Friday, 


May 15, 2009 


Part II 

Environmental 

Protection Agency 

40 CFR Part 93 

Transportation Conformity Rule PM2.5 and 

PM10 Amendments; Proposed Rule 

23024 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 93 

[EPA–HQ–OAR–2008–0540; FRL–8904–1] 

RIN 2060–AP29 

Transportation Conformity Rule PM2.5 

and PM10 Amendments 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Proposed rule. 


SUMMARY: EPA is proposing 

amendments to the transportation 

conformity rule that primarily affect 

conformity’s implementation in PM2.5 

and PM10 nonattainment and 

maintenance areas. EPA is proposing to 

update the transportation conformity 

regulation in light of the October 17, 

2006 final rule that strengthened the 24-

hour PM2.5 air quality standard and 

revoked the annual PM10 standard. In 

addition, EPA is proposing to clarify the 

regulations concerning hot-spot 

analyses to address a remand from the 

Court of Appeals for the District of 

Columbia Circuit (Environmental 

Defense v. EPA, 509 F.3d 553 (DC Cir. 

2007)). This portion of the proposal 

applies to PM2.5 and PM10 

nonattainment and maintenance areas 

as well as carbon monoxide 

nonattainment and maintenance areas. 

The Clean Air Act requires federally 

supported transportation plans, 

transportation improvement programs, 

and projects to be consistent with 

(‘‘conform to’’) the purpose of the state 

air quality implementation plan. DOT is 

EPA’s federal partner in implementing 

the transportation conformity 

regulation. EPA has consulted with 

DOT, and they concur with this 

proposed rule. 

DATES: Written comments on this 

proposal must be received on or before 

June 15, 2009, unless a public hearing 

is requested by May 26, 2009. If a public 

hearing is requested by a commenter, it 

will be held June 4, 2009 at the U.S. 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, 

Michigan. If a hearing is requested, 

written comments must be received by 

June 29, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2008–0540, by one of the 

following methods:

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov.

• Fax: (202) 566–9744. 

• Mail: Air Docket, Environmental 

Protection Agency, Mailcode: 2822T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460, Attention 

Docket ID No. EPA–HQ–OAR–2008– 

0540. Please include a total of two 

copies. 

• Hand Delivery: Air Docket, 

Environmental Protection Agency, 

Mailcode: EPA West Building, EPA 

Docket Center (Room 3334), 1301 

Constitution Ave., NW., Washington, 

DC, Attention Docket ID No. EPA–HQ– 

OAR–2008–0540. Please include two 

copies. Such deliveries are only 

accepted during the Docket’s normal 

hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2008– 

0540. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD-ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to Section I of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744 

and the telephone number for the Air 

and Radiation Docket is (202) 566–1742. 

Public Hearing: If a public hearing is 

requested, it will be held at the U.S. 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, 

Michigan, on June 4, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Laura Berry, State Measures and 

Conformity Group, Transportation and 

Regional Programs Division, 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105, e-mail address: 

berry.laura@epa.gov, telephone number: 

(734) 214–4858, fax number: (734) 214– 

4052; or Patty Klavon, State Measures 

and Conformity Group, Transportation 

and Regional Programs Division, 

Environmental Protection Agency, 2000 

Traverwood Drive, Ann Arbor, MI 

48105, e-mail address: 

klavon.patty@epa.gov, telephone 

number: (734) 214–4476, fax number: 

(734) 214–4052. 

SUPPLEMENTARY INFORMATION: The 

contents of this preamble are listed in 

the following outline: 

I. General Information 

II. Background on the Transportation 

Conformity Rule 

III. General Overview of Transportation 

Conformity for the 2006 PM2.5 NAAQS 

IV. Baseline Year for Certain 2006 PM2.5 

Nonattainment Areas 

V. Regional Conformity Tests in 2006 PM2.5 

Nonattainment Areas That Do Not Have 

Adequate or Approved SIP Budgets for 

the 1997 PM2.5 NAAQS 

VI. Regional Conformity Tests in 2006 PM2.5 

Areas That Have 1997 PM2.5 SIP Budgets 

VII. Other Conformity Requirements for 2006 

PM2.5 Areas 

VIII. Transportation Conformity in PM10 

Nonattainment and Maintenance Areas 

and the Revocation of the Annual PM10 

NAAQS 

IX. Response to the December 2007 Hot-Spot 

Court Decision 

X. Statutory and Executive Order Reviews 

I. General Information 

A. Does this Action Apply to Me? 

Entities potentially regulated by the 

conformity rule are those that adopt, 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23025 

approve, or fund transportation plans, 

programs, or projects under title 23 

U.S.C. or title 49 U.S.C. Regulated 

categories and entities affected by 

today’s action include: 

Examples of regulated Category entities 

Local Local transportation and air 

government .... quality agencies, including 

metropolitan planning organizations (MPOs). 

State State transportation and air 

government .... quality agencies. 

Federal Department of Transporgovernment .... tation (Federal Highway 

Administration (FHWA) 

and Federal Transit Administration (FTA)). 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this proposal. This table lists 

the types of entities of which EPA is 

aware that potentially could be 

regulated by the transportation 

conformity rule. Other types of entities 

not listed in the table could also be 

regulated. To determine whether your 

organization is regulated by this action, 

you should carefully examine the 

applicability requirements in 40 CFR 

93.102. If you have questions regarding 

the applicability of this action to a 

particular entity, consult the persons 

listed in the preceding FOR FURTHER 

INFORMATION CONTACT section. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI 

Do not submit this information to EPA 

through www.regulations.gov or e-mail. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or CDROM that you mail to EPA, mark the 

outside of the disk or CD-ROM as CBI 

and then identify electronically within 

the disk or CD-ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

2. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The Agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree, 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats.

• Make sure to submit your 

comments by the comment period 

deadline identified. 

3. Docket Copying Costs 

You may be required to pay a 

reasonable fee for copying docket 

materials. 

C. How Do I Get Copies of This 

Proposed Rule and Other Documents? 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0540. You can 

get a paper copy of this Federal Register 

document, as well as the documents 

specifically referenced in this action, 

any public comments received, and 

other information related to this action 

at the official public docket. See the 

ADDRESSES section for its location. 

2. Electronic Access 

You may access this Federal Register 

document electronically through EPA’s 

Transportation Conformity Web site at 

http://www.epa.gov/otaq/ 

stateresources/transconf/index.htm. 

You may also access this document 

electronically under the Federal 

Register listings at http://www.epa.gov/ 

fedrgstr/. 

An electronic version of the official 

public docket is available through 

www.regulations.gov. You may use 

www.regulations.gov to submit or view 

public comments, access the index 

listing of the contents of the official 

public docket, and to access those 

documents in the public docket that are 

available electronically. Once in the 

system, select ‘‘search,’’ then key in the 

appropriate docket identification 

number. 

Certain types of information will not 

be placed in the electronic public 

docket. Information claimed as CBI and 

other information for which disclosure 

is restricted by statute is not available 

for public viewing in the electronic 

public docket. EPA’s policy is that 

copyrighted material will not be placed 

in the electronic public docket but will 

be available only in printed, paper form 

in the official public docket. 

To the extent feasible, publicly 

available docket materials will be made 

available in the electronic public 

docket. When a document is selected 

from the index list in EPA Dockets, the 

system will identify whether the 

document is available for viewing in the 

electronic public docket. Although not 

all docket materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified in the ADDRESSES section. 

EPA intends to provide electronic 

access in the future to all of the publicly 

available docket materials through the 

electronic public docket. 

Public comments submitted on 

computer disks that are mailed or 

delivered to the docket will be 

transferred to the electronic public 

docket. Public comments that are 

mailed or delivered to the docket will be 

scanned and placed in the electronic 

public docket. Where practical, physical 

objects will be photographed, and the 

photograph will be placed in the 

electronic public docket along with a 

brief description written by the docket 

staff. 

For additional information about the 

electronic public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

II. Background on the Transportation 

Conformity Rule 

A. What Is Transportation Conformity? 

Transportation conformity is required 

under Clean Air Act section 176(c) (42 

U.S.C. 7506(c)) to ensure that 

transportation plans, transportation 

improvement programs (TIPs) and 

federally supported highway and transit 

project activities are consistent with 

(‘‘conform to’’) the purpose of the state 

air quality implementation plan (SIP). 

Conformity to the purpose of the SIP 

means that transportation activities will 

not cause new air quality violations, 

worsen existing violations, or delay 

timely attainment of the relevant 

national ambient air quality standards 

(NAAQS). Transportation conformity 

applies to areas that are designated 

nonattainment, and those areas 

redesignated to attainment after 1990 

(‘‘maintenance areas’’) for 

transportation-related criteria 

23026 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

pollutants: Carbon monoxide (CO), 

ozone, nitrogen dioxide (NO2) and 

particulate matter (PM2.5, and PM10).1 

EPA’s transportation conformity rule 

(40 CFR Parts 51 and 93) establishes the 

criteria and procedures for determining 

whether transportation activities 

conform to the SIP. EPA first 

promulgated the transportation 

conformity rule on November 24, 1993 

(58 FR 62188), and subsequently 

published several other amendments. 

DOT is EPA’s federal partner in 

implementing the transportation 

conformity regulation. EPA has 

consulted with DOT, which concurs 

with this proposed rule. 

A few recent amendments to the 

transportation conformity rule are 

useful background for today’s proposal. 

In a final rule EPA published on July 1, 

2004 (69 FR 40004), EPA provided 

conformity procedures for state and 

local agencies under the 1997 8-hour 

ozone and PM2.5 national ambient air 

quality standards (NAAQS), among 

other things. EPA’s nonattainment area 

designations for the 1997 8-hour ozone 

and PM2.5 NAAQS were effective in 

June 2004 and April 2005 respectively. 

The July 2004 update provided 

guidance and rules for implementing 

conformity for these NAAQS. In 

addition, on May 6, 2005, EPA 

promulgated a final rule entitled, 

‘‘Transportation Conformity Rule 

Amendments for the New PM2.5 

National Ambient Air Quality Standard: 

PM2.5 Precursors’’ (70 FR 24280). This 

final rule specified transportationrelated PM2.5 precursors and when they 

must be considered in transportation 

conformity determinations in PM2.5 

nonattainment and maintenance areas. 

On March 10, 2006, EPA promulgated 

a final rule (71 FR 12468) entitled, 

‘‘PM2.5 and PM10 Hot-Spot Analyses in 

Project-Level Transportation Conformity 

Determinations for the New PM2.5 and 

Existing PM10 National Ambient Air 

Quality Standards.’’ This rule 

established the criteria and procedures 

for determining which transportation 

projects must be analyzed for local air 

quality impacts—or ‘‘hot-spots’’—in 

PM2.5 and PM10 nonattainment and 

maintenance areas. See Section IX. of 

today’s preamble for more information 

regarding the March 2006 rule; see 

EPA’s Web site at http://www.epa.gov/ 

otaq/stateresources/transconf/ 

index.htm for further information about 

1 40 CFR 93.102(b)(1) defines PM2.5 and PM10 as 

particles with an aerodynamic diameter less than or 

equal to a nominal 2.5 and 10 micrometers, 

respectively. 

any of EPA’s transportation conformity 

rulemakings.2 

B. Why Are We Issuing This Proposed 

Rule? 

Today’s proposed rule is necessary 

because EPA promulgated a final rule 

on October 17, 2006 that changed the 

PM2.5 and PM10 NAAQS, as described 

further below. These revisions to the 

PM2.5 and PM10 NAAQS necessitate an 

update to the transportation conformity 

rule to provide guidance and rules for 

implementing conformity for these 

NAAQS. Sections III. through VIII. 

describe the proposed changes to the 

transportation conformity rule that are a 

result of the October 2006 revisions to 

the PM2.5 and PM10 NAAQS. 

Today’s proposed rule is also 

necessary because of a court decision 

regarding the March 2006 hot-spot 

rulemaking. Section IX. of this preamble 

describes the issue, the court’s decision, 

and EPA’s proposed response. 

III. General Overview of 

Transportation Conformity for the 2006 

PM2.5 NAAQS 

A. Background on 2006 PM2.5 NAAQS 

Development 

EPA issued a final rule on October 17, 

2006 that strengthened the 24-hour 

PM2.5 NAAQS and revoked the annual 

PM10 NAAQS (71 FR 61144). In that 

final rule, EPA strengthened the 24-hour 

PM2.5 NAAQS from the 1997 level of 65 

micrograms per cubic meter (μg/m3) 

(average of 98th percentile values for 

three consecutive years) to 35 μg/m3, 

while the level of the annual PM2.5 

NAAQS remained unchanged at 15.0 

μg/m3 (average of three consecutive 

annual average values). This final rule 

was effective on December 18, 2006. 

EPA selected levels for the final NAAQS 

after completing an extensive review of 

thousands of scientific studies on the 

impact of fine and coarse particles on 

public health and welfare. For 

additional information about the 

October 17, 2006 rulemaking, the final 

rule and EPA outreach materials can be 

found at: http://www.epa.gov/air/ 

particlepollution/actions.html. 

The October 2006 rule establishing 

the 2006 PM2.5 NAAQS did not revoke 

the 1997 annual or 24-hour PM2.5 

NAAQS. See Section D. below for 

details on how this proposal would 

interact with conformity requirements 

for those areas designated 

nonattainment for the 1997 PM2.5 

NAAQS. 

2 At this Web site, click on ‘‘Regulations’’ to find 

all of EPA’s proposed and final rules as well the 

current transportation conformity regulations. 

EPA signed the final rule designating 

areas for the 2006 PM2.5 NAAQS on 

December 22, 2008. Conformity for the 

2006 PM2.5 NAAQS will apply one year 

after the effective date of the 

nonattainment designations.3 The 

designations for the 2006 PM2.5 NAAQS 

are separate from and do not impact 

existing designations for the 1997 PM2.5 

NAAQS. 

B. When Does Conformity Apply for the 

2006 PM2.5 NAAQS? 

Transportation conformity for the 

2006 24-hour PM2.5 NAAQS (‘‘2006 

PM2.5 NAAQS’’) does not apply until 

one year after the effective date of 

nonattainment designations for this 

NAAQS. Clean Air Act section 176(c)(6) 

and 40 CFR 93.102(d) provide a oneyear grace period from the effective date 

of designations before transportation 

conformity applies in areas newly 

designated nonattainment for a 

particular NAAQS.4 

The following discussion provides 

more details on the application of the 

one-year grace period in specific types 

of newly designated nonattainment 

areas for the 2006 PM2.5 NAAQS in 

metropolitan, donut and isolated rural 

areas. This information is consistent 

with how conformity for new NAAQS 

has been implemented in the past. 

1. Metropolitan Areas 

Metropolitan areas are urbanized 

areas that have a population greater than 

50,000 and a designated metropolitan 

planning organization (MPO) 

responsible for transportation planning 

per 23 U.S.C. 134. The one-year grace 

period means that, in general, within 

one year after the effective date of the 

initial nonattainment designation for a 

given pollutant and NAAQS, the area’s 

MPO and DOT must make a conformity 

determination with regard to that 

pollutant and NAAQS for the area’s 

transportation plan and TIP. The 

procedures for interagency consultation 

process found in 40 CFR 93.105 or a 

state’s approved conformity SIP must be 

used in making conformity 

determinations for transportation plans 

and TIPs. MPOs must continue to meet 

conformity requirements for any other 

3 The effective date for these nonattainment 

designations will be included in the Federal 

Register publication of the final designations rule. 

4 EPA began the process of notifying state and 

local agencies, via the EPA regional offices, of the 

timing of conformity under the 2006 PM2.5 NAAQS 

in its April 16, 2007 memorandum entitled, 

‘‘Transportation Conformity and the Revised 24-

hour PM2.5 Standard,’’ from Merrylin Zaw-Mon, 

Director, Transportation and Regional Programs 

Division, EPA Office of Transportation and Air 

Quality, to EPA Regional Air Directors, Regions I– 

X. 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23027 

applicable NAAQS, including the 1997 

PM2.5 NAAQS, if the area is designated 

nonattainment or maintenance for such 

NAAQS as well. 

