[Federal Register: June 30, 2003 (Volume 68, Number 125)]
[Proposed Rules]
[Page 38973-38998]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn03-37]
[[Page 38973]]
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Part IV
Environmental Protection Agency
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40 CFR Part 93
Transportation Conformity Rule Amendments: Response to Court Decision
and Additional Rule Changes; Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[FRL-7513-5]
RIN 2060-AI56
Transportation Conformity Rule Amendments: Response to Court
Decision and Additional Rule Changes
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today we (EPA) are proposing to amend the transportation
conformity rule to address a March 2, 1999, ruling by the U.S. Court of
Appeals for the District of Columbia Circuit (Environmental Defense
Fund v. EPA, et al., 167 F. 3d 641, DC Cir. 1999; hereinafter referred
to as the ``court decision''). Our proposal would incorporate into the
transportation conformity rule the EPA and Department of Transportation
(DOT) guidance that has been used in place of certain regulatory
provisions of the rule since the March 1999 court decision. EPA
consulted with DOT on the development of our implementation strategy to
address the court's decision and DOT concurs with this proposal.
Consistent with the court's ruling and existing federal guidance on
transportation conformity, we are proposing that certain federal and
non-federal highway and transit projects cannot be advanced in areas
without a currently conforming transportation plan and transportation
improvement program (TIP), unless they have previously received
appropriate approvals and funding commitments. As directed by the
court, our proposal also would modify the process for deciding whether
the motor vehicle emissions budgets in newly submitted state air
quality plans are adequate for use in the conformity process. Other
provisions affected by the court decision and included in our proposal
are the timing of conformity consequences following the disapproval of
certain types of SIPs, and the use of submitted safety margins for
transportation conformity in areas that have approved SIPs that were
submitted prior to November 24, 1993.
The proposal also includes several additional amendments to
provisions of the rule that the court decision did not directly affect.
These amendments are being proposed to improve the rule and/or to
provide clarification of existing requirements.
DATES: Written comments on this proposal must be received on or before
July 30, 2003.
ADDRESSES: Comments may be submitted by mail to: Air Docket,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR-2003-0063.
Comments may also be submitted electronically, by facsimile, or through
hand delivery/courier. Follow the detailed instructions as provided in
section I.C. of the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Angela Spickard, State Measures and
Conformity Group, Transportation and Regional Programs Division, U.S.
Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI
48105, spickard.angela@epa.gov, (734) 214-4283; or, Meg Patulski, State
Measures and Conformity Group, Transportation and Regional Programs
Division, U.S. Environmental Protection Agency, 2000 Traverwood Road,
Ann Arbor, MI 48105, patulski.meg@epa.gov, (734) 214-4842.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. General Information
A. Regulated Entities
B. How Can I Get Copies of This Document?
C. How and to Whom Do I Submit Comments?
D. How Should I Submit CBI to the Agency?
E. What Should I Consider as I Prepare My Comments for EPA?
II. Background on the Transportation Conformity Rule
III. Federal Projects
A. What Are We Proposing?
B. Why Are We Proposing These Changes?
C. What Is the Practical Impact of the Proposal?
IV. Using Motor Vehicle Emissions Budgets from Submitted SIPs for
Transportation Conformity Determinations
A. Background
B. What Are We Proposing?
C. Why Are We Proposing These Changes?
D. EPA's Adequacy Process
E. Why Is EPA Using the Website Instead of the Federal Register
to Notify the Public in the Adequacy Process?
F. What Typical SIP Submissions Will We Review for Adequacy?
G. Does EPA Review Adequacy of SIPs That Do Not Establish
Specific Budgets?
V. Non-Federal Projects
A. What Are Non-federal Projects?
B. What Are We Proposing?
C. Why Are We Proposing This Change?
D. At What Point Is a Regionally Significant Non-federal Project
``Approved''?
VI. Conformity Consequences of SIP Disapprovals
A. What Are the Conformity Consequences of EPA Disapproving a
Control Strategy SIP Without a Protective Finding?
B. What Are We Proposing?
C. Why Are We Proposing This Change?
D. What Is the Practical Impact of This Change?
VII. Safety Margins
A. What Is a Safety Margin?
B. What Are We Proposing?
C. Why Are We Proposing This Change?
D. Can Safety Margins Still Be Allocated to Motor Vehicle
Emissions Budgets for Use in Conformity Determinations?
VIII. Streamlining the Frequency of Conformity Determinations
A. Eliminating the Requirement for Conformity of the TIP Within
Six Months of the Transportation Plan
B. Streamlining the 18-month SIP Triggers for New Conformity
Determinations
IX. Latest Planning Assumptions
A. What Are We Proposing?
B. Why Are We Proposing this Change?
X. Horizon Years for Hot-spot Analyses
A. What Are We Proposing?
B. Why Are We Proposing This Clarification?
XI. Additional Changes and Clarifications to the Rule
A. Definitions
B. Budget Test Requirements for the Attainment Year
C. Budget Test Requirements Once a Maintenance Plan is Submitted
D. Relying on a Previous Regional Emissions Analysis
E. Exempt Projects
XII. How Does Today's Proposal Affect Conformity SIPs?
XIII.Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer Advancement Act
I. General Information
A. Regulated Entities
Entities potentially regulated by the conformity rule are those
that adopt, approve, or fund transportation plans, programs, or
projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories
and entities affected by today's action include:
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Category Examples of regulated entities
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Local government....................... Local transportation and air
quality agencies, including
metropolitan planning
organizations (mpos).
State government....................... State transportation and air
quality agencies.
Federal government..................... Department of Transportation
(Federal Highway
Administration (FHWA) and
Federal Transit Administration
(FTA)).
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
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 of
the transportation conformity rule. If you have questions regarding the
applicability of this action to a particular entity, consult the
persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. How Can I Get Copies of This Document?
1. Docket
EPA has established an official public docket for this action under
Docket ID No. OAR-2003-0063. The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. Although a part
of the official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The official public docket is the collection of
materials that is available for public viewing at the Air Docket in the
EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution
Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Air Docket is (202)
566-1742. This Docket Facility is open from 8:30 a.m. to 4:30 p.m.
Monday through Friday, excluding legal holidays. The Docket telephone
number is 202-566-1742.
2. Electronic Access
You may access this Federal Register document electronically
through EPA's Transportation Conformity website at: http://www.epa.gov/otaq/transp/traqconf.htm.
You may also access this document
electronically under the ``Federal Register'' listings at http://www.epa.gov/fedrgstr/
.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information for which disclosure
is restricted by statute is not included in the official public docket
and will not be available for public viewing in EPA's electronic public
docket. EPA's policy is that copyrighted material will not be placed in
EPA's electronic public docket but will be available only in printed,
paper form in the official public docket. To the extent feasible,
publicly available docket materials will be made available in EPA's
electronic public docket. When a document is selected from the index
list in EPA Dockets, the system will identify whether the document is
available for viewing in EPA's electronic public docket. Although not
all docket materials may be available electronically, you may still
access any of the publicly available docket materials through the
docket facility identified in section I.B.1. above. EPA intends to work
towards providing electronic access to all of the publicly available
docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information for which
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify the appropriate docket identification number in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
EPA is not required to consider these late comments.
1. Electronically
If you submit an electronic comment as prescribed below, EPA
recommends that you include your name, mailing address, and an e-mail
address or other contact information in the body of your comment. Also
include this contact information on the outside of any disk or CD ROM
you submit, and in any cover letter accompanying the disk or CD ROM.
This ensures that you can be identified as the submitter of the comment
and allows EPA to contact you in case EPA cannot read your comment due
to technical difficulties or needs further information on the substance
of your comment. EPA's policy is that EPA will not edit your comment,
and any identifying or contact information provided in the body of a
comment will be included as part of the comment that is placed in the
official public docket, and made available in EPA's electronic public
docket. If EPA cannot read your
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comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0063. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to a-
and-r-docket@epa.gov, Attention Air Docket ID No. OAR-2003-0063. In
contrast to EPA's electronic public docket, EPA's e-mail system is not
an ``anonymous access'' system. If you send an e-mail comment directly
to the Docket without going through EPA's electronic public docket,
EPA's e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in section I.C.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By Mail. Send two copies of your comments to: Air Docket,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW, Washington, DC, 20460, Attention Docket ID No. OAR-2003-0063.
3. By Hand Delivery or Courier. Deliver your comments to: EPA
Docket Center, Room B102, EPA West Building, 1301 Constitution Avenue,
NW., Washington, DC., Attention Air Docket ID No. OAR-2003-0063. Such
deliveries are only accepted during the Docket's normal hours of
operation as identified in section I.B.1.
4. By Facsimile. Fax your comments to: (202) 566-1741, Attention
Docket ID. No. OAR-2003-0063.
D. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send or deliver information identified as CBI only to the following
address: Attention: Angela Spickard, U.S. EPA, National Vehicle and
Fuel Emissions Laboratory, Transportation and Regional Programs
Division, 2000 Traverwood Drive, Ann Arbor, MI 48105, Docket ID No.
OAR-2003-0063. You may claim information that you submit to EPA as CBI
by marking any part or all of that information as CBI (if you submit
CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI
and then identify electronically within the disk or CD ROM the specific
information that is CBI). Information so marked will not be disclosed
except in accordance with procedures set forth in 40 CFR Part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
E. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
II. Background on the Transportation Conformity Rule
Transportation conformity is required under section 176(c) of the
Clean Air Act (42 U.S.C. 7506(c)) to ensure that federally supported
highway and transit project activities are consistent with (``conform
to'') the purpose of a state air quality implementation plan (SIP).
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 national ambient air
quality standards. EPA's transportation conformity rule establishes the
criteria and procedures for determining whether transportation
activities conform to the state air quality plan.
EPA first published the transportation conformity rule on November
24, 1993 (58 FR 62188). Minor revisions were made to the rule in 1995
(60 FR 40098, August 7, 1995, and 60 FR 57179, November 14, 1995), and
more recently in the spring of 2000 (65 FR 18911, April 10, 2000) and
on August 6, 2002 (67 FR 50808).
On August 15, 1997, EPA published a comprehensive set of amendments
that clarified and streamlined language from the 1993 transportation
conformity rule (62 FR 43780) and subsequent 1995 amendments. However,
a decision made on March 2, 1999, by the U.S. Court of Appeals for the
District of Columbia Circuit affected several provisions of the 1997
rulemaking (Environmental Defense Fund v. EPA, et al., 167 F. 3d 641,
DC Cir. 1999; hereinafter referred to as the ``court decision'').
Specifically, the court's ruling affected provisions that pertain to
five aspects of the conformity rule, including:
(1) Federal approval and funding of transportation projects in
areas without a currently conforming transportation plan and
transportation improvement program (TIP);
(2) Provisions allowing motor vehicle emissions budgets from
submitted SIPs to be used in transportation conformity determinations
before the SIP has been approved;
(3) the adoption and approval of non-federal transportation
projects in areas without a currently conforming transportation plan
and TIP;
(4) the timing of conformity consequences following an EPA
disapproval of a control strategy SIP (e.g., reasonable further
progress SIPs
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and attainment demonstrations) without a protective finding; and,
(5) the use of submitted safety margins in areas with approved SIPs
that were submitted prior to November 24, 1993.
In response to the court decision, the EPA and U.S. Department of
Transportation (DOT) issued guidance \1\ to address the provisions
directly affected by the court decision. DOT subsequently modified its
June 18, 1999, guidance and replaced it with revised guidance issued on
January 2, 2002, and announced in the Federal Register on February 7,
2002, (67 FR 5882).\2\ DOT issued supplemental guidance \3\ in May 2003
to clarify the conformity requirements as they relate to FHWA/FTA's
approval of a final environmental impact statement and the National
Environmental Policy Act (NEPA) process completion. In addition, FTA
issued guidance on April 9, 2003, that further clarified which
approvals are necessary for transit projects to proceed during a
lapse.\4\ The EPA and DOT memoranda serve as the basis for today's
proposed amendments to the transportation conformity rule. EPA and DOT
consulted with each other on the development of all guidance documents
implementing the March 2, 1999, court decision. See EPA's
transportation conformity web site listed in section I.B.2. to download
an electronic copy of these guidance documents.
