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/ 2003
/ November
/ Wednesday, November 05, 2003
[Federal Register: November 5, 2003 (Volume 68, Number 214)]
[Proposed Rules]
[Page 62689-62729]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no03-31]
[[Page 62689]]
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Part III
Environmental Protection Agency
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40 CFR Part 93
Transportation Conformity Rule Amendments for the New 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas; Proposed Rule
[[Page 62690]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 93
[FRL-7579-8]
RIN 2060-AL73
Transportation Conformity Rule Amendments for the New 8-Hour
Ozone and PM2.5 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today we (EPA) are proposing to amend the transportation
conformity rule to include criteria and procedures for the new 8-hour
ozone and fine particulate matter (PM2.5) national ambient
air quality standards (NAAQS or ``standards''). Transportation
conformity is required under Clean Air Act section 176(c) to ensure
that federally supported highway and transit project activities are
consistent with (``conform to'') the purpose of a State air quality
implementation plan (SIP). We are conducting this rulemaking to revise
the conformity regulation in the context of EPA's broader strategies
for implementing the new ozone and PM2.5 standards.
The proposal provides guidance for when conformity will first apply
in areas that are designated nonattainment for the 8-hour ozone and
PM2.5 standards. This portion of the proposal discusses the
implementation of the statutory one-year conformity grace period and
proposed revocation of the 1-hour ozone standard, although EPA is not
seeking comment through today's proposal on the revocation options
themselves. Today's proposal also describes when transportation
conformity applies in areas that have approved 8-hour ozone Early
Action Compacts (EACs).
The proposal also describes the general requirements for conducting
conformity determinations for the new standards, such as the conformity
test(s) that would apply before and after adequate or approved SIP
motor vehicle emissions budgets are established. In addition, this
rulemaking proposes to amend the conformity regulations to specifically
include PM2.5 as a criteria pollutant subject to
transportation conformity and outlines the specific conformity
requirements that would apply in newly designated PM2.5
nonattainment areas. In particular, the proposal includes options for
when conformity would apply for various PM2.5 precursors and
fugitive dust, as well as options for PM2.5 hot-spot
requirements for project-level conformity determinations. EPA seeks
comments and suggestions for future guidance on adjusting fugitive dust
emissions for PM2.5 conformity analyses.
In addition to issues related to the new ozone and PM2.5
standards, EPA is proposing a few miscellaneous rule revisions to
clarify the existing regulation and improve implementation.
The Department of Transportation (DOT) is EPA's Federal partner in
implementing the transportation conformity regulation. We have
consulted with DOT on the development of this rulemaking and DOT
concurs with this proposal. EPA has also met with transportation and
environmental organizations to discuss this rulemaking and the proposal
reflects the comments that we received through these stakeholder
discussions.
DATES: Written comments on this proposal must be received on or before
December 22, 2003. EPA will conduct one public hearing on this proposal
beginning at 9:30 a.m. on Thursday, December 4, 2003, in Washington,
DC. As described in Section XVI. of this proposal, the hearing will
continue throughout the day until all testimony has been presented or 5
p.m., whichever is earlier.
ADDRESSES: Comments may be submitted by mail to: Air Docket,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR-2003-0049.
Comments may also be submitted electronically, by facsimile, or through
hand delivery/courier. Follow the detailed instructions for submission
as provided in section I.C. of the SUPPLEMENTARY INFORMATION section.
The public hearing will be held in Washington, DC, at the
Washington Marriott Hotel at 1221 22nd St., NW., Washington, DC 20037,
(202) 872-1500.
FOR FURTHER INFORMATION CONTACT: Meg Patulski, State Measures and
Conformity Group, Transportation and Regional Programs Division, U.S.
Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 48105, patulski.meg@epa.gov, (734) 214-4842; or, Rudy Kapichak, State
Measures and Conformity Group, Transportation and Regional Programs
Division, U.S. Environmental Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 48105, kapichak.rudolph@epa.gov, (734) 214-4574.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. General Information
A. Regulated Entities
B. How Can I Get Copies of This Document?
C. How and to Whom Do I Submit Comments?
D. How Should I Submit CBI to the Agency?
E. What Should I Consider as I Prepare My Comments for EPA?
II. Background on the Transportation Conformity Rule
A. What Is Transportation Conformity?
B. Why Is EPA Conducting This Rulemaking?
C. Does This Proposal Include the Entire Transportation
Conformity Regulation?
III. Conformity Grace Period and Revocation of the 1-Hour Ozone
Standard
A. When Will Conformity Apply for the 8-Hour Ozone and
PM2.5 Standards?
B. When Does Conformity Stop Applying for the 1-Hour Ozone
Standard?
C. When and for What Ozone Standard Does Conformity Apply in
Areas With an Early Action Compact for the 8-Hour Ozone Standard?
IV. General Changes in Interim Emissions Tests
A. Background
B. Baseline Year Test for 8-Hour Ozone and PM2.5
Areas
C. Build/No-Build Test for Existing and New Nonattainment Areas
D. Test Options for Ozone and CO Nonattainment Areas of Higher
Classifications
V. Regional Conformity Tests in 8-Hour Ozone Areas That Do Not Have
1-Hour Ozone SIPs
A. What Are We Proposing?
B. Why Are We Proposing These Options?
VI. Regional Conformity Tests in 8-Hour Ozone Areas That Have 1-Hour
Ozone SIPs
A. What Are We Proposing?
B. Why Are We Proposing These Options?
VII. Regional Conformity Tests in PM2.5 Areas
A. What Are We Proposing?
B. Why Are We Proposing These Options?
VIII. Consideration of Direct PM2.5 and PM2.5
Precursors in Regional Emissions Analyses
A. What Are We Proposing?
B. Why Are We Proposing These Options?
IX. Re-Entrained Road Dust in PM2.5 Regional Emissions
Analyses
A. Background
B. What Are We Proposing?
C. Why Are We Proposing These Options?
D. Request for Comment on Estimating Road Dust Emissions
X. Construction-Related Fugitive Dust in PM2.5 Regional
Emissions Analyses
A. Background
B. What Are We Proposing?
C. Why Are We Proposing This Option?
D. Implementation and Request for Additional Information
XI. Compliance With PM2.5 SIP Control Measures
[[Page 62691]]
A. What Are We Proposing?
B. Why Are We Proposing This Option?
XII. PM2.5 Hot-Spot Analyses
A. What Are We Proposing?
B. Existing Research on PM2.5 Hot-Spots and Request for
Additional Information
C. Why Are We Proposing These Options?
XIII. PM10 Hot-spot Analyses
D. What Are We Proposing?
E. Why Are We Considering These Options?
XIV. Miscellaneous Revisions for New and Existing Areas
A. Definitions
B. Areas with Insignificant Motor Vehicle Emissions
C. Limited Maintenance Plans
D. Grace Period for Transportation Modeling and Plan Content
Requirements in Certain Ozone and CO Areas
E. Minor Clarification to the List of PM10 Precursors
F. Clarification of Requirements for Non-federal Projects in
Isolated Rural Areas
G. Use of Adequate and Approved Budgets in Conformity
XV. How Does Today's Proposal Affect Conformity SIPs?
XVI. Public Hearing
XVII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
G. Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Regulated Entities
Entities potentially regulated by the conformity rule are those
that adopt, approve, or fund transportation plans, programs, or
projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories
and entities affected by today's action include:
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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
proposed rule. This table lists the types of entities of which EPA is
aware that potentially could be regulated by the conformity rule. Other
types of entities not listed in the table could also be regulated. To
determine whether your organization is regulated by this action, you
should carefully examine the applicability requirements in Sec. 93.102
of the transportation conformity rule. If you have questions regarding
the applicability of this action to a particular entity, consult the
persons listed in the preceding FOR FURTHER INFORMATION CONTACT
section.
B. How Can I Get Copies of This Document?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OAR-2003-0049. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Air Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
2. Electronic Access. You may access this Federal Register document
electronically through EPA's Transportation Conformity Web site at
http://www.epa.gov/otaq/transp/traqconf.htm You may also access this document electronically under the Federal Register listings at http://.
http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information for which disclosure
is restricted by statute is not included in the official public docket
and will not be available for public viewing in EPA's electronic public
docket. EPA's policy is that copyrighted material will not be placed in
EPA's electronic public docket but will be available only in printed,
paper form in the official public docket. To the extent feasible,
publicly available docket materials will be made available in EPA's
electronic public docket. When a document is selected from the index
list in EPA Dockets, the system will identify whether the document is
available for viewing in EPA's electronic public docket. Although not
all docket materials may be available electronically, you may still
access any of the publicly available docket materials through the
docket facility identified in section I.B.1. above. EPA intends to work
towards providing electronic access in the future to all of the
publicly available docket materials through EPA's electronic public
docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information for which
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
[[Page 62692]]
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, by facsimile, or
through hand delivery/courier. To ensure proper receipt by EPA,
identify the appropriate docket identification number in the subject
line on the first page of your comment. Please ensure that your
comments are submitted within the specified comment period. Comments
received after the close of the comment period will be marked ``late.''
Although EPA is not required to consider these late comments, we may do
so as appropriate, considering time and volume constraints.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. You should also include this contact information on
the outside of any disk or CD ROM you submit, and in any cover letter
accompanying the disk or CD ROM. This ensures that you can be
identified as the submitter of the comment and allows EPA to contact
you in case EPA cannot read your comment due to technical difficulties
or needs further information on the substance of your comment. EPA's
policy is that EPA will not edit your comment, and any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket,
and made available in EPA's electronic public docket. However, if EPA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to further consider
your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket
, and follow the online instructions for submitting comments. To
access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0049. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to a-and-r-docket@epa.gov, Attention Air Docket ID No. OAR-2003-0049. In
contrast to EPA's electronic public docket, EPA's e-mail system is not
an ``anonymous access'' system. If you send an e-mail comment directly
to the docket without going through EPA's electronic public docket,
EPA's e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and are thus made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in section I.C.2. These
electronic submissions will be accepted only in either WordPerfect or
ASCII file format. Please avoid the use of special characters and any
form of encryption, as this may adversely affect our ability to read
these submissions.
2. By Mail. Send two copies of your comments to: Air Docket,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. OAR-2003-0049.
3. By Hand Delivery or Courier. Deliver two copies of your comments
to: EPA Docket Center, Room B102, EPA West Building, 1301 Constitution
Avenue, NW., Washington, DC, Attention Air Docket ID No. OAR-2003-0049.
Such deliveries can only be accepted during the Docket's normal hours
of operation as identified in Section I.B.1.
4. By Facsimile. Fax your comments to: (202) 566-1741, Attention
Docket ID No. OAR-2003-0049.
D. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send or deliver information identified as ``CBI only'' to the following
address: Attention: Meg Patulski, State Measures and Conformity Group,
Transportation and Regional Programs Division, U.S. Environmental
Protection Agency, 2000 Traverwood Road, Ann Arbor, MI 48105, Docket ID
No. OAR-2003-0049. You may claim information that you submit to EPA as
CBI by marking any part or all of that information as CBI (if you
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is CBI). Information so marked will not be
publicly disclosed except in accordance with procedures set forth in 40
CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly indicating that it does not contain CBI.