The one-year grace period for 

conformity also applies to project-level 

conformity determinations (including 

hot-spot analyses in certain cases) in 

newly designated 2006 PM2.5 

nonattainment areas. At the end of the 

one-year grace period for conformity, 

requirements for project-level 

conformity determinations must be met 

for the 2006 PM2.5 NAAQS before any 

new federal approvals for such projects 

can occur. For non-exempt Federal 

Highway Administration (FHWA) or 

Federal Transit Administration (FTA) 

projects, a conformity determination is 

normally required before the National 

Environmental Policy Act (NEPA) 

process is completed, since NEPA is 

typically the first stage requiring 

approval in a federal project’s 

development. However, if the NEPA 

process was completed before 

conformity applies, then areas that are 

newly designated as nonattainment may 

also be required to demonstrate 

conformity for subsequent funding and 

approvals for project phases (e.g., rightof-way acquisition, final design, 

construction). Conformity would be 

needed for a subsequent project phase if 

it occurs after the grace period has 

ended, and the project has not yet been 

included in a conformity determination 

for the relevant pollutant and NAAQS 

or met other applicable conformity 

requirements. 

Before the end of the one-year grace 

period, FHWA or FTA could voluntarily 

choose to make a project-level 

conformity determination that meets the 

conformity rule’s requirements. The 

procedures for interagency consultation 

found in 40 CFR 93.105 or a state’s 

approved conformity SIP must be used 

in making project-level conformity 

determinations for the 2006 PM2.5 

NAAQS. As described further below in 

D. of this section, areas that are 

designated nonattainment for both the 

1997 PM2.5 NAAQS and the 2006 PM2.5 

NAAQS will need to address all of these 

NAAQS in conformity determinations. 

If, at the conclusion of the one-year 

grace period, the MPO and DOT have 

not made a transportation plan and TIP 

conformity determination for the 2006 

PM2.5 NAAQS, the area would be in a 

conformity ‘‘lapse.’’ During a conformity 

lapse, only certain projects can receive 

additional federal funding or approvals 

to proceed (e.g., exempt projects, project 

phases that were approved before the 

lapse). The practical impact of a 

conformity lapse will vary on an areaby-area basis. For additional 

information on projects that can proceed 

during a conformity lapse, read the 

following guidance memoranda that 

address the March 2, 1999 U.S. Court of 

Appeals decision that affected related 

provisions of the conformity rule 

(Environmental Defense Fund v. EPA, 

167 F.3d 641 (DC Cir. 1999): DOT’s 

January 2, 2002 guidance, published in 

the Federal Register on February 7, 

2002 (67 FR 5882); DOT’s May 20, 2003 

and FTA’s April 9, 2003 supplemental 

guidance documents; and, EPA’s May 

14, 1999 guidance memorandum. EPA’s 

current conformity rule reflects all of 

these guidance documents (69 FR 

40005–40006). 

2. Donut Areas 

For the purposes of transportation 

conformity, a ‘‘donut’’ area is the 

geographic area outside a metropolitan 

planning area boundary, but inside a 

designated nonattainment or 

maintenance area boundary that 

includes an MPO (40 CFR 93.101). The 

conformity requirements for donut 

areas, including the application of the 

one-year conformity grace period, are 

generally the same as those for 

metropolitan areas. Within one year of 

the effective date of an area’s initial 

nonattainment designation for the 2006 

PM2.5 NAAQS, the existing and planned 

transportation network for the donut 

portion of the area (as well as for the 

metropolitan portion of the area) must 

demonstrate conformity, or conformity 

of the metropolitan transportation plan 

and TIP will lapse as described above, 

and the entire nonattainment area will 

be unable to obtain additional project 

funding and approvals for the duration 

of the lapse. 

The interagency consultation group 

for each newly designated 

nonattainment area that includes a 

donut portion should determine how 

best to consider the donut area 

transportation system and new donut 

area projects in the MPO’s regional 

emissions analyses and transportation 

plan and TIP conformity 

determinations. For more discussion on 

how conformity determinations should 

be made for donut areas, see the 

preamble to the July 1, 2004 conformity 

rule (69 FR 40013). 

In nonattainment and maintenance 

areas with a donut portion, adjacent 

MPOs must meet conformity 

requirements for the 2006 PM2.5 and 

other applicable NAAQS, including 

requirements for any 1997 PM2.5 

NAAQS for which the donut area is 

designated nonattainment. 

The one-year grace period for 

conformity also applies to project-level 

conformity determinations in newly 

designated nonattainment areas that 

include a donut portion, as described 

above for projects in metropolitan areas. 

3. Isolated Rural Areas 

Isolated rural nonattainment and 

maintenance areas are areas that do not 

contain or are not part of any 

metropolitan planning area as 

designated by 23 U.S.C. 134 and 49 

U.S.C. 5303 (40 CFR 93.101). Isolated 

rural areas do not have metropolitan 

transportation plans or TIPs required 

under 23 U.S.C. 134 and 49 U.S.C. 5303 

and 5304 for any portion of the area, 

and do not have projects that are part of 

the emissions analysis of any MPO’s 

transportation plan or TIP. Instead, 

projects in such areas are included only 

in statewide transportation 

improvement programs and statewide 

transportation plans, when appropriate. 

As in other newly designated 

nonattainment areas, the one-year 

conformity grace period for the 2006 

PM2.5 NAAQS will begin on the 

effective date of an isolated rural area’s 

initial nonattainment designation. 

However, because these areas do not 

have federally required metropolitan 

transportation plans and TIPs, they are 

not subject to the frequency 

requirements for conformity 

determinations on transportation plans 

and TIPs (40 CFR 93.104(b), (c), and (e)). 

Instead, conformity determinations in 

isolated rural areas are required only 

when a non-exempt FHWA/FTA 

project(s) needs funding or approval. 

In fact, many isolated rural areas may 

not have a transportation project in need 

of federal funding or approval for some 

time after the one-year grace period has 

ended, and therefore, would not have to 

demonstrate conformity before that 

time. Once the conformity grace period 

has expired, a conformity determination 

would only be required in such areas 

when a non-exempt FHWA/FTA project 

needs funding or approval. For more 

information on the conformity 

requirements for isolated rural areas, see 

40 CFR 93.109(l); corresponding 

discussions on how to demonstrate 

conformity in isolated rural areas can 

also be found in the preambles to the 

November 24, 1993 transportation 

conformity final rule (58 FR 62207) and 

the August 15, 1997 final rule (62 FR 

43785). 

Please note that the current 

regulation’s § 93.109(l) would be 

renamed as § 93.109(n) under today’s 

proposal, due to the other proposed 

revisions and additions in this 

regulatory section. As we are simply 

renumbering this provision, we are not 

seeking comment because it is an 

administrative change. The basic 

23028 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

conformity requirements for isolated 

rural areas remain unchanged. 

C. Proposed Definitions for PM2.5 

NAAQS 

EPA is proposing two new definitions 

to § 93.101 of the conformity rule to 

distinguish between the 1997 PM2.5 

NAAQS and the 2006 PM2.5 NAAQS. 

These definitions would help 

implement certain conformity 

requirements in areas that have been 

designated nonattainment for 1997 

PM2.5 NAAQS and/or 2006 PM2.5 

NAAQS. Some areas designated 

nonattainment for the 2006 PM2.5 

NAAQS also are designated 

nonattainment for the 1997 PM2.5 

NAAQS. In addition, some areas are 

designated for only the 2006 PM2.5 

NAAQS. 

The proposed addition of these 

definitions is also similar to the existing 

rule’s definitions in 40 CFR 93.101 for 

the 1-hour ozone NAAQS and 8-hour 

ozone NAAQS, and the proposed 

definitions are generally consistent with 

how EPA is defining both kinds of PM2.5 

areas for air quality planning purposes. 

EPA also notes that any provision of the 

conformity rule that references only 

‘‘PM2.5’’ and does not specify which 

NAAQS will continue to apply to any 

area designated nonattainment for a 

PM2.5 NAAQS. 

D. How Would This Proposal Interact 

With Existing Conformity Requirements 

for the 1997 PM2.5 NAAQS? 

Sections IV. through VI. of today’s 

proposal describe proposed conformity 

requirements for areas designated 

nonattainment for the 2006 PM2.5 

NAAQS. EPA is not proposing any 

changes to the existing transportation 

conformity requirements for areas 

designated nonattainment for the 1997 

PM2.5 NAAQS, since EPA’s 

nonattainment designations for the 2006 

PM2.5 NAAQS will not affect existing 

1997 PM2.5 NAAQS nonattainment 

designations. 

Nonattainment designations for the 

1997 and 2006 PM2.5 NAAQS are 

different designations with separate SIP 

requirements, different attainment 

dates, etc. As a result, Clean Air Act 

section 176(c)(5) requires conformity 

requirements to be met in both 1997 and 

2006 PM2.5 nonattainment and 

maintenance areas, as applicable. 

Some areas designated nonattainment 

for the 2006 PM2.5 NAAQS have never 

been subject to PM2.5 conformity 

requirements. Under today’s proposal 

and Clean Air Act section 176(c)(5), 

these areas would be required to meet 

only 2006 PM2.5 conformity 

requirements, and not conformity 

requirements for the 1997 PM2.5 

NAAQS, because these areas are not 

designated nonattainment for the 1997 

PM2.5 NAAQS. 

Other areas designated nonattainment 

for the 2006 PM2.5 NAAQS have been 

designated also, in whole or in part, for 

the 1997 PM2.5 NAAQS. These areas 

would continue to meet their existing 

conformity requirements for the 1997 

PM2.5 NAAQS as well as any additional 

requirements for the 2006 PM2.5 

NAAQS. 

EPA notes that MPOs where both the 

1997 and 2006 PM2.5 NAAQS apply 

would have to determine conformity for 

both NAAQS. MPOs subject to both the 

1997 and 2006 PM2.5 NAAQS will be 

able to: 

• Use existing transportation models 

and data for regional emissions analyses 

for both NAAQS, especially where 

nonattainment area boundaries are the 

same; 

• Rely on analysis years for 

conformity determinations that are the 

same for both NAAQS (e.g., analysis 

years for the last year of the 

transportation plan, an intermediate 

year, etc.); and 

• Meet consultation and other 

conformity requirements through the 

existing processes. 

EPA is also proposing that before 

budgets for the 2006 PM2.5 NAAQS are 

available, conformity determinations for 

some 2006 PM2.5 areas would be based 

on the same conformity test (i.e., the 

budget test) that is being used for the 

1997 PM2.5 NAAQS. As described in 

Section VI., EPA is proposing that MPOs 

use any adequate or approved SIP 

budgets for the 1997 PM2.5 NAAQS for 

conformity determinations that are 

made prior to SIP budgets for the 2006 

PM2.5 NAAQS being available. 

Today’s proposal does not impact 

project-level conformity requirements 

for the 1997 PM2.5 NAAQS. For 

example, EPA is not proposing any 

changes to the PM2.5 hot-spot analysis 

requirements, and EPA and FHWA’s 

existing guidance for such analyses 

continues to be available.5 For the 

purposes of PM2.5 conformity, a hot-spot 

analysis must address the PM2.5 NAAQS 

for which the area has been designated 

nonattainment.6 See Section VII. for 

further information regarding EPA’s 

proposal for project-level conformity 

5 ‘‘Transportation Conformity Guidance for 

Qualitative Hot-spot Analyses in PM2.5 and PM10 

Nonattainment and Maintenance Areas,’’ EPA420– 

B–06–902, March 2006. 

6 EPA notes that today’s proposal does not 

address project requirements for the National 

Environmental Policy Act or other environmental 

programs. 

requirements for the 2006 PM2.5 

NAAQS. 

EPA will work with PM2.5 

nonattainment areas as needed to ensure 

that state and local agencies can meet 

conformity requirements for both the 

applicable 1997 and 2006 PM2.5 NAAQS 

in a timely and efficient manner. EPA 

requests comment on whether 

additional information or training will 

be necessary for conformity 

implementation under the 2006 PM2.5 

NAAQS. If your agency submits 

comments, please be as specific as 

possible regarding what types of 

situations and issues may need to be 

addressed in future implementation of 

PM2.5 conformity requirements. 

IV. Baseline Year for Certain 2006 

PM2.5 Nonattainment Areas 

A. Background 

Conformity determinations for 

transportation plans, TIPs, and projects 

not from a conforming transportation 

plan and TIP must include a regional 

emissions analysis that fulfills Clean Air 

Act provisions. The conformity rule 

provides for several different regional 

emissions analysis tests that satisfy 

Clean Air Act requirements in different 

situations. Once a SIP with a motor 

vehicle emissions budget (‘‘budget’’) is 

submitted for an air quality NAAQS and 

EPA finds the budget adequate for 

conformity purposes or approves it as 

part of the SIP, conformity is 

demonstrated using the budget test for 

that pollutant or precursor, as described 

in 40 CFR 93.118. 

Before an adequate or approved SIP 

budget is available, conformity of the 

transportation plan, TIP, or project not 

from a conforming transportation plan 

and TIP is demonstrated with the 

interim emissions test(s), as described in 

40 CFR 93.119. The interim emissions 

tests include different forms of the 

‘‘build/no-build’’ test and ‘‘baseline 

year’’ test. In general, for the baseline 

year test, emissions from the planned 

transportation system or project not 

from a conforming transportation plan 

and TIP are compared to emissions that 

occurred in the baseline year (please 

refer to § 93.119 for the more detailed, 

specific requirements). This part of 

today’s proposal would update § 93.119 

of the current conformity rule for the 

2006 PM2.5 NAAQS. The baseline year 

for nonattainment areas under the 1997 

PM2.5 NAAQS is 2002 (40 CFR 

93.119(e)(2)). Sections V. and VI. of this 

proposal go into further detail about 

how any baseline year option would be 

applied in 2006 PM2.5 areas. 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23029 

B. Proposal 

EPA is proposing that a year more 

recent than 2002 be used as the baseline 

year for conformity purposes in 2006 

PM2.5 nonattainment areas. EPA 

requests comment on the following 

proposed options: 

• Option 1: Define the baseline year 

as 2008; 

• Option 2: Rather than naming a 

specific year, define the baseline year 

for conformity purposes as whatever 

year would be used to meet other air 

quality planning requirements, such as 

SIP planning and inventory 

requirements; 

• Option 3: Define the baseline year 

as 2005. 

Option 2 would establish the baseline 

year for conformity purposes for the 

2006 PM2.5 nonattainment areas as well 

as any areas designated for a PM2.5 

NAAQS that EPA promulgates in the 

future. Therefore, if this option were 

finalized, the transportation conformity 

rule would not have to be amended in 

the future to establish a new baseline 

year for conformity if additional 

NAAQS changes are made in the future. 

There are different formulations of 

regulatory text that EPA could use to 

define the baseline year under Option 2. 

For example, EPA could define the 

baseline year for any area designated for 

a PM2.5 NAAQS promulgated after 1997 

as the most recent year for which EPA’s 

Air Emissions Reporting Requirements 

(AERR) (40 CFR part 51) requires 

submission of on-road mobile source 

emissions inventories, as of the effective 

date of EPA’s nonattainment 

designations for such NAAQS. Another 

possibility would be to simply define 

the conformity baseline year as the year 

that will be used as the baseline for SIP 

development for given NAAQS, which 

EPA could specify in a guidance 

memorandum issued in the future. 

Option 2 would likely result in the 

year 2008 as the baseline year in 2006 

PM2.5 areas because this is the year 

anticipated to be the baseline year for 

SIP planning and inventory 

requirements. The year 2008 would also 

be the most recent year of on-road 

mobile source emissions inventories 

available for SIP planning purposes 

when SIPs for the 2006 PM2.5 NAAQS 

are likely to be due. 

