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Friday,

March 10, 2006

Part III

Environmental
Protection Agency
40 CFR Part 93
PM2.5 and PM10 Hot-Spot Analyses in
Project-Level Transportation Conformity
Determinations for the New PM2.5 and
Existing PM10 National Ambient Air
Quality Standards; Final Rule
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ENVIRONMENTAL PROTECTION excluding legal holidays. The telephone Examples of regu-


Category
AGENCY number for the Public Reading Room is lated entities
(202) 566–1744, and the telephone
40 CFR Part 93 number for the Air Docket is (202) 566– Federal government .. Department of Trans-
1742. portation (Federal
[EPA–HQ–OAR–2003–0049, FRL–8039–5] Highway Adminis-
RIN 2060–AN02 FOR FURTHER INFORMATION CONTACT: Meg tration (FHWA) and
Patulski, Transportation and Regional Federal Transit Ad-
PM2.5 and PM10 Hot-Spot Analyses in Programs Division, Office of ministration (FTA)).
Project-Level Transportation Transportation and Air Quality, U.S.
Environmental Protection Agency, 2000 This table is not intended to be
Conformity Determinations for the New
Traverwood Road, Ann Arbor, MI exhaustive, but rather provides a guide
PM2.5 and Existing PM10 National
48105, telephone number: (734) 214– for readers regarding entities likely to be
Ambient Air Quality Standards
4842, fax number: (734) 214–4052, e- affected by this final rule. This table
AGENCY: Environmental Protection mail address: patulski.meg@epa.gov; or lists the types of entities of which EPA
Agency (EPA). Rudy Kapichak, Transportation and is aware that potentially could be
ACTION: Final rule. Regional Programs Division, Office of regulated by the conformity rule. Other
Transportation and Air Quality, U.S. types of entities not listed in the table
SUMMARY: This final rule establishes the could also be regulated. To determine
criteria for determining which Environmental Protection Agency, 2000
Traverwood Road, Ann Arbor, MI whether your organization is regulated
transportation projects must be analyzed by this action, you should carefully
for local particle emissions impacts in 48105, telephone number: (734) 214–
4574, fax number: (734) 214–4052, e- examine the applicability requirements
PM2.5 and PM10 nonattainment and in 40 CFR 93.102. If you have questions
maintenance areas. This rule establishes mail address:
kapichak.rudolph@epa.gov. regarding the applicability of this action
requirements in PM2.5 areas and revises to a particular entity, consult the
existing requirements in PM10 areas. If SUPPLEMENTARY INFORMATION: persons listed in the preceding FOR
required, an analysis of local particle FURTHER INFORMATION CONTACT section.
emissions impacts is done as part of a The contents of this preamble are
transportation project’s conformity listed in the following outline: B. How Can I Get Copies of This
determination. EPA is requiring a local I. General Information Document?
particle emissions impacts analysis for II. Background 1. Docket
certain transportation projects to ensure III. PM2.5 Hot-spot Analyses
EPA has established an official public
that these projects do not adversely IV. PM10 Hot-spot Analyses
docket for this action under Docket ID
impact the national ambient air quality V. Projects of Air Quality Concern and
General Requirements for PM2.5 and
No. EPA–HQ–OAR–2003–0049. The
standards and human health. The Clean
PM10 Hot-spot Analyses official public docket consists of the
Air Act requires federally supported
VI. Timing of Quantitative PM2.5 and PM10 documents specifically referenced in
highway and transit projects to be
Hot-spot Analyses and Development of this action, any public comments
consistent with (‘‘conform to’’) the
Future Guidance received, and other information related
purpose of a state air quality
VII. Categorical PM2.5 and PM10 Hot-spot to this action. Although a part of the
implementation plan. EPA has
Findings official docket, the public docket does
consulted with the Department of
VIII. Minor Change for Exempt Projects not include Confidential Business
Transportation (DOT) on the
Regarding Compliance With PM2.5 SIP Information (CBI) or other information
development of this final rule, and DOT
Control Measures whose disclosure is restricted by statute.
concurs with its content.
IX. How Does Today’s Final Rule Affect The official public docket is the
DATES: The final rule is effective April collection of materials that is available
Conformity SIPs?
5, 2006, for good cause found as X. Statutory and Executive Order Reviews for public viewing at the Air Docket in
explained in this rule. the EPA Docket Center. See the
ADDRESSES: EPA has established a I. General Information ADDRESSES section above. You may have
docket for this action under Docket ID A. Does This Action Apply to Me? to pay a reasonable fee for copying
No. EPA–HQ–OAR–2003–0049. All docket materials.
documents in the docket are listed on Entities potentially regulated by the
the http://www.regulations.gov Web transportation conformity rule are those 2. Electronic Access
site. Although listed in the index, some that adopt, approve, or fund You may access this Federal Register
information may not be publicly transportation plans, programs, or document electronically through EPA’s
available, e.g., Confidential Business projects under title 23 U.S.C. or title 49 transportation conformity Web site at
Information (CBI) or other information U.S.C. Regulated categories and entities http://www.epa.gov/otag/transp/
whose disclosure is restricted by statute. affected by today’s action include: tragconf.htm. You may also access this
Certain other material, such as document electronically under the
copyrighted material, is not placed on Examples of regu- ‘‘Federal Register’’ listings at http://
Category
the Internet and will be publicly lated entities www.epa.gov/fedrgstr/.
available only in hard copy form. An electronic version of the public
Publicly available docket materials are Local government ...... Local transportation docket is available through the Federal
and air quality
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available either electronically through Docket Management System (FDMS),


agencies, including
http://www.regulations.gov or in hard metropolitan plan-
located at http://www.regulations.gov.
copy at the Air Docket, EPA/DC, EPA ning organizations You may use the FDMS to view public
West, Room B102, 1301 Constitution (MPOs). comments, access the index listing of
Ave., NW., Washington, DC. The Public State government ...... State transportation the contents of the official public
Reading Room is open from 8:30 a.m. to and air quality docket, and to access those documents
4:30 p.m., Monday through Friday, agencies. in the public docket that are available

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electronically. Although not all docket • Incorporated existing EPA and DOT III. PM2.5 Hot-spot Analyses
materials may be available federal guidance into the conformity
A. Background
electronically, you may still access any rule consistent with a March 2, 1999
of the publicly available docket U.S. Court of Appeals decision; and 1. What Is a Hot-spot Analysis?
materials through the docket facility • Streamlined and improved the A hot-spot analysis is defined in 40
identified in B.1. of this section. Once conformity rule. CFR 93.101 as an estimation of likely
in the FDMS electronic docket system, future localized pollutant
select ‘‘Advanced Search-Docket The July 1, 2004 final rule incorporated
most of the provisions from the concentrations resulting from a new
Search,’’ then enter the appropriate transportation project and a comparison
docket identification number (which is November 5, 2003 proposal for
conformity under the new ozone and of those concentrations to the relevant
EPA–HQ–OAR–2003–0049) in the air quality standard. A hot-spot analysis
‘‘docket ID’’ field and click ‘‘submit’’. PM2.5 standards (68 FR 62690). EPA is
conducting its conformity rulemakings assesses the air quality impacts on a
II. Background in the context of EPA’s broader scale smaller than an entire
strategies for implementing the new nonattainment or maintenance area,
A. What Is Transportation Conformity?
ozone and PM2.5 standards. including, for example, congested
Transportation conformity is required roadway intersections and highways or
under Clean Air Act section 176(c) (42 Finally, on May 6, 2005, EPA
transit terminals. Such an analysis is a
U.S.C. 7506(c)) to ensure that federally promulgated a final rule entitled,
means of demonstrating that a
supported highway and transit project ‘‘Transportation Conformity Rule
transportation project meets Clean Air
activities are consistent with (‘‘conform Amendments for the New PM2.5
Act conformity requirements to support
to’’) the purpose of the state air quality National Ambient Air Quality Standard:
state and local air quality goals with
implementation plan (SIP). Conformity PM2.5 Precursors’’ (70 FR 24280). This
respect to potential localized air quality
currently applies to areas that are final rule specified the transportation-
impacts.
designated nonattainment, and those related PM2.5 precursors and when they Prior to today’s final rule, the
redesignated to attainment after 1990 apply in transportation conformity conformity rule required some type of
(‘‘maintenance areas’’ with plans determinations in PM2.5 nonattainment hot-spot analysis for all FHWA and FTA
developed under Clean Air Act section and maintenance areas. funded or approved non-exempt
175A) for the following transportation- C. Why Are We Issuing This Final Rule? transportation projects in CO and PM10
related criteria pollutants: Ozone, nonattainment and maintenance areas
particulate matter (PM2.5 and PM10),1 In the November 2003 proposal, EPA (40 CFR 93.116 and 93.123). This
carbon monoxide (CO), and nitrogen presented two options concerning hot- requirement applied for all project-level
dioxide (NO2). Conformity to the spot analyses in PM2.5 and PM10 conformity determinations that occur
purpose of the SIP means that nonattainment and maintenance areas. both before and after a SIP is submitted
transportation activities will not cause EPA received substantial comment on for the CO or PM10 air quality standards.
new air quality violations, worsen this portion of the November 2003 EPA established the type of hot-spot
existing violations, or delay timely proposal. After considering these analysis—either quantitative or
attainment of the relevant national comments, EPA, in consultation with qualitative—based on the potential
ambient air quality standards (NAAQS the U.S. Department of Transportation impact of a given project or project
or ‘‘standards’’). (DOT), issued a supplemental notice of location on the air quality standards, so
proposed rulemaking on December 13, that more rigorous quantitative analyses
B. What Is the History of the 2004 (69 FR 72140) which requested
Transportation Conformity Rule? are only required when necessary to
further public comment on additional meet statutory requirements. Since the
EPA’s transportation conformity rule options for PM2.5 and PM10 hot-spot original November 24, 1993 conformity
establishes the criteria and procedures requirements and those options rule, EPA has required quantitative
for determining whether transportation presented in the original November analyses for projects that have the
activities conform to the SIP. EPA first 2003 proposal. In developing today’s highest potential to impact the CO air
promulgated the transportation final rule, EPA considered all of the quality standards (i.e., ‘‘projects of air
conformity rule on November 24, 1993 comments received on PM2.5 and PM10 quality concern’’). The conformity rule
(58 FR 62188), and subsequently hot-spot analysis requirements both in also has detailed projects that have the
published a comprehensive set of response to the original November 2003 highest potential to impact the PM10
amendments on August 15, 1997 (62 FR proposal as well as the December 2004 standards, including new or expanded
43780) that clarified and streamlined supplemental proposal. EPA received bus and rail terminals or transfer points
language from the 1993 rule. EPA has over 5,400 sets of comments on the two involving diesel vehicles. These projects
made other smaller amendments to the proposals from state and local of air quality concern would be subject
rule both before and after the 1997 transportation and air quality agencies, to quantitative hot-spot analyses once
amendments. environmental groups, transportation the tools and EPA’s future modeling
More recently, on July 1, 2004, EPA advocates, and the general public. guidance are available. In contrast, more
published a final rule (69 FR 40004) that EPA has consulted with DOT, our streamlined, qualitative hot-spot
amended the conformity rule to Federal partner in implementing the analyses have been required for all other
accomplish three objectives. The final transportation conformity regulation, in projects.
rule: developing the final rule, and DOT Such a tiered approach was intended
• Provided conformity procedures for
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concurs with its content. Please see to utilize state and local resources in an
state and local agencies under the new Sections III. and IV. for more efficient manner while meeting
ozone and PM2.5 air quality standards; information regarding how this final statutory requirements. Quantitative
1 Section 93.102(b)(1) of the conformity rule
rule impacts project-level conformity hot-spot analyses use dispersion
defines PM2.5 and PM10 as particles with an
determinations in PM2.5 and PM10 areas, modeling to determine the potential air
aerodynamic diameter less than or equal to a including those for projects that are quality impact of motor vehicle
nominal 2.5 and 10 micrometers, respectively. currently under development. emissions associated with a highway or

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transit project. Qualitative hot-spot requirements with respect to PM2.5, streamline analysis requirements when
analyses involve more streamlined unless the EPA Regional Administrator modeling shows that additional
reviews of local factors such as local or state air agency finds that localized analyses are not necessary to meet Clean
monitoring data near a proposed project. PM2.5 violations are not a concern for a Air Act requirements for a given project.
EPA notes, however, that quantitative given PM2.5 area; or Last, EPA requested comments on all
PM10 hot-spot analyses have not yet • Option 5: Apply the existing of the proposed options, and invited
been required for projects of air quality conformity rule’s PM10 hot-spot analysis commenters to submit any data or other
concern due to a lack of EPA modeling requirements with respect to PM2.5, only information about the proposed options,
guidance and appropriate methods. if the EPA Regional Administrator or including whether state and local
Section 93.123(b)(4) of the conformity state air agency finds that localized agencies would have information
rule states that the requirements for PM2.5 violations are a concern for a available for implementation. In
quantitative PM10 hot-spot analyses will given PM2.5 area. developing this final rule, EPA
not take effect until EPA releases EPA proposed that an EPA or state air considered all of the comments and
modeling guidance and announces in agency finding under Options 4 and 5 information submitted for the November
the Federal Register that these that PM2.5 localized violations are or are 2003 and December 2004 proposals. The
requirements are in effect, which EPA not a concern prior to PM2.5 SIP December 2004 supplemental proposal
has not yet done. submission would be based on a case- also included proposed regulatory text
Today’s final rule does not impact the by-case review of local factors for a that combined various PM2.5 and PM10
existing CO hot-spot requirements; given PM2.5 area. EPA requested hot-spot options as illustrative
however, the final rule revises the PM10 information from commenters about examples, and EPA noted that any
hot-spot requirements as discussed in whether sufficient local information was combination of the proposed PM2.5 or
Sections IV. and V. available to make such findings. PM10 hot-spot options could be
EPA also proposed three options for included in the final rule.
2. Proposed Options
project-level conformity determinations
EPA proposed several options for how after the submission of a PM2.5 SIP B. Description of Final Rule
PM2.5 hot-spot requirements would (December 13, 2004, 69 FR 72145): In summary, EPA is finalizing a
apply for project-level conformity • Option A: Do not apply any PM2.5 hybrid of some of the proposed options
determinations in PM2.5 nonattainment hot-spot analysis requirements for any by:
and maintenance areas. In general, these PM2.5 area (i.e., Option 1 from the Being generally consistent with
options were proposed to apply during November 2003 proposal); Options 3 (for the period before a SIP is
the time periods before and after a PM2.5 • Option B: Only require quantitative submitted) and C (for the period after a
SIP is submitted. EPA is repeating in PM2.5 hot-spot analyses for projects at SIP is submitted) for projects of
today’s action the descriptions of the those types of locations that the PM2.5 localized air quality concern, and
previously proposed options to assist in SIP identifies as a localized PM2.5 air • Providing the flexibility from other
discussing the final rule and responses quality concern for a given area (i.e., proposed options to eliminate
to comments. EPA noted in its proposals Option 2 from the November 2003 qualitative hot-spot analyses for all
that hot-spot analyses would be based proposal). No quantitative or qualitative projects not of air quality concern.
only on directly emitted PM2.5 analyses would be required for any The final rule requires quantitative
attributable to an individual projects in other types of locations, or in PM2.5 hot-spot analyses only for projects
transportation project, since secondary PM2.5 areas where the SIP does not of air quality concern, and qualitative
particles formed through PM2.5 identify types of locations as a localized hot-spot analyses would be done for
precursors take several hours to form in PM2.5 air quality concern; or these projects before EPA releases its
the atmosphere, giving emissions time • Option C: Apply the existing future modeling guidance and
to disperse beyond the immediate area conformity rule’s PM10 hot-spot analysis announces that quantitative PM2.5 hot-
of concern for localized analyses. requirements with respect to PM2.5 for spot analyses are required under
The following five options were all projects in PM2.5 areas, with a minor § 93.123(b)(4). EPA specifies in
proposed for PM2.5 hot-spot addition. § 93.123(b)(1) that projects of air quality
requirements for individual projects in Under Option C, EPA proposed to add concern are highway and transit projects
PM2.5 areas prior to the submission of a a new criterion that would require that that involve significant levels of diesel
PM2.5 SIP (December 13, 2004, 69 FR quantitative analyses also be performed vehicle traffic, or any other project that
72144): at those types of project locations that is identified in the PM2.5 SIP as a
• Options 1 and 2: Do not apply any the PM2.5 SIP identifies as a PM2.5 hot- localized concern.
PM2.5 hot-spot analysis requirements for spot concern. See the November 5, 2003 EPA considered several factors in
any PM2.5 area before the submission of proposal (68 FR 62712–62713) and the focusing on projects involving
the PM2.5 SIP 2; December 13, 2004 supplemental significant numbers of diesel vehicles in
• Option 3: Apply the existing proposal (69 FR 72144–72149) for developing today’s final rule. For
conformity rule’s PM10 hot-spot analysis further information on all of the example, PM2.5 and PM10 diesel
requirements with respect to PM2.5 in all proposed options. emission factors are significantly higher
PM2.5 areas; For options involving hot-spot than gasoline vehicles on a per-vehicle
• Option 4: Apply the existing analyses, EPA proposed to not require basis. In addition, studies in proximity
conformity rule’s PM10 hot-spot analysis quantitative PM2.5 hot-spot analyses of vehicular traffic tend to show that
2 Options 1 and 2 were originally proposed in the
until EPA releases its future modeling elevated PM2.5 concentrations occur
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November 5, 2003 notice as well (68 FR 62712).


guidance, consistent with the existing near diesel vehicle operations, but show
Option 1 would have not required any PM2.5 hot- provision for PM10 analyses in less consistent evidence near locations
spot requirement at any time before or after a PM2.5 § 93.123(b)(4). EPA also proposed to with high gasoline vehicle operations.
SIP is submitted. Option 2 also would not require extend to PM2.5 areas the existing See Section V. for more information
PM2.5 hot-spot analyses prior to a PM2.5 SIP
submission, and then only if the SIP identified
conformity rule’s flexibility in regarding how and why EPA defined
types of projects or locations of air quality concern § 93.123(b)(3) for DOT to make projects of air quality concern in the
for a given area. categorical hot-spot findings to further final rule.

