[Federal Register: March 10, 2006 (Volume 71, Number 47)]
[Rules and Regulations]
[Page 12467-12511]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10mr06-14]
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Part III
Environmental Protection Agency
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40 CFR Part 93
PM2.5 and PM10 Hot-Spot Analyses in Project-Level
Transportation Conformity Determinations for the New PM2.5
and Existing PM10 National Ambient Air Quality Standards;
Final Rule
[[Page 12468]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[EPA-HQ-OAR-2003-0049, FRL-8039-5]
RIN 2060-AN02
PM2.5 and PM10 Hot-Spot Analyses in
Project-Level Transportation Conformity Determinations for the New
PM2.5 and Existing PM10 National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This final rule establishes the criteria for determining which
transportation projects must be analyzed for local particle emissions
impacts in PM2.5 and PM10 nonattainment and maintenance areas. This
rule establishes requirements in PM2.5 areas and revises
existing requirements in PM10 areas. If required, an
analysis of local particle emissions impacts is done as part of a
transportation project's conformity determination. EPA is requiring a
local particle emissions impacts analysis for certain transportation
projects to ensure that these projects do not adversely impact the
national ambient air quality standards and human health. The Clean Air
Act requires federally supported highway and transit projects to be
consistent with (``conform to'') the purpose of a state air quality
implementation plan. EPA has consulted with the Department of
Transportation (DOT) on the development of this final rule, and DOT
concurs with its content.
DATES: The final rule is effective April 5, 2006, for good cause found
as explained in this rule.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2003-0049. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information may not be publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Meg Patulski, Transportation and
Regional Programs Division, Office of Transportation and Air Quality,
U.S. Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor,
MI 48105, telephone number: (734) 214-4842, fax number: (734) 214-4052,
e-mail address: patulski.meg@epa.gov; or Rudy Kapichak, Transportation
and Regional Programs Division, Office of Transportation and Air
Quality, U.S. Environmental Protection Agency, 2000 Traverwood Road,
Ann Arbor, MI 48105, telephone number: (734) 214-4574, fax number:
(734) 214-4052, e-mail address: kapichak.rudolph@epa.gov.
SUPPLEMENTARY INFORMATION:
The contents of this preamble are listed in the following outline:
I. General Information
II. Background
III. PM2.5 Hot-spot Analyses
IV. PM10 Hot-spot Analyses
V. Projects of Air Quality Concern and General Requirements for
PM2.5 and PM10 Hot-spot Analyses
VI. Timing of Quantitative PM2.5 and PM10 Hot-
spot Analyses and Development of Future Guidance
VII. Categorical PM2.5 and PM10 Hot-spot
Findings
VIII. Minor Change for Exempt Projects Regarding Compliance With
PM2.5 SIP Control Measures
IX. How Does Today's Final Rule Affect Conformity SIPs?
X. Statutory and Executive Order Reviews
I. General Information
A. Does This Action Apply to Me?
Entities potentially regulated by the transportation conformity
rule are those that adopt, approve, or fund transportation plans,
programs, or projects under title 23 U.S.C. or title 49 U.S.C.
Regulated categories and entities affected by today's action include:
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Examples of regulated
Category entities
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Local government.......................... Local transportation and air
quality agencies, including
metropolitan planning
organizations (MPOs).
State government.......................... State transportation and air
quality agencies.
Federal government........................ Department of Transportation
(Federal Highway
Administration (FHWA) and
Federal Transit
Administration (FTA)).
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
final rule. This table lists the types of entities of which EPA is
aware that potentially could be regulated by the conformity rule. Other
types of entities not listed in the table could also be regulated. To
determine whether your organization is regulated by this action, you
should carefully examine the applicability requirements in 40 CFR
93.102. If you have questions regarding the applicability of this
action to a particular entity, consult the persons listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of This Document?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OAR-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. See the ADDRESSES section
above. You may have to pay a reasonable fee for copying docket
materials.
2. Electronic Access
You may access this Federal Register document electronically
through EPA's transportation conformity Web site at http://www.epa.gov/otag/transp/tragconf.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 the
Federal Docket Management System (FDMS), located at http://www.regulations.gov.
You may use the FDMS to 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
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electronically. 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 B.1. of this
section. Once in the FDMS electronic docket system, select ``Advanced
Search-Docket Search,'' then enter the appropriate docket
identification number (which is EPA-HQ-OAR-2003-0049) in the ``docket
ID'' field and click ``submit''.
II. Background
A. What Is Transportation Conformity?
Transportation conformity is required under Clean Air Act section
176(c) (42 U.S.C. 7506(c)) to ensure that federally supported highway
and transit project activities are consistent with (``conform to'') the
purpose of the state air quality implementation plan (SIP). Conformity
currently applies to areas that are designated nonattainment, and those
redesignated to attainment after 1990 (``maintenance areas'' with plans
developed under Clean Air Act section 175A) for the following
transportation-related criteria pollutants: Ozone, particulate matter
(PM2.5 and PM10),\1\ carbon monoxide (CO), and
nitrogen dioxide (NO2). Conformity to the purpose of the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
the relevant national ambient air quality standards (NAAQS or
``standards'').
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\1\ Section 93.102(b)(1) of the conformity rule defines
PM2.5 and PM10 as particles with an
aerodynamic diameter less than or equal to a nominal 2.5 and 10
micrometers, respectively.
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B. What Is the History of the Transportation Conformity Rule?
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.
More recently, on July 1, 2004, EPA published a final rule (69 FR
40004) that amended the conformity rule to accomplish three objectives.
The final rule:
Provided conformity procedures for state and local
agencies under the new ozone and PM2.5 air quality
standards;
Incorporated existing EPA and DOT federal guidance into
the conformity rule consistent with a March 2, 1999 U.S. Court of
Appeals decision; and
Streamlined and improved the conformity rule.
The July 1, 2004 final rule incorporated most of the provisions from
the November 5, 2003 proposal for conformity under the new ozone and
PM2.5 standards (68 FR 62690). EPA is conducting its
conformity rulemakings in the context of EPA's broader strategies for
implementing the new ozone and PM2.5 standards.
Finally, on May 6, 2005, EPA promulgated a final rule entitled,
``Transportation Conformity Rule Amendments for the New
PM2.5 National Ambient Air Quality Standard:
PM2.5 Precursors'' (70 FR 24280). This final rule specified
the transportation-related PM2.5 precursors and when they
apply in transportation conformity determinations in PM2.5
nonattainment and maintenance areas.
C. Why Are We Issuing This Final Rule?
In the November 2003 proposal, EPA presented two options concerning
hot-spot analyses in PM2.5 and PM10 nonattainment
and maintenance areas. EPA received substantial comment on this portion
of the November 2003 proposal. After considering these comments, EPA,
in consultation with the U.S. Department of Transportation (DOT),
issued a supplemental notice of proposed rulemaking on December 13,
2004 (69 FR 72140) which requested further public comment on additional
options for PM2.5 and PM10 hot-spot requirements
and those options presented in the original November 2003 proposal. In
developing today's final rule, EPA considered all of the comments
received on PM2.5 and PM10 hot-spot analysis
requirements both in response to the original November 2003 proposal as
well as the December 2004 supplemental proposal. EPA received over
5,400 sets of comments on the two proposals from state and local
transportation and air quality agencies, environmental groups,
transportation advocates, and the general public.
EPA has consulted with DOT, our Federal partner in implementing the
transportation conformity regulation, in developing the final rule, and
DOT concurs with its content. Please see Sections III. and IV. for more
information regarding how this final rule impacts project-level
conformity determinations in PM2.5 and PM10
areas, including those for projects that are currently under
development.
III. PM2.5 Hot-spot Analyses
A. Background
1. What Is a Hot-spot Analysis?
A hot-spot analysis is defined in 40 CFR 93.101 as an estimation of
likely future localized pollutant concentrations resulting from a new
transportation project and a comparison of those concentrations to the
relevant air quality standard. A hot-spot analysis assesses the air
quality impacts on a scale smaller than an entire nonattainment or
maintenance area, including, for example, congested roadway
intersections and highways or transit terminals. Such an analysis is a
means of demonstrating that a transportation project meets Clean Air
Act conformity requirements to support state and local air quality
goals with respect to potential localized air quality impacts.
Prior to today's final rule, the conformity rule required some type
of hot-spot analysis for all FHWA and FTA funded or approved non-exempt
transportation projects in CO and PM10 nonattainment and
maintenance areas (40 CFR 93.116 and 93.123). This requirement applied
for all project-level conformity determinations that occur both before
and after a SIP is submitted for the CO or PM10 air quality
standards.
EPA established the type of hot-spot analysis--either quantitative
or qualitative--based on the potential impact of a given project or
project location on the air quality standards, so that more rigorous
quantitative analyses are only required when necessary to meet
statutory requirements. Since the original November 24, 1993 conformity
rule, EPA has required quantitative analyses for projects that have the
highest potential to impact the CO air quality standards (i.e.,
``projects of air quality concern''). The conformity rule also has
detailed projects that have the highest potential to impact the
PM10 standards, including new or expanded bus and rail
terminals or transfer points involving diesel vehicles. These projects
of air quality concern would be subject to quantitative hot-spot
analyses once the tools and EPA's future modeling guidance are
available. In contrast, more streamlined, qualitative hot-spot analyses
have been required for all other projects.
Such a tiered approach was intended to utilize state and local
resources in an efficient manner while meeting statutory requirements.
Quantitative hot-spot analyses use dispersion modeling to determine the
potential air quality impact of motor vehicle emissions associated with
a highway or
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transit project. Qualitative hot-spot analyses involve more streamlined
reviews of local factors such as local monitoring data near a proposed
project.
EPA notes, however, that quantitative PM10 hot-spot
analyses have not yet been required for projects of air quality concern
due to a lack of EPA modeling guidance and appropriate methods. Section
93.123(b)(4) of the conformity rule states that the requirements for
quantitative PM10 hot-spot analyses will not take effect
until EPA releases modeling guidance and announces in the Federal
Register that these requirements are in effect, which EPA has not yet
done.
Today's final rule does not impact the existing CO hot-spot
requirements; however, the final rule revises the PM10 hot-
spot requirements as discussed in Sections IV. and V.
2. Proposed Options
EPA proposed several options for how PM2.5 hot-spot
requirements would apply for project-level conformity determinations in
PM2.5 nonattainment and maintenance areas. In general, these
options were proposed to apply during the time periods before and after
a PM2.5 SIP is submitted. EPA is repeating in today's action
the descriptions of the previously proposed options to assist in
discussing the final rule and responses to comments. EPA noted in its
proposals that hot-spot analyses would be based only on directly
emitted PM2.5 attributable to an individual transportation
project, since secondary particles formed through PM2.5
precursors take several hours to form in the atmosphere, giving
emissions time to disperse beyond the immediate area of concern for
localized analyses.
The following five options were proposed for PM2.5 hot-
spot requirements for individual projects in PM2.5 areas
prior to the submission of a PM2.5 SIP (December 13, 2004,
69 FR 72144):
Options 1 and 2: Do not apply any PM2.5 hot-
spot analysis requirements for any PM2.5 area before the
submission of the PM2.5 SIP \2\;
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\2\ Options 1 and 2 were originally proposed in the November 5,
2003 notice as well (68 FR 62712). Option 1 would have not required
any PM2.5 hot-spot requirement at any time before or
after a PM2.5 SIP is submitted. Option 2 also would not
require PM2.5 hot-spot analyses prior to a
PM2.5 SIP submission, and then only if the SIP identified
types of projects or locations of air quality concern for a given
area.