EPA is proposing rule language for 

Options 1 and 2 in § 93.119(e)(2)(B), 

although all three of these options could 

be considered for the final rule. EPA is 

therefore soliciting comment on all 

three options. While today’s action 

proposes no changes to the 2002 

baseline year for areas designated 

nonattainment for the 1997 PM2.5 

NAAQS, we propose to reorganize 

§ 93.119(e)(2) to clarify that 2002 

applies only to areas designated 

nonattainment for the 1997 PM2.5 

NAAQS. 

The existing interagency consultation 

process (40 CFR 93.105(c)(1)(i)) would 

be used to determine the latest 

assumptions and models for generating 

baseline year motor vehicle emissions to 

complete any baseline year test. The 

baseline year emissions level that is 

used in conformity would be required to 

be based on the latest planning 

assumptions available, the latest 

emissions model, and appropriate 

methods for estimating travel and 

speeds as required by 40 CFR 93.110, 

93.111, and 93.122 of the current 

conformity rule. The baseline year test 

can be completed with a submitted or 

draft baseline year motor vehicle 

emissions SIP inventory, if the SIP 

reflects the latest information and 

models. If such a SIP baseline is not 

available, an MPO, in consultation with 

state and local air agencies, could also 

develop baseline year emissions as part 

of the conformity analysis. 

C. Rationale 

EPA believes that a more recent year 

than 2002 is appropriate for meeting 

Clean Air Act conformity requirements 

for 2006 PM2.5 nonattainment areas. 

EPA also believes that using a more 

recent year than 2002 is required to 

meet these statutory requirements, and 

is more environmentally protective and 

relevant for the 2006 PM2.5 NAAQS. 

Coordinating the conformity baseline 

year with the year used for SIP planning 

and an emission inventory year was 

EPA’s rationale for using 2002 as the 

baseline year for conformity tests in 

existing PM2.5 nonattainment areas for 

the 1997 NAAQS. As described in the 

July 1, 2004 final rule (69 FR 40015), 

EPA selected 2002 as the conformity 

baseline year because 2002 was 

identified as the anticipated emission 

inventory base year for the SIP planning 

process under the 1997 PM2.5 NAAQS.7 

EPA continues to believe that 

coordinating the conformity’s baseline 

with other data collection and inventory 

requirements would allow state and 

local governments to use their resources 

more efficiently. However, for the 2006 

PM2.5 nonattainment areas, the year 

2002 does not have the same relevance 

and does not provide the same level of 

environmental protection as a more 

recent year. 

7 Also, the AERR requires submission of point, 

nonpoint, and mobile source emissions inventories 

every three years, and 2002 was one of those 

required years for such updates. 

In choosing the baseline year for the 

2006 PM2.5 NAAQS, EPA also believes 

it could be important to coordinate the 

conformity rule’s baseline year with the 

year ultimately used as a baseline for 

SIP planning for the 2006 PM2.5 NAAQS 

as well as other emissions inventory 

requirements. EPA has proposed 2008 

as a baseline year for conformity 

purposes (Option 1) and believes such 

an option would be appropriate to meet 

Clean Air Act conformity requirements. 

EPA selected 2002 for the baseline year 

tests in 1997 8-hour ozone and PM2.5 

nonattainment areas in the July 1, 2004 

final rule (69 FR 40015) not only 

because EPA believed that 2002 was the 

most appropriate measure for meeting 

Clean Air Act conformity requirements 

not to worsen air quality or delay timely 

attainment or achievement of any 

required interim milestone prior to SIP 

budgets being established, but also 

because EPA believed it was important 

to have transportation and air quality 

planning coordinated. Having consistent 

baseline years for SIPs, conformity 

determinations and other emissions 

inventory requirements helps to achieve 

this goal. 

Alternatively, EPA has also proposed 

2005 as a baseline year for conformity 

purposes (Option 3) because this year is 

also relevant for 2006 PM2.5 areas. The 

year 2005 is more recent than 2002, and 

2005 data would also be available for 

other inventory purposes such as the 

AERR. In addition, most 2006 PM2.5 

areas will be designated nonattainment 

based in part on air quality monitoring 

data from the year 2005. EPA is required 

to make nonattainment designations for 

PM2.5 based on the most recent three 

years of air quality data, i.e., 2005–2007 

data for most 2006 PM2.5 areas. For this 

reason, 2005 is being proposed as a 

baseline year for conformity purposes. 

Whereas Options 1 and 3 would apply 

specifically to the 2006 PM2.5 NAAQS, 

EPA proposes in Option 2 to generalize 

the language for the baseline year for 

areas designated under any PM2.5 

NAAQS established after 1997. Given 

that the Clean Air Act requires EPA to 

review the NAAQS for possible revision 

once every five years, adopting Option 

2 would standardize the process for 

selecting an appropriate baseline year to 

use in meeting conformity requirements 

before SIP budgets have been 

established for any future PM2.5 

NAAQS. This would enable EPA, MPOs 

and other transportation planners to 

identify the appropriate baseline year 

for conformity purposes without EPA 

having to amend the conformity 

regulation first. 

In other words, Option 2 would allow 

EPA to identify an appropriate baseline 

23030 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

year in an expeditious manner for 

transportation conformity purposes. As 

a result, MPOs and other transportation 

planners would understand conformity 

requirements for future PM2.5 NAAQS 

revisions more quickly, which may, in 

turn, also allow more time to prepare 

and complete necessary conformity 

determinations. 

EPA believes that Option 2 would 

result in an appropriate baseline year for 

a given PM2.5 NAAQS. Since Option 2 

is based on the same criteria that have 

been used for proposed Option 1 and for 

establishing baseline years for other 

NAAQS (58 FR 62191, 69 FR 40014), 

EPA believes this option would also 

result in an environmentally protective 

and legal baseline year for conformity 

under the 2006 PM2.5 NAAQS and any 

future PM2.5 NAAQS revisions. 

Finalizing Option 2 would most likely 

result in a baseline year of 2008 for the 

2006 PM2.5 NAAQS. 

If the regulatory text for this option 

referred to the AERR requirement, the 

option would ensure that areas 

designated nonattainment for the 2006 

PM2.5 NAAQS, as well as areas 

designated for revised PM2.5 NAAQS in 

the future, would use the year for which 

the most recent emissions inventories 

are required to be submitted as of the 

effective date of EPA’s final 

designations. The regulatory text for 

Option 2 could also be written to refer 

to the year that will be used as the 

baseline year for SIP development for a 

given PM2.5 NAAQS. 

In either case, under Option 2 EPA 

would most likely clarify what year is 

to be used for the baseline year test by 

issuing a memorandum. If this option 

were finalized, EPA would issue such a 

memorandum prior to conformity 

requirements applying. 

EPA requests comment on all of these 

options. Though commenters can 

simply express a preference, providing 

rationale for a preference is especially 

useful to EPA. In particular, EPA seeks 

comment on whether state and local 

agencies believe that establishing the 

baseline year using Option 2 presents 

any implementation concerns, and if so, 

how EPA could address such concerns. 

V. Regional Conformity Tests in 2006 

PM2.5 Nonattainment Areas That Do 

Not Have Adequate or Approved SIP 

Budgets for the 1997 PM2.5 NAAQS 

This part of the proposal discusses 

regional conformity tests for 

nonattainment areas for the 2006 PM2.5 

NAAQS that do not have adequate or 

approved PM2.5 SIP budgets for the 1997 

NAAQS. This proposal would apply to 

2006 PM2.5 nonattainment areas that 

were not covered by the 1997 PM2.5 

NAAQS, as well as nonattainment areas 

for both PM2.5 NAAQS that do not have 

an adequate or approved 1997 PM2.5 SIP 

budget. EPA would address conformity 

tests for these areas under proposed 

section 93.109(j) of the conformity rule. 

See Section VI. of today’s proposal for 

conformity tests in 2006 PM2.5 areas that 

have adequate or approved SIP budgets 

for the 1997 PM2.5 NAAQS. 

Note that this section of the preamble 

proposes new requirements for 

conformity only under the 2006 PM2.5 

NAAQS. This proposal does not address 

the requirements for demonstrating 

conformity for the 1997 PM2.5 NAAQS. 

A. Conformity After 2006 PM2.5 SIP 

Budgets Are Adequate or Approved 

1. Proposal 

Once a SIP for the 2006 PM2.5 NAAQS 

is submitted with a budget(s) that EPA 

has found adequate or approved, EPA 

proposes that the budget test must be 

used in accordance with 40 CFR 93.118 

to complete all applicable regional 

emissions analyses for the 2006 PM2.5 

NAAQS. Conformity would be 

demonstrated if the transportation 

system emissions reflecting the 

proposed transportation plan, TIP, or 

project not from a conforming 

transportation plan and TIP were less 

than or equal to the motor vehicle 

emissions budget level defined by the 

SIP as being consistent with Clean Air 

Act requirements. 

The first SIP for the 2006 PM2.5 

NAAQS could be a control strategy SIP 

required by the Clean Air Act (i.e., 

reasonable further progress SIP or 

attainment demonstration) or a 

maintenance plan. States could also 

voluntarily choose to submit an ‘‘early 

progress SIP’’ prior to required SIP 

submissions. Early progress SIPs must 

demonstrate a significant level of future 

emissions reductions from a previous 

year’s emissions. For example, an area 

could submit an early progress SIP for 

the 2006 PM2.5 NAAQS that 

demonstrates a specific percentage of 

emissions reductions (e.g., 5–10%) in an 

area’s attainment year from the baseline 

year emissions (e.g., 2008). An early 

progress SIP would include emissions 

inventories for all emissions sources for 

the entire 2006 PM2.5 nonattainment 

area and would meet applicable 

requirements for reasonable further 

progress SIPs. EPA has discussed this 

option in past conformity rule 

preambles, e.g., the July 1, 2004 

transportation conformity final rule (69 

FR 40028), and many states have 

established early progress SIP budgets 

for conformity purposes. 

Whatever the case, the interim 

emissions test(s) would no longer be 

used for direct PM2.5 or a relevant 

precursor once an adequate or approved 

SIP budget for the 2006 PM2.5 NAAQS 

is established for the pollutant or 

precursor. EPA encourages states to 

develop their future 2006 PM2.5 SIPs in 

consultation with MPOs, state and local 

transportation agencies, and local air 

quality agencies to facilitate future 

conformity determinations. Once EPA’s 

nonattainment designations are 

finalized, EPA Regions would be 

available to assist states in the 

development of early progress SIPs for 

the 2006 PM2.5 NAAQS, if desired. 

2. Rationale 

EPA believes that this proposal meets 

statutory requirements for conformity 

determinations that occur after SIP 

budgets are available for the 2006 PM2.5 

NAAQS. Section 176(c) of the Clean Air 

Act states that transportation activities 

must ‘‘conform to an implementation 

plan * * * ’’ (SIP) and states further 

that conformity to an implementation 

plan means conformity to the SIP’s 

purpose. Once EPA finds a budget for 

the 2006 PM2.5 NAAQS adequate or 

approves the SIP that includes it, the 

budget test provides the best means to 

determine whether transportation plans 

and TIPs meet the statutory obligations 

in Clean Air Act sections 176(c)(1)(A) 

and (B) for that NAAQS. That is, the 

budget test best shows that 

transportation plans and TIPs conform 

to the SIP’s purpose of eliminating or 

reducing the severity and number of 

violations of the NAAQS and achieving 

expeditious attainment of the NAAQS 

(176(c)(1)(A)); and best confirms the 

requirement that transportation plans 

and TIPs not cause or contribute to any 

new violation, worsen an existing 

violation, or delay timely attainment or 

any required interim milestone 

(176(c)(1)(B)). The budget test also best 

demonstrates that transportation plans 

and TIPs comply with the statutory 

obligation to be consistent with the 

emissions estimates in SIPs, according 

to Clean Air Act section 176(c)(2)(A). By 

being consistent with the on-road 

mobile source emissions levels in the 

SIP, transportation planners can ensure 

that their activities remain consistent 

with state and local air quality goals to 

protect public health. 

B. Conformity Before 2006 PM2.5 SIP 

Budgets Are Adequate or Approved 

1. Proposal 

EPA is proposing that these 2006 

PM2.5 nonattainment areas meet one of 

the following interim emissions tests for 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23031 

conformity determinations conducted 

before adequate or approved 2006 24-

hour PM2.5 SIP budgets are established: 

• The build-no-greater-than-no-build 

test (‘‘build/no-build test’’), or 

• The no-greater-than-baseline year 

emissions test (‘‘baseline year test’’). 

Again, this part of the proposal would 

apply only in cases where a 2006 PM2.5 

area does not have adequate or 

approved SIP budgets for either the 

2006 or 1997 PM2.5 NAAQS. Section VI. 

of the proposal covers the case where a 

2006 PM2.5 nonattainment area has a SIP 

budget for the 1997 PM2.5 NAAQS. 

This proposal is similar to the 

transportation conformity rule at 40 CFR 

93.119(e) for nonattainment areas for the 

1997 PM2.5 NAAQS. Today’s proposal 

would allow 2006 PM2.5 nonattainment 

areas without SIP budgets to choose 

between the two interim emissions tests, 

rather than require that one specific test 

or both tests be completed. Conformity 

would be demonstrated under the 

proposal if the transportation emissions 

reflecting the proposed transportation 

plan or TIP (build) were less than or 

equal to either the emissions from the 

existing transportation system (nobuild), or the level of motor vehicle 

emissions in the baseline year, as 

described in 40 CFR 93.119. A full 

discussion of the proposed baseline year 

options for the 2006 PM2.5 NAAQS can 

be found in Section IV. of today’s 

notice. 

2. Rationale 

EPA believes that this proposal meets 

statutory requirements for conformity 

determinations that occur before SIP 

budgets are available for the 2006 PM2.5 

NAAQS. EPA believes it is appropriate 

to provide flexibility and allow 2006 

PM2.5 areas to meet only one interim 

emissions test before adequate or 

approved PM2.5 SIP budgets are 

established. This proposal meets 

statutory requirements and parallels the 

current rule’s requirements for 1997 

PM2.5 nonattainment areas (69 FR 

40028–40031), which were upheld by 

an October 2006 court decision. 

Environmental Defense v. EPA, 467 F.3d 

1329 (DC Cir. 2006).8 In addition, this 

8 Petitioners challenged several aspects of the 

conformity regulations. In its decision, the U.S. 

Court of Appeals for the District of Columbia 

Circuit upheld EPA’s regulations at 40 CFR 

93.119(b)(2), (d), and (e) ‘‘because the Act does not 

require that activities involving transportation 

actually reduce pollutants, but merely not frustrate 

an implementation plan’s purpose to reduce overall 

emissions.’’ The court also upheld EPA’s 

regulations at 40 CFR 93.118(b), (d), and (e)(6). The 

court vacated a narrow provision at 40 CFR 

93.109(e)(2)(v) which had allowed 8-hour ozone 

areas to avoid using their existing 1-hour budgets 

under certain circumstances. This provision was 

proposal is consistent with past 

rulemakings for interim emissions test 

requirements for other pollutants, as 

described below. 

Using either the build/no-build test or 

baseline year test is sufficient to meet 

Clean Air Act section 176(c)(1)(B) 

requirements that transportation 

activities do not cause new air quality 

violations, worsen existing violations, or 

delay timely attainment or achievement 

of interim reductions or milestones. The 

baseline year and the build/no-build 

tests are sufficient for demonstrating 

conformity when an area does not have 

a SIP budget for a portion of a 

nonattainment area. 

Based on the Clean Air Act, EPA has 

previously determined that only ozone 

and CO areas of higher classifications 9 

are required to also satisfy section 

176(c)(3)(A)(iii) requirements during the 

time period before adequate or approved 

SIP budgets are available (58 FR 3782– 

3783; 62 FR 43784–43785; 69 FR 40018, 

40019–40031). As a result, the current 

rule requires these ozone and CO areas 

to meet both interim emissions tests, 

rather than only one test. 