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Today’s final rule does not require 2006, when PM2.5 conformity C. Rationale
any hot-spot analysis—qualitative or requirements apply.3 Quantitative In its December 2004 supplemental
quantitative—for projects that are not analyses are not required for these proposal, EPA stated that several factors
listed in § 93.123(b)(1) as an air quality projects at this time since EPA is not needed to be considered for establishing
concern. These projects are presumed to requiring quantitative PM2.5 hot-spot a PM2.5 hot-spot requirement. Those
meet Clean Air Act requirements and 40 analyses under § 93.123(b)(4) since factors are as follows:
CFR 93.116 without any explicit hot- quantitative hot-spot modeling • The Clean Air Act conformity
spot analysis for the reasons explained techniques and associated EPA requirements for individual
in full below. State and local project modeling guidance still do not exist. transportation projects;
sponsors should briefly document in Qualitative PM2.5 hot-spot analyses • The current scientific
their conformity documentation for should be completed according to joint understanding of PM2.5 hot-spots and
such projects that an explicit PM2.5 hot- EPA and DOT guidance. This guidance public health effects;
spot analysis was not completed was developed in consultation with • The feasibility of implementing a
because Clean Air Act and 40 CFR DOT, and the guidance will be posted PM2.5 hot-spot requirement; and
93.116 requirements were met without on the Web site provided in Section • The impact on state and local
an explicit PM2.5 hot-spot analysis. I.B.2. of today’s notice. See Section VI. resources.
This final rule requires PM2.5 hot-spot of this final rule for more information The following paragraphs outline how
analyses for projects of air quality regarding the timing of EPA’s future EPA considered these factors in the final
concern in PM2.5 nonattainment and quantitative hot-spot modeling guidance rule.
maintenance areas at all times—both and subsequent application of Clean Air Act legal requirements: EPA
before and after a PM2.5 SIP is quantitative requirements. believes that the final rule allows all
submitted. EPA had distinguished its Finally, EPA notes that its future
federally funded and approved
proposed options for the time periods quantitative hot-spot modeling guidance
transportation projects in PM2.5 areas to
before and after PM2.5 SIPs are will also address how the current 24-
meet applicable statutory requirements.
submitted, but for reasons discussed hour and annual PM2.5 air quality
Clean Air Act section 176(c)(1)(B) is the
further below, this type of specificity is standards are to be considered in
statutory criterion that must be met by
no longer necessary. Projects of air quantitative hot-spot analyses. The
quality concern are anticipated to have Clean Air Act and conformity rule all projects in nonattainment and
the potential to increase local PM2.5 require that conformity be met for both maintenance areas that are subject to
concentrations, and as a result, PM2.5 the 24-hour and annual PM2.5 air quality transportation conformity. Section
hot-spot analyses are needed for such standards in all PM2.5 nonattainment 176(c)(1)(B) states that federally-
projects to ensure that the local air and maintenance areas. However, supported transportation projects must
quality impacts of such projects are transportation plan and transportation not ‘‘cause or contribute to any new
considered prior to receiving federal improvement program (TIP) conformity violation of any standard in any area;
funding or approval. EPA is finalizing determinations and regional emissions increase the frequency or severity of any
specific criteria about the types of analyses could address only one PM2.5 existing violation of any standard in any
projects that require such analyses, standard if meeting conformity for the area; or delay timely attainment of any
based on our November 2003 and controlling standard would ensure that standard or any required interim
December 2004 proposals and Clean Air Act requirements are met for emission reductions or other milestones
comments received. See Section V. of both standards. EPA will address how in any area.’’ The Clean Air Act requires
this notice for further details regarding PM2.5 hot-spot analyses should consider that these provisions be met for all
the regulatory criteria for projects of air both applicable PM2.5 standards in our FHWA or FTA funded or approved
quality concern and more information future quantitative hot-spot modeling projects, except traffic signal
on the general requirements for guidance. This future guidance will be synchronization projects; it does not
performing hot-spot analyses. consistent with how potential impacts distinguish that these requirements
In addition, the final rule allows DOT, on the PM2.5 standards are being apply based on whether or not a SIP has
in consultation with EPA, to make considered in EPA’s rulemaking for the been submitted. Through previous
categorical hot-spot findings that would PM2.5 implementation strategy, which rulemaking, EPA has determined that
further streamline quantitative hot-spot EPA proposed on November 1, 2005 (70 the exempt projects listed in 40 CFR
analysis requirements in appropriate FR 66040). Quantitative hot-spot 93.126 have met section 176(c)(1)(B)
cases in PM2.5 areas, as the existing analyses for conformity purposes would without further hot-spot analyses.
conformity rule already allows in PM10 consider how projects of air quality Through today’s action, EPA is
areas for some projects. A categorical concern are predicted to impact air determining that projects not identified
hot-spot finding would be made if there quality at existing and potential PM2.5 in the rule as projects of air quality
is appropriate modeling that shows that monitor locations which are appropriate concern have also met section
a particular category of highway or to allow the comparison of predicted 176(c)(1)(B) without further hot-spot
transit projects of air quality concern PM2.5 concentrations to the current analyses. The final rule requires that all
meet statutory requirements without PM2.5 standards, based on PM2.5 monitor projects of air quality concern be
additional quantitative hot-spot siting requirements (40 CFR part 58). analyzed for localized impacts,
modeling for such types of projects EPA developed these monitor siting regardless of whether or not the PM2.5
individually. See Section VII. for further requirements to determine the level of SIP is submitted.
details regarding categorical hot-spot protection of community public health EPA continues to believe it has
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findings. provided by the current PM2.5 standards. discretion to establish the level and
This final rule requires a qualitative form of PM2.5 analysis that is necessary
PM2.5 hot-spot analysis to be completed 3 On January 5, 2005 (70 FR 943), EPA designated to meet Clean Air Act section 176(c)
for project-level conformity areas as attainment and nonattainment for the PM2.5 statutory requirements. Therefore, EPA
standards. These designations became effective on
determinations for projects of air quality April 5, 2005. As a result, conformity for the PM2.5
is finalizing criteria for when PM2.5 hot-
concern completed in PM2.5 standards will apply to newly designated spot analyses are required based on
nonattainment areas on or after April 5, nonattainment areas on April 5, 2006. scientific information available on PM2.5

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hot-spots and emissions from diesel projects to meet statutory conformity needed to ensure that the local air
vehicles, and the Agency’s experience requirements. EPA found in its review quality impacts of such projects are
in implementing CO and PM10 hot-spot of previous qualitative PM10 hot-spot considered prior to receiving Federal
requirements since 1993 for what level analyses that mitigation measures were funding or approval. This finding is
of analysis is appropriate and added in some cases to reduce fugitive based on EPA’s thorough review of
worthwhile. The final rule’s criteria for dust emissions during project existing scientific papers as well as
what projects require hot-spot analyses construction (e.g., slope covering, street additional technical and anecdotal
will ensure that all projects that have sweeping, use of water, quarry spalls). information that was submitted by state
the potential to impact the air quality However, these measures were added and local agencies during the
standards will be analyzed using for other mitigation purposes during the rulemaking process. All of this
appropriate methods before they receive construction phase of a project, rather information is contained in the docket
Federal funding or approval. The final than to meet conformity requirements for this rulemaking.
rule includes criteria for what projects for the time period when construction is In developing the final rule, EPA
of air quality concern require completed and a project is open to completed a thorough review of more
quantitative PM2.5 analyses based on traffic. EPA has included a summary of than 70 studies representing a cross-
existing scientific information and its review in the docket for this section of available studies looking at
comments received, as discussed further rulemaking. particle concentrations near roadways.
in this section and in Section V. For all of these reasons and since EPA Some of these studies were considered
Furthermore, EPA is changing its does not expect these projects to ever for our previous proposals; others were
precedent to date in no longer requiring impact the PM2.5 standards, EPA has not newly considered for the final rule.
qualitative hot-spot analyses for projects finalized any hot-spot analysis Some of these studies are discussed in
that are not of localized air quality requirement for projects that are not an today’s action; all studies are included
concern. As stated previously, since the air quality concern. EPA concludes that in the docket for this final rule.
original 1993 conformity rule, some since no such projects will have EPA believes that these studies
type of hot-spot analysis has been localized air quality impacts of concern, provide strong evidence of elevated
required to meet statutory requirements all such projects can meet statutory PM2.5 concentrations along roadways on
for all non-exempt FHWA and FTA conformity requirements without an a consistent basis from certain types of
projects in PM10 nonattainment and explicit hot-spot analysis. projects. Based on EPA’s review of all
maintenance areas. However, based on However, as noted elsewhere in studies, studies identified elevated
the history of implementation of this today’s action, EPA is finalizing a PM2.5 concentrations of 8% to 60% for
provision over the past ten plus years, qualitative PM2.5 hot-spot requirement high-traffic roadways to 285% for major
as explained in more detail below, EPA for projects of air quality concern prior truck stops, compared to background
now believes that these projects which to quantitative guidance and models concentrations. Variables identified in
do not represent a localized air quality being available. EPA believes that there the studies as key predictors of PM2.5
concern can be presumed to meet Clean is value in federal, state, and local concentrations include: Total traffic
Air Act requirements and 40 CFR 93.116 agencies and the general public volume; volume of heavy-duty trucks;
without any explicit hot-spot analysis. discussing the localized air quality traffic congestion; and proximity to
Requiring qualitative hot-spot impacts of a project of air quality major facilities (within approximately
analyses for projects that are not an air concern, even if such reviews can only 150 meters). Most studies showed
quality concern is also not a beneficial be qualitative in nature at this time. elevation in PM2.5, black carbon, or
use of Federal, state, or local resources. This aspect of the final rule is intended other components 4 associated with
EPA is basing this conclusion in part on to be an environmentally conservative major facilities (e.g., truck routes,
a recent review by EPA and DOT field approach to meeting Clean Air Act
intermodal or bus terminals). Several
offices of project-level conformity requirements in the time period before
showed no elevation in PM2.5 per se, but
determinations involving historical quantitative hot-spot modeling
did show elevation in black carbon,
qualitative hot-spot analyses in PM10 techniques and future guidance is
particle number, or some other
areas. This review did not find any available for projects of localized air
component of PM2.5. Only one study
qualitative hot-spot analysis in a PM10 quality concern.
Scientific understanding of potential showed no elevation in any component
nonattainment or maintenance area
for transportation-related PM2.5 hot- of PM2.5 close to roadways.
where it was determined that Clean Air
spots: Another critical factor for Overall, major conclusions from these
Act requirements were not met. In other
developing the final rule is whether or studies are:
words, qualitative hot-spot analyses for
• Black/elemental carbon (BC or EC)
projects that are not an air quality not transportation projects have the
mass concentrations and particle
concern in PM10 areas did not result in potential to affect the PM2.5 standards in
number (e.g., ‘‘ultrafines’’)
any predicted new or worsened air local areas. Understanding whether or
concentrations are consistently
quality violations. not an individual transportation project
In addition, EPA and DOT offices associated with proximity to traffic
can result in a PM2.5 hot-spot and if so,
evaluated whether any mitigation (generally within 150 meters).
under what circumstances, provides a
• PM2.5 is associated with proximity
measures had been added to a project in basis for considering whether explicit
to traffic in most, but not all cases.
response to a PM10 qualitative hot-spot hot-spot analyses must be required for • Both regional background and local
analyses. Mitigation measures are conformity purposes, and if so for sources contribute to site-specific PM2.5
sometimes used to reduce project which types of projects or potential concentrations.
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emissions and any impact on local air project locations. • The ‘‘near-roadway increment’’ of
quality, so that a project can As discussed above, EPA believes that
PM2.5 tends to be comprised of
demonstrate conformity. Whatever the highway and transit projects that
approximately 50–80% black or
case, the EPA and DOT field offices did involve significant levels of diesel
not identify any cases where any vehicle emissions have the potential to 4 Examples of other components that are
mitigation measures were added to increase local PM2.5 concentrations. As considered PM2.5 include organic carbon and
reduce emissions from implemented a result, PM2.5 hot-spot analyses are particle-phase polycyclic aromatic hydrocarbons.

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elemental carbon (indicating mobile explanatory variable in all statistical In the December 2004 supplemental
sources are a key source). models. proposal, EPA considered additional
Some examples of the types of studies EPA notes that its understanding of scientific studies and requested public
we examined include Lena et al. (2002), the potential for PM2.5 hot-spots from comment on our assessments of such
where investigators from Columbia transportation projects has evolved over studies. For example, EPA highlighted a
University conducted a community- the past three years. In the November new study, Burr, et al., (2004), which
based study in a neighborhood of the 2003 proposal (68 FR 62713), EPA examined changes in traffic patterns
South Bronx, NY, with heavy freight proposed options that would have associated with a single transportation
traffic. Vehicle counts and EC required no PM2.5 hot-spot analyses, or project that can result in statistically
concentrations were monitored over a only analyses in limited cases—which significant differences in PM2.5 mass
10–12 hour period at several sites along reflected its understanding at that time concentrations measured along affected
designated truck routes and other of the limited potential for roadways. The results of this study
neighborhood sites. Within the transportation-related PM2.5 hot-spots. highlight changes in PM2.5
neighborhood, EC was 20–28% of Most of the research studies that had concentrations along roadways resulting
ambient PM2.5 along truck routes, but been reviewed by late 2003 indicated from changes in local traffic patterns,
only 13–16% at non-trucks sites. Trucks that concentrations of some components rather than changes in regional PM2.5
were estimated to contribute between of PM2.5 increased near heavily traveled emissions.
5.0–14.2 µg/m3 PM2.5, depending on the roadways. EPA considered at that time While originally believed to be a
level of truck traffic. that many of these studies did not predominantly regional pollutant,
In a study by Indale (2004), measure PM2.5 directly, but rather, subsequent analyses of EPA’s PM2.5
investigators from the University of considered concentrations of some monitoring data reveal the influence of
Tennessee-Knoxville and Oak Ridge components of PM2.5, such as BC and both regional and local sources. Pinto et
National Laboratory conducted air ultrafine particles. al. (2004) reviewed monitoring data
quality monitoring and modeling at a from 1999 to 2001 from 27 urban areas
In proposing additional options in the
large truck stop along a freight corridor nationally. This study showed that
December 2004 supplemental proposal
outside Knoxville, TN. Continuous differences in annual means between
after receiving public comment, EPA
PM2.5 and NOX monitoring took place monitors within a city often reached 5
considered additional studies and
between December 2003 and September µg/m3 or higher, reflecting the possible
2004. Monthly-averaged PM2.5 ranged reconsidered some of its previous
statements from the November 2003 influence of local sources in many areas,
from 27–40 µg/m3 within the truck stop, in addition to variations in meteorology
with the 98th percentile of daily values proposal. For example, EPA now
believes that the information considered and terrain. Although this study does
exceeding 65 µg/m3. Regional not specifically address transportation
background PM2.5 during the same in the November 2003 proposal as well
as the most recent information available sources, the study highlights the
interval was only 14 µg/m3. PM2.5 and importance of subregional sources that
NOX concentration within the truck stop does indicate a potential for higher
localized emissions and PM2.5 impact local PM2.5 air quality.
tracked the number of idling trucks Finally, EPA has considered all of the
within the truck stop closely, which was concentrations near certain
transportation facilities. Since information that commenters have
highest at night. Hourly PM2.5 provided in response to the November
concentrations within the truck stop November 2003, EPA has considered
how information underlying previous 2003 and December 2004 proposals.
averaged 10 µg/m3 greater than along the EPA received a range of information
interstate highway 200 meters distant. statements was developed, including
how localized emissions increases and from commenters, such as:
EPA notes that the findings of this study • Broad observations for targeting
are more relevant to how PM2.5 air existing background concentrations
PM2.5 hot-spot requirements;
relate to the potential for localized
quality would be affected by freight or • General discussions about
bus terminals, as opposed to highway violations of the PM2.5 standards.
monitoring data gathered to date on
facilities servicing truck routes. Furthermore, EPA had stated in the PM2.5 hot-spots;
Finally, in Brauer et al. (2003), November 2003 proposal that PM2.5 • Narrative, non-technical
investigators obtained ‘‘annualized’’ monitoring data available at that time descriptions of an individual PM2.5
average PM2.5 and black carbon at 40– indicated that PM2.5 air quality area’s considerations for potential PM2.5
42 locations in each of three locations: problems were similar to ozone in that hot-spots;
The Netherlands (nationwide), they are both primarily regional in • Examples of state and local
Stockholm County (Sweden), and nature, which the Agency now believes regulations that target potential PM2.5
Munich, Germany. Monitoring consisted was an incomplete assessment of the hot-spots from transportation projects;
of samples taken 15 minutes of every broader PM2.5 air quality problem. EPA and,
hour over 4 two-week periods now believes that PM2.5 is both a • Plans by individual states and
throughout a 17-month period, regional and a localized air quality nonattainment areas to conduct studies
normalized to a central monitor. concern in certain circumstances. While on the existence of PM2.5 hot-spots.
Locations consisted of ‘‘traffic’’ sites it is true that secondary formation from This and other information received
(>3,000 vehicles/day within a 50 m PM2.5 precursors is a critical component from commenters is included in the
radius), ‘‘urban background’’ sites, and to the regional PM2.5 air quality docket for today’s final rule. We will
rural sites. PM2.5 was 8–35% higher, and problem, directly emitted PM2.5 from further consider these and other state
black carbon was 43–84% higher at certain local sources has the potential to and local information in the
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‘‘traffic’’ sites than at ‘‘urban cause or contribute to elevated localized development of our future quantitative
background’’ sites. Using regression PM2.5 concentrations. Such elevated PM2.5 hot-spot modeling guidance and
within each area of study, traffic concentrations which exceed applicable implementation for this final rule.
intensity on roads within 250 meters standards can have an effect on local Feasibility and resource implications:
explained 30–40% of the variability in communities and populations that the EPA also considered whether or not the
PM2.5, and 54–70% of variability in PM2.5 standards were designed to final rule’s requirements were feasible
black carbon. Traffic was the strongest protect. and practical. For example, is the

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information needed to implement an Comment hot-spot requirements (i.e., Options 1, 2,


option available? Do state and local Many commenters supported 5, A, and B), and some preferred that
agencies have the methods and finalizing PM2.5 hot-spot requirements EPA delay issuing final PM2.5 hot-spot
experience to implement an option in a that were consistent with the previous requirements until certain issues are
reasonable time frame? EPA considered conformity rule’s provisions for PM10 addressed. These commenters believed
these and other questions, so that areas (i.e., Options 3 and C), to meet that there was insufficient evidence
meeting statutory requirements was Clean Air Act requirements and protect regarding the existence and prevalence
assured to be completed in an efficient public health. Commenters supported of PM2.5 hot-spots. Commenters stated
manner. EPA rejected options that could these options because they believed that that their preferences would be
not be feasibly implemented. these options would promote appropriate because PM2.5 is a new
Targeting projects of air quality pollutant that should be further
consistency with EPA’s past legal
concern and not requiring qualitative examined at the national and local level
interpretations regarding how federally
hot-spot analyses for projects that are before more rigorous PM2.5 hot-spot
funded and approved transportation
not of concern will streamline project- requirements are finalized. Some
projects met Clean Air Act section
level conformity determinations in commenters argued that PM2.5 hot-spot
176(c)(1)(B) requirements in PM10 areas.
PM2.5 areas, since many proposed requirements are not required by the
projects in transportation plans and Commenters believed that it was
Clean Air Act at all, and therefore, no
TIPs are not expected to be of air quality reasonable to expect that transportation
such requirements should ever be
concern. Allowing DOT to make projects can cause PM2.5 hot-spots, and
finalized in EPA regulations.
categorical hot-spot findings will that conducting project-level PM2.5 hot- Other commenters were opposed to
provide another opportunity to further spot analyses would provide an requiring existing PM10 hot-spot
narrow the focus of quantitative environmental benefit by characterizing requirements in PM2.5 areas (under
analyses for those projects that matter emissions impacts and considering Options 3 and C) because they believed
significantly for air quality. All of these mitigating approaches. These these options would require extensive
aspects of the final rule will utilize state commenters also argued that the analyses without comparable
and local resources in an efficient and available scientific studies and research environmental benefits and flexibility.
reasonable manner while still satisfying demonstrate that all transportation These commenters believed it was
Clean Air Act requirements. See projects, including highway and transit unnecessary and excessive to require
Sections V. and VII. for further rationale projects involving significant diesel hot-spot analyses for every project in
and responses to comments on criteria traffic, have the potential to create PM2.5 every PM2.5 nonattainment area.
for projects of air quality concern and hot-spots. Commenters argued that more research
categorical hot-spot findings. EPA also received many comments, is needed to better define the situations
including over 5,000 form e-mail where hot-spots may be a concern, and
D. Response to Comments on Proposed comments from private citizens, how individual projects could impact
PM2.5 Hot-spot Options expressing concerns about many of the air quality standards under different air
EPA received comments on the proposed options that would require no quality circumstances. Some of these
proposed options for PM2.5 areas from or limited PM2.5 hot-spot analyses (e.g., commenters also argued that EPA has
state and local transportation and air Options 1, 2, 5, A, and B), which they not demonstrated why performing PM2.5
quality agencies, environmental groups, believed did not go far enough in hot-spot analyses would be beneficial to
transportation advocates, and the protecting public health. These attaining the PM2.5 standards.
general public. Certain general trends commenters were very concerned that
were evident where the same all transportation projects, especially Response
commenters supported similar options major highway projects, be evaluated for EPA believes that the final rule
during the time periods before and after local PM air quality impacts on people addresses many of the concerns raised
a PM2.5 SIP is submitted. In general, living in neighborhoods before these by commenters. As described above,
commenters who supported finalizing projects receive Federal approval or EPA concludes that the final rule allows
no or limited PM2.5 hot-spot funding. The commenters believed that all projects in PM2.5 areas to meet Clean
requirements prior to PM2.5 SIP EPA should consider the severity of Air Act section 176(c)(1)(B)
submission (Options 1, 2, or 5) also PM2.5 impacts on the health and welfare requirements during the time periods
generally supported options that would of adults who work, children who play, both before and after a PM2.5 SIP is
have no hot-spot requirement at all and families living in neighborhoods submitted. EPA believes that today’s
(Option A) or rely on the SIP to identify near heavily traveled highways. The final rule is consistent with its past legal
hot-spot requirements (Option B) after commenters indicated that these interpretations for applying hot-spot
PM2.5 SIP submission. Similarly, populations are at increased risk of requirements for projects of air quality
commenters who supported applying suffering from serious health effects concern.
the existing PM10 hot-spot requirements from PM2.5, including asthma, heart However, EPA disagrees with
prior to PM2.5 SIPs (Options 3 or 4), also disease, lung cancer, and associated commenters who argued that there is
supported doing the same after PM2.5 premature death. Other commenters not enough information at this time to
SIPs are in (Option C). In addition, there also cited studies on the serious health apply a PM2.5 hot-spot requirement.
were commenters who believed either effects caused by high PM2.5 Based on our review of scientific studies
that EPA should delay finalizing a PM2.5 concentrations, and believed that and information gathered during the
hot-spot requirement at this time, or that requiring PM2.5 hot-spot analyses for all rulemaking process, as described above,
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EPA should modify the proposed projects best protects the public health EPA believes that there is compelling
options so that they are more for citizens in PM2.5 areas, especially evidence that certain transportation
environmentally protective. The vulnerable populations living near projects of air quality concern have the
following paragraphs describe these and proposed transportation projects. potential to impact localized PM2.5
other comments that EPA considered in On the other hand, many other concentrations. Such impacts, if they
the development of the final rule, and commenters supported options that would create or worsen violations for
EPA’s responses to those comments. would apply no or only limited PM2.5 the PM2.5 standards on communities