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\1\ May 14, 1999, Memorandum from Gay MacGregor, then-Director
of the Regional and State Programs Division of EPA's Office of
Transportation and Air Quality, to Regional Air Division Directors,
``Conformity Guidance on Implementation of March 2, 1999, Conformity
Court Decision'; and, June 18, 1999, Memorandum from Kenneth R.
Wykle, then-Administrator, Federal Highway Administration (FHWA),
and Gordon J. Linton, then-Administrator, Federal Transit
Administration (FTA), to FHWA Division Administrators, Federal Lands
Highway Division Engineers, and FTA Regional Administrators,
``Additional Supplemental Guidance for the Implementation of the
Circuit Court Decision Affecting Transportation Conformity.''
\2\ January 2, 2002, Memorandum from Mary E. Peters,
Administrator, Federal Highway Administration (FHWA), and Jennifer
L. Dorn, Administrator, Federal Transit Administration (FTA), to
FHWA Division Administrators, Federal Lands Highway Division
Engineers, and FTA Regional Administrators, ``Revised Guidance for
Implementing the March 1999 Circuit Court Decision Affecting
Transportation Conformity''; February 7, 2002, Notice, Issuance of
Revised Guidance for Implementing the March 1999 Circuit Court
Decision Affecting Transportation Conformity, Federal Register, 67
FR 5882.
\3\ May 2003, Memorandum from Federal Highway Administration and
Federal Transit Administration, ``INFORMATION: Clarification of
Transportation Conformity Requirements for FHWA/FTA Projects
Requiring Environmental Impact Statements.''
\4\ April 9, 2003, Memorandum from Jennifer L. Dorn,
Administrator, Federal Transit Administration, to Regional
Administrators, Regions 1-10, ``INFORMATION: Revised FTA Procedures
for a Conformity Lapse.''
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In addition to addressing the impact of the court decision, today's
proposal would also amend several other provisions of the conformity
rule. These proposed rule amendments include: New definitions for
``donut areas'' and ``isolated rural nonattainment and maintenance
areas'; streamlining of the current requirements affecting frequency of
conformity determinations; EPA's revised interpretation of the
requirements for using the latest planning assumptions; clarification
of the appropriate horizon years for hot-spot analyses; a minor update
to the current list of exempt projects; and, several minor
clarifications to Sec. 93.118 of the conformity rule (``Criteria and
procedures: Motor vehicle emissions budget.'') that are aimed at
improving the implementation of this section of the conformity
regulation. Additional background information and rationale for these
proposed rule changes are included in our discussion below.
III. Federal Projects
A. What Are We Proposing?
Today's proposal would modify 40 CFR 93.102(c) so that no new
federal approvals or funding commitments for non-exempt projects can
occur during a transportation conformity lapse. A conformity lapse
generally occurs if transportation plan and TIP conformity
determinations are not made within specified time frames. During a
conformity lapse no new conformity determinations for FHWA or FTA non-
exempt projects may be made.
Section 93.102(c)(1) of the 1997 conformity rule (62 FR 43780)
allowed a highway or transit project to receive additional federal
approvals and funding commitments during a lapse if the project came
from a previously conforming plan and TIP, a conformity determination
for the project had been made and the NEPA process was completed before
the lapse. Section 93.101 of the rule defines ``NEPA process
completion'' as ``the point at which there is a specific action to make
a determination that a project is categorically excluded [CE], to make
a Finding of No Significant Impact [FONSI], or to issue a record of
decision on a Final Environmental Impact Statement [FEIS] * * *'' In
its March 2, 1999, decision, the court held that Sec. 93.102(c)(1) was
unlawful and remanded this section to EPA for further rulemaking.
To address the court decision, EPA is eliminating the current Sec.
93.102(c)(1) provision and proposing new regulatory language under
Sec. 93.102(c). Under this proposed provision, non-exempt
transportation project phases that have received all required FHWA or
FTA approvals or funding commitments and that have met associated
conformity requirements before a lapse could be implemented during the
lapse; however, no new federal approvals or funding commitments for
subsequent or new phases could be made during the lapse.
Today's proposal would also move Sec. 93.102(c)(2) requirements to
Sec. 93.104(d) to limit redundancy and improve organization of the
conformity rule. This proposed organizational change would not change
the substantive requirements of Sec. 93.102(c)(2). The conformity rule
would continue to require a new conformity determination when a
significant change in a project's design concept and scope has
occurred, a supplemental environmental document for air quality
purposes is initiated, or three years have elapsed since the most
recent major step to advance a project. A major step is defined in the
conformity rule as ``* * * NEPA process completion; start of final
design; acquisition of a significant portion of the right-of-way; or
approval of plans, specifications and estimates * * * '' (40 CFR
93.104(d)).
Today's proposed changes are consistent with the latest EPA and DOT
guidance issued to implement the court decision. EPA and DOT consulted
on the development of these guidance documents. On January 2, 2002, DOT
revised its guidance on how most projects that receive federal approval
or funding are affected during a lapse, and announced the release of
the new guidance in the Federal Register on February 7, 2002 (67 FR
5882). DOT issued supplemental guidance in May 2003 to clarify the
conformity requirements as they relate to FHWA/FTA's approval of a
final environmental impact statement and the NEPA process completion.
In addition, FTA issued guidance on April 9, 2003, that further
clarified which approvals are necessary for transit projects to proceed
during a lapse. DOT's revised guidance and memoranda supersede previous
guidance issued on June 18, 1999. The revised guidance clarifies that
only project phases that have met conformity requirements and received
federal approval or funding commitments before a lapse can proceed
during a lapse. See EPA's conformity website listed in section I.B.2.
to download an electronic copy of these guidance documents.
[[Page 38978]]
B. Why Are We Proposing These Changes?
Today's proposal is necessary to make the conformity regulation
consistent with the March 1999 court decision. The court held that
Sec. 93.102(c)(1) of the 1997 conformity rule was inconsistent with
the Clean Air Act since it allowed transportation projects that had
previously been found to conform and had completed the NEPA process
(``grandfathered'' projects) to receive further federal approvals or
funding commitments and advance towards construction during a lapse. In
effect, this provision allowed project phases that weren't approved
prior to a lapse to proceed during the lapse. The D.C. Circuit Court
ruled that Clean Air Act section 176(c)(2)(C) prohibits FHWA and FTA
from approving or funding new project phases in nonattainment and
maintenance areas in the absence of a currently conforming
transportation plan and TIP. Clean Air Act section 176(c)(2)(C)(i)
states that project approvals can only occur if ``such a project comes
from a conforming plan and program.''
EPA believes that its proposal to allow previously authorized
project phases to be implemented during a lapse is a reasonable
interpretation that is consistent with Clean Air Act section
176(c)(2)(C), since no federal approvals or funding commitments could
be made for new project phases during a lapse. The court did not
explicitly rule on the issue of how previously authorized right-of-way
(ROW) acquisition, final design, or construction projects are affected
during a lapse, but its decision leads EPA to the conclusion that a
project phase that has previously received all federal approvals and
funding commitments can be implemented during a conformity lapse.
Therefore, today's proposal provides consistency in implementing
all federal authorizations, as described in DOT's Federal Register
notice for its January 2, 2002, guidance. The proposal consistently
applies the principle that to ``fund'' a project actually means the
point at which DOT commits to funding a particular project phase (e.g.,
ROW acquisition).
This interpretation differs from what was outlined in DOT's June
18, 1999, guidance, which asserted that when the Clean Air Act states
that DOT cannot ``fund'' a project unless it conforms, ``fund''
actually meant only the point at which DOT committed to fund a project
for final construction. As a result, only projects that had received
funding commitments for final construction prior to a conformity lapse
could proceed during a lapse. However, under the 1999 guidance,
reimbursements for previously authorized ROW acquisition and final
design activities could not proceed during a lapse, resulting in the
federal government suspending its previously authorized commitments to
these activities. As explained in DOT's January 2, 2002, revised
guidance, EPA and DOT now believe that suspending such authorized
commitments is not required by the Clean Air Act as interpreted in the
court's decision, and therefore, this proposal does not incorporate the
superseded June 1999 guidance.
C. What Is the Practical Impact of the Proposal?
This proposal would only affect those areas that are unable to meet
a conformity deadline and as a result enter into a conformity lapse.
Although even short-term conformity lapses can affect transportation
planning and project development processes, EPA anticipates that this
proposal would primarily affect areas that are in a conformity lapse
for a significant period of time. In contrast, this proposal would have
no impact in areas where a lapse is short or in lapsed areas that have
few transportation projects if no new FHWA/FTA non-exempt projects are
pending in these cases.
When an area has a conformity lapse, no new FHWA/FTA approvals or
funding commitments for subsequent or new project phases (i.e., NEPA,
final design, ROW acquisition, or construction) could be made. The only
projects that can receive further FHWA/FTA approvals or funding during
a plan and TIP conformity lapse are: (1) Projects exempt from the
conformity process; and (2) transportation control measures (TCMs) that
are specifically included in an approved state implementation plan
(SIP). Exempt projects are FHWA or FTA projects that are listed in
Sec. 93.126, Sec. 93.127, or Sec. 93.128 of the conformity rule. A
conformity lapse ends when DOT makes a new transportation plan and TIP
conformity determination.
For FHWA-funded non-exempt projects, project phases (i.e., final
design, ROW acquisition, or construction) that received funding
commitments or an equivalent approval or authorization prior to a
conformity lapse may continue during the lapse. The execution of a
project agreement (which includes Federal approval of the plans,
specifications, and estimates) indicates funding commitment.
For FTA-funded non-exempt projects, the largest projects are
handled with a full funding grant agreement (FFGA). If an FFGA was
executed prior to a conformity lapse, the project can continue to
utilize all federal grant funds during the lapse. If the FFGA was not
completed by the date of the lapse, the project sponsor may only
complete the current phase of project development (e.g., final design
or land acquisition). Transit projects not handled with FFGAs may
proceed during a lapse if FTA approved a grant for construction or
vehicle acquisition prior to the lapse. If a construction grant was not
approved before the lapse, the project sponsor may only complete the
current phase of project development.
Subsequent phases of a project for which FHWA or FTA has not taken
an approval action or awarded a funding commitment may not proceed in
the absence of a conforming plan and TIP. For federal transportation
project phases not requiring a project specific project agreement/
authorization approval, the State or local transportation agency should
not take any action committing the State or local agency to proceed
with the project phase during a lapse unless the project phase has
already received full approval or authorization for funding before the
lapse.
Highway projects using design-build contracting can proceed with
all project phases that were included in the design-build contract if
FHWA authorized the contract and determined conformity before the lapse
(23 CFR 635.309). Similarly, transit projects using design-build
contracting can proceed with design and construction if a grant for
design and construction was made by FTA prior to the lapse.
Highway projects that require federal approval but no federal
funding can proceed during a lapse if all necessary approvals occurred
before the lapse. For example, consider a proposed regionally
significant state toll road that connects to a federal interstate
highway. The proposed road has received a conformity determination,
federal NEPA approval, FHWA approval of the new interstate access
point, and the project does not require FHWA approvals or funding
commitments for subsequent project phases. In this case where no
further FHWA actions are required, the project could proceed to
construction during a conformity lapse, as long as no additional
approvals by recipients of federal funds are needed. As always, the
project would continue to be considered in the regional emissions
analysis for the nonattainment or maintenance area. See Section IV.