Information not marked as CBI will be included in the public docket and
EPA's electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
E. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
[[Page 62693]]
II. Background on the Transportation Conformity Rule
A. What Is Transportation Conformity?
Transportation conformity is required under Clean Air Act section
176(c) (42 U.S.C. 7506(c)) to ensure that federally supported highway
and transit project activities are consistent with (``conform to'') the
purpose of the state air quality implementation plan (SIP). Conformity
currently applies under EPA's rules to areas that are designated
nonattainment, and those redesignated to attainment after 1990
(``maintenance areas'' with plans developed under Clean Air Act section
175A) for the criteria pollutants: ozone, coarse particulate matter
(PM10), carbon monoxide (CO), and nitrogen dioxide
(NO2). Today's proposal would also apply the conformity rule
provisions in fine particulate matter (PM2.5) areas.
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the relevant national ambient
air quality standards (NAAQS or ``standards''). EPA's transportation
conformity rule establishes the criteria and procedures for determining
whether transportation activities conform to the SIP.
EPA first promulgated the transportation conformity rule on
November 24, 1993 (58 FR 62188), and subsequently published a
comprehensive set of amendments on August 15, 1997 (62 FR 43780) that
clarified and streamlined language from the 1993 rule. EPA has made
other smaller amendments to the rule both before and after the 1997
amendments.
On June 30, 2003, EPA published a proposal that would amend the
current conformity rule to be consistent with a March 2, 1999, U.S.
Court of Appeals decision (68 FR 38974). The ``court proposal'' also
included several proposed amendments to regulatory provisions that did
not directly result from the court decision. EPA has not yet taken a
final action on this proposed rulemaking. We are reviewing the public
comments on the court proposal and will promulgate a final rule in the
future.
Today's proposal should be considered a separate action from the
June 30, 2003 court proposal. However, some sections and paragraphs of
the conformity rule are addressed in both proposals. For those
sections, EPA has repeated the court proposal's regulatory language in
today's proposal along with the proposed revisions that address the
conformity requirements in 8-hour ozone and PM2.5 areas.
Other changes to the conformity program could occur through the
reauthorization of the Surface Transportation Act, currently entitled
the Transportation Equity Act for the 21st Century (TEA-21). However,
EPA believes it is prudent to expeditiously pursue the regulatory
changes proposed today to ensure that entities subject to conformity
for the new air quality standards understand applicable requirements as
close to area designations as possible. EPA will continue to monitor
the proposed reauthorization proposals for their potential impact on
the conformity regulation. If statutory amendments to the conformity
program result from TEA-21 reauthorization, EPA would take appropriate
action to address such changes.
EPA has consulted with the Department of Transportation (DOT), our
federal partners in implementing the transportation conformity
regulation, in developing this rulemaking, and DOT concurs with this
proposal. EPA has also met with state and local transportation and
environmental organizations to discuss this rulemaking. The proposal
reflects our consideration of the comments that we received through
these stakeholder discussions. Documentation of these stakeholder
meetings and specific comments are included in the docket for this
rulemaking.
B. Why Is EPA Conducting This Rulemaking?
EPA has developed new 8-hour ozone and PM2.5 air quality
standards, and anticipates designating areas as nonattainment for these
new standards in April and December 2004, respectively. EPA is
conducting this rulemaking to provide clear guidance and rules for
implementing conformity for these standards. Some of the proposed
revisions to the current regulation would provide more options and
flexibility in demonstrating conformity. Other proposed changes would
also apply to existing 1-hour ozone, CO, PM10 and
NO2 nonattainment and maintenance areas.
The following table provides a roadmap for determining whether a
specific proposal included in this rulemaking would apply in your area.
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Issue being addressed
Type of area in this proposal Preamble section Proposed regulatory section
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8-hour ozone................. Conformity grace III.A Sec. 93.102(d).
period.
Revocation of 1-hour III.B No proposed regulatory amendments.
ozone standard.
Early Action Compacts. III.C No proposed regulatory amendments.
Baseline year test.... IV.B Sec. 93.119(b).
Build/no-build test IV.C Sec. 93.119(b)(2).
(marginal and below Sec. 93.119(g)(2).
classifications and
subpart 1 areas).
Regional conformity IV.D Sec. 93.119(b)(1).
tests (moderate and
above
classifications).
Regional Conformity V Sec. 93.109(k).
tests (areas without
1-hour ozone budgets).
Regional conformity VI Sec. 93.109(e).
tests (areas with 1-
hour ozone budgets.
Definitions........... XIV.A. Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(d).
Sec. 93.121(c).
Transportation plan XIV.D Sec. 93.106(b).
and modeling Sec. 93.122(c).
requirements
(moderate and above
classifications).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
PM2.5........................ Applicability......... III.A Sec. 93.102(b)(1).
Conformity grace III.A Sec. 93.102(d)
period.
Baseline year test.... IV.B Sec. 93.119(e)
Build/no-build test... IV.C Sec. 93.119(e)
Sec. 93.119(g)(2)
Regional conformity VII Sec. 93.109(i)
tests.
[[Page 62694]]
Precursors in regional VIII Sec. 93.102(b)(2)
analyses. Sec. 93.119(f)
Re-entrained road dust IX Sec. 93.102(b)(3)
in regional analyses. Sec. 93.119(f)
Construction-related X Sec. 93.122(f)
fugitive dust in
regional analyses.
Compliance with SIP XI Sec. 93.117.
control measures.
Hot-spots............. XII No proposed regulatory amendments.
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k).
Sec. 93.121(c).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
1-hour ozone................. Revocation of 1-hour III.B No proposed regulatory amendments.
ozone standard.
Build/no-build test IV.C Sec. 93.119(b)(2).
(marginal and below Sec. 93.119(g)(2).
classifications).
Regional conformity IV.D Sec. 93.119(b)(1).
tests (moderate and
above
classifications).
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k)
Sec. 93.121(c).
Limited maintenance XIV.C Sec. 93.101.
plans. Sec. 93.109(j).
Sec. 93.121(c).
Transportation plan XIV.D Sec. 93.106(b).
and modeling Sec. 93.122(c).
requirements
(moderate and above
classifications).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(c).
of approved budgets
in conformity.
PM 10........................ Build/no-build test... IV.C Sec. 93.119(d).
Sec. 93.119(g)(2).
Compliance with SIP XI No proposed regulatory amendments.
control measures
(Request for
information only).
Hot-spots............. XIII No proposed regulatory amendments.
Clarification to XIV.E Sec. 93.102(b)(2).
Precursors. Sec. 93.119(f)(5).
Definitions........... XIV.A & Sec. 93.101.
Insignificance........ XIV.B & Sec. 93.109(k).
Sec. 93.121(c).
Limited maintenance XIV.C Sec. 93.101.
plans. Sec. 93.109(j).
Sec. 93.121(c).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(g).
of approved budgets
in conformity.
CO........................... Build/no-build test IV.C Sec. 93.119(c).
(lower CO Sec. 93.119(g)(2).
classifications).
Regional conformity IV.D Sec. 93.119(c)(1).
tests (higher CO
classifications).
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k).
Sec. 93.121(c).
Limited maintenance XIV.C Sec. 93.101.
plans. Sec. 93.109(j).
Sec. 93.121(c).
Transportation plan XIV.D Sec. 93.106(b).
and modeling Sec. 93.122(c).
requirements
(moderate and serious
classifications).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(f).
of approved budgets
in conformity.
NO2.......................... Build/no-build test... IV.C Sec. 93.119(d).
Sec. 93.119(g)(2).
Definitions........... XIV.A Sec. 93.101.
Insignificance........ XIV.B Sec. 93.109(k).
Sec. 93.121(c).
Non-federal projects XIV.F Sec. 93.121(b)(1).
(for isolated rural
areas only).
Clarification to use XIV.G Sec. 93.109(h).
of approved budgets
in conformity.
----------------------------------------------------------------------------------------------------------------
This table illustrates which parts of the proposal are relevant for
various pollutants and standards. Please note that Sections V.-VII.
provide stand-alone descriptions of the proposed emissions tests for
PM2.5 areas and 8-hour ozone areas with and without existing
1-hour ozone SIPs. For example, if your area expects only to be
designated nonattainment under the PM2.5 standard, you
should read section VII. but not sections V. and VI (for 8-hour ozone
areas). EPA believes that any redundancy between these sections
[[Page 62695]]
is warranted to assist readers who may not need to read the entire
proposal.
C. Does This Proposal Include the Entire Transportation Conformity
Regulation?
No. The proposed regulatory text is limited to proposed changes to
affected portions of the conformity rule. However, a complete version
of the conformity rule is available to the public on our transportation
conformity website listed in Section I.B.2. of this proposal. The
complete version is intended to help reviewers understand today's
proposed changes in context with the June 30, 2003 conformity proposal
and other existing rule sections that are not proposed to be changed.
III. Conformity Grace Period and Revocation of the 1-Hour Ozone
Standard
A. When Will Conformity Apply for the 8-Hour Ozone and PM2.5
Standards?
Conformity applies one year after the effective date of EPA's
initial nonattainment designation for a given pollutant and standard.
This one-year conformity grace period is provided by Clean Air Act
section 176(c)(6) and Sec. 93.102(d) of the conformity regulation.
Section 93.102(d) currently addresses newly designated
nonattainment areas for ozone, CO, PM10 and NO2.
This proposal would add PM2.5 to Sec. 93.102(d) of the
conformity rule even though the grace period is already available to
all newly designated nonattainment areas as a matter of law. Today's
proposed change would simply reflect the statutory flexibility in the
regulation.
Although the same pollutant, the 8-hour and 1-hour ozone standards
are different NAAQS. Therefore, every area that is designated
nonattainment for the 8-hour ozone standard will also have a 1-year
grace period before conformity applies for that standard, even if the
area was designated nonattainment for the 1-hour ozone standard. Areas
currently subject to conformity for the 1-hour ozone standard would
continue to be subject to such requirements during the 1-year grace
period for the 8-hour ozone standard. EPA anticipates designating areas
for the 8-hour ozone standard in April 2004. If, for example,
designations have a 30-day delayed effective date, conformity for the
8-hour ozone standard would begin to apply in May 2005, since under
EPA's regulations the one-year grace period begins upon the effective
date of an area's designation. EPA is proposing to include new
regulatory definitions for the 1-hour and 8-hour ozone standards in
Sec. 93.101. These proposed definitions are consistent with how the
standards are described in existing EPA regulations at 40 CFR 50.9 and
40 CFR 50.10, respectively.
Similarly, every area that is designated nonattainment for the
PM2.5 standard will have a one-year grace period before
conformity applies for that standard. EPA plans to designate areas for
PM2.5 by December 2004. Under today's proposed Sec.
93.102(b), the conformity rule would apply in areas designated
nonattainment for PM2.5. Therefore, conformity for the
PM2.5 standard would apply beginning in January 2006, for
example, if a 30-day effective date is provided in accordance with
Sec. 93.102(d). It is important to note that PM10 is a
different pollutant than PM2.5, and today's proposal does
not affect the applicability and general implementation of conformity
in PM10 nonattainment and maintenance areas.