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surrounding a project of air quality assessed and mitigated as part of the developing appropriate PM10 SIPs, and
concern, would be contrary to the Clean conformity process at all times, and that that it was unclear whether EPA would
Air Act’s conformity requirements. such projects if not analyzed could be willing or able to remedy any PM2.5
Furthermore, EPA does not agree that it significantly degrade air quality and SIPs that did not identify transportation-
is appropriate to delay finalizing a PM2.5 increase the number and severity of related PM2.5 hot-spot locations.
hot-spot requirement for such projects local PM2.5 violations in the time period
until certain comments are addressed, prior to SIP submission. Response
for the reasons cited above. Second, several commenters believed EPA is not finalizing Options 2 and B
EPA notes again, as described further that this option may not be feasible in because these options do not
elsewhere in this notice, that projects every area because it is unlikely that sufficiently address all of the factors
which do not represent a localized air there is adequate data to identify exact outlined in the December 2004
quality concern can be presumed to locations of local concern in the SIP. supplemental proposal and today’s final
meet Clean Air Act requirements and 40 This could be due to the absence of data rule:
CFR 93.116 without any explicit hot- or lack of specificity of existing data • The Clean Air Act conformity
spot analysis. This aspect of the final regarding PM2.5 hot-spot locations. requirements for individual
rule is expected to streamline PM2.5 hot- Some argued that this may be the case transportation projects;
spot requirements and use state and due to placement of current monitors • The current scientific
local resources efficiently. away from large transportation projects, understanding of PM2.5 hot-spots and
or the focus on the annual PM2.5 public health effects;
Comment
standard rather than the 24-hour PM2.5 • The feasibility of implementing
EPA also proposed Options 2 and B standard in SIP development. One options; and
that relied solely on the SIP to identify commenter believed that PM2.5 air
projects or project locations of potential • The impact on state and local
quality monitors have historically been resources.
PM2.5 hot-spot concern. Under these located more than the 300 feet from
options, quantitative PM2.5 hot-spot EPA has reached this conclusion
where highway projects would have
analyses would only be required at based on consideration of all of the
their major impact on PM2.5
types of project locations identified as a information gathered during the
concentrations.
localized air quality concern in a given Third, commenters were concerned rulemaking process.
PM2.5 SIP. No quantitative or qualitative that Option B would place an EPA has already stated that any
analyses would be required for projects inequitable burden on state and local air option that is finalized must ensure that
in other types of locations, or in PM2.5 agencies that are already tasked with all federally funded and approved
areas where the SIP does not identify developing PM2.5 SIPs to meet other transportation projects in PM2.5 areas are
types of locations as a localized PM2.5 Clean Air Act requirements. PM2.5 SIPs consistent with Clean Air Act section
air quality concern. Furthermore, no are statutorily required to be submitted 176(c)(1)(B). As stated in the December
hot-spot analyses would be required for three years from the effective date of 2004 proposal, to meet this provision
any projects in PM2.5 areas prior to PM2.5 nonattainment designations (i.e., under Option 2, we would need to
PM2.5 SIP submission. April 5, 2008). Unless possible PM2.5 conclude that it was necessary to wait
Many commenters supported these hot-spot locations are well-defined and until the SIP is developed to understand
options. Some commenters believed that based on developed and verified the potential air quality impacts of
the existence and prevalence of PM2.5 monitoring data, one commenter argued, projects in any PM2.5 area. EPA is
hot-spots was uncertain and that the SIP it would be inappropriate at this time to unable to support such a conclusion
process could assist in identifying what solely rely on PM2.5 SIPs to implement based on our current scientific
projects are of concern in a given area conformity requirements. understanding of transportation-related
and consequently what level of PM2.5 Although two commenters supported PM2.5 hot-spots, as described in C. of
hot-spot analysis is appropriate. the consideration of PM2.5 hot-spots in this section. Delaying the application of
Commenters opined that Options 2 and the SIP process, they did not agree that a PM2.5 hot-spot requirement until SIPs
B would allow each PM2.5 area to better solely relying on that process met Clean are submitted would not ensure that
target potential PM2.5 hot-spots and Air Act conformity requirements, for the new projects of air quality concern do
protect the public health of their reasons described above. In addition, not cause or contribute to any new PM2.5
citizens, since the SIP is the appropriate these commenters argued that it is violations, worsen any existing
mechanism for addressing state and uncertain whether PM2.5 SIPs will be violations, or delay timely attainment
local air quality goals. These options developed on time, based on past prior to SIP submission.
were considered by some to provide the history of SIP submissions. EPA originally proposed Option B in
necessary flexibility in implementing Finally, some commenters were November 2003 because the potential
hot-spot requirements both before and skeptical regarding whether the SIP for transportation-related PM2.5 hot-
after a PM2.5 SIP is submitted. process was the appropriate forum for spots was not clearly understood at that
In contrast, other commenters identifying transportation-related hot- time. Rather than not establish any
believed that Options 2 and B would not spots. These commenters believed that PM2.5 hot-spot requirement due to the
meet Clean Air Act requirements or there is no legal obligation under the scientific uncertainty regarding PM2.5
protect public health. First, such Clean Air Act to identify project hot-spots, EPA proposed an alternate
commenters indicated that Option 2 locations of air quality concern in the option to allow states to identify project
would eliminate any requirement to SIP. They argued that Option B was locations of concern through the SIP
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perform PM2.5 hot-spot analyses prior to deficient because states may choose not development process, when information
the development of a PM2.5 SIP, which to identify potential hot-spot locations for potential PM2.5 hot-spots was
would not meet statutory requirements either because sufficient data is not available. After considering other
that apply during this time period. available or out of concern that scientific information, EPA revisited
These commenters argued that PM2.5 conformity requirements would apply. Option B in its December 2004
emissions impacts resulting from These commenters also believed that air supplemental proposal, and provided
transportation projects should be agencies had a poor historical record of new options to more broadly evaluate

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the potential for PM2.5 hot-spots from Based on all of these considerations developed, and thus has not chosen
transportation sources. and the comments received, EPA does these proposed options in the final rule.
EPA also presented a possible legal not believe that it is realistic or practical EPA also agrees that all conformity
argument in the November 2003 and to expect that Option B which bases hot- requirements apply one year after an
December 2004 proposals that Option B spot analysis requirements solely on the area is newly designated nonattainment
may be consistent with the purpose of SIP can be sufficiently implemented to with respect to a given NAAQS if the
conformity to ensure that federally meet statutory requirements in all PM2.5 state has a general section 110 SIP. To
funded or approved transportation areas. that end, conformity will apply in PM2.5
projects are consistent with the SIP in nonattainment areas as of April 5, 2006,
a given nonattainment or maintenance Comment
since all areas of the country do have
area. Section 176(c)(1)(A) requires A few commenters also argued that section 110 SIPs. PM10 nonattainment
‘‘conformity to an implementation EPA may not lawfully finalize options areas continue to be subject to
plan’s purpose of eliminating or that defer PM2.5 hot-spot analyses until conformity requirements applicable to
reducing the severity and number of after a SIP is submitted because such the PM10 standards, which are covered
violations of the national ambient air delays are inconsistent with Clean Air by this final rule and our existing
quality standards and achieving Act requirements. The commenters conformity regulations.
expeditious attainment of such cited several legal arguments. First,
However, EPA disagrees with the
standards * * *.’’ However, EPA has commenters believed that where a SIP
commenter’s assertion that the one-year
now determined that Clean Air Act of any kind exists, Clean Air Act section
176(c)(1) does not require that a state conformity grace period for newly
section 176(c)(1)(B) requiring that
must first have adopted a SIP for a given designated nonattainment areas does
projects not create or worsen NAAQS
standard before the conformity not apply for PM2.5 nonattainment areas
violations is the applicable legal
requirements for that standard apply. that are also PM10 nonattainment or
standard for this final rule. This legal
These commenters also argued that maintenance areas. The grace period is
standard could only be met if PM2.5 SIPs
the statute requires conformity to apply clearly applicable by its own terms to an
would be developed that identify all
as soon as the one-year conformity grace area for one year after it is first
potential project locations of air quality
period expires for areas that have Clean designated nonattainment for a specific
concern for any such project proposed
Air Act section 110 SIPs in effect. standard. The grace period would apply
in the transportation plan or TIP for
Unless, EPA finds that an area lacks a for all new standards, even if they are
years to come.
In the December 2004 supplemental section 110 SIP (which is not the case different standards for the same
proposal, EPA further considered the for any area), they believed that pollutant. Section 176(c)(6) states,
feasibility of implementing Option B, as conformity determinations that meet all ‘‘Notwithstanding paragraph 5, this
to whether sufficient information statutory requirements are required for subsection shall not apply with respect
existed to allow a state to specify all projects in areas that have previously to an area designated nonattainment
susceptible locations where PM2.5 hot- been designated nonattainment for under section 107(d)(1) until 1 year after
spots are an air quality concern. We PM2.5, even if they were not previously that area is first designated
acknowledged that there may be cases PM10 nonattainment or maintenance nonattainment for a specific national
where it is unclear whether susceptible areas. ambient air quality standard. This
locations for hot-spots exist, or where Furthermore, the commenters stated paragraph only applies with respect to
there is a potential for localized PM2.5 that the one-year conformity grace the national ambient air quality
violations but it is difficult to specify period does not even apply to PM2.5 standard for which an area is newly
which project locations could create nonattainment areas that have been designated nonattainment and does not
hot-spots. EPA also requested comment previously designated nonattainment for affect the area’s requirements with
on how the proposed options should be the PM10 air quality standards. These respect to all other national ambient air
implemented in cases where the latest commenters believed that the grace quality standards for which the area is
information available on the potential period does not apply if an area is designated nonattainment or has been
for PM2.5 hot-spots is not reflected in the designated nonattainment for a new or redesignated from nonattainment to
PM2.5 SIP. revised standard for the same criteria attainment with a maintenance plan
EPA concludes there are other reasons pollutant, in this case, the standards for pursuant to section 175A (including any
to believe that Option B does not meet PM2.5 are for the same pollutant as for pre-existing national ambient air quality
Clean Air Act conformity requirements. PM10 (i.e., particulates). The commenter standard for a pollutant for which a new
SIPs are generally developed to meet cited EPA’s 1997 rulemaking that or revised standard has been issued).’’
regional air quality concerns that are promulgated the PM2.5 standards, in (Emphasis added). The statute thus
more in parallel with the regional which EPA rejected arguments that expressly differentiates between new
emissions analysis for plan and TIP PM2.5 was a new pollutant that required and existing standards for a given
conformity determinations. As such, listing under Clean Air Act section 108 pollutant, and specifically provides the
EPA does not anticipate requiring PM2.5 prior to adopting a new standard. The grace period for new standards that may
SIP modeling to be performed at a level commenter also referred to the DC apply for the same pollutant. EPA does
of detail that would identify all Circuit decision that held that PM2.5 has not believe there is any ambiguity in the
potential transportation hot-spots. There always been regulated as a fraction of applicability of the grace period under
are also concerns regarding the ability of PM10 and that EPA was not required to the statute. EPA acknowledges that
the SIP to evaluate the local air quality list PM2.5 as a new pollutant. American PM2.5 and PM10 are both standards
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impacts of all future projects, even those Trucking Assns v. U.S. EPA, 175 F.3d applicable to particulate matter, but
that are not even identified during and 1027, 1055 (DC Cir. 1999). concludes that given the express
after the SIP’s development. And language of the statutory grace period
finally, it is unclear how EPA would Response there is no question that it applies to
enforce a conformity requirement like As explained above, EPA agrees that newly designated PM2.5 nonattainment
Option B if SIPs do not identify hot-spot it is not appropriate to defer project areas. In addition, the grace period for
concerns when appropriate. level hot-spot analyses until SIPs are PM2.5 will terminate in April 2006, so

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any concerns about this issue will less than five years and many do not development may not assure conformity
become moot at that point. collect speciated data, which they of all projects and thus believes it
believed is critical to pinpointing likely cannot address the resource issue
Comment
sources of PM2.5. Other commenters through such options. However, EPA
EPA also requested comment on how supported not requiring any PM2.5 hot- believes that requiring analyses only for
Option B should be implemented in spot analyses (Options 1 and A) or projects of air quality concern will both
cases where the latest information delaying the final rule altogether, which ensure that all projects meet the
available on the potential of PM2.5 hot- would allow state and local agencies to statutory requirements and provide
spots is not reflected in the SIP focus resources on other planning and sufficient resources to conduct all
(December 13, 2004; 69 FR 72148). Such SIP efforts. necessary analyses.
cases would result if information Other commenters believed that a EPA agrees that there are start-up
becomes available outside the SIP more effective use of resources would be issues that some state and local agencies
process that indicates that there may be to identify PM2.5 problem locations will need to overcome, especially areas
potential transportation-related hot-spot during the SIP development process without previous experience in
locations. Some commenters were (through Options 2 and B), which would implementing a hot-spot requirement in
concerned that it may not be possible to allow state and local agencies to CO or PM10 areas. However, EPA and
identify all types of projects or locations determine if and where hot-spot DOT’s qualitative hot-spot guidance,
that could be an air quality concern in analyses would apply. The SIP process and our future quantitative hot-spot
the time addressed by the SIP or in allows states and regions to acquire modeling guidance for projects of air
future years. New projects of air quality necessary data and research which quality concern will assist in the
concern that are not addressed by a SIP, allows for more conclusive information. implementation of this final rule. As
the commenter argued, should require a All of these commenters believed that always, EPA will continue to, in
PM2.5 hot-spot analyses to protect public focusing PM2.5 hot-spot requirements on cooperation with DOT, work to assist
health. PM2.5 air quality problem areas and state and local agencies in
Response potential sources that matter would implementing the final rule’s
better use limited state and local requirements.
EPA considered the concerns raised resources. Finally, EPA would like to address
by commenters. In developing the final However, other commenters believed the comment that further PM2.5
rule, EPA considered the ability of all that the options involving no hot-spot monitoring data needs to be gathered
PM2.5 SIPs to identify every project of analyses or tying hot-spot analyses to before applying a hot-spot requirement.
air quality concern in the timeframe of SIPs (Options 1, 2, A, and B) would not EPA disagrees with this comment. There
the SIP and future years, and how such protect public health since these options is sufficient evidence that projects of air
projects at locations not identified in the would eliminate or narrow any quality concern can affect local PM2.5
SIP could meet Clean Air Act requirement to perform PM2.5 hot-spot concentrations, and therefore, waiting
conformity requirements without a analyses. Furthermore, some for additional monitoring data used in
PM2.5 hot-spot analysis. EPA did not commenters believed that options that SIP development for every PM2.5 area is
finalize Option B in the final rule, since were consistent with the existing PM10 not necessary to meet statutory
the Agency concluded that it is hot-spot requirements (Options 3 and C) conformity requirements now. Also,
unreasonable to believe that all projects would be easier to implement for areas EPA believes that PM2.5 hot-spot
of air quality concern would be with previous CO or PM10 hot-spot analyses can be completed for projects
identified by the SIP and therefore analysis experience. Two commenters of air quality concern even if PM2.5
required to comply with the conformity further stated that these options would monitoring data is not available for a
provisions of the Clean Air Act. be more consistent with how their state given project’s location. EPA will clarify
Comment is already considering PM2.5 localized in its future quantitative hot-spot
impacts under state environmental modeling guidance how monitoring data
Some commenters were concerned requirements. of current and past PM2.5 air quality can
that the final rule use state and local be used in estimating future PM2.5 air
resources effectively. These Response quality concentrations.
commenters, however, differed in their EPA believes that the final rule will
reasons for supporting various options. ensure that state and local resources are Comment
First, some commenters were concerned used in an efficient manner, since hot- Other commenters were concerned
that finalizing requirements that spot analyses will only be required for that EPA has not yet issued PM2.5
required PM2.5 hot-spot analyses for all projects of air quality concern. quantitative hot-spot analysis guidance
projects (Options 3 and C) could result Eliminating qualitative analyses for and methods. Some commenters
in an inefficient use of state and local projects that are not an air quality supported doing little or no hot-spot
resources that could be used for SIP concern based on EPA’s conclusion that analyses, in part because they asserted
development, and additional monitoring such projects will not create or worsen that credible tools are not currently
of the potential and location for PM2.5 air quality violations will significantly available and quantitative analyses
hot-spots. A few commenters reduce any challenges in implementing would not be required until guidance
acknowledged that many agencies are this final rule, since the majority of were available, possibly just before the
also addressing conformity for the 8- projects that are usually proposed are April 5, 2008 PM2.5 SIP deadline.
hour ozone standard, which takes away not projects of air quality concern. However, other commenters believed
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resources for PM2.5. Other commenters Therefore, most project-level conformity that all of the proposed options were
stated that agencies will not have PM2.5 determinations will not contain a hot- insufficient since they would delay
data, such as monitoring data and spot analysis of any kind, since most quantitative PM2.5 hot-spot analyses for
inventory estimates, until SIPs are projects are not in danger of impacting years, and in the interim, there would
developed or maybe not at all. These the PM2.5 standards. be no consideration of the public health
commenters stated that the majority of As noted above, EPA concludes that impacts of projects currently under
PM2.5 monitors have been in place for requirements keyed only to SIP development.

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Finally, some commenters believed geographic scope to those parts of the Some commenters supported Option
that EPA needed to issue qualitative nonattainment area where monitors 5 because they believed that this option
PM2.5 hot-spot guidance, since the indicate that PM2.5 levels are above a reflected the current state of scientific
existing PM10 qualitative hot-spot standard or forecasts indicate they are understanding, used resources
guidance was not applicable to PM2.5 projected to reach such levels. efficiently, addressed the learning curve
hot-spot analyses. These commenters for areas without PM experience, and
Response
noted that PM2.5 is chemically different relied on future development of PM2.5
than PM10 and most of the PM2.5 areas EPA has responded to similar SIPs. Option 5, commenters argued, is
are violating the annual PM2.5 standard, comments in other sections of today’s appropriate because it provided an
whereas most PM10 areas were action. The final rule addresses many of opportunity for each PM2.5 area to tailor
constrained by the 24-hour PM10 the suggestions submitted by its hot-spot requirements when
standard. commenters by further defining what information exists prior to PM2.5 SIP
projects need hot-spot analyses to meet submission. However, other
Response
statutory requirements and conserve commenters stated specific opposition
Today’s final rule extends resources. See Section V. for further to Option 5; these commenters saw this
§ 93.123(b)(4) of the existing conformity information on the regulatory criteria for option as a ‘‘loophole’’ for not
rule’s PM10 hot-spot provisions to PM2.5 quantitative hot-spot analyses. The protecting PM2.5 air quality, since it
areas. This provision now requires that elimination of qualitative hot-spot would presume that PM2.5 hot-spot
quantitative PM2.5 hot-spot analyses be analyses for many projects in part analyses were not needed unless a
performed once EPA announces in the addresses the motivation for a screening finding was made. These commenters
Federal Register that quantitative method or emissions threshold—i.e., to expressed doubt that such findings
analysis requirements are in effect. EPA focus more rigorous quantitative would be done at all in any PM2.5 area.
has not yet made such an analyses on projects of air quality EPA also requested comment on
announcement because the Agency has concern. whether state and local air agencies will
not approved appropriate motor vehicle EPA also agrees that the air quality have the necessary data and other
emissions factor models for localized circumstances can be considered in information to make the findings
analyses, and EPA is in the initial stages further narrowing the focus of described for Options 4 and 5.
of developing quantitative PM2.5 and quantitative hot-spot analyses. See Comments were mixed on this point.
PM10 modeling guidance to apply Section VII. of this notice for further For example, three commenters who
existing air quality dispersion models discussion on how such information supported Option 5 believed that there
and future emissions factor models to could be considered for future would not be sufficient information
implement today’s rule. Please see categorical hot-spot findings. regarding PM2.5 hot-spot potential prior
Section VI. of today’s final rule for to the development of a PM2.5 SIP in a
further information on the timing of Comment given area. Other commenters who
quantitative hot-spot requirements. EPA also proposed Option 4 and 5 for supported either Option 3 or 4 believed
EPA agrees that the existing PM10 that there would be information to
the time period before PM2.5 SIPs are
qualitative hot-spot guidance is not support making findings based on either
submitted. Two commenters preferred
applicable to PM2.5 analyses. As a result, existing air quality monitoring data,
Option 4 which allowed for a finding
EPA and DOT have developed current state screening thresholds, or
that hot-spots were not of air quality
qualitative PM2.5 hot-spot guidance for other techniques for what projects need
concern to any other pre-SIP option.
immediate use for conformity PM2.5 hot-spot analyses.
One of these commenters preferred
determinations for projects of air quality
Option 4 because it offered the best Response
concern, which is available at the Web
combination of conformity review
site listed in Section I.B.2. of today’s EPA originally proposed Options 4
continuity and flexibility in determining
action. and 5 because of what was seen at the
which projects required PM2.5 hot-spot
Comment analyses. The commenter argued that its time as the evolving nature of our
Some commenters believed that EPA state needed to have PM2.5 hot-spot understanding of PM2.5 air quality
could improve on its proposed options analyses prior to PM2.5 SIP submission issues. These options would rely on the
in the final rule. Some examples of because many transportation projects proposed interpretation stated in the
commenters’ suggestions are as follows: would be developed during this time November 2003 proposal (68 FR 62713):
• Clarifying or expanding the list of period that could negatively impact air Clean Air Act section 176(c)(1)(B)
projects for which quantitative analyses quality. Allowing for a ‘‘grace period’’ requirements could be met as long as
are to be conducted; before project impacts are considered explicit reviews are performed at
• Adopting a screening method or prior to SIP submission could increase locations identified in the PM2.5 SIP as
emissions threshold that would help hot-spot emissions, the commenter susceptible to PM2.5 hot-spots. Both
define what projects require quantitative argued. All of these commenters, Options 4 and 5 were intended to allow
hot-spot analyses; and, however, agreed that Option 4 was EPA and states to target hot-spot
• Allowing both the MPO and state or consistent with past practice for requirements in PM2.5 nonattainment
local air agency to have the opportunity applying PM10 hot-spot requirements areas where hot-spots may or may not
to identify further projects that should and meeting statutory requirements be an air quality concern.
undergo quantitative review. while providing some relief when EPA However, EPA is not finalizing these
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The screening procedure is necessary, and the state air agency has information options either because they do not meet
one commenter believed, to avoid that PM2.5 hot-spots are not a concern in statutory requirements as explained
unnecessary effort associated with PM2.5 a given area. On the other hand, other above, or the final rule already provides
hot-spot analyses and project-level commenters did not support Option 4 the flexibility intended by the originally
conformity determinations. Still another for the same reasons that they did not proposed options. In addition, EPA was
commenter believed that any hot-spot support Option 3, which are described not convinced based on the comments
requirement should be limited in in a previous summary. received that either option was feasible