However, the current conformity rule 

already allows areas designated for the 

other pollutants, as well as the lower 

classifications of ozone and CO, to 

conform based on only one interim 

emissions test, rather than having to 

complete two tests and thereby 

contribute further reductions towards 

attainment. EPA proposes that the 2006 

PM2.5 areas also be required to meet 

only one of the interim emissions tests 

to meet the Clean Air Act’s 

requirements in section 176(c)(1)(B). For 

more information and the full rationale 

for allowing some areas to conform 

based on only one interim emissions 

test, see the November 24, 1993 final 

rule (58 FR 62197) that addressed 

interim requirements for PM10 and NO2 

areas, and the July 1, 2004 final rule (69 

FR 40029) that established interim 

requirements for 1997 PM2.5 areas. 

EPA believes that the no-greater-thanbaseline year interim emissions test is 

an appropriate test for meeting section 

176(c)(1)(B) requirements in 2006 PM2.5 

nonattainment areas. By definition, the 

no-greater-than baseline year test 

ensures that emissions from on-road 

mobile sources are no greater than they 

were during the baseline year that will 

most likely be used for 2006 PM2.5 

NAAQS SIP planning purposes. If future 

on-road emissions do not increase above 

removed from the transportation conformity 

regulation in the January 24, 2008 final rule. 

9 That is, ozone areas classified as moderate and 

above, and CO areas classified as moderate with 

design value greater than 12.7 ppm and serious. 

their base year levels, applicable 

statutory requirements are met. 

Finally, the build/no-build test would 

also allow a 2006 PM2.5 area to meet 

statutory requirements. As described 

above, the build/no-build test requires a 

regional emissions analysis to 

demonstrate that the emissions from the 

transportation system in future years, if 

it included the proposed action and all 

other expected regionally significant 

projects, would be less than the 

emissions from the current 

transportation system in future years. 

Since a new transportation plan, TIP, or 

project (in the build scenario) could not 

result in regional emissions that are 

higher than those that would occur in 

the absence of new transportation 

activities (in the no-build scenario) for 

the system, the Clean Air Act section 

176(c)(1)(B) requirements are met. For 

these reasons, EPA believes that the 

build/no-build test continues to be an 

appropriate interim test prior to SIP 

budgets being available. 

C. General Implementation of Regional 

Tests 

This proposal would apply the 

existing conformity rule’s general 

requirements for PM2.5 regional 

emissions analyses in 2006 PM2.5 areas 

that do not have adequate or approved 

SIP budgets for the 1997 PM2.5 NAAQS. 

EPA is including this discussion of the 

existing regulation’s requirements for 

clarity, to help readers understand how 

the existing regulation would apply to 

areas designated nonattainment for the 

2006 PM2.5 NAAQS. However, EPA is 

not soliciting comment on these existing 

requirements that we are not proposing 

to change. The following examples are 

intended to illustrate how today’s 

proposal would be implemented in 

practice for 2006 PM2.5 areas without 

adequate or approved 1997 PM2.5 SIP 

budgets. 

1. Decisions Made Through the 

Interagency Consultation Process 

The existing rule’s consultation 

process would be used to determine the 

test for completing any regional 

emissions analysis for the 2006 PM2.5 

NAAQS, as required by 40 CFR 

93.105(c)(1)(i). The existing interagency 

consultation process would also be used 

to determine the latest assumptions and 

models for generating motor vehicle 

emissions regardless of the test used. 

Refer to Section IV. of this preamble for 

details about generating baseline year 

emissions if that interim emissions test 

is selected for a given conformity 

determination. 

The consultation process would also 

be used to determine which analysis 

23032 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

years should be selected for regional 

emissions analyses. Before an adequate 

or approved 2006 PM2.5 budget is 

available, areas would be able to choose, 

through interagency consultation, either 

interim emissions test for each 

conformity determination. However, the 

same test would be required to be used 

for each analysis year for a given 

determination. EPA believes that 

sufficient flexibility exists without 

mixing and matching interim emissions 

tests for different analysis years within 

one conformity determination, which is 

unnecessarily complicated and may 

indicate that an area would not conform 

using one test consistently. 

2. General Conformity Test 

Requirements for All Areas 

Regional emissions analyses under 

this proposal would be implemented 

through existing conformity 

requirements such as 40 CFR 93.118, 

93.119, and 93.122. For example, the 

existing conformity rule requires that 

only certain years within the 

transportation plan (or alternate 

timeframe) be examined. Under 40 CFR 

93.118(d), the following years would be 

analyzed for the budget test with 2006 

PM2.5 SIP budgets: 

• The attainment year for the 2006 

PM2.5 NAAQS (if it is within the 

timeframe of the transportation plan and 

conformity determination); 

• The last year of the timeframe of the 

conformity determination (40 CFR 

93.106(d)); and 

• Intermediate years as necessary so 

that analysis years are no more than ten 

years apart. 

For the interim emissions tests, the 

existing conformity rule (40 CFR 

93.119(g)) requires the following 

analysis years: 

• A year no more than five years 

beyond the year in which the 

conformity determination is being 

made; 

• The last year of the timeframe of the 

conformity determination (as described 

in 40 CFR 93.106(d)); 

• Intermediate years as necessary so 

that analysis years are no more than 10 

years apart. 

See the relevant regulatory sections of 

the conformity rule and the July 1, 2004 

final rule preamble for further 

background on how tests have been 

implemented for other pollutants and 

standards (69 FR 40020). 

3. Cases Involving Multi-Jurisdictional 

Areas 

In July 2004, EPA issued a guidance 

document for implementing conformity 

requirements in multi-jurisdictional 

areas.10 Multi-jurisdictional areas are 

nonattainment and maintenance areas 

with multiple MPOs, one or more MPOs 

and a donut area, or multi-state areas. 

EPA believes that this guidance should 

also apply to 2006 PM2.5 areas with 

multiple jurisdictions. 

There are two parts of this existing 

guidance that are most relevant for 

implementing conformity for multijurisdictional 2006 PM2.5 areas that do 

not have adequate or approved 1997 

PM2.5 SIP budgets. Part 2 of this 

guidance describes how conformity 

would be implemented in all 2006 PM2.5 

areas before adequate or approved SIP 

budgets are available for an applicable 

NAAQS. Part 3 of this guidance is 

relevant for meeting conformity 

requirements once adequate or 

approved 2006 PM2.5 SIP budgets are 

available. For example, Part 3 of this 

guidance describes how a state or MPO 

in a multi-state nonattainment area can 

operate independently from other 

states/MPOs for conformity purposes 

once adequate or approved SIP budgets 

for a state are established. This same 

conformity guidance would also apply 

for the 2006 PM2.5 NAAQS in these 

types of areas. Part 3 would also apply 

to the cases where subarea budgets are 

established for a nonattainment area 

within one state with multiple MPOs. 

For further information, please refer to 

EPA’s 2004 multi-jurisdictional 

conformity guidance. 

VI. Regional Conformity Tests in 2006 

PM2.5 Areas That Have Adequate or 

Approved 1997 PM2.5 SIP Budgets 

This section proposes the conformity 

tests for completing regional emissions 

analyses in areas designated for the 

2006 PM2.5 NAAQS with adequate or 

approved SIP budgets for the 1997 PM2.5 

NAAQS that cover either part or all of 

the 2006 PM2.5 area. EPA proposes to 

address conformity tests for these areas 

under a new section 93.109(k). See 

Section V. of today’s proposal for 

conformity tests in 2006 PM2.5 areas that 

do not have an adequate or approved 

1997 PM2.5 SIP budget. As stated 

elsewhere, EPA is not proposing any 

changes in conformity requirements for 

the 1997 PM2.5 NAAQS. 

10 ‘‘Companion Guidance for the July 1, 2004, 

Final Transportation Conformity Rule: Conformity 

Implementation in Multi-Jurisdictional 

Nonattainment and Maintenance Areas for Existing 

and New Air Quality Standard,’’ EPA40–B–04–012, 

July 2004, found on EPA’s Web site at http:// 

www.epa.gov/otaq/stateresources/transconf/policy/ 

420b04012.pdf. 

A. Conformity After 2006 PM2.5 SIP 

Budgets Are Adequate or Approved 

1. Proposal 

Once a SIP for the 2006 PM2.5 NAAQS 

is submitted with budget(s) that EPA 

has found adequate or approved, EPA 

proposes that the budget test must be 

used in accordance with 40 CFR 93.118 

to complete all applicable regional 

emissions analyses for the 2006 PM2.5 

NAAQS. Conformity would be 

demonstrated if the transportation 

system emissions reflecting the 

proposed transportation plan, TIP, or 

project not from a conforming 

transportation plan and TIP were less 

than or equal to the motor vehicle 

emissions budget level defined by the 

SIP as being consistent with Clean Air 

Act requirements. 

The first submitted SIP for the 2006 

PM2.5 NAAQS may be an attainment 

demonstration or a maintenance plan. 

Nonattainment areas for the 2006 PM2.5 

NAAQS could also voluntarily choose 

to submit an ‘‘early progress SIP’’ to 

establish budgets for conformity 

purposes prior to required SIPs. See 

Section V. for further details on 

requirements for early progress SIPs. 

EPA has discussed this option in past 

conformity rule preamble, e.g., the July 

1, 2004 transportation conformity final 

rule (69 FR 40028), and some states 

have established early progress SIP 

budgets for conformity purposes. 

Whatever the case, interim emissions 

tests and/or any existing 1997 PM2.5 SIP 

budget would no longer be used for 

conformity in 2006 PM2.5 areas for direct 

PM2.5 or a relevant precursor once an 

adequate or approved SIP budget for the 

2006 PM2.5 NAAQS is established for 

the pollutant or precursor. Once a SIP 

budget for the 2006 PM2.5 NAAQS is 

adequate or approved, the budget test 

for 2006 PM2.5 conformity would be 

done based on 24-hour emissions (i.e., 

tons per day). As noted earlier in 

Section III.D., areas that were also 

designated for the 1997 PM2.5 NAAQS 

would continue to meet their existing 

conformity requirements for the 1997 

PM2.5 NAAQS, which would include a 

regional emissions analysis based on 

annual emissions (i.e., tons per year). 

The conformity rule at 40 CFR 93.105 

requires consultation on the 

development of SIPs; EPA encourages 

states to consult with MPOs, state and 

local transportation agencies, and local 

air quality agencies sufficiently early 

when developing 2006 PM2.5 SIPs to 

facilitate future conformity 

determinations. Once EPA’s 

nonattainment designations are 

finalized, EPA Regions would be 

available to assist states in developing 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23033 

early progress SIPs for the 2006 PM2.5 

NAAQS, if desired. 

2. Rationale 

EPA’s rationale for the use of the 

budget test once adequate or approved 

SIP budgets addressing the 2006 PM2.5 

NAAQS are available is found in 

Section V.A.2. of this preamble, and not 

repeated here. 

B. Conformity Before 2006 PM2.5 SIP 

Budgets Are Adequate or Approved 

1. Proposal 

Where all or a portion of the 2006 

PM2.5 area is covered by adequate or 

approved 1997 PM2.5 budgets, EPA is 

proposing that the 1997 budgets would 

be used for 2006 PM2.5 conformity. In 

addition, in the case where the 1997 

budget does not cover the entire 2006 

PM2.5 area, EPA is proposing that one of 

the interim emissions tests would also 

be used, as described below. Section IV. 

of this proposal covers the proposed 

change to the baseline year test and 

Section V. covers interim emissions 

tests in 2006 PM2.5 areas before adequate 

or approved SIP budgets for the 2006 

PM2.5 NAAQS are available. 

Please note that this proposal is for 

completing conformity under the 2006 

PM2.5 NAAQS before 2006 PM2.5 SIP 

budgets are established. For areas 

designated nonattainment for the 2006 

PM2.5 NAAQS where all, or a portion, of 

the area is covered by adequate or 

approved 1997 PM2.5 SIP budgets, EPA 

is proposing that the budget test using 

1997 PM2.5 SIP budgets serve as a proxy 

for the 2006 PM2.5 NAAQS until 2006 

PM2.5 SIP budgets are available. 

Many nonattainment areas for the 

1997 PM2.5 NAAQS may have adequate 

or approved SIP budgets for the 1997 

annual PM2.5 NAAQS. For areas that use 

annual PM2.5 budgets to meet 2006 

PM2.5 requirements, a regional 

emissions analysis would be done based 

on an analysis of annual, rather than 24-

hour, emissions (i.e., tons per year). 

Today’s proposal is based on EPA’s 

experience in establishing conformity 

requirements for areas designated for 

the 1997 8-hour ozone NAAQS that had 

SIP budgets for the 1-hour ozone 

NAAQS, found in 40 CFR 93.109(e)(2). 

This proposal covers the four possible 

scenarios that could result when areas 

are designated nonattainment for the 

2006 PM2.5 NAAQS: 11 

• Scenario 1: The 2006 PM2.5 area 

nonattainment boundary is the same as 

the 1997 PM2.5 area boundary. 

11 Although all four scenarios are included in this 

proposal, most of the 2006 PM2.5 areas that have 

1997 PM2.5 budgets will be Scenario 1 areas. 

• Scenario 2: The 2006 PM2.5 area is 

smaller than (and completely within) 

the 1997 PM2.5 area boundary. 

• Scenario 3: The 2006 PM2.5 area is 

larger than (and contains) the 1997 

PM2.5 area boundary. 

• Scenario 4: The 2006 PM2.5 area 

boundary overlaps with a portion of the 

1997 PM2.5 area boundary. 

These four boundary scenarios are the 

same as the four boundary scenarios 

EPA described for the 1997 8-hour 

ozone areas that had existing 1-hour 

ozone budgets. EPA’s 2004 guidance 

entitled, ‘‘Companion Guidance for the 

July 1, 2004 Final Transportation 

Conformity Rule, Conformity 

Implementation in Multi-Jurisdictional 

Nonattainment and Maintenance Areas 

for Existing and New Air Quality 

Standards,’’ (EPA40–B–04–012), 

contains diagrams of the four scenarios 

for 8-hour ozone areas. Readers may be 

interested in reviewing these diagrams 

as they consider the following 

proposals. This document can be found 

on EPA’s transportation conformity Web 

site at: http://www.epa.gov/otaq/ 

stateresources/transconf/policy/ 

420b04012.pdf. 

The following paragraphs describe 

today’s proposals for each possible 

scenario for 2006 PM2.5 nonattainment 

areas. 

Scenario 1: 2006 PM2.5 areas where 

the nonattainment boundary is exactly 

the same as the 1997 PM2.5 boundary. In 

this case, the 2006 and 1997 PM2.5 

nonattainment boundaries cover exactly 

the same geographic area. EPA proposes 

to require such areas to meet the budget 

test for the 2006 PM2.5 NAAQS using 

existing adequate or approved SIP 

budgets for the 1997 PM2.5 NAAQS. 

Scenario 2: 2006 PM2.5 areas where 

the boundary is smaller than and within 

the 1997 PM2.5 boundary. In this case, 

the 2006 PM2.5 nonattainment area is 

smaller than and completely 

encompassed by the 1997 PM2.5 

nonattainment boundary. EPA proposes 

to require such areas to meet one of the 

following versions of the budget test: 

• The budget test using the subset or 

portion of existing adequate or approved 

1997 PM2.5 SIP budgets that applies to 

the 2006 PM2.5 nonattainment area, 

where such portion(s) can be 

appropriately identified; or 

• The budget test using the existing 

adequate or approved 1997 PM2.5 SIP 

budgets for the entire 1997 PM2.5 

nonattainment area. In this case, any 

additional reductions beyond those 

addressed by control measures in the 

1997 PM2.5 SIP would be required to 

come from the 2006 PM2.5 

nonattainment area as described below. 