EPA anticipates that some areas will be designated as nonattainment
for both the 8-hour ozone and PM2.5 standards. In these
areas, conformity for the 8-hour ozone standard will apply one year
after the effective date of the area's 8-hour ozone designation, while
conformity for PM2.5 will apply one year after the effective
date of the area's PM2.5 designation.
The following discussion provides more details on the application
of the one-year conformity grace period in specific types of newly
designated nonattainment areas--metropolitan, donut, and isolated rural
areas.
1. Metropolitan Areas
Metropolitan areas are urbanized areas that have a population
greater than 50,000 and a designated metropolitan planning organization
(MPO) responsible for transportation planning per 23 U.S.C. 134. In
general, within one year after the effective date of the initial
nonattainment designation for a given pollutant and standard, the
area's MPO and DOT must make a conformity determination with regard to
that pollutant and standard for the area's transportation plan and TIP.
If, at the conclusion of the one-year grace period, the MPO and DOT
have not made a plan and TIP conformity determination for the relevant
pollutant and standard, the area would be in a conformity ``lapse.'' As
described in section III.B., MPOs must continue to meet conformity
requirements for the 1-hour ozone standard for plan, TIP, and project
approvals made up until the time that the 1-hour standard is revoked.
During a conformity lapse, only certain projects can receive
additional federal funding or approvals to proceed. Such projects
include: exempt projects (e.g., safety projects) listed in Sec. Sec.
93.126, 93.127 and 93.128 of the current conformity rule;
transportation control measures in an approved SIP; and, projects or
project phases (e.g., right-of-way, final design, construction) that
received all required federal funding or approval prior to the
conformity lapse. The practical impact of a conformity lapse will vary
on an area-by-area basis. For additional information on projects that
can proceed during a conformity lapse, see the following guidance
memoranda that implement the March 2, 1999 U.S. Court of Appeals
decision that affected related provisions of the conformity rule: DOT's
January 2, 2002 guidance, published in the Federal Register on February
7, 2002 (67 FR 5882); DOT's May 20, 2003, and FTA's April 9, 2003,
supplemental guidance documents; as well as EPA's May 14, 1999 guidance
memorandum. EPA proposed to incorporate this existing guidance into the
conformity regulation on June 30, 2003 (68 FR 38974). A copy of this
proposed rulemaking, as well as the guidance listed above, can be
downloaded from EPA's transportation conformity Web site listed in
section I.B.2. of this proposal.
2. Donut Areas
For the purposes of conformity, a ``donut'' area is the geographic
area outside a metropolitan planning area boundary, but inside a
designated nonattainment or maintenance area boundary that includes an
MPO. The conformity requirements for donut areas, including the
application of the one-year conformity grace period, are generally the
same as those for metropolitan areas. Within one year after the
effective date of an area's initial nonattainment designation, the
existing and planned transportation network for the donut portion of
the area (as well as for the metropolitan portion of the area) must
demonstrate conformity, or conformity of the metropolitan
transportation plan and TIP will lapse as discussed above, and the
entire nonattainment area will be unable to obtain additional project
funding and approvals at that time.
To demonstrate conformity of its plan and TIP, the adjacent MPO
must include in its regional emissions analysis the emissions from the
donut area's proposed transportation network and planned project
activities. To demonstrate conformity of projects in the donut portion,
such projects must have been included in the regional emissions
analysis that supports the conformity determination of the metropolitan
area's plan and TIP. In nonattainment and maintenance areas with a
donut portion, the MPO and
[[Page 62696]]
State DOT may choose to include donut area projects in the MPO's plan
and TIP. However, this approach is not required by either DOT's
planning regulations or the conformity rule.
The interagency consultation group for each newly designated
nonattainment area that includes a donut portion should determine how
best to consider the donut area transportation system and new donut
area projects in the MPO's regional emissions analyses and conformity
determinations. For more discussion on how conformity determinations
should be made for donut areas, see the preamble to the original
conformity rule published on November 24, 1993 (58 FR 62207).
3. Isolated Rural Areas
Isolated rural nonattainment and maintenance areas are areas that
do not contain or are not part of any metropolitan planning area as
designated under 23 U.S.C. 134 and 49 U.S.C. 5303. Isolated rural areas
do not have metropolitan transportation plans or TIPs required under 23
U.S.C. 134 and 49 U.S.C. 5303 and 5304 for any portion of the area, and
do not have projects that are part of the emissions analysis of any
MPO's metropolitan transportation plan or TIP. Projects in such areas
are instead included only in statewide transportation improvement
programs (STIPs) and statewide transportation plans, when appropriate.
Like all newly designated nonattainment areas, the one-year
conformity grace period will begin on the effective date of an isolated
rural area's initial nonattainment designation. However, because these
areas do not have federally required metropolitan transportation plans
and TIPs, they are not subject to the frequency requirements for
conformity determinations on plans and TIPs specified in Sec.
93.104(b), (c) and (e) of the current rule. Instead, conformity
determinations in isolated rural areas are required only when a non-
exempt FHWA/FTA project(s) needs funding or approval. Therefore,
although the one-year conformity grace period is available to isolated
rural areas, no conformity consequences may apply upon the expiration
of the one-year grace period because these areas may not have any
projects that require funding and approval at that time.
In fact, many isolated rural areas may not have a transportation
project in need of federal funding or approval for some time after the
one-year grace period has ended, and therefore, will not have to
demonstrate conformity before that time. Once the conformity grace
period has expired, a conformity determination will only be required in
such areas the next time a non-exempt project needs funding or
approval. For non-exempt FHWA/FTA projects, a conformity determination
is normally required before the National Environmental Policy Act
(NEPA) process is completed, since NEPA is typically the first stage
requiring approval in a federal project's development. However,
isolated rural areas that are newly designated as nonattainment may
also be required to demonstrate conformity for subsequent funding and
approvals for project phases (e.g., right-of-way acquisition, final
design, construction) that occur after the grace period has ended, if
these projects have not yet been included in a conformity determination
and regional emissions analysis for the relevant pollutant and
standard. For more information on the conformity requirements for
isolated rural areas, see Sec. 93.109(g) of the current conformity
regulation; corresponding discussions on how to demonstrate conformity
in isolated rural areas can also be found in the preambles to the
November 24, 1993 transportation conformity final rule (58 FR 62207)
and the August 15, 1997 final rule (62 FR 43785). Please note that the
current rule's Sec. 93.109(g) would become Sec. 93.109(l) under
today's proposal, due to other proposed revisions and additions to this
regulatory section. The proposed changes to Sec. 93.109 do not change
the basic conformity requirements for isolated rural areas.
B. When Does Conformity Stop Applying for the 1-Hour Ozone Standard?
EPA proposed in a separate rulemaking to revoke the 1-hour ozone
standard--in whole or in part--one year after the effective date of
EPA's 8-hour ozone standard designations (June 2, 2003, 68 FR 32819).
Today's conformity proposal is consistent with the revocation options
in the June 2003 proposal, but does not seek additional comment on the
proposed revocation options.
Clean Air Act section 176(c)(5) requires conformity only in areas
that are designated nonattainment or maintenance for a given pollutant
and standard. Therefore, under either of the revocation options in
EPA's proposed 8-hour ozone implementation rule, conformity for the 1-
hour ozone standard would no longer apply in existing 1-hour ozone
nonattainment and maintenance areas once the standard and area
designations are revoked. The proposed one-year delay in the revocation
of the 1-hour ozone standard is linked to the one-year statutory
conformity grace period for newly designated 8-hour ozone nonattainment
areas. To preserve the progress that areas have made in achieving clean
air to date, EPA believes that 1-hour ozone nonattainment and
maintenance areas should continue to ensure that transportation
activities conform to the existing 1-hour ozone standard until
conformity for the new 8-hour ozone standard applies.
During the one-year grace period, areas that are currently subject
to the 1-hour ozone standard must continue to adhere to 1-hour
conformity requirements. Additionally, areas should consider at what
point they will determine conformity for the 8-hour ozone standard. For
example, if a conformity determination is made in June 2004, an area
may choose to demonstrate conformity for the 1-hour ozone standard and
address the 8-hour ozone standard at a later date near the end of the
one-year grace period. In contrast, if a conformity determination is
made in January 2005, an area may choose to demonstrate conformity for
both ozone standards because of the approaching end of the one-year
grace period.
Under EPA's June 2003 implementation proposal, when the 1-hour
standard is revoked, conformity would no longer apply for either ozone
standard in areas that are attaining the 8-hour ozone standard. See
EPA's proposed 8-hour implementation rule for more discussion on the
proposed options for revoking the 1-hour ozone standard (June 2, 2003;
68 FR 32818-32825).
C. When and for What Ozone Standard Does Conformity Apply in Areas With
an Early Action Compact for the 8-Hour Ozone Standard?
Areas that are violating the 8-hour ozone standard but are
attaining the 1-hour ozone standard--including 1-hour ozone maintenance
areas--were eligible for an Early Action Compact (EAC) as described in
EPA's November 14, 2002 memorandum entitled, ``Schedule for 8-Hour
Ozone Designations and its Effect on Early Action Compacts'' and EPA's
June 2, 2003 proposal for the implementation of the 8-hour ozone
standard (68 FR 32859-32860).
For areas participating in an EAC, EPA plans to provisionally defer
the effective date of the area's 8-hour ozone nonattainment designation
into the future. The deferral of the 8-hour designation effective date
is contingent upon the participating area's adherence to all the terms
and milestones of its EAC. If the EAC area attains the 8-hour
[[Page 62697]]
ozone standard by December 2007, EPA would take action in Spring 2008
to end the deferred nonattainment designation effective date and
replace it with an attainment designation that would become effective
shortly thereafter. If, however, an area misses a key EAC milestone,
the November 14, 2002 memorandum states that EPA would retract its
deferral, and the nonattainment designation would be effective shortly
after the missed milestone. Neither today's proposal nor the June 2,
2003 rulemaking take comment on the EAC program itself.
A deferred effective date for 8-hour ozone designations in areas
that opted into an EAC has certain implications for when conformity
applies for both the 8-hour and 1-hour ozone standards. Consistent with
the current conformity rule Sec. 93.102(d) and Clean Air Act section
176(c)(6), conformity for the 8-hour ozone standard would not apply
until one year after the effective date of an EAC area's 8-hour
nonattainment designation. Therefore, conformity for the 8-hour ozone
standard would apply in an EAC area only if the area fails to meet all
the terms and milestones of its compact and the nonattainment
designation becomes effective. In this case, conformity for the 8-hour
standard would be required one year after the effective date of EPA's
nonattainment designation that would occur shortly after a missed EAC
milestone. Conversely, if the area meets all of the EAC milestones and
attains the 8-hour ozone standard by December 2007, conformity for the
8-hour ozone standard would never apply since the area's ultimate
effective designation would be attainment for the 8-hour ozone
standard.
