finding).
EPA notes that any significance finding made prior to the SIP
should not be viewed as the ultimate determination of the significance
of precursor emissions in a given area. State and local agencies may
find through the SIP development process that emissions of one or more
precursors are significant, even if a precursor had previously been
considered insignificant. In such a case, the PM2.5 SIP
would establish motor vehicle emissions budgets and significant
precursors would be included in subsequent conformity analyses.
To calculate emission factors for direct PM2.5 from
motor vehicles and PM2.5 precursors areas in all states
except California would use the latest EPA-approved motor vehicle
emissions factor model (currently MOBILE6). PM2.5
nonattainment and maintenance areas in California should use EMFAC2002
or a more recently EPA-approved model. It should be noted that
EMFAC2002 currently does not calculate emissions factors for
NH3.
[[Page 62706]]
However, EPA understands that California is working on a revision to
EMFAC that should enable the model to calculate emissions factors for
NH3. A schedule for completing the necessary revisions has
not been established. As a practical matter, conformity for
NH3 would not be required in California until there is an
acceptable method for estimating such emissions, since a method would
be needed to estimate current or future NH3 emissions for
either a significance finding or SIP motor vehicle emissions budget.
Including any precursors in regional emissions analyses prior to
the submission of a SIP should not result in any additional
transportation or emissions modeling work since the nonattainment areas
will already be estimating vehicle miles traveled (VMT) from
transportation activities for the direct PM2.5 regional
emissions analysis. In addition, EPA's upcoming MOBILE6.2 and
California's EMFAC2002 are designed to generate emissions factors for
direct PM2.5 and PM2.5 precursors in the same
modeling run. Therefore, if any area is already generating
PM2.5 emissions factors, precursor estimates would be
available without any additional effort, with the possible exception of
NH3 estimates in California, as indicated above.
B. Why Are We Proposing These Options?
Section 176(c)(1)(B) of the Clean Air Act requires that federal
funding and approval be given only to transportation activities that
are consistent with state and local air quality goals. To fulfill this
requirement with respect to PM2.5, EPA is proposing that
transportation conformity determinations consider PM2.5 and
its precursors if they are significant contributors to an area's
PM2.5 air quality problem.
EPA anticipates that in most nonattainment and maintenance areas
direct PM2.5 emissions would be an important contributor to
the PM2.5 air quality problem, and therefore, we are
proposing that direct PM2.5 emissions from motor vehicles be
included in all conformity analyses. In addition, EPA's proposal to
require conformity to all relevant budgets established in the
PM2.5 SIP is consistent with the Clean Air Act in that
transportation activities must conform to the air quality goals
established and estimates of future emissions in the SIP for a given
area.
EPA has proposed NOX, VOCs, SOX, and NH3 as
potential transportation-related PM2.5 precursors since all
of these precursors are emitted from on-road motor vehicles. Based on
data collected from monitoring sites in the national speciation trends
network,\4\ secondary particles from precursors commonly account for
over half of the total fine particle mass from all emissions sources
measured at these sites. Therefore, we expect that areas may need to
address on-road emissions of relevant precursors (i.e., NOX,
VOC, SOX and NH3) in their SIPs and in
conformity.
---------------------------------------------------------------------------
\4\ The speciation trends network consists of over 50 monitoring
sites in urban areas and provides nationally consistent data on
PM2.5 constituents including nitrates, elemental carbon,
organic carbon and sulfates.
---------------------------------------------------------------------------
EPA believes that the two proposed options would allow for the
consideration of the four potential precursors in conformity prior to
PM2.5 SIPs when such precursors are significant. However,
they differ in terms of whether a NOX or VOC precursor is
presumed to be significant and considered in conformity from the start,
or whether a finding of significance is necessary before a precursor is
addressed. The proposed options attempt to strike a balance between:
(1) Expeditiously addressing transportation-related emissions that
could exacerbate the PM2.5 air quality problem before a SIP
is established, and (2) targeting conformity requirements in
PM2.5 areas in an efficient and reasonable manner. As
described above, the proposed options would only require SOX
and NH3 analyses if either precursor was found to be
significant before a PM2.5 SIP.
For example, the first proposed option is more environmentally
conservative by requiring that NOX and VOC conformity
analyses be included in all areas initially. If EPA finds that in most
areas motor vehicle emissions of these precursors are significant
contributors to PM2.5 air quality problems, it may warrant
the first option's more straightforward approach to meeting Clean Air
Act requirements. In other words, areas would begin addressing
NOX and VOC emissions upon designation under the first
option, without having a separate state or EPA finding of significance.
This option is similar to the current rule's requirement that ozone
areas must address NOX and VOC precursors.
On the other hand, the second proposed option is consistent with
the current rule's approach for PM10 precursors, where NOX
and VOC conformity analyses are only conducted prior to PM10
SIPs if the State or EPA finds either precursor significant (40 CFR
93.102(b)(2)(iii)). EPA finalized this approach in the November 24,
1993 conformity rule because at that time secondary formation appeared
to be less important for the PM10 NAAQS in general, although
some PM10 areas have since established NOX and/or
VOC SIP budgets.
The second proposed option would account for regional variability
and target conformity analyses where EPA or the state determine
NOX and VOC precursors to be significant to an area's
PM2.5 problem. Although we know that NOX and VOC
precursors generally play a more important role in PM2.5
formation, we continue to gather more specific information on the
significance of these precursors in different parts of the country. One
could argue that it may be more appropriate to focus scarce state and
local efforts on NOX and VOC precursors only when they are
determined to be significant, especially if adopting control measures
early in conformity may prove not to be necessary in the
PM2.5 SIPs.
The following paragraphs present information on current speciated
air quality data and on-road emissions of the precursors that
contribute to the formation of secondary particles. The information is
intended to illustrate what we know about PM2.5 precursor
emissions and air quality. This type of information is relevant to
deciding whether or not to initially require that a precursor be
considered in conformity before a more thorough evaluation is conducted
through the SIP development process. The emission inventory data used
in the following discussion is for 372 potential nonattainment counties
based on 1999-2001 ambient data.\5\ Summaries of the air quality and
emissions inventory data discussed below are available in the docket
for this rulemaking. More detailed air quality emission inventory data
is available on the EPA Web site at http://www.emissionsonline.org/nei99v3/index.htm. The public is welcome to submit additional data on
the importance of including PM2.5 precursors in conformity
before SIPs are established.
---------------------------------------------------------------------------
\5\ Through this data, we identified 129 counties that have
violating monitors for PM2.5. EPA is currently reviewing
2000-2002 ambient data which may affect the numbers discussed in
today's proposal.
---------------------------------------------------------------------------
NOX precursor emissions. On-road sources accounted for
approximately 40% of total NOX emissions in 1999 in the 372
potential nonattainment counties. Based on data collected from
monitoring sites in the national speciation trends network, nitrates--
which result from reactions involving NOX--make up between 5
and 40% of the total PM2.5 constructed mass. The areas with
the highest percentages of nitrates are in California and parts of the
[[Page 62707]]
Midwest. The areas with lowest percentages tend to be in the southeast,
where nitrates make up only 5 to 10% of the total PM2.5
constructed mass.
The 2003 NARSTO-PM report (``Particulate Matter Science for Policy
Makers: A NARSTO Assessment,'' February 2003) states, ``Nitrates
represent a major fraction of the PM2.5 mass measured in
some locations, though the management of the nitrate fraction via
NOX emission reductions needs to be addressed in combination
with VOCs, NH3 and SO2. This must be done in
consideration of the relationship between nitrate production and local
or regional ozone formation.'' The report also states, ``Reductions of
NOX, VOCs, and associated NH3 throughout the year
in and around large urban areas may be important in the East as well as
the West to bring down the nitrate contributions to the 24-hr and/or
annual PM averages. While summer nitrate concentrations in eastern
North America are low in comparison with other PM2.5
components, higher winter nitrate concentrations occur in northern
urban areas.'' The report goes on to indicate that the application of
chemical transport models and comprehensive air quality monitoring will
be useful in determining how best to address nitrates.
A number of factors should be taken into account when considering
the two options for addressing NOX as presented above. The
first proposed option (which specifies that conformity demonstrations
during the pre-SIP period must cover NOX unless a finding is
made that NOX is not a significant contributor to the area's
PM2.5 problem) is supported by the fact that on a national
basis, NOX is clearly a significant contributor to the
PM2.5 problem, that nitrates constitute some portion of the
problem in each metropolitan area, and that on-road sources are
significant contributors of NOX emissions in the potential
nonattainment counties. In addition, assuming further sulfur dioxide
reductions are required in order to attain the PM2.5
standards, certain areas may see an increase in nitrate formation as
sulfur dioxide emissions decline due to the reaction of ammonia with
NOX, which in relative terms would be more ``available'' for
such reactions. In order to minimize this ``NOX disbenefit''
situation, NOX emissions should be further reduced at the
same time. These factors may argue that a more environmentally
conservative approach is needed to meet the Clean Air Act conformity
provisions, and that NOX should be considered in conformity
analyses under the first proposed option unless the State or EPA
determine otherwise.
The second option (in which conformity demonstrations during the
pre-SIP period must consider NOX only if the State or EPA
make a finding that NOX is a significant contributor) is
under consideration because the contribution of nitrates to total
PM2.5 concentrations in different metropolitan areas can
vary significantly as noted above. In addition, this option would
enable states to consider NOX emission reductions in
combination with potential reductions of VOCs, NH3 and
SO2 as part of the process for developing an area's
attainment demonstration (due within 3 years of the area's
nonattainment designation), in which air quality modeling at a more
refined spatial resolution (e.g. 12 kilometer grid size) would be
performed. EPA seeks comment on the two options for addressing
NOX in conformity prior to PM2.5 SIPs.
VOC precursor emissions. In 1999, on-road sources accounted for
approximately 34% of the total VOC emissions in the 372 potential
nonattainment counties for PM2.5 (based on the 1999-2001 air
quality data). Carbonaceous particles, which result, in part, from
reactions involving VOCs, account for 25-70% of constructed fine
particle mass measured at speciation trends network sites. The highest
percentages of carbonaceous particles tend to be in California and the
lowest percentages tend to be in the eastern United States.
Our understanding of the role of VOCs in PM2.5 air
quality problems continues to evolve. VOCs play several different
functions in the formation of the organic fraction of PM2.5.
The 2003 NARSTO report characterizes VOC precursors into three main
categories. High molecular weight organic molecules (i.e., molecules
with 25 or more carbon atoms) are either emitted directly as particles
or as liquids that rapidly condense onto existing particles.
Intermediate weight organic molecules (e.g., compounds with 7 to 24
carbon atoms) often exhibit a range of volatilities and can exist in
both the gas and aerosol phase. For this reason they are also referred
to as semivolatile compounds. These compounds react at higher
temperatures to form secondary organic aerosols (SOAs). Aromatic
compounds such as toluene, xylene, ethyl benzene are considered to be
the most significant anthropogenic SOA precursors and have been
estimated to be responsible for 50 to 70 percent of SOAs. The smallest
organic molecules (i.e., molecules with six or less carbon atoms) occur
in the atmosphere mainly as vapors and typically do not form organic
particles at ambient temperatures. However, they participate in
atmospheric chemistry processes resulting in the formation of ozone and
certain free radical compounds (such as the hydroxyl ion [OH]). These
free radicals participate in the oxidation of other gas-phase compounds
(such as semivolatile aromatics) to form SOAs. The relative importance
of each of these groups of organic compounds in the formation of
organic particles varies from area to area. Also, the contribution of
on-road source emissions to each of these three groups of organic
compounds may vary from area to area.
Since on-road motor vehicles account for a substantial portion of
total VOC emissions and on-road VOCs should be significant in many
PM2.5 areas, one could argue that the first proposed option
is the most logical and environmental approach. Under this proposed
option, VOCs would be considered in conformity automatically unless
states or the EPA Regions determine that VOCs are insignificant for a
given area. On the other hand, it may be appropriate to allow states
and EPA the opportunity to evaluate the local significance of VOC
emissions prior to consideration in conformity, given the likely
variations between areas regarding the role of VOCs in the formation of
PM2.5. EPA seeks comment on the two options for addressing
VOCs in conformity prior to PM2.5 SIPs.
SOX precursor emissions. EPA believes that statutory
requirements are met under both proposed options if SOX is
only addressed in conformity if it is determined to be significant to
an individual nonattainment area. Although SOX may
significantly contribute to total PM2.5 in terms of
emissions from all sources, emissions inventory data indicates that on-
road emissions of SOX generally represent a very small
portion of the total SOX emissions. Emissions inventory data
for 1999 for the 372 potential PM2.5 nonattainment counties
for PM2.5 (based on 1999-2001 air quality data) shows that
on-road sources were responsible for only 2% of total SOX
emissions. By comparison, fuel combustion sources (e.g., electric
utility and industrial combustion of coal and oil) were responsible for
approximately 88% of the SOX emissions in 1999 in these same
counties.
In addition, EPA has already adopted two regulations that will
greatly reduce emissions of SOx from on-road sources by the time such
regulations are both in full effect in 2009. First, in 2004 the low
sulfur gasoline program begins to be
[[Page 62708]]
phased in and is fully effective in 2007 (February 10, 2000, 65 FR
6697). This regulation will reduce the sulfur content of gasoline by
approximately 90%.\6\ Second, in 2006 the low sulfur diesel program
begins to be phased in and is fully effective by 2009 (January 18,
2001, 66 FR 5001). This regulation will reduce the sulfur content of
diesel fuel by approximately 97% nationally.
---------------------------------------------------------------------------
\6\ In addition, California has adopted its own rule which
addresses the sulfur content of gasoline in that State. California's
regulation is similar in stringency to the federal regulation.
---------------------------------------------------------------------------
Projections of on-road emissions of SO2 in 2020 in the 372
potential PM2.5 nonattainment counties based on 1999-2001
air quality data indicates that on-road sources will be responsible for
less than 1% of the total SO2 emissions in 2020 in these
counties.\7\ These projections confirm that the implementation of the
fuel regulations discussed above will ensure that SO2
emissions from on-road sources remain at insignificant levels.
---------------------------------------------------------------------------
\7\ EPA 420-R-00-020, October 2002, ``Procedures for Developing
Base Year and Future Year Mass and Modeling Inventories for the
Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel
(HDD) Rulemaking.''
---------------------------------------------------------------------------
NH3 precursor emissions. EPA believes that both proposed options
are appropriate and consistent with the statute by only requiring
NH3 conformity analyses if it is found significant in a
given area. States and EPA should have a better understanding of the
effect of NH3 reductions on PM2.5 concentrations
by 2007, when PM2.5 SIPs would be due. Based on the limited
state of knowledge about on-road mobile source NH3
contributions to PM2.5 and indications that such emissions
may be small, EPA does not generally believe that any areas should be
required to consider NH3 in conformity before SIPs are
submitted, unless the State or EPA determines that NH3
emissions are significant.
First, the 2003 NARSTO-PM report states that in most areas,
insufficient information exists at this time to predict how particle
mass and composition would change in response to changing
NH3 emissions. In some areas, reductions in NH3
could actually lead to formation of acid aerosols that could worsen air
quality. Second, existing emissions data show that on-road sources are
a relatively small contributor to national NH3 emissions,
approximately 5%. In addition, information on 1999 emissions indicates
that about 17% of the NH3 in the 372 potential
PM2.5 nonattainment counties (based on 1999-2001 air quality
data) comes from on-road sources. Although this information provides
some evidence that on-road NH3 emissions can be important in
some urban areas, this is likely due to urbanized counties having fewer
agricultural and other NH3 sources.
IX. Re-entrained Road Dust in PM2.5 Regional Emissions
Analyses
A. Background
Fugitive dust is released into the atmosphere by the mechanical
disturbance of granular material. Common sources of fugitive dust
include agricultural operations, construction, and on-road motor
vehicle activity. Motor vehicles produce direct particulate emissions
of dust through resuspension of loose material on the road surface,
also known as re-entrained road dust.