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Option 3: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5 in all PM2.5 areas;
Option 4: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5, unless the EPA Regional Administrator or state air
agency finds that localized PM2.5 violations are not a
concern for a given PM2.5 area; or
Option 5: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5, only if the EPA Regional Administrator or state air
agency finds that localized PM2.5 violations are a concern
for a given PM2.5 area.
EPA proposed that an EPA or state air agency finding under Options
4 and 5 that PM2.5 localized violations are or are not a
concern prior to PM2.5 SIP submission would be based on a
case-by-case review of local factors for a given PM2.5 area.
EPA requested information from commenters about whether sufficient
local information was available to make such findings.
EPA also proposed three options for project-level conformity
determinations after the submission of a PM2.5 SIP (December
13, 2004, 69 FR 72145):
Option A: Do not apply any PM2.5 hot-spot
analysis requirements for any PM2.5 area (i.e., Option 1
from the November 2003 proposal);
Option B: Only require quantitative PM2.5 hot-
spot analyses for projects at those types of locations that the
PM2.5 SIP identifies as a localized PM2.5 air
quality concern for a given area (i.e., Option 2 from the November 2003
proposal). No quantitative or qualitative analyses would be required
for any projects in other types of locations, or in PM2.5
areas where the SIP does not identify types of locations as a localized
PM2.5 air quality concern; or
Option C: Apply the existing conformity rule's
PM10 hot-spot analysis requirements with respect to
PM2.5 for all projects in PM2.5 areas, with a
minor addition.
Under Option C, EPA proposed to add a new criterion that would
require that quantitative analyses also be performed at those types of
project locations that the PM2.5 SIP identifies as a
PM2.5 hot-spot concern. See the November 5, 2003 proposal
(68 FR 62712-62713) and the December 13, 2004 supplemental proposal (69
FR 72144-72149) for further information on all of the proposed options.
For options involving hot-spot analyses, EPA proposed to not
require quantitative PM2.5 hot-spot analyses until EPA
releases its future modeling guidance, consistent with the existing
provision for PM10 analyses in Sec. 93.123(b)(4). EPA also
proposed to extend to PM2.5 areas the existing conformity
rule's flexibility in Sec. 93.123(b)(3) for DOT to make categorical
hot-spot findings to further streamline analysis requirements when
modeling shows that additional analyses are not necessary to meet Clean
Air Act requirements for a given project.
Last, EPA requested comments on all of the proposed options, and
invited commenters to submit any data or other information about the
proposed options, including whether state and local agencies would have
information available for implementation. In developing this final
rule, EPA considered all of the comments and information submitted for
the November 2003 and December 2004 proposals. The December 2004
supplemental proposal also included proposed regulatory text that
combined various PM2.5 and PM10 hot-spot options
as illustrative examples, and EPA noted that any combination of the
proposed PM2.5 or PM10 hot-spot options could be
included in the final rule.
B. Description of Final Rule
In summary, EPA is finalizing a hybrid of some of the proposed
options by:
Being generally consistent with Options 3 (for the period before a
SIP is submitted) and C (for the period after a SIP is submitted) for
projects of localized air quality concern, and
Providing the flexibility from other proposed options to
eliminate qualitative hot-spot analyses for all projects not of air
quality concern.
The final rule requires quantitative PM2.5 hot-spot analyses
only for projects of air quality concern, and qualitative hot-spot
analyses would be done for these projects before EPA releases its
future modeling guidance and announces that quantitative
PM2.5 hot-spot analyses are required under Sec.
93.123(b)(4). EPA specifies in Sec. 93.123(b)(1) that projects of air
quality concern are highway and transit projects that involve
significant levels of diesel vehicle traffic, or any other project that
is identified in the PM2.5 SIP as a localized concern.
EPA considered several factors in focusing on projects involving
significant numbers of diesel vehicles in developing today's final
rule. For example, PM2.5 and PM10 diesel emission
factors are significantly higher than gasoline vehicles on a per-
vehicle basis. In addition, studies in proximity of vehicular traffic
tend to show that elevated PM2.5 concentrations occur near
diesel vehicle operations, but show less consistent evidence near
locations with high gasoline vehicle operations. See Section V. for
more information regarding how and why EPA defined projects of air
quality concern in the final rule.
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Today's final rule does not require any hot-spot analysis--
qualitative or quantitative--for projects that are not listed in Sec.
93.123(b)(1) as an air quality concern. These projects are presumed to
meet Clean Air Act requirements and 40 CFR 93.116 without any explicit
hot-spot analysis for the reasons explained in full below. State and
local project sponsors should briefly document in their conformity
documentation for such projects that an explicit PM2.5 hot-
spot analysis was not completed because Clean Air Act and 40 CFR 93.116
requirements were met without an explicit PM2.5 hot-spot
analysis.
This final rule requires PM2.5 hot-spot analyses for
projects of air quality concern in PM2.5 nonattainment and
maintenance areas at all times--both before and after a
PM2.5 SIP is submitted. EPA had distinguished its proposed
options for the time periods before and after PM2.5 SIPs are
submitted, but for reasons discussed further below, this type of
specificity is no longer necessary. Projects of air quality concern are
anticipated to have the potential to increase local PM2.5
concentrations, and as a result, PM2.5 hot-spot analyses are
needed for such projects to ensure that the local air quality impacts
of such projects are considered prior to receiving federal funding or
approval. EPA is finalizing specific criteria about the types of
projects that require such analyses, based on our November 2003 and
December 2004 proposals and comments received. See Section V. of this
notice for further details regarding the regulatory criteria for
projects of air quality concern and more information on the general
requirements for performing hot-spot analyses.
In addition, the final rule allows DOT, in consultation with EPA,
to make categorical hot-spot findings that would further streamline
quantitative hot-spot analysis requirements in appropriate cases in
PM2.5 areas, as the existing conformity rule already allows
in PM10 areas for some projects. A categorical hot-spot
finding would be made if there is appropriate modeling that shows that
a particular category of highway or transit projects of air quality
concern meet statutory requirements without additional quantitative
hot-spot modeling for such types of projects individually. See Section
VII. for further details regarding categorical hot-spot findings.
This final rule requires a qualitative PM2.5 hot-spot
analysis to be completed for project-level conformity determinations
for projects of air quality concern completed in PM2.5
nonattainment areas on or after April 5, 2006, when PM2.5
conformity requirements apply.\3\ Quantitative analyses are not
required for these projects at this time since EPA is not requiring
quantitative PM2.5 hot-spot analyses under Sec.
93.123(b)(4) since quantitative hot-spot modeling techniques and
associated EPA modeling guidance still do not exist. Qualitative
PM2.5 hot-spot analyses should be completed according to
joint EPA and DOT guidance. This guidance was developed in consultation
with DOT, and the guidance will be posted on the Web site provided in
Section I.B.2. of today's notice. See Section VI. of this final rule
for more information regarding the timing of EPA's future quantitative
hot-spot modeling guidance and subsequent application of quantitative
requirements.
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\3\ On January 5, 2005 (70 FR 943), EPA designated areas as
attainment and nonattainment for the PM2.5 standards.
These designations became effective on April 5, 2005. As a result,
conformity for the PM2.5 standards will apply to newly
designated nonattainment areas on April 5, 2006.
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Finally, EPA notes that its future quantitative hot-spot modeling
guidance will also address how the current 24-hour and annual
PM2.5 air quality standards are to be considered in
quantitative hot-spot analyses. The Clean Air Act and conformity rule
require that conformity be met for both the 24-hour and annual
PM2.5 air quality standards in all PM2.5
nonattainment and maintenance areas. However, transportation plan and
transportation improvement program (TIP) conformity determinations and
regional emissions analyses could address only one PM2.5
standard if meeting conformity for the controlling standard would
ensure that Clean Air Act requirements are met for both standards. EPA
will address how PM2.5 hot-spot analyses should consider
both applicable PM2.5 standards in our future quantitative
hot-spot modeling guidance. This future guidance will be consistent
with how potential impacts on the PM2.5 standards are being
considered in EPA's rulemaking for the PM2.5 implementation
strategy, which EPA proposed on November 1, 2005 (70 FR 66040).
Quantitative hot-spot analyses for conformity purposes would consider
how projects of air quality concern are predicted to impact air quality
at existing and potential PM2.5 monitor locations which are
appropriate to allow the comparison of predicted PM2.5
concentrations to the current PM2.5 standards, based on
PM2.5 monitor siting requirements (40 CFR part 58). EPA
developed these monitor siting requirements to determine the level of
protection of community public health provided by the current
PM2.5 standards.
C. Rationale
In its December 2004 supplemental proposal, EPA stated that several
factors needed to be considered for establishing a PM2.5
hot-spot requirement. Those factors are as follows:
The Clean Air Act conformity requirements for individual
transportation projects;
The current scientific understanding of PM2.5
hot-spots and public health effects;
The feasibility of implementing a PM2.5 hot-
spot requirement; and
The impact on state and local resources.
The following paragraphs outline how EPA considered these factors
in the final rule.
Clean Air Act legal requirements: EPA believes that the final rule
allows all federally funded and approved transportation projects in
PM2.5 areas to meet applicable statutory requirements. Clean
Air Act section 176(c)(1)(B) is the statutory criterion that must be
met by all projects in nonattainment and maintenance areas that are
subject to transportation conformity. Section 176(c)(1)(B) states that
federally-supported transportation projects must not ``cause or
contribute to any new violation of any standard in any area; increase
the frequency or severity of any existing violation of any standard in
any area; or delay timely attainment of any standard or any required
interim emission reductions or other milestones in any area.'' The
Clean Air Act requires that these provisions be met for all FHWA or FTA
funded or approved projects, except traffic signal synchronization
projects; it does not distinguish that these requirements apply based
on whether or not a SIP has been submitted. Through previous
rulemaking, EPA has determined that the exempt projects listed in 40
CFR 93.126 have met section 176(c)(1)(B) without further hot-spot
analyses. Through today's action, EPA is determining that projects not
identified in the rule as projects of air quality concern have also met
section 176(c)(1)(B) without further hot-spot analyses. The final rule
requires that all projects of air quality concern be analyzed for
localized impacts, regardless of whether or not the PM2.5
SIP is submitted.
EPA continues to believe it has discretion to establish the level
and form of PM2.5 analysis that is necessary to meet Clean
Air Act section 176(c) statutory requirements. Therefore, EPA is
finalizing criteria for when PM2.5 hot-spot analyses are
required based on scientific information available on PM2.5
[[Page 12472]]
hot-spots and emissions from diesel vehicles, and the Agency's
experience in implementing CO and PM10 hot-spot requirements
since 1993 for what level of analysis is appropriate and worthwhile.
The final rule's criteria for what projects require hot-spot analyses
will ensure that all projects that have the potential to impact the air
quality standards will be analyzed using appropriate methods before
they receive Federal funding or approval. The final rule includes
criteria for what projects of air quality concern require quantitative
PM2.5 analyses based on existing scientific information and
comments received, as discussed further in this section and in Section
V.
Furthermore, EPA is changing its precedent to date in no longer
requiring qualitative hot-spot analyses for projects that are not of
localized air quality concern. As stated previously, since the original
1993 conformity rule, some type of hot-spot analysis has been required
to meet statutory requirements for all non-exempt FHWA and FTA projects
in PM10 nonattainment and maintenance areas. However, based
on the history of implementation of this provision over the past ten
plus years, as explained in more detail below, EPA now believes that
these projects which do not represent a localized air quality concern
can be presumed to meet Clean Air Act requirements and 40 CFR 93.116
without any explicit hot-spot analysis.