Conformity for the 1-hour ozone standard will continue to apply in
EAC areas that are currently 1-hour ozone maintenance areas, and
therefore are required to demonstrate conformity for that standard. For
these areas, the effective date of 8-hour designations would be
deferred and the 1-hour standard would not be revoked. If a maintenance
area meets all of its EAC milestones and attains the 8-hour ozone
standard by December 2007, conformity for the 1-hour standard would no
longer apply once EPA revokes that standard one year after the
effective date of EPA's 8-hour attainment designation (i.e., Spring
2009).
If, however, a 1-hour ozone maintenance area fails to meet a
milestone in its EAC, EPA would remove its deferral of the effective
date and the area's 8-hour ozone nonattainment designation would become
effective shortly after the missed milestone. Under this scenario,
conformity for the 1-hour ozone standard would continue to apply for
one year after the effective date of EPA's nonattainment designation,
at which time the 1-hour ozone standard would be revoked, the one-year
conformity grace period would expire and conformity for the 8-hour
ozone standard would begin to apply.
IV. General Changes in Interim Emissions Tests
A. Background
Conformity determinations for transportation plans and TIPs as well
as transportation projects not from a conforming plan and TIP must
include a regional emissions analysis that fulfills certain Clean Air
Act provisions. Section 176(c) requires that transportation activities
in nonattainment and maintenance areas must not worsen air quality. In
addition, transportation activities in ozone and CO areas of higher
nonattainment classifications need to contribute emission reductions
towards attainment.
The conformity rule provides for several different regional
emissions analysis tests that satisfy these Clean Air Act requirements
in different situations. Once a SIP with a motor vehicle emissions
budget (``budget'') is submitted for an air quality standard and EPA
finds the budget adequate or approves it as part of the SIP, conformity
is demonstrated using the budget test for that pollutant or precursor,
as described in Sec. 93.118 of the conformity rule. Before an adequate
or approved SIP budget is available, conformity of the transportation
plan, TIP, or project not from a conforming plan and TIP is
demonstrated with the interim emissions tests, as described in Sec.
93.119.
Today's proposal outlines several options for completing regional
emissions analyses for the new standards before SIP budgets for these
standards are available. According to EPA's proposed implementation
rule (June 2, 2003, 68 FR 32830-32837), 8-hour ozone nonattainment
areas of moderate and above classifications and some areas designated
under Clean Air Act subpart 1 would have two or three years from the
effective date of designations to submit a SIP (either for attainment
or reasonable further progress) with budgets for that standard. Areas
classified as marginal and some areas designated under subpart 1 (those
with early attainment dates) may not have 8-hour ozone SIP budgets for
some time, since their attainment dates would be relatively soon after
the date of their 8-hour ozone designations. These areas would only
have 8-hour ozone SIP budgets if they voluntarily submitted a control
strategy SIP or submitted a maintenance plan for redesignation. In
addition, EPA currently anticipates that PM2.5 nonattainment
areas would submit a SIP with budgets within three years of
PM2.5 nonattainment designations.
Therefore, as proposed, conformity would likely apply in all 8-hour
ozone and PM2.5 nonattainment areas before SIP budgets for
the new standards are available, and during this time period, interim
emissions tests would be used for conformity determinations. It is
important to note that EPA has historically called such tests the
``emission reduction tests.'' However, since the actual reduction of
emissions would not always be required in many areas (as described
below and in proposed Sec. 93.119), EPA is proposing to change
``emission reduction test'' to ``interim emissions test'' throughout
the conformity regulation.
The following paragraphs generally describe the proposed changes to
the interim emissions tests (under Sec. 93.119). Sections V., VI., and
VII. describe the application of these tests in different 8-hour ozone
and PM2.5 areas (under Sec. 93.109).
B. Baseline Year Test for 8-Hour Ozone and PM2.5 Areas
1. What Are We Proposing?
We are proposing to add the following tests to the conformity rule
for use in 8-hour ozone and PM2.5 nonattainment areas:
[sbull] The ``less-than-2002 emissions'' test, and
[sbull] The ``no-greater-than-2002 emissions'' test.
Under these interim emissions tests, conformity would be demonstrated
if the emissions from the proposed transportation system are less than
or no greater than 2002 motor vehicle emissions in a given area.
Proposed regulatory text for the 2002 baseline year tests can be found
in Sec. 93.119. See Sections V.-VII. for how these tests are proposed
to be applied in 8-hour ozone and PM2.5 areas.
Although today's action proposes no substantive change to the 1990
baseline year tests for existing areas, Sec. 93.119 has been
reorganized to also include the provisions for new 8-hour ozone and
PM2.5 areas.
2. Why Are We Proposing These Changes?
EPA believes that the year 2002 is more appropriate than the year
1990 in
[[Page 62698]]
meeting Clean Air Act provisions in new 8-hour ozone and
PM2.5 areas. Under the statute, transportation activities in
nonattainment and maintenance areas cannot increase the frequency or
severity of air quality violations. EPA selected the year 1990 as the
baseline year for nonattainment areas under the existing standards,
since that was the baseline year for many requirements in the Clean Air
Act Amendments of 1990, including the base year for SIP inventories. It
was also the year that the relevant Clean Air Act legislation was
enacted.\1\ However, 1990 has little relevance as a baseline year for
emissions under the new standards.
---------------------------------------------------------------------------
\1\ Please note that PM10 areas can use an alternate
baseline year for conformity if the applicable SIP is based on a
baseline inventory from a different calendar year (40 CFR
93.119(c)(2)). EPA is not proposing to offer an alternate baseline
year for PM2.5 areas since all PM2.5 areas
should be establishing 2002 baseline SIP inventories.
---------------------------------------------------------------------------
Therefore, EPA has preliminarily selected 2002 as the baseline year
for SIP inventories under the new 8-hour ozone and PM2.5
standards. EPA's November 18, 2002 memorandum, ``2002 Base Year
Emission Inventory SIP Planning: 8-hr Ozone, PM2.5, and
Regional Haze Programs,'' identifies 2002 as the anticipated emission
inventory base year for the SIP planning process to address both of
these pollutants and standards. In addition, EPA's 8-hour ozone
implementation rule proposes 2002 as the base year for 8-hour ozone SIP
inventories (June 2, 2003, 68 FR 32810). The 2002 SIP inventories would
provide the baseline level of motor vehicle emissions in 2002 to
complete either proposed baseline year test. In addition, EPA's memo
explains that ``the selection of 2002 harmonizes dates for other
reporting requirements, e.g., EPA's Consolidated Emissions Reporting
Rule (CERR) that requires submission of emission inventories every
three years; 2002 is one of the required years for such updates.''
Therefore, coordinating conformity's baseline with other data
collection and inventory requirements would allow state and local
governments to use their resources more efficiently.
Under Sec. 93.105(c)(1)(i) of the current rule, the interagency
consultation process would be used to determine the latest assumptions
and models for generating 2002 motor vehicle emissions to complete
either baseline year test. In general, the 2002 baseline year test can
be completed with the baseline year SIP's 2002 motor vehicle emissions
inventory, if the SIP has been submitted in time for the current
conformity determination. If the SIP has not been submitted, conformity
could be completed using draft 2002 baseline year emissions from a SIP
inventory under development. Alternatively, an MPO, in consultation
with state and local air agencies, could develop 2002 baseline year
emissions as part of the conformity analysis. Whatever the source, the
2002 baseline year emissions level that is used in conformity must be
based on the latest planning assumptions available for the year 2002,
the latest emissions model, and appropriate methods for estimating
travel and speeds as required by Sec. Sec. 93.110, 93.111 and 93.122
of the current conformity rule.
C. Build/No-Build Test for Existing and New Nonattainment Areas
1. What Are We Proposing?
EPA is proposing a revised build/no-build test for certain existing
and new nonattainment areas. Under the current rule, conformity is
demonstrated with the ``build-less-than-no-build'' test for all ozone,
CO, PM10, and NO2 areas. The proposal would amend
Sec. 93.119 to create the ``build-no-greater-than-no-build'' test,
where conformity would be met if emissions from the proposed
transportation system (``build'') were less than or equal to emissions
from the existing transportation system (``no-build'').
Under this proposal, the build-no-greater-than-no-build test would
be available to the following subset of new and existing areas:
[sbull] 8-hour ozone areas of marginal and below classifications,
[sbull] 8-hour ozone areas designated nonattainment under Clean Air
Act subpart 1,
[sbull] All PM2.5 areas,
[sbull] 1-hour ozone areas of marginal and below classifications,
[sbull] CO areas of moderate classification with design values less
than 12.7 ppm,
[sbull] Not classified CO areas,
[sbull] All PM10 areas, and
[sbull] All NO2 areas.
Sections V., VI., and VII. of this proposal provide more detail
regarding the application of the build/no-build test in various 8-hour
ozone and PM2.5 areas.
For areas that would be using the build-no-greater-than-no-build
test, EPA is also proposing to modify Sec. 93.119(e) of the current
rule so that a regional emissions analysis would not be necessary for
future analysis years where the build (or ``action'' scenario) and no-
build (or ``baseline'' scenario) contain exactly the same
transportation projects and planning assumptions, for the reasons
described below. Such a case may occur in smaller areas that do not
have projects planned for later years in the regional emissions
analysis, and population, land use, economic, and other assumptions do
not change between the build and no-build scenarios for those years.
Under this proposal, a regional emissions analysis would continue to be
required for applicable years where the action and baseline scenarios
contain different projects and assumptions.
This proposed change can be found in Sec. 93.119(g)(2) of the
proposed regulatory text. This proposal would require that the
conformity determination include documentation that a regional
emissions analysis is not completed for analysis years in which no new
projects are proposed and no change in planning assumptions has
occurred.
Finally, Sec. 93.119 is being reorganized in general to
accommodate the above and other changes articulated in this proposal
for new and existing areas.
2. Why Are We Proposing These Changes?
EPA believes that changing the build/no-build test for certain
areas is consistent with Clean Air Act section 176(c)(3)(A)(iii) which
specifically requires that transportation plans and TIPs contribute to
annual emissions reductions only in the higher classifications of ozone
and CO areas. This statutory provision does not apply to any other type
of nonattainment area.
Instead, all other areas must demonstrate only that transportation
activities do not cause or contribute to new violations, increase the
frequency or severity of existing violations, or delay timely
attainment, pursuant to Clean Air Act section 176(c)(1)(B). EPA
believes that if the ``build'' is no greater than (i.e., less than or
equal to) the ``no-build,'' that such a demonstration is made, since
only an increase in emissions would worsen air quality.
This change to the build/no-build test would make its
implementation consistent with the implementation of the baseline year
tests: in ozone and CO areas of higher classifications, expected
emissions from the proposed transportation system must be less than
emissions in the baseline year, while in all other areas, expected
emissions must be no greater than emissions in the baseline year. For
further discussion of the rationale for how and where the baseline year
tests apply, please refer to the preamble to the January 11, 1993
proposed rule (58 FR 3782-3784) and the preamble to the July 9, 1996
proposed rule (61 FR 36116-36117).
Today's proposal would provide flexibility to certain areas by
allowing
[[Page 62699]]
emissions from the proposed transportation system to be less than or
equal to the emissions from the current system, rather than requiring
an actual reduction in emissions as is required for ozone and CO areas
with higher classifications. Where the Clean Air Act does not require
such emission reductions, EPA believes that if transportation
activities can be found to conform by producing no adverse impacts on
the number and severity of air quality violations, such a demonstration
would be consistent with the Clean Air Act requirements.