Re-entrained road dust can come from both paved and unpaved roads,
including pavement wear and decomposition, atmospheric deposition onto
the road surface, mud and dirt carry-out from off-road sites, and sand,
salt, and other materials applied for ice or skid control. In the
preamble to the 1993 final conformity rule, EPA identified re-entrained
road dust as a potential on-road mobile source contributor to some
local PM10 nonattainment problems. EPA stated, ``All highway
and transit related source categories that contribute to the
nonattainment problem should be identified and included in the motor
vehicle emissions budget, including exhaust, evaporative, and re-
entrained dust emissions (including emissions from antiskid and deicing
materials, where treated as mobile source emissions by the SIP).''
(November 24, 1993, 58 FR 62194)
B. What Are We Proposing?
This part of the proposal addresses when direct PM2.5
from re-entrained road dust would be included in conformity analyses in
PM2.5 nonattainment and maintenance areas. Once a
PM2.5 SIP is submitted, re-entrained road dust would be
included in regional emissions analyses if road dust is considered
significant in the context of the SIP's air quality modeling and
included in an adequate or approved PM2.5 motor vehicle
emissions budget. EPA would consider the significance of road dust in
its adequacy review or approval of a submitted PM2.5 SIP.
The following two options address road dust emissions in the time
period before adequate or approved PM2.5 SIP budgets are
established.
The first option would require that, prior to adequate or approved
PM2.5 SIP budgets, re-entrained road dust would only be
included in regional emissions analyses if the State air quality agency
or EPA Regional Administrator determines that re-entrained road dust is
a significant contributor to the PM2.5 regional air quality
problem. In other words, PM2.5 areas could presume that re-
entrained road dust is not a significant contributor and not include
road dust in PM2.5 transportation conformity analyses prior
to the SIP, unless the State or EPA finds road dust significant. The
proposed regulatory text for this option can be found in Sec.
93.102(b)(3).
EPA requests comment on whether the first proposed option should be
modified to require certain PM2.5 areas that are also
PM10 areas to include road dust in PM2.5
conformity analyses, if road dust is currently included in
PM10 conformity analyses. Such a caveat would result in a
limited number of PM2.5 areas including road dust in all
PM2.5 conformity analyses prior to a PM2.5 SIP,
unless the State or EPA found that road dust is not a significant
contributor to the regional air quality problem. This proposal does not
affect how re-entrained road dust is addressed in conformity for the
PM10 standard.
The second proposed option would require that re-entrained road
dust be included in conformity analyses in all PM2.5
nonattainment areas prior to adequate or approved PM2.5 SIP
budgets, unless the State air quality agency or EPA Regional
Administrator determines that re-entrained road dust is not a
significant contributor to the regional air quality problem. For this
option, MPOs and DOT would document in their conformity determinations
that regional emissions analyses for direct PM2.5 do not
include road dust emissions when EPA or the State has determined that
such emissions are insignificant.\8\
---------------------------------------------------------------------------
\8\ The public would be notified when road dust is considered
insignificant through the documentation in a conformity
determination for this option.
---------------------------------------------------------------------------
An EPA or State air agency finding of significant or insignificant
re-entrained road dust emissions (a ``significance finding'') would be
based on a case-by-case review of the following factors for either
proposed option: the contribution of road dust to current and future
PM2.5 nonattainment; an area's current design value for the
PM2.5 standard; whether control of road dust appears
necessary to reach attainment; and whether increases in re-entrained
dust emissions may interfere with attainment. Such a review would
include consideration of local air quality data and/or air quality
modeling results. Today's proposed options for PM2.5 road
dust are consistent with EPA's existing
[[Page 62709]]
insignificance policy for all areas as described in Section XIV.B.
Under either option, a significance finding should be made only
after discussions with the interagency consultation group for the
PM2.5 nonattainment area. These discussions should include a
review of the data being considered. Interagency consultation would
also ensure that all of the relevant agencies are aware that such a
finding is being considered and is supported by the air quality
information that is available at the time. A significance finding would
be made through a letter to the relevant state and local air quality
and transportation agencies, MPO(s), DOT, and EPA (in the case of a
State air agency finding).
EPA notes that any significance finding made prior to the SIP
should not be viewed as the ultimate determination of the significance
of road dust emissions in a given area. State and local agencies may
find through the SIP development process that road dust emissions are
significant and should be included in the PM2.5 SIP motor
vehicle emissions budget and subsequent conformity analyses, even in
the case where road dust emissions were previously considered
insignificant.
As described further below, under any of the proposed options, EPA
would issue guidance on how to calculate PM2.5 road dust
emissions to reflect the true impact of re-entrained road dust on
regional air quality. This guidance would be available before EPA's
final PM2.5 nonattainment designations. See Section IX.D.
for more details on EPA's ideas for such guidance.
C. Why Are We Proposing These Options?
At issue is the question of whether or not re-entrained road dust
has a significant impact on air quality and should be included in
conformity analyses in all PM2.5 areas. Existing
PM10 areas include re-entrained road dust in conformity
because fugitive dust from roadways and other sources dominate
PM10 regional emissions inventories. However, the role of
re-entrained road dust for PM2.5 air quality issues is less
clear. Furthermore, there does not appear to be a direct correlation
between the amount of road dust calculated for PM2.5 motor
vehicle inventories and what is being collected on PM2.5
monitoring filters, as discussed further in this section.
Specifically, analysis of local air quality data indicates wide
regional variation in the fractions of PM2.5 found on air
quality monitors that consists of chemical elements associated with
fugitive dust. Moreover, not all emissions of these chemical elements
are attributable to re-entrained road dust, as they can also be emitted
by other sources that disturb or process minerals or metals. In some
areas, especially those areas in the eastern United States, preliminary
analyses indicate that fugitive dust may not have a significant impact
on regional air quality.\9\ In those areas, it may be more productive
prior to a PM2.5 SIP to focus control efforts on vehicle
emissions that contribute to the PM2.5 air quality problem,
rather than on re-entrained road dust emissions.
---------------------------------------------------------------------------
\9\ ``National Air Quality and Emissions Trends Report, 1999,''
EPA-454/R-01-004, U.S. EPA Office or Air Quality Planning and
Standards, March 2001; also J. Szykman, D. Mintz, J. Creilson, and
M. Wayland, ``Impact of April 2001 Asian Dust Event on Particulate
Matter Concentrations in the United States,'' in the ``Proceedings
of the Air & Waste Management Association Symposium on Air Quality
Measurement Methods and Technology, San Francisco, November 13-15,
2002.
---------------------------------------------------------------------------
The first proposed option would address regional variability, and
ultimately allow the SIP's analysis to determine whether or not re-
entrained road dust is a significant factor in the regional
PM2.5 problem. A more thorough air quality analysis as
required for the SIP may be the best determination of the real impact
of re-entrained road dust on PM2.5 air quality, unless there
is clear evidence before the SIP that road dust emissions are
significant.
Under the first proposed option, EPA is requesting comment on
whether it is appropriate to require PM2.5 areas that are
also PM10 areas to include road dust in conformity analyses,
unless a finding is made that road dust is not significant. Areas that
are nonattainment for PM10 may be more likely to have
significant re-entrained road dust contributing to the PM2.5
problem. Due to the significant amount of road dust in existing
PM10 inventories, it may be appropriate to also initially
presume that road dust is significant for PM2.5 for these
limited number of PM10 areas, unless the State or EPA find
that road dust is not significant.
Finally, because the second option begins with the presumption that
re-entrained road dust emissions is a problem, it may be more
conservative in protecting PM2.5 air quality with respect to
the impact of road dust. However, in many areas, the second proposed
option might result in the diversion of resources toward road dust
analyses as well as road dust control measures that might be more
effectively used to understand and control other emissions sources.
These areas do have the option of supporting an EPA or state finding
that road dust emissions are not significant, but this may be difficult
to do prior to the completion of the SIP analysis in some areas.
D. Request for Comment on Estimating Road Dust Emissions
Under any of the proposed options, road dust SIP emissions
inventories and regional emissions analyses for conformity at this time
should be calculated using methods described in EPA's guidance
entitled, ``AP-42, Fifth Edition, Volume 1, Chapter 13, Miscellaneous
Sources'' (US EPA Office of Air Quality Planning and Standards;
available at http://www.epa.gov/ttn/chief/ap42/ch13/ ) or locally
developed estimation methods approved through the interagency
consultation process. For reasons described below, under EPA's future
guidance, calculated emissions would then be adjusted downward based on
an analysis of the relative impact of re-entrained road dust on ambient
PM2.5 concentrations as determined by regional air quality
monitors in a given area.
Review of PM2.5 air quality data raises significant
questions of uncertainty in the estimation methods for PM2.5
dust emissions. Emissions of road dust are estimated using methods that
are based on data collected from particulate monitors set up close to
the road edge. These methods are used to create a PM2.5
inventory, which is an estimation of the total amount of
PM2.5 road dust released into the atmosphere. When used with
standard air quality simulation models, the methods that are used to
create the inventory may adequately estimate the dust in the air
immediately adjacent to the road, but may overestimate the impact that
dust has on concentrations in the larger region and in particular at
the PM2.5 monitors that determine attainment with the
PM2.5 NAAQS. Regional air quality is assessed by air quality
monitors that are set up in a wide range of locations. These regional
air quality monitors generally indicate much lower fractions of dust in
the atmosphere than are predicted based on the emissions inventories.
(``Reconciling Urban Fugitive Dust Emissions Inventory and Ambient
Source Contribution Estimates: Summary of Current Knowledge and needed
Research'', Desert Research Institute Document 6110.4F, May 2000,
available at http://www.epa.gov/ttn/chief/efdocs/fugitivedust.pdf).
There are several likely contributing factors to explain this
discrepancy. The first factor is that road dust particles are
distributed more toward the high end of the PM2.5 size range
than are exhaust particle or PM2.5 emissions from many other
source types. The second factor is
[[Page 62710]]
the low height to which re-entrained road dust is lifted (75% of
unpaved road dust emissions were less than 2 meters above the ground
when they were measured; compared to emissions released from stacks at
stationary sources or vertical exhaust pipes on heavy-duty trucks)
(Desert Research Institute Document 6110.4F, May 2000). This low-
lifting height provides an extended ``opportunity'' for impaction,
filtration, agglomeration and other physical mechanisms that lead to
particle removal to occur. The third factor is that the lack of any
thermal buoyancy for dust emissions would somewhat reduce their impact,
in contrast to emissions from vehicle exhaust and other combustion or
high temperature sources. All three factors increase the likelihood
that road dust particles would settle out of the atmosphere onto the
ground or adhere onto other surfaces such as vegetation, structures,
etc., before contributing substantially to the PM2.5
regional air quality problem.
There are other reasons for uncertainty associated with the current
method for estimating PM2.5 re-entrained road dust
emissions. The original data used to develop this method were based on
measurements of PM10 rather than PM2.5. The
PM10 data were subsequently adjusted to reflect the fraction
of PM2.5 in PM10, but these adjustments add
uncertainty. In addition, the data used to develop the emissions
estimation method are highly variable. This variability adds to
uncertainty about its interpretation. (``AP-42, Fifth Edition, Volume
1, Chapter 13: Miscellaneous Sources'', U.S. EPA Office of Air Quality
Planning and Standards).
Attempting to adjust for discrepancies between estimated
inventories and air quality measurements, EPA has discounted national
PM2.5 emissions inventories by 75% in air quality analyses
for recent EPA rulemakings and other national analyses, to create the
``effective emissions'' that are used as input into regional air
quality models. (Desert Research Institute Document 6110.4F, May 2000).
Even with this discount, absolute air quality model predictions of the
concentration of chemical elements associated with road dust typically
have remained higher than observed at most urban PM2.5
monitoring sites, suggesting that an even larger discount may be needed
in at least some situations. In areas where PM2.5
transportation conformity for road dust is required, we believe that
discounting local re-entrained road dust inventories is necessary to
ensure that the overall impact of road dust is properly estimated, and
that decisions about control strategies for road dust emissions and
exhaust emissions reflect actual relative impacts on ambient
concentrations and attainment. Without these adjustments, planners may
not apply the proper combination of control measures on dust and
vehicle emissions needed to properly address the regional
PM2.5 air quality problem. Based on observed discrepancies,
EPA believes that controls on road dust would have a much smaller
impact on regional air quality than would initially appear based on
unadjusted emission inventories.
Preliminary analysis of air quality data and modeling studies
indicates that there will likely be wide local variation in the size of
the necessary adjustments to PM2.5 dust emissions. For this
reason, it would be inappropriate to apply EPA's 75% downward
adjustment for national inventories for all areas. EPA believes it is
more appropriate for PM2.5 areas to create locally-specific
adjustments based on the amount of road dust on an area's monitoring
filters and its relationship to an area's nonattainment problem.
Therefore, EPA intends to develop methods to make these adjustments
locally both before and after a regional SIP air quality analysis has
been done. EPA would issue this guidance by the time PM2.5
designations are made. EPA invites comments and suggestions for
possible methods for determining such local adjustments in areas where
road dust is included in conformity analyses.
X. Construction-Related Fugitive Dust in PM2.5 Regional
Emissions Analyses
A. Background
Construction-related fugitive dust is granular material released
into the atmosphere during construction. Activities associated with
construction-related fugitive dust emissions include land clearing,
drilling and blasting, ground excavation, cut and fill operations (i.e.
earth moving), and facility construction. Often, a large portion of
such emissions results from equipment traffic over temporary roads at
the construction site. Construction-related fugitive dust is distinct
from re-entrained road dust, which is emitted by motor vehicles
traveling over permanent paved or unpaved roads. The discussion here
applies only to fugitive dust emitted during the construction of
highway or transit projects.
B. What Are We Proposing?
EPA proposes to include construction-related fugitive dust from
highway or transit projects in regional emissions analyses in
PM2.5 nonattainment and maintenance areas only if the SIP
identifies such dust as a significant contributor to the regional air
quality problem. In other words, PM2.5 areas would only
include construction-related fugitive dust if the SIP identifies it as
contributing to an area's air quality problem. Construction-related
dust emissions would not be included in any PM2.5 conformity
analyses before adequate or approved PM2.5 SIP budgets are
established. EPA has included proposed regulatory text for this option
as Sec. 93.122(e).
Under this proposal, if construction-related fugitive dust is
included in transportation conformity, we propose to allow
PM2.5 SIP budgets and conformity analyses to be adjusted to
reflect the true impact of construction-related fugitive dust on
regional air quality, as explained in Section IX.D. EPA would issue
guidance on how to calculate PM2.5 construction dust
emissions to more accurately reflect the impact of construction dust on
regional air quality before EPA's final PM2.5 nonattainment
designations. Construction dust SIP emissions inventories and regional
emissions analyses for conformity should be calculated using methods
described in EPA's guidance entitled, ``AP-42, Fifth Edition, Volume 1,
Chapter 13, Miscellaneous Sources'' (US EPA Office of Air Quality
Planning and Standards; available at http://www.epa.gov/ttn/chief/ap42/ch13/) or locally developed estimation methods approved through the
consultation process.
Under EPA's future guidance, calculated emissions would then be
adjusted downward to account for discrepancies based on an analysis of
the relative impact of construction dust on ambient PM2.5
concentrations as determined by regional air quality monitors in a
given area. See previous discussion in Section IX.D. for more details
on ideas that EPA is considering for its future guidance. EPA is also
requesting comment from the public on such guidance.
C. Why Are We Proposing This Option?
Section 176(c) of the Clean Air Act requires that the air quality
impacts of transportation projects be evaluated so that new violations
or worsened violations do not occur. If emissions of fugitive dust from
highway or transit projects contribute to air quality problems in
PM2.5 areas and as a result, air quality is worsened, then
it may be appropriate to evaluate those emissions in conformity before
federal funding or approval is given. Section 93.122(d) of the
transportation conformity rule
[[Page 62711]]
requires regional PM10 emissions analyses to include
construction-related PM10 dust if the SIP identifies such
emissions as a contributor to the nonattainment problem. If
construction-related fugitive PM10 is not identified as a
contributor to the air quality problem in the implementation plan,
areas are not required to include these emissions in the regional
emissions analysis for transportation conformity. The proposal applies
the current rule's approach for PM10 areas to
PM2.5 areas.