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in identifying all projects of air quality projects in most areas. In addition, the environmental review phase. Project
concern. final rule’s minor addition to 40 CFR sponsors are often state departments of
93.109(k) will allow PM2.5 areas with transportation which do have the ability
Comment
insignificant regional emissions to also to modify project designs or take other
There were a few commenters who demonstrate, when appropriate, that steps to mitigate emissions from the
believed that PM2.5 hot-spot analyses individual transportation projects will individual project. While it is true that
would not be an efficient use of not create new localized violations or state and local transportation agencies
resources because of their individual make existing violations worse. cannot influence national diesel fuel
PM2.5 nonattainment area’s For example, isolated rural PM2.5 standards, the state and local agencies
circumstances. Several commenters areas where other types of sources such can be assured that EPA is
stated that it is inefficient to direct as wood stoves or fireplaces are implementing these standards as
resources to PM2.5 hot-spot analyses dominant at the regional level would planned and that the diesel sulfur
when transportation may not be a only be required to perform hot-spot standard and heavy duty engine rule
significant contributor to the PM2.5 air analyses for the types of projects will be phased in beginning in 2007.
quality problem in a given area, such as described in § 93.123(b) until such time With regard to the comment on
smaller areas or cities dominated by as a PM2.5 SIP is submitted which national non-road emissions standards,
other PM sources (e.g., wood smoke demonstrates that regional on-road the commenter is correct that state and
from residential stoves, fireplaces or motor vehicle PM2.5 emissions are local transportation agencies do not
other forms of residential heating). insignificant and will not cause new or have control over such standards. EPA
Another commenter pointed out that the worsen existing local violations. EPA notes that non-road emissions are
only exceedance of the 24-hour PM2.5 also notes that the impact of the final considered to the extent that they are
standard in his area was attributable to rule may be minimal in such smaller expected to impact background
a fireworks display. This same areas, since areas that are dominated by concentrations in PM2.5 hot-spot
commenter believed that transportation other sources do not typically have analyses of on-road highway and transit
projects would not impact the annual complex transportation systems needing projects of air quality concern. EPA’s
PM2.5 standard, which the commenter new project approvals prior to PM2.5 SIP future modeling guidance will address
stated was more relevant in most areas, submission.5 how background concentrations are to
or jeopardize the 24-hour standard. After EPA makes an adequacy finding be calculated for quantitative hot-spot
Another commenter believed that his (or approves) a SIP that demonstrates analyses.
state needed flexibility to consider insignificant regional and local
through the SIP process and emissions, PM2.5 hot-spot analyses, Comment
consultation the hot-spot concerns of its would no longer be required in that A few commenters argued that EPA’s
remote communities. Another area. EPA discussed its process for standards for low sulfur diesel fuels in
commenter stated that hot-spot analyses evaluating SIPs that claim insignificant 2006 and heavy-duty engines in 2007
for projects in non-urbanized areas are regional and localized emissions in the will negate any need for PM2.5 hot-spot
never justified because such projects June 30, 2003 proposal (68 FR 38984) analyses. The commenters stated that
lack the size and density to allow other and July 1, 2004 final rule (69 FR EPA should analyze the impacts of these
modes to effectively serve travel needs. 40061–40063). EPA Regions and states Federal standards on local air quality
A failed conformity test in these areas can work together to appropriately before PM2.5 hot-spot analysis
would simply leave real highway expedite the processing of such SIPs requirements are finalized.
problems unresolved, the commenter through such methods as parallel
hypothesized. processing or direct final rulemaking. Response
One commenter stated that local With regard to the concerns expressed In the December 2004 supplemental
agencies, including the MPO, have little about the appropriateness of hot-spot proposal (69 FR 72147), EPA committed
or no ability to implement or require analyses in remote or non-urbanized to consider the impact of the new diesel
control measures or make project design areas, EPA would like to point out that fuel and engine standards (January 18,
changes that could impact PM2.5 at the today’s final rule limits the need for 2001, 66 FR 5002) in the development
project level. Also, the commenter PM2.5 hot-spot analyses to only those of the final rule. Such standards are
believed transportation agencies have projects which significantly increase expected to significantly impact the
no control over existing Federal diesel diesel vehicle traffic and emissions. As amount of particulate emissions that
fuel and off-road standards. noted above, this is likely to be only a will be emitted by new diesel vehicles,
small percentage of projects in remote or and consequently may impact the
Response
non-urbanized areas. potential for PM2.5 transportation-
EPA believes that today’s final rule With regard to the comment related hot-spots. EPA considered the
protects air quality and public health in concerning the ability of MPOs to time frame over which these vehicle
PM2.5 areas and provide an option for influence the design of individual standards would phase in. According to
areas where on-road motor vehicles are projects and the ability of transportation the latest Vehicle Inventory and Use
an insignificant regional and local agencies to have control over Federal Survey from the Census Bureau6, in
contributor to an area’s particulate diesel fuel standards and non-road 2002, vehicles three years of age and
matter problem. Today’s final rule equipment emissions standards, EPA younger constituted only 32.3% of U.S.
targets PM2.5 hot-spot analyses on the would like to point out that in most truck fleet. If the same age distribution
types of projects that are likely to cause cases hot-spot analyses are completed holds for 2010, only about one third of
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or contribute to new or worsened PM2.5 by project sponsors during the project’s trucks on the road will meet the heavy-
violations. Specifically, the rule targets duty engine emissions standards for
hot-spot analyses on those types of 5 April 2003, Transportation/Air Quality Issues in
2007 and 2010. In this scenario, most
projects that result in significant Rural Areas, FHWA and Dye Management Group;
and October 2003, Rural Conformity: A Survey of trucks on the road will still be capable
increases in diesel vehicle traffic (and Practice, NCHRP Project 08–36, Task 28, prepared
therefore emissions), which is likely to by ICF Consulting and Sarah J. Siwek and 6 This information can be found at: http://

be a small subset of transportation Associates. www.census.gov/svsd/www/vius/products.html.

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of producing elevated concentrations of projects which could adversely effect commenter argued that more stringent
PM2.5. As such, EPA’s new emission localized air quality, EPA is required to PM2.5 standards could significantly
standards do not eliminate the need for establish hot-spot analysis requirements increase the potential for transportation
considering PM2.5 hot-spots from for the types of projects identified in projects to cause or contribute to PM2.5
transportation projects involving a § 93.123(b)(1). violations.
significant number of diesel vehicles. As discussed in this preamble, Other commenters noted that existing
However, consideration of EPA’s diesel initially areas will be required to carry PM2.5 standards were in process of being
fuel and engine standards’ impact on out qualitative analyses until such time revised, or that the public health
background air quality will be as EPA announces in the Federal benefits of controlling hot-spots indicate
addressed as part of EPA’s future Register that quantitative analysis that EPA consider more health-
quantitative modeling guidance and requirements are in effect. The protective standards.
possibly in modeling used to support quantitative requirements will not be
put into effect until after EPA releases Response
categorical hot-spot findings as
described in Section VII. of today’s appropriate modeling guidance and the EPA did not finalize hot-spot analysis
notice. MOVES motor vehicle emission factor requirements that rely solely on an
model is released, as described further area’s SIP to identify the types of
Comment projects or project locations that require
in Section V. of today’s action. EPA and
One commenter mentioned that EPA DOT have developed guidance on how a hot-spot analysis. However, EPA does
has never required hot-spot analyses to complete qualitative hot-spot not believe it is appropriate to address
prior to SIP development for any other analyses during the period before the remainder of these comments
pollutants. The commenter stated that quantitative analyses requirements are concerning the pending review of the
significant CO and PM10 conformity put into effect. This guidance will be current PM2.5 standards at this time.
requirements were not effective until posted on the website provided in The commenters are correct that EPA
after inventory and air quality models Section I.B.2. of today’s notice. is in the process of reviewing the
were developed and tested, and SIPs Therefore, conformity implementers current PM2.5 air quality standards. As
were submitted. Agencies could build will have the tools and information required by consent decree, EPA
on SIP submissions and technical necessary in order to carry out hot-spot proposed revisions to the current PM2.5
analyses to perform hot-spot analyses. analyses. air quality standards on January 17,
For PM2.5, the commenter was 2006 (71 FR 2620). EPA is required to
concerned that planning agencies will Comment finalize this rulemaking by September
not have this technical information nor Some commenters also noted that 27, 2006. When reviewing an air quality
the necessary modeling tools and EPA acknowledged in its proposals that standard, EPA considers available
experience. the science surrounding the new PM2.5 health effects data. As such EPA is
Response standards is ongoing. These commenters considering any available health
cited preamble language from the information related to localized elevated
EPA disagrees with this comment. November 2003 proposal that air quality PM2.5 concentrations.
Hot-spot analyses have in the past been data indicates that PM2.5 is a regional EPA will consider the need to revise
required in areas before SIPs were pollutant like ozone, and therefore PM2.5 the conformity rule if appropriate after
developed. In fact, Clean Air Act section hot-spot analyses should not be required any changes to the PM2.5 standards are
176(c)(3)(B)(ii) requires that before CO until there is scientific evidence of finalized. However, today’s final rule
SIPs were developed, projects could localized concerns, especially in areas protects air quality and public health in
only be found to conform if they where exceedances are dominated by current PM2.5 nonattainment areas
eliminated violations or reduced the sources emitting secondary rather than according to the current standards. This
number or severity of violations. As a direct PM2.5 emissions. is accomplished by ensuring that
result, hot-spot modeling was required projects that are likely to cause new or
to determine whether or not violations Response
worsen existing violations with respect
were being eliminated or the severity or EPA disagrees with this comment. As to the currently applicable standards
number of violations were being noted in C. of this section, EPA believes undergo a hot-spot analysis before a
reduced. that directly emitted PM2.5 from project-level conformity determination
As part of today’s rulemaking, EPA transportation sources can be both a is made.
believes that scientific evidence regional and local air quality concern.
supports the conclusion that certain Based on an evaluation of more recent Comment
types of projects, particularly those studies, EPA has concluded that certain EPA invited commenters to submit
involving significant increases in diesel types of projects could be of local air studies or data regarding PM2.5 hot-spots
vehicle traffic and emissions, could quality concern and therefore has during the comment period for the
cause new violations or worsen existing finalized the rule to require hot-spot December 2004 supplemental proposal.
violations. Therefore, EPA could not analyses for all such projects at all Comments varied regarding whether or
finalize a regulation that solely relied on times. not transportation projects could impact
the SIP process to identify locations or the level and forms of the current PM2.5
types of projects that could cause new Comment
standards at the local level.
violations or worsen existing ones with One commenter believed that future
no hot-spot analyses being required changes to the current PM2.5 air quality Response
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before the submission of a SIP or no standards should be considered, EPA reviewed the information
analyses being required if the SIP did especially if EPA selects any option submitted by these commenters along
not address this issue. The final rule involving identifying hot-spot concerns with a large number of other studies as
does allow for the SIP to identify through the SIP. The commenter discussed above. Based on a review of
additional projects or project locations believed that future SIPs should be all of the data, EPA concluded that
of concern; however, in the face of completed with respect to more certain types of individual
available scientific evidence concerning protective PM2.5 standards. This transportation projects, particularly

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those which significantly increase diesel specifically require PM2.5 or PM10 hot- and (B). Since section 176(c)(3)(B)(ii)
vehicle traffic and emissions, could lead spot requirements for any projects. One does not affirmatively require emissions
to new violations or could worsen of these commenters further clarified reductions in PM2.5 or PM10 areas, EPA
existing violations of either the current that EPA has the discretion to specify believes that conformity determinations
annual or 24-hour form of the PM2.5 the form of analyses, based on would satisfy section 176(c)(1)(A) and
standards. Particularly relevant are the availability of information, feasibility of (B) without a hot-spot analysis if EPA
Indale and Burr studies cited in C. of analysis methods, and cost and benefit has demonstrated that specific types of
this section. The Indale study showed of performing analyses. projects will not adversely affect air
that facilities where diesel vehicles idle However, other commenters disagreed quality standards. EPA certainly did not
for prolonged periods, such as truck with this interpretation, and believed mean to imply in its proposals that we
stops or freight terminals, can cause that the Clean Air Act does not provide could arbitrarily disregard consideration
elevated PM2.5 concentrations in the EPA the discretion to exempt federally of PM2.5 and PM10 localized emissions
vicinity of the facility. funded or approved projects from impacts even if such impacts could
The Burr study showed that project-level conformity determinations, impact the air quality standards.
individual highway projects can also including PM2.5 and PM10 hot-spot EPA agrees that we do not have
result in significant changes in PM2.5. analyses. Rather than being superceded authority to waive the requirements of
Specifically, in the Burr study, a by section 176(c)(3)(B)(ii) which Clean Air Act section 176(c)(1)(A) and
highway bypass opened which removed establishes a special requirement to (B), rather we conclude that those
traffic from a roadway that runs through reduce CO violations, applicable only to requirements can be met in certain
the affected town. After the bypass CO areas before a SIP is approved, these circumstances without additional hot-
opened, PM2.5 concentrations decreased commenters believed that Clean Air Act spot analyses. Nevertheless, since we
in the town near the roadway where section 176(c)(1)(A) and (B) take have information that PM2.5 and PM10
traffic was removed, thereby precedence. Section 176(c)(1)(A) and (B) hot-spots are a concern for certain
documenting the impact that traffic had apply for all pollutants for which an projects, we are interpreting the statute
been having on local air quality. Based area is designated nonattainment to apply a specific hot-spot requirement
on this and other information in the pursuant to Clean Air Act section to those projects of air quality concern.
docket for the final rule, EPA concluded 107(d), and ‘‘Conformity to an
Comment
that certain projects could cause air implementation plan’’ means that the
quality concerns, and therefore, a hot- activity must satisfy these statutory Other commenters believed that EPA
spot analysis is required for these requirements ‘‘that such activities will should revise § 93.116(a) of the
projects. not cause or contribute to any new conformity rule so that proposed
violation of any standard in any area,’’ transportation projects can meet all
E. Responses to Other Comments Clean Air Act conformity requirements.
‘‘increase the frequency or severity of
EPA received several comments any existing violation of any standard in These commenters argued that EPA had
regarding other issues related to its any area’’ or ‘‘delay timely attainment.’’ not reflected in the proposed regulatory
statutory interpretations supporting Since EPA does not have discretion to text all of the requirements of Clean Air
proposed options. Please note that some waive these statutory requirements, Act section 176(c)(1)(A) and (B)(i)(iii)
of these comments were related to both these commenters believed that PM2.5 that transportation activities must
PM2.5 and PM10 hot-spot requirements, and PM10 hot-spot analyses should be contribute to reducing violations and
and for the sake of completeness, EPA required, consistent with the statute, for providing for expeditious attainment.
is including the entire comment and ‘‘any activity’’ before it may be According to commenters, the Clean Air
response in Section III. approved or funded by a Federal Act establishes an affirmative
agency. responsibility on transportation projects
Comment to help attain the standards, and as a
EPA noted in its previous proposals Response result, the conformity rule should be
that Clean Air Act section EPA agrees that the Clean Air Act sets clarified to prohibit conformity
176(c)(3)(B)(ii) only specifically requires the legal standard for what projects have determinations for projects that cause or
hot-spot analyses for projects in CO to meet before receiving Federal funding contribute to new or increased
nonattainment areas, and therefore, EPA or approval (i.e., that they cannot create violations after a statutory attainment
has discretion to decide if hot-spot or worsen violations of any standard or deadline, or that fail to eliminate
analyses are necessary to protect air delay attainment). EPA also agrees that transportation-related violations by an
quality in PM2.5 and PM10 Clean Air Act 176(c)(1)(A) and (B) set attainment date.
nonattainment and maintenance areas. this standard, rather than The commenters provided an example
EPA received comments concerning this 176(c)(3)(B)(ii). However, EPA also to illustrate their comments. In this
interpretation of the Agency’s statutory believes it has discretion to not require example, a CO hot-spot analysis
authority during the comment period analyses of localized impacts of projects determined that the number of current
following the November 2003 proposal if we have scientific evidence that PM2.5 CO violations would be eliminated by
and invited further comments in the and PM10 hot-spots are not a concern 2015, but that continued growth in
December 2004 supplemental proposal. with respect to the standards. That is, vehicle miles traveled (VMT) thereafter
EPA received several comments on even under the statutory standards of would cause at least one new violation
this particular legal argument. Four section 176(c)(1)(A) and (B), if EPA by 2020. The concentration for the
commenters believed that EPA determines through rulemaking that violating receptor represented a
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demonstrated in the December 2004 certain types of projects will not cause decrease in the concentration predicted
supplemental proposal that all proposed or contribute to violations of any at the same receptor under the no-build
options complied with Clean Air Act standard or delay attainment, EPA scenario. In the commenters’ opinion,
requirements and that EPA has concludes that we have the authority to the fact that the violation would be less
discretion in applying PM hot-spot determine through the conformity rule than current violations, or less than
requirements. These commenters argued that no additional analysis would be would be expected under the no-build
that the Clean Air Act does not necessary to meet section 176(c)(1)(A) scenario, is not enough to meet statutory

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requirements after an area has attained, FR 40031). Clean Air Act section which does not conform.’’ The
or after the attainment date. 176(c)(3)(A)(iii) is the only provision commenters believed that if projects are
that requires emissions reductions for found not to conform after the TIP has
Response
transportation plans and TIPs in higher been approved, there should be a
EPA disagrees with commenters and classifications of ozone and CO requirement to reconsider the TIP so
believes that § 93.116(a) of the nonattainment areas prior to having an that there is an opportunity to revisit the
conformity rule meets all statutory adequate or approved SIP. This regional allocation of available
requirements. Section 176(c)(1)(A) provision does not apply in the case of resources. If this opportunity is not
requires ‘‘conformity to an PM2.5 and PM10 nonattainment and provided, commenters were concerned
implementation plan’s purpose of maintenance areas. EPA has already that resources may not be available to
eliminating or reducing the severity and successfully defended this legal remedy or mitigate the impacts of a
number of violations of the national interpretation in EDF v. EPA, 82 F.3d particular project’s conformity
ambient air quality standards and 451 (DC Cir. 1996). determination.
achieving expeditious attainment of Furthermore, commenters are
such standards.’’ In general, EPA incorrect in interpreting section Response
believes that this statutory criterion is 176(c)(1)(B)(i) and (iii) as prohibiting EPA believes that MPOs and project
met if a transportation project is project approvals in cases where new sponsors are already fulfilling the Clean
consistent with the emissions violations are predicted for a year Air Act requirement to not ‘‘approv[e]
projections and control measures in the beyond an attainment year and a any project, program or plan which does
SIP. project’s implementation is resulting in not conform.’’ Furthermore, existing
The SIP process is the venue where lower PM2.5 and PM10 concentrations. transportation planning and conformity
state and local agencies decide on SIP The commenters indicated that in this requirements already provide the
control strategies for attaining the PM2.5 context, ‘‘any new violation’’ should be opportunity to reconsider the allocation
and PM10 standards. Section 93.116(a) construed to apply to a violation that is of resources in the event that a project
of the conformity rule allows all projects anticipated in the period after the area cannot meet project-level conformity
in PM2.5 and PM10 areas to meet section attains the standards. requirements.
176(c)(1)(A) because it requires all non- Sections 176(c)(1)(A) and (B) should
exempt projects to demonstrate that ‘‘no Section 93.122(a)(1) of the conformity
not be interpreted that ‘‘any new
new local violations will be created and rule requires that regional emissions
violation’’ should be construed to imply
the severity or number of existing analyses, which serve as the basis for
that an individual transportation project
violations will not be increased as a determining whether or not an area
must remedy any violation that is
result of the project.’’ This is conforms to an approved or adequate
projected to occur after the attainment
accomplished by requiring PM2.5 and date as a result of any emissions SIP motor vehicle emissions budget or
PM10 hot-spot analyses for projects of air sources. On the contrary, these passes an interim emissions test before
quality concern, with the presumption provisions only require air quality to not budgets are available, include all
that all other projects meet this be worsened by an individual project regionally significant projects expected
requirement. than what would have otherwise in the nonattainment or maintenance
EPA has previously addressed a occurred. Where the project itself is area and account for the VMT from non-
similar type of comment regarding the improving air quality concentrations regionally significant projects that are
applicability of section 176(c)(1)(A) and and thus violations from what they not explicitly modeled. Clearly, not all
commenters’ belief that this provision would have been without the project, of the expected projects planned for an
requires transportation activities to EPA concludes that the project is area would have received a project-level
specifically contribute emissions consistent with the SIP and meets the conformity determination prior to the
reductions towards attainment. applicable conformity requirements. time that they are included in the
Although it is true that transportation As a result, EPA believes that regional emissions analysis for a
projects need to be consistent with a conformity in the example offered by nonattainment or maintenance area
SIP’s purpose of reducing violations, the commenter meets statutory because project-level determinations are
this can be accomplished by simply not requirements. If the project’s not made until a project completes the
increasing violations; EPA concludes implementation resulted in lower future required National Environmental Policy
that the statute does not require an concentrations than would have Act (NEPA) process.
individual transportation project to otherwise occurred without the project, If during the NEPA process a project
reduce emissions by itself. Individual then statutory conformity requirements initially does not meet project-level hot-
transportation projects are not required are met. In fact, such a situation would spot requirements, there would be two
to reduce all transportation-related result in more than what is required possible outcomes. In most cases the
emissions; they need only prevent under the statute, since such a project project sponsor would attempt to
worsening air quality concentrations. So has actually reduced future violations mitigate project emissions that are
long as the air quality standards are not from what they would have been absent affecting concentrations either through
impacted by a new project, the project the project. changes in the project’s design or
will meet all applicable statutory through implementation of other
requirements by not causing or Comment measures that reduce concentrations
contributing to new violations, not Two commenters believed that within the geographic area impacted by
increasing the severity of existing transportation plans and TIPs cannot be the project. If a project sponsor was not
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violations, not interfering with timely found to conform if they include able to mitigate the impacts of such
attainment and interim progress, and projects that do not meet Clean Air Act project, the project could not move
being consistent with the overall requirements. The commenters stated forward because a project-level
purpose of the SIP to eliminate all that the conformity rule does not conformity determination could not be
violations. explain how MPOs will implement the made. Since transportation plans and
In the July 1, 2004 final rule, EPA Clean Air Act requirement to not TIPs are updated on a regular basis, the
disagreed with this similar comment (69 ‘‘approv[e] any project, program or plan MPO would be able to reallocate the