Under today’s proposal, areas could 

choose either test each time they make 

a conformity determination. For any 

particular conformity determination, 

however, the same choice would have to 

be used for each analysis year. EPA 

believes that to do otherwise would be 

unnecessarily complicated and may 

indicate that one test option used 

consistently for all analysis years would 

not demonstrate conformity. The 

consultation process would be used to 

determine whether using a portion of a 

1997 PM2.5 SIP budget is appropriate 

and feasible, and if so, how deriving 

such a portion would be accomplished. 

See the preamble of the July 1, 2004 

final rule (69 FR 40022–40023) for a 

description of a similar provision for the 

1997 8-hour ozone NAAQS. 

EPA is proposing that a conformity 

determination using the entire 1997 

PM2.5 budget would include a 

comparison between the on-road 

regional emissions produced in the 

entire 1997 PM2.5 area and the existing 

1997 PM2.5 SIP budget(s). However, if 

additional reductions are required to 

meet conformity beyond those produced 

by control measures in the 1997 PM2.5 

SIP budgets, EPA proposes that those 

reductions must be obtained from 

within the 2006 PM2.5 nonattainment 

area only, since the conformity 

determination would be for the 2006 

PM2.5 NAAQS. 

Scenario 3: 2006 PM2.5 areas where 

the boundary is larger than the 1997 

PM2.5 boundary. In this case, an entire 

1997 PM2.5 nonattainment or 

maintenance area would be within a 

larger 2006 PM2.5 nonattainment area 

and the 1997 PM2.5 budgets would not 

cover the entire 2006 PM2.5 

nonattainment area. EPA proposes to 

require such areas to meet one of the 

following: 

• The budget test using the 1997 

PM2.5 budget(s) for the 1997 PM2.5 area, 

that is, the portion of the 2006 PM2.5 

area that lies within the 1997 PM2.5 area 

boundary, and one of the interim 

emissions tests for either the remaining 

portion of the 2006 PM2.5 nonattainment 

area, the entire 2006 PM2.5 area, or the 

entire portion of the 2006 PM2.5 area 

within an individual state, if 1997 PM2.5 

budgets are established in each state in 

a multi-state area; or 

• The budget test using the existing 

adequate or approved 1997 PM2.5 SIP 

budgets for the entire 2006 PM2.5 

nonattainment area.12 

12 While the existing regulation for 8-hour ozone 

areas does not explicitly contain this option, it was 

addressed in the preamble to the final rule 

addressing 8-hour ozone areas (July 1, 2004, 69 FR 

40027). 

23034 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

Under this proposal, the budget test 

would be completed according to the 

requirements in 40 CFR 93.118, and the 

interim emissions test requirements of 

40 CFR 93.119. 

Once an area selects a particular 

interim emissions test and the 

geographic area it will address, EPA 

proposes that the same test must be 

used consistently for all analysis years. 

The consultation process would have to 

be used to determine which analysis 

years should be selected for regional 

emissions analyses where the budget 

test and interim emissions tests are 

used. It may be possible to choose 

analysis years that would satisfy both 

the budget and interim emissions test 

requirements for areas using both tests 

prior to adequate or approved 2006 

PM2.5 SIP budgets being established. 

Further information regarding the 

implementation of these requirements is 

illustrated later in this section. 

Scenario 4: 2006 PM2.5 areas where 

the boundary partially overlaps a 

portion of the 1997 PM2.5 boundary. In 

this case, the 1997 and 2006 PM2.5 

nonattainment boundaries partially 

overlap. As in the case with Scenario 3 

areas, the 1997 PM2.5 budgets would not 

cover the entire 2006 PM2.5 

nonattainment area. However, unlike 

Scenario 3 areas, the 2006 area does not 

contain the entire 1997 PM2.5 

nonattainment or maintenance area. 

Therefore, 1997 PM2.5 budgets cannot be 

the sole test of conformity for the 2006 

PM2.5 NAAQS, since a conformity 

determination must include a regional 

emissions analysis that includes the 

entire 2006 PM2.5 nonattainment area. 

EPA proposes that 2006 PM2.5 areas 

covered under this scenario would use 

the 1997 PM2.5 budget(s) to meet the 

budget test for the portion of the 1997 

PM2.5 area and budgets that overlap with 

the 2006 PM2.5 area boundary, and one 

of the interim emissions tests for either 

the remaining portion of the 2006 PM2.5 

nonattainment area, the entire 2006 

PM2.5 area, or the entire portion of the 

2006 PM2.5 area within an individual 

state, if 1997 PM2.5 budgets are 

established in each state in a multi-state 

area. Under this proposal, the budget 

test would be completed according to 

the requirements in 40 CFR 93.118, and 

the interim emissions test requirements 

of 40 CFR 93.119. 

Similar to Scenario 3 areas, once an 

area selects a particular interim 

emissions test and the geographic area 

it will address, EPA proposes that the 

same test must be used consistently for 

all analysis years. Further information 

regarding the implementation of these 

requirements is found in the discussion 

above for Scenario 3, and illustrated 

later in this section. 

2. Rationale 

General. EPA believes that using the 

existing 1997 PM2.5 budgets as a proxy 

for the 2006 PM2.5 NAAQS is required 

by the Clean Air Act. In Environmental 

Defense v. EPA, 467 F.3d 1329 (DC Cir. 

2006), the Court of Appeals for the 

District of Columbia Circuit held that 

where a motor vehicle emissions budget 

developed for the revoked 1-hour ozone 

NAAQS existed in an approved SIP, that 

budget must be used to demonstrate 

conformity to the 8-hour ozone NAAQS 

until the SIP is revised to include 

budgets for the new NAAQS. EPA 

reflected the court’s decision for ozone 

conformity tests in its January 24, 2008 

final rule (73 FR 4434). 

While the Environmental Defense 

case concerned ozone, EPA believes the 

court’s holding is relevant for other 

pollutants for which conformity must be 

demonstrated. Consequently, EPA 

believes that 2006 PM2.5 areas that have 

1997 PM2.5 budgets must use them for 

2006 PM2.5 conformity before 2006 

PM2.5 SIP budgets are established. 

The use of the 1997 PM2.5 budgets as 

a proxy for the 2006 PM2.5 NAAQS also 

would ensure that Clean Air Act 

requirements are met. Section 176(c) of 

the Clean Air Act requires that 

transportation activities may not cause 

new violations, increase the frequency 

or severity of existing violations, or 

delay timely attainment. In these areas, 

the budgets for the 1997 annual PM2.5 

NAAQS have been the measure of PM2.5 

conformity thus far, and have been 

consistent with these areas’ PM2.5 air 

quality progress to date. Therefore, 

using budgets that address the 1997 

annual PM2.5 NAAQS where no other 

PM2.5 budgets are available ensures that 

the requirements of Clean Air Act 176(c) 

are met. Once 2006 PM2.5 budgets are 

found adequate or approved, the budget 

test for that NAAQS provides the best 

means to determine whether 

transportation plans, TIPs, or projects 

meet Clean Air Act requirements. 

EPA also believes the budget test is a 

better environmental measure than the 

interim emissions tests when SIP 

budgets for a pollutant or precursor are 

available. As EPA reiterated in its July 

1, 2004 final rule (69 FR 40026), when 

motor vehicle emissions budgets have 

been established by SIPs, they provide 

a more relevant basis for conformity 

determinations than the interim 

emissions tests. EPA believes this is true 

even though in most cases the budgets 

established for the 1997 PM2.5 NAAQS 

would address an annual rather than a 

24-hour NAAQS. A 1997 PM2.5 budget 

represents the state’s best estimate of the 

level of permissible PM2.5 emissions 

from the on-road transportation sector 

for a particular area. Such a budget is 

created based on local information for 

that particular area—its population, its 

estimated VMT and other travel data, its 

transit availability, its particular vehicle 

fleet, its local controls, and so forth. 

Hence EPA believes using budgets, 

designed for specific areas and based on 

information from those specific areas, is 

preferable to using either of the more 

generic interim emissions tests. The 

baseline year and the build/no-build 

tests are sufficient for demonstrating 

conformity when an area does not have 

a budget for a portion of a 

nonattainment area. However, these 

interim emissions tests usually do not 

ensure that transportation emissions 

promote progress for the NAAQS to the 

same extent that the use of motor 

vehicle emissions budgets do. 

In addition, using the 1997 PM2.5 

budgets for 2006 PM2.5 conformity 

purposes may also streamline the 

conformity process for areas designated 

nonattainment for both the 1997 and 

2006 PM2.5 NAAQS. These areas would 

already be using 1997 PM2.5 budgets for 

conformity of that NAAQS. In areas 

where the 1997 and 2006 PM2.5 

nonattainment boundaries are the same 

(Scenario 1), today’s proposal would 

result in having to meet only one type 

of test—the budget test—to demonstrate 

conformity for both the 1997 and 2006 

NAAQS. 

For multi-state 2006 PM2.5 

nonattainment areas, today’s proposal 

would also preserve states’ ability to do 

conformity independently from one 

another, if a state has already 

established budgets for its own state 

(and/or MPO(s)) for the 1997 PM2.5 

NAAQS. Further explanation and 

examples are given below in Section 

VI.C. 

Scenario 1 and 2 areas. Today’s 

proposal for conformity in 2006 PM2.5 

areas before budgets that address that 

NAAQS are available is largely 

consistent with the process that EPA 

finalized for 8-hour ozone areas 

designated under the 1997 ozone 

NAAQS where 1-hour ozone budgets 

exist (69 FR 40021–40028). Our 

proposals for Scenario 1 and 2 areas are 

identical to the final rule for these 8-

hour ozone areas. Scenario 2 2006 PM2.5 

areas would also have the choice of 

adjusting the existing 1997 PM2.5 

budgets for the new geographical area. 

As we indicated in the November 5, 

2003 proposed rule for the 8-hour ozone 

areas (68 FR 62702), using the relevant 

portion of existing budgets for purposes 

of conducting conformity 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23035 

determinations for a different NAAQS of 

the same pollutant is appropriate since 

the budgets for the 1997 PM2.5 NAAQS 

would only be used as a proxy for the 

2006 PM2.5 NAAQS. These 1997 PM2.5 

budgets still have to be met in the 1997 

PM2.5 areas. 

Scenario 3 and 4 areas. Some 

Scenario 3 areas and all Scenario 4 areas 

would also have to meet one of the 

interim emissions tests, for either the 

portion of the 2006 PM2.5 area not 

covered by the 1997 PM2.5 SIP budgets, 

the entire PM2.5 area, or the entire 

portion of the 2006 PM2.5 area within an 

individual state. As explained in the 

November 2003 proposed rule for 8-

hour ozone areas (68 FR 62702), in these 

cases budgets cannot be the sole test of 

conformity because a conformity 

determination must include a regional 

emissions analysis that covers the entire 

nonattainment area. 

However, some Scenario 3 areas may 

be able to demonstrate conformity 

without an interim emissions test. For 

Scenario 3 PM2.5 areas, EPA is 

proposing an option that similar 8-hour 

ozone areas also have: the entire larger, 

newly designated area could meet 

budgets established for the smaller, 

existing area. In the July 1, 2004 final 

rule, EPA clarified that 8-hour ozone 

areas have this ability. In that final rule, 

EPA noted that while this option was 

not explicitly addressed by the 

regulatory text, it would be consistent 

with the requirements and is available 

to interested 8-hour ozone areas (69 FR 

40027). Given the benefit of that history, 

EPA is proposing to adopt regulatory 

text for this option for Scenario 3 2006 

PM2.5 areas. 

Finally, EPA believes that statutory 

requirements are met under the 

proposal to use either interim emissions 

test when no adequate or approved 

PM2.5 SIP budgets are available. See 

further rationale regarding the flexibility 

offered by today’s proposal in Section V. 

C. General Implementation of Regional 

Tests 

This proposal would apply the 

existing conformity rule’s general 

requirements for PM2.5 regional 

emissions analyses to all 2006 PM2.5 

areas. As described in Section V.C., EPA 

is including this discussion of the 

existing regulation’s requirements for 

clarity, to help readers understand how 

the existing regulation would apply to 

areas designated nonattainment for the 

2006 PM2.5 NAAQS. However, EPA is 

not soliciting comment on existing 

requirements that we are not proposing 

to change. 

The following examples are intended 

to illustrate how today’s proposal would 

be implemented in practice for 2006 

PM2.5 areas with adequate or approved 

1997 PM2.5 SIP budgets. 

1. General Conformity Test 

Requirements for Most Areas 

Regional emissions analyses under 

this proposal would be implemented 

through existing conformity 

requirements such as 40 CFR 93.118, 

93.119, and 93.122. For example, the 

existing conformity rule requires that 

only certain years within the 

transportation plan (or alternate 

timeframe) be examined. 

Although four scenarios are described 

in Section VI.B. for the time period 

before 2006 PM2.5 SIP budgets are 

available, most areas with 1997 PM2.5 

SIP budgets will be covered by Scenario 

1 (i.e., the 1997 and 2006 PM2.5 NAAQS 

boundaries are the same). Under 

Scenario 1, the consultation process 

would be used to determine which 

analysis years should be selected for 

regional emissions analyses for the 

budget test. The existing conformity rule 

at 40 CFR 93.118(d) requires the 

following analysis years for this test: 

• The attainment year for the 2006 

PM2.5 NAAQS (if it is within the 

timeframe of the transportation plan and 

conformity determination); 

• The last year of the timeframe of the 

conformity determination (40 CFR 

93.106(d)); and 

• Intermediate years as necessary so 

that analysis years are no more than 10 

years apart. 

Areas covered by this proposal would 

also be determining conformity for the 

1997 PM2.5 NAAQS, using adequate or 

approved budgets established for that 

NAAQS. 

See the relevant regulatory sections of 

the conformity rule and the July 1, 2004 

final rule preamble for further 

background on how tests have been 

implemented for other pollutants and 

standards (69 FR 40020). 

2. Cases Involving Multi-Jurisdictional 

Areas 

As described earlier, EPA issued a 

guidance document in 2004 for 

implementing conformity requirements 

in multi-jurisdictional areas. There are 

two parts of this existing guidance that 

are relevant for implementing 

conformity for these areas. Part 3 of the 

existing guidance describes how 

conformity would be implemented in all 

2006 PM2.5 areas once adequate or 

approved SIP budgets for the 2006 PM2.5 

NAAQS are established. Part 4 of this 

guidance is relevant for meeting 

conformity requirements when only 

1997 PM2.5 budgets are available.13 

This guidance is also applicable for 

conformity purposes in multi-state and 

multi-MPO areas. For example, in multistate 2006 PM2.5 nonattainment areas 

where each state has its own 1997 PM2.5 

SIP budgets, the states could do 

conformity for the 2006 NAAQS (as well 

as the 1997 PM2.5 NAAQS) 

independently of each other. In 

addition, MPOs in areas that have 

subarea budgets for the 1997 PM2.5 

NAAQS could use these subarea 

budgets for conformity to the 2006 PM2.5 

NAAQS. 

For further information, please refer 

to Section V.C. and EPA’s 2004 multijurisdictional conformity guidance. 

VII. Other Conformity Requirements for 

2006 PM2.5 Areas 

The existing regulations already 

provide the remaining requirements that 

will be necessary for conformity under 

the 2006 PM2.5 NAAQS. EPA believes 

that any existing conformity 

requirements that are listed for ‘‘PM2.5 ’’ 

areas that are not being revised in 

today’s proposal would also apply to 

2006 PM2.5 nonattainment or 

maintenance areas. These provisions 

have already been promulgated, based 

on past rulemakings and rationale, and 

EPA is not proposing any changes to 

these provisions. Therefore, EPA is not 

requesting public comment on these 

provisions in today’s proposal. 