In nonattainment and maintenance areas where construction-related
fugitive dust is a part of the nonattainment problem, we would allow
states to adjust the construction-related fugitive dust SIP inventories
and subsequent conformity analyses to resolve any discrepancies between
the dust inventories and the amount of dust observed at air quality
monitors, as described above. As noted, regional air quality monitors
generally indicate much lower fractions of dust in the atmosphere than
are predicted based on the emissions inventories. (Desert Research
Institute Document 6110.4F, May 2000). As explained above, factors such
as larger particle size, low release height, and low thermal buoyancy
increase the likelihood that dust particles would quickly settle out of
the atmosphere onto the ground or adhere onto other surfaces such as
vegetation, structures, etc.
In areas where PM2.5 transportation conformity for
construction dust is required, we believe that discounting local
construction dust inventories is necessary to ensure that the overall
impact of road dust is properly estimated, and that decisions about
control strategies for dust emissions (including construction dust) and
exhaust emissions reflect actual relative impacts on ambient
concentrations and attainment. EPA will develop separate guidance for
these adjustments to SIP budgets and conformity analyses and this
guidance would be available before EPA's final nonattainment
designations for the PM2.5 standard.
D. Implementation and Request for Additional Information
EPA addressed implementation issues for including construction dust
in PM10 conformity analyses in an October 28, 1996
memorandum.\10\ Under the proposal, EPA would apply similar
implementation guidance to PM2.5 areas.
---------------------------------------------------------------------------
\10\ ``Transportation Conformity: Regional Analysis of
PM10 Emissions from Highway and Transit Project
Construction,'' memorandum from Gay MacGregor, then-director,
Regional and State Programs Division, Office of Mobile Sources to
EPA Regional Air Division Directors.
---------------------------------------------------------------------------
During the development of the SIP, air quality agencies would
ensure that the PM2.5 SIP inventory clearly identifies the
role (if any) of construction dust in the PM2.5 air quality
problem. If construction dust is a contributor, dust from highway and
transit projects would be included in the PM2.5 SIP motor
vehicle emissions budget. MPOs and state transportation agencies would
work together with local and state air quality agencies to ensure that
construction dust emissions are properly analyzed with respect to the
transportation plan and TIP for conformity analyses. If the
PM2.5 SIP identifies construction dust as a significant
PM2.5 problem, the regional emissions analysis would account
for the level of construction activity, the fugitive PM2.5
control measures in the SIP (if there are any), and the dust-producing
capacity of the proposed construction activities.
XI. Compliance With PM2.5 Control Measures
A. What Are We Proposing?
We are proposing that FHWA and FTA projects in PM2.5
nonattainment and maintenance areas must comply with the applicable
SIP's control measures, when such measures exist. Through this
proposal, FHWA/FTA would assure implementation of a required control or
mitigation measure by obtaining enforceable written commitments from
the project sponsor and/or operator prior to making a project-level
conformity determination. This requirement would be satisfied if the
project-level conformity determination contains a written commitment
from the project sponsor to include the control measures in the final
plans, specifications and estimates for the project. This proposal is
consistent with a similar requirement for PM10 areas in
Sec. 93.117 of the current conformity rule.
We should note, however, that this proposed requirement in Sec.
93.117 is only applicable after a PM2.5 nonattainment area
has an approved PM2.5 SIP, since the requirement is to
comply with the measures in the approved SIP. Today's proposal does not
affect any separate state or SIP requirements for compliance with
control measures.
The purpose of a PM2.5 control measure would be to limit
the amount of PM2.5 emissions from construction activities
and/or normal use and operation associated with the project. Examples
of control or mitigation measures that may be approved into a SIP
include limitations on fugitive dust during construction or street
sweeping. Normal project design elements (dimensions, lane widths,
materials, etc.), however, are not considered mitigation or control
measures.
EPA requests information from current PM10 nonattainment
and maintenance areas on how the current requirement in Sec. 93.117
has been implemented in PM10 areas and what types of
measures have been effective in limiting these emissions. Information
on how PM10 areas have addressed this requirement and the
types of measures that have been implemented could prove valuable to
new PM2.5 nonattainment areas.
B. Why Are We Proposing This Option?
The purpose of conformity is to ensure that federal actions are
consistent with the SIP. If the approved SIP includes control measures
for mitigating PM2.5 emissions from federal transportation
projects, then conformity should ensure that these SIP measures are
implemented. We believe that this requirement would help
PM2.5 areas achieve clean air by ensuring that federal
projects comply with control measures that result in air quality
improvements as anticipated in the SIP. Although such projects must
comply with SIP requirements in any event, documenting compliance in a
conformity determination would add an important enforcement tool to aid
in SIP compliance.
The interagency consultation process is required to discuss the
inclusion of control measures in an area's SIP. Section 93.105(b)(1) of
the current conformity rule requires that the interagency consultation
process be used in the development of the SIP, particularly when an
agency is responsible ``for developing, submitting or implementing
provisions of an implementation plan.'' The interagency consultation
group may also be a source of recommendations for the most appropriate
approach to addressing PM2.5 emissions in the SIP.
Section 93.117 of the current conformity rule has an identical
requirement for project-level conformity determinations in
PM10 nonattainment and maintenance areas. We do not believe
that compliance with this requirement has been a burden for
PM10 areas. Therefore, we do not anticipate that our
proposal in Sec. 93.117 should be a burden on new PM2.5
nonattainment areas, as this requirement simply ensures that control
measures which the interagency consultation group has
[[Page 62712]]
previously agreed upon and included in the SIP are implemented.
XII. PM2.5 Hot-Spot Analyses
A. What Are We Proposing?
EPA is taking comment on two options concerning the need to conduct
hot-spot analyses for FHWA and FTA projects in PM2.5
nonattainment and maintenance areas. A hot-spot analysis as defined in
Sec. 93.101 of the rule for CO and PM10 areas is an
estimation of likely future localized pollutant concentrations and a
comparison of those concentrations to the air quality standard. A hot-
spot analysis assesses impacts on a scale smaller than the entire
nonattainment or maintenance area, including for example, congested
roadway intersections and highways or transit terminals, and uses a
dispersion model to determine the effects of emissions on air quality.
In general, a hot-spot analysis must show that the project does not
cause any new violations of the air quality standard or increase the
frequency or severity of existing violations. The conformity rule
currently requires hot-spot analyses in CO and PM10
nonattainment and maintenance areas. The reader should refer to
Sec. Sec. 93.116 and 93.123 of the current conformity regulation for
specific CO and PM10 hot-spot analysis requirements.
The first proposed option would not require hot-spot analyses for
FHWA and FTA projects in PM2.5 nonattainment and maintenance
areas, for the reasons described below. We recognize that there is on-
going research on PM2.5 and, if this research provides
evidence in the future that clearly indicates that transportation-
related PM2.5 hot-spots exist, we would revise the
conformity rule in the future to require PM2.5 hot-spot
analyses at locations that are most likely to experience hot-spot
problems. We invite commenters with data relevant to the existence of
transportation-related PM2.5 hot-spots to submit this data
during the comment period for this proposal.
EPA also requests comment on a second option that would require
PM2.5 hot-spot analyses for FHWA and FTA projects at certain
types of locations if the PM2.5 SIP for the area identifies
such locations. Under this option, PM2.5 hot-spot analyses
would not be required for any projects prior to the submission of a SIP
and then only if the PM2.5 SIP identifies susceptible types
of locations.
We request comment on what potential PM2.5 hot-spot
location types could be identified in the SIP, including locations of:
significant congestion, highest traffic volumes, existing or suspected
future localized violations of the PM2.5 standard, or high
diesel vehicle traffic such as near freight or transit terminals. EPA
seeks comment on these potential location types or others that may be
appropriate to consider for the second proposed option. The locations
listed above are similar to those described in Sec. Sec.
93.123(a)(1)(i)-(iv) and 93.123(b)(1)(i)-(iii) of the current
conformity rule where quantitative hot-spot analyses must be performed
for CO and PM10. However, under this proposal,
PM2.5 hot-spot analyses would only be required for projects
at the types of locations identified in the SIP. This option would not
require qualitative analyses for all projects in the PM2.5
nonattainment or maintenance area as is currently required for CO and
PM10 nonattainment and maintenance areas.
If the second option is finalized, the required hot-spot analysis
would address only the contribution of directly emitted particles to
ambient PM2.5 concentrations, including re-entrained
emissions if those are addressed under conformity in that area.
Typically, a hot-spot analysis would be done for an intersection, a
short segment of roadway or the immediate vicinity of a transit
terminal. Since secondary particles take several hours to form in the
atmosphere giving emissions time to disperse beyond the immediate area
of concern, hot-spot analyses could only examine direct particulate
emissions that are attributable to an individual project. In other
words, precursor emissions from a project would not be considered in a
hot-spot analysis. Secondary particles would only be considered as part
of the PM2.5 background concentration that would be included
in the assessment of whether or not a hot-spot exists.
If EPA finalizes the second option, we would provide guidance on
how to identify locations where transportation-related PM2.5
hot-spots may exist. This guidance would be available for use when
states prepare PM2.5 SIPs. We would also provide guidance
and appropriate models for carrying out quantitative analyses at
identified locations of concern, prior to the requirement to perform
any PM2.5 hot-spot analyses.
Finally, under the second option we are also proposing that prior
to making a project-level conformity determination in a
PM2.5 nonattainment or maintenance area, FHWA or FTA must
obtain from the project sponsor and/or operator enforceable written
commitments to implement any required control or mitigation measures
otherwise applicable to the project. These control or mitigation
measures may be a condition of either a NEPA approval or a conformity
determination for a plan or TIP or be included in the design concept
and scope of the project that is used in the regional emissions
analysis required by Sec. Sec. 93.118 or 93.119. These measures may be
applicable during construction and/or operation of the project. Such
measures would already be applicable to such projects, however
including commitments to them in conformity determinations will provide
an additional enforcement tool. Section 93.125(a) of the conformity
rule already includes this requirement for CO and PM10
nonattainment and maintenance areas, and EPA would include similar
language if a PM2.5 hot-spot analysis requirement is
included in the final rule. Although EPA has not proposed regulatory
language, either of these proposals could be finalized as described
above.
B. Existing Research on PM2.5 Hot-Spots and Request for
Additional Information
EPA has reviewed a number of key studies that represent the range
of research that is currently available on the impact of on-road mobile
source emissions of particles on air quality near roadways. The results
of these studies are not conclusive as to whether or not
transportation-related PM2.5 hot-spots exist. The majority
of these studies indicate that concentrations of some components of
PM2.5 increase near roadways, such as black carbon and
ultrafine particles. However, it is difficult to relate these measures
directly to PM2.5, as many of the studies did not measure
PM2.5 directly. The magnitude of increased concentrations
appears to be related to several factors including the total number of
vehicles operating on the roadway, the number of diesel vehicles
operating on the roadway and the level of congestion or amount of stop-
and-go driving on the roadway. However, these studies were less clear
as to whether or not PM2.5 hot-spots exist. Several studies
concluded that on-road sources were one of several contributors to the
concentrations measured near roadways. At least one study concluded
that hot-spots do not exist. Several studies reported that they had
identified hot-spots caused by local on-road emissions. However, it is
difficult to relate the conclusions of many of these studies to the
PM2.5 standards, because a number of these studies collected
individual air quality samples for less than 24 hours and only
collected data over a period of several months. All of the studies that
were reviewed are available in the docket for this rulemaking. We
invite others with
[[Page 62713]]
data relevant to the existence of transportation-related hot-spots to
submit their data during the comment period for this rulemaking.
C. Why Are We Proposing These Options?
Section 176(c)(3)(B)(ii) only specifically requires a hot-spot
analysis for projects in CO nonattainment areas. Since Congress only
specifically required hot-spot analyses in CO areas, EPA has discretion
to decide if hot-spot analyses are necessary to protect air quality in
particulate matter nonattainment and maintenance areas. If EPA
determines that analyses are necessary for a given particulate matter
standard, EPA also has discretion to target such analyses toward
certain locations or certain types of projects. Given the uncertainty
found in the literature on the existence of PM2.5 hot-spots,
we are proposing two options which are described below.
If PM2.5 hot-spots are not expected to occur, the Clean
Air Act's conformity provisions are met without performing hot-spot
analyses in PM2.5 areas. Section 176(c)(1)(B) of the Clean
Air Act requires that activities funded or approved by the federal
government must not ``cause or contribute to any new violation of any
standard in any area; increase the frequency or severity of any of any
existing violation of any standard in any area; or delay timely
attainment of any standard or any required interim emission reductions
or other milestones in any area.'' For projects in ozone areas, we have
previously determined that the requirements of section 176(c)(1)(B) are
met if the project meets the requirements of section 176(c)(2)(C) of
the Clean Air Act, since ozone impacts occur at a regional level.
Section 176(c)(2)(C) indicates that a project may be adopted or
approved if it is included in a conforming plan and TIP, the design
concept and scope of the project has not changed significantly since
the conformity finding for the plan and TIP, and the design concept and
scope of the project was adequate to determine emissions when the
conformity determination was made.
Because projects in PM2.5 nonattainment and maintenance
areas would be included in the area's regional emission analysis, as
discussed in Section VII. of this proposal, they would also conform
without a hot-spot analysis, if hot-spots are not expected to occur.
Available air quality data indicate that PM2.5 air quality
problems are similar to ozone in that they are both primarily regional
in nature.
EPA's January 2001 draft SIP guidance entitled ``Guidance for
Demonstrating Attainment of Air Quality Goals for PM2.5 and
Regional Haze'' indicates that, due to the nature of the
PM2.5 NAAQS, sharp concentration gradients that lead to hot-
spots are unlikely because: individual air quality samples are
collected over a 24-hour period; compliance with the annual
PM2.5 standard is determined over a 3-year period; and,
secondary formation of particles plays a significant role in
determining PM2.5 concentrations in a given area.
Therefore, we are proposing the first option (that would not
require hot-spot analyses) because we are not certain that hot-spots
will occur, and in that case hot-spot analyses would not be needed to
protect air quality. If evidence clearly indicates that transportation-
related PM2.5 hot-spots exist, we would revise the
conformity rule in the future to require PM2.5 hot-spot
analyses at locations that are most likely to experience hot-spot
problems.
The second option would require hot-spot analyses at certain types
of locations if the PM2.5 SIP identified locations
susceptible to PM2.5 hot-spots. As discussed above, the
results of research on transportation-related PM2.5 hot-
spots is inconclusive as to whether or not PM2.5 hot-spots
exist or would exist in the future. However, most of the research we
have reviewed indicates that concentrations of some components of
PM2.5 increase near heavily traveled roadways. If a state
identified types of locations in its SIP where it had evidence that a
PM2.5 hot-spot exists or is likely to exist, a quantitative
PM2.5 hot-spot analysis would be required for FHWA and FTA
projects at these locations.
This option would be consistent with the purpose of conformity,
which is to ensure that federally funded or approved transportation
projects are consistent with the SIP for the area. Requiring a hot-spot
analysis for projects at these locations would also be environmentally
protective because, if the planned project would cause a new violation
or increase the frequency or severity of an existing violation, a
project-level conformity determination would ensure that the estimated
air quality impacts of the project would be mitigated. Also, the
requirement for a hot-spot analysis would only result in an increased
resource burden for conformity if the SIP for the area identified
locations where the analyses would be required, and then only if a
project was planned for one of these locations. This option would be an
environmentally protective way of responding to the scientific
uncertainty surrounding PM2.5 hot-spots, because it retains
a mechanism to address PM2.5 hot-spots if states ultimately
determine there could be potential problems. At the same time, it would
impose no conformity resource burden prior to PM2.5 SIPs in
any area; additional conformity resources would be required only in the
case where an individual area identifies PM2.5 hot-spots as
a local air quality issue in the SIP.