Requiring qualitative hot-spot analyses for projects that are not
an air quality concern is also not a beneficial use of Federal, state,
or local resources. EPA is basing this conclusion in part on a recent
review by EPA and DOT field offices of project-level conformity
determinations involving historical qualitative hot-spot analyses in
PM10 areas. This review did not find any qualitative hot-
spot analysis in a PM10 nonattainment or maintenance area
where it was determined that Clean Air Act requirements were not met.
In other words, qualitative hot-spot analyses for projects that are not
an air quality concern in PM10 areas did not result in any
predicted new or worsened air quality violations.
In addition, EPA and DOT offices evaluated whether any mitigation
measures had been added to a project in response to a PM10
qualitative hot-spot analyses. Mitigation measures are sometimes used
to reduce project emissions and any impact on local air quality, so
that a project can demonstrate conformity. Whatever the case, the EPA
and DOT field offices did not identify any cases where any mitigation
measures were added to reduce emissions from implemented projects to
meet statutory conformity requirements. EPA found in its review of
previous qualitative PM10 hot-spot analyses that mitigation
measures were added in some cases to reduce fugitive dust emissions
during project construction (e.g., slope covering, street sweeping, use
of water, quarry spalls). However, these measures were added for other
mitigation purposes during the construction phase of a project, rather
than to meet conformity requirements for the time period when
construction is completed and a project is open to traffic. EPA has
included a summary of its review in the docket for this rulemaking.
For all of these reasons and since EPA does not expect these
projects to ever impact the PM2.5 standards, EPA has not
finalized any hot-spot analysis requirement for projects that are not
an air quality concern. EPA concludes that since no such projects will
have localized air quality impacts of concern, all such projects can
meet statutory conformity requirements without an explicit hot-spot
analysis.
However, as noted elsewhere in today's action, EPA is finalizing a
qualitative PM2.5 hot-spot requirement for projects of air
quality concern prior to quantitative guidance and models being
available. EPA believes that there is value in federal, state, and
local agencies and the general public discussing the localized air
quality impacts of a project of air quality concern, even if such
reviews can only be qualitative in nature at this time. This aspect of
the final rule is intended to be an environmentally conservative
approach to meeting Clean Air Act requirements in the time period
before quantitative hot-spot modeling techniques and future guidance is
available for projects of localized air quality concern.
Scientific understanding of potential for transportation-related
PM2.5 hot-spots: Another critical factor for developing the
final rule is whether or not transportation projects have the potential
to affect the PM2.5 standards in local areas. Understanding
whether or not an individual transportation project can result in a
PM2.5 hot-spot and if so, under what circumstances, provides
a basis for considering whether explicit hot-spot analyses must be
required for conformity purposes, and if so for which types of projects
or potential project locations.
As discussed above, EPA believes that highway and transit projects
that involve significant levels of diesel vehicle emissions have the
potential to increase local PM2.5 concentrations. As a
result, PM2.5 hot-spot analyses are needed to ensure that
the local air quality impacts of such projects are considered prior to
receiving Federal funding or approval. This finding is based on EPA's
thorough review of existing scientific papers as well as additional
technical and anecdotal information that was submitted by state and
local agencies during the rulemaking process. All of this information
is contained in the docket for this rulemaking.
In developing the final rule, EPA completed a thorough review of
more than 70 studies representing a cross-section of available studies
looking at particle concentrations near roadways. Some of these studies
were considered for our previous proposals; others were newly
considered for the final rule. Some of these studies are discussed in
today's action; all studies are included in the docket for this final
rule.
EPA believes that these studies provide strong evidence of elevated
PM2.5 concentrations along roadways on a consistent basis
from certain types of projects. Based on EPA's review of all studies,
studies identified elevated PM2.5 concentrations of 8% to
60% for high-traffic roadways to 285% for major truck stops, compared
to background concentrations. Variables identified in the studies as
key predictors of PM2.5 concentrations include: Total
traffic volume; volume of heavy-duty trucks; traffic congestion; and
proximity to major facilities (within approximately 150 meters). Most
studies showed elevation in PM2.5, black carbon, or other
components \4\ associated with major facilities (e.g., truck routes,
intermodal or bus terminals). Several showed no elevation in
PM2.5 per se, but did show elevation in black carbon,
particle number, or some other component of PM2.5. Only one
study showed no elevation in any component of PM2.5 close to
roadways.
---------------------------------------------------------------------------
\4\ Examples of other components that are considered
PM2.5 include organic carbon and particle-phase
polycyclic aromatic hydrocarbons.
---------------------------------------------------------------------------
Overall, major conclusions from these studies are:
Black/elemental carbon (BC or EC) mass concentrations and
particle number (e.g., ``ultrafines'') concentrations are consistently
associated with proximity to traffic (generally within 150 meters).
PM2.5 is associated with proximity to traffic
in most, but not all cases.
Both regional background and local sources contribute to
site-specific PM2.5 concentrations.
The ``near-roadway increment'' of PM2.5 tends
to be comprised of approximately 50-80% black or
[[Page 12473]]
elemental carbon (indicating mobile sources are a key source).
Some examples of the types of studies we examined include Lena et
al. (2002), where investigators from Columbia University conducted a
community-based study in a neighborhood of the South Bronx, NY, with
heavy freight traffic. Vehicle counts and EC concentrations were
monitored over a 10-12 hour period at several sites along designated
truck routes and other neighborhood sites. Within the neighborhood, EC
was 20-28% of ambient PM2.5 along truck routes, but only 13-
16% at non-trucks sites. Trucks were estimated to contribute between
5.0-14.2 [mu]g/m3 PM2.5, depending on the level
of truck traffic.
In a study by Indale (2004), investigators from the University of
Tennessee-Knoxville and Oak Ridge National Laboratory conducted air
quality monitoring and modeling at a large truck stop along a freight
corridor outside Knoxville, TN. Continuous PM2.5 and
NOX monitoring took place between December 2003 and
September 2004. Monthly-averaged PM2.5 ranged from 27-40
[mu]g/m3 within the truck stop, with the 98th percentile of
daily values exceeding 65 [mu]g/m3. Regional background
PM2.5 during the same interval was only 14 [mu]g/
m3. PM2.5 and NOX concentration within
the truck stop tracked the number of idling trucks within the truck
stop closely, which was highest at night. Hourly PM2.5
concentrations within the truck stop averaged 10 [mu]g/m3
greater than along the interstate highway 200 meters distant. EPA notes
that the findings of this study are more relevant to how
PM2.5 air quality would be affected by freight or bus
terminals, as opposed to highway facilities servicing truck routes.
Finally, in Brauer et al. (2003), investigators obtained
``annualized'' average PM2.5 and black carbon at 40-42
locations in each of three locations: The Netherlands (nationwide),
Stockholm County (Sweden), and Munich, Germany. Monitoring consisted of
samples taken 15 minutes of every hour over 4 two-week periods
throughout a 17-month period, normalized to a central monitor.
Locations consisted of ``traffic'' sites (>3,000 vehicles/day within a
50 m radius), ``urban background'' sites, and rural sites.
PM2.5 was 8-35% higher, and black carbon was 43-84% higher
at ``traffic'' sites than at ``urban background'' sites. Using
regression within each area of study, traffic intensity on roads within
250 meters explained 30-40% of the variability in PM2.5, and
54-70% of variability in black carbon. Traffic was the strongest
explanatory variable in all statistical models.
EPA notes that its understanding of the potential for
PM2.5 hot-spots from transportation projects has evolved
over the past three years. In the November 2003 proposal (68 FR 62713),
EPA proposed options that would have required no PM2.5 hot-
spot analyses, or only analyses in limited cases--which reflected its
understanding at that time of the limited potential for transportation-
related PM2.5 hot-spots. Most of the research studies that
had been reviewed by late 2003 indicated that concentrations of some
components of PM2.5 increased near heavily traveled
roadways. EPA considered at that time that many of these studies did
not measure PM2.5 directly, but rather, considered
concentrations of some components of PM2.5, such as BC and
ultrafine particles.
In proposing additional options in the December 2004 supplemental
proposal after receiving public comment, EPA considered additional
studies and reconsidered some of its previous statements from the
November 2003 proposal. For example, EPA now believes that the
information considered in the November 2003 proposal as well as the
most recent information available does indicate a potential for higher
localized emissions and PM2.5 concentrations near certain
transportation facilities. Since November 2003, EPA has considered how
information underlying previous statements was developed, including how
localized emissions increases and existing background concentrations
relate to the potential for localized violations of the
PM2.5 standards.
Furthermore, EPA had stated in the November 2003 proposal that
PM2.5 monitoring data available at that time indicated that
PM2.5 air quality problems were similar to ozone in that
they are both primarily regional in nature, which the Agency now
believes was an incomplete assessment of the broader PM2.5
air quality problem. EPA now believes that PM2.5 is both a
regional and a localized air quality concern in certain circumstances.
While it is true that secondary formation from PM2.5
precursors is a critical component to the regional PM2.5 air
quality problem, directly emitted PM2.5 from certain local
sources has the potential to cause or contribute to elevated localized
PM2.5 concentrations. Such elevated concentrations which
exceed applicable standards can have an effect on local communities and
populations that the PM2.5 standards were designed to
protect.
In the December 2004 supplemental proposal, EPA considered
additional scientific studies and requested public comment on our
assessments of such studies. For example, EPA highlighted a new study,
Burr, et al., (2004), which examined changes in traffic patterns
associated with a single transportation project that can result in
statistically significant differences in PM2.5 mass
concentrations measured along affected roadways. The results of this
study highlight changes in PM2.5 concentrations along
roadways resulting from changes in local traffic patterns, rather than
changes in regional PM2.5 emissions.
While originally believed to be a predominantly regional pollutant,
subsequent analyses of EPA's PM2.5 monitoring data reveal
the influence of both regional and local sources. Pinto et al. (2004)
reviewed monitoring data from 1999 to 2001 from 27 urban areas
nationally. This study showed that differences in annual means between
monitors within a city often reached 5 [mu]g/m3 or higher,
reflecting the possible influence of local sources in many areas, in
addition to variations in meteorology and terrain. Although this study
does not specifically address transportation sources, the study
highlights the importance of subregional sources that impact local
PM2.5 air quality.
Finally, EPA has considered all of the information that commenters
have provided in response to the November 2003 and December 2004
proposals. EPA received a range of information from commenters, such
as:
Broad observations for targeting PM2.5 hot-spot
requirements;
General discussions about monitoring data gathered to date
on PM2.5 hot-spots;
Narrative, non-technical descriptions of an individual
PM2.5 area's considerations for potential PM2.5
hot-spots;
Examples of state and local regulations that target
potential PM2.5 hot-spots from transportation projects; and,
Plans by individual states and nonattainment areas to
conduct studies on the existence of PM2.5 hot-spots.
This and other information received from commenters is included in
the docket for today's final rule. We will further consider these and
other state and local information in the development of our future
quantitative PM2.5 hot-spot modeling guidance and
implementation for this final rule.
Feasibility and resource implications: EPA also considered whether
or not the final rule's requirements were feasible and practical. For
example, is the
[[Page 12474]]
information needed to implement an option available? Do state and local
agencies have the methods and experience to implement an option in a
reasonable time frame? EPA considered these and other questions, so
that meeting statutory requirements was assured to be completed in an
efficient manner. EPA rejected options that could not be feasibly
implemented.
Targeting projects of air quality concern and not requiring
qualitative hot-spot analyses for projects that are not of concern will
streamline project-level conformity determinations in PM2.5
areas, since many proposed projects in transportation plans and TIPs
are not expected to be of air quality concern. Allowing DOT to make
categorical hot-spot findings will provide another opportunity to
further narrow the focus of quantitative analyses for those projects
that matter significantly for air quality. All of these aspects of the
final rule will utilize state and local resources in an efficient and
reasonable manner while still satisfying Clean Air Act requirements.