For example, a hot-spot analysis is 

required for certain projects in any 

PM2.5 nonattainment and maintenance 

areas before such projects can be found 

to conform. These requirements are 

found in §§ 93.116(a) and § 93.123(b) of 

the current conformity rule, although 

please note that EPA, for other reasons, 

is proposing today to clarify 

amendments to section 93.116(a) of the 

conformity rule. See Section IX. of this 

preamble for details. Any hot-spot 

analysis requirements that were 

promulgated for ‘‘PM2.5’’ areas in the 

conformity rule do not need to be 

amended because they would already 

apply to 2006 PM2.5 areas for this 

NAAQS. 

A hot-spot analysis in an area 

designated for both the 1997 and 2006 

PM2.5 NAAQS would have to 

demonstrate that the project meets the 

conformity rule’s hot-spot requirements 

for all of the PM2.5 standards for which 

the area is designated nonattainment. 

13 This section of the guidance covers how 8-hour 

ozone areas that have 1-hour ozone budgets would 

proceed with developing their regional emissions 

analyses and making conformity determinations, 

which is analogous to any 2006 PM2.5 areas that 

have 1997 budgets in the interim. 

23036 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

For example, if an area is designated 

nonattainment for the 1997 annual 

standard, and the 2006 24-hour 

standard, the analysis would have to 

consider both standards. Similarly, in 

the case where an area is designated 

nonattainment for both the 1997 annual 

and 24-hour standards, as well as the 

2006 24-hour standard, the analysis 

would have to consider all of these 

standards. (See Section IX. for more 

information regarding the requirements 

of hot-spot analyses.) 

Please refer to the March 10, 2006 

final rule for additional information 

regarding hot-spot analyses (47 FR 

12468) and EPA and FHWA’s current 

guidance for implementing this 

requirement (Transportation Conformity 

Guidance for Qualitative Hot-spot 

Analyses in PM2.5 and PM10 

Nonattainment and Maintenance Areas, 

March 2006, EPA420–B–06–902). 

Section 93.117 of the conformity rule, 

which requires project-level conformity 

determinations to comply with any 

PM2.5 control measures in an approved 

SIP, would also apply for conformity 

under the 2006 PM2.5 NAAQS. Again, 

EPA promulgated this requirement in 

general for nonattainment and 

maintenance areas under PM2.5 air 

quality NAAQS. Therefore, EPA is not 

reopening this provision for comment in 

today’s proposal, since it is unnecessary 

to do so in order to implement 

conformity requirements under the 2006 

PM2.5 NAAQS. See EPA’s July 2004 final 

rule for further information on this 

requirement (69 FR 40036–40037). 

EPA will work with PM2.5 

nonattainment areas as needed to ensure 

that state and local agencies can meet 

existing and new conformity 

requirements for the 2006 PM2.5 NAAQS 

in a timely and efficient manner. EPA 

requests comment on whether 

additional information or training will 

be necessary to ensure proper 

conformity implementation under the 

existing rule and today’s proposal for 

the 2006 PM2.5 NAAQS. If your agency 

submits comments, please be as specific 

as possible regarding what types of 

situations and issues may need to be 

addressed in future implementation of 

PM2.5 conformity requirements. 

VIII. Transportation Conformity in 

PM10 Nonattainment and Maintenance 

Areas and the Revocation of the Annual 

PM10 NAAQS 

A. Background 

On October 17, 2006, EPA issued a 

final rule establishing changes to the 

PM2.5 and PM10 NAAQS (71 FR 61144). 

The October 2006 final rule retained the 

24-hour PM10 NAAQS of 150 μg/m3, and 

revoked the annual PM10 NAAQS of 50 

μg/m3. EPA made a commitment in this 

October 2006 final rule to provide 

information regarding how 

transportation conformity will be 

implemented under the revised PM10 

NAAQS (71 FR 61215). To satisfy this 

commitment, EPA described which 

conformity tests would apply in PM10 

nonattainment and maintenance areas 

(‘‘PM10 areas’’) in a guidance 

document.14 Today’s proposal to update 

the conformity rule also responds to this 

commitment. 

Clean Air Act section 176(c)(5) 

requires conformity only in areas that 

are designated nonattainment or 

maintenance for a given pollutant and 

NAAQS. Therefore, transportation 

conformity has continued to apply to all 

PM10 nonattainment and maintenance 

areas because transportation conformity 

applies based on an area’s status as a 

nonattainment or maintenance area, and 

PM10 designations were not affected by 

the October 2006 final rule. As stated in 

the October 2006 final rule, ‘‘both 

transportation and general conformity 

will continue to apply to all PM10 

nonattainment and maintenance areas 

since no designations are changing’’ (71 

FR 61215). 

As of the effective date of the October 

2006 rule, conformity determinations in 

PM10 areas have been required only for 

the 24-hour PM10 NAAQS. The October 

2006 final rule stated, ‘‘However, 

because EPA is revoking the annual 

PM10 NAAQS in this final rule, after the 

effective date of this rule conformity 

determinations in PM10 areas will only 

be required for the 24-hour PM10 

NAAQS; conformity to the annual PM10 

NAAQS will no longer be required’’ (71 

FR 61215). Please refer to the October 

17, 2006 final rule for additional 

information (71 FR 61144). 

B. Proposed Definitions for PM10 

NAAQS 

EPA proposes to add new definitions 

to 40 CFR 93.101 of the conformity rule 

to distinguish between the 24-hour PM10 

NAAQS and the annual PM10 NAAQS. 

EPA is proposing these two definitions 

to simplify the changes necessary for 

other conformity rule provisions, as 

described further below. The addition of 

these definitions parallels the existing 

definitions in 40 CFR 93.101 for the 1-

hour ozone NAAQS and 8-hour ozone 

NAAQS. 

14 Transportation Conformity in PM10 

Nonattainment and Maintenance Areas and the 

Revocation of the Annual PM10 Standard, 

September 25, 2008, found on EPA’s Web site at: 

http://www.epa.gov/otaq/stateresources/transconf/ 

policy.htm. 

C. Proposal for Conformity Tests in PM10 

Areas With Budgets 

EPA proposes to update one section of 

the regulation, consistent with the 

October 2006 final rule and the 

September 25, 2008 guidance entitled, 

‘‘Transportation Conformity in PM10 

Nonattainment and Maintenance Areas 

and the Revocation of the Annual PM10 

NAAQS.’’ This proposal would be 

consistent with how PM10 

transportation conformity requirements 

have been applied since the revocation 

of the annual PM10 NAAQS was 

effective. 

Specifically, EPA is proposing to 

update 40 CFR 93.109(g) so that:

• PM10 areas that have adequate or 

approved SIP budgets for both the 24-

hour and annual PM10 NAAQS would 

be required to use only the budgets 

established for the 24-hour PM10 

NAAQS. Conformity to the annual PM10 

budgets in such a case would no longer 

be required.15 

• PM10 areas that have adequate or 

approved SIP budgets for only the 

annual PM10 NAAQS would be required 

to use them for PM10 conformity 

determinations until PM10 SIP budgets 

for the 24-hour PM10 NAAQS are found 

adequate or approved. For areas that use 

annual PM10 budgets, a regional 

emissions analysis would be done based 

on an analysis of annual, rather than 24-

hour, emissions. 

EPA is not proposing to change any 

other existing conformity requirements 

for PM10 nonattainment and 

maintenance areas. For example, the 

existing requirement for project-level 

conformity determinations in PM10 

areas would also continue to apply, 

including hot-spot analyses in some 

cases (see §§ 93.116(a) and 93.123(b)). 

Although project-level conformity 

requirements and any required hot-spot 

analysis would apply only with respect 

to the 24-hour PM10 NAAQS, this 

requires no revisions to the current 

conformity rule. 

D. Rationale 

Today’s proposed rule changes for 

PM10 conformity tests result from the 

revocation of the annual PM10 NAAQS. 

Where annual PM10 budgets are the only 

PM10 budgets, EPA believes it is 

necessary to use such budgets to 

demonstrate conformity for the 24-hour 

15 Note that it would not be necessary to remove 

budgets established for the annual PM10 NAAQS 

from a SIP for conformity purposes; they do not 

apply if an area has budgets for the 24-hour PM10 

NAAQS. However, states can choose to revise such 

SIPs to remove any annual PM10 budgets, since this 

standard has been revoked and remaining 24-hour 

PM10 budgets would ensure that anti-backsliding 

SIP requirements are met. 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23037 

PM10 NAAQS to meet Clean Air Act 

requirements. As discussed above in 

Section VI.B.2., a 2006 decision by the 

Court of Appeals for the DC Circuit 

clarified this point. In this decision, the 

court stated, ‘‘A current SIP, even one 

tied to outdated NAAQS, remains in 

force until replaced by another but laterapproved SIP. The Clean Air Act 

provides that the current SIPs are legally 

sufficient until they are replaced by new 

SIPs.’’ (Environmental Defense v. EPA, 

467 F.3d 1329, 1335 (DC Cir. 2006)). 

Refer to Section VI.B.2. for further 

information about the decision. EPA 

believes that today’s proposal is 

consistent with this decision. 

Consequently, EPA believes that 

annual PM10 budgets must be used to 

demonstrate conformity for the 24-hour 

PM10 NAAQS when adequate or 

approved 24-hour PM10 budgets are not 

yet established. In areas with PM10 

budgets that address only the annual 

PM10 NAAQS, these budgets have been 

the measure of PM10 conformity thus 

far, and have been consistent with these 

areas’ PM10 air quality progress to date. 

Therefore, using annual PM10 budgets 

where no other PM10 SIP budgets are 

available ensures that air quality 

progress to date is maintained, air 

quality will not be worsened and 

attainment and any interim milestones 

for the 24-hour PM10 NAAQS will not 

be delayed because of emissions 

increases. Once 24-hour PM10 budgets 

are found adequate or approved, the 

budget test solely for the 24-hour PM10 

NAAQS provides the best means to 

determine whether transportation plans, 

TIPs, or projects meet Clean Air Act 

conformity requirements. 

Most PM10 areas already have 

adequate or approved budgets for only 

the 24-hour PM10 NAAQS. However, 

there are a limited number of PM10 areas 

that have SIP budgets only for the 

annual PM10 NAAQS. EPA believes that 

the statute as interpreted by the court 

requires such areas to continue to use 

these adequate or approved annual PM10 

SIP budgets, rather than use one of the 

interim emissions tests in 40 CFR 

93.119(d) which could be less 

environmentally protective tests than 

SIP budgets. 

While EPA addressed how the 

revocation affected PM10 transportation 

conformity requirements in its 

September 2008 guidance, updating the 

regulation clarifies the requirements and 

simplifies implementation. This 

proposed rule also saves resources in 

some areas with adequate or approved 

SIP budgets for both the 24-hour and 

annual PM10 NAAQS because these 

areas are no longer required to use 

budgets for the annual PM10 NAAQS. As 

mentioned above, today’s minor 

revision to the conformity rule is 

consistent with what is already required 

in the field for PM10 nonattainment and 

maintenance areas. 

IX. Response to the December 2007 HotSpot Court Decision 

A. Background 

EPA promulgated a final rule on 

March 10, 2006 (71 FR 12468) that 

revised the previous PM10 conformity 

hot-spot analysis requirements and 

applied these revised requirements to 

PM2.5.16 A hot-spot analysis is defined 

in 40 CFR 93.101 as an estimation of 

likely future localized pollutant 

concentrations and a comparison of 

those concentrations to relevant 

NAAQS. A hot-spot analysis assesses 

the air quality impacts of an individual 

transportation project on a scale smaller 

than a regional emissions analysis for an 

entire nonattainment or maintenance 

area. 

Section 93.116(a) of the current 

conformity rule requires that projects in 

PM2.5, PM10, and CO nonattainment and 

maintenance areas ‘‘must not cause or 

contribute to any new localized CO, 

PM10, and/or PM2.5 violations or 

increase the frequency or severity of any 

existing CO, PM10, and/or PM2.5 

violations* * *.’’ This requirement is 

satisfied for applicable projects 17 ‘‘if it 

is demonstrated that during the time 

frame of the transportation plan no new 

local violations will be created and the 

severity or number of existing violations 

will not be increased as a result of the 

project.’’ Sections 93.105(c)(1)(i) and 

93.123 contain the consultation and 

methodology requirements for 

conducting hot-spot analyses. 

A hot-spot analysis, when required, is 

only one part of a project-level 

conformity determination. In order to 

meet all Clean Air Act requirements, an 

individual project must also be included 

in a conforming transportation plan and 

TIP (and regional emissions analysis for 

the entire nonattainment or 

maintenance area) and meet any other 

applicable requirements. 

Environmental petitioners challenged 

the March 2006 final rule, and raised 

several issues related to it. First, 

16 The March 10, 2006 rule constituted final 

action on EPA’s original proposal from November 

5, 2003 (68 FR 62690, 62712) and a supplemental 

proposal from December 13, 2004 (69 FR 72140, 

72144–45, and 72149–50). 

17 Section 93.123(b) contains the types of projects 

for which a hot-spot analysis applies in PM2.5 and 

PM10 areas. For additional discussion, please refer 

to ‘‘V. Projects of Air Quality Concern and General 

Requirements for PM2.5 and PM10 Hot-spot 

Analyses’’ in the preamble of the March 10, 2006 

final rule at 71 FR 12490–12498. 

petitioners alleged that the final rule did 

not ensure that transportation projects 

complied with Clean Air Act section 

176(c)(1)(A) and (c)(1)(B)(iii). Second, 

petitioners alleged that EPA had 

previously approved its MOBILE6.2 onroad mobile source emissions model for 

use in quantitative PM2.5 and PM10 hotspot analyses, and withdrew such 

approval in the March 2006 final rule 

without providing adequate notice and 

opportunity for public comment.18 

On December 11, 2007, the DC Circuit 

Court of Appeals issued its decision, 

and upheld EPA’s March 2006 final rule 

and remanded one issue for 

clarification. Environmental Defense v. 

EPA, 509 F.3d. 553 (DC Cir. 2007). The 

court agreed with EPA’s position that 

Clean Air Act section 176(c)(1)(A) does 

not require that an individual 

transportation project reduce emissions, 

but only that such a project not worsen 

air quality compared to what would 

have otherwise occurred if the project 

was not implemented. The court held 

that, assuming section 176(c)(1)(A) 

applies in the local area surrounding an 

individual project, EPA’s position that 

this provision is met if a transportation 

project conforms to the emissions 

estimates and control requirements of 

the SIP was a reasonable one. The court 

also rejected petitioners’ arguments 

regarding MOBILE6.2 and found that 

EPA had in fact provided adequate 

notice and comment on its decision not 

to require quantitative PM hot-spot 

analyses using MOBILE6.2 due to the 

model’s technical limitations at the 

project-level (71 FR 12498–12502). 

However, the court remanded to EPA 

for further explanation of the Agency’s 

interpretation of Clean Air Act section 

176(c)(1)(B)(iii). The court instructed 

EPA on remand to interpret how this 

provision of the Act is met within the 

local area affected by an individual 

project, or explain why this statutory 

provision does not apply within such an 

area. Environmental Defense v. EPA, 

509 F.3d. 553 (DC Cir. 2007). Today’s 

proposal is intended to respond to this 

part of the court’s decision. 

B. Proposal 

EPA is proposing to make two minor 

changes to section 93.116(a) of the 

conformity rule to address the court’s 

remand. First, EPA is explicitly stating 

in this provision that federally funded 

or approved highway and transit 

projects in PM2.5 and PM10 

18 EPA and petitioners settled a third issue that 

was not raised to the court. The settlement was 

finalized on June 22, 2007 (72 FR 34460), and 

described a stakeholder process that EPA will use 

to develop its future PM2.5 and PM10 quantitative 

hot-spot modeling guidance. 

23038 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

nonattainment and maintenance areas 

must meet the requirements of Clean Air 

Act section 176(c)(1)(B)(iii) within the 

local area affected by the project. EPA 

is also proposing to make explicit in 

§ 93.116 the existing requirement that 

projects must be included in a regional 

emissions analysis under 40 CFR 93.118 

or 93.119. Consistent with the Court’s 

decision, EPA is not proposing 

additional requirements, such as 

requiring that an individual project 

reduce emissions in the local project 

area. 