In the event that the existence of PM2.5 hot-spots is
confirmed, we do not believe that performing a qualitative hot-spot
analysis for every FHWA and FTA project in PM2.5
nonattainment and maintenance areas would provide an environmental
benefit due to the regional nature of PM2.5 and the
significant role of secondary formation of these fine particles. In
addition, we recognize that performing a hot-spot analysis for every
project in a PM2.5 nonattainment or maintenance area would
require a significant amount of resources, which may not result in
environmental benefits. Therefore, we are proposing that hot-spot
analyses not be required for PM2.5, or in the second option
that quantitative hot-spot analyses only be required for project
locations if identified as a concern in the PM2.5 SIP.
XIII. PM10 Hot-spot Analyses
A. What Are We Proposing?
EPA is requesting comment on whether to retain the current
conformity rule's requirement that hot-spot emissions analyses be
conducted for FHWA and FTA projects in all PM10
nonattainment and maintenance areas. A PM10 hot-spot
analysis is required to examine the localized impacts of an individual
highway or transit project as required in Sec. Sec. 93.116 and 93.123,
including all direct emissions from vehicle and re-entrained road dust.
We are considering a wide range of options for modifying the
current PM10 hot-spot analysis requirements, and no
regulatory text is being proposed for any option. However, based on
this proposal and any comments submitted, we may finalize any of the
options discussed in this proposal. We also invite commenters to
suggest additional options.
One option is to maintain the current conformity rule requirements.
These provisions require a hot-spot analysis for FHWA/FTA projects in
PM10 nonattainment and maintenance areas to ensure that the
project does not cause or contribute to any new localized
PM10 violation or increase the frequency or severity of any
existing PM10 violation.
[[Page 62714]]
There currently is no federal guidance for conducting quantitative
PM10 hot-spot analyses, although qualitative guidance,
developed by FHWA in consultation with EPA, is available.\11\ Local
areas can develop their own procedures that meet the rule's
requirements.
---------------------------------------------------------------------------
\11\ Guidance for Qualitative Project-Level ``Hot Spot''
Analysis in PM10 Nonattainment and Maintenance Areas.
Federal Highway Administration. Office of Natural Environment. 2001.
---------------------------------------------------------------------------
EPA is also considering other options that would result in
PM10 hot-spot analyses only being required under certain
circumstances. For example, it may be appropriate to only require
PM10 hot-spot analyses in nonattainment and maintenance
areas where the SIP has identified motor vehicle emissions as a
localized problem. Alternatively, under this option, hot-spot analyses
would not be required in a PM10 area if the SIP has
determined that motor vehicle emissions do not create a localized
problem.
Another option would be to only require PM10 hot-spot
analysis at certain types of project locations (e.g., highly congested
intersections) or for certain types of highway and/or transit projects
(e.g., large transit stations where significant traffic and engine
idling occurs). Such an option would be similar to the alternate option
being proposed for hot-spot analyses for projects in PM2.5
nonattainment and maintenance areas in Section XII. of today's
proposal. EPA is requesting information on any existing PM10
SIPs that identify motor vehicle emissions or specific locations as a
hot-spot concern.
We also request comment on an option that would delete
PM10 hot-spot requirements from the conformity rule. When
the transportation conformity rule was first promulgated in 1993, EPA
was primarily concerned about the possibility of localized
PM10 exceedances in urban street canyons or near transit
terminals (November 24, 1993, 58 FR 3780). However, since other factors
affecting PM10 emissions have changed since 1993, as
discussed below, it may be appropriate to delete the current
PM10 hot-spot requirement entirely and focus limited state
and local resources on other air quality concerns.
We are soliciting information on how PM10 hot-spot
analyses have been completed to date; whether PM10 hot-spots
have been detected from all or certain types of transportation
projects; and whether stakeholders believe the current requirements
result in environmental benefits. It has been 10 years since the
current PM10 hot-spot analysis requirements were
promulgated, and our understanding of PM10 air quality
issues has improved over that time.
We also invite commenters to submit the results of recent research,
reports or data collection that would provide information on the nature
of PM10 hot-spots and on appropriate methods for performing
hot-spot analyses. For example, we are aware that the Transportation
Center at the University of Tennessee conducted a series of analyses at
various types of public transit facilities to determine their impact on
nearby PM10 concentrations. None of these analyses showed
that there was a significant risk of localized PM10 problems
as a result of emissions from these facilities.
Finally, we would also like to receive information on whether any
PM10 problems have been identified through PM10
qualitative analyses and how the identified problems were resolved for
project level conformity determinations.
B. Why Are We Considering These Options?
EPA believes that it is appropriate to re-evaluate the need for
hot-spot analyses for all projects in PM10 nonattainment and
maintenance areas at this time. When the conformity rule was
promulgated in 1993, we interpreted the Clean Air Act section
176(c)(1)(B) to require PM10 hot-spot analyses because of
the requirement to ensure that transportation activities do not worsen
air quality (January 11, 1993, 58 FR 3776). Section 93.116 of the
current rule states that transportation projects cannot cause or
contribute to new violations or increase the frequency or severity of
existing ones.
It should be noted that Clean Air Act section 176(c)(3)(B)(ii) only
specifically requires hot-spot analyses for projects in CO
nonattainment areas. Congress did not specifically require hot-spot
analyses for PM10 areas. Therefore, if EPA concludes in this
rulemaking that PM10 hot-spots are not an air quality
concern or that PM10 hot-spots are only a concern in certain
cases, then a rule revision would be consistent with the statute.
In 1993, EPA believed that typically sized bus terminals or
transfer points would not create PM10 hot-spots but that it
was practical to require a determination to that effect. We also
believed at that time that direct PM10 emissions would be
capable of causing violations only in conditions of unusually heavy
diesel truck/bus traffic and limited dispersion, such as street canyons
(January 11, 1993, 58 FR 3780).
We are not aware of any such locations that are currently causing
localized PM10 exceedances. As stated previously, the
University of Tennessee study did not show a risk of localized
PM10 problems as a result of emissions from public transit
facilities. We are requesting information on whether other studies on
this issue are available.
In addition, EPA's diesel fuel and engine standards (January 18,
2001, 66 FR 5002) will significantly impact the amount of particulate
emissions that will be emitted by new diesel vehicles. The fuel
standards will be implemented in 2006 and the engine standards in 2004
with more stringent standards starting in 2007. These standards may
address EPA's original concern about the potential of localized
PM10 hot-spots in certain urban or transit locations where
diesel vehicle traffic is significant. Currently, agencies are required
to perform such analyses on all projects regardless of their likelihood
to produce a localized exceedance. However, areas that were at risk in
the past may not be at risk in the future as the new vehicle and fuels
standards take effect. Therefore, as vehicles and fuels become cleaner
through fleet turnover, the likelihood of a PM10 hot-spot at
any given location may be reduced.
However, we are not proposing a preferred option for changing the
current PM10 hot-spot requirements. Instead, we are
soliciting input to guide our decision on maintaining, amending or
eliminating the PM10 hot-spot requirements in the final
rule. EPA believes it is appropriate to focus conformity resources
where air quality issues are significant and need to be in place to
address Clean Air Act section 176(c)(1)(B). A review of recent
information may show either that PM10 hot-spot analyses are
no longer warranted or that they can be better targeted at projects or
locations where these types of problems may occur. We expect that the
comments that we receive in response to this portion of the proposal
would allow us to make appropriate changes to the existing requirements
in the final rule, if necessary.
XIV. Miscellaneous Revisions for New and Existing Areas
A. Definitions
EPA is proposing to clarify the current conformity rule's
definitions for ``control strategy implementation plan revision'' and
``milestone'' in Sec. 93.101. The current rule defines a control
strategy implementation plan revision as an implementation plan which
contains specific strategies for
[[Page 62715]]
controlling emissions and reducing ambient levels of pollutants to
satisfy certain Clean Air Act requirements for reasonable further
progress and attainment. The conformity regulation lists these Clean
Air Act requirements as: Sections 182(b)(1), 182(c)(2)(A), and
182(c)(2)(B) for ozone areas; section 187(a)(7) for CO areas; sections
189(a)(1)(B) and 189(b)(1)(A) for PM10 areas; and sections
192(a) and 192(b) for NO2 areas.
EPA has determined, however, that the current list of Clean Air Act
provisions in Sec. 93.101 is incomplete, as the list does not include
all the provisions of the Act that require a control strategy SIP
revision for the purposes of demonstrating reasonable further progress
or attainment. For example, the current rule definition does not
include Clean Air Act section 172(c) that includes the general plan
provisions that any attainment or reasonable further progress SIP
revision must satisfy. In addition, the conformity rule's definition
does not address SIP revisions submitted under Clean Air Act sections
187(g) or 189(d). These provisions of the Act require serious CO and
PM10 areas, respectively, to submit SIP revisions that would
reduce emissions by 5% per year until attainment of the relevant
standard is ultimately achieved (``5% plans''), if these areas
initially fail to attain on time.
In implementing the conformity regulation, EPA has always
interpreted the definition of a control strategy SIP revision to
consist of any SIP that is established for the purposes of attainment
or progress towards attainment, including those SIPs submitted to
satisfy Clean Air Act sections 172(c), 187(g) or 189(d). Therefore, in
today's rulemaking we are simply clarifying that any implementation
plan revisions that are submitted to fulfill these additional Clean Air
Act requirements are considered control strategy SIPs for conformity
purposes. We are also clarifying that any SIP that is established to
demonstrate reasonable further progress and/or attainment should be
considered a control strategy SIP. This definition would include any
progress or attainment SIP that is submitted for existing and future
criteria pollutants and standards that are subject to the conformity
regulation.
Similarly, EPA is expanding the current definition of milestone in
Sec. 93.101 to more adequately reflect EPA's original intent and
implementation of this term. The current conformity rule defines
milestone as having the meaning given in sections 182(g)(1) and 189(c)
of the Clean Air Act. The rule also states that a milestone consists of
an emissions level and the date on which it is required to be achieved.
EPA has historically interpreted the conformity rule's definition
of milestone to mean any year for which the Clean Air Act requires a
demonstration of reasonable further progress towards attainment. Our
interpretation covers all nonattainment areas, including all
classifications of ozone areas, that are required to submit reasonable
further progress SIPs and motor vehicle emission budgets. In
reevaluating the current milestone definition, however, EPA has
concluded that the current rule could be misinterpreted to mean that
only serious and above ozone areas and PM10 areas would need
to consider budgets established for milestone years required by Clean
Air Act sections 182(g)(1) and 189(c), respectively. This
interpretation could lead to confusion over how certain reasonable
further progress SIPs should apply for conformity purposes. For
example, the current milestone definition does not specifically address
reasonable further progress SIP and budget years established by
moderate ozone areas per Clean Air Act section 182(b)(1). As a result,
the rule could be considered unclear about how moderate ozone areas
should consider these particular SIPs in conformity. To address this
ambiguity in the rule, we are proposing to expand our current
definition of milestone so that it will include any year for which a
motor vehicle emissions budget has been established to satisfy Clean
Air Act requirements for demonstrating reasonable further progress.
This definition would include all years in the applicable SIP for which
emission targets showing progress towards attainment are established in
any nonattainment area.
EPA believes that neither of these proposed clarifications would
have a practical impact on the current conformity process. The Clean
Air Act and conformity rule require transportation activities to
conform to the applicable SIP and motor vehicle emissions budgets prior
to receiving funding and approval. Therefore, any adequate or approved
budgets, including those that demonstrate reasonable further progress,
that are available at the time a conformity determination is made must
be included in that determination.
Furthermore, it is EPA's understanding that conformity
practitioners have historically been implementing the current rule's
definitions as described above. For example, PM10 areas that
have submitted 5% plans to satisfy Clean Air Act section 189(d) have
used the motor vehicle emissions budgets established in these SIPs for
conformity purposes and should continue to do so. Likewise, moderate
ozone areas with reasonable further progress SIPs and budgets have
historically used these budgets in conformity determinations.
Therefore, the proposed clarifications to the rule's definitions for
control strategy SIP revision and milestone should not impose any new
requirements on nonattainment and maintenance areas; these rule
revisions would simply clarify our original intent and current
implementation of the existing conformity rule.
B. Areas With Insignificant Motor Vehicle Emissions
EPA is proposing two changes to incorporate our existing
insignificance policy in the conformity rule. First, we are proposing
to add Sec. 93.109(k) for nonattainment and maintenance areas for
which EPA makes a finding that the SIP's motor vehicle emissions for a
pollutant or precursor for a given standard are an insignificant
contributor to the area's air quality problem. The proposal would waive
the regional emissions analysis requirements in Sec. Sec. 93.118 and
93.119 for an insignificant pollutant or precursor in these areas upon
the effective date of EPA's adequacy finding or approval of such a SIP.
In addition, this proposal would waive the hot-spot requirements in
Sec. Sec. 93.116 and 93.123 in CO and PM10 areas, if EPA
determines that the SIP demonstrates that hot-spot emissions are also
insignificant. The proposed Sec. 93.109(k) would also establish the
minimum criteria that are necessary to demonstrate that motor vehicle
emissions are insignificant as described below.
Under this proposal and the existing policy, an area with
insignificant motor vehicle emissions for a pollutant or precursor for
a given standard would still be required to make a conformity
determination that satisfies other relevant requirements including: SIP
TCM implementation, interagency and public consultation, hot-spot
requirements including the use of latest planning assumptions and
emissions models in CO and PM10 areas (if EPA has not made a
finding that such emissions are also insignificant), and compliance
with SIP control measures in PM10 and PM2.5
areas. Areas would also need to satisfy the regional emissions analysis
requirements in Sec. Sec. 93.118 and/or 93.119 for pollutants
[[Page 62716]]
or precursors for which EPA has not made a finding of insignificance.
Second, EPA is proposing a new Sec. 93.121(c) to address the
conformity requirements for regionally significant non-federal projects
in areas with insignificant motor vehicle emissions. The current rule's
Sec. 93.121(a) and (b) require that the emissions impacts of such
projects be considered prior to project approval. However, a regional
analysis would not be required for a pollutant or precursor for a given
standard that EPA has found insignificant. Consistent with proposed
Sec. 93.109(k) for federal projects, this proposal would not require a
regional emissions analysis per Sec. Sec. 93.118 and/or 93.119 for an
insignificant pollutant or precursor for new regionally significant
non-federal projects. However, the requirements in either Sec.
93.121(a) or (b) would be required for any remaining pollutants or
precursors for a given standard that are still considered significant
(i.e., EPA has not determined such remaining pollutants or precursors
to be insignificant). Therefore, Sec. 93.121(c) is proposed to allow
non-federal project approvals in the limited cases of an EPA finding of
insignificant emissions.
Since EPA promulgated the original conformity rule (November 24,
1993, 58 FR 62188), we have not required areas with insignificant motor
vehicle emissions to conduct a regional emissions analysis for a
pollutant or precursor that EPA has determined is insignificant to an
area's air quality problem. In the preamble to the 1993 rule we
explained that if a control strategy SIP demonstrates ``that motor
vehicle emissions (including exhaust, evaporative and re-entrained road
dust emissions) are insignificant and reductions are not necessary for
attainment, the conformity determination is not required to satisfy the
criteria for regional emissions analysis of that pollutant. If the
control strategy SIP demonstrates that motor vehicle emissions of a
precursor are insignificant and reductions are not necessary for
attainment, the conformity determination is not required to satisfy the
criteria for a regional emissions analysis of the precursor'' (58 FR
62194).
In the proposal to the 1997 rule (July 9, 1996, 61 FR 36118), we
provided additional guidance to areas on what is necessary to
demonstrate that motor vehicle emissions are insignificant contributors
to an area's air quality problem. Specifically, the 1996 proposal
states: ``the SIP would have to demonstrate that it would be
unreasonable to expect that such an area would experience enough motor
vehicle growth for a violation to occur. Such a demonstration would
have to be based on a number of factors, including the percentage of
the inventory comprised by motor vehicle-related emissions currently
and in the future, how close the monitoring data is to the standard,
the absence of SIP motor vehicle control measures, historical trends in
growth of motor vehicle emissions and VMT, and projections of motor
vehicle emissions and VMT.'' EPA's existing policy and guidance for
insignificance serves as the basis for today's proposal and would apply
when determining whether regional or hot-spot emissions are
insignificant, and we are proposing to incorporate these criteria into
the conformity rule.