``Non-Federal Projects'' of today's proposal for more information on
how non-federal project approvals are affected during a conformity
lapse.
[[Page 38979]]
Preliminary engineering for project development activities that are
necessary to assess social, economic, and environmental effects of the
proposed action or alternatives as part of the NEPA process for a non-
exempt project may continue during a lapse, since such activities are
exempt according to 40 CFR 93.126. However, FHWA or FTA cannot approve
a categorical exclusion (CE), finding of no significant impact (FONSI),
or a record of decision (ROD) for a non-exempt project during a
conformity lapse. The NEPA process for new projects can be completed
only for exempt projects and TCMs in an approved SIP during a
conformity lapse.
When an area is facing a lapse within six months, FHWA, FTA, and
EPA will meet and jointly evaluate the potential consequences of the
lapse and assess any concerns. FHWA, FTA, and EPA established
consultation procedures to be used prior to a lapse in the April 19,
2000, National Memorandum of Understanding (MOU). The MOU can be found
on EPA's conformity website as listed in section I.B.2. of this notice.
As described in the MOU, the FHWA, FTA, and EPA will meet at least 90
days before a lapse to determine which projects could receive approvals
or funding commitments before the lapse, which projects could
potentially be delayed, and which actions would be necessary to correct
the lapse.
IV. Using Motor Vehicle Emissions Budgets From Submitted SIPs for
Transportation Conformity Determinations
A. Background
Control strategy SIPs and maintenance plans in ozone, CO, PM-10,
and NO2 areas create motor vehicle emission budgets for criteria
pollutants and/or their precursors. Control strategy SIPs include
reasonable further progress SIPs and attainment demonstrations. The
budget is the portion of the total allowable emissions that is
allocated to highway and transit vehicle use and emissions (40 CFR
93.101). In a conformity determination, the budget serves as a ceiling
on emissions from an area's planned transportation system.
If an area does not have a budget that applies to a particular
pollutant and standard it uses one or two of the emission reduction
tests, depending on its classification (see 40 CFR 93.119). Prior to
the 1997 conformity rule, if an area did not have a budget from an
approved SIP to use for conformity, it had to use the emission
reduction test(s). In 1995 and 1996, we consulted with conformity
implementers and determined that a budget in a submitted SIP is a more
relevant basis for determining conformity than the ``build/no-build''
test, one of the emission reduction tests. (See 62 FR 43781--4 for this
discussion.) In response to this input, we changed the rule in 1997 to
allow the budget test to be used when an area had a submitted, but not
yet approved, SIP. This change eliminated the use of the emission
reduction test(s) sooner for many areas, since they could use the
budget for conformity before the SIP is approved. Under the 1997 rule,
if EPA had not yet made an adequacy finding within 45 days of receiving
a SIP, the SIP's budgets automatically applied for conformity. The 1997
conformity rule also included provisions for EPA to review a budget(s)
from a submitted SIP for adequacy.
B. What Are We Proposing?
Today's proposal would continue to allow budgets to be used before
the SIP is approved, but would modify several provisions under 40 CFR
93.109 and 93.118, which are the sections of the conformity rule that
address the use of SIP budgets for conformity purposes.
First, the proposal would eliminate those provisions in Sec. Sec.
93.109 and 93.118(e) that require areas to use a budget from a
submitted SIP in 45 days if EPA has not yet made an adequacy finding.
Instead, we are proposing that before a budget from a submitted SIP can
be used for conformity, EPA must find it adequate using the criteria in
Sec. 93.118(e)(4). The budget could not be used until the effective
date of the Federal Register notice that announces that EPA has found
the budget adequate, which we propose would be 15 days from the date of
notice publication.
Second, today's proposal would incorporate into Sec. 93.118 of the
conformity rule the basic framework of the adequacy process described
in EPA's May 14, 1999, guidance. A description of the adequacy process
and the SIPs that are affected are found in section III.D and sections
III.F. and G. of this preamble, respectively.
EPA is also adding a minor clarification to a sentence in Sec.
93.118(e)(1). In paragraph (e), the rule explains that a submitted SIP
cannot override an approved SIP until the submitted SIP is approved.
Today's change more fully describes this point: Budgets from a
submitted SIP cannot be used for conformity if an area already has an
approved SIP that addresses the same pollutant and Clean Air Act
requirement (e.g., rate-of-progress or attainment) and has budgets
established for the same year. However, budgets from a submitted SIP
are used for conformity (once they are adequate) if the submitted SIP's
budgets address either a different Clean Air Act requirement or are for
a different year than budgets in an approved SIP, i.e., the budgets are
from an ``initial SIP submission.'' Section III.F. includes further
explanation. Discussion of initial SIP submissions can also be found at
66 FR 50956--50957, the preamble of the proposed rule titled,
``Transportation Conformity Rule Amendments: Minor Revision of 18-Month
Requirement for Initial SIP Submissions and Addition of Grace Period
for Newly Designated Nonattainment Areas.''
Today's proposed changes to these sections are consistent with
procedures already in place as a result of EPA's May 14, 1999, guidance
issued to implement the court's decision. The guidance notified
stakeholders that budgets in submitted SIPs could be used for
conformity only after EPA has found them adequate. The guidance also
outlined a process for determining adequacy of budgets that includes an
opportunity for public comment. Today's proposal is consistent with
that guidance. Therefore, under this proposed rule existing adequacy
procedures would remain the same as they have been for the past several
years.
We are not proposing any changes to the adequacy criteria in
today's proposal; the existing criteria are being retained as described
by the 1997 rule. The adequacy criteria were not affected by the court
decision. These criteria include consideration of the technical details
of the SIP, such as whether the budget is consistent with the SIP's
purpose and the area's emissions inventory for all sources, and whether
a clear relationship among the budget, control measures, and emissions
inventory is shown. The adequacy criteria also include procedural
criteria such as whether the SIP has been endorsed by the State
governor or designee, whether the SIP was subject to a public hearing,
and whether interagency consultation has occurred.
In addition to the adequacy criteria, the rule continues to provide
that reliance on a submitted budget for determining conformity is
deemed to be a statement by the MPO and DOT that they are not aware of
any information that would indicate that emissions consistent with such
a budget would cause or contribute to any new violation, increase the
frequency or severity of an existing violation, or delay timely
attainment of the relevant standards (Sec. 93.118(e)(6)). This
provision provides another important check that helps to ensure that
plans
[[Page 38980]]
and TIPs that conform to a submitted budget are consistent with the
Clean Air Act requirements, and reinforces EPA's position which has
been endorsed by a court that using an adequate budget for conformity
prior to full approval of a SIP is consistent with the Clean Air Act.
See 1000 Friends of Maryland v. Carol Browner, et al., 265 F.3d 216
(4th Cir. 2001).
Though today's proposal amends the rule language in Sec.
93.118(e)(3) to remove the reference that a budget must be used after
45 days if EPA has not made a finding, the main point of Sec.
93.118(e)(3) is retained. That is, a conformity determination based on
budgets that were found adequate remains valid even if EPA later, upon
further analysis, finds the budgets inadequate. The fact that new
information subsequently became available that changed the finding of
adequacy for the future does not affect the validity of a prior
conformity determination; a subsequent conformity determination would
have to take the new information into account in that only new,
adequate budgets could be used.
C. Why Are We Proposing These Changes?
In its ruling, the court remanded 40 CFR 93.118(e)(1) to EPA for
further rulemaking consistent with the opinion. This section of the
conformity rule, among other things, had allowed submitted budgets to
be used in conformity determinations after 45 days even if EPA had not
made an adequacy finding on the submitted budgets. However, the court
stated that a budget could only be used for conformity purposes if EPA
had found it adequate.
The court stated specifically that ``where EPA fails to determine
the adequacy of motor vehicle emissions budgets in a SIP revision
within 45 days of submission, * * * there is no reason to believe that
transportation plans and programs conforming to the submitted budgets
``will not--(i) cause or contribute to any new violation of any
standard in any area; (ii) increase the frequency or severity of any
existing violation of any standard in any area; or (iii) delay timely
attainment of any standard * * *' 42 U.S.C. 7506(c)(1)(B).'' Therefore,
the court remanded section 93.118(e)(1) to EPA so we could harmonize it
with these Clean Air Act requirements.
In response to the court decision, EPA established the current
process for determining the adequacy of submitted SIPs in its May 14,
1999, guidance. This guidance has been fully operational since it was
issued and serves as the basis for this proposal. Under the current
guidance and proposed rule (Sec. 93.118(e)(1)), budgets from submitted
SIPs cannot be used in a conformity determination until EPA has found
them adequate.
We believe that the court's direction on the use of submitted
budgets was strictly confined to a need to make an affirmative finding
on the adequacy of a submitted SIP's budgets before they can be used
for conformity purposes. The court remanded only the aspect of EPA's
regulations that allows the use of a budget from a submitted SIP which
EPA has not yet found adequate. The court did not remand EPA's
regulations at 40 CFR 93.118(e)(4) establishing criteria for finding a
budget adequate, 93.118(e)(6) requiring additional findings by Federal
agencies and MPOs where a conformity determination is made using a
budget from a submitted SIP, or any other parts of Sec. 93.118(e).
Therefore, EPA believes that conformity determinations consistent
with the proposed provisions and the adequacy process are consistent
with the Act's requirements in 42 U.S.C. 7506(c)(1)(B) and the court's
opinion. Further, as noted above, a second court of appeals recently
concluded that showing conformity to submitted SIPs in these
circumstances was not in violation of the Clean Air Act (1000 Friends
of Maryland v. Browner, supra). EPA continues to believe the adequacy
criteria in the conformity rule provide a sound basis for preliminarily
reviewing submitted motor vehicle emissions budgets for conformity
purposes prior to EPA's full approval action.
EPA's adequacy review of budgets from submitted SIPs is separate
from EPA's completeness review for purposes of SIP processing, and EPA
uses different criteria for each of these reviews. Similarly, EPA's SIP
approval process requires a more detailed examination of the SIP's
control measures and technical analyses than the conformity adequacy
process. Although the adequacy criteria allow EPA to review submitted
budgets for conformity purposes, EPA recognizes that other elements
must also be in the SIP for it ultimately to be approved. EPA's
adequacy review should not be used to prejudge EPA's approval or
disapproval of the SIP, since additional information may be submitted
and more extensive review may change some conclusions. As we have
stated previously (62 FR 43782), EPA cannot fully ensure that a
submitted SIP is consistent with reasonable further progress,
attainment or maintenance until EPA has completed its formal review
process and the SIP has been approved or disapproved through notice-
and-comment rulemaking. Therefore, a budget that is found adequate in
our adequacy review could later be disapproved based on further
analysis when reviewed with the entire SIP submission.
D. EPA's Adequacy Process
1. What Is the General Process EPA Would Use To Examine Adequacy of
Budgets in a SIP?
Today's proposal is based on EPA's existing adequacy process
described in the May 14, 1999, guidance, and consists of three basic
steps: Public notification of SIP submission, a public comment period,
and EPA's adequacy finding. These three steps are described below. EPA
generally intends to review the adequacy of a newly submitted budget
through this process within 90 days of EPA's receipt of a full SIP
submission, however the adequacy review could take longer particularly
when EPA receives significant public comments.
Notification of SIP submissions: After a State officially submits a
control strategy SIP or maintenance plan to EPA, we would notify the
public by posting a notice on EPA's adequacy Web site and would attempt
to do so within 10 days of submission. EPA's adequacy Web site is the
central location for adequacy information for the entire U.S.
Currently, the Web site is found at http://www.epa.gov/otaq/traq/traqconf/adequacy.htm.