The proposal would also reduce the resource burden for analysis
years where no new projects are proposed to be completed and
assumptions do not change. Under the current rule, a regional emissions
analysis is required for all analysis years, even if no new projects
are proposed for analysis years in the distant future. For such
analysis years, the emissions from the build and no-build scenarios
contain the same projects and assumptions, and therefore, result in
exactly the same level of emissions.
One may argue that it would be obvious that the build-no-greater-
than-no-build test is passed without calculating the emissions for such
analysis years. Furthermore, the Clean Air Act requirement to not
worsen air quality may be met by documenting in the conformity
determination that projects, assumptions, and thus emissions would
remain the same for affected analysis years. On the other hand, one may
argue that a build/no-build regional analysis should still be completed
for all analysis years to inform long-term transportation and air
quality planning. However if such information is deemed appropriate,
analyses could still be done voluntarily. EPA requests comment on this
proposed change to the build/no-build analysis year requirements.
D. Test Options for Ozone and CO Nonattaintment Areas of Higher
Classifications
1. What Are We Proposing?
EPA is proposing three options that would affect regional emissions
analyses before adequate or approved SIP budgets are established in
ozone and CO areas of higher nonattainment classifications. Under the
current rule, these areas are required to complete both the build-less-
than-no-build and less-than-baseline year tests when a conformity
determination is completed during this time period. This proposal would
affect moderate and above 1-hour and 8-hour ozone areas, moderate CO
areas with design values greater than 12.7ppm, and serious CO areas.
EPA requests comment on the following proposed options for these
areas:
(1) Complete both the build-less-than-no-build and less-than-
baseline year tests;
(2) Complete either the build-less-than-no-build or less-than-
baseline year test; or
(3) Require that only one of these tests be met and eliminate the
second test as an option altogether.
The proposed regulatory text in Sec. 93.119(b)(1) reflects the
first option, although EPA could finalize any one of the three proposed
options.
The first option would retain the current conformity rule
requirement that such areas use both the current build-less-than-no-
build test and the less-than-baseline year test. Under this option,
emissions from the proposed transportation system (build) would have to
be less than emissions from the existing system (no build) and less
than emissions in 1990 (for higher classification 1-hour ozone and CO
areas) or 2002 (for higher classification 8-hour ozone areas).
The second proposed option would allow these areas to choose
between the current build-less-than-no-build test and the less-than-
baseline year test (either 1990 or 2002, as applicable). The final
option would require only one test in these areas while eliminating the
second test as an option altogether. For example, this option could
require the less-than-baseline year test and delete the build/no-build
test from the conformity rule as an option for affected areas.
2. Why Are We Proposing These Options?
EPA is interested in exploring alternatives in an effort to provide
the most flexible and least burdensome way of meeting statutory
requirements. When EPA first promulgated the transportation conformity
rule (January 11, 1993, 58 FR 3782), EPA determined that moderate and
above 1-hour ozone areas and CO areas of higher classifications would
have to meet both the build-less-than-no-build test and the less-than-
baseline year test to satisfy both statutory requirements that
transportation planning activities not cause or contribute to
violations of the standards (Clean Air Act section 176(c)(1)(B)) and
that such activities contribute to annual emissions reductions (Clean
Air Act section 176(c)(3)(A)(iii)).
The current conformity rule requires higher classification ozone
and CO areas to meet both of these tests in the absence of an adequate
or approved SIP budget (option 1). For the same reasons described in
previous rulemakings,\2\ EPA proposes as its first option to continue
these same requirements for current 1-hour ozone and CO and new 8-hour
ozone nonattainment areas with higher classifications. EPA believes
that the current conformity rule would continue to assist areas in
meeting Clean Air Act requirements.
---------------------------------------------------------------------------
\2\ January 11, 1993, proposed conformity rule (58 FR 3782-3784)
and the July 9, 1996, proposed rule (61 FR 36116-36117).
---------------------------------------------------------------------------
However, ten years of experience in implementing the conformity
rule has caused EPA to consider whether either the build-less-than-no-
build test or less-than-baseline year test (option 2) may also be
sufficient to meet both the statutory requirements that transportation
activities not contribute to violations and contribute to emissions
reductions. First, the build-less-than-no-build test may by itself
demonstrate that emissions from the proposed transportation plan would
be lower than projected future emissions from the existing planned
transportation system, since the build scenario must be less than the
no-build scenario. Thus, one might conclude that emissions from the
proposed transportation plan contribute to emissions reductions and may
not cause or contribute to new violations of the ozone standard.
Alternatively, if emissions are reduced from baseline year levels,
then one might conclude that air quality would not be worsened from
current levels. The less-than-baseline year test by itself might also
demonstrate that implementation of the proposed transportation system
may produce actual emissions reductions from the motor vehicle emission
baseline year, since emissions must be less than or reduced from the
baseline year. Thus, by using only the less-than-baseline year test,
the transportation plan may both contribute to emissions reductions and
not itself produce emissions that could cause or contribute to any
violations. EPA requests comment on this alternative of offering a
choice between the build-less-than-no-build and less-than-baseline year
tests to meet both statutory conformity requirements, for ozone areas
and CO areas of higher classifications.
Further, EPA proposes a third option that such areas be required to
meet only one interim emissions test while eliminating the other
interim emissions test as an option altogether. As described above for
option 2, if it can be concluded that either test is sufficient
[[Page 62700]]
for meeting statutory requirements, then retaining only one test in the
conformity regulation would also meet the statute. EPA requests comment
on this alternate proposal.
V. Regional Conformity Tests in 8-Hour Ozone Areas That Do Not Have 1-
Hour Ozone SIPs
A. What Are We Proposing?
EPA is proposing several options for completing regional emissions
analyses in 8-hour ozone areas that do not have an existing 1-hour
ozone SIP with applicable budgets. These 8-hour ozone areas either were
never designated nonattainment under the 1-hour ozone standard or were
1-hour ozone nonattainment areas that for various reasons never
submitted a control strategy SIP or maintenance plan with approved or
adequate motor vehicle emissions budgets. A regional emissions analysis
is the part of a conformity determination that assesses whether the
emissions produced by transportation activities are consistent with
state and local air quality goals.
1. Conformity After 8-Hour Ozone SIP Budgets Are Adequate or Approved
Once a SIP for the 8-hour ozone standard is submitted with a
budget(s) that EPA has found adequate or approved, the budget test
would be used in accordance with Sec. 93.118 to complete all
applicable regional emissions analyses. Conformity would be
demonstrated if the transportation system emissions reflecting the
proposed transportation plan, TIP, or project not from a conforming
plan and TIP were less than or equal to the motor vehicle emissions
budget level defined by the SIP as being consistent with clean air.
The first 8-hour ozone SIP could be a control strategy SIP required
by the Clean Air Act (e.g., rate-of-progress SIP or attainment
demonstration) or a maintenance plan. The first SIP could also be
submitted earlier and demonstrate a significant level of emission
reductions from the current level of emissions. For example, an area
could submit an early 8-hour ozone SIP that demonstrates a specific
percentage of emission reductions (e.g., 5-10%) in the year 2007, from
2002 baseline year emissions. An early 8-hour SIP would include
emissions inventories for all emissions sources for the entire 8-hour
nonattainment area and would meet applicable requirements for
reasonable further progress SIPs. EPA has discussed such an option in
the context of its 8-hour ozone implementation rule (June 2, 2003, 68
FR 32822) and the 1997 final conformity rule (August 15, 1997, 62 FR
43798-43799).
Whatever the case, the interim emissions test(s) would no longer
apply for conformity purposes for either NOX or VOCs once an
8-hour ozone SIP is submitted and EPA has found adequate or approved
its budget(s) for that ozone precursor. Section 93.118 of the current
rule describes the budget test; references in Sec. 93.118(a) are being
updated in this proposal to be consistent with proposed changes in
Sec. 93.109.
EPA encourages nonattainment areas to develop their 8-hour ozone
SIPs in consultation with state and local air quality and
transportation agencies to facilitate future conformity determinations.
EPA Regions are available to assist on an ``as needed'' basis,
including consultation on the development of early 8-hour ozone SIPs.
2. Conformity Before 8-Hour Ozone SIP Budgets Are Adequate or Approved
The following paragraphs outline the options for doing conformity
before adequate or approved 8-hour ozone SIP budgets are established in
8-hour ozone areas covered by this section of the proposal.
Marginal and below classifications and subpart 1 areas. 8-hour
ozone areas that are not of moderate and above classifications include:
8-hour ozone areas of marginal and below classifications and 8-hour
ozone areas designated nonattainment under Clean Air Act subpart 1.
EPA proposes that these 8-hour ozone areas must pass one of the
following tests for conformity determinations that occur before
adequate or approved 8-hour ozone SIP budgets are in place:
[sbull] The build-no-greater-than-no-build test, or
[sbull] The no-greater-than-2002 emissions test.
In other words, this proposal would give these 8-hour ozone areas a
choice between two interim emissions tests, rather than provide only
one test or require that both tests be completed. Conformity would be
demonstrated if the transportation system emissions reflecting a
proposed transportation plan or TIP were less than or equal to either
the emissions from the existing transportation system (no-build) or the
level of motor vehicle emissions in 2002.
A discussion of the proposed changes to the interim emissions tests
can be found in Section IV. of this proposal. See the proposed
regulatory text in Sec. 93.119(b)(2). See EPA's June 2, 2003, proposed
implementation rule for the 8-hour ozone standards (68 FR 32811-32816)
for more information on the proposal to designate some 8-hour ozone
areas under Clean Air Act subpart 1.
Moderate and above classifications. As described in Section IV.D.,
EPA proposes three options for regional emissions analyses in moderate
and above 8-hour ozone areas that do not have adequate or approved 1-
hour ozone SIPs. The options are:
(1) Complete both the build-less-than-no-build and less-than-
baseline year tests;
(2) complete either the build-less-than-no-build or less-than-
baseline year test; or
(3) require that only one of these tests be met and eliminate the
remaining test as an option altogether.
The proposed regulatory text in Sec. 93.119(b)(1) reflects the first
option, although EPA could finalize any one of the three proposed
options.
3. Options for 8-Hour Ozone Areas That Qualify for EPA's Clean Data
Policy
The proposal would also extend the current conformity rule's
flexibility for certain 1-hour ozone ``clean data areas'' to 8-hour
ozone areas that are required to meet certain SIP requirements (e.g.,
moderate and above ozone areas). Today's conformity proposal is also
consistent with the clean data option in EPA's proposed 8-hour ozone
implementation rule (June 2, 2003, 68 FR 32835).