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funding from the project to other created, existing violations are not organizations are currently involved in
projects at that time. worsened, and timely attainment is not 8-hour ozone and/or PM2.5 SIP
delayed. A regional emissions analysis development, implementation of
Comment
for an area’s entire planned conformity requirements for these two
One commenter recommended that transportation system is not sufficient to air quality standards and MPOs are
EPA not finalize any PM2.5 or PM10 hot- ensure that individual projects meet the currently adapting to changes made by
spot requirements because doing so requirements of section 176(c)(1)(B) SAFETEA–LU to transportation
would be contrary to what Congress where projects could have a localized planning and conformity requirements.
originally intended. This commenter air quality impact. The final requirements for PM2.5 hot-
argued that Congress enacted the 1990 EPA agrees that regional emissions spot analyses meet Clean Air Act
Clean Air Act Amendments to focus on analyses are critical for ensuring that conformity requirements and minimize
the emissions impacts of long-range emissions from an area’s planned the resource burden on state and local
transportation plans and TIPs. The transportation system are consistent agencies by focusing these reviews on
commenter stated that the key with emissions estimates contained in only those projects that are likely to
conformity test is whether emissions the area’s SIP, so that the area may meet adversely impact air quality rather than
from the long-range transportation plan relevant regional air quality goals such requiring analyses for every non-exempt
or TIP, in their entirety, stay within the as attainment or reasonable further project in PM2.5 nonattainment and
SIP’s motor vehicle emissions budget, progress. However, based on a complete maintenance areas.
and the impact of any single project on reading of Clean Air Act section 176(c), In addition, EPA has already
plan/TIP area-wide emissions could be it is clear that Congress intended considered the additional burden
minimal. Meeting the SIP’s budget and transportation conformity to apply to associated with implementing a PM2.5
attaining the air quality standards on a transportation projects as well as plans hot-spot requirement in the ICR that has
county and regional level, the and TIPs. Thus, hot-spot analyses are been approved for implementing
commenter argued, is the primary required as well where localized transportation conformity for the 8-hour
mechanism for an area reaching impacts could occur. ozone and PM2.5 standards. EPA has
attainment, rather than a momentary Finally, the commenter states that the already considered and responded to all
increase in the standards at a specific risk of possible legal challenges and comments that were made for this ICR,
project’s location. The commenter delays in streamlining project which has been approved and assigned
believed that projects can be found to development would not be a productive OMB control number 2060–0561. In
conform without PM hot-spot analyses use of resources. But EPA cannot ignore fact, this ICR actually overestimated the
as long as such projects are part of a Clean Air Act conformity requirements burden associated with implementing a
conforming plan and TIP. The risk of simply because there is a risk that some PM2.5 hot-spot requirement as compared
possible legal challenges and delays in projects may be delayed due to potential to this final rule’s requirements. For
streamlining project development lawsuits. Clean Air Act section example, the ICR assumed that a PM2.5
would not be a productive use of 176(c)(1)(B) clearly requires that it must hot-spot analysis would be required for
resources, the commenter also argued. be shown that individual projects do not all non-exempt federally funded or
Response adversely impact air quality. In this approved projects in PM2.5
final rule, EPA addresses both the Clean nonattainment or maintenance areas,
EPA disagrees with these comments. Air Act’s requirements for project-level whereas this final rule only requires
Clean Air Act section 176(c)(2) does conformity determinations and concerns such analyses for projects of air quality
require that in order for a project to be over limited resources. To that end, the concern.
found to conform it must come from a final rule requires hot-spot analyses for
conforming plan and TIP and/or its F. When Are the PM2.5 Hot-Spot
only those projects that have the Requirements Effective?
emissions must have been included in likelihood of adversely impacting air
the current conformity determination. quality rather than requiring an analysis Clean Air Act section 176(c)(6) and 40
However, this is not the sole statutory for each non-exempt project, including CFR 93.102(d) provide a one-year grace
requirement that must be satisfied in those that EPA concludes would not period before conformity applies in
order for a project-level conformity represent an air quality concern. areas newly designated nonattainment
determination to be made. for a new standard. On January 5, 2005
Transportation projects must also satisfy Comment (70 FR 943), EPA designated areas as
the requirements of section 176(c)(1)(B). A few commenters urged EPA to attainment and nonattainment for the
Section 176(c)(1) is written very broadly consider information that they had PM2.5 standards. These designations
to apply to any Federal activity, and previously submitted on the costs of became effective on April 5, 2005. As a
specifically applies to any project as performing conformity analyses for the result, conformity for the PM2.5
well as any transportation plan or TIP. new standards in response to EPA’s standards will apply to newly
Specifically, projects can only be proposed November 25, 2003, designated PM2.5 nonattainment areas
found to conform if it can be shown that Information Collection Request (ICR) on April 5, 2006. Starting on that date,
they do not cause or contribute to new and final January 5, 2004, ICR (69 FR PM2.5 hot-spot requirements for projects
violations, increase the frequency or 336). of air quality concern as detailed by this
severity of existing violations, or delay rulemaking must be met prior to any
timely attainment of the relevant air Response new Federal approvals for such projects.
quality standard. EPA has determined EPA believes that conformity Therefore, EPA finds good cause to
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that certain types of transportation procedures must first meet the Clean Air determine that the final rule is effective
projects may result in localized PM2.5 Act requirements contained in section on April 5, 2006. EPA normally issues
violations. Therefore, in order to satisfy 176(c) and that these procedures should final regulations with at least a 30-day
the requirements of Clean Air Act be sensitive to the resource constraints effective date after Federal Register
section 176(c)(1)(B), a hot-spot analysis of conformity implementers. EPA publication. However, state and local
is required for such projects in order to recognizes that both air quality agencies implementers are required by the Clean
ensure that new violations are not and metropolitan planning Air Act to meet conformity

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12484 Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Rules and Regulations

requirements in PM2.5 nonattainment To that end, the following options the December 2004 supplemental
areas for transportation plans, TIPs, and were proposed for PM10 hot-spot proposal that the majority of PM10 areas
non-exempt projects as of April 5, 2006, requirements prior to the submission of already had an attainment
the end of the PM2.5 grace period. And a PM10 SIP: demonstration or a maintenance plan in
since today’s final rule describes how to • Option 1: Retain the existing place; therefore, SIP revisions may be
meet statutory requirements for projects conformity rule’s PM10 hot-spot analysis necessary under Option B to identify
in PM2.5 areas, it is imperative that requirements in all PM10 areas; types of locations where quantitative
conformity implementers be able to • Option 2: Apply the existing analyses must be performed.
legally use the requirements in this final conformity rule’s PM10 hot-spot analysis For all relevant options, EPA
rule. Absent this determination of good requirements, unless the EPA Regional proposed to rely on the existing
cause, EPA would be placing conformity Administrator or state air agency finds conformity rule provision in
implementers in the unfortunate that localized PM10 violations are not a § 93.123(b)(4) that does not require any
position of waiting until a 30-day concern for a given PM10 area; quantitative PM10 hot-spot analyses
effective date before conformity rule • Option 3: Only apply the existing until EPA releases quantitative
requirements could be used to proceed conformity rule’s PM10 hot-spot analysis modeling guidance and announces in
with any short-term project approvals. requirements, if the EPA Regional the Federal Register that quantitative
For these reasons, EPA believes it has Administrator or state air agency finds modeling requirements are in effect.
good cause to expedite the effective date that localized PM10 violations are a EPA also proposed to retain the existing
of this final rule in PM2.5 nonattainment concern for a given PM10 area; or conformity rule’s flexibility in
areas. • Option 4: Delete the current PM10 § 93.123(b)(3) for FTA to make
hot-spot analysis requirements from the categorical hot-spot findings to
IV. PM10 Hot-Spot Analyses conformity rule and impose no hot-spot streamline PM10 hot-spot analyses as
A. Background and Proposed Options analysis requirements. appropriate.
EPA acknowledged in the December EPA requested comments on all of the
EPA proposed to revisit existing PM10 2004 supplemental proposal that the proposed options, and invited
hot-spot requirements in parallel with above proposed options may impact commenters to submit any relevant data
considering new PM2.5 hot-spot only a small number of PM10 areas, or other information, including whether
requirements. As discussed in Section since most PM10 areas already have state and local agencies would have
III., EPA originally established a PM10 submitted or approved PM10 SIPs. EPA information available to implement the
hot-spot requirement in the November also requested information from proposed options. The December 2004
24, 1993 conformity rule, which commenters about whether sufficient supplemental proposal included
required some type of hot-spot local information was available to make proposed regulatory text that combined
analysis—quantitative or qualitative— findings under Options 2 and 3. various PM2.5 and PM10 hot-spot options
for all FHWA and FTA funded or EPA proposed three PM10 hot-spot as illustrative examples, and EPA noted
approved non-exempt projects in PM10 options for project-level conformity that any combination of the proposed
nonattainment and maintenance areas determinations that occur after PM10 SIP PM2.5 or PM10 hot-spot options could be
(40 CFR 93.116 and 93.123). These submission: finalized. See the November 2003
requirements applied for all project- • Option A: Retain the existing proposal (68 FR 62713–62714) and
level conformity determinations that conformity rule’s PM10 hot-spot analysis December 2004 supplemental proposal
occurred before and after a PM10 SIP is requirements for FHWA/FTA non- (69 FR 72149–72153) for more
submitted. exempt projects in all PM10 areas with information on the proposed options.
EPA established the PM10 hot-spot one minor addition, as described below;
requirements so that more rigorous • Option B: Only require quantitative B. Description of Final Rule
quantitative hot-spot analyses would PM10 hot-spot analyses for projects at Consistent with PM2.5 hot-spot
only be required for projects that have those types of locations that the PM10 requirements, EPA is finalizing a hybrid
the potential to impact the PM10 air SIP for a given area identifies as a approach that retains aspects of the
quality standards (i.e., ‘‘projects of air localized PM10 air quality concern. No previous PM10 hot-spot requirements
quality concern’’), once modeling quantitative or qualitative analyses while providing flexibility. The final
guidance was released. More would be required for projects in other rule requires quantitative PM10 hot-spot
streamlined, qualitative hot-spot types of locations, or in PM10 areas analyses only for projects of air quality
analyses were required for all other non- where the SIP does not identify types of concern, and qualitative hot-spot
exempt projects, and for all non-exempt locations as a localized PM10 air quality analyses would be done for these
projects until EPA’s modeling guidance concern; or projects before EPA releases its future
was released. All hot-spot analyses were • Option C: Do not apply any PM10 modeling guidance and announces that
intended to demonstrate that a hot-spot analysis requirements for any quantitative PM10 hot-spot analyses are
transportation project meets Clean Air PM10 area and delete the current PM10 required under § 93.123(b)(4). EPA
Act conformity requirements. requirements from the conformity rule. specifies in § 93.123(b)(1) that projects
EPA proposed several options to Under Option A, EPA proposed to of air quality concern are highway and
retain, revise, or delete existing PM10 add a new criterion that would require transit projects that involve significant
hot-spot analysis requirements for that quantitative analyses also be levels of diesel vehicle traffic, and any
project-level conformity determinations performed at those types of project other project that is identified in the
in PM10 nonattainment and locations that the PM10 SIP identifies as PM10 SIP as a localized concern.
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maintenance areas. These options were a PM10 hot-spot concern. Neither Option Today’s final rule does not require
proposed to apply during the time B nor C would require some type of hot- any hot-spot analysis—qualitative or
periods before and after a PM10 SIP is spot analysis for all projects in the PM10 quantitative—for all other projects that
submitted. EPA is repeating the nonattainment or maintenance area, as are not listed in § 93.123(b)(1) as an air
previously proposed options to assist in had been required under the previous quality concern. These projects are
discussing the final rule in today’s conformity rule’s PM10 hot-spot presumed to meet Clean Air Act
action. requirements. In addition, EPA noted in requirements and 40 CFR 93.116

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without any explicit hot-spot analysis, posted on the Web site provided in apply based on whether or not a SIP has
because EPA concludes based upon the Section I.B.2. of today’s notice. Until been submitted. Through previous
available evidence that such projects this new guidance is available, FHWA’s rulemaking, EPA has determined that
would not have an impact on local air existing September 12, 2001 guidance, the exempt projects listed in 40 CFR
quality. State and local project sponsors ‘‘Guidance for Qualitative Project-Level 93.126 have met section 176(c)(1)(B)
should briefly document in their ‘Hot-Spot’ Analysis in PM10 without further hot-spot analyses.
conformity documentation for such Nonattainment and Maintenance Through today’s action, EPA is
projects that an explicit PM10 hot-spot Areas,’’ can be used. See Section VI. of determining that projects not identified
analysis was not completed because this final rule for more information in the rule as projects of air quality
Clean Air Act and 40 CFR 93.116 regarding the timing of EPA’s future concern have also met section
requirements were met without an quantitative hot-spot modeling guidance 176(c)(1)(B) without further hot-spot
explicit PM10 hot-spot analysis. and application of quantitative analyses. The final rule requires that all
This final rule requires PM10 hot-spot requirements. projects of air quality concern be
analyses for projects of air quality Finally, EPA notes that its future analyzed for localized impacts,
concern in PM10 nonattainment and quantitative modeling guidance will regardless of whether or not the PM10
maintenance areas at all times—both address how the current 24-hour and SIP is submitted.
before and after a PM10 SIP is submitted. annual PM10 air quality standards are to As indicated in Section III. of today’s
These projects are anticipated to have be considered in quantitative hot-spot notice and above, EPA believes that
the potential to increase local PM10 analyses. This future guidance will be Clean Air Act section 176(c)(1)(B) is the
concentrations, and as a result, PM10 consistent with how potential impacts primary legal standard that applies for
hot-spot analyses are needed to ensure on the PM10 standards have historically this final rule. This statutory provision
that the local air quality impacts of such been considered for SIP planning, requires that federally funded and
projects are considered prior to monitoring, and other applicable approved projects not create or worsen
receiving federal funding or approval. requirements. air quality violations or delay timely
Rather than finalize the proposed and attainment. Also, since projects of air
previous rule’s criteria for PM10 C. Rationale quality concern have the potential to
analyses, EPA is finalizing more specific EPA considered the following factors impact local PM10 air quality, then a
criteria about the types of projects that in developing the final rule’s PM10 hot- PM10 hot-spot requirement is warranted
require such analyses based on our spot requirements: for such projects in today’s final rule at
November 2003 and December 2004 • The Clean Air Act conformity all times.
proposals and comments received. See requirements for individual EPA also continues to believe it has
Section V. of this notice for further transportation projects in PM10 areas; discretion to establish the level of PM10
details regarding the regulatory criteria • The current scientific hot-spot analysis that is necessary to
for projects of air quality concern and understanding of PM10 hot-spots and meet statutory requirements. Therefore,
more information on the general public health effects; EPA is retaining its previous rule’s
requirements for performing hot-spot • The feasibility of implementing approach for requiring quantitative
analyses. See Section IX. of today’s proposed options; and PM10 hot-spot analyses only for projects
action for further information regarding • The impact of proposed options on of air quality concern once EPA’s
when today’s change in PM10 state and local resources. modeling guidance is available. EPA is
requirements would apply in PM10 areas EPA stated in its proposals that it was revising some of the existing rule’s
with and without approved conformity important to re-evaluate the need for criteria for when PM10 analyses are
SIPs. hot-spot analyses for PM10 required based on scientific information
In addition, the final rule does not nonattainment and maintenance areas, currently available on PM10 hot-spots,
substantively change the existing in conjunction with similar options and the Agency’s experience in
conformity rule flexibility that allows considered for PM2.5 hot-spot implementing CO and PM10 hot-spot
DOT, in consultation with EPA, to make requirements. The following paragraphs requirements since 1993 for what level
categorical hot-spot findings that would outline how EPA considered the above of analysis is appropriate and
further streamline quantitative hot-spot factors in the final rule. worthwhile. The final rule’s criteria for
analysis requirements in appropriate When the conformity rule was what projects require hot-spot analyses
cases, as described further in Section promulgated in 1993, EPA interpreted will ensure that all projects that have
VII. Clean Air Act section 176(c)(1)(B) to the potential to impact the air quality
This final rule also makes no change require PM10 hot-spot analyses because standards will be analyzed before they
in how qualitative PM10 hot-spot of the requirement to ensure that receive Federal funding or approval.
analyses are currently performed for transportation activities do not create EPA revised its proposed and previous
projects of air quality concern, since the new violations, worsen existing rule’s criteria for what projects of air
previous conformity rule has always violations or delay timely attainment of quality concern require PM10 analyses
required a qualitative PM10 hot-spot the air quality standard (January 11, based on existing scientific information
analysis for all non-exempt projects in 1993, 58 FR 3776–3777). EPA continues and comments received, as discussed
PM10 nonattainment and maintenance to believe that this statutory provision is further in this section and in Section V.
areas (under the previous rule’s the applicable standard that applies for Furthermore, as stated in Section III.,
§ 93.123(b)(2)). As stated in Section III., considering a final PM10 hot-spot EPA is changing its precedent to date in
quantitative PM10 hot-spot analyses are requirement, and that the final rule no longer requiring qualitative hot-spot
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not required for projects of air quality meets this legal standard. analyses for projects that are not of
concern at this time since EPA has not Furthermore, the Clean Air Act localized air quality concern. As stated
yet required quantitative PM10 hot-spot requires that section 176(c)(1)(B) be met previously, since the original 1993
analyses under § 93.123(b)(4). for all FHWA or FTA funded or conformity rule, some type of hot-spot
Qualitative PM10 hot-spot analyses approved projects, except for traffic analysis has been required to meet
should be completed according to joint signal synchronization projects; it does statutory requirements for all non-
EPA and DOT guidance, which will be not distinguish that these requirements exempt FHWA and FTA projects in