We would consider a SIP submission to be
formally submitted on the date that the EPA regional office receives it
in full. If a member of the public would like to be notified when we
receive a relevant SIP submission for a particular State or area, he or
she should contact the EPA regional employee listed on the Web site for
that particular State. EPA's Web site provides EPA regional contact
information so that interested parties can arrange or discuss
notification processes. For example, EPA could use postcards, letters,
email or phone calls to notify requesters, as agreed on by the
interested party and EPA. The adequacy Web site also includes
information on how to obtain a copy of a SIP submission under adequacy
review.
Public comment: A 30-day public comment period would start
immediately upon the posting of the notice on the EPA adequacy Web site
in either of the following cases: (1) If the State has made the entire
SIP submission electronically available to the public via a Web site,
electronic bulletin board, etc.; or (2) if no one has requested copies
of the SIP within 15 days after the date of EPA posting
[[Page 38981]]
notification. If the SIP submission is available via the internet
(electronically), EPA would include a link to the State Web site. In
the case where the SIP is not available via the internet or is only
available in part, if someone requests a paper copy and EPA receives
the request within the first 15 days, the 30-day public comment period
would restart on the date that EPA mails the requested copy. EPA is not
committing to make SIP submissions electronically available on our
adequacy Web site. Our Web site will state when the public comment
period begins and ends, and to whom to send comments. If someone
requests a copy of the SIP, the Web site would be updated to reflect
any extension of the public comment period.
EPA's adequacy determination: After a thorough review of all public
comments received and evaluation of whether the adequacy criteria have
been met, the appropriate EPA regional office would conclude that the
submitted SIP's budgets are adequate or inadequate and send a letter
indicating EPA's conclusions to the State or local air agency and other
relevant agencies such as the MPO and State DOT. The EPA regional
office would also mail or email a copy of the letter and response to
comments to others who request it.
The EPA regional office would also subsequently announce the
adequacy determination in the Federal Register. If EPA finds a budget
adequate, it can be used for conformity on the effective date of the
Federal Register notice, which would be 15 days after it is published.
We would post EPA's adequacy letter, our response to any comments, and
the Federal Register notice on the EPA adequacy Web site. Adequate
budgets must be used in all future conformity determinations after the
effective date of an adequacy finding; budgets cannot be used for
conformity once EPA finds them inadequate.
2. Will EPA's Adequacy Finding Always Be Announced in the Federal
Register?
Yes, EPA will always use the Federal Register to announce that
budgets are adequate or inadequate. However, in cases where EPA is
finding budgets adequate, we may use the proposed or final rulemaking
notice for a control strategy or maintenance plan to announce our
adequacy determination, instead of first sending a separate letter to
the relevant agencies and following it with a Federal Register notice.
For example, if EPA is about to propose or finalize a rulemaking
action on a control strategy or maintenance plan at the point when we
are ready to announce our adequacy finding on this SIP, EPA could
announce its adequacy determination as part of the proposed or final
rulemaking notice. In this case, EPA would not send a letter to the
State or other agencies or publish a separate adequacy announcement in
the Federal Register. Instead, EPA would announce our adequacy finding
in the Federal Register through a proposed or final rulemaking for that
same SIP. We would also update the adequacy Web site to reflect this
finding.
EPA could also make an adequacy finding via a direct final approval
of a SIP. When EPA promulgates a direct final approval of a SIP, a
proposed approval and a direct final approval are published in the
Federal Register on the same date. The public has at least 30 days to
comment on EPA's action, and if EPA receives no adverse comments and no
other information or analysis changes EPA's position in that time
period, the approval becomes final 60 days after publication according
to the date indicated in the Federal Register notice. However, if
adverse comments are received or EPA's position changes as a result of
further information or analysis, the direct final approval is withdrawn
prior to its effective date. EPA would then consider the submitted
comments and address them in a final action just as we would for any
proposal.
In cases where EPA would use a direct final rulemaking to make an
adequacy finding, the adequacy process would be substantively the same
as that which we have outlined in section III.D.1. EPA would indicate
that we are using the direct final rulemaking to announce our adequacy
finding in the Federal Register notices, and would also announce the
beginning of the public comment period on the adequacy Web site. The
public would have 30 days to comment on adequacy as well as on the
approvability of the SIP. If EPA received adverse comments, we would
withdraw the direct final rule and would address these comments in a
later final action on the SIP. We would also use the adequacy Web site
to inform the public when we have found the budgets adequate or if we
received comments that resulted in withdrawal of our direct final
approval.
When EPA employs a direct final rule that receives no adverse
comments, the budgets are found adequate and the SIP is approved on the
date indicated in the direct final Federal Register notices. That is,
the budgets in a SIP approved via a direct final approval can only be
used on or after the effective date of the direct final rule. This is
in contrast to the ``typical'' proposal and final rulemaking process,
where approved budgets can be used for conformity immediately upon
publication of the final rule. Direct final rules typically include a
30-day comment period followed by an additional 30-day period for EPA
to consider any comments received and withdraw the rule if necessary
before it takes effect. Thus, budgets in a direct final rule can not be
used upon publication of the final action but may be used only after
the final rule becomes effective, because, in essence, EPA has not
taken the final action to approve these budgets until the effective
date.
3. Could EPA Parallel Process Its Adequacy Review?
Yes, EPA could parallel process the adequacy review if requested to
do so by a State. Under parallel processing, a State would submit its
proposed SIP to EPA, and the State and EPA would then request public
comment on the proposed SIP and the adequacy of the budgets included in
the SIP at the same time. If no significant adverse comments are
received at either the State or Federal levels, EPA could then make an
adequacy finding as soon as the State formally adopts the SIP and
submits it to EPA, as long as no substantive changes to the SIP have
occurred.
If there are any adverse comments sent either to the State or to
EPA, EPA would consider them in our adequacy decision, as described in
Sec. 93.118(e)(5) of the rule, and today's proposed Sec. 93.118(f).
Section 93.118(e)(5) states that EPA will review the State's
compilation of public comments and response to comments as part of its
adequacy decision. Today's proposed Sec. 93.118(f) includes a
provision for the public to comment directly to EPA on the adequacy of
a budget.
In cases where we parallel process the adequacy of a SIP, we would
post a notice on the adequacy website that we are starting the adequacy
review process and taking comment on the adequacy of a budget or
budgets from a proposed SIP that a State is preparing to take to public
hearing. The website would include information on how to obtain a copy
of a SIP under adequacy review. Although the State would not have
formally submitted the SIP for our approval, we would begin to evaluate
the budgets in the proposed SIP for their adequacy. If the State adopts
and formally submits that SIP to us for approval and there have been no
changes that would affect the adequacy of the budgets, we could
complete the adequacy process quickly because we would have already
finished the public review portion of the process. However, if the
formal submission has changed significantly from the proposed
[[Page 38982]]
SIP in a way that affects the adequacy of a budget, the adequacy review
process would start over: EPA would announce that we have a submitted
SIP under adequacy review and reopen the comment period through
notification on the adequacy website.
4. Can EPA Change an Adequacy Finding?
Yes, EPA can change an adequacy finding from adequate to inadequate
or from inadequate to adequate. EPA would do so for a specific reason
such as receiving new information that affects our previous adequacy
finding. For example, EPA might change a finding if a State submits
more information after we've found a budget in a SIP submission to be
inadequate. If the State submits additional materials to clarify or
support the adequacy of the budget, we will treat this additional
information as a supplement to the SIP submission. In this situation,
we would post a notice that we have received new information on the
adequacy website and begin a new 30-day public comment period. After
reviewing any comments received, we would make a new finding, as
appropriate.
In the case where we find the budgets in a submitted SIP adequate
but later discover based on additional information or further review
that they do not meet the criteria for adequacy, we could change our
finding to inadequate. In these cases where EPA reverses its finding of
adequate to inadequate, EPA is proposing for the reasons explained
below to make our subsequent inadequacy finding apply immediately upon
EPA's written notification to the State and other relevant agencies,
such as the MPO and State DOT. In EPA's letter to the State we would
indicate that the finding of inadequacy applies as of the date of our
letter and we would explain why our finding has changed. We would also
begin another 30-day comment period to allow the public to consider the
new information that has caused EPA to reverse its finding to
inadequate. If, after consideration of any comments received, EPA still
believes that the submitted SIP is inadequate we would issue a second
Federal Register notice and update the adequacy website as appropriate.
EPA is seeking comment on whether the public should be provided an
opportunity to comment on any new information before EPA can reverse an
adequacy determination to a finding of inadequacy, or after. In cases
where we change a finding from adequate to inadequate, we do not
believe that it is in the best interest of public health to delay our
inadequacy finding until after the public comment period has ended.
Rather, we believe that having our inadequacy finding apply immediately
is necessary to ensure that no further conformity determinations are
made using budgets that may not be protective of the air quality
standards. We should note, however, that if conformity of a
transportation plan or TIP had already been determined by DOT using a
budget during the time that it was adequate, the conformity
determination remains valid as provided by Sec. 93.118(e)(3) of the
current rule.
Finally, EPA notes that in certain circumstances it could be so
obvious that a budget has become inadequate that it would be
unnecessary to provide for the subsequent public comment at all. For
instance, if a state has submitted a new SIP indicating that the prior
SIP submission no longer provided for attainment, it would be clear
that the prior submission is inadequate. Under such circumstances, EPA
could proceed on a case by case basis to make a final inadequacy
determination explaining these facts and publish a Federal Register
notice of that determination.
E. Why Is EPA Using the Website Instead of the Federal Register To
Notify the Public in the Adequacy Process?
Today's proposal would codify our adequacy process that has been in
effect since May 14, 1999, when we published guidance in response to
the court decision on this matter. In that guidance, one of the key
components of our process for reviewing the adequacy of a submitted SIP
budget is to notify the public when EPA regional offices receive a SIP,
and provide the public with an opportunity to comment on the submitted
SIP's budgets. In the guidance and in today's proposal we rely on our
website, rather than the Federal Register, as the primary means for
requesting public comment and updating the public on the status of our
adequacy review of submitted SIP budgets.
EPA previously concluded that the notification and comment
procedures of the Administrative Procedures Act (APA) do not apply to
the adequacy review process because adequacy determinations are carried
out on an informal case-by-case basis rather than through
rulemaking.\5\ The March 1999 court decision did not address this
aspect of the adequacy process. Therefore, EPA is not reopening this
legal conclusion in today's proposal. However, we believe that
providing some opportunity for public involvement adds value to our
adequacy review. Specifically, we believe public comment can assist us
in making more informed decisions regarding submitted budgets and their
ability to ensure that new transportation activities will not cause or
contribute to new violations, worsen existing violations, or delay
timely attainment of the national ambient air quality standards. Our
existing conformity regulations, at Sec. 93.118(e)(5) of the current
rule, already require us to review and consider all comments received
by a State during its development of the SIP. The adequacy process
provides additional opportunity for comment directly to EPA through the
web process that focuses specifically on the question of whether the
SIP submission meets our adequacy criteria.
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\5\ August 15, 1997, 62 FR 43782-43783.
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The website gives EPA the ability to notify the public and solicit
comment without undue delay. The intent of the adequacy process is to
allow areas to use a budget from a SIP even before it is approved.
Since an emissions budget is a more appropriate measure for achieving
the air quality standards, we believe using it for a conformity
determination is preferable to using the emission reduction test(s).
Using the website allows EPA to meet the dual goals of offering the
opportunity for public comment and completing the adequacy review in a
timely way.
We are proposing to publish notice of our finding of adequacy or
inadequacy in the Federal Register, as well as on the adequacy Web
site, so that we can be sure the public is fully informed of our
finding. We are also proposing to make an adequacy finding effective 15
days after it is announced in the Federal Register so that the public
would be aware that a SIP budget has been found adequate before it is
used in a conformity determination.