The proposed Sec. 93.109(k) is also consistent with other existing
and proposed provisions of the rule in Sec. Sec. 93.102 and 93.119
that address insignificance of pollutants and precursors before and
after a SIP is submitted. See Sections VIII. and IX. for proposals for
when PM2.5 precursors and re-entrained road dust would be
considered significant for PM2.5 analyses.
The July 1996 conformity proposal also indicates that EPA would
conduct an adequacy review of initial SIPs that claim that motor
vehicle emissions are insignificant. The adequacy review process would
provide the public with an opportunity to comment on the adequacy of
these SIPs and on whether or not the insignificance criteria have been
met. EPA's adequacy finding for such SIPs would signify that we agree
that the area has satisfactorily demonstrated insignificance based on
the list of factors described above from the July 1996 proposal. EPA
will determine significance of regional and hot-spot motor vehicle
emissions in a given area on a case-by-case basis, and we will consider
the impact of individual precursors, as well as the overall impact of
all motor vehicle emissions in our insignificance finding. For more
information on EPA's adequacy review of SIPs that claim insignificant
motor vehicle emissions, see the preamble to the June 30, 2003
conformity proposal that addresses the March 2, 1999 conformity court
decision (68 FR 38983).
Section 93.105(b) describes when the interagency consultation
process is used in SIP development. The interagency consultation
process can be used to consider the insignificance criteria reflected
in today's proposed Sec. 93.109(k), and any other relevant local
information. If the interagency consultation group for an area agrees
that regional and/or hot-spot motor vehicle emissions are
insignificant, such a finding should be clearly stated and well
supported in a SIP that is subsequently submitted to EPA for adequacy
review and/or approval.
EPA developed the insignificance policy to provide flexibility for
areas where motor vehicle emissions had little to no impact on an
area's air quality problem. We believe that requiring these areas to
perform a regional emissions analysis is not necessary to meet Clean
Air Act section 176(c) requirements that transportation actions not
worsen air quality, since the overall contribution of motor vehicle
emissions in these areas is small and any significant change in such
emissions over time would be unlikely. In addition, regional analyses
may drain limited State and local resources from targeting the most
important sources of air pollution in these areas. To date,
approximately a dozen areas have taken advantage of the insignificance
policy, consisting mainly of PM10 areas with air quality
problems caused primarily by stationary or area sources. This current
universe of areas has not changed significantly since 1993, and we do
not anticipate the number of areas that could demonstrate
insignificance of motor vehicle emissions to substantially increase in
the future. Therefore, the proposal would waive regional emissions
analyses in these areas without compromising air quality, since state
and local resources could then be directed toward reducing emissions
from those sources that contribute the most to an area's air quality
problem.
C. Limited Maintenance Plans
EPA currently has limited maintenance plan policies for the 1-hour
ozone, CO, and PM10 standards. If a nonattainment area
attains one of these standards and requests to be redesignated, it can
choose to submit a more streamlined maintenance plan provided certain
criteria are met. Although the three limited maintenance plan policies
vary slightly, in general, an area would have to provide air quality
data that shows with certainty that the area is attaining the standard
and assurance that future violations of that standard are unlikely. In
addition, an area would need to demonstrate that only limited growth in
transportation emissions in the area is expected.
EPA is proposing three rule revisions that would make the
conformity rule consistent with EPA's existing limited maintenance plan
policies. Today's proposal would also allow for any future limited
maintenance plan
[[Page 62717]]
policies for other standards to be considered in the conformity
process.
First, EPA is proposing in Sec. 93.101 to add a basic definition
for ``limited maintenance plan.'' Second, we are proposing a new
paragraph Sec. 93.109(j) that states that a regional emissions
analysis is not required to satisfy Sec. Sec. 93.118 and/or 93.119 in
areas that have an adequate or approved limited maintenance plan for a
given pollutant and standard. However, a conformity determination that
meets other applicable criteria, including the hot-spot requirements
for projects in CO and PM10 nonattainment and maintenance areas,
interagency and public consultation, and SIP TCM implementation, would
still be required in these areas. A regional analysis would also be
required for any other pollutants or standards that otherwise apply.
The proposed Sec. 93.109(j) would require a limited maintenance plan
to demonstrate that it would be unreasonable to expect that an area
would experience enough motor vehicle emissions growth to cause a
violation. The interagency consultation process should be used to
discuss the development of a limited maintenance plan (40 CFR
93.105(b)).
Third, as discussed above, EPA is proposing a new Sec. 93.121(c)
to clarify when funding and approval for new regionally significant
non-federal projects would be granted. Consistent with our proposed
Sec. 93.109(j) for federal projects in areas with limited maintenance
plans, this proposal would not require a regional emissions analysis
per Sec. Sec. 93.118 and/or 93.119 to be satisfied for regionally
significant non-federal projects for the pollutant and standard that is
addressed by the limited maintenance plan. However, the requirements in
either Sec. 93.121(a) or (b) would be required to be satisfied for any
remaining pollutant or standard that apply in an area that are not
addressed by the limited maintenance plan.
EPA believes that violations of a pollutant and standard due to
unexpected growth would be highly unlikely in limited maintenance plan
areas. Furthermore, EPA considers it a reasonable assumption that motor
vehicle emissions in a limited maintenance plan area could increase to
any realistic level during the maintenance period without causing or
contributing to a violation of the standard. As a result, limited
maintenance plans are treated as essentially not constraining for the
length of the maintenance period, and the Clean Air Act requirements to
not worsen air quality are met without a regional conformity analysis.
While this policy does not exempt an area from the need to affirm
conformity, it does eliminate the basis for the regional emission
analysis since EPA would be concluding through our adequacy review or
approval of the limited maintenance plan that limits on motor vehicle
emissions during the maintenance period are unnecessary.
The proposed revisions to Sec. Sec. 93.101, 93.109 and 93.121
would not have a practical impact on how conformity is demonstrated in
areas with applicable limited maintenance plans, as EPA is simply
proposing to incorporate into the conformity rule our existing policies
for these areas. The purpose of these proposed revisions is to assist
limited maintenance plan areas in their efforts to implement
conformity. These revisions would in no way impose additional
requirements for limited maintenance plan areas, nor would it eliminate
any existing requirements that could compromise air quality.
For more information on transportation conformity and limited
maintenance plans, see the preamble to the July 9, 1996 proposed
conformity rule (61 FR 36118) and EPA's existing limited maintenance
plan policies. For a discussion on EPA's adequacy review of limited
maintenance plans, see the preamble to the June 30, 2003 proposal (68
FR 38974).
D. Grace Period for Transportation Modeling and Plan Content
Requirements in Certain Ozone and CO Areas
EPA is proposing three changes to the conformity rule's provisions
for when more rigorous transportation modeling and plan content
requirements apply in certain ozone and CO areas. First, we are
proposing a two-year grace period before the more advanced
transportation modeling requirements in Sec. 93.122(b) are required in
the following types of areas: (1) Ozone and CO areas that are already
classified as serious or above in which the urbanized area population
increases to over 200,000, and (2) moderate ozone and CO areas that
have an urbanized area population over 200,000 and are reclassified to
serious (for ozone and CO) or severe (for ozone only). Section
93.122(b) of the current rule requires more advanced transportation
network modeling requirements only in serious and above ozone and CO
areas with urbanized populations over 200,000.
Second, EPA is proposing to expand the types of areas covered by
the current rule's grace period for transportation plan content
requirements. Section 93.106(b) currently includes a two-year grace
period before the more specific transportation plan requirements in
Sec. 93.106(a) apply in moderate ozone and CO areas that are
reclassified to serious and have urbanized populations over 200,000.
The proposal would provide that same flexibility to: (1) Serious and
severe ozone areas and serious CO areas in which the urbanized area
population increases to over 200,000, and (2) moderate ozone areas that
are reclassified to severe.
Third, we are clarifying in both Sec. Sec. 93.106 and 93.122 that
the two-year grace periods would begin upon either: (1) The official
notice by the Census Bureau that the urbanized area population is over
200,000, or (2) the effective date of EPA's action that reclassifies a
larger metropolitan moderate ozone or CO area to serious (ozone and CO)
or severe (ozone only). An example of an official notice by the Census
Bureau would be an announcement in the Federal Register that the
urbanized population in a metropolitan area has increased to over
200,000.
EPA is making the above changes to provide flexibility as
originally intended. In the proposal to the 1993 conformity rule, EPA
explained that the purpose of the two-year grace period in applying
these more specific transportation plan content requirements in
moderate areas that are bumped-up to a serious classification is to
``allow these areas time to specify their networks and perform the
other research and data collection activities necessary to develop
network models and specific plans'' (January 11, 1993, 58 FR 3776).
Adding the two-year grace period to Sec. 93.122 provides this extra
time. Furthermore, specific transportation plans are required in higher
classification ozone and CO areas in Sec. 93.106(a) to allow for more
sophisticated modeling in such areas in Sec. 93.122(b). For example,
Sec. 93.106(a) requires the most recent demographic and land-use
information and a detailed description of the transit and highway
system for each required transportation plan horizon year. Such details
would be part of a more advanced analysis under Sec. 93.122(b).
For the reasons stated in the 1993 rule, EPA originally intended
Sec. Sec. 93.106 and 93.122 of the conformity rule to work together.
Providing a two-year grace period for the more specific transportation
plan requirements in Sec. 93.106(a), without providing such a grace
period for the more advanced modeling requirements in Sec. 93.122(b)
does not achieve the flexibility that was intended for these areas.
In addition, EPA believes that the two-year grace periods should
also
[[Page 62718]]
apply in ozone and CO areas that are already classified serious or
above, but that are currently not required to meet the more rigorous
plan and modeling requirements because their urbanized area population
is lower than 200,000. If the urbanized area population in such an area
increases to over 200,000, EPA believes it is reasonable that such an
area would also need additional time to specify its networks and gather
additional data to develop a more specific plan and conduct more
advanced transportation modeling.
The proposed clarification to the existing Sec. 93.106(b)
provision, as well as the proposed Sec. 93.122(c), would also provide
flexibility in limited cases where a moderate ozone area is
reclassified to severe. For example, when moderate ozone areas with an
urbanized population greater than 200,000 fail to attain the standard
by either the moderate or serious ozone attainment dates specified in
the Clean Air Act, EPA could reclassify these areas to severe. Today's
proposal would clarify how the grace period would be implemented in
such limited cases. This particular proposal would not be relevant to
moderate CO areas, as these areas can only be reclassified to serious
if they fail to attain by their specified attainment date. The Clean
Air Act does not provide for a severe CO classification.
Finally, we should note that today's proposals would not make any
changes to the existing transportation plan content and modeling
requirements. The proposal would simply clarify when these requirements
begin to apply when circumstances change in certain areas.
E. Minor Clarification to the List of PM10 Precursors
We are proposing minor clarifications to Sec. Sec.
93.102(b)(2)(iii) and 93.119(f)(5) of the conformity rule. Under the
proposed Sec. 93.102(b)(2)(iii), only VOC and NOX would be
identified as PM10 precursors, and PM10 would be
deleted from the list of PM10 precursors in this paragraph.
We are proposing this clarification because Sec. 93.102(b)(1) already
requires that direct PM10 emissions be addressed in
conformity analyses in PM10 nonattainment and maintenance
areas. Therefore, inclusion of direct PM10 as a
PM10 precursor in Sec. 93.102(b)(2)(iii) is duplicative.
The proposed changes to Sec. 93.119(f)(5) would provide
consistency with other pollutants and precursors discussed in this
paragraph. Neither of these proposals would affect conformity
determinations in PM10 nonattainment and maintenance areas.
F. Clarification of Requirements for Non-federal Projects in Isolated
Rural Areas
EPA is proposing a minor clarification to Sec. 93.121(b)(1) of the
conformity rule that addresses the conformity requirements for non-
federal projects in isolated rural nonattainment and maintenance areas.
Specifically, the proposal would require a regionally significant non-
federal project to be included in the regional emissions analysis of
the most recent conformity determination ``that reflects'' the portion
of the statewide transportation plan and STIP which includes projects
planned for the isolated rural nonattainment or maintenance area.
Today's proposed revision to Sec. 93.121(b)(1) is intended to
clarify that conformity determinations in isolated rural nonattainment
and maintenance areas should not be ``for'' the statewide
transportation plan or STIP, as written in the current rule. In the
proposal for the original 1993 conformity rule, we explain that ``STIPs
are not TIPs as the latter term is meant in Clean Air Act section
176(c), and that conformity therefore does not apply to [STIPs]
directly'' (January 11, 1993, 58 FR 62206). However, isolated rural
areas do not develop metropolitan transportation plans and TIPs per
DOT's planning regulations. Instead, conformity determinations in
isolated rural nonattainment and maintenance areas should include those
existing and planned projects that are within the area and that are
reflected in the statewide transportation plan and STIP, including
regionally significant non-federal projects. This proposed change
simply clarifies the conformity requirements for isolated rural
nonattainment and maintenance areas and should not have a practical
impact on how conformity is demonstrated in these areas.
G. Use of Adequate and Approved Budgets in Conformity
EPA is clarifying in Sec. 93.109 for each criteria pollutant and
standard covered by the conformity rule that the budget test must be
satisfied as required by Sec. 93.118 for conformity determinations
made on or after one of the following:
[sbull] The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted SIP is adequate,
[sbull] The publication date of EPA's approval of such a budget in
the Federal Register, or
[sbull] The effective date of EPA's approval of such a budget in
the Federal Register, if the approval is completed through direct final
rulemaking.
Under this proposal, the budget would be used the first time one of
these three EPA actions occur. In EPA's June 30, 2003 proposal that
would implement the March 2, 1999 conformity court decision, we
proposed to only require the budget test after the effective date of
EPA's finding that a control strategy SIP or maintenance plan
submission is adequate. Our June 2003 proposal for Sec. 93.109 was
incomplete.
When an area submits an attainment demonstration, rate-of-progress
plan or maintenance plan with motor vehicle emissions budgets, EPA will
generally review that SIP for adequacy so that the budgets can be used
prior to EPA's approval of the SIP. However, there have been limited
and unique cases where EPA has not conducted the adequacy review
process prior to the approval of the SIP. Rather, EPA may simply
approve such SIPs through a separate proposal and final rule or through
direct final rulemaking. Today's proposal would simply clarify that in
these limited cases the budget test would be required upon the
publication date of EPA's final approval of the SIP and motor vehicle
emissions budgets in the Federal Register, or the effective date of
EPA's direct final rulemaking, whichever applies in a given situation.
EPA believes that this proposed clarification would have no
practical impact on how the budget test is implemented when new budgets
become available for conformity purposes. The Clean Air Act section
176(c) requires that transportation activities conform to the motor
vehicle emissions level established in the approved SIP. Therefore,
once a SIP is approved, its budgets must be used in conformity under
the statute. In addition, since the March 2, 1999 court decision, areas
have incorporated new budgets from submitted SIPs into the
transportation planning and conformity processes as soon as they are
deemed appropriate for conformity--either through EPA's adequacy or
approval processes.
We should also note that this clarification to Sec. 93.109 as
proposed in the June 30, 2003 conformity proposal, is consistent with
the March 1999 court decision and EPA's May 14, 1999 guidance
implementing that decision. Under this proposal, submitted SIPs and
motor vehicle emissions budgets would be used in conformity
determinations only after EPA has formally found such budgets to be
consistent with an area's plan for achieving clean air. For more
information on EPA's adequacy process and the types of submitted SIPs
that EPA will review for adequacy, see EPA's May 14, 1999 guidance
implementing the March 1999 court decision and the
[[Page 62719]]
preamble to the June 30, 2003 proposal (68 FR 38974).