As background, EPA issued a policy memorandum on May 10, 1995 that
addressed SIP requirements in a small number of moderate and above
ozone areas (entitled ``Reasonable Further Progress, Attainment
Demonstrations, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard''). Under the
May 1995 policy, EPA could declare through rulemaking that a moderate
or above 1-hour ozone area was a ``clean data area,'' if an area had
sufficient monitoring data showing attainment of the 1-hour ozone
standard. A clean data area is not required to submit any outstanding
reasonable further progress or attainment SIPs, since the area is
already attaining the standard. Section 93.109(c)(5) of the existing
conformity rule allows clean data areas for the 1-hour ozone standard
to request that a budget based on the level of motor vehicle emissions
in the most recent year of clean data be established through EPA's
rulemaking that determines an area to be a clean data area.
Similarly, today's proposal would allow 8-hour ozone areas that
have clean data and are required to submit
[[Page 62701]]
control strategy SIPs to use one of the following three tests to
complete conformity:
[sbull] The interim emissions tests, as described above;
[sbull] The budget test using the adequate or approved motor
vehicle emissions budgets in a submitted 8-hour ozone SIP; or
[sbull] The budget test using the motor vehicle emissions level in
the most recent year of clean data as budgets, if the state or local
air quality agency requests that budgets be established by EPA's clean
data rulemaking for the 8-hour ozone standard.
The proposed regulatory text for these options is in Sec.
93.109(d)(5).
This part of the proposal would be provided to moderate and above
ozone areas with three years of clean data for the 8-hour ozone
standard that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act's reasonable further
progress and attainment demonstration requirements. In addition, some
subpart 1 areas would also be covered by this conformity proposal if
such areas are required to submit control strategy SIPs, as proposed in
the June 2003 ozone implementation rule. Please note that EPA's
proposed clean data SIP policy and therefore today's conformity
proposal might not be used by any area for the first conformity
determination, since newly designated nonattainment areas may not yet
have three years of clean data for the 8-hour ozone standard.
4. General Implementation of Regional Tests
The proposal also retains the existing rule's general requirement
that regional emissions analyses for ozone areas must address ozone
precursors, which are nitrogen oxides (NOX) and volatile
organic compounds (VOCs) (40 CFR 93.102(b)(2)(i)). All proposed interim
emissions test options would be required to address both VOC and
NOX precursors, unless EPA determines that additional
reductions of NOX would not contribute to attainment for the
8-hour ozone standard and issues a NOX waiver under Clean
Air Action section 182(f). This is consistent with the current
conformity rule, although the proposal moves these provisions to Sec.
93.119(f) due to reorganization of Sec. 93.119. Finally, the proposal
retains the current rule's provision that the interim emissions test(s)
be completed for NOX if a reasonable further progress SIP is
submitted with only a budget for VOCs (e.g., a 15% SIP). See Sec.
93.109(d)(3) for this proposed regulatory text.
The consultation process should be used to determine the models and
assumptions for completing either the interim emissions tests or the
budget test, as required by Sec. 93.105(c)(1)(i) of the current rule.
See the proposed regulatory text in Sec. 93.109(d) for a general
overview of when the budget test and interim emissions tests would
apply in 8-hour ozone nonattainment areas without 1-hour ozone SIP
budgets.
B. Why Are We Proposing These Options?
EPA has been told by some stakeholders that it is reasonable and
credible to provide 8-hour ozone areas with the same flexibility that
applies under the 1-hour ozone standard. To that end, EPA has proposed
that 8-hour ozone areas with fewer SIP requirements (e.g., marginal and
subpart 1 areas) continue to have the choice offered by the current
rule between the baseline year and build/no-build tests. EPA gave this
choice to 1-hour ozone areas as described in the preamble to a previous
proposal (July 9, 1996, 61 FR 36116-36117). EPA continues to believe
that allowing these areas a choice of conformity tests during the time
period before adequate or approved 8-hour ozone SIP budgets are in
place is environmentally protective and meets the statutory
requirements.
As noted above, we are also considering three options for moderate
and above ozone areas to ensure that every flexibility is provided to
new 8-hour ozone areas while achieving environmental benefits. Please
see EPA's rationale for these proposed options in Section IV.D.2.
EPA is also responding to stakeholder requests that the rule
continue to provide more choices to areas that would qualify for EPA's
proposed 8-hour ozone clean data policy. If the proposed clean data
policy is included in the final 8-hour ozone implementation rule, EPA
proposes to also include the proposed conformity options for such areas
in the final conformity rule for the new standards. See EPA's previous
discussion and rationale for the clean data options from the preamble
to the 1996 proposal and 1997 final rules (July 9, 1996, 61 FR 36116;
and August 15, 1997, 62 FR 43784-43785, respectively).
VI. Regional Conformity Tests in 8-Hour Ozone Areas That Have 1-Hour
Ozone SIPs
A. What Are We Proposing?
EPA is proposing several options for completing regional emissions
analyses in 8-hour ozone areas that have an existing 1-hour ozone SIP
that covers either some or all of the 8-hour ozone nonattainment area.
1. Conformity After 8-Hour Ozone SIP Budgets Are Adequate or Approved
Once a SIP for the 8-hour ozone standard is submitted with
budget(s) that EPA has found adequate or approved, the budget test
would be used to complete the regional emissions analysis. The first 8-
hour ozone SIP could be a control strategy SIP required by the Clean
Air Act (e.g., rate-of-progress SIP or attainment demonstration). The
first SIP could also be submitted earlier and demonstrate a significant
level of emission reductions from the current level of emissions, as
described in Section V.A.1. Interim emissions tests and/or any existing
1-hour ozone SIP budgets (as described below) would no longer be used
for conformity for either NOX or VOCs once an adequate or
approved 8-hour ozone SIP is established for such a precursor. State,
local, and Federal air quality and transportation agencies should
consult on the development of 8-hour ozone SIPs as appropriate.
2. Conformity Before 8-Hour Ozone SIP Budgets Are Adequate or Approved
The following paragraphs outline the options for determining
conformity before adequate or approved 8-hour ozone SIP budgets are in
place in 8-hour ozone areas with existing 1-hour ozone SIP budgets. EPA
is proposing that these 8-hour ozone areas be able to select one test
option from among a menu of test options for completing the regional
emissions analysis requirement, rather than be required to complete a
specific test(s).
Summary of Options: The following table summarizes the menu of
proposed options, based on the placement of 1-hour and 8-hour ozone
nonattainment boundaries:
----------------------------------------------------------------------------------------------------------------
Boundary scenario Menu of options Proposed regulatory text
----------------------------------------------------------------------------------------------------------------
8-hour area = 1-hour area.............. Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
OR.
Budget test using 1-hour Sec. 93.109(e)(2)(ii)(A).
budget(s).
8-hour area < 1-hour area.............. Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
OR.
[[Page 62702]]
Budget test for 1-hour Sec. 93.109(e)(2)(ii)(B) OR
area (with 1-hour
budget(s)) OR.
Budget test for 8-hour Sec. 93.109(e)(2)(ii)(B).
area (with applicable
subset of 1-hour
budget(s)).
8-hour area 1-hour area.... Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
OR.
Budget test (with 1-hour Sec. 93.109(e)(2)(ii)(C).
budget(s)) PLUS Interim
emissions test(s) (for
remainder of 8-hour area).
Portions of 8-hour and 1-hour areas Interim emissions test(s) Sec. 93.109(e)(2)(i) OR
overlap. OR.
Budget test (with Sec. 93.109(e)(2)(ii)(C)
applicable subset of
areas 1-hour budget(s))
PLUS Interim emissions
test(s) (for remainder of
8-hour area).
----------------------------------------------------------------------------------------------------------------
EPA has posted pictures of hypothetical boundary scenarios for
further clarification on the transportation conformity website listed
in Section I.B.2.
Please note that the proposed options are for completing conformity
under the 8-hour ozone standard. EPA is proposing that the budget test
with existing 1-hour ozone SIP budgets be used as a test option (or
proxy) for the 8-hour ozone standard, rather than the 1-hour ozone
standard. Conformity for the 1-hour and 8-hour ozone standards would
not apply at the same time, as proposed in EPA's 8-hour ozone
implementation rule (June 2, 2003, 68 FR 32819). In addition, for the
reasons explained below, EPA is not proposing that 8-hour ozone areas
must use their 1-hour ozone budgets if such budgets exist; we are
proposing only that the budget test using the 1-hour ozone budgets
would be an option as appropriate in addition to the interim emissions
test(s).
The following paragraphs describe the above table in further detail
as well as sub-options that are being proposed for some boundary
scenarios. For all scenarios, once an area selects a particular
test(s), EPA proposes that it must be used consistently for all
regional analysis years.
Scenario where 8-hour and 1-hour ozone boundaries are exactly the
same. In this case, the 8-hour and 1-hour ozone boundaries cover
exactly the same geographic area. EPA proposes to require such areas
meet one of the following:
[sbull] The interim emissions tests, depending upon an area's
classification or designation; or
[sbull] The budget test using existing adequate or approved 1-hour
ozone SIP budgets.
See Section V. for further description of which interim emissions
test(s) would apply in a given 8-hour ozone area.
Scenario where the 8-hour ozone boundary is smaller than and within
the 1-hour ozone boundary. In this case, the 8-hour nonattainment area
is smaller than and completely encompassed by the 1-hour nonattainment
boundary. Again, EPA proposes to require such areas meet one of the
following:
[sbull] The interim emissions tests, depending upon an area's
classification or designation;
[sbull] The budget test using the subset or portion of existing
adequate or approved 1-hour ozone SIP budgets that overlaps with the 8-
hour nonattainment area; or
[sbull] The budget test using the existing adequate or approved 1-
hour ozone SIP budgets for the entire 1-hour nonattainment area (any
additional reductions must come from the 8-hour nonattainment area, as
described below).
EPA also requests comment on when it would be feasible and
appropriate to allow an area to use a subset or portion of a 1-hour
ozone SIP budget for 8-hour ozone conformity. Such a test option
requires an area to subtract from the 1-hour ozone budget and
conformity analysis those emissions that are not produced in the 8-hour
ozone area. For example, this would be straightforward if the on-road
mobile inventory for the 1-hour ozone SIP budget is calculated by
county, and the portion to be subtracted is a specific county that is
not part of the 8-hour ozone area. However, this may not be appropriate
in the case where the SIP does not clearly specify the amount of
emissions in the portion of the 1-hour ozone area not covered by the 8-
hour ozone area. The consultation process would be used to determine
when using a portion of a 1-hour ozone SIP budget is appropriate, and
if so, how deriving such a portion would be accomplished. EPA requests
other examples for when using a portion of a 1-hour ozone SIP budget
would be feasible and appropriate.
In addition, EPA notes that adjusting the 1-hour ozone budgets for
purposes of conducting 8-hour ozone conformity analyses would be
legally appropriate since any 1-hour ozone SIP demonstrations and
budgets would only be used as a proxy for the 8-hour ozone standard and
would themselves no longer be for an applicable standard (i.e., since
the 1-hour ozone standard would be revoked under EPA's proposed 8-hour
ozone implementation rule).
A conformity determination based on the entire 1-hour ozone budget
would include a comparison between the on-road regional emissions
produced in the entire 1-hour ozone area and existing 1-hour ozone
budgets. However, if additional reductions are required to meet
conformity, EPA proposes that such reductions could only be obtained
within the 8-hour ozone nonattainment area, since the conformity
determination would be for the 8-hour ozone standard.