F. What Typical SIP Submissions Will We Review for Adequacy?
In general, EPA adequacy reviews are conducted for SIPs that
contain motor vehicle emissions budgets, which include control strategy
SIPs (e.g., reasonable further progress SIPs, attainment
demonstrations) and maintenance plans. If there is no approved SIP that
contains a budget for the same Clean Air Act requirement, pollutant,
and year, a budget from a newly submitted SIP can be used for
conformity as of the effective date of EPA's adequacy finding.
Therefore, EPA will review the adequacy of a motor vehicle emissions
budget from an initial submission of a control strategy SIP or
maintenance plan. In addition, EPA will review the adequacy of a budget
from a
[[Page 38983]]
control strategy SIP or maintenance plan that is submitted to revise a
previously submitted, but not yet approved, SIP. The next few examples
illustrate these principles.
First, an area submits a SIP for a different year and Clean Air Act
requirement. The area has an approved attainment demonstration that
contains budgets for 2005 and subsequently submits a maintenance plan
for the same pollutant that contains budgets for 2015. Though the area
already has an approved budget for the year 2005, the maintenance plan
addresses a different Clean Air Act requirement and contains budgets
for a different year. Therefore in this case, EPA would review the 2015
budgets in the submitted maintenance plan for adequacy.
In a second example, an area submits new budgets for the same year,
but for a different Clean Air Act requirement. The area has an approved
rate-of-progress (ROP) SIP with budgets for the years 1999, 2002, and
2005 and submits an attainment demonstration with budgets for the year
2005. EPA would review the 2005 attainment budgets for adequacy,
because although ROP budgets already exist for the year 2005, the
submitted attainment budgets address a different Clean Air Act
requirement than the approved ROP budgets. Once the attainment budgets
are adequate, both the 2005 ROP budgets and the 2005 attainment budgets
must be met for the 2005 analysis year. For analysis years beyond the
2005 attainment year, however, only conformity to the 2005 attainment
budgets is required (i.e., conformity to the 2005 ROP budgets is not
required in years after the attainment year, once attainment budgets
are established).
In a third example, an area submits a revision to a previously
submitted SIP, prior to EPA's approval of the first submission. The
area submits an attainment demonstration and we find it adequate.
Before it is approved however, the State decides that a revision is
necessary and submits a revised attainment demonstration to EPA.
Because the first attainment demonstration had not been approved, EPA
would review the adequacy of the budget from the revised attainment
demonstration. If the revised budget is then found to be adequate, the
revised budget would replace the previous adequate budget for use in
future conformity determinations on the effective date of the new
adequacy finding.
One final example concerns an area with ``outyear'' budgets. EPA
allows SIPs to establish budgets for conformity purposes for years
beyond the timeframe that the SIP normally addresses. In this example,
an area has an approved attainment demonstration with budgets for its
2005 attainment year. The approved attainment SIP also contains outyear
budgets for the year 2015. Subsequently, the area submits a maintenance
plan with budgets for the year 2015. Since the maintenance plan
addresses a different Clean Air Act provision than the attainment
demonstration, EPA would review the 2015 budgets from the submitted
maintenance plan for adequacy even though the area already has budgets
for the year 2015 in its attainment SIP. If EPA finds the maintenance
budgets adequate, then both the 2015 outyear budgets and the 2015
maintenance year budgets must be met for conformity. That is to say,
the 2015 outyear budgets from the attainment demonstration would
continue to exist and apply for conformity in years 2015 and beyond,
unless the State revises the attainment demonstration SIP to remove
them. The 2015 outyear budgets would continue to apply for conformity
until EPA approved the SIP revision proposing to remove the outyear
budgets.
EPA generally will not review the adequacy of a budget from a
submitted SIP that revises an existing approved SIP with budgets for
the same year and Clean Air Act requirement, because as a matter of law
a submitted SIP may not supersede an approved SIP for the same Clean
Air Act requirement, year, and pollutant. A budget from such a
submitted SIP revision would not apply for conformity until EPA
actually approves the revision.
Exceptions to this general rule are SIPs for which EPA specifically
limits the duration of its approval of the motor vehicle emissions
budgets until replacement budgets have been found adequate. One example
where EPA limited the duration of our approval was the recently
approved 1-hour ozone attainment demonstrations and maintenance plans
that relied on interim MOBILE5-based estimates of Federal Tier 2
standards (65 FR 6698). In the proposed approvals for these SIPs, EPA
proposed that because States could not accurately analyze emissions
from these standards with the MOBILE5 model, EPA would require States
to revise these SIPs with MOBILE6. EPA also proposed that our approval
of the MOBILE5-based budgets would be limited such that when the
MOBILE5-based budgets are revised using MOBILE6, the MOBILE6 budgets
could be used for conformity on the effective date of our adequacy
finding. MOBILE6 provides a more accurate estimate of the emission
benefits of the Tier 2 vehicle and fuel standards, and the revised
budgets should be used as soon as they are adequate. Therefore, EPA
will review the adequacy of the MOBILE6 budgets when these SIPs are
submitted since they will become effective once they are found adequate
under the terms of our limited approvals of the attainment
demonstrations.\6\ A second example of where EPA has limited the
duration of our approval is in the case of certain SIPs in the State of
California. See 67 FR 69139 for further details on EPA's action that
limits our approval of these specific SIPs and allows submitted budgets
that have been found adequate to supersede previously approved budgets
for conformity.
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\6\ For more information, see EPA's January 18, 2002, memorandum
titled, ``Policy Guidance on the Use of MOBILE6 for SIP Development
and Transportation Conformity,'' from John Seitz, Director, Office
of Air Quality Planning and Standards, and Margo Tsirigotis Oge,
Director, Office of Transportation and Air Quality, to EPA Regional
Air Division Directors.
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G. Does EPA Review Adequacy of SIPs That Do Not Establish Specific
Budgets?
In addition to SIPs that establish a specific motor vehicle
emissions budget for a new year or Clean Air Act requirement, there are
other situations when EPA will conduct an adequacy review. In these
cases, we will use the same adequacy review process that we use for
SIPs that include specific budgets.
First, EPA will review the adequacy of limited maintenance plans.
Usually, a maintenance plan contains budgets for the last year of the
maintenance plan. If a maintenance plan does not explicitly identify
budgets, then EPA has said that the emissions projections for the last
year of the maintenance plan serve as the budgets (see the discussion
in the preamble to the November 24, 1993, conformity rule at 58 FR
62195). Limited maintenance plans, however, do not include budgets nor
even future motor vehicle emissions projections that could be
interpreted as budgets. Instead, a limited maintenance plan concludes
that the area will continue to maintain regardless of the quantity of
emissions from the on-road transportation sector; essentially, the
budget is unlimited. For limited maintenance plan submissions, EPA's
adequacy review will primarily focus on whether the area qualifies for
the applicable limited maintenance policies for ozone, CO, and PM-10
areas. In this case, a finding of adequacy means that the area does in
fact meet the criteria for submitting a limited maintenance plan. If
so, the area will be considered to automatically meet the budget test
for future conformity
[[Page 38984]]
determinations because the budget is essentially unlimited. For more
discussion of limited maintenance plans, please refer to 61 FR 36118
(the preamble of the July 9, 1996, proposed conformity rule).
Second, we will also review the adequacy of control strategy SIPs
and maintenance plans that do not establish budgets because they claim
that motor vehicle emissions are not a significant contributor to the
area's air quality problems. Areas submitting these plans are required
to demonstrate the insignificance of motor vehicle emissions based on a
number of factors. In these areas, our adequacy review will focus on
whether the SIP or maintenance plan demonstrates the claim of
insignificance. In this case, a finding of adequacy means that EPA
agrees that the motor vehicle emissions are insignificant. Additional
discussion of SIPs that explicitly demonstrate motor vehicles to be an
insignificant contributor can be found at 58 FR 62194 (November 24,
1993, final rule) and 61 FR 36118 (July 9, 1996, proposed rule).
In contrast, EPA will not review for adequacy a SIP that addresses
only a localized hot-spot nonattainment problem (for example, in a CO
area). These SIPs do not establish budgets and are not used as a basis
for a conformity test for regional emissions. These SIPs only address
localized emissions in areas where there is no regional air quality
problem.
V. Non-Federal Projects
A. What Are Non-Federal Projects?
Non-federal projects are projects that are funded or approved by a
recipient of federal funds designated under title 23 U.S.C. or the
Federal Transit Laws (49 U.S.C. Chapter 53) but that do not rely at all
on any FHWA/FTA funding or approvals. A State DOT or public transit
agency are examples of routine recipients of federal funds. The
conformity rule only applies to non-federal projects that are
considered regionally significant, in that these projects must be
included in a conforming transportation plan and TIP and/or the
regional emissions analysis supporting a conforming plan and TIP.
Regionally significant, non-federal projects are not, however, subject
to any of the requirements for project-level conformity, such as the
requirements for hot-spot analysis found at Sec. 93.116 and Sec.
93.123 of the conformity rule.
We encourage areas to use the interagency consultation process to
determine which entities are recipients of federal funds and whether a
project is regionally significant. The terms ``recipient of funds
designated under title 23 U.S.C. or the Federal Transit Laws'' and
``regionally significant project'' are defined under Sec. 93.101 of
the conformity rule.
B. What Are We Proposing?
EPA is proposing to amend Sec. 93.121(a) of the 1997 conformity
rule so that regionally significant non-federal projects can no longer
advance during a conformity lapse unless they have received all
necessary State and local approvals prior to the lapse. Under this
proposal, recipients of federal funds designated under title 23 U.S.C
or the Federal Transit Laws can not adopt or approve a regionally
significant, non-federal project unless it is included in a currently
conforming plan and TIP or in the regional emissions analysis
supporting a currently conforming plan and TIP.
By amending Sec. 93.121(a) as proposed, the conformity rule will
again be consistent with the previous requirements of our 1993 rule.
Today's proposal is also consistent with our May 14, 1999, guidance
implementing the court decision, and does not affect the current,
general implementation of non-federal projects.
C. Why Are We Proposing This Change?
In its ruling, the court found Sec. 93.121(a)(1) of the 1997
conformity rule, that allowed State or local approval of transportation
projects in the absence of a currently conforming plan/TIP, to be in
violation of section 176(c)(2)(C) of the Clean Air Act. In its ruling
the court asserted that all non-exempt projects subject to the
conformity rule, including regionally significant non-federal projects,
must come from a conforming plan and TIP (or their supporting regional
emissions analysis). However, the court also noted that once a non-
federal project receives all appropriate State or local approvals, it
need not meet any further conformity requirements.
D. At What Point Is a Regionally Significant Non-Federal Project
``Approved''?
The definition of non-federal project ``approval'' is decided on an
area-specific basis at the State and local level through the
interagency consultation process, and should be formalized in the
area's ``conformity SIP.'' Conformity SIPs are required by 40 CFR
51.390, and include area-specific conformity procedures tailored to
State and local agency needs and consistent with our federal
requirements for conformity. Conformity SIPs do not contain motor
vehicle emissions budgets. If EPA has not yet approved a conformity SIP
for an area, the interagency consultation process should be used to
determine the point of approval for non-federal projects.
EPA discussed defining non-federal project ``approval'' as a
national matter in the preamble to the November 24, 1993,
transportation conformity rule: ``EPA believes that adoption/approval
is never later than the execution of a contract for site preparation or
construction. Adoption/approval will often be earlier, for example,
when an elected or appointed commission or administrator takes a final
action allowing or directing lower-level personnel to proceed'' (58 FR
62205, November 24, 1993). Some examples of definitions used by areas
to identify the point of final adoption/approval for a regionally
significant highway or transit project include, but are not limited to,
one of the following actions:
(a) The final policy board action or resolution that is necessary
for a regionally significant project to proceed;
(b) Administrative permits issued under the authority of the
agency, policy board, or commission for a regionally significant
project;
(c) The execution of a contract to construct, or any final action
by an elected or appointed commission or administrator directing or
authorizing the commencement of construction of a regionally
significant project; or
(d) Providing the grants, loans or similar financial support,
necessary for the construction of a regionally significant project.