EPA is not proposing any substantive 

changes to existing requirements for 

project-level conformity determinations. 

Under today’s proposal, project-level 

conformity determinations, including 

any hot-spot analyses, would continue 

to be performed in the same manner as 

current practice. Projects would 

continue to be required to be a part of 

a regional emissions analysis that 

supports a conforming transportation 

plan and TIP. Hot-spot analyses would 

need to demonstrate that during the 

time frame of the transportation plan no 

new local violations would be created 

and the severity or number of existing 

violations would not be increased as a 

result of a new project. By making these 

demonstrations, it can be assured that 

the project would not delay timely 

attainment or any required interim 

reductions or milestones, as described 

further below. In addition, project 

sponsors would continue to document 

the hot-spot analysis as part of the 

project-level conformity determination, 

and the public would continue to be 

able to comment on any aspects of the 

conformity determination through 

existing public involvement 

requirements. 

EPA notes that today’s proposal 

would also address new projects in CO 

nonattainment and maintenance areas, 

since the hot-spot analysis requirements 

in section 93.116(a) also apply to such 

areas. Although the March 2006 final 

rule and the December 2007 court case 

did not involve CO hot-spot 

requirements, EPA believes it is 

appropriate to clarify that Clean Air Act 

section 176(c)(1)(B)(iii) must also be met 

for projects in CO nonattainment and 

maintenance areas. 

Solely for purposes of ensuring that 

state and local implementers and the 

public understand today’s proposed 

change within the context of existing 

conformity requirements, EPA is also 

including section 93.116(a) regulatory 

text in its entirety in today’s proposal. 

However, EPA is not proposing to 

amend the existing regulatory text in 40 

CFR 93.116(a) that is not addressed by 

the issues discussed in today’s proposal. 

As described above, EPA is proposing 

only to add regulatory text to section 

93.116(a) to clarify that federally funded 

or approved highway and transit 

projects in PM2.5, PM10, and CO 

nonattainment and maintenance areas 

must meet the requirements of Clean Air 

Act section 176(c)(1)(B)(iii) within the 

local area affected by the project. EPA 

is not reopening for public comment 

any other aspects of the current section 

93.116(a), or any other provisions in the 

conformity rule regarding project-level 

conformity determinations (e.g., what 

projects require hot-spot analyses or 

methodology requirements, as described 

in 40 CFR 93.123). 

C. Rationale 

1. General 

Project-level conformity 

determinations must demonstrate that 

all of the requirements in Clean Air Act 

section 176(c)(1)(B) are met. Section 

176(c)(1)(B) defines conformity to a SIP 

to mean ‘‘that such activities will not (i) 

cause or contribute to any new violation 

of any NAAQS in any area; (ii) increase 

the frequency or severity of any existing 

violation of any NAAQS in any area; or 

(iii) delay timely attainment of any 

NAAQS or any required interim 

emission reductions or other milestones 

in any area.’’ 

In Environmental Defense, the court 

held that EPA did not explain how it 

interpreted the language of Clean Air 

Act section 176(c)(1)(B)(iii) in 

conjunction with related language in 

sections 176(c)(1)(B)(i) and (ii). 

Although section 93.116(a) of the 

existing conformity rule includes the 

statutory text for section 176(c)(1)(B)(i) 

and (ii), it does not explicitly include 

the statutory language in section 

176(c)(1)(B)(iii). The court stated that, if 

‘‘any area’’ in the first two provisions 

refers to a ‘‘local area,’’ then EPA must 

either interpret the term ‘‘any area’’ in 

section 176(c)(1)(B)(iii) to also mean 

‘‘local area,’’ or explain why a different 

interpretation is reasonable. 509 F.3d at 

560–61. EPA agrees with the court that 

it is reasonable to conclude that all of 

section 176(c)(1)(B) requirements must 

be met in the local project area. 

EPA believes that its existing 

conformity hot-spot regulations, as well 

as other conformity requirements, 

already require that individual projects 

comply with section 176(c)(1)(B)(iii) in 

the local project area. EPA has always 

intended the term ‘‘any area’’ in all 

three statutory provisions of section 

176(c)(1)(B) to include the local area 

affected by the emissions produced by 

a new project. For example, as EPA 

stated in the March 2006 final hot-spot 

rule (71 FR 12483), ‘‘a regional 

emissions analysis for an area’s entire 

planned transportation system is not 

sufficient to ensure that individual 

projects meet the requirements of 

section 176(c)(1)(B) where projects 

could have a localized air quality 

impact.’’ 

To implement section 176(c)(1)(B) 

requirements in PM2.5, PM10, and CO 

nonattainment and maintenance areas 

(40 CFR 93.109(b)), EPA’s current 

conformity rule requires project-level 

conformity determinations to address 

the regional and local emissions impacts 

from new projects. Section 93.115(a) 

requires that an individual project must 

be consistent with the emissions 

projections and control measures in the 

SIP, either by inclusion in a conforming 

transportation plan and TIP or through 

a separate demonstration (and regional 

emissions analysis developed under 40 

CFR 93.118 or 93.119). In addition, 

section 93.116(a) requires that some 

project-level conformity determinations 

include a hot-spot analysis that 

demonstrates emissions from a single 

project do not negatively impact air 

quality within the area substantially 

affected by the project.19 Through 

meeting all of these requirements, it can 

be assured that a project does not cause 

or contribute to a new or worsened air 

quality violation, delay timely 

attainment, or delay required interim 

emission reductions or other milestones. 

However, in light of the court’s 

request for further explanation, EPA is 

clarifying in this proposal that it 

interprets the term ‘‘any area’’ in Clean 

Air Act section 176(c)(1)(B) to mean any 

portion of a nonattainment or 

maintenance area, including the local 

area affected by a transportation project. 

The proposed clarifications and the 

existing conformity requirements ensure 

that transportation planners address the 

requirement that there be no delay in 

timely attainment or required interim 

reductions or other milestones in the 

local project area. 

EPA notes that Clean Air Act section 

176(c)(1)(B)(iii) does not require an 

individual project to reduce emissions 

in the local project area for it to be 

consistent with the requirement not to 

delay timely attainment or required 

interim reductions or milestones, as 

EPA explained in the preamble to its 

March 2006 hot-spot regulations (71 FR 

12482), with which the Court agreed. 

19 Hot-spot analyses must be based on the latest 

data and models under 40 CFR 93.109(b), 93.111, 

and 93.123, and therefore any growth in other 

emissions sources or the impact of new or existing 

emissions controls (including those in any required 

SIP) would always be considered in a hot-spot 

analysis prior to approving a project. 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23039 

See also Environmental Defense v. EPA, 

467 F.3d 1329, 1337 (DC Cir. 2006) 

(‘‘EPA argues, and we agree, that 

conformity to a SIP can be demonstrated 

by using the build/no-build test, even if 

individual transportation plans do not 

actively reduce emissions’’). Clean Air 

Act section 176(c)(1)(B)(iii) does not 

require a new project to mitigate new or 

worsened air quality violations that it 

does not cause. This statutory provision 

also does not require a new project to 

contribute new interim reductions 

beyond those that are already required 

in the SIP. 

The only case where Congress 

specifically required individual projects 

to provide emission reductions in hotspot analyses is for projects in certain 

CO nonattainment areas. Clean Air Act 

section 176(c)(3)(B)(ii) requires 

individual projects in CO nonattainment 

areas to ‘‘eliminate or reduce the 

severity and number of violations of the 

carbon monoxide NAAQS in areas 

substantially affected by the project.’’ 20 

Since Congress did not establish such a 

requirement for any project in PM2.5 and 

PM10 areas under section 

176(c)(3)(B)(ii), and for the reasons 

described in today’s proposal, EPA does 

not interpret such a requirement to 

apply to projects in PM2.5 or PM10 areas 

under section 176(c)(1)(B)(iii). 

2. Requirement for No Delay in Timely 

Attainment of the NAAQS 

Today’s proposal would clarify that a 

project would meet Clean Air Act 

section 176(c)(1)(B)(iii) requirements 

not to delay timely attainment as long 

as no new or worsened violations are 

predicted to occur, which is already 

required under the existing hot-spot 

requirements. While overall emissions 

can increase in a local area above those 

expected without a new project’s 

implementation, a project will not delay 

timely attainment if air quality 

concentrations meet federal air quality 

NAAQS or air quality is improved from 

what would have occurred without the 

new project’s implementation. 

For example, suppose a hot-spot 

analysis is performed for a new highway 

project that is predicted to significantly 

increase the number of diesel trucks 

from what is expected in the local area 

without the project. A year is chosen in 

this example to analyze when peak 

emissions from the project are expected 

and future air quality is most likely to 

be impacted due to the cumulative 

impacts of the project and background 

emissions in the project area. Under 

both the current conformity rule and the 

20 This requirement is included in section 

93.116(b) of the existing conformity rule. 

proposed clarification, the project 

would meet section 176(c)(1)(B)(iii) 

requirements not to delay timely 

attainment in the local project area as 

long as the project’s new emissions do 

not create new violations or worsen 

existing violations in the local project 

area. Such a demonstration would 

examine the total impact of the project’s 

new emissions in the context of the 

future transportation system, any 

expected growth in other emissions 

sources, and any existing or new control 

measures that are expected to impact 

the local project area. If the hot-spot 

analysis demonstrated that the proposed 

project would improve or not impact air 

quality, then timely attainment would 

also not be delayed from what would 

have occurred without the project. In 

contrast, if such a project increased 

emissions enough to cause a new 

violation or worsen an existing violation 

in the local project area, then the project 

would delay timely attainment, since 

worsening air quality above the NAAQS 

would impede the ability to attain in the 

local project area. In such a case, the 

project could not be found to conform 

until the new or worsened future 

violation was mitigated. 

3. Requirement for No Delay in Timely 

Attainment of Any Required Interim 

Reductions or Milestones 

Today’s proposal also ensures that a 

project would meet Clean Air Act 

section 176(c)(1)(B)(iii) requirements for 

no delay in the timely attainment of any 

required interim reductions or other 

milestones. EPA interprets ‘‘any 

required interim emission reductions or 

other milestones’’ to refer to Clean Air 

Act requirements associated with 

reductions and milestones addressed by 

reasonable further progress SIPs, rather 

than other reductions required for other 

purposes. However, EPA believes there 

is added value in referencing in section 

93.116(a) the existing conformity 

requirement that a project be consistent 

with the budgets and control measures 

in any applicable SIP. Therefore, EPA is 

proposing to clarify that this 

requirement is satisfied in the local 

project area if a project is consistent 

with the motor vehicle emissions 

budget(s) and control measures in the 

applicable SIP or interim emission 

test(s) (in the absence of a SIP budget). 

Although such a demonstration is 

already required under the current rule, 

EPA’s proposed reference to the 

requirements in 40 CFR 93.118 and 

93.119 would clarify that a project’s 

emissions—when combined with all 

other emissions from all other existing 

and other proposed transportation 

projects—are consistent with any 

applicable required interim reductions 

and milestones. 

Today’s proposal also supports the 

implementation of control measures that 

are relied upon in reasonable further 

progress demonstrations and could 

impact air quality in the local project 

area. Under the existing conformity rule, 

control measures that are relied upon 

for reasonable further progress SIPs 

must have sufficient state and local 

commitments to be included in a 

regional emissions analysis or a hot-spot 

analysis. If the implementation of a 

control measure is not assured, then 

such reductions cannot be included in 

the regional emissions analysis for the 

entire nonattainment or maintenance 

area (40 CFR 93.122(a)) or within the 

local project area considered in a hotspot analysis (40 CFR 93.123(c)(3) and 

(4)). EPA believes that these existing 

requirements also ensure that ‘‘any 

required interim emissions reductions 

or other milestones’’ are not delayed 

within a local project area as a result of 

a single project’s emissions. 

For example, a project may not meet 

Clean Air Act section 176(c)(1)(B)(iii) 

requirements if SIP control measures 

were not being implemented as 

expected and as a result, a project’s 

emissions (when combined with 

expected future emissions without the 

SIP control measures) caused a new 

violation or worsened an existing 

violation in the local project area. In 

such a case, additional control measures 

as part of the conformity determination 

may be required in order to offset any 

emissions increases from a project. 

Today’s proposal would also result in 

all Clean Air Act section 176(c)(1)(B)(iii) 

requirements being met when air quality 

improves as a result of the project, e.g., 

an existing air quality violation that 

would have occurred without the 

project is estimated to be reduced or 

eliminated if the new project were 

implemented. EPA believes that all of 

section 176(c)(1)(B) requirements would 

be met in the local project area in such 

a case since the Act requires that 

individual projects do not worsen air 

quality or affect an area’s ability to 

attain or achieve interim requirements. 

Certainly, if air quality improves in the 

local project area with the 

implementation of a new project, EPA 

believes that timely attainment and 

required reasonable further progress 

interim requirements are not delayed. In 

fact, the opposite would be true in such 

a case, since future air quality would be 

improved and attainment possibly 

expedited from what would have 

occurred without the project’s 

implementation. 

23040 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

4. Summary 

In summary, today’s proposed 

clarifications and the existing 

conformity rule would ensure that 

transportation projects meet Clean Air 

Act section 176(c)(1)(B)(iii) 

requirements. As long as a 

transportation project does not worsen 

air quality concentrations within the 

local project area, and is consistent with 

the motor vehicle emissions budget(s) 

and control measures in the applicable 

SIP or interim emissions test(s) (in the 

absence of budgets), it would not delay 

timely attainment, or interfere with 

required interim reductions and other 

milestones, even if it does not reduce 

emissions levels within a project’s 

location. For these reasons, EPA is not 

proposing to add any new requirements 

to the existing conformity rule. Instead, 

EPA is proposing simply to clarify the 

rule in § 93.116(a) to address the 

Environmental Defense court’s remand 

of the March 2006 hot-spot regulation 

for further explanation of the 

applicability of Clean Air Act section 

176(c)(1)(B)(iii). 

X. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735; October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it raises novel legal and policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under EO 12866 and 

any changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

information collection requirements of 

EPA’s existing transportation 

conformity regulations and the 

proposed revisions in today’s action are 

already covered by EPA information 

collection request (ICR) entitled, 

‘‘Transportation Conformity 

Determinations for Federally Funded 

and Approved Transportation Plans, 

Programs and Projects.’’ The Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations at 40 CFR part 93 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2060–0561. The OMB control numbers 

for EPA’s regulations in 40 CFR are 

listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an Agency to prepare 

a regulatory flexibility analysis of rules 

subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the Agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small not-forprofit organizations and small 

government jurisdictions. 

For purposes of assessing the impacts 

of this proposed rule on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This regulation directly affects 

federal agencies and metropolitan 

planning organizations that, by 

definition, are designated under federal 

transportation laws only for 

metropolitan areas with a population of 

at least 50,000. These organizations do 

not constitute small entities within the 

meaning of the Regulatory Flexibility 

Act. We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

The purpose of this proposal is to 

amend the conformity rule to clarify 

how certain highway and transit 

projects meet statutory conformity 

requirements for particulate matter (PM) 

in response to a December 2007 court 

ruling, and to update the regulation to 

accommodate revisions to the PM10 and 

PM2.5 NAAQS. This proposal merely 

implements already established law that 

imposes conformity requirements and 

does not itself impose requirements that 

may result in expenditures of $100 

million or more in any year. Thus, 

today’s proposal is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule will not significantly or uniquely 

impact small governments because it 

directly affects federal agencies and 

metropolitan planning organizations 

that, by definition, are designated under 

federal transportation laws only for 

metropolitan areas with a population of 

at least 50,000. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on states, on 

the relationship between the national 

government and states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The Clean Air 

Act requires conformity to apply in 

certain nonattainment and maintenance 

areas as a matter of law, and this 

proposed action merely proposes to 

establish and revise procedures for 

transportation planning entities in 

subject areas to follow in meeting their 

existing statutory obligations. Thus, 

Executive Order 13132 does not apply 

to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communication between EPA 

and state and local governments, EPA 

specifically solicits comment on this 

proposed rule from state and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). The Clean Air Act requires 

transportation conformity to apply in 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23041 

any area that is designated 

nonattainment or maintenance by EPA. 