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PM10 nonattainment and maintenance standards are expected to significantly 176(c)(1)(B) requirements in PM10 areas.
areas. However, based on the history of impact the amount of particulate These commenters believed that
implementation of this provision to emissions that will be emitted by new existing science and experience have
date, EPA now believes that these diesel vehicles, and consequently may shown that transportation projects can
projects do not represent a localized air impact the potential for PM10 impact local PM10 air quality, and
quality concern and can be presumed to transportation-related hot-spots. We therefore, previous PM10 hot-spot
meet Clean Air Act requirements and 40 considered the time frame over which requirements should be retained to meet
CFR 93.116 without any explicit hot- these vehicle standards would phase in. statutory requirements.
spot analysis because EPA concludes According to the latest Vehicle These commenters generally did not
based on available data and experience Inventory and Use Survey from the support Options 4 and C since they
that these projects will not have an Census Bureau, in 2002, vehicles three required no PM10 hot-spot analyses, and
impact on local air quality. years of age and younger constituted they believed that these options were
The Agency now believes that only 32.3% of U.S. truck fleet. If the inconsistent with current scientific
requiring qualitative hot-spot analyses same age distribution holds for 2010, evidence regarding the existence of
for projects that are not a concern is also only about one third of trucks on the PM10 hot-spots. A few commenters
not a beneficial use of Federal, state, or road will meet the heavy-duty engine indicated that these options also do not
local resources. This conclusion is emissions standards for 2007 and 2010. provide the same health protections as
based in part on a recent review by EPA In this scenario, most trucks on the road other options. Similarly, another
and DOT field offices of project-level will still be capable of producing commenter stated that it was not in the
conformity determinations involving elevated concentrations. As such, EPA’s public’s best interest to eliminate all
historical qualitative hot-spot analyses new emission standards do not analyses of potential PM10 hot-spots,
in PM10 areas. See Section III.C. for eliminate the need for considering PM10 especially due to the commenter’s
further information on EPA and DOT’s hot-spots from transportation projects experience with respect to the 24-hour
review of PM10 qualitative hot-spot involving a significant number of diesel PM10 standard. Another commenter
analyses and why EPA concludes that vehicles. However, consideration of argued that hot-spot requirements
they are no longer necessary to meet EPA’s diesel fuel and engine standards’ should not be deleted because of the
statutory requirements for projects that impact on background air quality will known relationship between PM10
are not an air quality concern. be addressed as part of EPA’s future nonattainment areas and transportation-
However, EPA continues to believe quantitative modeling guidance and related sources.
that projects of air quality concern have possibly in modeling used to support Some of these commenters
the potential to impact PM10 air quality categorical hot-spot findings as acknowledged that in practice, proposed
standards and thus require explicit hot- described in Section VII. of today’s options prior to a PM10 SIP’s submission
spot analyses to determine if any such notice. would not impact most areas, but
impacts will result in specific cases, As described further below, EPA also believed if any projects are approved for
based on existing scientific information considered the feasibility and resource areas that have yet to submit a PM10 SIP,
and the Agency’s historical implications of implementing the those projects can only meet statutory
understanding of PM10 hot-spots. As proposed options and the final rule’s conformity requirements through a PM10
stated in the December 2004 requirements to meet statutory hot-spot analysis. One commenter
supplemental proposal, EPA continues requirements before and after PM10 SIP believed that PM10 areas that still do not
to believe it is appropriate to focus submission. have SIPs need to complete PM10 hot-
conformity resources where air quality spot analyses because these SIPs are not
issues are significant and thus need to D. Response to Comments reliable in protecting the public health
be in place to address Clean Air Act EPA received comments from state of their citizens. Another commenter
requirements. and local transportation and air quality argued that consistency with existing
In developing this final rule, EPA agencies, environmental groups, PM10 hot-spot requirements and
considered information that was transportation advocates, and the procedures for conformity provides
available when the original 1993 general public with respect to the better support during environmental
conformity rule was developed, as well proposed options for PM10 areas. Fewer reviews from a NEPA and/or state
as new information that was submitted comments were submitted for PM10 environmental process perspective
through the rulemaking process or has options as compared to PM2.5 options, when determining local or project-level
otherwise become available. For and preferences were not as consistent impacts.
example, in 1993, EPA stated that direct for similar options before and after PM10 Still other commenters supported
PM10 emissions would be capable of SIPs are submitted, as compared to options that would apply no PM10 hot-
causing violations in conditions of preferences for PM2.5 options. spot requirements (i.e., Options 4 and
unusually heavy diesel truck/bus traffic C), and some even preferred that EPA
and limited dispersion, such as street Comment delay issuing a final rule until certain
canyons (January 11, 1993, 58 FR 3780). Several commenters supported issues are addressed. Some of these
EPA has also acknowledged that the role finalizing PM10 requirements that were commenters believed that there was
of re-entrained road dust could be a generally consistent with the previous insufficient evidence regarding the
major factor in contributing to potential conformity rule’s provisions for PM10 existence of PM10 hot-spots. Some
PM10 hot-spots, especially in PM10 areas areas (i.e., Options 1 and A) because commenters also argued that PM10 hot-
where road dust is a major component they believed these options were most spot requirements are not required by
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of the PM10 motor vehicle emissions protective of public health. Commenters the Clean Air Act, and therefore, an
inventory. also supported these options because option that required PM10 hot-spot
EPA also considered in the final rule they would promote consistency with analyses should never be finalized.
the impact of our new diesel fuel and EPA’s past legal interpretations These commenters were also opposed
engine standards (January 18, 2001, 66 regarding how federally funded and to requiring existing PM10 hot-spot
FR 5002) for the necessity of applying approved transportation projects have requirements (under Options 1 and A)
any PM10 hot-spot requirement. Such historically met Clean Air Act section because they believed these options

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would require extensive analyses project would be contrary to the Clean PM10 areas not meeting statutory
without comparable environmental Air Act’s conformity requirements. requirements, since no hot-spot
benefits and flexibility. These Thus, EPA concludes that hot-spot requirement would exist (because no
commenters believed it was analyses are necessary for projects of air current PM10 SIPs were designed to
unnecessary to require hot-spot analyses quality concern. Furthermore, EPA does implement such a requirement).
for every project in every PM10 area. not agree that it is appropriate to delay Some commenters believed that
One of these commenters stated that finalizing a change to the PM10 hot-spot Option B is also flawed because a state
they had never identified a requirements, for the reasons cited has no obligation under the Clean Air
transportation project that had a above. EPA has addressed state and Act or conformity regulations to identify
negative impact on PM10 concentrations. local resource concerns by eliminating project locations of air quality concern
This commenter noted that PM10 qualitative hot-spot analyses for in its SIP. Commenters argued that if
transportation projects usually reduce projects that are not an air quality states decline to designate such areas in
PM10 emissions because most projects concern. their SIPs—whether from the lack of
involve paving unpaved roads and/or meaningful evidence of problems or out
shoulders or adding curbs or gutters. Comment of a desire to avoid the application of
The commenter noted that in most EPA also proposed Option B that conformity requirements—statutory
mountainous western states, relied solely on the SIP to identify requirements would not be met. If such
transportation-related PM10 problems projects or project locations of potential a case occurred, this commenter was
result from highway maintenance PM10 hot-spot concern. Under this concerned that there would be no legal
combined with winter air inversions option, quantitative PM10 hot-spot mechanism to challenge a SIP or enforce
rather than highway improvement analyses would only be required at statutory conformity requirements.
projects. This commenter stated that types of project locations identified as a A commenter who did not support
these problems are addressed in the SIP localized air quality concern in a given Option B as proposed suggested a
through requirements for street PM10 SIP. No quantitative or qualitative hybrid option where PM10 areas could
sweeping, flushing and use of chemical analyses would be required for projects rely on Option B if the SIP addressed
de-icers, all of which reduce road dust. in other types of locations, or in PM10 the potential for transportation-related
Finally the commenter indicated that areas where the current or future SIP hot-spots, but if this was not the case,
eliminating PM10 hot-spot requirements does not identify types of locations as a the existing PM10 requirements under
is preferable because state and local localized PM10 air quality concern. Option A would apply.
agencies can then focus their limited Furthermore, no hot-spot analyses Some commenters also provided
resources on other transportation and would be completed for any projects information and thoughts on developing
air quality efforts. prior to PM10 SIP submission, for the PM10 SIPs to implement Option B. One
limited number of PM10 areas without commenter believed that revising
Response SIPs. existing SIPs to address transportation-
As described above, EPA believes that Several commenters supported related PM10 hot-spots would allow
today’s final rule is the appropriate way Option B because they believed that the state and local agencies to focus their
for projects of air quality concern to SIP process could assist in identifying resources on meaningful analyses. Some
meet Clean Air Act section 176(c)(1)(B) what projects are of concern in a given commenters believed that available
requirements in all PM10 nonattainment area and what level of PM10 hot-spot local information and resources to
and maintenance areas. EPA agrees that analysis is appropriate. Commenters develop SIPs to specify project locations
applying a hot-spot requirement prior to believed that Option B would allow of concern will vary among PM10 areas.
a PM10 SIP being submitted is essential each PM10 area to target potential PM10 Still another commenter was concerned
for meeting statutory requirements. EPA hot-spots, protect public health, and that Option B could be problematic if
agrees that today’s final rule is provide necessary flexibility. A few project locations are not identified
consistent with its past legal other commenters indicated support for during SIP development, but are
interpretations for applying hot-spot Option B because they did not agree that subsequently determined through the
requirements for all projects of air there was evidence that transportation consultation process to have a hot-spot
quality concern. projects are a PM10 hot-spot concern. concern. Other commenters believed
EPA disagrees with commenters who Two other commenters even believed that the consultation process could be
argued that there is insufficient that this option should apply only once used to identify new projects of
information or limited value in applying a SIP is approved, rather than when a concern, rather than revise existing
a PM10 hot-spot requirement. Although SIP is submitted, unless EPA were SIPs.
some commenters noted limited value establishing a process similar to its Finally, a few commenters went on to
in performing qualitative PM10 hot-spot adequacy process for submitted SIPs state that EPA’s proposed options that
analyses to date, EPA believes that this with motor vehicle emissions budgets allow states to determine which projects
information further supports its that involves sufficient notice and would require hot-spot analyses conflict
decision to eliminate qualitative PM10 public review. with a previous court decision.
hot-spot analyses for projects that are Other commenters opposed Option B However, the commenters did not
not an air quality concern, rather than because they believed it was not elaborate on what court decision was
eliminate all PM10 hot-spot feasible, and therefore, would not meet involved, or how Option B contradicted
requirements. statutory requirements or protect public this judicial decision.
Based on our review of scientific health. Commenters noted that most
Response
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studies and information gathered during PM10 areas already have SIPs that were
the rulemaking process, as described developed before EPA’s proposed EPA is not finalizing Option B
above, EPA believes that projects of air options, without consideration for because this option will not ensure that
quality concern have the potential to implementing a conformity hot-spot all federally funded and approved
impact PM10 concentrations, and as a requirement. If finalized, the transportation projects in PM10 areas are
result, the PM10 standards. Such commenters believed that Option B consistent with Clean Air Act section
impacts on communities surrounding a would result in new projects in most 176(c)(1)(B). As described by

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commenters, most PM10 areas already for ‘‘* * * any project * * * which be no consideration of the public health
have SIPs that were established prior to does not conform to an implementation impacts of projects currently under
EPA’s proposed conformity options, and plan approved or promulgated under development.
therefore, were not designed to section 7410 of this title.’’
Response
implement Option B. Due to limited
Response Today’s final rule retains
resources, it is doubtful that areas will
revise SIPs solely to address PM10 hot- EPA agrees that it is not appropriate § 93.123(b)(4) of the existing conformity
spots, and even so, it is unclear whether to defer project-level hot-spot analyses rule that requires quantitative PM10 hot-
SIPs could be developed with sufficient until PM10 SIPs are developed, and thus spot analyses once EPA announces in
detail to consider the local impacts of has not chosen these proposed options the Federal Register that quantitative
current and future projects. Based on all in the final rule. See Section III. for analysis requirements are in effect. EPA
of these considerations and the more on EPA’s response to a similar has not yet made such an
comments received, EPA does not comment raised for PM2.5 hot-spot announcement because the Agency
believe that it is realistic or practical to analyses. believes that appropriate motor vehicle
expect that Option B can be sufficiently emissions factor models are not yet
Comment available for localized analyses, and
implemented to meet statutory
requirements in all PM10 areas. Further Some commenters were concerned EPA is in the initial stages of developing
discussion on a similar option for PM2.5 that finalizing options that required quantitative hot-spot modeling guidance
hot-spot analyses can be found in PM10 hot-spot analyses for all projects to implement today’s rule. Please see
Section III. of today’s action. (Options 1 and A) could result in an Section VI. of today’s final rule for
inefficient use of state and local further information on the timing of
Comment resources, and therefore, deleting or quantitative hot-spot requirements.
A few commenters supported Options defining PM10 hot-spot requirements However, pending development of such
2 or 3 which would apply existing PM10 through the SIP process was a more guidance, the final rule does require
hot-spot requirements depending on appropriate use of resources. qualitative PM10 hot-spot analyses for
whether or not new or worsened local However, as stated above, other all projects of air quality concern, so
PM10 violations could occur in a given commenters believed that having no or consideration of the public health
area prior to PM10 SIP submission. For only limited PM10 hot-spot analyses did impacts of proposed projects of air
example, one commenter believed not meet statutory requirements or quality concern will not be delayed.
Option 3—which would require PM10 protect public health. Furthermore, they
hot-spot analyses if EPA or the state air believed that implementing the previous Comment
agency found there to be a hot-spot PM10 hot-spot requirements has not Some commenters stated that PM10
concern in a given area—would provide been burdensome, so continuing to do hot-spot requirements should be
the ability to require analyses for certain this under the final rule would be suspended until (1) it can be
projects. This commenter highlighted acceptable. demonstrated scientifically that re-
his area’s experience that two types of entrained dust from induced traffic
Response creates PM10 hot-spots, and (2) there are
projects listed in 40 CFR 93.126 (i.e.,
weight inspection stations and bus EPA believes that the final rule will more reliable techniques to quantify re-
terminals) may be a PM10 hot-spot ensure that state and local resources are entrained PM10 created by induced
concern due to a high concentration of used in an efficient manner, since PM10 traffic on paved roads.
diesel vehicles. hot-spot analyses will only be required Another commenter stated that it is
for projects of air quality concern. reasonable to expect that some projects
Response Eliminating qualitative PM10 hot-spot would create localized impacts,
EPA is not finalizing approaches such analyses for projects that are not an air especially due to the large amounts of
as Options 2 or 3 because it is unclear quality concern will significantly reduce re-entrained road dust generated from
if they can be implemented in a manner any resource challenges in roadways. This commenter believed that
that meets statutory requirements. See implementing this final rule, since most EPA should develop criteria and
Section III. of today’s action for further projects should not be considered an air guidance under which EPA, state or
rationale regarding why such options quality concern. As noted above, EPA local air pollution control agencies
are not being finalized. However, concludes that this does comply with would have the option of requiring
today’s final rule provides some of the statutory requirements. EPA will project-level PM10 hot-spot analyses.
flexibility intended by these options, continue to work with DOT to assist Another commenter went on to state
i.e., targeting PM10 hot-spot analyses for state and local agencies in that, while re-entrained road dust
projects that have the potential to implementing the final rule’s emissions can be a greater contributor to
impact PM10 air quality. requirements. PM10 concentrations than tailpipe
emissions, most projects are done on
Comment Comment
paved roads where re-entrained road
A few commenters argued that EPA Other commenters were concerned dust is less of an issue compared to
may not lawfully finalize options that that EPA has yet to issue PM10 unpaved roads.
defer PM10 hot-spot analyses until after quantitative hot-spot analysis guidance
a SIP is submitted because such delays and methods. Some commenters Response
are inconsistent with Clean Air Act supported doing little or no PM10 hot- EPA believes based on the available
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requirements. Commenters believed that spot analyses, in part because credible evidence included in the docket for this
Clean Air Act section 176(c)(1) does not tools are not currently available. rulemaking that certain transportation
require that a SIP for a given standard However, other commenters believed projects have the potential to impact
be established before conformity that all of the proposed options were PM10 air quality standards, and
requirements for that standard apply. insufficient since they would delay therefore, a PM10 hot-spot analysis for
Section 176(c)(1) states that Federal and quantitative PM10 hot-spot analyses for these projects is needed to meet
MPO approval actions cannot be done years, and in the interim, there would statutory requirements. Furthermore,

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sufficient scientific information exists to communities. The commenter believed noted in Section III., this is likely to be
support the final rule’s requirements, the existing PM10 hot-spot requirements only a small percentage of projects in
and EPA will consider whether resulted in a one-size-fits-all approach remote or non-urbanized areas.
additional information is warranted for that is not appropriate for its PM10
Comment
modeling road dust in its future PM2.5 nonattainment and maintenance areas.
and PM10 quantitative hot-spot A few commenters argued that EPA’s
Response
modeling guidance. standards for low sulfur diesel fuels in
EPA believes that the final rule’s PM10 2006 and heavy-duty engines in 2007
Comment hot-spot requirements along with the will negate any need for PM10 hot-spot
Some commenters believed that EPA conformity rule’s existing provisions analyses. The commenters stated that
could improve on its proposed options concerning areas with insignificant EPA should analyze the impacts of these
in the final rule, such as adopting a emissions serve to protect air quality federal standards on local air quality
screening method or emissions and public health in PM10 before the rule is finalized.
threshold that would help define what nonattainment and maintenance areas.
projects require quantitative hot-spot First, today’s final hot-spot rule targets Response
analyses. PM10 hot-spot analyses only for projects As described in C. of this section, EPA
that are likely to cause or contribute to has considered the impacts of the new
Response new or worsened PM10 violations. diesel standards, and has determined
EPA believes that today’s action Specifically, the rule targets hot-spot that PM10 hot-spot analyses are still
addresses this comment by further analyses on those types of projects that warranted for projects of air quality
refining what projects are an air quality result in significant increases in diesel concern. However, consideration of
concern and need PM10 hot-spot vehicle traffic and emissions, which is
EPA’s diesel fuel and engine standards’
analyses. See Section V. for further likely to be a small subset of projects in
impact on background air quality will
information on the criteria for projects many areas.
Second, 40 CFR 93.109(k) already be addressed as part of EPA’s future
of air quality concern finalized in
allows PM10 areas with insignificant quantitative modeling guidance and
today’s action. The elimination of
regional motor vehicle emissions to possibly in modeling used to support
qualitative hot-spot analyses for projects
demonstrate, when appropriate, that categorical hot-spot findings as
not of concern in part addresses the
individual projects will not create new described in Section VII. of today’s
motivation for a screening method or
localized violations or make existing notice.
emissions threshold—e.g., to focus more
rigorous quantitative analyses on violations worse. Projects in such cases Comment
projects of air quality concern. would not require PM10 hot-spot
analyses. Therefore, areas where other One commenter expressed support for
Comment types of sources principally contribute the previous conformity rule’s PM10 hot-
A few commenters argued that to nonattainment problems (such as spot requirements until the current
applying the previous PM10 hot-spot specific stationary sources) would only PM10 standards are replaced by a new
requirements was not necessary due to be required to perform PM10 hot-spot PM-coarse air quality standard, because
unique circumstances of their analyses for the types of projects current hot-spot requirements protect
individual PM10 area. Several described in § 93.123(b)(1) until such public health.
commenters stated that it is inefficient time as a SIP is submitted which Response
to direct resources to PM10 hot-spot demonstrates that regional PM10 on-road
analysis when transportation projects emissions are insignificant and that EPA will evaluate the impact of any
may not be a significant contributor to projects will not cause new violations or new air quality standards and how they
the PM10 problem in a given area, such make existing violations worse. impact the current PM10 transportation
as smaller areas or cities dominated by EPA also acknowledges that the conformity requirements, including hot-
other PM sources. practical impact of today’s final rule spot requirements, if and when such
One commenter said there were four may have a minimal impact on the standards are promulgated. However,
PM10 nonattainment and maintenance small areas described by commenters, since the PM10 standards and applicable
areas in their state where the operation since there may not be a large number requirements continue to apply at this
of specific industries (e.g., quarries, or any projects of air quality concern time, today’s final rule continues to
cement plants, steel fabrication plants) developed before a PM10 SIP is address the current PM10 standards. As
is the primary source of direct PM10 submitted that demonstrates explained above, EPA has concluded
emissions. Monitors over the last ten insignificance. After EPA makes an that requiring hot-spot analyses only for
years have shown attainment for the adequacy finding on (or approves) such projects of air quality concern provides
PM10 standards, but the commenter’s a SIP, PM10 hot-spot analyses would no for both compliance with statutory
state had not submitted redesignation longer be required in that area. EPA requirements and appropriate
requests to maintenance for two of the Regions and states can work together to commitment of resources.
areas due to local concerns for specific expedite the processing of such SIPs E. Responses to Other Comments
non-transportation sources. Therefore, through such methods as parallel
this commenter supported the option of processing or direct final rulemaking as EPA received several comments on
only requiring PM10 hot-spot appropriate. PM2.5 and PM10 hot-spot analyses that
requirements if a SIP is submitted that With regard to the concerns expressed covered broader legal arguments or
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identifies transportation sources as a about the appropriateness of hot-spot other topics than the proposed options.
significant contributor to the PM10 air analyses in remote or non-urbanized Rather than restate all of those
quality problem. areas, EPA would like to point out that comments and responses again here,
Another commenter believed its state today’s final rule limits the need for please see Section III.E. for further
needed flexibility to consider, through PM10 hot-spot analyses to only those information and response to these
the SIP and consultation processes, the projects which significantly increase comments covering both PM2.5 and
hot-spot concerns of its remote diesel vehicle traffic and emissions. As PM10.