EPA believes that it is appropriate to define the point at which
project approval occurs through the interagency consultation process,
because areas have varying State and local requirements for determining
when projects are approved. Specific questions about how a particular
area defines the point of adoption/approval for non-federal projects
should be directed to the appropriate local or State air or
transportation agency.
Finally, as stated above, a regionally significant non-federal
project must be included in a currently conforming transportation plan
and TIP, or be included in the supporting regional emissions analysis
for a conforming plan and TIP, to be approved.
VI. Conformity Consequences of SIP Disapprovals
A. What Are the Conformity Consequences of EPA Disapproving a Control
Strategy SIP Without a Protective Finding?
When EPA disapproves a control strategy SIP, we may issue a
protective
[[Page 38985]]
finding for conformity purposes if the submitted SIP contains adopted
control measures, or written commitments to adopt enforceable control
measures, that fully satisfy the emission reduction requirements
relevant to the statutory provision for which the SIP was submitted
(see Sec. 93.101 of the conformity rule for the definition of the term
``protective finding''). A control strategy SIP that is disapproved
with a protective finding generally possesses deficiencies such as a
failure to include all control measures in a fully adopted, enforceable
form. Such SIPs are not fully acceptable for SIP purposes, but are
sufficient for conformity purposes since the State has adopted or
committed to all measures necessary to meet all applicable SIP
requirements.
In contrast, we will disapprove a submitted SIP without giving it a
protective finding if it does not contain enough emission reduction
measures, or commitments to these measures, to achieve its specific
purpose of either demonstrating further progress or attainment.
In situations where EPA disapproves a control strategy SIP with a
protective finding, the submitted motor vehicle emissions budgets can
still be used in future conformity determinations. Conversely, if the
EPA disapproves a SIP without giving it a protective finding the
budgets cannot be used for conformity upon the effective date of EPA's
disapproval action.
Control strategy SIPs include reasonable further progress SIPs and
attainment demonstrations. The 1997 transportation conformity rule
created a 120-day grace period following our disapproval of a control
strategy SIP without a protective finding, after which conformity
freezes. A conformity ``freeze'' means that only projects in the first
three years of the transportation plan and TIP can proceed. No new
plans, TIPs, or plan/TIP amendments can be found to conform during a
conformity freeze. The transportation plan and TIP remain frozen until
a new control strategy implementation plan fulfilling the same Clean
Air Act requirement as that which EPA disapproved is submitted, and EPA
finds the motor vehicle emissions budgets adequate for conformity.
Failure to submit a new control strategy implementation plan within two
years of the effective date of EPA's disapproval will result in the
imposition of highway sanctions and a lapse of conformity. However, a
conformity lapse could occur sooner, if during a freeze the
transportation plan or TIP expires. We should also note that a
conformity freeze does not result from EPA's disapproval of a
maintenance plan, as the Clean Air Act does not require nonattainment
areas that have successfully demonstrated achievement of a given air
quality standard to submit this type of air quality plan unless they
request redesignation to attainment; i.e., such submissions are
discretionary. See the preamble to the 1997 conformity rule (62 FR
43796-43797) for more information about SIP disapprovals, protective
findings, and conformity freezes.
B. What Are We Proposing?
We are proposing to change the point at which conformity
consequences apply when EPA disapproves a control strategy SIP without
a protective finding. Specifically, we are proposing to delete the 120-
day grace period from Sec. 93.120(a)(2) of the conformity rule, so
that a conformity freeze would occur immediately upon the effective
date of EPA's final disapproval.
Today's proposal, however, retains the 1997 conformity rule's
flexibility that aligned conformity lapses with Clean Air Act highway
sanctions. Like the 1997 rule, conformity of the plan/TIP would lapse
when highway sanctions are imposed (usually two years after the
effective date of EPA's final disapproval) as a result of a control
strategy SIP disapproval, or when the applicable update of the plan
and/or TIP was required under the transportation planning regulations,
whichever comes first. See sections II. ``Federal Projects'' and IV.
``Non-federal Projects'' of this proposal for more details on what
projects can advance during a conformity lapse.
Finally, this proposal does not impact the 1997 conformity rule's
provisions for SIP disapprovals with a protective finding. Conformity
consequences of control strategy SIP disapprovals with a protective
finding would not occur unless highway sanctions are imposed; i.e.,
conformity of an area's plan and TIP generally would not lapse until
two years after the effective date of EPA's disapproval action with a
protective finding.
C. Why Are We Proposing This Change?
In its ruling, the court found Sec. 93.120(a)(2) of the 1997
conformity rule to be in violation of the Clean Air Act, section
176(c)(1), and remanded it to EPA for further rulemaking. Specifically,
the court said that where EPA disapproves a SIP without a protective
finding there is no basis to believe that conformity of transportation
plans and TIPs to the submitted budgets in the disapproved SIP will not
cause or contribute to new violations, increase the frequency or
severity of existing violations, or delay timely attainment of the air
quality standards.
Under Sec. 93.120(a)(2) of the current rule, if EPA disapproved a
submitted SIP or SIP revision without a protective finding, areas could
have used the 120-day grace period to complete a conformity
determination that was already in progress, and therefore experience
minimal disruption to the transportation planning process. The court
felt that this grace period was not authorized by the statute because
it would allow conformity to be demonstrated to a SIP that was deemed
not protective of the air quality standards.
Therefore, after thorough consideration of the court's ruling, we
are proposing to eliminate the 120-day grace period from the conformity
rule; this change to the rule is consistent with our May 14, 1999,
guidance implementing the court decision.
D. What Is the Practical Impact of This Change?
EPA anticipates minimal practical impacts from this proposed rule
change. Since promulgating the 1997 conformity rule amendments, EPA has
disapproved control strategy SIPs without a protective finding in only
three instances and has no reason to believe that the future number of
SIP disapprovals will significantly increase. Therefore, we believe
this proposed rule will impact very few areas as did the guidance.
We also believe that the overall purpose of the 120-day grace
period, that is, to minimize disruption to the transportation planning
process, can still be achieved to an extent under this proposal. The
notice-and-comment rulemaking process for disapproving SIPs provides
transportation planners with advanced notice of when a SIP disapproval
without a protective finding will occur. Prior to a conformity freeze,
EPA proposes disapproval, provides for public comment, and then issues
a final disapproval notice only after thorough consideration of any
comments received has been completed. A proposed disapproval would
address whether or not EPA plans to issue a protective finding for the
SIP, so that transportation agencies would know well in advance if a
conformity freeze is a possibility. This process generally provides
sufficient notice for transportation agencies to prepare for the
consequences of a disapproval without a protective finding by, for
example, quickly completing any pending conformity determinations as
appropriate.
[[Page 38986]]
In addition, EPA has administrative discretion, where appropriate,
to make disapprovals of control strategy SIPs effective 60-90 days
after the publication of the disapproval in the Federal Register. There
may be some situations where delaying the effective date for a short
period of time beyond the usual 30 days is appropriate, for example,
when transportation agencies are very close to completing a conformity
determination that was well underway before EPA completed a SIP
disapproval. Transportation plan and TIP updates and amendments must
meet transportation planning and conformity requirements and undergo
public review and comment; these processes typically require a
significant amount of time. A relatively short delayed effective date
could assist in finalizing the remaining administrative requirements
for a determination that is nearing completion at the time of EPA's
published notice for disapproval.
Sufficient notice also occurs in the limited case where a
conditional SIP approval converts to disapproval without a protective
finding. Unlike other types of SIP actions, conditional approvals
automatically convert to SIP disapprovals if the condition of EPA's
approval is not met within a fixed period not to exceed one year. In
these cases, a conformity freeze would begin immediately upon the
effective date of EPA's Federal Register notice of the conversion of a
conditional approval to a disapproval without a protective finding.
Therefore, conditional approvals, by their very nature, inform
transportation agencies well in advance that future conformity
consequences could result if the conditions of the approval are not
met. Because transportation agencies would be aware of potential
conformity impacts generally at least one year before they could occur,
EPA believes that there will be minimal practical impact of not
providing a delayed effective date in these cases.
VII. Safety Margins
A. What Is a Safety Margin?
A safety margin is the amount by which the total projected level of
emissions from all sources identified in a SIP for a given pollutant
are less than the total emissions that would, at a minimum, satisfy the
applicable Clean Air Act requirements for reasonable further progress,
attainment or maintenance. For example, if an area projects that it
will emit a total of 300 tons per day (tpd) of carbon monoxide (CO)
from all sources, but the SIP demonstrates that the area can emit up to
350 tpd of CO and still attain the air quality standard, the area has a
safety margin of 50 tpd. In this example, CO emissions are estimated
from all sources, including: Large stationary sources, such as steel
mills; area sources, such as wood-burning stoves; on-road mobile
sources, such as cars and trucks; and off-road mobile sources, such as
construction and farm equipment. This area could allocate, through a
revision to its SIP, all or some portion of the 50 tpd safety margin to
their motor vehicle emissions budget for future conformity
determinations, if desired.
B. What Are We Proposing?
We are proposing to delete Sec. 93.124(b) of the conformity rule,
that provided a narrowly targeted flexibility to areas with SIPs that
had been submitted prior to the original publication date of the
initial November 24, 1993 conformity rule. Under that provision, if the
approved SIP had included a safety margin, but did not specify how the
safety margin was to be used, an area could submit a revision to the
SIP and specifically allocate all or a portion of the safety margin to
the SIP's motor vehicle emissions budget(s). The 1997 rule allowed this
SIP revision to become effective for conformity purposes before the
revision had been approved by EPA. EPA is not aware of any
nonattainment or maintenance areas that are currently affected by the
elimination of this flexibility.
C. Why Are We Proposing This Change?
The court decision found that Sec. 93.124(b) violates the Clean
Air Act because it allows a submitted but unapproved SIP revision to
supersede an approved SIP. The court ruled that EPA must fully approve
these safety margin allocations into the SIP before they can be used
for conformity.
D. Can Safety Margins Still Be Allocated to Motor Vehicle Emissions
Budgets for Use in Conformity Determinations?
Yes. Although the court eliminated a narrowly targeted flexibility
related to the use of safety margins in previously approved SIPs in
Sec. 93.124(b), the majority of areas that have allocated safety
margins to their emissions budgets after November 24, 1993, are not
affected by the court's ruling. For most of these areas, either EPA has
already approved their safety margin allocations or they had no
previously approved SIP. In general, areas that do not have approved
SIPs can use submitted safety margins in conformity determinations once
EPA finds the submitted SIP (and safety margin) adequate. Areas with
approved SIPs that want to reallocate their safety margin for
conformity purposes can do so once EPA has approved a SIP revision that
specifically allocates all or a portion of the safety margin to an
emissions budget.
VIII. Streamlining the Frequency of Conformity Determinations
In addition to those provisions directly affected by the U.S. Court
of Appeals decision, EPA is also proposing several changes to other
provisions of the conformity regulation in this rulemaking. One of
these additional proposals would affect several provisions under 40 CFR
93.104, the section of the rule that describes when conformity
determinations must be made for transportation plans, TIPs, and
projects. In the first conformity rule proposal made in January 1993,
we stated, ``EPA believes conformity determinations should be made
frequently enough to ensure that the conformity process is meaningful.