See Sections V. and VII. for further rationale and responses to
comments on criteria for projects of air quality concern and
categorical hot-spot findings.
D. Response to Comments on Proposed PM2.5 Hot-spot Options
EPA received comments on the proposed options for PM2.5
areas from state and local transportation and air quality agencies,
environmental groups, transportation advocates, and the general public.
Certain general trends were evident where the same commenters supported
similar options during the time periods before and after a
PM2.5 SIP is submitted. In general, commenters who supported
finalizing no or limited PM2.5 hot-spot requirements prior
to PM2.5 SIP submission (Options 1, 2, or 5) also generally
supported options that would have no hot-spot requirement at all
(Option A) or rely on the SIP to identify hot-spot requirements (Option
B) after PM2.5 SIP submission. Similarly, commenters who
supported applying the existing PM10 hot-spot requirements
prior to PM2.5 SIPs (Options 3 or 4), also supported doing
the same after PM2.5 SIPs are in (Option C). In addition,
there were commenters who believed either that EPA should delay
finalizing a PM2.5 hot-spot requirement at this time, or
that EPA should modify the proposed options so that they are more
environmentally protective. The following paragraphs describe these and
other comments that EPA considered in the development of the final
rule, and EPA's responses to those comments.
Comment
Many commenters supported finalizing PM2.5 hot-spot
requirements that were consistent with the previous conformity rule's
provisions for PM10 areas (i.e., Options 3 and C), to meet
Clean Air Act requirements and protect public health. Commenters
supported these options because they believed that these options would
promote consistency with EPA's past legal interpretations regarding how
federally funded and approved transportation projects met Clean Air Act
section 176(c)(1)(B) requirements in PM10 areas. Commenters
believed that it was reasonable to expect that transportation projects
can cause PM2.5 hot-spots, and that conducting project-level
PM2.5 hot-spot analyses would provide an environmental
benefit by characterizing emissions impacts and considering mitigating
approaches. These commenters also argued that the available scientific
studies and research demonstrate that all transportation projects,
including highway and transit projects involving significant diesel
traffic, have the potential to create PM2.5 hot-spots.
EPA also received many comments, including over 5,000 form e-mail
comments from private citizens, expressing concerns about many of the
proposed options that would require no or limited PM2.5 hot-
spot analyses (e.g., Options 1, 2, 5, A, and B), which they believed
did not go far enough in protecting public health. These commenters
were very concerned that all transportation projects, especially major
highway projects, be evaluated for local PM air quality impacts on
people living in neighborhoods before these projects receive Federal
approval or funding. The commenters believed that EPA should consider
the severity of PM2.5 impacts on the health and welfare of
adults who work, children who play, and families living in
neighborhoods near heavily traveled highways. The commenters indicated
that these populations are at increased risk of suffering from serious
health effects from PM2.5, including asthma, heart disease,
lung cancer, and associated premature death. Other commenters also
cited studies on the serious health effects caused by high
PM2.5 concentrations, and believed that requiring
PM2.5 hot-spot analyses for all projects best protects the
public health for citizens in PM2.5 areas, especially
vulnerable populations living near proposed transportation projects.
On the other hand, many other commenters supported options that
would apply no or only limited PM2.5 hot-spot requirements
(i.e., Options 1, 2, 5, A, and B), and some preferred that EPA delay
issuing final PM2.5 hot-spot requirements until certain
issues are addressed. These commenters believed that there was
insufficient evidence regarding the existence and prevalence of
PM2.5 hot-spots. Commenters stated that their preferences
would be appropriate because PM2.5 is a new pollutant that
should be further examined at the national and local level before more
rigorous PM2.5 hot-spot requirements are finalized. Some
commenters argued that PM2.5 hot-spot requirements are not
required by the Clean Air Act at all, and therefore, no such
requirements should ever be finalized in EPA regulations.
Other commenters were opposed to requiring existing PM10
hot-spot requirements in PM2.5 areas (under Options 3 and C)
because they believed these options would require extensive analyses
without comparable environmental benefits and flexibility. These
commenters believed it was unnecessary and excessive to require hot-
spot analyses for every project in every PM2.5 nonattainment
area. Commenters argued that more research is needed to better define
the situations where hot-spots may be a concern, and how individual
projects could impact air quality standards under different air quality
circumstances. Some of these commenters also argued that EPA has not
demonstrated why performing PM2.5 hot-spot analyses would be
beneficial to attaining the PM2.5 standards.
Response
EPA believes that the final rule addresses many of the concerns
raised by commenters. As described above, EPA concludes that the final
rule allows all projects in PM2.5 areas to meet Clean Air
Act section 176(c)(1)(B) requirements during the time periods both
before and after a PM2.5 SIP is submitted. EPA believes that
today's final rule is consistent with its past legal interpretations
for applying hot-spot requirements for projects of air quality concern.
However, EPA disagrees with commenters who argued that there is not
enough information at this time to apply a PM2.5 hot-spot
requirement. Based on our review of scientific studies and information
gathered during the rulemaking process, as described above, EPA
believes that there is compelling evidence that certain transportation
projects of air quality concern have the potential to impact localized
PM2.5 concentrations. Such impacts, if they would create or
worsen violations for the PM2.5 standards on communities
[[Page 12475]]
surrounding a project of air quality concern, would be contrary to the
Clean Air Act's conformity requirements. Furthermore, EPA does not
agree that it is appropriate to delay finalizing a PM2.5
hot-spot requirement for such projects until certain comments are
addressed, for the reasons cited above.
EPA notes again, as described further elsewhere in this notice,
that projects which do not represent a localized air quality concern
can be presumed to meet Clean Air Act requirements and 40 CFR 93.116
without any explicit hot-spot analysis. This aspect of the final rule
is expected to streamline PM2.5 hot-spot requirements and
use state and local resources efficiently.
Comment
EPA also proposed Options 2 and B that relied solely on the SIP to
identify projects or project locations of potential PM2.5
hot-spot concern. Under these options, quantitative PM2.5
hot-spot analyses would only be required at types of project locations
identified as a localized air quality concern in a given
PM2.5 SIP. No quantitative or qualitative analyses would be
required for projects in other types of locations, or in
PM2.5 areas where the SIP does not identify types of
locations as a localized PM2.5 air quality concern.
Furthermore, no hot-spot analyses would be required for any projects in
PM2.5 areas prior to PM2.5 SIP submission.
Many commenters supported these options. Some commenters believed
that the existence and prevalence of PM2.5 hot-spots was
uncertain and that the SIP process could assist in identifying what
projects are of concern in a given area and consequently what level of
PM2.5 hot-spot analysis is appropriate. Commenters opined
that Options 2 and B would allow each PM2.5 area to better
target potential PM2.5 hot-spots and protect the public
health of their citizens, since the SIP is the appropriate mechanism
for addressing state and local air quality goals. These options were
considered by some to provide the necessary flexibility in implementing
hot-spot requirements both before and after a PM2.5 SIP is
submitted.
In contrast, other commenters believed that Options 2 and B would
not meet Clean Air Act requirements or protect public health. First,
such commenters indicated that Option 2 would eliminate any requirement
to perform PM2.5 hot-spot analyses prior to the development
of a PM2.5 SIP, which would not meet statutory requirements
that apply during this time period. These commenters argued that
PM2.5 emissions impacts resulting from transportation
projects should be assessed and mitigated as part of the conformity
process at all times, and that such projects if not analyzed could
significantly degrade air quality and increase the number and severity
of local PM2.5 violations in the time period prior to SIP
submission.
Second, several commenters believed that this option may not be
feasible in every area because it is unlikely that there is adequate
data to identify exact locations of local concern in the SIP. This
could be due to the absence of data or lack of specificity of existing
data regarding PM2.5 hot-spot locations. Some argued that
this may be the case due to placement of current monitors away from
large transportation projects, or the focus on the annual
PM2.5 standard rather than the 24-hour PM2.5
standard in SIP development. One commenter believed that
PM2.5 air quality monitors have historically been located
more than the 300 feet from where highway projects would have their
major impact on PM2.5 concentrations.
Third, commenters were concerned that Option B would place an
inequitable burden on state and local air agencies that are already
tasked with developing PM2.5 SIPs to meet other Clean Air
Act requirements. PM2.5 SIPs are statutorily required to be
submitted three years from the effective date of PM2.5
nonattainment designations (i.e., April 5, 2008). Unless possible
PM2.5 hot-spot locations are well-defined and based on
developed and verified monitoring data, one commenter argued, it would
be inappropriate at this time to solely rely on PM2.5 SIPs
to implement conformity requirements.
Although two commenters supported the consideration of
PM2.5 hot-spots in the SIP process, they did not agree that
solely relying on that process met Clean Air Act conformity
requirements, for the reasons described above. In addition, these
commenters argued that it is uncertain whether PM2.5 SIPs
will be developed on time, based on past history of SIP submissions.
Finally, some commenters were skeptical regarding whether the SIP
process was the appropriate forum for identifying transportation-
related hot-spots. These commenters believed that there is no legal
obligation under the Clean Air Act to identify project locations of air
quality concern in the SIP. They argued that Option B was deficient
because states may choose not to identify potential hot-spot locations
either because sufficient data is not available or out of concern that
conformity requirements would apply. These commenters also believed
that air agencies had a poor historical record of developing
appropriate PM10 SIPs, and that it was unclear whether EPA
would be willing or able to remedy any PM2.5 SIPs that did
not identify transportation-related PM2.5 hot-spot
locations.
Response
EPA is not finalizing Options 2 and B because these options do not
sufficiently address all of the factors outlined in the December 2004
supplemental proposal and today's final rule:
The Clean Air Act conformity requirements for individual
transportation projects;
The current scientific understanding of PM2.5
hot-spots and public health effects;
The feasibility of implementing options; and
The impact on state and local resources.
EPA has reached this conclusion based on consideration of all of
the information gathered during the rulemaking process.
EPA has already stated that any option that is finalized must
ensure that all federally funded and approved transportation projects
in PM2.5 areas are consistent with Clean Air Act section
176(c)(1)(B). As stated in the December 2004 proposal, to meet this
provision under Option 2, we would need to conclude that it was
necessary to wait until the SIP is developed to understand the
potential air quality impacts of projects in any PM2.5 area.
EPA is unable to support such a conclusion based on our current
scientific understanding of transportation-related PM2.5
hot-spots, as described in C. of this section. Delaying the application
of a PM2.5 hot-spot requirement until SIPs are submitted
would not ensure that new projects of air quality concern do not cause
or contribute to any new PM2.5 violations, worsen any
existing violations, or delay timely attainment prior to SIP
submission.
EPA originally proposed Option B in November 2003 because the
potential for transportation-related PM2.5 hot-spots was not
clearly understood at that time. Rather than not establish any
PM2.5 hot-spot requirement due to the scientific uncertainty
regarding PM2.5 hot-spots, EPA proposed an alternate option
to allow states to identify project locations of concern through the
SIP development process, when information for potential
PM2.5 hot-spots was available. After considering other
scientific information, EPA revisited Option B in its December 2004
supplemental proposal, and provided new options to more broadly
evaluate
[[Page 12476]]
the potential for PM2.5 hot-spots from transportation
sources.
EPA also presented a possible legal argument in the November 2003
and December 2004 proposals that Option B may be consistent with the
purpose of conformity to ensure that federally funded or approved
transportation projects are consistent with the SIP in a given
nonattainment or maintenance area. Section 176(c)(1)(A) requires
``conformity to an implementation plan's purpose of eliminating or
reducing the severity and number of violations of the national ambient
air quality standards and achieving expeditious attainment of such
standards * * *.'' However, EPA has now determined that Clean Air Act
section 176(c)(1)(B) requiring that projects not create or worsen NAAQS
violations is the applicable legal standard for this final rule. This
legal standard could only be met if PM2.5 SIPs would be
developed that identify all potential project locations of air quality
concern for any such project proposed in the transportation plan or TIP
for years to come.