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F. When Are the PM10 Hot-spot categories of sites which are identified B. Projects of Air Quality Concern
Requirements Effective? in the PM2.5 or PM10 applicable
1. Description of Final Rule
For reasons described in Section III.F., implementation plan or implementation
plan submission, as appropriate, as sites This final rule requires PM2.5 and
the final rule is effective on April 5,
of violation or possible violation. PM10 hot-spot analyses only for projects
2006. Since the same provisions of the
that are considered to have the potential
amended rule apply in PM10 areas as These proposed criteria were
to impact the air quality standards (i.e.,
well as PM2.5 areas, EPA finds good generally consistent with what the ‘‘projects of air quality concern’’).
cause to have these rules effective on conformity rule had required for Section 93.123(b)(1) of today’s final rule
April 5, 2006, for PM10 areas as well. quantitative hot-spot analyses once tools requires PM2.5 and PM10 hot-spot
EPA believes it would not be in the and EPA modeling guidance are analyses for the following projects of air
public interest to attempt to draft the released, since the original 1993 quality concern:
regulations to apply to different areas on conformity rule in PM10 areas, with a • Section 93.123(b)(1)(i): New or
different dates as it would be overly few exceptions. expanded highway projects that have a
confusing and difficult to implement. In First, EPA proposed to clarify that significant number of or a significant
addition, this final rule is published quantitative analyses would be required increase in diesel vehicles;
almost 30 days before April 5, 2006, so • Section 93.123(b)(1)(ii): Projects
only for new or expanded bus and rail
PM10 areas should not have any affecting intersections that are at Level-
terminals and transfer points that
difficulty complying with these of-Service 7 D, E, or F with a significant
significantly increase the number of
regulations as of April 5, 2006. See number of diesel vehicles, or those that
diesel vehicles (rather than any increase
Section IX. of today’s notice for more will change to Level-of-Service D, E, or
of diesel vehicles). Second, EPA
information on when the final rule’s F because of increased traffic volumes
proposed to add a new criterion—
PM10 hot-spot provisions will apply in from a significant number of diesel
consistent with the current rule’s CO
PM10 nonattainment and maintenance vehicles related to the project;
quantitative hot-spot requirements—to
areas with approved conformity SIPs. • Section 93.123(b)(1)(iii): New bus
require PM2.5 or PM10 quantitative hot-
V. Projects of Air Quality Concern and spot analyses for those projects that the and rail terminals, and transfer points,
General Requirements for PM2.5 and PM2.5 or PM10 SIP identifies as a hot- that have a significant number of diesel
PM10 Hot-spot Analyses spot concern. vehicles congregating at a single
location;
A. Background In addition, in the context of options • Section 93.123(b)(1)(iv): Expanded
This section covers the specific types that would rely on the SIP to identify all bus and rail terminals, and expanded
of projects that are required to have projects of air quality concern (e.g., transfer points, which significantly
PM2.5 and PM10 hot-spot analyses. The Option B), EPA provided the following increase the number of diesel vehicles
following paragraphs describe what the examples of types of projects and congregating at a single location; and
conformity rule has previously required locations that could be identified in a • Section 93.123(b)(1)(v): Projects in
in PM10 areas as well as what types of SIP, and as a result, need PM2.5 or PM10 or affecting locations, areas, or
projects were proposed to receive PM2.5 quantitative hot-spot analyses: categories of sites which are identified
and PM10 hot-spot analyses under the • Highly congested intersections, in the PM10 or PM2.5 applicable
November 2003 and December 2004 implementation plan or implementation
• Locations of highest traffic volumes,
proposals. plan submission, as appropriate, as sites
As stated in Sections III. and IV., EPA • Large transit stations or freight of violation or possible violation.
proposed in the December 2004 notice terminals where a Significant increase Quantitative hot-spot analyses are
a range of options for when quantitative in diesel vehicle traffic and engine required for conformity determinations
or qualitative PM2.5 or PM10 hot-spot idling occurs, of such projects in PM2.5 and PM10 areas
analyses would be required for the time • Projects involving long or steep once EPA provides guidance and
periods before and after a SIP is grades, or announces that such analyses are
submitted. As part of some of those required under § 93.123(b)(4). See
• Monitors where the PM2.5 or PM10 Section VI. for more information
options, EPA proposed to require the standards has been exceeded or
following projects to have PM2.5 and regarding the timing of quantitative hot-
violated. spot analyses for projects of air quality
PM10 hot-spot analyses:
• Section 93.123(b)(1)(i): Projects EPA noted in its proposals that the concern and EPA’s future modeling
which are located at sites at which locations listed above are similar to the guidance.
violations have been verified by conformity rule’s original requirements Prior to quantitative analyses being
monitoring data; in § 93.123(a)(1)(i)–(iv) and required, section 93.123(b)(2) requires
• Section 93.123(b)(1)(ii): Projects § 93.123(b)(1)(i)–(iii) for projects that qualitative PM2.5 and PM10 hot-spot
which are located at sites which have required quantitative hot-spot analyses analyses for projects of air quality
vehicle and roadway emission and in CO and PM10 areas. EPA requested concern. State and local agencies should
dispersion characteristics that are comment on the above examples and for follow EPA and DOT’s guidance
essentially identical to those of sites any other information regarding other document for completing qualitative
with verified violations (including sites types of projects and locations where
near one at which a violation has been potential PM2.5 or PM10 hot-spots could 7 Highway Capacity Manual 2000 states on pp.

occur in a given area. See the November 10–4 through 10–5 that ‘‘[t]he average travel speed
monitored); for through vehicles along an urban street is the
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• Section 93.123(b)(1)(iii): New or 5, 2003 proposal (68 FR 62712) and determinant of the operating level of service (LOS).
expanded bus and rail terminals and December 13, 2004 supplemental The travel speed along a segment, section, or entire
transfer points which significantly proposal (69 FR 72144) for further length of an urban street is dependent on the
increase the number of diesel vehicles background information. EPA also noted running speed between signalized intersections and
the amount of control delay incurred at signalized
congregating at a single location; and that any combination of proposed PM2.5 intersections.’’ Level-of-service D, E, and F are
• Section 93.123(b)(1)(iv): Projects in or PM10 hot-spot options could be considered the most congested intersections for
or affecting locations, areas, or included in the final rule. planning purposes.

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PM2.5 and PM10 hot-spot analyses, speeds by improving weave and merge information available on PM2.5 and PM10
which will be posted on the EPA Web operations, which would not be hot-spots, and the Agency’s experience
site that is listed in Section I.B.2. of expected to create or worsen PM2.5 or in implementing CO and PM10 hot-spot
today’s notice. Until this new guidance PM10 violations; and requirements since 1993 for what level
is available, FHWA’s existing September • Intersection channelization of analysis is appropriate and
12, 2001 guidance, ‘‘Guidance for projects, traffic circles or roundabouts, worthwhile. As described in Sections
Qualitative Project-Level ‘‘Hot-Spot’’ intersection signalization projects at III. and IV., the final rule does not
Analysis in PM10 Nonattainment and individual intersections, and require any hot-spot analysis—
Maintenance Areas,’’ can be used for interchange reconfiguration projects that qualitative or quantitative—for all other
PM10 hot-spot analyses. are designed to improve traffic flow and projects that are not listed in
vehicle speeds, and do not involve any § 93.123(b)(1) as an air quality concern.
2. Examples These projects are presumed to meet
increases in idling. Thus, they would be
Some examples of projects of air expected to have a neutral or positive Clean Air Act requirements and 40 CFR
quality concern that would be covered influence on PM2.5 or PM10 emissions. 93.116 without any explicit hot-spot
by § 93.123(b)(1)(i) and (ii) are: Some examples of projects of air analysis because EPA concludes based
• A project on a new highway or quality concern that would be covered on the available data that these projects
expressway that serves a significant by § 93.123(b)(1)(iii) and (iv) are: do not have the potential to cause or
volume of diesel truck traffic, such as • A major new bus or intermodal contribute to violations.
facilities with greater than 125,000 terminal that is considered to be a The final rule’s criteria for hot-spot
annual average daily traffic (AADT) and ‘‘regionally significant project’’ under 40 analyses targets highway and transit
8% or more 8 of such AADT is diesel CFR 93.101; 9 and projects that involve a significant
truck traffic; • An existing bus or intermodal increase in diesel vehicle traffic, since
• New exit ramps and other highway terminal that has a large vehicle fleet EPA believes that directly emitted
facility improvements to connect a where the number of diesel busses particles from diesel vehicles are the
highway or expressway to a major increases by 50% or more, as measured primary consideration for potential
freight, bus, or intermodal terminal; by bus arrivals. PM2.5 and PM10 hot-spots. EPA believes
• Expansion of an existing highway Again, the above examples are the final rule’s criteria for what projects
or other facility that affects a congested considered to be the most likely projects require hot-spot analyses will ensure
intersection (operated at Level-of- that would require a PM2.5 or PM10 hot- that all projects that have the potential
Service D, E, or F) that has a significant spot analysis under today’s final rule. to impact air quality by causing new
increase in the number of diesel trucks; Examples of projects that are not an violations, making existing violations
and air quality concern under worse or delaying timely attainment
• Similar highway projects that § 93.123(b)(1)(iii) and (iv) would be: will be analyzed before they receive
involve a significant increase in the • A new or expanded bus terminal federal funding or approval. The final
number of diesel transit busses and that is serviced by non-diesel vehicles criteria are consistent with comments
diesel trucks. (e.g., compressed natural gas or hybrid- that we received, as discussed further
EPA notes that the above examples electric vehicles); and below.
are considered to be the most likely Technical rationale for targeting
• A 50% increase in daily arrivals at
projects that would require a PM2.5 or diesel vehicles. There is substantial
a small terminal (e.g., a facility with 10
PM10 hot-spot analysis under today’s evidence that sites near concentrated
buses in the peak hour).
final rule. diesel activity can experience higher
The following are examples of 3. Rationale concentrations of PM2.5 and PM10
projects that are not an air quality relative to background sites. EPA has
Legal rationale for targeting diesel
concern under § 93.123(b)(1)(i) and (ii) considered several technical factors in
vehicles. EPA continues to believe it has
of this final rule: making this conclusion in today’s final
discretion to establish the level of PM2.5
• Projects that do not meet the criteria and PM10 hot-spot analysis that is
rule.
under § 93.123(b)(1), such as any new or First, PM2.5 and PM10 diesel emission
necessary to meet statutory factors are significantly higher than
expanded highway project that requirements. The Clean Air Act
primarily services gasoline vehicle gasoline vehicles on a per-vehicle basis,
requires that projects not create new air and direct particulate emissions from
traffic (i.e., does not involve a quality violations, exacerbate existing
significant number or increase in the gasoline vehicles are more evenly
violations, or delay timely attainment, distributed across all types of vehicle
number of diesel vehicles), including but the statute does not specify what
such projects involving congested activity. Current PM2.5 and PM10
type of analysis is needed to meet these exhaust emission factors in MOBILE6.2
intersections operating at Level-of- requirements. Therefore, EPA is
Service D, E, or F; for heavy duty diesel vehicles are
finalizing criteria for when hot-spot approximately 40 to 50 times the rates
• An intersection channelization analyses are required based on scientific
project or interchange configuration for gasoline vehicles, on a per vehicle
project that involves turn lanes or slots, 9 40 CFR 93.101 defines a ‘‘regionally significant
basis. Even with the implementation of
lanes or movements, that are physically project’’ as ‘‘a transportation project (other than an
tighter heavy duty vehicle emission
separated. These kinds of projects exempt project) that is on a facility which serves standards beginning in 2007,
improve freeway operations by regional transportation needs (such as access to and MOBILE6.2 projects that PM2.5 and PM10
from the area outside of the region, major activity emission factors for heavy duty diesel
smoothing traffic flow and vehicle centers in the region, major planned developments
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such as new retail malls, sports complexes, etc., or


vehicles will still be 15 to 20 times the
8 This percentage is the national average of truck transportation terminals as well as most terminals rate for gasoline vehicles in 2015. Given
vehicle miles traveled (VMT) to total VMT, based themselves) and would normally be included in the this difference in emission rates,
on FHWA’s Highway Statistics publication which modeling of a metropolitan area’s transportation projects involving increases in diesel
can be found at: http://www.fhwa.dot.gov/policy/ network, including at a minimum all principal
ohim/hs04/index.htm. EPA’s MOBILE6.2 motor arterial highways and all fixed guideway transit
vehicle activity are much more likely to
vehicle emissions model also uses 8% truck VMT facilities that offer an alternative to regional result in conditions associated with a
as a national default. highway travel.’’ potential air quality concern.

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Second, several studies examined air µg/m3 for particles with 180–2500 nm analyses, ‘‘projects affecting
quality at sites involving high-diesel diameters to 1.8 µg/m3 for smaller intersections that are at Level-of-Service
traffic which showed consistently particles. At another site, total particle D, E, or F with a significant number of
positive findings; whereas, sites with mass under 180 nm diameter differed by diesel vehicles, or those that will change
low diesel traffic showed more 3.8 or 4.1 µg/m3, depending on to Level-of Service D, E, or F because of
inconsistent results. High levels of measurement method. Due to the increased traffic volumes from a
vehicle-related particles arise in areas relative inconsistency of PM2.5 results significant number of diesel vehicles
with high diesel activity, particularly across the study area, this study related to the project.’’ 11
areas with elevated acceleration or in demonstrates that gasoline vehicles do EPA believes that it can finalize these
areas with large numbers of trucks not appear to reliably create higher revised criteria for highway projects of
operating for long periods in close PM2.5 concentrations that could create air quality concern based on
proximity, such as around truck routes, or worsen an air quality violation in a information provided in preamble
freight terminals or truck stops. Studies localized area. discussions, in the proposals, and
in proximity of vehicular traffic tend to These and other studies provide comments received as discussed further
show that elevated PM2.5 concentrations consistent evidence for elevated PM2.5 below. To omit such highway projects
occur near diesel vehicle operations, but concentrations associated with nearby from hot-spot analyses would not
show less consistent evidence near diesel vehicle activity, while for ensure that these projects meet statutory
locations with high gasoline vehicle gasoline vehicle activity, the evidence is requirements. See Section VII. for how
operations. less consistent. Because diesel vehicle categorical hot-spot findings could take
For example, one recently-published activity tends to be more concentrated into account air quality circumstances
study (Charron et al., 2005) from a site along truck routes, freight terminals, for projects of concern and ultimately
in downtown London, England, and truck stops, the air quality impact eliminate the need for a quantitative
conducted a hierarchical cluster of direct PM2.5 emissions from these analysis for some individual projects.
analysis of PM2.5 concentrations, vehicles is likely to be more Second, EPA is deleting the previous
PM2.5–10,10 CO, oxides of nitrogen geographically focused. Compared to conformity rule’s vague criteria that
(NOX), light-duty traffic, and heavy-duty diesel vehicles, gasoline vehicles tend to would have required quantitative PM2.5
traffic. Two clusters were found. CO be relatively uniformly distributed and PM10 hot-spot analyses for projects
clustered with light-duty traffic, in one throughout an urban area. that ‘‘are located at sites at which
cluster, while PM2.5, PM2.5–10, and NOX In conclusion, EPA believes that it is violations have been verified by
clustered with heavy-duty traffic in the appropriate to only require PM2.5 and monitoring’’ and ‘‘which are located at
other. No clusters indicating changes in PM10 hot-spot analyses for projects that sites which have vehicle and roadway
PM2.5 air quality were found for light- involve significant numbers of diesel emission and dispersion characteristics
duty traffic, which further supports vehicles, based on current information that are essentially identical to those of
EPA’s rationale for targeting hot-spot and PM2.5 and PM10 air quality sites with verified violations (including
analyses for projects involving standards. EPA will continue to review sites near one at which a violation has
significant traffic from diesel vehicles. and evaluate new research on the mass been monitored).’’ EPA also notes that
Another study (Cyrys et al., 2003) and distribution of direct PM2.5 and the final rule deletes a consultation
showed that the difference in long-term PM10 emissions from gasoline and diesel requirement from § 93.105(c)(1)(v) and
average PM2.5 mass between traffic sites vehicles in the future. § 93.123(b)(3) of the previous
and background sites was equal to the Rationale for specific criteria for conformity rule, which were intended to
difference in elemental carbon mass identifying projects of air quality implement these previous vague
between the two types of sites. concern. EPA has made several criteria. While the air quality
Elemental carbon predominantly comes revisions to the criteria in § 93.123(b)(1) circumstances at a project’s location are
from diesel exhaust, as demonstrated in to ensure that PM2.5 and PM10 hot-spot an important modeling consideration,
several source apportionment studies. analyses are completed for all projects these previous regulatory criteria are
Finally, in a Dutch study (Janssen et al., of air quality concern. Rather than insufficient to ensure that all projects of
2001), concentrations of PM2.5 measured finalize only the proposed criteria for air quality concern are analyzed before
outside schools were significantly PM2.5 and PM10 quantitative analyses, they receive federal funding or
associated with truck traffic on nearby EPA is finalizing more specific criteria approval. The final rule’s criteria will
motorways and distance from the for the types of projects that require ensure that all projects that have the
motorways, but not with car traffic. evaluation consistent with the potential to impact a local air quality
In addition, studies examining sites discussions in the proposals and violation will be analyzed. All other
with only gasoline vehicle traffic show comments received. The following projects are not expected to impact the
much less consistency in results for paragraphs describe in more detail air quality standards, even in the case
whether or not such traffic is a PM2.5 or EPA’s rationale for the specific criteria where such a project is located near a
PM10 air quality concern at the project in this final rule. violating monitor or is similar to a
level. For example, Kuhn et al. (2005) First, EPA is finalizing two criteria to project by a violating monitor.
measured PM2.5 concentrations at sites specifically target highway projects that EPA believes that the critical factor
2.5 meters and about 150 meters away involve significant increases in diesel for establishing PM2.5 and PM10 hot-spot
from a major freeway in Los Angeles vehicle traffic (§ 93.123(b)(1)(i) and (ii)), criteria is whether or not a project’s
that was restricted to light-duty vehicle so that highway projects of air quality direct PM2.5 or PM10 emissions could
traffic. Traffic volumes during sampling concern are analyzed and therefore meet actually cause a new violation or
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were around 5700 per hour. Differences statutory requirements. The final rule worsen an existing air quality violation.
in average mass concentrations for PM2.5 requires PM2.5 and PM10 analyses for The previous criteria did not address
between upwind and downwind ‘‘new or expanded highway projects that
monitors at one site ranged from ¥0.2 have a significant number of or 11 EPA notes, however, that the CO criterion in 40

significant increase in diesel vehicles,’’ CFR 93.123(a)(1)(ii) focuses on all such


intersections. In contrast, today’s final rule only
10 PM ¥10 considers air quality concentrations
2.5
and somewhat consistent with a similar focuses on such intersections involving significant
of particles of a diameter of 2.5–10 micrometers. criterion for CO quantitative hot-spot levels of new diesel traffic.

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specific types of projects that have having the potential to increase local conformity rule what types of projects
significant levels of diesel emissions. emissions and worsen air quality. are most likely to cause PM2.5 or PM10
Instead, the previous criteria could have This is especially true if the SIP hot-spots, and thus where quantitative
resulted in hot-spot modeling for any identifies a type of project not otherwise hot-spot analyses should be considered
project being located near an existing listed in § 93.123(b)(1) of today’s final to meet statutory requirements. For
violating monitor or for any project that rule as being of air quality concern in example, several commenters argued
is similar to a project that is near an the circumstances of a particular area. that the final regulatory criteria needed
existing violating monitor, even if the That is, requiring hot-spot analyses to to specifically require hot-spot analyses
project is not anticipated to result in also be completed for types of project for larger highway projects, such as
enough PM2.5 or PM10 emissions to locations that the SIP identifies will capacity expansions and congested
impact local air quality. An example of support the SIP’s goals for an individual intersections with diesel traffic. Another
such a project could be a minor arterial area in those cases where a state has the commenter believed that heavy diesel
that primarily serves gasoline fueled information to identify specific types of traffic at large toll road entrance areas
passenger vehicles. As discussed above, locations as potential hot-spot concerns. and transit tunnel entrances were also a
EPA concludes that quantitative hot- Where a state does not have such concern, but not specifically addressed
spot modeling for such a project is not information, EPA believes that the other by the proposed criteria. By establishing
necessary to meet statutory four regulatory criteria included in more specific regulatory criteria,
requirements, and would be a waste of today’s final rule for when analyses are commenters believed all projects of air
limited state and local resources. completed sufficiently cover the cases quality concern will meet Clean Air Act
Further discussion on the elimination of where it is likely for a hot-spot to occur. requirements by not causing new or
these criteria are discussed below in the EPA again notes that the criterion in more severe or more frequent violations,
response to comments part of this § 93.123(b)(1)(v) is consistent with a or by not delaying timely attainment.
section. similar criterion in § 93.123(a)(1)(i) of Some commenters acknowledged that
Next, EPA is finalizing the existing rule’s requirements for EPA has already adopted objective
§ 93.123(b)(1)(iii) and (iv) relating to bus quantitative CO hot-spot analyses. That criteria for when quantitative hot-spot
and rail terminals to be consistent with criterion requires quantitative CO hot- analyses are required for certain cases.
its December 2004 supplemental spot analyses ‘‘[f]or projects in or They cited the current conformity rule’s
proposal and previous PM10 affecting locations, areas, or categories CO quantitative hot-spot criteria in
requirements. EPA has split the of sites which are identified in the § 93.123(a)(1)(ii)–(iv) as a good example
proposed and previous criterion into applicable implementation plan as sites for establishing objective criteria for
two separate criteria since the factors to of violation or possible violation; PM2.5 and PM10 quantitative hot-spot
consider for brand new versus expanded * * *.’’ analyses. These commenters also
Efficient use of state and local supported § 93.123(b)(1)(iii) of the
terminals and transfer points are
resources. Targeting projects of air previous conformity rule (now covered
different. Whereas a new terminal or
quality concern and eliminating by § 93.123(b)(1)(iii) and (iv) of today’s
transfer point would look at whether the
qualitative analyses for projects that are final rule). This criterion, the
total number of diesel vehicles was
not of concern will also streamline commenters stated, relied on objective
significant, an expansion of an existing
conformity determinations in PM2.5 and criteria to be applied for the
terminal or transfer point would be
PM10 hot-spot reviews, since the circumstances of a given project (i.e.,
evaluated based on whether the increase
majority of proposed projects are not of the number of diesel vehicles likely to
from current operations was significant
air quality concern. As a result, the final be in an area).
for a given project’s circumstances. Two commenters cited several
rule will utilize state and local resources
Today’s action clarifies scientific studies that they believed
in an efficient and reasonable manner
§ 93.123(b)(1)(iii) and (iv) so that showed that highway projects of four
while still satisfying Clean Air Act
quantitative hot-spot analyses would lanes or more must be considered
requirements.
only be required for such projects that significant and analyzed under the final
involve significant increases of diesel 4. Response to Comments rule. Commenters believed that studies
vehicle traffic, and not insignificant EPA received many comments confirmed that heavily trafficked
vehicle increases with de minimis regarding what projects should be highways can be expected to contribute
localized emissions increases. EPA required to have PM2.5 and PM10 hot- an increment to urban background of
believes that it can finalize these minor spot analyses as part of project-level the annual PM2.5 standard in the range
clarifications to existing PM10 hot-spot conformity determinations. Many of 1–3 µg/m3 in neighborhoods near the
requirements and create PM2.5 commenters believed that the existing freeway traffic lanes.
requirements as a logical outgrowth of and proposed criteria for quantitative One study cited by commenters was
the December 2004 proposal and hot-spot analyses were insufficient for the ‘‘East Bay Children’s Respiratory
comments received. meeting Clean Air Act requirements. Health Study’’ (Kim, et al., AJRCCM,
EPA is also finalizing its proposed Others only commented on the Table 2), which showed that major
new criterion for when PM2.5 and PM10 proposed changes to a specific criterion. freeways contribute at least 3 µg/m3 to
hot-spot analyses are completed if a Many commenters agreed that hot-spot PM2.5 concentrations in adjacent
PM2.5 or PM10 SIP identifies additional analyses should be focused on highway neighborhoods studied. In this study,
projects of air quality concern for a and transit projects involving heavy mean PM2.5 concentrations measured in
given area. Since the primary intent of diesel traffic. a school yard 60 meters downwind from
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the Clean Air Act is to ensure a freeway with annual average daily
consistency between transportation Comment trips (AADT) of 190,000 was 15 µg/m3,
decisions and SIP air quality objectives, Many commenters believed that which was 3 µg/m3 above the levels
it is appropriate to require more EPA’s proposed regulatory criteria for reported at the regional scale monitors
intensive hot-spot analyses in cases PM2.5 and PM10 hot-spot analyses were operated by air agencies. These
where the SIP specifically identifies a inadequate. These commenters argued commenters concluded that highways of
type of transportation project location as that EPA should specify in the 4 lanes or larger can be expected to