At the same time, EPA believes it is important to limit the number of
triggers for conformity determinations in order to preserve the
stability of the transportation planning process'' (58 FR 3775). EPA
continues to have these dual goals. Today we are proposing to eliminate
some of the frequency requirements found in Sec. 93.104, and
streamline others. EPA believes that our proposal would simplify the
current conformity requirements without compromising the benefits of
the conformity program.
Under today's proposal EPA concludes that conformity determinations
will continue to be required frequently enough to ensure that the
process is meaningful and consistent with the Clean Air Act. EPA is not
proposing to change the requirements to determine conformity of new or
revised plans, TIPs, and projects before they can be adopted, and the
requirement to determine conformity of transportation plans and TIPs at
least every three years remains, as required by section 176(c) of the
Clean Air Act. EPA proposes to eliminate only those frequency
requirements which are not required by the Clean Air Act and which now
we believe are either outdated or redundant with other requirements.
A. Eliminating the Requirement for Conformity of the TIP Within Six
Months of the Transportation Plan
First, we propose to eliminate Sec. 93.104(c)(4), which requires
an MPO and DOT to determine conformity of the TIP within six months of
the date that
[[Page 38987]]
DOT determined conformity of the transportation plan. We propose to
remove the six-month conformity requirement for TIPs because we believe
this requirement is not necessary for ensuring air quality goals given
other existing transportation planning and conformity requirements, as
described below. When we initially proposed this requirement, we
anticipated that updating the TIP to match a revised plan would not
otherwise occur. In the initial January 1993 transportation conformity
proposal, we stated, ``EPA's proposal allows a reasonable interval of
six months after a plan is amended or a new plan is adopted during
which the TIP could be revised and a new conformity determination made
by the MPO and DOT'' (58 FR 3775). Also, in the proposal to the 1997
conformity rule, we stated that ``this requirement should be retained
because of ISTEA's (and hence conformity's) expectation that the TIP
will flow from, and be consistent with, the transportation plan'' (July
9, 1996; 61 FR 36129).
However, EPA now believes that Sec. 93.104(c)(4) is unnecessary
given other requirements and actual experience in implementing
conformity. The TIP must already be consistent with the plan according
to 23 U.S.C. 134(h)(3)(C), so plans and TIPs should always include the
same projects for years that are covered by both planning documents.
This statutory provision is also found in DOT's metropolitan planning
regulations at 23 CFR 450.324(f)(2). Because of this requirement, in
practice areas typically revise and determine conformity of the plan
and TIP at the same time. In addition, since the TIP is a subset of the
plan, the regional emissions analysis for the plan includes all of the
projects in the TIP. Therefore, the air quality impacts of the TIP are
essentially assured when conformity of the plan is demonstrated.
Furthermore, the current conformity rule contains other frequency
requirements under Sec. 93.104 that ensure that new federally-funded
or approved transportation activities are consistent with clean air
goals before they are funded or approved. Such requirements include the
requirement to determine conformity of new or revised plans, TIPs, and
projects before they can be adopted, and the requirement to determine
conformity of transportation plans and TIPs at least every three years.
As a result of these existing transportation planning and conformity
requirements, we believe that today's proposal to eliminate the
specific provision that requires conformity of the TIP to be determined
within six months of determining conformity of the plan would work to
simplify the existing conformity rule without compromising its
benefits.
B. Streamlining the 18-Month SIP Triggers for New Conformity
Determinations
EPA is also proposing to make several rule revisions to streamline
Sec. 93.104(e), which requires new conformity determinations to be
made within 18 months of certain SIP actions, or ``triggers.'' EPA
believes that some of the current SIP triggers for conformity can be
eliminated altogether, and some of them can be simplified to improve
implementation of the conformity program without any adverse
consequences in assuring that transportation activities conform to air
quality plans.
Specifically, we propose to eliminate Sec. 93.104(e)(1). This
provision required all nonattainment and maintenance areas to determine
conformity within 18 months of November 24, 1993, which was the date
that EPA initially promulgated the conformity rule (58 FR 62188). At
this point, this requirement is no longer relevant for any area and we
propose to remove it from the rule for clarity.
EPA is not proposing any changes to Sec. 93.104(e)(2), as this
section was recently updated in a final rule published August 6, 2002
(67 FR 50808). The August 2002 rule realigned the 18-month conformity
requirement for initial SIP submissions by requiring a conformity
determination within 18 months of the effective date of EPA's adequacy
finding on the motor vehicle emissions budgets in an initial SIP
submission.
EPA proposes two changes to Sec. 93.104(e)(3), the requirement to
determine conformity within 18 months of EPA's approval of a SIP that
establishes or revises a motor vehicle emissions budget. First, we
propose that this 18-month clock would begin on the effective date of
EPA's approval of the SIP. This proposed clarification will resolve an
ambiguity in the current rule as to whether this 18-month clock begins
on the date that the Federal Register publishes the approval notice or
the effective date of that notice. This proposed change would also make
Sec. 93.104(e)(3) consistent with Sec. 93.104(e)(2), which requires
that conformity be determined within 18 months of the effective date of
EPA's adequacy finding. Likewise, this change would be consistent with
our proposed revision to Sec. 93.120, which would require the
consequences of a SIP disapproval to apply upon the effective date of
EPA's disapproval. (See section V. ``Conformity Consequences of SIP
Disapprovals'' for the discussion of EPA's proposed change to Sec.
93.120.) Having all of these requirements apply as of the effective
date of the relevant EPA action would provide consistency, avoid
confusion and thus benefit planners in implementing these specific
requirements.
The second change we propose to Sec. 93.104(e)(3) is to require a
conformity determination within 18 months of EPA's approval of a SIP
that affects a budget only when a conformity determination has not
already been made using the budgets from the newly-approved SIP. That
is, if an area determined conformity using adequate budgets from a
submitted SIP, and those budgets had not changed when EPA subsequently
approved the submitted SIP, then the area would not have to redetermine
conformity within 18 months of EPA's approval of the SIP. EPA believes
that if the approved budgets have already been used in a conformity
determination, there is no added environmental benefit in requiring
another conformity determination to be made within 18 months of EPA's
approval of a SIP that contains these same budgets. EPA notes that
budgets are unchanged if they are for the same pollutant or precursor,
the same quantity of emissions, and the same year.
EPA also proposes to eliminate Sec. 93.104(e)(4), which requires a
conformity determination to be made within 18 months of EPA's approval
of a SIP that adds, deletes, or changes a TCM. EPA believes that this
requirement is redundant with the requirements in Sec. Sec.
93.104(e)(2) and (3), and therefore, is unnecessary. That is, if a SIP
adds, deletes, or changes a TCM and that addition, deletion, or change
affects a budget in a SIP, then a new conformity determination would be
triggered by either an adequacy finding on the budget in the submitted
SIP (if it is an initial SIP) under Sec. 93.104(e)(2), or EPA's
approval of the SIP (if the budget has not already been used in a
conformity determination) under Sec. 93.104(e)(3). If the addition,
deletion, or change to a TCM did not affect any applicable budget, then
EPA concludes that a new conformity determination would not be needed,
since such a SIP revision would not result in any new air quality
information (i.e., a new budget) necessary to include in the
transportation planning and conformity processes.
Finally, EPA proposes two changes to Sec. 93.104(e)(5), which
requires a new conformity determination within 18 months of EPA's
promulgation of a
[[Page 38988]]
federal implementation plan (FIP). First, we propose to start the clock
for this requirement on the effective date of EPA's promulgation of a
FIP, to be consistent with the start date of the other SIP triggers of
conformity discussed above. Second, EPA proposes to delete the phrase
``or adds, deletes, or changes TCMs,'' for the same reasons that we
propose to delete Sec. 93.104(e)(4) as described above. Again, EPA
believes that the purpose of this provision will be adequately served
by the requirement to show conformity after EPA promulgation of a FIP
containing new budgets, or alternatively, the provision would be
unnecessary if no budget changes are made.
IX. Latest Planning Assumptions
A. What Are We Proposing?
We are proposing to amend Sec. 93.110(a) to change the point in
the conformity process when the latest planning assumptions are
determined. The proposal would allow conformity determinations to be
based on the latest planning assumptions that are available at the time
the conformity analysis begins. The current conformity rule requires
that the determination rely on the latest assumptions available at the
time of DOT's conformity determination for a transportation plan, TIP,
or project. EPA and DOT have previously defined the ``latest''
assumptions as ``the most current information that is available to
State and local planners (e.g., the MPO or other agency can obtain the
information from another agency, the information is appropriate for the
current conformity determination, the information is readily
transferable for use in the transportation and/or emissions modeling,
etc.).'' \7\
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\7\ For more information, see Question 2 in the January 18,
2001, EPA and DOT memorandum entitled, ``Use of Latest Planning
Assumptions in Conformity Determinations.'' See EPA's conformity web
site llisted in section I.B.2. of this proprosal to download an
electronic copy of this guidance document.
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EPA intends for the start of the regional conformity analysis to be
the point at which the MPO begins to model the impact of the proposed
transportation plan/TIP on travel and/or emissions. The start of the
conformity analysis should be a point after which significant work
would be required to incorporate new data. EPA and DOT are asking for
comment on how MPOs, State departments of transportation, transit
agencies, and air quality agencies would define the ``start of the
conformity analysis'' for transportation plan and TIP conformity
determinations in individual areas.
Today's proposal would rely on the interagency consultation process
required by Sec. 93.105(c)(1)(i) to determine when a conformity
analysis reasonably begins in a given area. Section 93.105(c)(1)(i)
already requires the consultation process to be used to decide which
planning assumptions and motor vehicle emissions model are available
for use by the MPO or other designated agencies responsible for
conducting conformity analyses.
Specific interagency consultation procedures are already required
in nonattainment and maintenance areas to determine such things as
which projects are regionally significant and to evaluate models and
methods. During this existing process, the starting date of the
conformity analysis should be well documented by the interagency
consultation group and established so that there is sufficient time for
the MPO to meet transportation planning and conformity requirements,
including to complete the modeling analysis, prepare documents, conduct
the public participation process and allow the MPO and DOT to complete
conformity determinations by any required deadline. New information
(e.g., population or fleet data) that becomes available after the start
of the conformity analysis would not be required to be incorporated
into the current analysis if the analysis is on schedule, although an
area could voluntarily include the new information at any time as
appropriate.
The interagency consultation process should also be used to
determine whether significant delays in completing the conformity
analysis would accommodate the inclusion of more recent planning
assumptions that become available after the initially designated
conformity analysis start date. If, for example, a substantial delay in
the conformity process occurs and new planning assumptions become
available, EPA believes that such assumptions should not be ignored if
the conformity analysis is in its initial stages.
State and local transportation and air quality planners should
align the updates of planning assumptions with the start of the
conformity analysis whenever possible. The consultation process should
continue to be used to determine what are the most recent assumptions
available for SIP development, so that they can be incorporated into
the conformity process expeditiously. For example, if EPA is expected
to find a new SIP budget adequate before the MPO or DOT's conformity
determination, conformity to the new SIP budget would be required for
the current conformity determination. In such a case, transportation
planners should use the more recent SIP assumptions and consider them
at the start of the current conformity analysis, since the more recent
assumptions would have been available through the consultation process
when the SIP was being developed. State and local air agencies should
continue to inform their transportation counterparts of new assumptions
as they become available.
The proposal would not change the requirement that DOT's conformity
determination of the transportation plan and TIP be based on an
analysis that is consistent with the proposed transportation system.
For example, if a regionally significant project is significantly
changed after the start of the conformity analysis, such a change must
be reflected in the conformity analysis for the current determination.
Likewise, a significant change in the design concept and scope of an
emission reduction program would also have to be reflected before DOT
makes its conformity determination.
Today's proposal does not change the requirements of Sec.