In the December 2004 supplemental proposal, EPA further considered
the feasibility of implementing Option B, as to whether sufficient
information existed to allow a state to specify all susceptible
locations where PM2.5 hot-spots are an air quality concern.
We acknowledged that there may be cases where it is unclear whether
susceptible locations for hot-spots exist, or where there is a
potential for localized PM2.5 violations but it is difficult
to specify which project locations could create hot-spots. EPA also
requested comment on how the proposed options should be implemented in
cases where the latest information available on the potential for
PM2.5 hot-spots is not reflected in the PM2.5
SIP.
EPA concludes there are other reasons to believe that Option B does
not meet Clean Air Act conformity requirements. SIPs are generally
developed to meet regional air quality concerns that are more in
parallel with the regional emissions analysis for plan and TIP
conformity determinations. As such, EPA does not anticipate requiring
PM2.5 SIP modeling to be performed at a level of detail that
would identify all potential transportation hot-spots. There are also
concerns regarding the ability of the SIP to evaluate the local air
quality impacts of all future projects, even those that are not even
identified during and after the SIP's development. And finally, it is
unclear how EPA would enforce a conformity requirement like Option B if
SIPs do not identify hot-spot concerns when appropriate.
Based on all of these considerations and the comments received, EPA
does not believe that it is realistic or practical to expect that
Option B which bases hot-spot analysis requirements solely on the SIP
can be sufficiently implemented to meet statutory requirements in all
PM2.5 areas.
Comment
A few commenters also argued that EPA may not lawfully finalize
options that defer PM2.5 hot-spot analyses until after a SIP
is submitted because such delays are inconsistent with Clean Air Act
requirements. The commenters cited several legal arguments. First,
commenters believed that where a SIP of any kind exists, Clean Air Act
section 176(c)(1) does not require that a state must first have adopted
a SIP for a given standard before the conformity requirements for that
standard apply.
These commenters also argued that the statute requires conformity
to apply as soon as the one-year conformity grace period expires for
areas that have Clean Air Act section 110 SIPs in effect. Unless, EPA
finds that an area lacks a section 110 SIP (which is not the case for
any area), they believed that conformity determinations that meet all
statutory requirements are required for projects in areas that have
previously been designated nonattainment for PM2.5, even if
they were not previously PM10 nonattainment or maintenance
areas.
Furthermore, the commenters stated that the one-year conformity
grace period does not even apply to PM2.5 nonattainment
areas that have been previously designated nonattainment for the
PM10 air quality standards. These commenters believed that
the grace period does not apply if an area is designated nonattainment
for a new or revised standard for the same criteria pollutant, in this
case, the standards for PM2.5 are for the same pollutant as
for PM10 (i.e., particulates). The commenter cited EPA's
1997 rulemaking that promulgated the PM2.5 standards, in
which EPA rejected arguments that PM2.5 was a new pollutant
that required listing under Clean Air Act section 108 prior to adopting
a new standard. The commenter also referred to the DC Circuit decision
that held that PM2.5 has always been regulated as a fraction
of PM10 and that EPA was not required to list
PM2.5 as a new pollutant. American Trucking Assns v. U.S.
EPA, 175 F.3d 1027, 1055 (DC Cir. 1999).
Response
As explained above, EPA agrees that it is not appropriate to defer
project level hot-spot analyses until SIPs are developed, and thus has
not chosen these proposed options in the final rule. EPA also agrees
that all conformity requirements apply one year after an area is newly
designated nonattainment with respect to a given NAAQS if the state has
a general section 110 SIP. To that end, conformity will apply in
PM2.5 nonattainment areas as of April 5, 2006, since all
areas of the country do have section 110 SIPs. PM10
nonattainment areas continue to be subject to conformity requirements
applicable to the PM10 standards, which are covered by this
final rule and our existing conformity regulations.
However, EPA disagrees with the commenter's assertion that the one-
year conformity grace period for newly designated nonattainment areas
does not apply for PM2.5 nonattainment areas that are also
PM10 nonattainment or maintenance areas. The grace period is
clearly applicable by its own terms to an area for one year after it is
first designated nonattainment for a specific standard. The grace
period would apply for all new standards, even if they are different
standards for the same pollutant. Section 176(c)(6) states,
``Notwithstanding paragraph 5, this subsection shall not apply with
respect to an area designated nonattainment under section 107(d)(1)
until 1 year after that area is first designated nonattainment for a
specific national ambient air quality standard. This paragraph only
applies with respect to the national ambient air quality standard for
which an area is newly designated nonattainment and does not affect the
area's requirements with respect to all other national ambient air
quality standards for which the area is designated nonattainment or has
been redesignated from nonattainment to attainment with a maintenance
plan pursuant to section 175A (including any pre-existing national
ambient air quality standard for a pollutant for which a new or revised
standard has been issued).'' (Emphasis added). The statute thus
expressly differentiates between new and existing standards for a given
pollutant, and specifically provides the grace period for new standards
that may apply for the same pollutant. EPA does not believe there is
any ambiguity in the applicability of the grace period under the
statute. EPA acknowledges that PM2.5 and PM10 are
both standards applicable to particulate matter, but concludes that
given the express language of the statutory grace period there is no
question that it applies to newly designated PM2.5
nonattainment areas. In addition, the grace period for PM2.5
will terminate in April 2006, so
[[Page 12477]]
any concerns about this issue will become moot at that point.
Comment
EPA also requested comment on how Option B should be implemented in
cases where the latest information available on the potential of
PM2.5 hot-spots is not reflected in the SIP (December 13,
2004; 69 FR 72148). Such cases would result if information becomes
available outside the SIP process that indicates that there may be
potential transportation-related hot-spot locations. Some commenters
were concerned that it may not be possible to identify all types of
projects or locations that could be an air quality concern in the time
addressed by the SIP or in future years. New projects of air quality
concern that are not addressed by a SIP, the commenter argued, should
require a PM2.5 hot-spot analyses to protect public health.
Response
EPA considered the concerns raised by commenters. In developing the
final rule, EPA considered the ability of all PM2.5 SIPs to
identify every project of air quality concern in the timeframe of the
SIP and future years, and how such projects at locations not identified
in the SIP could meet Clean Air Act conformity requirements without a
PM2.5 hot-spot analysis. EPA did not finalize Option B in
the final rule, since the Agency concluded that it is unreasonable to
believe that all projects of air quality concern would be identified by
the SIP and therefore required to comply with the conformity provisions
of the Clean Air Act.
Comment
Some commenters were concerned that the final rule use state and
local resources effectively. These commenters, however, differed in
their reasons for supporting various options. First, some commenters
were concerned that finalizing requirements that required
PM2.5 hot-spot analyses for all projects (Options 3 and C)
could result in an inefficient use of state and local resources that
could be used for SIP development, and additional monitoring of the
potential and location for PM2.5 hot-spots. A few commenters
acknowledged that many agencies are also addressing conformity for the
8-hour ozone standard, which takes away resources for PM2.5.
Other commenters stated that agencies will not have PM2.5
data, such as monitoring data and inventory estimates, until SIPs are
developed or maybe not at all. These commenters stated that the
majority of PM2.5 monitors have been in place for less than
five years and many do not collect speciated data, which they believed
is critical to pinpointing likely sources of PM2.5. Other
commenters supported not requiring any PM2.5 hot-spot
analyses (Options 1 and A) or delaying the final rule altogether, which
would allow state and local agencies to focus resources on other
planning and SIP efforts.
Other commenters believed that a more effective use of resources
would be to identify PM2.5 problem locations during the SIP
development process (through Options 2 and B), which would allow state
and local agencies to determine if and where hot-spot analyses would
apply. The SIP process allows states and regions to acquire necessary
data and research which allows for more conclusive information. All of
these commenters believed that focusing PM2.5 hot-spot
requirements on PM2.5 air quality problem areas and
potential sources that matter would better use limited state and local
resources.
However, other commenters believed that the options involving no
hot-spot analyses or tying hot-spot analyses to SIPs (Options 1, 2, A,
and B) would not protect public health since these options would
eliminate or narrow any requirement to perform PM2.5 hot-
spot analyses. Furthermore, some commenters believed that options that
were consistent with the existing PM10 hot-spot requirements
(Options 3 and C) would be easier to implement for areas with previous
CO or PM10 hot-spot analysis experience. Two commenters
further stated that these options would be more consistent with how
their state is already considering PM2.5 localized impacts
under state environmental requirements.
Response
EPA believes that the final rule will ensure that state and local
resources are used in an efficient manner, since hot-spot analyses will
only be required for projects of air quality concern. Eliminating
qualitative analyses for projects that are not an air quality concern
based on EPA's conclusion that such projects will not create or worsen
air quality violations will significantly reduce any challenges in
implementing this final rule, since the majority of projects that are
usually proposed are not projects of air quality concern. Therefore,
most project-level conformity determinations will not contain a hot-
spot analysis of any kind, since most projects are not in danger of
impacting the PM2.5 standards.
As noted above, EPA concludes that requirements keyed only to SIP
development may not assure conformity of all projects and thus believes
it cannot address the resource issue through such options. However, EPA
believes that requiring analyses only for projects of air quality
concern will both ensure that all projects meet the statutory
requirements and provide sufficient resources to conduct all necessary
analyses.
EPA agrees that there are start-up issues that some state and local
agencies will need to overcome, especially areas without previous
experience in implementing a hot-spot requirement in CO or
PM10 areas. However, EPA and DOT's qualitative hot-spot
guidance, and our future quantitative hot-spot modeling guidance for
projects of air quality concern will assist in the implementation of
this final rule. As always, EPA will continue to, in cooperation with
DOT, work to assist state and local agencies in implementing the final
rule's requirements.
Finally, EPA would like to address the comment that further
PM2.5 monitoring data needs to be gathered before applying a
hot-spot requirement. EPA disagrees with this comment. There is
sufficient evidence that projects of air quality concern can affect
local PM2.5 concentrations, and therefore, waiting for
additional monitoring data used in SIP development for every
PM2.5 area is not necessary to meet statutory conformity
requirements now. Also, EPA believes that PM2.5 hot-spot
analyses can be completed for projects of air quality concern even if
PM2.5 monitoring data is not available for a given project's
location. EPA will clarify in its future quantitative hot-spot modeling
guidance how monitoring data of current and past PM2.5 air
quality can be used in estimating future PM2.5 air quality
concentrations.
Comment
Other commenters were concerned that EPA has not yet issued
PM2.5 quantitative hot-spot analysis guidance and methods.
Some commenters supported doing little or no hot-spot analyses, in part
because they asserted that credible tools are not currently available
and quantitative analyses would not be required until guidance were
available, possibly just before the April 5, 2008 PM2.5 SIP
deadline. However, other commenters believed that all of the proposed
options were insufficient since they would delay quantitative
PM2.5 hot-spot analyses for years, and in the interim, there
would be no consideration of the public health impacts of projects
currently under development.
[[Page 12478]]
Finally, some commenters believed that EPA needed to issue
qualitative PM2.5 hot-spot guidance, since the existing
PM10 qualitative hot-spot guidance was not applicable to
PM2.5 hot-spot analyses. These commenters noted that
PM2.5 is chemically different than PM10 and most
of the PM2.5 areas are violating the annual PM2.5
standard, whereas most PM10 areas were constrained by the
24-hour PM10 standard.