XV. How Does Today's Proposal Affect Conformity SIPs?
Clean Air Act section 176(c)(4)(C) currently requires states to
submit revisions to their SIPs to reflect all of the federal criteria
and procedures for determining conformity. States can choose to develop
conformity SIPs as a memorandum of understanding (MOU), memorandum of
agreement (MOA), or state rule. However, a state must have the
authority to make an MOU or MOA enforceable as a matter of state law,
if such mechanisms are used.
Section 51.390(b) of the conformity rule specifies that after EPA
approves any conformity SIP revision, the federal conformity rule no
longer governs conformity determinations (for the sections of the
federal conformity rule that are covered by the approved conformity
SIP). Areas without approved conformity SIPs will be able to use
immediately any conformity amendments that are finalized in the future
as a result of today's proposed action.
In contrast, EPA has already approved conformity SIPs in some areas
that include sections from previous conformity rulemakings. In general,
amendments to a section of the federal rule other than those compelled
by a court decision become effective in states with approved conformity
SIPs only when the State includes the amended section in a conformity
SIP revision and EPA approves that SIP revision. EPA will continue to
work with states to approve such revisions as expeditiously as possible
through flexible administrative techniques, such as parallel processing
or direct final rulemaking.
There are, however, aspects of today's proposal that should not
already be in any approved conformity SIPs, since new provisions are
being proposed to implement the 8-hour ozone and PM2.5
standards. For these new provisions, all 8-hour ozone and
PM2.5 areas will be able to use such amendments upon the
effective date of a final rule based on this proposal. When a final
rule is issued, EPA will provide guidance on when sections of the rule
can be used in the conformity process in areas with approved conformity
SIPs.
XVI. Public Hearing
Anyone who wants to present testimony about this proposal at the
public hearing (see DATES) should, if possible, notify the contact
persons listed in the FOR FURTHER INFORMATION CONTACT section of this
proposal at least seven days prior to the day of the hearing. The
contact person(s) should be given an estimate of the time required for
the presentation of testimony and notification of any need for audio/
visual equipment. A sign-up sheet will be available at the registration
table the morning of the hearing for scheduling those who have not
notified the EPA contact(s) earlier. This testimony will be scheduled
on a first-come, first-serve basis to follow the previously scheduled
testimony.
EPA requests that approximately 50 copies of the statement or
material to be presented be brought to the hearing for distribution to
the audience. In addition, EPA would find it helpful to receive an
advance copy of any statement or material to be presented at the
hearing at least one week before the scheduled hearing date. Such
advance copies would give EPA staff adequate time to review the
materials before the hearing. Advance copies should be submitted to the
EPA contact person(s) listed in this proposal.
The official records of the hearing will be kept open until the
close of the comment period to allow submission of rebuttal and
supplementary testimony. All such submissions should be directed to the
Air Docket I.D. No. OAR-2003-0049. See Section I.C. of this proposal
for more information on how to submit comments to the docket. The
hearing will be conducted informally, and technical rules of evidence
will not apply. A written transcript of the hearing will be placed in
the docket for review. Anyone who desires to purchase a copy of the
transcript should make individual arrangements with the court reporter
recording the proceeding.
XVII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735; October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines significant ``regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or otherwise adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is a ``significant
regulatory action'' because this action raises novel legal or policy
issues arising out of legal mandates and the principles set forth in
the Executive Order. As such, this action was submitted to OMB for
review. Changes made in response to OMB suggestions or recommendations
will be documented in the public record.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule will
be submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (ICR
2103.01). The information collection requirements are not enforceable
until OMB approves them.
Transportation conformity determinations are required under Clean
Air Act section 176(c) (42 U.S.C. 7506(c)) to ensure that federally
supported highway and transit project activities are consistent with
(``conform to'') the purpose of the SIP. Conformity to the purpose of
the SIP means that transportation activities will not cause new air
quality violations, worsen existing violations, or delay timely
attainment of the relevant air quality standards. Transportation
conformity applies under EPA's conformity regulations at 40 CFR 51.390
and 40 CFR part 93 to areas that are designated nonattainment and those
redesignated to attainment after 1990 (``maintenance areas'' with plans
developed under Clean Air Act section 175A) for transportation-source
criteria pollutants. The Clean Air Act gives EPA the statutory
authority to establish the criteria and procedures for determining
whether transportation activities conform to the SIP.
EPA estimates that this rulemaking will place additional burden on
those areas that are designated nonattainment for the first time and
have no prior experience with the conformity process. For these
completely ``new'' areas there will be burden associated with rule
familiarization, transportation and emissions modeling and interagency
consultation. New metropolitan
[[Page 62720]]
nonattainment areas will be required to demonstrate conformity of their
transportation plans every three years. In addition, DOT's planning
regulations require TIP updates every two years, and consequently, a
TIP conformity determination will be required every two years. Based on
preliminary air quality data and State recommendations for new
nonattainment areas, we estimate that approximately 40 areas will be
designated nonattainment for the first time under the 8-hour ozone and
PM2.5 standards. We estimate that the total annual burden
per respondent for transportation conformity activities is 275 hours at
a total annual cost per respondent of $6750.00.
The information collection requirements of EPA's current
transportation conformity rule are covered under the DOT information
collection request (ICR) entitled, ``Metropolitan and Statewide
Transportation Planning,'' with the OMB Control Number 2132-0529.
Today's total burden for new areas is based on DOT's ICR for developing
transportation plans and TIPs in nonattainment and maintenance areas,
and should be viewed as a cursory estimate. Today's estimate only
includes the incremental burden associated with making conformity
determinations for the new standards; it does not address the
development of transportation plans and TIPs or motor vehicle emissions
budgets, since these documents are developed to meet other
requirements. The total annual burden also assumes that all new areas
will be metropolitan areas that develop transportation plans and TIPs.
Accounting for newly designated isolated rural nonattainment areas may
reduce the total burden for new areas, as isolated rural areas are not
required to demonstrate conformity as often as metropolitan areas. In
addition, this estimate of new burden assumes that plan and TIP
conformity determinations are developed separately. However, the
regional emissions analysis requirements in the conformity regulation
are the same for plans and TIPs, and many areas rely on the same
regional emissions analysis and conformity determination when plan and
TIP updates are done concurrently. EPA plans to further examine this
burden estimate for new areas designated under the 8-hour ozone and
PM2.5 standards, along with any incremental burdens for
existing nonattainment and maintenance areas that have previous
conformity experience, in our subsequent ICR for this rulemaking.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rulemaking,
which will include the ICR, under Docket ID number OAR-2003-0049. EPA
is seeking comment on the general description of this proposal's
information collection. EPA intends, in the near future, to develop and
submit to OMB an ICR that includes a more detailed estimate of the
incremental burden of this rulemaking. The public will be provided a
separate comment period to comment on the ICR once it is submitted to
OMB. Submit any comments related to the collection of information and
subsequent ICR for this proposed rule to EPA and OMB. See the ADDRESSES
section of this notice for where to submit comments to EPA. Send
comments to OMB at the Office of Information and Regulatory Affairs,
Office of Management and Budget, 725 17th Street, NW., Washington, DC
20503, Attention: Desk Office for EPA. The final rule will respond to
any OMB or public comments on the information collection requirements
contained in this proposal and subsequent ICR.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, requires the Agency to
conduct a regulatory flexibility analysis of any significant impact a
rule will have on a substantial number of small entities. Small
entities include small businesses, small not-for-profit organizations
and small government jurisdictions.
EPA has determined that today's proposal will not have a
significant 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. The Regulatory
Flexibility Act defines a ``small governmental jurisdiction'' as the
government of a city, county, town, school district or special district
with a population of less than 50,000.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this proposed
rule will not have a significant economic impact on a substantial
number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments
[[Page 62721]]
to have meaningful and timely input in the development of EPA
regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that this proposed rule itself does not contain
a Federal mandate that may result in expenditures of $100 million or
more for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. The primary purpose of this proposed
rule is to amend the existing Federal conformity regulations to cover
areas newly designated nonattainment under the recently promulgated 8-
hour ozone and fine particulate (PM2.5) ambient air quality
standards. Clean Air Act section 176(c)(5) requires the applicability
of conformity to such areas as a matter of law one year after
nonattainment designations. Thus, although this rule explains how
conformity should be conducted, it merely implements already
established law that imposes conformity requirements and does not
itself impose requirements that may result in expenditures of $100
million or more in any year. Additional rule amendments also addressed
in this proposal simply serve to improve the conformity regulation by
implementing the rule in a more practicable manner and/or to clarify
conformity requirements that already exist. None of these proposed
amendments impose any additional burdens beyond that already imposed by
applicable Federal law; thus, today's proposed rule is not subject to
the requirements of sections 202 and 205 of the UMRA and EPA has not
prepared a statement with respect to budgetary impacts.
E. Executive Order 13132: Federalism
Executive Order 13132, Federalism (64 FR 43255, August 10, 1999),
revokes and replaces Executive Orders 12612 (Federalism) and 12875
(Enhancing the Intergovernmental Partnership). Executive Order 13132
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.'' Under Executive Order 13132, EPA may
not issue a regulation that has federalism implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or EPA consults with State and local officials early in
the process of developing the regulation. EPA also may not issue a
regulation that has federalism implications and that preempts State law
unless the Agency consults with State and local officials early in the
process of developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the Agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. Also, when EPA transmits a draft rule with federalism implications
to OMB for review pursuant to Executive Order 12866, EPA must include a
certification from the Agency's Federalism Official stating that EPA
has met the requirements of Executive Order 13132 in a meaningful and
timely manner.
This proposed rule, that amends a regulation that is required by
statute, will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. The Clean Air Act
requires conformity to apply in certain nonattainment and maintenance
areas as a matter of law, and this proposed rule merely establishes and
revises procedures for transportation planning entities in subject
areas to follow in meeting their existing statutory obligations.
Similarly, other minor amendments included in today's proposal are the
result of related administrative matters, or have been proposed simply
to make the rule more workable and/or to clarify requirements that
already exist under the current conformity regulation.
In summary, this proposed rule is required primarily by the
statutory requirements imposed by the Clean Air Act, and the proposed
rule by itself will not have a substantial impact on States. Thus, the
requirements of section 6 of the Executive Order do not apply to this
proposed rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175: ``Consultation and Coordination with Indian
Tribal Governments'' (65 FR 67249, November 6, 2000) requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
Today's amendments to the conformity rule do not significantly or
uniquely affect the communities of Indian tribal governments, as the
Clean Air Act requires transportation conformity to apply in any area
that is designated nonattainment or maintenance by EPA. Specifically,
this proposed rule would incorporate into the conformity rule
provisions addressing newly designated nonattainment areas subject to
conformity requirements under the Act, as well as several other
clarifications and improvements, that would not have substantial direct
effects on tribal governments, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in Executive Order 13175. Accordingly, the requirements of
Executive Order 13175 are not applicable to this proposal.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective
[[Page 62722]]
and reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not economically significant within the meaning of Executive
Order 12866 and does not involve the consideration of relative
environmental health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This rule is not subject to Executive Order 13211, ``Action
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355; May 22, 2001) because it will not
have a significant adverse effect on the supply, distribution, or use
of energy. Further, we have determined that this proposed rule is not
likely to have any significant adverse effects on energy supply.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, the use of voluntary consensus standards does not apply to
this proposed rule.
List of Subjects in 40 CFR Part 93
Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Nitrogen Dioxide, Ozone, Particulate matter, Transportation, Volatile
organic compounds.
Dated: October 22, 2003.
Marianne Lamont Horinko,
Acting 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, in alphabetical order, new
definitions for ``1-hour ozone NAAQS,'' ``8-hour ozone NAAQS'' and
``Limited maintenance plan,'' and by revising definitions for ``Control
strategy implementation plan revision'' and ``Milestone'' to read as
follows:
Sec. 93.101 Definitions.
* * * * *
1-hour ozone NAAQS means the 1-hour ozone national ambient air
quality standard codified at 40 CFR 50.9.
* * * * *
8-hour ozone NAAQS means the 8-hour ozone national ambient air
quality standard codified at 40 CFR 50.10.
* * * * *
Control strategy implementation plan revision is the implementation
plan which contains specific strategies for controlling the emissions
of and reducing ambient levels of pollutants in order to satisfy CAA
requirements for demonstrations of reasonable further progress and
attainment (including implementation plan revisions submitted to
satisfy CAA sections 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B),
187(a)(7), 187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d); sections
192(a) and 192(b), for nitrogen dioxide; and any other applicable CAA
provision requiring a demonstration of reasonable further progress or
attainment).
* * * * *
Limited maintenance plan is a maintenance plan that EPA has
determined meets EPA's limited maintenance plan policy criteria for a
given NAAQS and pollutant. To qualify for a limited maintenance plan,
for example, an area must have a design value that is below a given
NAAQS, and it must be reasonable to expect that a NAAQS violation will
not result from any level of future motor vehicle emissions growth.
* * * * *
Milestone has the meaning given in CAA sections 182(g)(1) and
189(c) for serious and above ozone nonattainment areas and
PM10 nonattainment areas, respectively. For all other
nonattainment areas, a milestone consists of an emissions level and the
date on which that level is to be achieved as required by the
applicable CAA provision for reasonable further progress towards
attainment.
* * * * *
3. Section 93.102 is amended by:
a. Revising paragraphs (b)(1), (b)(2) introductory text and
(b)(2)(iii);
b. removing the word ``and'' at the end of paragraph (b)(2)(ii);
c. adding paragraphs (b)(2)(iv) and (v);
d. redesignating paragraph (b)(3) as paragraph (b)(4);
e. adding a new paragraph (b)(3); and
f. revising paragraph (d).
The revisions and additions read as follows:
Sec. 93.102 Applicability.
* * * * *
(b) * * *
(1) The provisions of this subpart apply with respect to emissions
of the following criteria pollutants: ozone, carbon monoxide (CO),
nitrogen dioxide (NO2), particles with an aerodynamic
diameter less than or equal to a nominal 10 micrometers
(PM10); and particles with an aerodynamic diameter less than
or equal to a nominal 2.5 micrometers (PM2.5).
(2) The provisions of this subpart also apply with respect to
emissions of the following precursor pollutants:
* * * * *
(iii) VOC and/or NOX in PM10 areas if the EPA
Regional Administrator or the director of the State air agency has made
a finding that transportation-related emissions of one or both of these
precursors within the nonattainment area are a significant contributor
to the PM10 nonattainment problem and has so notified the
MPO and DOT, or if the applicable implementation plan (or
implementation plan submission) establishes an approved (or adequate)
budget for such emissions as part of the reasonable further progress,
attainment or maintenance strategy;
Option 1 for paragraphs (b)(2)(iv) and (v):
(iv) VOC and/or NOX in PM2.5 areas, unless
the EPA Regional Administrator or the director of the State air agency
has made a finding that transportation-related emissions of one or both
of these precursors within the nonattainment area are not a significant
contributor to the PM2.5 nonattainment problem and has so
notified the MPO and DOT, or if the applicable implementation plan (or
implementation plan submission) does not establish an approved (or
adequate) budget for such emissions as part of the reasonable further
progress, attainment or maintenance strategy; and
(v) Oxides of sulfur (SOX) and/or ammonia
(NH3) in PM2.5 areas if the EPA Regional
Administrator or the director of the State air agency has made a
finding that transportation-related emissions of one or both of these
precursors within the nonattainment
[[Page 62723]]
area are a significant contributor to the PM2.5
nonattainment problem and has so notified the MPO and DOT, or if the
applicable implementation plan (or implementation plan submission)
establishes an approved (or adequate) budget for such emissions as part
of the reasonable further progress, attainment or maintenance strategy.