93.122(a) which describes when emissions reduction credit can be taken
in regional emissions analyses. Section 93.122(a)(2) continues to
require that analyses reflect the latest information regarding the
implementation of transportation control measures (TCMs) or other
control measures in an approved SIP, even if a measure is cancelled or
changed after the start of the conformity analysis. In addition, Sec.
93.122(a)(3) continues to require that DOT's conformity determination
only be made when regulatory control programs have been assured and
will be implemented as described in the SIP. However, today's proposal
would allow areas to rely upon the latest existing information as
documented at the start of the conformity analysis regarding the
effectiveness of SIP control programs that are being implemented as
described in the SIP (Sec. 93.110(e)).
Finally, Sec. 93.122(a)(6) is not amended by today's action. The
conformity rule continues to require that the conformity analysis be
based on the same ambient temperature and other factors used to
establish the SIP's motor vehicle emissions budget.
B. Why Are We Proposing This Change?
Today's proposal would make the conformity rule more workable for
implementers while continuing to meet the basic Clean Air Act
requirement that the latest planning assumptions be used in conformity
determinations. EPA is
[[Page 38989]]
proposing this change for several reasons.
EPA believes that today's proposal is supported by section
176(c)(1) of the Clean Air Act which requires that ``[t]he
determination of conformity shall be based on the most recent estimates
of emissions, and such estimates shall be determined from the most
recent population, employment, travel and congestion estimates as
determined by the metropolitan planning organization or other agency
authorized to make such estimates.'' However, the Clean Air Act did not
explicitly define the point in the conformity process when the ``most
recent estimates'' should be determined. EPA believes that this
ambiguity in the Clean Air Act allows for a procedural change in how
the latest planning assumptions requirement is implemented.
When EPA originally wrote the conformity rule in 1993, we did not
fully envision how the requirement for the use of latest planning
assumptions would be implemented in practice. Under the current
conformity rule, if an MPO has completed a regional emissions analysis
for its plan and TIP conformity determinations, and new information
becomes available as late as the day before DOT makes its conformity
determination, DOT would not be able to complete its action, as the MPO
would have to re-start the conformity process to incorporate the new
data. In such a case, significant state and local resources may be
required to incorporate new data, and the transportation planning
process may be unnecessarily disrupted. EPA does not believe this is
appropriate or consistent with the overall intent of the Clean Air Act.
The proposal would also be more consistent with how EPA applies the
requirement for the use of the latest motor vehicle emissions model.
The current conformity rule provides areas a grace period before a new
emissions model must be used in the conformity process. Section
93.111(b) states that EPA, in consultation with DOT, will establish a
grace period ``no less than three months and no more than 24 months
after notice of availability is published in the Federal Register.''
During the grace period, areas can use the previous emissions model for
conformity. Section 93.111(c) of the conformity rule allows for the use
of a previous emissions model in conformity analyses for a given length
of time after a new model has been released. That is, as long as the
analysis using the previous model has begun before or during the
established grace period for a new version of the model, the analysis
is acceptable. Today's proposal for the use of latest planning
assumptions is similar: Areas would use the latest planning assumptions
available when they start the analysis, and would be able to complete
the analysis even if new assumptions become available prior to
completion. EPA's policy for incorporating the latest emissions models
into the conformity process was most recently discussed in our January
18, 2002 guidance for the use of MOBILE6 in SIP development and
conformity determinations. See EPA's conformity web site listed in
section I.B.2. to download an electronic copy of this guidance
document.
Finally, due to the iterative nature of the conformity process, new
information that becomes available late in the planning process would
still be incorporated in the conformity process in a timely manner, as
the use of such information would be required in the next conformity
determination.
EPA seeks comment on this proposal to incorporate new data into the
conformity process and to determine latest planning assumptions at the
start of the conformity analysis.
X. Horizon Years for Hot-Spot Analyses
A. What Are We Proposing?
EPA is clarifying Sec. 93.116 so that future hot-spot analyses
demonstrate that a project's emissions are not expected to worsen air
quality during the entire time frame of the transportation plan. The
current rule requires localized or ``hot-spot'' analyses to demonstrate
that new projects will not cause or contribute to any new or existing
violations in CO and PM-10 nonattainment and maintenance areas.
However, the current rule does not specify what time frame should be
covered by such analyses.
Today's proposal would clarify that project-level hot-spot analyses
in metropolitan nonattainment and maintenance areas must consider the
full time frame of an area's transportation plan at the time the
analysis is conducted.\8\ Alternatively, hot-spot analyses for new
projects in isolated rural nonattainment and maintenance areas, as
defined in today's proposal, should consider the full time frame of the
area's regional emissions analysis since these areas are not required
to develop a transportation plan and TIP under DOT's regulation. All
areas should use the interagency consultation process to select the
specific methods and assumptions for conducting both quantitative and
qualitative hot-spot analyses in accordance with Sec. 93.123 of the
current rule(Sec. 93.105(c)(1)(i)).
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\8\ Under DOT's current planning regulation, transportation
plans in metropolitan nonattainment and maintenance areas need to be
updated every three years and cover at least a 20-year planning
horizon (23 CFR 450.322(a)).
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EPA does not anticipate that today's clarification would
significantly change how project-level analyses are being done in
practice. To ensure that the requirement for hot-spot analysis is being
satisfied for all relevant periods, areas should examine the year(s)
within the transportation plan or regional emissions analysis, as
appropriate, during which peak emissions from the project are expected
and a violation would most likely occur due to the cumulative impacts
of the project and background regional emissions in the project area.
EPA believes that if areas demonstrate that no hot-spot impacts occur
in the years of highest expected emissions, then they will have shown
that no adverse impacts will occur in any years within the time frame
of the plan (or regional emissions analysis).
Without this clarification, however, we believe that it is
difficult for implementers to decide which year(s) to analyze to
demonstrate that the conformity requirement for hot-spot analysis is
satisfied. For example, some could read our existing requirement to
mean that the demonstration regarding local violations must consider
only the year of project completion, or alternatively, must consider
every single future year.
In practice, many areas have examined trends from their regional
emissions analysis and/or other factors to determine the year(s)
expected to have the highest emissions. For example, some areas have
reviewed trends in the future number of projects, changes in emissions
factors and/or the economic and population growth. The specific
methodology for selecting the most appropriate analysis year(s) to
satisfy the hot-spot requirements for new transportation projects
should be decided through interagency consultation.
Today's proposal would not change the procedural requirements for
hot-spot analyses outlined in Sec. 93.123, nor the flexibility for
areas to decide how best to meet these requirements through interagency
consultation. We believe our proposed clarification to Sec. 93.116, in
combination with the rule's existing consultation and modeling
requirements, is sufficient to ensure that the years of peak emissions
within the full term of the transportation plan are appropriately
considered in hot-spot analyses for new transportation projects.
[[Page 38990]]
Finally, as background, in CO nonattainment and maintenance areas,
the impact of new transportation projects on local emissions must be
demonstrated through quantitative or qualitative analysis (40 CFR
93.123). In PM-10 nonattainment and maintenance areas, the localized
emissions impact of new projects should be demonstrated through a
qualitative analysis at this time. According to section Sec.
93.123(b)(4) of the rule, quantitative PM-10 hot-spot analyses are not
required until EPA releases modeling guidance on this subject; a
project's impact on localized PM-10 violations must be qualitatively
considered until this guidance is issued. On September 12, 2001, DOT
issued ``Guidance for Qualitative Project Level `Hot Spot' Analysis in
PM-10 Nonattainment and Maintenance Areas.'' DOT consulted with EPA on
the development of this guidance; the guidance is available on EPA's
conformity Web site listed in section I.B.2. of this proposal.
B. Why Are We Proposing This Clarification?
On May 26, 1994, Environmental Defense, Natural Resource Defense
Council and Sierra Club collectively submitted to EPA a Petition for
Reconsideration of the November 1993 conformity rule (58 FR 62188). In
the preamble to an April 2000 conformity rule amendment (65 FR 18913,
April 10, 2000), we addressed four remaining issues raised in this
petition, one of which was the issue regarding horizon years for hot-
spot analyses. Specifically, the petitioners requested that we alter
the rule to ensure that areas examine the 20-year time frame of the
transportation plan when conducting hot-spot analyses. The existing
transportation conformity rule does not clearly specify a time frame to
be considered for hot-spot analyses.
In the preamble to the 2000 amendment, we acknowledged that hot-
spot analyses should address the full time frame of the transportation
plan to ensure that new projects will not cause or worsen any new or
existing hot-spot violations. In addition, we clarified that in some
cases modeling the last year of the transportation plan or the year of
project completion may not be sufficient to satisfy this requirement.
EPA believes that the most effective means to meet this requirement
would be to have the hot-spot analysis examine the year(s) during the
time frame of the plan in which project emissions, in addition to
background regional emissions in the project area, are expected to be
the highest.
In our 2000 amendment, however, we were unable to make the
described regulatory clarification to Sec. 93.116 because we had not
previously proposed this change to the rule. Instead, we committed to
propose this clarification in today's action.
XI. Additional Changes and Clarifications to the Rule
A. Definitions
EPA is proposing two new definitions for areas known as ``donut
areas'' and ``isolated rural nonattainment and maintenance areas'' in
Sec. 93.101. In today's proposal, ``donut areas'' are defined as
geographic areas outside a metropolitan planning area boundary as
designated under 23 U.S.C. 134 and 49 U.S.C. 5303, but inside the
boundary of a designated nonattainment/maintenance area that is
dominated by a metropolitan area(s). In contrast, ``isolated rural
nonattainment and maintenance areas'' are defined as any nonattainment
or maintenance area that does not contain or is not part of any
metropolitan planning area as designated under 23 U.S.C. 134 and 49
U.S.C. 5303. Isolated rural areas do not have metropolitan
transportation plans or TIPs required under 23 U.S.C. 134 and 49 U.S.C.
5303 and 5304 and do not have projects that are part of the emissions
analysis of any MPO's metropolitan transportation plan or TIP. Projects
in such areas are instead included only in statewide transportation
improvement programs.
These proposed definitions would be used in conformity rule
provisions that clarify how areas that are designated nonattainment or
maintenance, but that are not within the planning boundary of any MPO's
jurisdiction, should be considered with regard to the applicable
conformity requirements. The conformity requirements for donut areas
are generally the same as those for metropolitan areas. However, the
transportation planning requirements in donut areas may differ. The
conformity requirements for isolated rural nonattainment and
maintenance areas are stated in Sec. 93.109(g) of the current rule and
generally exclude most conformity determination frequency requirements
and triggers. Conformity determinations in these areas are required
only when a new non-exempt FHWA/FTA project needs funding or approval.
State approvals and funding for regionally significant non-federal
projects would also require that such projects are included in a
regional emissions analysis that conforms. The requirements for
isolated rural areas also offer greater flexibility for demonstrating
conformity in years after the attainment year or after the last year of
the maintenance plan. Given these differences in conformity
requirements, EPA believes the proposed definitions will help to
alleviate confusion over how metropolitan and rural areas are
distinguished so that the conformity program can be more efficiently
and practicably implemented in these different areas.
B. Budget Test Requirements for the Attainment Year
We are proposing a minor revision to clarify how Sec. 93.118(b)
and (d) should be implemented when a budget is established for a year
prior to the attainment year. Specifically, we are proposing that once
an area has any control strategy SIP budget available for conformity
purposes, conformity must be demonstrated using the ``budget test'' for
the attainment year if the attainment year is within the time frame of
the transportation plan. Today's proposal would address questions
raised by some State and local conformity implementers.
As background, the ``budget test'' is completed by comparing the
regional emissions produced by a proposed transportation plan and TIP
to the SIP's motor vehicle emissions budget(s) for a given year. If the
emissions from the plan and TIP are equal to or less t