Scenarios where the 8-hour ozone boundary is larger than or
overlaps with a portion of the 1-hour ozone boundary. This part of the
proposal covers the third and fourth scenarios listed in the above
table in this section. The third scenario would result if an entire 1-
hour ozone nonattainment area is within a larger 8-hour ozone
nonattainment area. The fourth scenario would result if 1-hour and 8-
hour ozone nonattainment boundaries partially overlap. In both types of
8-hour ozone areas, the 1-hour ozone budgets would not cover the entire
8-hour nonattainment area. Therefore, existing 1-hour ozone budgets
cannot be the sole test of conformity under the 8-hour ozone standard
in these scenarios, since a conformity determination must include a
regional emissions analysis that covers the entire 8-hour ozone
nonattainment area.
EPA is proposing that areas in these scenarios meet one of the
following:
[sbull] The applicable interim emissions tests for the entire 8-
hour ozone area; or
[sbull] The budget test based on the 1-hour ozone budget(s) for the
1-hour ozone area or relevant subset or portion of the 1-hour ozone
area, plus the interim emissions test(s) for the remaining portion of
the 8-hour ozone nonattainment area.
As stated above, once an area selects a particular test(s), EPA
proposes that it must be used consistently for all regional analysis
years.
For example, a marginal or below 8-hour ozone area that is larger
than the
[[Page 62703]]
1-hour ozone area (third scenario) could choose to complete the budget
test for the 1-hour ozone nonattainment area and the no-greater-than-
2002 test for the remaining portion of the 8-hour ozone area for the
attainment year, an intermediate year, and the last year of the
transportation plan. EPA is not proposing to require such an area to
complete the interim emissions test for the entire 8-hour ozone
nonattainment area in all cases, in addition to the budget test with
the 1-hour ozone SIP. EPA acknowledges that there may be cases where it
is difficult to separately model the remaining portion of the 8-hour
ozone area, e.g., in an area where the remaining 8-hour ozone area is a
ring of counties around the 1-hour ozone area. However, in this case,
an area could always choose to complete only the interim emissions
test(s) for the entire 8-hour ozone area, rather than the budget test
with 1-hour ozone SIP budgets for the 1-hour ozone area.
For areas covered by the third boundary scenario in the above table
where the 8-hour ozone area is larger than the 1-hour ozone area, the
budget test would be completed for the entire 1-hour ozone area, as is
done for conformity determinations for the 1-hour ozone standard. For
areas covered by the fourth scenario where 8-hour and 1-hour ozone
areas overlap, the budget test would only be done for the portion of
the 1-hour ozone area and budgets that overlap with the 8-hour ozone
area. EPA acknowledges that the budget test with a portion of a 1-hour
ozone budget may be difficult to implement in many areas, since it
assumes that areas will be able to determine easily the amount of
budget emissions that are in the relevant portion. EPA requests
examples for when using a portion of a 1-hour ozone budget would be
appropriate and how to calculate such a portion. The consultation
process would be used to determine whether the budget test for the
fourth scenario is appropriate and if so, how it should be implemented.
Finally, EPA notes that the consultation process should be used to
determine which analysis years should be selected for regional
emissions analyses where the budget test and interim emissions tests
are used. Sections 93.118(d) and 93.119(e) of the current conformity
rule require similar analysis years for modeling in the last year of
the transportation plan and for any intermediate years for both budget
and interim emissions tests. However, the analysis years for the short-
term may be different for the budget test and interim emissions tests
in some cases. For example, Sec. 93.118 requires modeling for the
budget test to be completed for the attainment year if it is within the
timeframe of the transportation plan; Sec. 93.119 requires the first
analysis year for the interim emissions tests to be within the first
five years of the transportation plan. The consultation process can be
used to pick analysis years that would satisfy both the budget and
interim emissions test requirements for areas using both tests prior to
adequate or approved 8-hour ozone SIP budgets being established.
3. Options for 8-hour Ozone Areas That Qualify for EPA's Clean Data
Policy
As described in Section V.A.3., today's conformity proposal would
also extend the current rule's flexibility for certain 1-hour ozone
areas to 8-hour ozone areas that are covered by EPA's June 2, 2003
proposal (68 FR 32835). The June 2003 proposal extends the existing 1-
hour ozone clean data policy for the SIP process to future 8-hour ozone
areas that are required to submit control strategy SIPs.
Specifically, we are proposing to require such 8-hour ozone areas
with adequate or approved 1-hour ozone SIP budgets to meet one of the
following four options to complete conformity:
[sbull] The interim emissions tests, as described in Section V.;
[sbull] The budget test using the adequate motor vehicle emissions
budgets in a submitted control strategy SIP for the 8-hour ozone
standard;
[sbull] The budget and/or interim emissions tests using existing 1-
hour ozone SIP budgets and/or applicable interim emissions tests, as
described in A.3. of this section for different scenarios of 1-hour and
8-hour ozone nonattainment boundaries; or
[sbull] The budget test using the motor vehicle emissions level in
the most recent year of clean data as budgets, if such budgets are
established by the EPA rulemaking that determines an area to have clean
data for the 8-hour ozone standard.
See the proposed regulatory text for these options in Sec.
93.109(e)(4).
4. General Implementation of Regional Tests
The proposal also retains the existing rule's general requirements
that regional emissions analyses for ozone areas must address
NOX and VOC precursors (40 CFR 93.102(b)(2)(i)). All
proposed interim emissions test options would be required to address
both precursors, unless EPA determines that additional reductions of
NOX would not contribute to attainment for the 8-hour ozone
standard and issues a NOX waiver under Clean Air Action
section 182(f). This is consistent with the current conformity rule,
although the proposal moves these provisions to Sec. 93.119(f) due to
reorganization of Sec. 93.119. Finally, the proposal retains the
current rule's provision that the interim emissions test(s) be
completed for NOX if a reasonable further progress SIP is
submitted with only a budget for VOCs (e.g., a 15% SIP). See Sec.
93.109(e)(3) for this proposed regulatory text.
The consultation process should be used to determine the models and
assumptions for completing the interim emissions tests and/or the
budget test, as required by Sec. 93.105(c)(1)(i) of the current rule.
The consultation process can also be used to select the conformity
test(s) before 8-hour ozone SIPs are submitted. See the proposed
regulatory text in Sec. 93.109(e) for a general overview of when the
budget test and interim emissions tests apply in 8-hour ozone
nonattainment areas with 1-hour ozone SIP budgets.
B. Why Are We Proposing These Options?
EPA has received stakeholder input asking EPA to provide 8-hour
ozone areas with conformity flexibility in the time period before 8-
hour ozone SIPs are established. In response, EPA is proposing a menu
of options for 8-hour ozone areas that have existing 1-hour ozone SIP
budgets, rather than requiring only one conformity test be used.
Allowing areas to choose between the interim emissions tests and/or the
budget test based on 1-hour ozone SIPs would accommodate the many
different boundary scenarios described in VI.A.2.
EPA has previously found that the interim emissions tests are
sufficient for meeting the Clean Air Act requirements for a given
standard before a SIP with adequate budgets is in place for that
standard. As discussed in Sections IV. and V. of this proposal, EPA
believes that Clean Air Act sections 176(c)(1) and (c)(3)(A)(iii) can
be met through only one or a combination of interim emissions tests,
depending upon an area's classification.
Our proposal to allow areas to use the 1-hour ozone budgets before
8-hour ozone budgets are available does not mean that areas would be
determining conformity for the 1-hour ozone standard. As articulated in
the proposed 8-hour ozone implementation rule, EPA is proposing that
conformity for only one ozone standard apply at a time (June 2, 2003,
68 FR 32823-32824).
We are proposing to offer the budget test as a choice because we
think that many 1-hour ozone budgets provide as good an analytical test
as the other tests that exist or are proposed for use before
[[Page 62704]]
8-hour ozone budgets are available: the build/no-build and baseline
year tests. In general, EPA believes the 1-hour ozone budgets may be an
appropriate test like the build/no-build test, because the 1-hour ozone
VOC and NOX budgets that an area has represent a reduction
in emissions that is consistent with the applicable SIP for that
standard. Although the 8-hour ozone standard is more stringent than the
1-hour ozone standard, many 1-hour ozone budgets have in fact served to
reduce emissions over time. For example, the Clean Air Act requires
that transportation plans and TIPs reduce emissions in the higher
classifications of ozone and CO areas before a SIP for a given
pollutant and standard is developed. We believe that the budget test
using 1-hour ozone budgets may meet this requirement at least as well
as the build/no-build test.
EPA also believes that the 1-hour ozone budgets may be comparable
to the baseline year test for conformity under the 8-hour ozone
standard. The baseline year test could actually be thought of as a type
of budget test before 8-hour ozone budgets are established: emissions
in the year 2002 become the ceiling on emissions, a defacto budget. The
budgets in 1-hour ozone SIPs are at least as good as the 2002 baseline
year test if areas are meeting them when they are designated for the 8-
hour ozone standard. In the case where 2002 emissions are higher than
established 1-hour ozone budgets, the budget test would actually be a
more conservative test. However, in the case where 2002 emissions are
lower than the 1-hour ozone budgets, the budgets should still be a
valid test since they provide for attainment of the 1-hour ozone
standard. In other words, consistency with the 1-hour budgets would
have resulted in a certain level of emissions at the time areas were
designated for the 8-hour ozone standard. An area's designation as a
nonattainment area for the 8-hour ozone standard would be based on its
air quality monitoring data for the years 2001-2003. Therefore, EPA
does not anticipate that many areas will have 2002 emissions
significantly lower than 1-hour budgets since areas would not have
likely put control measures in place by 2002 that would result in lower
emissions for that year. We believe that consistency with the 1-hour
ozone budgets would assure an emissions level that is in line with the
baseline year test, since the baseline year is 2002.
However, EPA does not believe that 8-hour ozone areas that have 1-
hour ozone budgets must use these budgets for conformity prior to the
development of 8-hour ozone budgets. Although an area could conclude
through the consultation process that use of a 1-hour ozone budget
would be appropriate, there may be many cases where the 1-hour ozone
budget would not provide the best test for conformity to the 8-hour
ozone standard. For instance, 1-hour ozone budgets could be for a year
different than the year for which 8-hour ozone conformity is being
demonstrated. For example, 1-hour budgets could be from a rate-of-
progress SIP (e.g., a 15% plan) for a past milestone year, such as
1996, that is no longer relevant to projected emissions in the post-
2002 period for the 8-hour ozone standard. In contrast, an area may
only have a 1-hour ozone maintenance plan with budgets for a year
beyond the 8-hour ozone attainment year. The planning assumptions (such
as VMT, vehicle fleet characteristics, speeds) underlying the 1-hour
budget may also be significantly out-of-date.
Thus, although it is appropriate to offer areas the opportunity to
use 1-hour ozone budgets, EPA believes that they should not be mandated
and that the consultation process should be used to select the most
appropriate test for a particular area prior to the development of
adequate or approved 8-hour ozone SIP budgets. EPA requests comment on
this proposal to allow areas to use applicable 1-hour ozone budgets to
demonstrate conformity prior to the development of 8-hour ozone
budgets, and to use the consultation process to determine whether such
budgets should be used.