Option 2 for paragraph (b)(2)(iv) without paragraph (b)(2)(v):
(iv) VOC, NOX, oxides of sulfur (SOX) and/or
ammonia (NH3) in PM2.5 areas if the EPA Regional
Administrator or the director of the State air agency has made a
finding that transportation-related emissions of any of these
precursors within the nonattainment area are a significant contributor
to the PM2.5 nonattainment problem and has so notified the
MPO and DOT, or if the applicable implementation plan (or
implementation plan submission) establishes an approved (or adequate)
budget for such emissions as part of the reasonable further progress,
attainment or maintenance strategy.
(3) The provisions of this subpart apply to PM2.5
nonattainment and maintenance areas with respect to PM2.5
from re-entrained road dust if the EPA Regional Administrator or the
director of the State air agency has made a finding that re-entrained
road dust emissions within the area are a significant contributor to
the PM2.5 nonattainment problem and has so notified the MPO
and DOT, or if the applicable implementation plan (or implementation
plan submission) includes re-entrained road dust in the approved (or
adequate) budget as part of the reasonable further progress, attainment
or maintenance strategy. Re-entrained road dust emissions are produced
by travel on paved and unpaved roads (including emissions from anti-
skid and deicing materials).
* * * * *
(d) Grace period for new nonattainment areas. For areas or portions
of areas which have been continuously designated attainment or not
designated for any NAAQS for ozone, CO, PM10,
PM2.5 or NO2 since 1990 and are subsequently
redesignated to nonattainment or designated nonattainment for any NAAQS
for any of these pollutants, the provisions of this subpart shall not
apply with respect to that standard for 12 months following the
effective date of final designation to nonattainment for each NAAQS for
such pollutant.
4. Section 93.105(c)(1)(vii) is amended by revising the reference
``Sec. 93.109(g)(2)(iii)'' to read ``Sec. 93.109(l)(2)(iii)''.
5. Section 93.106 is amended by revising paragraph (b) to read as
follows:
Sec. 93.106 Content of transportation plans.
* * * * *
(b) Two-year grace period for transportation plan requirements in
certain ozone and CO areas. The requirements of paragraph (a) of this
section shall not apply for two years from the following:
(i) The effective date of EPA's reclassification of a moderate
ozone or CO area that has an urbanized area population greater than
200,000 to serious or severe (ozone only); or,
(ii) The official notice by the Census Bureau that determines the
urbanized area population of a serious or above ozone or CO area to be
greater than 200,000.
* * * * *
6. Section 93.109 is amended by:
a. Revising the paragraph (b) introductory text;
b. In Table 1 of paragraph (b), revising the entry for ``Sec.
93.118 and or Sec. 93.119'' under ``Transportation Plan:'' and the
entry for ``Sec. 93.118 and or Sec. 93.119'' under ``TIP:'', and
revising the entry for ``Sec. 93.117'' under ``Project (From a
Conforming Plan and TIP):'' and the entries for ``Sec. 93.117'' and
``Sec. 93.118 and or Sec. 93.119'' under ``Project (Not From a
Conforming Plan and TIP):'';
c. Revising paragraph (c);
d. Redesignating paragraphs (d), (e), (f) and (g) as paragraphs
(f), (g), (h) and (l);
e. Adding new paragraphs (d), (e), (i), (j) and (k);
f. Revising newly designated paragraphs (f) introductory text,
(f)(2), (f)(3) and (f)(4)(i) and (ii);
g. Revising newly redesignated paragraphs (g) introductory text,
(g)(2), and (g)(3) introductory text, and removing newly designated
paragraphs (g)(3)(i) and (g)(3)(ii) and redesignating paragraph
(g)(3)(iii) as (g)(3)(ii) and adding new paragraph (g)(3)(i);
h. Revising newly designated paragraph (h); and
i. Revising newly designated paragraph (l)(2) introductory text;
and, in newly designated paragraph (l)(2)(ii)(B), revising ``Sec.
93.119(d)(2)'' to read ``Sec. 93.119(f)(2)''; and, in newly
redesignated paragraph (l)(2)(iii), revising ``paragraph (g)(2)(ii)''
and ``paragraph (g)(2)(ii)(C)'' to read ``paragraph (l)(2)(ii)'' and
``paragraph (l)(2)(ii)(C)'', respectively.
The revisions and additions read as follows:
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
* * * * *
(b) Table 1 in this paragraph indicates the criteria and procedures
in Sec. Sec. 93.110 through 93.119 which apply for transportation
plans, TIPs, and FHWA/FTA projects. Paragraphs (c) through (i) of this
section explain when the budget, interim emissions, and hot-spot tests
are required for each pollutant and NAAQS. Paragraph (j) of this
section addresses conformity requirements for areas with approved or
adequate limited maintenance plans. Paragraph (k) of this section
addresses nonattainment and maintenance areas which EPA has determined
have insignificant motor vehicle emissions. Paragraph (l) of this
section addresses isolated rural nonattainment and maintenance areas.
Table 1 follows:
Table 1.--Conformity Criteria
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
Transportation plan:
* * * * * * *
Sec. 93.118 and/or Sec. 93.119. Emissions budget and/or Interim
emissions.
* * * * * * *
TIP:
* * * * * * *
Sec. 93.118 and/or Sec. 93.119. Emissions budget and/or Interim
emissions.
* * * * * * *
Project (From a Conforming Plan and
TIP):
* * * * * * *
Sec. 93.117...................... PM10 and PM2.5 control
measures.
[[Page 62724]]
* * * * * * *
Project (Not From a Conforming Plan and
TIP):
* * * * * * *
Sec. 93.117...................... PM10 and PM2.5 control
measures.
Sec. 93.118 and/or Sec. 93.119. Emissions budget and/or Interim
emissions.
* * * * * * *
------------------------------------------------------------------------
(c) 1-hour ozone NAAQS nonattainment and maintenance areas. This
paragraph applies when an area is nonattainment or maintenance for the
1-hour ozone NAAQS (i.e., until the effective date of any revocation of
the 1-hour ozone NAAQS for an 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 ozone 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) In all 1-hour ozone 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 1-hour ozone 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.
(2) In ozone nonattainment areas that are required to submit a
control strategy implementation plan revision for the 1-hour ozone
NAAQS (usually moderate and above areas), the interim emissions tests
must be satisfied as required by Sec. 93.119 for conformity
determinations made when there is no approved motor vehicle emissions
budget from an applicable implementation plan for the 1-hour ozone
NAAQS and no adequate motor vehicle emissions budget from a submitted
control strategy implementation plan revision or maintenance plan for
the 1-hour ozone NAAQS.
(3) An ozone nonattainment area must satisfy the interim emissions
test for NOx, as required by Sec. 93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or Phase I
attainment demonstration that does not include a motor vehicle
emissions budget for NOx. The implementation plan for the 1-
hour ozone NAAQS will be considered to establish a motor vehicle
emissions budget for NOx if the implementation plan or plan
submission contains an explicit NOx motor vehicle emissions
budget that is intended to act as a ceiling on future NOx
emissions, and the NOx motor vehicle emissions budget is a
net reduction from NOx emissions levels in 1990.
(4) Ozone nonattainment areas that have not submitted a maintenance
plan and that are not required to submit a control strategy
implementation plan revision for the 1-hour ozone NAAQS (usually
marginal and below areas) must satisfy one of the following
requirements:
(i) The interim emissions tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
for the 1-hour ozone NAAQS that contains motor vehicle emissions
budget(s) and a reasonable further progress or attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the adequate or approved motor vehicle emissions
budget(s) (as described in paragraph (c)(1) of this section).
(5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,
moderate and above ozone nonattainment areas with three years of clean
data that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act reasonable further
progress and attainment demonstration requirements for the 1-hour ozone
NAAQS must satisfy one of the following requirements:
(i) The interim emissions tests as required by Sec. 93.119;
(ii) The budget test as required by Sec. 93.118, using the
adequate or approved motor vehicle emissions budgets in the submitted
or applicable control strategy implementation plan for the 1-hour ozone
NAAQS (subject to the timing requirements of paragraph (c)(1) of this
section); or
(iii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are
established by the EPA rulemaking that determines that the area has
clean data for the 1-hour ozone NAAQS.
(d) 8-hour ozone NAAQS nonattainment and maintenance areas without
motor vehicle emissions budgets for the 1-hour ozone NAAQS for any
portion of the 8-hour nonattainment area. This paragraph applies to
areas that were never designated nonattainment for the 1-hour ozone
NAAQS and areas that were designated nonattainment for the 1-hour ozone
NAAQS but that never submitted a control strategy SIP or maintenance
plan with approved or adequate motor vehicle emissions budgets. This
paragraph applies 1 year after the effective date of EPA's
nonattainment designation for the 8-hour ozone NAAQS, according to
Sec. 93.102(d). 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 8-hour ozone 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) In such 8-hour ozone 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 8-hour ozone 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.
(2) In ozone nonattainment areas that are required to submit a
control strategy
[[Page 62725]]
implementation plan revision for the 8-hour ozone NAAQS (moderate and
above and certain subpart 1 areas), the interim emissions tests must be
satisfied as required by Sec. 93.119 for conformity determinations
made when there is no approved motor vehicle emissions budget from an
applicable implementation plan for the 8-hour ozone NAAQS and no
adequate motor vehicle emissions budget from a submitted control
strategy implementation plan revision or maintenance plan for the 8-
hour ozone NAAQS.
(3) Such an 8-hour ozone nonattainment area must satisfy the
interim emissions test for NOx, as required by Sec. 93.119,
if the implementation plan or plan submission that is applicable for
the purposes of conformity determinations is a 15% plan or other
control strategy SIP that addresses reasonable further progress that
does not include a motor vehicle emissions budget for NOx.
The implementation plan for the 8-hour ozone NAAQS will be considered
to establish a motor vehicle emissions budget for NOx if the
implementation plan or plan submission contains an explicit
NOx motor vehicle emissions budget that is intended to act
as a ceiling on future NOx emissions, and the NOx
motor vehicle emissions budget is a net reduction from NOx
emissions levels in 2002.
(4) Ozone nonattainment areas that have not submitted a maintenance
plan and that are not required to submit a control strategy
implementation plan revision for the 8-hour ozone NAAQS (usually
marginal and below areas) must satisfy one of the following
requirements:
(i) The interim emissions tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
for the 8-hour ozone NAAQS that contains motor vehicle emissions
budget(s) and a reasonable further progress or attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the adequate or approved motor vehicle emissions
budget(s) (as described in paragraph (d)(1) of this section).
(5) Notwithstanding paragraphs (d)(1) and (d)(2) of this section,
moderate and above ozone nonattainment areas with three years of clean
data for the 8-hour ozone NAAQS that have not submitted a maintenance
plan and that EPA has determined are not subject to the Clean Air Act
reasonable further progress and attainment demonstration requirements
for the 8-hour ozone NAAQS must satisfy one of the following
requirements:
(i) The interim emissions tests as required by Sec. 93.119;
(ii) The budget test as required by Sec. 93.118, using the
adequate or approved motor vehicle emissions budgets in the submitted
or applicable control strategy implementation plan for the 8-hour ozone
NAAQS (subject to the timing requirements of paragraph (d)(1) of this
section); or
(iii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are
established by the EPA rulemaking that determines that the area has
clean data for the 8-hour ozone NAAQS.
(e) 8-hour ozone NAAQS nonattainment and maintenance areas with
motor vehicle emissions budgets for the 1-hour ozone NAAQS that cover
all or a portion of the 8-hour nonattainment area. This provision
applies 1 year after the effective date of EPA's nonattainment
designation for the 8-hour ozone NAAQS, according to Sec. 93.102(d).
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 8-hour
ozone 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) In such 8-hour ozone nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 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 8-hour ozone 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.
(2) Prior to the effective date of EPA's finding that a motor
vehicle emissions budget in a submitted control strategy implementation
plan or maintenance plan for the 8-hour ozone NAAQS is adequate or the
publication of EPA's approval of such a budget in the Federal Register,
one of the following test(s) must be satisfied:
(i) The interim emissions tests as required by Sec. 93.119 for the
entire 8-hour ozone nonattainment area; or
(ii) The budget test and interim emissions tests as required by
Sec. Sec. 93.118 and 93.119 as follows:
(A) If the 8-hour ozone nonattainment area covers the same
geographic area as the 1-hour ozone nonattainment or maintenance area,
the budget test as required by Sec. 93.118 for the entire 8-hour
nonattainment area using the approved or adequate motor vehicle
emissions budgets in the 1-hour ozone applicable implementation plan or
implementation plan submission;
(B) If the 8-hour ozone nonattainment area covers a smaller
geographic area within the 1-hour ozone nonattainment or maintenance
area, the budget test as required by Sec. 93.118 for either the 1-hour
nonattainment or 8-hour nonattainment area using the approved or
adequate motor vehicle emissions budgets or corresponding portions
thereof in the 1-hour ozone applicable implementation plan or
implementation plan submission, respectively. If additional control
measures are necessary to meet the budget test for the 8-hour ozone
NAAQS, such control measures could only be established within the 8-
hour nonattainment area; or
(C) If the 8-hour ozone nonattainment area covers a larger
geographic area and encompasses the entire or a portion of the 1-hour
ozone nonattainment or maintenance area:
(1) The budget test as required by Sec. 93.118 for the portion of
the 8-hour ozone nonattainment area covered by the approved or adequate
motor vehicle emissions budgets or corresponding portions thereof in
the 1-hour ozone applicable implementation plan or implementation plan
submission; and
(2) The interim emissions tests as required by Sec. 93.119 for the
portion of the 8-hour ozone nonattainment area not covered by the
approved or adequate budgets in the 1-hour ozone implementation plan.
(3) Such an 8-hour ozone nonattainment area must satisfy the
interim emissions test for NOX, as required by Sec. 93.119,
if the only implementation plan or plan submission that is applicable
for the purposes of conformity determinations is a 15% plan or other
control strategy SIP that addresses reasonable further progress that
does not include a motor vehicle emissions budget for NOX.
The implementation plan for the 8-hour ozone NAAQS will be considered
to establish a motor vehicle emissions budget for NOX if the
implementation plan or plan submission contains an
[[Page 62726]]
explicit NOX motor vehicle emissions budget that is intended
to act as a ceiling on future NOX emissions, and the
NOX motor vehicle emissions budget is a net reduction from
NOX emissions levels in 2002. Prior to an adequate or
approved NOX motor vehicle emissions budget in the
implementation plan submission for the 8-hour ozone NAAQS, the
implementation plan for the 1-hour ozone NAAQS will be considered to
establish a motor vehicle emissions budget for NOX if the
implementation plan contains an explicit NOX motor vehicle
emissions budget that is intended to act as a ceiling on future
NOX emissions, and the NOX motor vehicle
emissions budget is a net reduction from NOX emissions
levels in 1990.
(4) Notwithstanding paragraphs (e)(1) and (e)(2) of this section,
ozone nonattainment areas with three years of clean data for the 8-hour
ozone NAAQS that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act reasonable further
progress and attainment demonstration requirements for the 8-hour ozone
NAAQS must satisfy one of the following requirements:
(i) The interim emissions tests as required by Sec. 93.119 and as
described in paragraph (e)(2) of this section;
(ii) The budget test as required by Sec. 93.118 and as described
in paragraph (e)(2)(ii) of this section;
(iii) The budget test as required by Sec. 93.118, using the
adequate or approved motor vehicle emissions budgets in the submitted
or applicable control strategy implementation plan for the 8-hour ozone
NAAQS (subject to the timing requirements of paragraph (e)(1) of this
section); or
(iv) The budget test as required by Sec. 93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of clean
data as motor vehicle emissions budgets, if such budgets are
established by the EPA rulemaking that determines that the area has
clean data for the 8-hour ozone NAAQS.
(f) CO nonattainment and maintenance areas. 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 CO nonattainment and
maintenance areas conformity determinations must include a
demonstration that the hot-spot, budget and/or interim emissions tests
are satisfied as described in the following:
* * * * *
(2) In CO 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 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) Except as provided in paragraph (d)(4) of this section, in CO
nonattainment areas the interim emissions tests must be satisfied as
required by Sec. 93.119 for conformity determinations made when there
is no approved motor vehicle emissions budget from an applicable
implementation plan and no adequate motor vehicle emissions budget from
a submitted control strategy implementation plan revision or
maintenance plan.