Response
Today's final rule extends Sec. 93.123(b)(4) of the existing
conformity rule's PM10 hot-spot provisions to
PM2.5 areas. This provision now requires that quantitative
PM2.5 hot-spot analyses be performed once EPA announces in
the Federal Register that quantitative analysis requirements are in
effect. EPA has not yet made such an announcement because the Agency
has not approved appropriate motor vehicle emissions factor models for
localized analyses, and EPA is in the initial stages of developing
quantitative PM2.5 and PM10 modeling guidance to
apply existing air quality dispersion models and future emissions
factor models to implement today's rule. Please see Section VI. of
today's final rule for further information on the timing of
quantitative hot-spot requirements.
EPA agrees that the existing PM10 qualitative hot-spot
guidance is not applicable to PM2.5 analyses. As a result,
EPA and DOT have developed qualitative PM2.5 hot-spot
guidance for immediate use for conformity determinations for projects
of air quality concern, which is available at the Web site listed in
Section I.B.2. of today's action.
Comment
Some commenters believed that EPA could improve on its proposed
options in the final rule. Some examples of commenters' suggestions are
as follows:
Clarifying or expanding the list of projects for which
quantitative analyses are to be conducted;
Adopting a screening method or emissions threshold that
would help define what projects require quantitative hot-spot analyses;
and,
Allowing both the MPO and state or local air agency to
have the opportunity to identify further projects that should undergo
quantitative review.
The screening procedure is necessary, one commenter believed, to
avoid unnecessary effort associated with PM2.5 hot-spot
analyses and project-level conformity determinations. Still another
commenter believed that any hot-spot requirement should be limited in
geographic scope to those parts of the nonattainment area where
monitors indicate that PM2.5 levels are above a standard or
forecasts indicate they are projected to reach such levels.
Response
EPA has responded to similar comments in other sections of today's
action. The final rule addresses many of the suggestions submitted by
commenters by further defining what projects need hot-spot analyses to
meet statutory requirements and conserve resources. See Section V. for
further information on the regulatory criteria for quantitative hot-
spot analyses. The elimination of qualitative hot-spot analyses for
many projects in part addresses the motivation for a screening method
or emissions threshold--i.e., to focus more rigorous quantitative
analyses on projects of air quality concern.
EPA also agrees that the air quality circumstances can be
considered in further narrowing the focus of quantitative hot-spot
analyses. See Section VII. of this notice for further discussion on how
such information could be considered for future categorical hot-spot
findings.
Comment
EPA also proposed Option 4 and 5 for the time period before
PM2.5 SIPs are submitted. Two commenters preferred Option 4
which allowed for a finding that hot-spots were not of air quality
concern to any other pre-SIP option. One of these commenters preferred
Option 4 because it offered the best combination of conformity review
continuity and flexibility in determining which projects required
PM2.5 hot-spot analyses. The commenter argued that its state
needed to have PM2.5 hot-spot analyses prior to
PM2.5 SIP submission because many transportation projects
would be developed during this time period that could negatively impact
air quality. Allowing for a ``grace period'' before project impacts are
considered prior to SIP submission could increase hot-spot emissions,
the commenter argued. All of these commenters, however, agreed that
Option 4 was consistent with past practice for applying PM10 hot-spot
requirements and meeting statutory requirements while providing some
relief when EPA and the state air agency has information that
PM2.5 hot-spots are not a concern in a given area. On the
other hand, other commenters did not support Option 4 for the same
reasons that they did not support Option 3, which are described in a
previous summary.
Some commenters supported Option 5 because they believed that this
option reflected the current state of scientific understanding, used
resources efficiently, addressed the learning curve for areas without
PM experience, and relied on future development of PM2.5
SIPs. Option 5, commenters argued, is appropriate because it provided
an opportunity for each PM2.5 area to tailor its hot-spot
requirements when information exists prior to PM2.5 SIP
submission. However, other commenters stated specific opposition to
Option 5; these commenters saw this option as a ``loophole'' for not
protecting PM2.5 air quality, since it would presume that
PM2.5 hot-spot analyses were not needed unless a finding was
made. These commenters expressed doubt that such findings would be done
at all in any PM2.5 area.
EPA also requested comment on whether state and local air agencies
will have the necessary data and other information to make the findings
described for Options 4 and 5. Comments were mixed on this point. For
example, three commenters who supported Option 5 believed that there
would not be sufficient information regarding PM2.5 hot-spot
potential prior to the development of a PM2.5 SIP in a given
area. Other commenters who supported either Option 3 or 4 believed that
there would be information to support making findings based on either
existing air quality monitoring data, current state screening
thresholds, or other techniques for what projects need PM2.5
hot-spot analyses.
Response
EPA originally proposed Options 4 and 5 because of what was seen at
the time as the evolving nature of our understanding of
PM2.5 air quality issues. These options would rely on the
proposed interpretation stated in the November 2003 proposal (68 FR
62713): Clean Air Act section 176(c)(1)(B) requirements could be met as
long as explicit reviews are performed at locations identified in the
PM2.5 SIP as susceptible to PM2.5 hot-spots. Both
Options 4 and 5 were intended to allow EPA and states to target hot-
spot requirements in PM2.5 nonattainment areas where hot-
spots may or may not be an air quality concern.
However, EPA is not finalizing these options either because they do
not meet statutory requirements as explained above, or the final rule
already provides the flexibility intended by the originally proposed
options. In addition, EPA was not convinced based on the comments
received that either option was feasible
[[Page 12479]]
in identifying all projects of air quality concern.
Comment
There were a few commenters who believed that PM2.5 hot-
spot analyses would not be an efficient use of resources because of
their individual PM2.5 nonattainment area's circumstances.
Several commenters stated that it is inefficient to direct resources to
PM2.5 hot-spot analyses when transportation may not be a
significant contributor to the PM2.5 air quality problem in
a given area, such as smaller areas or cities dominated by other PM
sources (e.g., wood smoke from residential stoves, fireplaces or other
forms of residential heating). Another commenter pointed out that the
only exceedance of the 24-hour PM2.5 standard in his area
was attributable to a fireworks display. This same commenter believed
that transportation projects would not impact the annual
PM2.5 standard, which the commenter stated was more relevant
in most areas, or jeopardize the 24-hour standard.
Another commenter believed that his state needed flexibility to
consider through the SIP process and consultation the hot-spot concerns
of its remote communities. Another commenter stated that hot-spot
analyses for projects in non-urbanized areas are never justified
because such projects lack the size and density to allow other modes to
effectively serve travel needs. A failed conformity test in these areas
would simply leave real highway problems unresolved, the commenter
hypothesized.
One commenter stated that local agencies, including the MPO, have
little or no ability to implement or require control measures or make
project design changes that could impact PM2.5 at the
project level. Also, the commenter believed transportation agencies
have no control over existing Federal diesel fuel and off-road
standards.
Response
EPA believes that today's final rule protects air quality and
public health in PM2.5 areas and provide an option for areas
where on-road motor vehicles are an insignificant regional and local
contributor to an area's particulate matter problem. Today's final rule
targets PM2.5 hot-spot analyses on the types of projects
that are likely to cause or contribute to new or worsened
PM2.5 violations. Specifically, the rule targets hot-spot
analyses on those types of projects that result in significant
increases in diesel vehicle traffic (and therefore emissions), which is
likely to be a small subset of transportation projects in most areas.
In addition, the final rule's minor addition to 40 CFR 93.109(k) will
allow PM2.5 areas with insignificant regional emissions to
also demonstrate, when appropriate, that individual transportation
projects will not create new localized violations or make existing
violations worse.
For example, isolated rural PM2.5 areas where other
types of sources such as wood stoves or fireplaces are dominant at the
regional level would only be required to perform hot-spot analyses for
the types of projects described in Sec. 93.123(b) until such time as a
PM2.5 SIP is submitted which demonstrates that regional on-
road motor vehicle PM2.5 emissions are insignificant and
will not cause new or worsen existing local violations. EPA also notes
that the impact of the final rule may be minimal in such smaller areas,
since areas that are dominated by other sources do not typically have
complex transportation systems needing new project approvals prior to
PM2.5 SIP submission.\5\
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\5\ April 2003, Transportation/Air Quality Issues in Rural
Areas, FHWA and Dye Management Group; and October 2003, Rural
Conformity: A Survey of Practice, NCHRP Project 08-36, Task 28,
prepared by ICF Consulting and Sarah J. Siwek and Associates.
---------------------------------------------------------------------------
After EPA makes an adequacy finding (or approves) a SIP that
demonstrates insignificant regional and local emissions,
PM2.5 hot-spot analyses, would no longer be required in that
area. EPA discussed its process for evaluating SIPs that claim
insignificant regional and localized emissions in the June 30, 2003
proposal (68 FR 38984) and July 1, 2004 final rule (69 FR 40061-40063).
EPA Regions and states can work together to appropriately expedite the
processing of such SIPs through such methods as parallel processing or
direct final rulemaking.
With regard to the concerns expressed about the appropriateness of
hot-spot analyses in remote or non-urbanized areas, EPA would like to
point out that today's final rule limits the need for PM2.5
hot-spot analyses to only those projects which significantly increase
diesel vehicle traffic and emissions. As noted above, this is likely to
be only a small percentage of projects in remote or non-urbanized
areas.
With regard to the comment concerning the ability of MPOs to
influence the design of individual projects and the ability of
transportation agencies to have control over Federal diesel fuel
standards and non-road equipment emissions standards, EPA would like to
point out that in most cases hot-spot analyses are completed by project
sponsors during the project's environmental review phase. Project
sponsors are often state departments of transportation which do have
the ability to modify project designs or take other steps to mitigate
emissions from the individual project. While it is true that state and
local transportation agencies cannot influence national diesel fuel
standards, the state and local agencies can be assured that EPA is
implementing these standards as planned and that the diesel sulfur
standard and heavy duty engine rule will be phased in beginning in
2007.
With regard to the comment on national non-road emissions
standards, the commenter is correct that state and local transportation
agencies do not have control over such standards. EPA notes that non-
road emissions are considered to the extent that they are expected to
impact background concentrations in PM2.5 hot-spot analyses
of on-road highway and transit projects of air quality concern. EPA's
future modeling guidance will address how background concentrations are
to be calculated for quantitative hot-spot analyses.
Comment
A few commenters argued that EPA's standards for low sulfur diesel
fuels in 2006 and heavy-duty engines in 2007 will negate any need for
PM2.5 hot-spot analyses. The commenters stated that EPA
should analyze the impacts of these Federal standards on local air
quality before PM2.5 hot-spot analysis requirements are
finalized.
Response
In the December 2004 supplemental proposal (69 FR 72147), EPA
committed to consider the impact of the new diesel fuel and engine
standards (January 18, 2001, 66 FR 5002) in the development of the
final rule. Such standards are expected to significantly impact the
amount of particulate emissions that will be emitted by new diesel
vehicles, and consequently may impact the potential for
PM2.5 transportation-related hot-spots. EPA considered the
time frame over which these vehicle standards would phase in. According
to the latest Vehicle Inventory and Use Survey from the Census
Bureau\6\, in 2002, vehicles three years of age and younger constituted
only 32.3% of U.S. truck fleet. If the same age distribution holds for
2010, only about one third of trucks on the road will meet the heavy-
duty engine emissions standards for 2007 and 2010. In this scenario,
most trucks on the road will still be capable
[[Page 12480]]
of producing elevated concentrations of PM2.5. As such,
EPA's new emission standards do not eliminate the need for considering
PM2.5 hot-spots from transportation projects involving a
significant number of diesel vehicles. However, consideration of EPA's
diesel fuel and engine standards' impact on background air quality will
be addressed as part of EPA's future quantitative modeling guidance and
possibly in modeling used to support categorical hot-spot findings as
described in Section VII. of today's notice.