Finally, today's proposal responds to stakeholder requests that the
rule continue to offer more choices to new ozone areas that would
qualify for EPA's proposed 8-hour ozone clean data policy. If the
proposed 8-hour ozone clean data policy is included in the final 8-hour
ozone implementation rule, EPA would also include the proposed
conformity options for such areas in the final conformity rule for the
new standards. See EPA's previous discussion and rationale for the
clean data options in the preamble to the 1996 proposal and 1997 final
rules (July 9, 1996, 61 FR 36116, and August 15, 1997, 62 FR 43785,
respectively).
VII. Regional Conformity Tests in PM2.5 Areas
A. What Are We Proposing?
EPA proposes that the budget test would be used to complete a
regional emissions analysis once a PM2.5 SIP is submitted
with budget(s) that EPA has found adequate or approved. Although the
first PM2.5 SIP may be an attainment demonstration,
PM2.5 nonattainment areas ``are free to establish, through
the SIP process, a motor vehicle emissions budget [or budgets] that
addresses the new NAAQS in advance of a complete SIP attainment
demonstration. That is, a state could submit a motor vehicle emissions
budget that does not demonstrate attainment but is consistent with
projections and commitments to control measures and achieves some
progress towards attainment.'' (August 15, 1997, 62 FR 43798-43799).
Such a SIP would include inventories for all emissions sources. EPA
encourages nonattainment areas to develop their PM2.5 SIPs
in consultation with Federal, state, and local air quality and
transportation agencies as appropriate.
EPA is proposing that PM 2.5 nonattainment areas meet
one of the following interim emissions tests for conformity
determinations conducted before adequate or approved PM2.5
SIP budgets are established:
[sbull] The build-no-greater-than-no-build test, or
[sbull] The no-greater-than-2002 emissions test.
This proposal would allow PM2.5 nonattainment areas to
choose between the two interim emissions tests, rather than require
that only one test or both tests be completed. Conformity would be
demonstrated if the transportation system emissions reflecting the
proposed plan or TIP (build) were less than or equal to either the
emissions from the existing transportation system (no-build) or the
level of motor vehicle emissions in 2002. A discussion of the proposed
changes to the interim emissions tests can be found in Section IV.
The proposal would require that regional emissions analyses always
be completed for directly emitted PM2.5 from motor vehicle
tailpipe, brake wear, and tire wear emissions. Once a SIP is submitted,
the budget test would also be completed for any PM2.5
precursor for which an adequate or approved budget is established.
Prior to adequate or approved SIP budgets, an interim emissions test
would be completed for each applicable PM2.5 precursor, as
described in Section VIII. Sections IX. and X. describe proposed
options for when regional emissions analyses would include direct
PM2.5 emissions from re-entrained road dust and
construction-related dust.
The consultation process should be used to determine the models and
assumptions for completing any regional emissions analysis, as required
by Sec. 93.105(c)(1)(i). See the proposed regulatory text in Sec.
93.109(i) for a general overview of when the budget test and interim
emissions tests apply in
[[Page 62705]]
PM2.5 areas, and Sec. 93.119(e) for a description of the
interim emissions tests for PM2.5 nonattainment areas.
B. Why Are We Proposing These Options?
We believe that the proposal addresses the concerns of many
stakeholders by providing flexibility before adequate or approved
PM2.5 SIP budgets are established. While many
PM2.5 areas will have prior conformity experience with
different pollutants, others will be doing conformity for the first
time. In either case, the conformity process provides an important
opportunity to begin addressing transportation-related PM2.5
emissions early to ensure that air quality is not worsened before SIPs
are submitted. Proposing a choice of interim emissions tests before
SIPs are submitted addresses the desire for flexibility and
environmental protection.
EPA has previously determined that only ozone and CO areas of
higher classifications are required to satisfy both statutory
requirements that transportation planning activities not cause or
contribute to violations of the standards (Clean Air Act section
176(c)(1)(B)) and that such activities contribute to annual emissions
reductions (Clean Air Act section 176(c)(3)(A)(iii)) (January 11, 1993
proposed rule, 58 FR 3782-3783). EPA continues to believe that Clean
Air Act section 176(c)(3)(A)(iii) does not apply to any other areas,
including PM2.5 areas; only Clean Air Act section
176(c)(1)(B) applies to these areas.
To that end, the current conformity rule already allows many areas
to conform based on only one interim emissions test if transportation
emissions are consistent with current air quality expectations, rather
than having to complete two tests and contribute further reductions
towards attainment. Today's proposal continues to apply this same test
structure and rationale to PM2.5 areas.
VIII. Consideration of Direct PM2.5 and PM2.5
Precursors in Regional Emissions Analyses
A. What Are We Proposing?
We are proposing to require that all regional emissions analyses in
PM2.5 nonattainment and maintenance areas consider all
sources of directly emitted PM2.5 motor vehicle emissions
from the tailpipe, brake wear, and tire wear. Proposed regulatory text
can be found in Sec. 93.102(b)(1). See Sections IX. and X. for the
proposed options for including direct PM2.5 from re-
entrained road dust and construction-related dust in conformity
analyses.
This proposal would also add potential transportation-related
PM2.5 precursors--NOX, VOCs, sulfur oxides
(SOX ), and ammonia (NH3)-for consideration in
the conformity process. Once a PM2.5 SIP is submitted, a
regional emissions analysis would be required for a given precursor if
the SIP establishes an adequate or approved budget for that particular
precursor.
The following two options address how the various PM2.5
precursors would be considered in conformity determinations conducted
before adequate or approved PM2.5 SIP budgets are
established, for the reasons explained below. EPA is proposing
regulatory text in Sec. Sec. 93.102(b)(2) and 93.119(f) for both of
these options. We are providing the regulatory text for both options to
maximize the public's opportunity to provide meaningful comments.
The first proposed option would require regional emissions analyses
for NOX and VOC precursors in all areas, unless the State
air agency or the EPA Regional Administrator makes a finding that one
or both of these specific precursors are not a significant contributor
to the PM2.5 air quality problem in a given area. Regional
emissions analyses would not be required for SOX and
NH3 before an adequate or approved SIP budget for such
precursors is established, unless the State or EPA makes a finding that
on-road emissions of one or both of these precursors is a significant
contributor. Under the first option, the MPO and DOT would document in
their conformity determinations when regional emissions analyses are
not being conducted when EPA or the State has determined NOX
or VOCs to be insignificant.\3\
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\3\ The public would be notified of when NOX or VOC
is considered insignificant through the documentation in a
conformity determination under the first option.
---------------------------------------------------------------------------
EPA's second option would only require regional emissions analyses
for one or more PM2.5 precursors (i.e., NOX, VOC,
SOX and NH3) before adequate or approved
PM2.5 SIPs have been established if the State or EPA makes a
finding that one or more of these precursors are significant
contributors to the PM2.5 air quality problem in a given
area.
A State air agency or EPA finding of significance or insignificance
(a ``significance finding'') would be based on criteria similar to the
general criteria currently used by EPA to evaluate SIPs that claim on-
road emissions are insignificant for a given pollutant or precursor.
EPA's existing policy for insignificance serves as the basis for
today's proposal, as described in Section XIV.B. of this notice. The
following criteria should be considered in making significance findings
for PM2.5 precursors under either proposed option: the
contribution of on-road emissions of the precursor to the total 2002
baseline SIP inventory; the current state of air quality for the area;
the results of speciation monitoring for the area; the likelihood of
future motor vehicle control measures for a given precursor; and
projections of future on-road emissions of the precursor. The State air
agency or EPA Regional Administrator would determine significance or
insignificance of motor vehicle emissions in a given area on a case-by-
case basis.
Under either option, a significance finding should be made only
after discussions with the interagency consultation group for the
PM2.5 nonattainment area. These discussions should include a
review of the available data being considered to support the
significance finding. Interagency consultation also ensures that all of
the relevant agencies are aware that such a finding is being
considered. It is important to provide transportation agencies with
adequate notice of which, if any, precursors they may need to address
in conformity analyses. A significance finding would be made through a
letter to the relevant State and local air quality and transportation
agencies, MPO(s), DOT and EPA (in the case of a State air agency
finding).
EPA notes that any significance finding made prior to the SIP
should not be viewed as the ultimate determination of the significance
of precursor emissions in a given area. State and local agencies may
find through the SIP development process that emissions of one or more
precursors are significant, even if a precursor had previously been
considered insignificant. In such a case, the PM2.5 SIP
would establish motor vehicle emissions budgets and significant
precursors would be included in subsequent conformity analyses.
To calculate emission factors for direct PM2.5 from
motor vehicles and PM2.5 precursors areas in all states
except California would use the latest EPA-approved motor vehicle
emissions factor model (currently MOBILE6). PM2.5
nonattainment and maintenance areas in California should use EMFAC2002
or a more recently EPA-approved model. It should be noted that
EMFAC2002 currently does not calculate emissions factors for
NH3.
[[Page 62706]]
However, EPA understands that California is working on a revision to
EMFAC that should enable the model to calculate emissions factors for
NH3. A schedule for completing the necessary revisions has
not been established. As a practical matter, conformity for
NH3 would not be required in California until there is an
acceptable method for estimating such emissions, since a method would
be needed to estimate current or future NH3 emissions for
either a significance finding or SIP motor vehicle emissions budget.
Including any precursors in regional emissions analyses prior to
the submission of a SIP should not result in any additional
transportation or emissions modeling work since the nonattainment areas
will already be estimating vehicle miles traveled (VMT) from
transportation activities for the direct PM2.5 regional
emissions analysis. In addition, EPA's upcoming MOBILE6.2 and
California's EMFAC2002 are designed to generate emissions factors for
direct PM2.5 and PM2.5 precursors in the same
modeling run. Therefore, if any area is already generating
PM2.5 emissions factors, precursor estimates would be
available without any additional effort, with the possible exception of
NH3 estimates in California, as indicated above.
B. Why Are We Proposing These Options?
Section 176(c)(1)(B) of the Clean Air Act requires that federal
funding and approval be given only to transportation activities that
are consistent with state and local air quality goals. To fulfill this
requirement with respect to PM2.5, EPA is proposing that
transportation conformity determinations consider PM2.5 and
its precursors if they are significant contributors to an area's
PM2.5 air quality problem.
EPA anticipates that in most nonattainment and maintenance areas
direct PM2.5 emissions would be an important contributor to
the PM2.5 air quality problem, and therefore, we are
proposing that direct PM2.5 emissions from motor vehicles be
included in all conformity analyses. In addition, EPA's proposal to
require conformity to all relevant budgets established in the
PM2.5 SIP is consistent with the Clean Air Act in that
transportation activities must conform to the air quality goals
established and estimates of future emissions in the SIP for a given
area.
EPA has proposed NOX, VOCs, SOX, and NH3 as
potential transportation-related PM2.5 precursors since all
of these precursors are emitted from on-road motor vehicles. Based on
data collected from monitoring sites in the national speciation trends
network,\4\ secondary particles from precursors commonly account for
over half of the total fine particle mass from all emissions sources
measured at these sites. |