This proposal would amend the 

conformity rule to clarify how certain 

highway and transit projects meet 

statutory conformity requirements for 

particulate matter in response to a 

December 2007 court ruling, and to 

update the conformity rule to 

accommodate revisions to the PM10 and 

PM2.5 NAAQS. Because today’s 

proposed amendments to the conformity 

rule do not significantly or uniquely 

affect the communities of Indian tribal 

governments, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997,) applies to any rule that: 

(1) is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This proposed rule is not subject to 

Executive Order 13045 because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 18355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. It 

does not create a serious inconsistency 

or otherwise interfere with an action 

taken or planned by another agency 

regarding energy. Further, this rule is 

not likely to have any adverse energy 

effects because it does not raise novel 

legal or policy issues adversely affecting 

the supply, distribution or use of energy 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in Executive Orders 12866 and 

13211. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., material specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposal does not involve 

technical standards. Therefore, EPA is 

not considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

This proposal would simply amend the 

conformity rule to clarify how certain 

highway and transit projects meet 

statutory requirements for particulate 

matter in response to a December 2007 

court ruling, and updates the conformity 

rule to accommodate revisions to the 

PM10 and PM2.5 NAAQS. 

K. Determination Under Section 307(d) 

Pursuant to Clean Air Act Section 

307(d)(1)(U), the Administrator 

determines that this section is subject to 

the provisions of section 307(d). Section 

307(d)(1)(U) provides that the 

provisions of section 307(d) apply to 

‘‘such other actions as the Administrator 

may determine.’’ 

List of Subjects in 40 CFR Part 93 

Administrative practice and 

procedure, Air pollution control, Carbon 

monoxide, Clean Air Act, 

Environmental protection, Highways 

and roads, Intergovernmental relations, 

Mass transportation, Nitrogen dioxide, 

Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds. 

Dated: May 6, 2009. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, 40 CFR part 93 is proposed to 

be amended as follows: 

PART 93—[AMENDED] 

1. The authority citation for part 93 

continues to read as follows: 

Authority: 42 U.S.C. 7401–7671q. 

2. Section 93.101 is amended by 

adding new definitions for ‘‘24-hour 

PM10 NAAQS’’, ‘‘1997 PM2.5 NAAQS’’, 

‘‘2006 PM2.5 NAAQS’’, and ‘‘Annual 

PM10 NAAQS’’ to read as follows: 

§ 93.101 Definitions. 

* * * * * 

24-hour PM10 NAAQS means the 24-

hour PM10 national ambient air quality 

standard codified at 40 CFR 50.6. 

* * * * * 

1997 PM2.5 NAAQS means the PM2.5 

national ambient air quality standards 

codified at 40 CFR 50.7. 

* * * * * 

2006 PM2.5 NAAQS means the 24-

hour PM2.5 national ambient air quality 

standard codified at 40 CFR 50.13. 

* * * * * 

Annual PM10 NAAQS means the 

annual PM10 national ambient air 

quality standard that EPA revoked on 

December 18, 2006. 

* * * * * 

§ 93.105 [Amended] 

3. Section 93.105 is amended in 

paragraph (c)(1)(vi) by removing the 

citation ‘‘§ 93.109(l)(2)(iii)’’ and adding 

in its place ‘‘§ 93.109(n)(2)(iii)’’. 

4. Section 93.109 is amended as 

follows: 

a. In paragraph (b): 

i. By removing the citation ‘‘(c) 

through (i)’’ and adding in its place the 

citation ‘‘(c) through (k)’’; 

ii. By removing the reference ‘‘(j)’’ and 

adding in its place ‘‘(l)’’; 

23042 Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 

iii. By removing the reference ‘‘(k)’’ 

and adding in its place ‘‘(m)’’; 

iv. By removing the reference ‘‘(l)’’ 

and adding in its place ‘‘(n)’’; 

b. By revising paragraph (g)(2) 

introductory text; 

c. By redesignating paragraph (g)(3) as 

(g)(4); 

d. By adding new paragraph (g)(3); 

e. By revising the heading of 

paragraph (i); 

f. By adding the words ‘‘such 1997’’ 

before the words ‘‘PM2.5 nonattainment 

and maintenance areas’’ in paragraphs 

(i)(1), (i)(2) introductory text, and (i)(3); 

g. By redesignating paragraphs (j), (k), 

and (l) as (l), (m), and (n), respectively; 

h. In newly designated paragraph 

(n)(2) introductory text by removing the 

citation ‘‘(c) through (k)’’ and adding in 

its place the citation ‘‘(c) through (m)’’; 

i. In newly designated paragraph 

(n)(2)(iii): 

i. By removing the citation 

‘‘(l)(2)(ii)’’ and adding in its 

place the citation ‘‘(n)(2)(ii)’’; 

ii. By removing the citation 


‘‘(l)(2)(ii)(C)’’ and adding 


in its place the citation 


‘‘(n)(2)(ii)(C)’’; 


j. By adding new paragraphs (j) and 

(k). 

§ 93.109 Criteria and procedures for 

determining conformity of transportation 

plans, programs, and projects: General. 

* * * * * 

(g) * * * 

(2) In PM10 nonattainment and 

maintenance areas where a budget is 

submitted for the 24-hour PM10 NAAQS, 

the budget test must be satisfied as 

required by § 93.118 for conformity 

determinations made on or after: 

* * * * * 

(3) Prior to paragraph (g)(2) of this 

section applying, the budget test must 

be satisfied as required by § 93.118 

using the approved or adequate motor 

vehicle emissions budget established for 

the revoked annual PM10 NAAQS, if 

such a budget exists. 

* * * * * 

(i) 1997 PM2.5 nonattainment and 

maintenance areas. *** 

(j) 2006 PM2.5 NAAQS nonattainment 

and maintenance areas without 1997 

PM2.5 NAAQS motor vehicle emissions 

budgets for any portion of the 2006 

PM2.5 NAAQS area. In addition to the 

criteria listed in Table 1 in paragraph (b) 

of this section that are required to be 

satisfied at all times, in such 2006 PM2.5 

nonattainment and maintenance areas 

conformity determinations must include 

a demonstration that the budget and/or 

interim emissions tests are satisfied as 

described in the following: 

(1) FHWA/FTA projects in such PM2.5 

nonattainment and maintenance areas 

must satisfy the appropriate hot-spot 

test required by § 93.116(a). 

(2) In such PM2.5 nonattainment and 

maintenance areas the budget test must 

be satisfied as required by § 93.118 for 

conformity determinations made on or 

after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan for the 2006 PM2.5 

NAAQS is adequate for transportation 

conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(3) In such PM2.5 nonattainment areas 

the interim emissions tests must be 

satisfied as required by § 93.119 for 

conformity determinations made if there 

is no approved motor vehicle emissions 

budget from an applicable 

implementation plan for the 2006 PM2.5 

NAAQS and no adequate motor vehicle 

emissions budget from a submitted 

control strategy implementation plan 

revision or maintenance plan for the 

2006 PM2.5 NAAQS. 

(k) 2006 PM2.5 NAAQS nonattainment 

and maintenance areas with motor 

vehicle emissions budgets for the 1997 

PM2.5 NAAQS that cover all or a portion 

of the 2006 PM2.5 nonattainment area. 

In addition to the criteria listed in Table 

1 in paragraph (b) of this section that are 

required to be satisfied at all times, in 

such 2006 PM2.5 nonattainment and 

maintenance areas conformity 

determinations must include a 

demonstration that the budget and/or 

interim emissions tests are satisfied as 

described in the following: 

(1) FHWA/FTA projects in such PM2.5 

nonattainment and maintenance areas 

must satisfy the appropriate hot-spot 

test required by § 93.116(a). 

(2) In such PM2.5 nonattainment and 

maintenance areas the budget test must 

be satisfied as required by § 93.118 for 

conformity determinations made on or 

after: 

(i) The effective date of EPA’s finding 

that a motor vehicle emissions budget in 

a submitted control strategy 

implementation plan revision or 

maintenance plan for the 2006 PM2.5 

NAAQS is adequate for transportation 

conformity purposes; 

(ii) The publication date of EPA’s 

approval of such a budget in the Federal 

Register; or 

(iii) The effective date of EPA’s 

approval of such a budget in the Federal 

Register, if such approval is completed 

through direct final rulemaking. 

(3) Prior to paragraph (k)(2) of this 

section applying, the following test(s) 

must be satisfied: 

(i) If the 2006 PM2.5 nonattainment 

area covers the same geographic area as 

the 1997 PM2.5 nonattainment or 

maintenance area(s), the budget test as 

required by § 93.118 using the approved 

or adequate motor vehicle emissions 

budgets in the 1997 PM2.5 applicable 

implementation plan or implementation 

plan submission; 

(ii) If the 2006 PM2.5 nonattainment 

area covers a smaller geographic area 

within the 1997 PM2.5 nonattainment or 

maintenance area(s), the budget test as 

required by § 93.118 for either: 

(A) The 2006 PM2.5 nonattainment 

area using corresponding portion(s) of 

the approved or adequate motor vehicle 

emissions budgets in the 1997 PM2.5 

applicable implementation plan or 

implementation plan submission where 

such portion(s) can reasonably be 

identified through the interagency 

consultation process required by 

§ 93.105; or 

(B) The 1997 PM2.5 nonattainment 

area using the approved or adequate 

motor vehicle emissions budgets in the 

1997 PM2.5 applicable implementation 

plan or implementation plan 

submission. If additional emissions 

reductions are necessary to meet the 

budget test for the 2006 PM2.5 NAAQS 

in such cases, these emissions 

reductions must come from within the 

2006 PM2.5 nonattainment area; 

(iii) If the 2006 PM2.5 nonattainment 

area covers a larger geographic area and 

encompasses the entire 1997 PM2.5 

nonattainment or maintenance area(s): 

(A) The budget test as required by 

§ 93.118 for the portion of the 2006 

PM2.5 nonattainment area covered by the 

approved or adequate motor vehicle 

emissions budgets in the 1997 PM2.5 

applicable implementation plan or 

implementation plan submission; and 

the interim emissions tests as required 

by § 93.119 for either: The portion of the 

2006 PM2.5 nonattainment area not 

covered by the approved or adequate 

budgets in the 1997 PM2.5 

implementation plan, the entire 2006 

PM2.5 nonattainment area, or the entire 

portion of the 2006 PM2.5 nonattainment 

area within an individual state, in the 

case where separate 1997 PM2.5 SIP 

budgets are established for each state of 

a multi-state 1997 PM2.5 nonattainment 

or maintenance area; or 

(B) The budget test as required by 

§ 93.118 for the entire 2006 PM2.5 

nonattainment area using the approved 

or adequate motor vehicle emissions 

budgets in the applicable 1997 PM2.5 

Federal Register / Vol. 74, No. 93 / Friday, May 15, 2009 / Proposed Rules 23043 

implementation plan or implementation 

plan submission. 

(iv) If the 2006 PM2.5 nonattainment 

area partially covers a 1997 PM2.5 

nonattainment or maintenance area(s): 

(A) The budget test as required by 

§ 93.118 for the portion of the 2006 

PM2.5 nonattainment area covered by the 

corresponding portion of the approved 

or adequate motor vehicle emissions 

budgets in the 1997 PM2.5 applicable 

implementation plan or implementation 

plan submission where they can be 

reasonably identified through the 

interagency consultation process 

required by § 93.105; and 

(B) The interim emissions tests as 

required by § 93.119, when applicable, 

for either: The portion of the 2006 PM2.5 

nonattainment area not covered by the 

approved or adequate budgets in the 

1997 PM2.5 implementation plan, the 

entire 2006 PM2.5 nonattainment area, or 

the entire portion of the 2006 PM2.5 

nonattainment area within an 

individual state, in the case where 

separate 1997 PM2.5 SIP budgets are 

established for each state in a multistate 1997 PM2.5 nonattainment or 

maintenance area. 

* * * * * 

5. Section 93.116 is amended by 

revising paragraph (a) to read as follows: 

§ 93.116 Criteria and procedures: 

Localized CO, PM10, and PM2.5 violations 

(hot-spots). 

(a) This paragraph applies at all times. 

The FHWA/FTA project must not cause 

or contribute to any new localized CO, 

PM10, and/or PM2.5 violations, increase 

the frequency or severity of any existing 

CO, PM10, and/or PM2.5 violations, or 

delay timely attainment of any standard 

or any required interim emission 

reductions or other milestones in CO, 

PM10, and PM2.5 nonattainment and 

maintenance areas. This criterion is 

satisfied without a hot-spot analysis in 

PM10 and PM2.5 nonattainment and 

maintenance areas for FHWA/FTA 

projects that are not identified in 

§ 93.123(b)(1). This criterion is satisfied 

for all other FHWA/FTA projects in CO, 

PM10 and PM2.5 nonattainment and 

maintenance areas if it is demonstrated 

that during the time frame of the 

transportation plan no new local 

violations will be created and the 

severity or number of existing violations 

will not be increased as a result of the 

project, and the project has been 

included in a regional emissions 

analysis that meets applicable §§ 93.118 

and/or 93.119 requirements. The 

demonstration must be performed 

according to the consultation 

requirements of § 93.105(c)(1)(i) and the 

methodology requirements of § 93.123. 

§ 93.118 [Amended] 

6. Section 93.118 is amended in 

paragraph (a) by removing the citation 

‘‘§ 93.109(c) through (l)’’ and adding in 

its place ‘‘§ 93.109(c) through (n)’’. 

7. Section 93.119 is amended as 

follows: 

a. In paragraph (a), by removing the 

citation ‘‘§ 93.109(c) through (l)’’ and 

adding in its place ‘‘§ 93.109(c) through 

(n)’’; and 

b. By revising paragraph (e)(2). 

§ 93.119 Criteria and procedures: Interim 

emissions in areas without motor vehicle 

emissions budgets. 

* * * * * 

(e) * * * 

Option 1 for paragraph (e)(2): 

(2) The emissions predicted in the 

‘‘Action’’ scenario are not greater than: 

(A) 2002 emissions, in areas 

designated nonattainment for the 1997 

PM2.5 NAAQS as described in 

§ 93.109(i); or 

(B) 2008 emissions, in areas 

designated nonattainment for the 2006 

PM2.5 NAAQS as described in § 93.109(j) 

and (k). 

Option 2 for paragraph (e)(2): 

(2) The emissions predicted in the 

‘‘Action’’ scenario are not greater than: 

(A) 2002 emissions, in areas 

designated nonattainment for the 1997 

PM2.5 NAAQS; or 

(B) Emissions in the most recent year 

for which EPA’s Air Emissions 

Reporting Requirements (40 CFR Part 

51, Subpart A) requires submission of 

on-road mobile source emissions 

inventories, as of the effective date of 

nonattainment designations for any 

PM2.5 NAAQS other than the 1997 PM2.5 

NAAQS. 

* * * * * 

§ 93.121 [Amended] 

8. Section 93.121 is amended: 

a. In paragraph (b) introductory text 

by removing the citation ‘‘§ 93.109(l)’’ 

and adding in its place ‘‘§ 93.109(n)’’; 

b. In paragraph (c) introductory text 

by removing the citation ‘‘§ 93.109(j) 

and (k)’’ and adding in its place 

‘‘§ 93.109(l) and (m)’’. 

[FR Doc. E9–11184 Filed 5–14–09; 8:45 am] 

BILLING CODE 6560–50–P