---------------------------------------------------------------------------
\6\ This information can be found at: http://www.census.gov/svsd/www/vius/products.html
.
---------------------------------------------------------------------------
Comment
One commenter mentioned that EPA has never required hot-spot
analyses prior to SIP development for any other pollutants. The
commenter stated that significant CO and PM10 conformity
requirements were not effective until after inventory and air quality
models were developed and tested, and SIPs were submitted. Agencies
could build on SIP submissions and technical analyses to perform hot-
spot analyses. For PM2.5, the commenter was concerned that
planning agencies will not have this technical information nor the
necessary modeling tools and experience.
Response
EPA disagrees with this comment. Hot-spot analyses have in the past
been required in areas before SIPs were developed. In fact, Clean Air
Act section 176(c)(3)(B)(ii) requires that before CO SIPs were
developed, projects could only be found to conform if they eliminated
violations or reduced the number or severity of violations. As a
result, hot-spot modeling was required to determine whether or not
violations were being eliminated or the severity or number of
violations were being reduced.
As part of today's rulemaking, EPA believes that scientific
evidence supports the conclusion that certain types of projects,
particularly those involving significant increases in diesel vehicle
traffic and emissions, could cause new violations or worsen existing
violations. Therefore, EPA could not finalize a regulation that solely
relied on the SIP process to identify locations or types of projects
that could cause new violations or worsen existing ones with no hot-
spot analyses being required before the submission of a SIP or no
analyses being required if the SIP did not address this issue. The
final rule does allow for the SIP to identify additional projects or
project locations of concern; however, in the face of available
scientific evidence concerning projects which could adversely effect
localized air quality, EPA is required to establish hot-spot analysis
requirements for the types of projects identified in Sec.
93.123(b)(1).
As discussed in this preamble, initially areas will be required to
carry out qualitative analyses until such time as EPA announces in the
Federal Register that quantitative analysis requirements are in effect.
The quantitative requirements will not be put into effect until after
EPA releases appropriate modeling guidance and the MOVES motor vehicle
emission factor model is released, as described further in Section V.
of today's action. EPA and DOT have developed guidance on how to
complete qualitative hot-spot analyses during the period before
quantitative analyses requirements are put into effect. This guidance
will be posted on the website provided in Section I.B.2. of today's
notice. Therefore, conformity implementers will have the tools and
information necessary in order to carry out hot-spot analyses.
Comment
Some commenters also noted that EPA acknowledged in its proposals
that the science surrounding the new PM2.5 standards is
ongoing. These commenters cited preamble language from the November
2003 proposal that air quality data indicates that PM2.5 is
a regional pollutant like ozone, and therefore PM2.5 hot-
spot analyses should not be required until there is scientific evidence
of localized concerns, especially in areas where exceedances are
dominated by sources emitting secondary rather than direct
PM2.5 emissions.
Response
EPA disagrees with this comment. As noted in C. of this section,
EPA believes that directly emitted PM2.5 from transportation
sources can be both a regional and local air quality concern. Based on
an evaluation of more recent studies, EPA has concluded that certain
types of projects could be of local air quality concern and therefore
has finalized the rule to require hot-spot analyses for all such
projects at all times.
Comment
One commenter believed that future changes to the current
PM2.5 air quality standards should be considered, especially
if EPA selects any option involving identifying hot-spot concerns
through the SIP. The commenter believed that future SIPs should be
completed with respect to more protective PM2.5 standards.
This commenter argued that more stringent PM2.5 standards
could significantly increase the potential for transportation projects
to cause or contribute to PM2.5 violations.
Other commenters noted that existing PM2.5 standards
were in process of being revised, or that the public health benefits of
controlling hot-spots indicate that EPA consider more health-protective
standards.
Response
EPA did not finalize hot-spot analysis requirements that rely
solely on an area's SIP to identify the types of projects or project
locations that require a hot-spot analysis. However, EPA does not
believe it is appropriate to address the remainder of these comments
concerning the pending review of the current PM2.5 standards
at this time.
The commenters are correct that EPA is in the process of reviewing
the current PM2.5 air quality standards. As required by
consent decree, EPA proposed revisions to the current PM2.5
air quality standards on January 17, 2006 (71 FR 2620). EPA is required
to finalize this rulemaking by September 27, 2006. When reviewing an
air quality standard, EPA considers available health effects data. As
such EPA is considering any available health information related to
localized elevated PM2.5 concentrations.
EPA will consider the need to revise the conformity rule if
appropriate after any changes to the PM2.5 standards are
finalized. However, today's final rule protects air quality and public
health in current PM2.5 nonattainment areas according to the
current standards. This is accomplished by ensuring that projects that
are likely to cause new or worsen existing violations with respect to
the currently applicable standards undergo a hot-spot analysis before a
project-level conformity determination is made.
Comment
EPA invited commenters to submit studies or data regarding
PM2.5 hot-spots during the comment period for the December
2004 supplemental proposal. Comments varied regarding whether or not
transportation projects could impact the level and forms of the current
PM2.5 standards at the local level.
Response
EPA reviewed the information submitted by these commenters along
with a large number of other studies as discussed above. Based on a
review of all of the data, EPA concluded that certain types of
individual transportation projects, particularly
[[Page 12481]]
those which significantly increase diesel vehicle traffic and
emissions, could lead to new violations or could worsen existing
violations of either the current annual or 24-hour form of the
PM2.5 standards. Particularly relevant are the Indale and
Burr studies cited in C. of this section. The Indale study showed that
facilities where diesel vehicles idle for prolonged periods, such as
truck stops or freight terminals, can cause elevated PM2.5
concentrations in the vicinity of the facility.
The Burr study showed that individual highway projects can also
result in significant changes in PM2.5. Specifically, in the
Burr study, a highway bypass opened which removed traffic from a
roadway that runs through the affected town. After the bypass opened,
PM2.5 concentrations decreased in the town near the roadway
where traffic was removed, thereby documenting the impact that traffic
had been having on local air quality. Based on this and other
information in the docket for the final rule, EPA concluded that
certain projects could cause air quality concerns, and therefore, a
hot-spot analysis is required for these projects.
E. Responses to Other Comments
EPA received several comments regarding other issues related to its
statutory interpretations supporting proposed options. Please note that
some of these comments were related to both PM2.5 and
PM10 hot-spot requirements, and for the sake of
completeness, EPA is including the entire comment and response in
Section III.
Comment
EPA noted in its previous proposals that Clean Air Act section
176(c)(3)(B)(ii) only specifically requires hot-spot analyses for
projects in CO nonattainment areas, and therefore, EPA has discretion
to decide if hot-spot analyses are necessary to protect air quality in
PM2.5 and PM10 nonattainment and maintenance
areas. EPA received comments concerning this interpretation of the
Agency's statutory authority during the comment period following the
November 2003 proposal and invited further comments in the December
2004 supplemental proposal.
EPA received several comments on this particular legal argument.
Four commenters believed that EPA demonstrated in the December 2004
supplemental proposal that all proposed options complied with Clean Air
Act requirements and that EPA has discretion in applying PM hot-spot
requirements. These commenters argued that the Clean Air Act does not
specifically require PM2.5 or PM10 hot-spot
requirements for any projects. One of these commenters further
clarified that EPA has the discretion to specify the form of analyses,
based on availability of information, feasibility of analysis methods,
and cost and benefit of performing analyses.
However, other commenters disagreed with this interpretation, and
believed that the Clean Air Act does not provide EPA the discretion to
exempt federally funded or approved projects from project-level
conformity determinations, including PM2.5 and
PM10 hot-spot analyses. Rather than being superceded by
section 176(c)(3)(B)(ii) which establishes a special requirement to
reduce CO violations, applicable only to CO areas before a SIP is
approved, these commenters believed that Clean Air Act section
176(c)(1)(A) and (B) take precedence. Section 176(c)(1)(A) and (B)
apply for all pollutants for which an area is designated nonattainment
pursuant to Clean Air Act section 107(d), and ``Conformity to an
implementation plan'' means that the activity must satisfy these
statutory requirements ``that such activities will not cause or
contribute to any new violation of any standard in any area,''
``increase the frequency or severity of any existing violation of any
standard in any area'' or ``delay timely attainment.'' Since EPA does
not have discretion to waive these statutory requirements, these
commenters believed that PM2.5 and PM10 hot-spot
analyses should be required, consistent with the statute, for ``any
activity'' before it may be approved or funded by a Federal agency.
Response
EPA agrees that the Clean Air Act sets the legal standard for what
projects have to meet before receiving Federal funding or approval
(i.e., that they cannot create or worsen violations of any standard or
delay attainment). EPA also agrees that Clean Air Act 176(c)(1)(A) and
(B) set this standard, rather than 176(c)(3)(B)(ii). However, EPA also
believes it has discretion to not require analyses of localized impacts
of projects if we have scientific evidence that PM2.5 and
PM10 hot-spots are not a concern with respect to the
standards. That is, even under the statutory standards of section
176(c)(1)(A) and (B), if EPA determines through rulemaking that certain
types of projects will not cause or contribute to violations of any
standard or delay attainment, EPA concludes that we have the authority
to determine through the conformity rule that no additional analysis
would be necessary to meet section 176(c)(1)(A) and (B). Since section
176(c)(3)(B)(ii) does not affirmatively require emissions reductions in
PM2.5 or PM10 areas, EPA believes that conformity
determinations would satisfy section 176(c)(1)(A) and (B) without a
hot-spot analysis if EPA has demonstrated that specific types of
projects will not adversely affect air quality standards. EPA certainly
did not mean to imply in its proposals that we could arbitrarily
disregard consideration of PM2.5 and PM10
localized emissions impacts even if such impacts could impact the air
quality standards.
EPA agrees that we do not have authority to waive the requirements
of Clean Air Act section 176(c)(1)(A) and (B), rather we conclude that
those requirements can be met in certain circumstances without
additional hot-spot analyses. Nevertheless, since we have information
that PM2.5 and PM10 hot-spots are a concern for
certain projects, we are interpreting the statute to apply a specific
hot-spot requirement to those projects of air quality concern.
Comment
Other commenters believed that EPA should revise Sec. 93.116(a) of
the conformity rule so that proposed transportation projects can meet
all Clean Air Act conformity requirements. These commenters argued that
EPA had not reflected in the proposed regulatory text all of the
requirements of Clean Air Act section 176(c)(1)(A) and (B)(i)(iii) that
transportation activities must contribute to reducing violations and
providing for expeditious attainment. According to commenters, the
Clean Air Act establishes an affirmative responsibility on
transportation projects to help attain the standards, and as a result,
the conformity rule should be clarified to prohibit conformity
determinations for projects that cause or contribute to new or
increased violations after a statutory attainment deadline, or that
fail to eliminate transportation-related violations by an attainment
date.
The commenters provided an example to illustrate their comments. In
this example, a CO hot-spot analysis determined that the number of
current CO violations would be eliminated by 2015, but that continued
growth in vehicle miles traveled (VMT) thereafter would cause at least
one new violation by 2020. The concentration for the violating receptor
represented a decrease in the concentration predicted at the same
receptor under the no-build scenario. In the commenters' opinion, the
fact that the violation would be less than current violations, or less
than would be expected under the no-build scenario, is not enough to
meet statutory
[[Page 12482]]
requirements after an area has attained, or after the attainment date.
Response
EPA disagrees with commenters and believes that Sec. 93.116(a) of
the conformity rule meets all statutory requirements. Section
176(c)(1)(A) requires ``conformity to an implementation plan's purpose
of eliminating or reducing the severity and number of violations of the
national ambient air quality standards and achieving expeditious
attainment of such standards.'' In general, EPA believes that this
statutory criterion is met if a transportation project is consistent
with the emissions projections and control measures in the SIP.