(4) * * *
(i) The interim emissions tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the adequate or approved motor vehicle emissions
budget(s) (as described in paragraph (f)(2) of this section).
(g) PM10 nonattainment and maintenance areas. 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
PM10 nonattainment and maintenance areas conformity
determinations must include a demonstration that the hot-spot, budget
and/or interim emissions tests are satisfied as described in the
following:
* * * * *
(2) In PM10 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 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 PM10 nonattainment areas the interim emissions
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) If there is no approved motor vehicle emissions budget from an
applicable implementation plan and no adequate motor vehicle emissions
budget from a submitted control strategy implementation plan revision
or maintenance plan; or
* * * * *
(h) NO2 nonattainment and maintenance areas. 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 NO2
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) In NO2 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 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.
(2) In NO2 nonattainment areas the interim emissions
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made when there is no approved motor vehicle emissions
budget from an applicable implementation plan and no adequate motor
vehicle emissions budget from a submitted control strategy
implementation plan revision or maintenance plan.
(i) PM2.5 nonattainment and maintenance areas. 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
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) In PM2.5 nonattainment and maintenance areas the
budget test must be satisfied as required by Sec. 93.118 for
[[Page 62727]]
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 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.
(2) In 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 and no adequate motor
vehicle emissions budget from a submitted control strategy
implementation plan revision or maintenance plan.
(j) Areas with limited maintenance plans. Notwithstanding the other
paragraphs of this section, an area is not required to satisfy the
regional emissions analysis for Sec. 93.118 and/or Sec. 93.119 for a
given pollutant and NAAQS, if the area has an adequate or approved
limited maintenance plan for such pollutant and NAAQS. A limited
maintenance plan would have to demonstrate that it would be
unreasonable to expect that such an area would experience enough motor
vehicle emissions growth for a NAAQS violation to occur. A conformity
determination that meets other applicable criteria in Table 1 of
paragraph (b) of this section is still required, including the hot-spot
requirements for projects in CO and PM10 areas.
(k) Areas with insignificant motor vehicle emissions.
Notwithstanding the other paragraphs in this section, an area is not
required to satisfy a regional emissions analysis for Sec. 93.118 and/
or Sec. 93.119 for a given pollutant/precursor and NAAQS, if EPA finds
through the adequacy or approval process that a SIP demonstrates that
regional motor vehicle emissions are an insignificant contributor to
the air quality problem for that pollutant/precursor and NAAQS. The SIP
would have to demonstrate that it would be unreasonable to expect that
such an area would experience enough motor vehicle emissions growth in
that pollutant/precursor for a NAAQS violation to occur. Such a finding
would be based on a number of factors, including the percentage of
motor vehicle emissions in the context of the total SIP inventory, the
current state of air quality as determined by monitoring data for that
NAAQS, the absence of SIP motor vehicle control measures, and
historical trends and future projections of the growth of motor vehicle
emissions. A conformity determination that meets other applicable
criteria in Table 1 of paragraph (b) of this section is still required,
including regional emissions analyses for Sec. 93.118 and/or Sec.
93.119 for other pollutants/precursors and NAAQS that apply. Hot-spot
requirements for projects in CO and PM10 areas must also be
satisfied, unless EPA determines that the SIP demonstrates that hot-
spot emissions are also insignificant. If EPA subsequently finds that
motor vehicle emissions of a given pollutant/precursor are significant,
this paragraph would no longer apply for future conformity
determinations for that pollutant/precursor and NAAQS.
(1) * * *
(2) Isolated rural nonattainment and maintenance areas are subject
to the budget and/or interim emissions tests as described in paragraphs
(c) through (k) of this section, with the following modifications:
* * * * *
7. Section 93.117 is revised to read as follows:
Sec. 93.117 Criteria and procedures: Compliance with PM10
and PM2.5 control measures.
The FHWA/FTA project must comply with any PM10 and
PM2.5 control measures in the applicable implementation
plan. This criterion is satisfied if the project-level conformity
determination contains a written commitment from the project sponsor to
include in the final plans, specifications, and estimates for the
project those control measures (for the purpose of limiting
PM10 and PM2.5 emissions from the construction
activities and/or normal use and operation associated with the project)
that are contained in the applicable implementation plan.
8. In Sec. 93.118, paragraph (a) is amended by revising the
reference ``Sec. 93.109(c) through (g)'' to read ``Sec. 93.109(c)
through (l)'', and paragraph (e)(2) is amended by revising the phrase
``emission reduction tests required by Sec. 93.119'' to read ``interim
emissions tests required by Sec. 93.119''.
9. Section 93.119 is amended by:
a. Revising paragraphs (a) and (b);
b. Redesignating paragraphs (c), (d), (e), (f), (g) and (h) as
paragraphs (d), (f), (g), (h), (i) and (j);
c. Adding new paragraphs (c) and (e);
d. Revising newly redesignated paragraphs (d) introductory text and
(d)(1);
e. Revising newly redesignated paragraph (f)(5), removing the
period at the end of newly redesignated paragraph (f)(6) and adding a
semicolon in its place, and adding new paragraphs (f)(7) and (f)(8),
(f)(9) and (f)(10);
f. Revising newly redesignated paragraph (g);
g. In newly redesignated paragraphs (h) introductory text and (i)
introductory text, revising the reference ``paragraphs (b) and (c)'' to
read ``paragraphs (b) through (e) ''; and,
h. In newly redesignated paragraph (j), revising the reference
``paragraphs (b) and (c)'' to read ``paragraphs (b) through (e) ''.
The revisions and additions read as follows:
Sec. 93.119 Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.
(a) The transportation plan, TIP, and project not from a conforming
transportation plan and TIP must satisfy the interim emissions test(s)
as described in Sec. 93.109(c) through (l). This criterion applies to
the net effect of the action (transportation plan, TIP, or project not
from a conforming plan and TIP) on motor vehicle emissions from the
entire transportation system.
(b) Ozone areas. The requirements of this paragraph apply to all 1-
hour ozone and 8-hour ozone NAAQS areas, except for certain
requirements as indicated. This criterion may be met:
(1) In moderate and above ozone nonattainment areas that are
subject to the reasonable further progress requirements of CAA section
182(b)(1) if a regional emissions analysis that satisfies the
requirements of Sec. 93.122 and paragraphs (g) through (j) of this
section demonstrates that for each analysis year and for each of the
pollutants described in paragraph (f) of this section:
(i) The emissions predicted in the ``Action'' scenario are less
than the emissions predicted in the ``Baseline'' scenario, and this can
be reasonably expected to be true in the periods between the analysis
years; and
(ii) The emissions predicted in the ``Action'' scenario are lower
than:
(A) 1990 emissions by any nonzero amount, in areas for the 1-hour
ozone NAAQS as described in Sec. 93.109(c); or
(B) 2002 emissions by any nonzero amount, in areas for the 8-hour
ozone NAAQS as described in Sec. 93.109(d) and (e).
(2) In marginal and below ozone nonattainment areas and other ozone
[[Page 62728]]
nonattainment areas that are not subject to the reasonable further
progress requirements of CAA section 182(b)(1) if a regional emissions
analysis that satisfies the requirements of Sec. 93.122 and paragraphs
(g) through (j) of this section demonstrates that for each analysis
year and for each of the pollutants described in paragraph (f) of this
section:
(i) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
(ii) The emissions predicted in the ``Action'' scenario are not
greater than:
(A) 1990 emissions, in areas for the 1-hour ozone NAAQS as
described in Sec. 93.109(c); or
(B) 2002 emissions, in areas for the 8-hour ozone NAAQS as
described in Sec. 93.109(d) and (e).
(c) CO areas. This criterion may be met:
(1) In moderate areas with design value greater than 12.7 ppm and
serious CO nonattainment areas that are subject to CAA section
187(a)(7) if a regional emissions analysis that satisfies the
requirements of Sec. 93.122 and paragraphs (g) through (j) of this
section demonstrates that for each analysis year and for each of the
pollutants described in paragraph (f) of this section:
(i) The emissions predicted in the ``Action'' scenario are less
than the emissions predicted in the ``Baseline'' scenario, and this can
be reasonably expected to be true in the periods between the analysis
years; and
(ii) The emissions predicted in the ``Action'' scenario are lower
than 1990 emissions by any nonzero amount.
(2) In moderate areas with design value less than 12.7 ppm and not
classified CO nonattainment areas if a regional emissions analysis that
satisfies the requirements of Sec. 93.122 and paragraphs (g) through
(j) of this section demonstrates that for each analysis year and for
each of the pollutants described in paragraph (f) of this section:
(i) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
(ii) the emissions predicted in the ``Action'' scenario are not
greater than 1990 emissions.
(d) PM10 and NO2 areas. This criterion may be
met in PM10 and NO2 nonattainment areas if a
regional emissions analysis that satisfies the requirements of Sec.
93.122 and paragraphs (g) through (j) of this section demonstrates that
for each analysis year and for each of the pollutants described in
paragraph (f) of this section, one of the following requirements is
met:
(1) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
* * * * *
(e) PM2.5 areas. This criterion may be met in
PM2.5 nonattainment areas if a regional emissions analysis
that satisfies the requirements of Sec. 93.122 and paragraphs (g)
through (j) of this section demonstrates that for each analysis year
and for each of the pollutants described in paragraph (f) of this
section, one of the following requirements is met:
(1) The emissions predicted in the ``Action'' scenario are not
greater than the emissions predicted in the ``Baseline'' scenario, and
this can be reasonably expected to be true in the periods between the
analysis years; or
(2) The emissions predicted in the ``Action'' scenario are not
greater than 2002 emissions.
(f) * * *
* * * * *
(5) VOC and/or NOX in PM10 areas if the EPA
Regional Administrator or the director of the State air agency has made
a finding that one or both of such precursor emissions from within the
area are a significant contributor to the PM10 nonattainment
problem and has so notified the MPO and DOT;
(6) NOX in NO2 areas;
(7) PM2.5 in PM2.5 areas;
Option 1 for paragraphs (f)(8), (f)(9) and (f)(10):
(8) VOC and/or NOX in PM2.5 areas, unless the
EPA Regional Administrator or the director of the State air agency has
made a finding that one or both of such precursor emissions from within
the area are not a significant contributor to the PM2.5
nonattainment problem and has so notified the MPO and DOT;
(9) SOx and/or NH3 in PM2.5 areas
if the EPA Regional Administrator or the director of the State air
agency has made a finding that one or both of such precursor emissions
from within the area are a significant contributor to the
PM2.5 nonattainment problem and has so notified the MPO and
DOT; and
(10) Re-entrained road dust in PM2.5 areas if the EPA
Regional Administrator or the director of the State air agency has made
a finding that emissions from re-entrained road dust within the area
are a significant contributor to the PM2.5 nonattainment
problem and has so notified the MPO and DOT.
Option 2 for paragraphs (f)(8) and (f)(9) without paragraph
(f)(10):
(8) NOX, VOC, SOx and/or NH3 in
PM2.5 areas if the EPA Regional Administrator or the
director of the State air agency has made a finding that one or more of
such precursor emissions from within the area are a significant
contributor to the PM2.5 nonattainment problem and has so
notified the MPO and DOT; and
(9) Reentrained road dust in PM2.5 areas if the EPA
Regional Administrator or the director of the State air agency has made
a finding that emissions from reentrained road dust within the area are
a significant contributor to the PM2.5 nonattainment problem
and has so notified the MPO and DOT.
(g) Analysis years. (1) The regional emissions analysis must be
performed for analysis years that are no more than ten years apart. The
first analysis year must be no more than five years beyond the year in
which the conformity determination is being made. The last year of the
transportation plan's forecast period must also be an analysis year.
(2) For areas using paragraphs (b)(2)(i), (c)(2)(i), (d)(1), and
(e)(1) of this section, a regional emissions analysis that satisfies
the requirements of Sec. 93.122 and paragraphs (g) through (j) of this
section would not be required for analysis years in which the
transportation projects and planning assumptions in the ``Action'' and
``Baseline'' scenarios are exactly the same. In such a case, paragraph
(a) of this section can be satisfied by documenting that the
transportation projects and planning assumptions in both scenarios are
exactly the same, and consequently, the emissions predicted in the
``Action'' scenario are not greater than the emissions predicted in the
``Baseline'' scenario for such analysis years.
10. Section 93.121 is amended by revising paragraph (b)
introductory text by removing the reference ``Sec. 93.109(g)'' and
adding in its place a reference for ``Sec. 93.109(l)'', and revising
paragraph (b)(1) and adding new paragraph (c) to read as follows:
Sec. 93.121 Requirements for adoption or approval of projects by
other recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.
* * * * *
(b) * * *
(1) The project was included in the regional emissions analysis
supporting the most recent conformity determination that reflects the
portion of the statewide transportation plan and TIP which are in the
nonattainment or maintenance area, and the project's
[[Page 62729]]
design concept and scope has not changed significantly; or
* * * * *
(c) Notwithstanding paragraphs (a) and (b) of this section, in
nonattainment and maintenance areas subject to Sec. 93.109(j) or (k)
for a given pollutant/precursor and NAAQS, no recipient of Federal
funds designated under title 23 U.S.C. or the Federal Transit Laws
shall adopt or approve a regionally significant highway or transit
project, regardless of funding source, unless the recipient finds that
the requirements of one of the following are met for that pollutant/
precursor and NAAQS:
(1) The project was included in the most recent conformity
determination for the transportation plan and TIP and the project's
design concept and scope has not changed significantly; or
(2) The project was included in the most recent conformity
determination that reflects the portion of the statewide transportation
plan and TIP which are in the nonattainment or maintenance area, and
the project's design concept and scope has not changed significantly.
11. Section 93.122 is amended by:
a. Redesignating paragraphs (c), (d), and (e) as paragraphs (d),
(e) and (g), respectively;
b. Adding new paragraphs (c) and (f); and
c. In newly redesignated paragraph (g)(1), revising the reference
to ``93.119 (``Emission reductions in areas without motor vehicle
emissions budgets'')'' to read ``93.119 (``Interim emissions in areas
without motor vehicle emissions budgets'')''.
The revisions and additions read as follows:
Sec. 93.122 Procedures for determining regional transportation-
related emissions.
* * * * *
(c) Two-year grace period for regional emissions analysis
requirements in certain ozone and CO areas. The requirements of
paragraph (b) of this section shall not apply for two years from the
following:
(i) The effective date of EPA's reclassification of a moderate
ozone or CO area that has an urbanized area population greater than
200,000 to serious or severe (ozone only); or,
(ii) The official notice by the Census Bureau that determines the
urbanized area population of a serious or above ozone or CO area to be
greater than 200,000.
* * * * *
(f) PM2.5 from construction-related fugitive dust. (1)
For PM2.5 areas in which the implementation plan does not
identify construction-related fugitive PM2.5 as a
significant contributor to the nonattainment problem, the fugitive
PM2.5 emissions associated with highway and transit project
construction are not required to be considered in the regional
emissions analysis.
(2) In PM2.5 nonattainment and maintenance areas with
implementation plans which identify construction-related fugitive
PM2.5 as a significant contributor to the nonattainment
problem, the regional PM2.5 emissions analysis shall
consider construction-related fugitive PM2.5 and shall
account for the level of construction activity, the fugitive
PM2.5 control measures in the applicable implementation
plan, and the dust-producing capacity of the proposed activities.
* * * * *
Sec. 93.125 [Amended]
12. In Sec. 93.125, paragraph (a) is amended by revising the
reference ``93.119 (``Emissions reductions in areas without motor
vehicle emissions budgets'')'' to read ``93.119 (``Interim emissions in
areas without motor vehicle emissions budgets'')'', and paragraph (d)
is amended by revising the phrase ``emission reduction requirements of
Sec. 93.119'' to read ``interim emissions requirements of Sec.
93.119''.
[FR Doc. 03-27372 Filed 11-4-03; 8:45 am]
BILLING CODE 6560-50-P