The SIP process is the venue where state and local agencies decide
on SIP control strategies for attaining the PM2.5 and
PM10 standards. Section 93.116(a) of the conformity rule
allows all projects in PM2.5 and PM10 areas to
meet section 176(c)(1)(A) because it requires all non-exempt projects
to demonstrate that ``no new local violations will be created and the
severity or number of existing violations will not be increased as a
result of the project.'' This is accomplished by requiring
PM2.5 and PM10 hot-spot analyses for projects of
air quality concern, with the presumption that all other projects meet
this requirement.
EPA has previously addressed a similar type of comment regarding
the applicability of section 176(c)(1)(A) and commenters' belief that
this provision requires transportation activities to specifically
contribute emissions reductions towards attainment. Although it is true
that transportation projects need to be consistent with a SIP's purpose
of reducing violations, this can be accomplished by simply not
increasing violations; EPA concludes that the statute does not require
an individual transportation project to reduce emissions by itself.
Individual transportation projects are not required to reduce all
transportation-related emissions; they need only prevent worsening air
quality concentrations. So long as the air quality standards are not
impacted by a new project, the project will meet all applicable
statutory requirements by not causing or contributing to new
violations, not increasing the severity of existing violations, not
interfering with timely attainment and interim progress, and being
consistent with the overall purpose of the SIP to eliminate all
violations.
In the July 1, 2004 final rule, EPA disagreed with this similar
comment (69 FR 40031). Clean Air Act section 176(c)(3)(A)(iii) is the
only provision that requires emissions reductions for transportation
plans and TIPs in higher classifications of ozone and CO nonattainment
areas prior to having an adequate or approved SIP. This provision does
not apply in the case of PM2.5 and PM10
nonattainment and maintenance areas. EPA has already successfully
defended this legal interpretation in EDF v. EPA, 82 F.3d 451 (DC Cir.
1996).
Furthermore, commenters are incorrect in interpreting section
176(c)(1)(B)(i) and (iii) as prohibiting project approvals in cases
where new violations are predicted for a year beyond an attainment year
and a project's implementation is resulting in lower PM2.5
and PM10 concentrations. The commenters indicated that in
this context, ``any new violation'' should be construed to apply to a
violation that is anticipated in the period after the area attains the
standards.
Sections 176(c)(1)(A) and (B) should not be interpreted that ``any
new violation'' should be construed to imply that an individual
transportation project must remedy any violation that is projected to
occur after the attainment date as a result of any emissions sources.
On the contrary, these provisions only require air quality to not be
worsened by an individual project than what would have otherwise
occurred. Where the project itself is improving air quality
concentrations and thus violations from what they would have been
without the project, EPA concludes that the project is consistent with
the SIP and meets the applicable conformity requirements.
As a result, EPA believes that conformity in the example offered by
the commenter meets statutory requirements. If the project's
implementation resulted in lower future concentrations than would have
otherwise occurred without the project, then statutory conformity
requirements are met. In fact, such a situation would result in more
than what is required under the statute, since such a project has
actually reduced future violations from what they would have been
absent the project.
Comment
Two commenters believed that transportation plans and TIPs cannot
be found to conform if they include projects that do not meet Clean Air
Act requirements. The commenters stated that the conformity rule does
not explain how MPOs will implement the Clean Air Act requirement to
not ``approv[e] any project, program or plan which does not conform.''
The commenters believed that if projects are found not to conform after
the TIP has been approved, there should be a requirement to reconsider
the TIP so that there is an opportunity to revisit the regional
allocation of available resources. If this opportunity is not provided,
commenters were concerned that resources may not be available to remedy
or mitigate the impacts of a particular project's conformity
determination.
Response
EPA believes that MPOs and project sponsors are already fulfilling
the Clean Air Act requirement to not ``approv[e] any project, program
or plan which does not conform.'' Furthermore, existing transportation
planning and conformity requirements already provide the opportunity to
reconsider the allocation of resources in the event that a project
cannot meet project-level conformity requirements.
Section 93.122(a)(1) of the conformity rule requires that regional
emissions analyses, which serve as the basis for determining whether or
not an area conforms to an approved or adequate SIP motor vehicle
emissions budget or passes an interim emissions test before budgets are
available, include all regionally significant projects expected in the
nonattainment or maintenance area and account for the VMT from non-
regionally significant projects that are not explicitly modeled.
Clearly, not all of the expected projects planned for an area would
have received a project-level conformity determination prior to the
time that they are included in the regional emissions analysis for a
nonattainment or maintenance area because project-level determinations
are not made until a project completes the required National
Environmental Policy Act (NEPA) process.
If during the NEPA process a project initially does not meet
project-level hot-spot requirements, there would be two possible
outcomes. In most cases the project sponsor would attempt to mitigate
project emissions that are affecting concentrations either through
changes in the project's design or through implementation of other
measures that reduce concentrations within the geographic area impacted
by the project. If a project sponsor was not able to mitigate the
impacts of such project, the project could not move forward because a
project-level conformity determination could not be made. Since
transportation plans and TIPs are updated on a regular basis, the MPO
would be able to reallocate the
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funding from the project to other projects at that time.
Comment
One commenter recommended that EPA not finalize any
PM2.5 or PM10 hot-spot requirements because doing
so would be contrary to what Congress originally intended. This
commenter argued that Congress enacted the 1990 Clean Air Act
Amendments to focus on the emissions impacts of long-range
transportation plans and TIPs. The commenter stated that the key
conformity test is whether emissions from the long-range transportation
plan or TIP, in their entirety, stay within the SIP's motor vehicle
emissions budget, and the impact of any single project on plan/TIP
area-wide emissions could be minimal. Meeting the SIP's budget and
attaining the air quality standards on a county and regional level, the
commenter argued, is the primary mechanism for an area reaching
attainment, rather than a momentary increase in the standards at a
specific project's location. The commenter believed that projects can
be found to conform without PM hot-spot analyses as long as such
projects are part of a conforming plan and TIP. The risk of possible
legal challenges and delays in streamlining project development would
not be a productive use of resources, the commenter also argued.
Response
EPA disagrees with these comments. Clean Air Act section 176(c)(2)
does require that in order for a project to be found to conform it must
come from a conforming plan and TIP and/or its emissions must have been
included in the current conformity determination. However, this is not
the sole statutory requirement that must be satisfied in order for a
project-level conformity determination to be made. Transportation
projects must also satisfy the requirements of section 176(c)(1)(B).
Section 176(c)(1) is written very broadly to apply to any Federal
activity, and specifically applies to any project as well as any
transportation plan or TIP.
Specifically, projects can only be found to conform if it can be
shown that they do not cause or contribute to new violations, increase
the frequency or severity of existing violations, or delay timely
attainment of the relevant air quality standard. EPA has determined
that certain types of transportation projects may result in localized
PM2.5 violations. Therefore, in order to satisfy the
requirements of Clean Air Act section 176(c)(1)(B), a hot-spot analysis
is required for such projects in order to ensure that new violations
are not created, existing violations are not worsened, and timely
attainment is not delayed. A regional emissions analysis for an area's
entire planned transportation system is not sufficient to ensure that
individual projects meet the requirements of section 176(c)(1)(B) where
projects could have a localized air quality impact.
EPA agrees that regional emissions analyses are critical for
ensuring that emissions from an area's planned transportation system
are consistent with emissions estimates contained in the area's SIP, so
that the area may meet relevant regional air quality goals such as
attainment or reasonable further progress. However, based on a complete
reading of Clean Air Act section 176(c), it is clear that Congress
intended transportation conformity to apply to transportation projects
as well as plans and TIPs. Thus, hot-spot analyses are required as well
where localized impacts could occur.
Finally, the commenter states that the risk of possible legal
challenges and delays in streamlining project development would not be
a productive use of resources. But EPA cannot ignore Clean Air Act
conformity requirements simply because there is a risk that some
projects may be delayed due to potential lawsuits. Clean Air Act
section 176(c)(1)(B) clearly requires that it must be shown that
individual projects do not adversely impact air quality. In this final
rule, EPA addresses both the Clean Air Act's requirements for project-
level conformity determinations and concerns over limited resources. To
that end, the final rule requires hot-spot analyses for only those
projects that have the likelihood of adversely impacting air quality
rather than requiring an analysis for each non-exempt project,
including those that EPA concludes would not represent an air quality
concern.
Comment
A few commenters urged EPA to consider information that they had
previously submitted on the costs of performing conformity analyses for
the new standards in response to EPA's proposed November 25, 2003,
Information Collection Request (ICR) and final January 5, 2004, ICR (69
FR 336).
Response
EPA believes that conformity procedures must first meet the Clean
Air Act requirements contained in section 176(c) and that these
procedures should be sensitive to the resource constraints of
conformity implementers. EPA recognizes that both air quality agencies
and metropolitan planning organizations are currently involved in 8-
hour ozone and/or PM2.5 SIP development, implementation of
conformity requirements for these two air quality standards and MPOs
are currently adapting to changes made by SAFETEA-LU to transportation
planning and conformity requirements. The final requirements for
PM2.5 hot-spot analyses meet Clean Air Act conformity
requirements and minimize the resource burden on state and local
agencies by focusing these reviews on only those projects that are
likely to adversely impact air quality rather than requiring analyses
for every non-exempt project in PM2.5 nonattainment and
maintenance areas.
In addition, EPA has already considered the additional burden
associated with implementing a PM2.5 hot-spot requirement in
the ICR that has been approved for implementing transportation
conformity for the 8-hour ozone and PM2.5 standards. EPA has
already considered and responded to all comments that were made for
this ICR, which has been approved and assigned OMB control number 2060-
0561. In fact, this ICR actually overestimated the burden associated
with implementing a PM2.5 hot-spot requirement as compared
to this final rule's requirements. For example, the ICR assumed that a
PM2.5 hot-spot analysis would be required for all non-exempt
federally funded or approved projects in PM2.5 nonattainment
or maintenance areas, whereas this final rule only requires such
analyses for projects of air quality concern.
F. When Are the PM2.5 Hot-Spot Requirements Effective?
Clean Air Act section 176(c)(6) and 40 CFR 93.102(d) provide a one-
year grace period before conformity applies in areas newly designated
nonattainment for a new standard. On January 5, 2005 (70 FR 943), EPA
designated areas as attainment and nonattainment for the
PM2.5 standards. These designations became effective on
April 5, 2005. As a result, conformity for the PM2.5
standards will apply to newly designated PM2.5 nonattainment
areas on April 5, 2006. Starting on that date, PM2.5 hot-
spot requirements for projects of air quality concern as detailed by
this rulemaking must be met prior to any new Federal approvals for such
projects.
Therefore, EPA finds good cause to determine that the final rule is
effective on April 5, 2006. EPA normally issues final regulations with
at least a 30-day effective date after Federal Register publication.
However, state and local implementers are required by the Clean Air Act
to meet conformity
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requirements in PM2.5 nonattainment areas for transportation
plans, TIPs, and non-exempt projects as of April 5, 2006, the end of
the PM2.5 grace period. And since today's final rule
describes how to meet statutory requirements for projects in
PM2.5 areas, it is imperative that conformity implementers
be able to legally use the requirements in this final rule. Absent this
determination of good cause, EPA would be placing conformity
implementers in the unfortunate position of waiting until a 30-day
effective date before conformity rule requirements could be used to
proceed with any short-term project approvals. For these reasons, EPA
believes it has good cause to expedite the effective date of this final
rule in PM2.5 nonattainment areas.
IV. PM10 Hot-Spot Analyses
A. Background and Proposed Options
EPA proposed to revisit existing PM10 hot-spot
requirements in parallel with co