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12494 Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Rules and Regulations

contribute at least 1 µg/m3 or more to diesel traffic, and (2) eliminating worsen existing air quality violations.
local PM2.5 concentrations. Commenters previous vague criteria that targeted EPA has determined that these projects
believed that larger highway projects of monitoring locations rather than the air of air quality concern are those
six lanes or more should be expected to quality impacts of projects of concern. involving significant diesel emissions
change PM2.5 concentrations even The previous conformity rule’s PM10 which is the most critical factor in
further. hot-spot requirements and the December applying a PM10 hot-spot requirement,
Commenters also cited other 2004’s proposed regulatory criteria for reasons already stated in this final
information in their comments, and EPA would not have captured all necessary rule and the original 1993 conformity
notes only a portion of this information highway projects and possibly resulted rulemaking (January 11, 1993, 58 FR
here. A study completed by Dutch in an inefficient use of limited state and 3780). In addition, the conformity rule
researchers (Netherlands Aerosol local resources by requiring analyses for requires that road dust be included in
Programme, October, 2002), commenters projects that are not of concern that are all PM10 hot-spot analyses, as described
believed, was consistent with the East located by violating monitors. later in this section.
Bay Children’s Health Study in that EPA generally agrees with comments
highways were estimated to contribute that recommend adopting regulatory Comment
about 3 µg/m3 at 60 meters from the criteria that are similar to the criteria in Several commenters supported EPA’s
highway, with the impact tailing off to 40 CFR 93.123(a)(1). EPA suggested proposed clarification to the previous
about 1 µg/m3 at 100 meters. In such criteria in its preamble for the rule’s § 93.123(b)(1)(iii) (now covered by
addition, commenters cited an April November 5, 2003 proposal (68 FR § 93.123(b)(1)(iii) and (iv) of the final
2004 research project of an interstate in 62712) and December 13, 2004 rule) indicating that quantitative PM2.5
downtown Seattle, Washington, where supplemental proposal (69 FR 72145), and PM10 hot-spot analyses would be
AADT is more than 200,000. The project where we either cited the CO criteria or required for projects that significantly
found that the annual mean PM2.5 and discussed analyzing heavily congested increase the quantity of diesel vehicles.
black carbon concentrations found 20 intersections. However, EPA has EPA also notes that a few commenters
meters from the interstate were decided not to finalize specific supported targeting projects addressed
significantly higher as compared to regulatory criteria for quantitative PM2.5 by this requirement, such as weight
another monitoring site 600 meters from and PM10 hot-spot analyses similar to inspection stations and bus terminals
the interstate. § 93.123(a)(1)(iii) and (iv), which apply with significant diesel traffic.
Further, some commenters urged EPA to projects identified in the SIP as Commenters also believed that other
to add new regulatory criteria that do affecting the top three intersections of projects should also be considered such
not rely upon data from existing the highest volumes and worst level of as transit maintenance yards, truck
monitors for the purpose of identifying service. Such criterion would be stops and school bus terminals and
projects that must undergo PM2.5 and redundant since the final rule already maintenance yards.
PM10 hot-spot analyses. Commenters requires hot-spot analyses for projects at
believed that EPA’s proposed and Response
large intersections involving significant
previous rule’s criteria in diesel traffic and projects identified in The final rule is generally supportive
§ 93.123(b)(1)(i) and (ii) would not the SIP as an air quality concern. of these comments. The interagency
ensure that quantitative analyses would EPA has already noted above the consultation process should be used to
be completed for all projects of concern, types of projects that are most likely to identify projects needing PM2.5 and
since sufficient air quality monitoring be considered projects of air quality PM10 hot-spot analyses, and EPA’s
data does not exist to implement these concern under today’s final rule. For future quantitative modeling guidance
criteria. Two commenters further stated example, new highway or expressway will provide further information to
that most new major highways, facilities that serve a significant volume consider for such analyses. EPA agrees
expansions or interchanges will occur at of diesel traffic are considered projects that hot-spot analyses should be
sites where no relevant ambient air of air quality concern under today’s targeted to projects of air quality
quality data is available, or where final rule. concern, which involve projects with
current data does not show a violation significant diesel traffic.
(although a violation may occur when a Comment
given project is built). Consequently, the Another commenter stressed the Comment
proposed and previous criteria in importance of selecting appropriate Some commenters expressed support
§ 93.123(b)(1)(i) and (ii), commenters examples of project locations of for the newly proposed criterion now in
opined, would be arbitrary and potential concern in EPA’s future § 93.123(b)(1)(v) of the final rule that
capricious since sufficient data is not guidance. This commenter was would require PM2.5 or PM10 hot-spot
available to identify every potential concerned that the examples given in analyses if the SIP identifies other
highway project of concern. the December 2004 supplemental projects of air quality concern. These
proposal for PM10 hot-spot analyses commenters believed that this criterion
Response would support the SIP’s air quality goals
under proposed Option B concentrated
EPA agrees with the bulk of these on diesel exhaust particulate matter. and Clean Air Act conformity
comments and has changed the final Although these examples are requirements in the case where a state
rule in part in response to these appropriate for PM2.5, this commenter identified such projects as a hot-spot
comments, as described in EPA’s believed that localized PM10 concern.
rationale above. As stated above, it is concentrations are more likely to be Two of these commenters, however,
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essential that a quantitative PM2.5 or dominated by re-entrained road dust. did not support this criterion if it was
PM10 hot-spot analysis be performed for the sole mechanism for ensuring that
all projects of air quality concern, as Response projects of concern were evaluated for
stipulated through the final rule’s The final rule will ensure that re- potential PM2.5 or PM10 hot-spots.
criteria. EPA accomplishes this in the entrained road dust will be considered Commenters strongly objected to
final rule by (1) specifically addressing in PM10 hot-spot analyses for projects proposed options (e.g., Option B for
all projects with significant levels of that have the potential to create new or PM2.5 and PM10 hot-spot analyses after

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SIP submission) to rely upon the SIP to criteria that New York State and New Response
solely identify where hot-spot analyses York City have adopted for identifying It is important to consider both the
were required for a variety of reasons. projects that have a ‘‘significant’’ impact actual number of vehicles increased at
For example, commenters were and are required to undergo a detailed a project location as well as how this
concerned that those options depended impact analyses and evaluation of increase relates to existing vehicle
too heavily on a SIP that would not be mitigation measures for NEPA fleets. For example, a bus terminal
submitted for several years during purposes.12 expansion that increases the number of
which time highway projects of concern Two commenters also proposed that
daily arrivals by more than 50% would
would be approved that could impact highway projects of concern could be
be significant for an existing bus
local air quality and public health. See identified based on specific average
terminal served by a large fleet. In
Sections III. and IV. of this notice for daily vehicle trip criteria, such as:
• An estimate of daily emissions from contrast, a 50% increase in daily
further comments regarding the options arrivals at a small terminal (e.g., a
cited by commenters. a given highway segment based upon
aggregated hourly emissions expected facility with 10 buses in the peak hour)
Response from traffic conditions over the course would not be significant. Areas should
EPA agrees with these comments, of current and expected future daily consider the circumstances involved at
which are addressed by the final rule as traffic patterns for the segment; or an individual project’s location,
described elsewhere in this notice. • Traffic loads measured as AADT including the total vehicle increase and
taking into account the variability in how such an increase compares to the
Comment emissions that can result from high or size of the existing diesel fleet for a
Some commenters believed that the low diesel vehicle contribution to given project location. Areas should also
MPO and the state or local air agency AADT. consider the type of vehicles that are
should have the opportunity to identify These commenters provided an added to an area either through a brand
projects to undergo quantitative hot-spot example conducted last year by the new or expanded existing terminal. As
analyses. One commenter argued that Wisconsin Department of Natural noted above, this final rule specifies
this authority, which should be Resources that projected that a proposed projects of air quality concern as
specifically recognized in § 93.123(b)(1), warehouse and distribution center at terminals or transfer points involving
is especially important in those portions which an average of 235 semi-trailer diesel vehicles. Projects involving new
of nonattainment and maintenance areas trucks would arrive and depart each day or expanded fleets of compressed
where small increases in emissions may would contribute, on average, 1.6 µg/m3 natural gas or hybrid electric vehicles
cause a new violation or interfere with of PM2.5, and potentially more than 2.0 would not be considered to be projects
an attainment strategy that barely µg/m3, to the annual average PM2.5 of air quality concern.
achieves attainment. standard (Wisconsin DNR Comment
memorandum, Revised Air Dispersion
Response Another commenter stated that, for
Analysis for PM2.5 Emissions from
EPA agrees that the consultation Roundy’s Warehouse and Distribution intersections, a clear, scientifically
process—which includes state and local Center—Oconomowoc, April 29, 2004). based criterion for ‘‘highly congested’’ is
transportation and air quality agencies— needed. The commenter gave as
is critical in transportation conformity Response examples studies done for the California
determinations. EPA has provided EPA agrees that there should be Department of Transportation by the
examples and other information to guidelines for further defining which University of California, Davis, in the
target projects of air quality concern. highway or transit projects are 1990’s which failed to find a clear
Projects not of air quality concern are considered to have a significant number indication of PM10 hot-spots near two
not expected to result in new air quality of or a significant increase in diesel major intersections with higher traffic
violations, worsen existing violations or vehicles. EPA has provided some volumes and levels of congestion than
delay timely attainment of the air examples in this notice, along with in other areas. The commenter stated
quality standards, even in the situations other commenter suggestions. Any that it is still unclear at what level of
described by commenters. project that will cause such a significant congestion and volume the potential for
number of or significant increase in an intersection hot-spot would arise.
Comment The commenter believed that additional
diesel vehicles will require a PM2.5 or
Some commenters also believed that PM10 hot-spot analysis. EPA and DOT research and technical review is needed
EPA should define what projects could are available for further discussions on before reasonable analysis methods
be ‘‘significant’’ and require PM2.5 and a particular project. (including changes to emission models
PM10 quantitative hot-spot analyses. to better fit microscale analysis needs)
There were several variations from Comment for such situations can be defined.
commenters on this theme, depending Some commenters requested EPA
Response
on the options EPA proposed and would guidance on what specifically is
consider in the development of the final intended by a significant increase in the This commenter is referring to the
rule. A few commenters welcomed the number of diesel vehicles in a location examples of projects provided in the
opportunity to work with EPA to under § 93.123(b)(1)(iii) and (iv) of the December 2004 supplemental proposal
determine appropriate criteria for final rule. One commenter expressed that could possibly be identified under
identifying projects that require concern that significance be determined an option that solely relied on the SIP
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quantitative analyses. solely through interagency consultation. to identify projects needing quantitative
Some commenters suggested that EPA hot-spot analyses (e.g., Option B). The
establish significance thresholds or a 12 These commenters included documentation examples included ‘‘highly congested
screening methodology that would that New York City has adopted guidance requiring intersections.’’
an assessment of mitigation measures if emissions
define when quantitative or qualitative from a transportation project are expected to add
EPA is finalizing instead a criterion
hot-spot analyses were required. For 0.1 µg/m3 annually, or 5.0 µg/m3 daily of PM2.5 to that was discussed in the November
example, commenters cited significance the ambient air. 2003 proposal and is more similar to the

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current conformity rule’s Response a finding that such emissions are a


§ 93.123(a)(1)(ii) which involves EPA has addressed this comment in significant contributor to the PM2.5 air
projects in CO areas at intersections of part by removing the requirement to quality problem (40 CFR 93.102(b)(3)).
Level-of-Service D, E, and F. However, perform qualitative hot-spot analyses for EPA has provided more information
the final rule only requires PM2.5 or projects that are not an air quality later in this section in response to a
PM10 hot-spot analyses of such projects concern. As described in Sections III. comment on including fugitive dust in
involving significant levels of diesel and IV., these qualitative analyses for PM2.5 or PM10 hot-spot analyses.
traffic. This final rule does not require projects that are not expected to impact EPA continues to believe that
a PM2.5 or PM10 hot-spot analysis for air quality violations are not an efficient construction dust emissions from a
projects at intersections of Level-of- use of state and local resources, in light particular project would not be included
Service D, E, and F that are used of past practice indicating that no such in a PM2.5 or PM10 hot-spot analysis, if
primarily by gasoline vehicles. EPA has analyses have ever found a hot-spot such emissions are considered
provided other examples of what a problem in such areas. EPA agrees with temporary as defined in § 93.123(c)(5).
significant level of diesel vehicles could the commenter that qualitative hot-spot Further information on including non-
include elsewhere in this notice. analyses will be required for projects of temporary construction emissions for
concern before quantitative guidance certain projects is discussed further
Comment below.
and tools are available. Finally, future
categorical hot-spot findings, as EPA is also extending the
Another commenter stated that ports
described in Section VII., could possibly requirements of § 93.125(a) for all
and airports should also be included in
streamline hot-spot requirements further projects in PM2.5 nonattainment and
the list of projects that require an maintenance areas that rely on control
analysis for potential PM2.5 and PM10 for certain projects if it is found that
additional analyses are not needed to or mitigation measures in project-level
hot-spots. This commenter felt that conformity determinations. As
potential air quality impacts from ports meet statutory requirements.
described in the November 2003 and
and airports need to be carefully C. General Requirements December 2004 proposals, FHWA or
considered to enable economic growth FTA must obtain from the project
while ensuring appropriate mitigation of 1. Description of Final Rule
sponsor and/or operator enforceable
emission increases and that ports, their EPA is retaining for PM10 areas and written commitments to implement any
transportation support systems, and extending for PM2.5 areas the general required project-level control or
airports are also often located in areas requirements in § 93.123(c) for hot-spot mitigation measures, prior to making a
with sensitive populations and analyses of projects of air quality project-level conformity determination
environmental justice concerns. concern. EPA did not propose any for projects in PM2.5 nonattainment or
substantive changes to these maintenance areas. The final rule does
Response requirements, which are: not revise the existing commitment
• Analyzing the total emissions
EPA has not addressed port and requirement for projects in PM10 areas.
burden of direct PM2.5 and PM10
airport projects funded or approved by In its previous proposals, EPA had
emissions which may result from the
the Federal Aviation Administration implied that § 93.125(a) might only be
implementation of the project
(FAA) and other federal agencies in this relevant for proposed options that
(including re-entrained road dust and
final rule, because these types of would require PM2.5 and PM10 hot-spot
construction dust, as described below),
projects are not covered by the analyses. EPA is clarifying in today’s
summed together with future
transportation conformity rule. These preamble that § 93.125(a) applies to all
background concentrations;
projects are covered by the general • Analyzing the entire transportation project-level conformity determinations
conformity rule. project, after the identification of major that involve projects with control or
design features which will significantly mitigation measures that are:
However, EPA notes that any transit
impact local concentrations; • Identified as conditions for the
or highway projects that are intended to
• Using consistent assumptions with NEPA process;
service transportation to and from a port
those used in regional emissions • Identified as conditions for a
or airport project would be addressed by
analyses for inputs that are required for transportation plan or TIP conformity
transportation conformity, and may determination’s regional emissions
require PM2.5 or PM10 hot-spot analyses both analyses (e.g., temperature,
humidity); analysis; or
if they are a project of air quality • Used in a project-level hot-spot
concern under § 93.123(b)(1). • Assuming the implementation of
mitigation or control measures only analysis.
Comment where written commitments for such Of course, today’s final rule does not
measures have been obtained; and require any control or mitigation
A commenter supported EPA and • Not considering temporary measures for project-level conformity
DOT developing a list of ‘‘exempt’’ emissions increases from construction- determinations in PM2.5 areas; it simply
projects that would not require related activities which occur only requires that sufficient commitments be
quantitative hot-spot analyses. The during the construction phase and last in place if there happen to be any
commenter also suggested that further five years or less at any individual site. measures for a given project before a
consideration should be given to refine Re-entrained road dust would be PM2.5 project-level conformity
a list of projects or situations that can included in all PM10 hot-spot analyses, determination is made.
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be tested through qualitative hot-spot since fugitive dust dominates PM10 EPA does not expect this clarification
analyses as agreed upon through the inventories. EPA has historically in today’s preamble to have a practical
consultation process. One commenter required road dust to be considered in impact on project implementation.
noted that only qualitative PM2.5 and all PM10 conformity analyses. In Today’s final rule does not change the
PM10 hot-spot analyses would be contrast, road dust emissions are only to regulatory text that was proposed for
possible prior to the development and be considered in PM2.5 hot-spot analyses § 93.125(a). Again, adding a reference
release of quantitative methods. if EPA or the state air agency has made for PM2.5 to § 93.125(a) simply provides

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added enforcement of measures if any for performing PM2.5 and PM10 hot-spot PM10 hot-spot analyses due to lack of
exist for projects in PM2.5 areas. analyses. state and local information on the
Today’s final rule also includes minor importance of dust emissions on air
Comment
clarifications with respect to PM2.5 to quality. They also argued that road dust
various parts of the current conformity One commenter supported the EPA should only be included in PM2.5 hot-
rule that are consistent with existing CO proposal that § 93.123(c) requirements spot analyses if road dust has been
and PM10 hot-spot analysis should be maintained in an effort to found to be a significant contributor to
requirements. For example, EPA is develop continuity between analysis the PM2.5 air quality problem (40 CFR
adding PM2.5 to the current rule’s ‘‘hot- efforts. The commenter further agreed 93.102(b)(3)). Commenters submitted
spot analysis’’ definition in § 93.101. that § 93.125(a) requirements should be several documents that supported their
This and other clarifications were applied to PM2.5 hot-spot analyses so judgement that further research was
proposed in regulatory text in the that the implementation of any project- needed to make decisions regarding
December 2004 supplemental proposal. level control or mitigation measure is significance of road dust for PM2.5 areas.
assured. The commenters agreed with the
2. Rationale existing conformity rule’s provisions for
Response
EPA is extending to PM2.5 areas the using the interagency consultation
current conformity rule’s general EPA agrees for the reasons cited by process for deciding whether road dust
requirements for conducting PM10 hot- the commenter. The existing is significant for a given PM2.5 area.
spot analyses. These changes for PM2.5 requirements have a proven track record Another commenter believed that
do not substantively change these PM10 since the original 1993 conformity rule EPA’s December 2004 supplemental
provisions of the current conformity for providing credible and reasonable proposal was incorrect in stating that
rule (e.g., §§ 93.123(c) and 93.125(a)), hot-spot analyses. there could be cases where highway and
but rather just apply these requirements transit construction emissions from an
Comment
to PM2.5. These provisions are intended individual project would be included in
However, another commenter a PM2.5 or PM10 hot-spot analysis
to produce credible analyses for disagreed with EPA’s proposal to apply
whether project emissions create new or pursuant to § 93.123(c)(1). This
§§ 93.123(c)(4) and 93.125(a) to PM2.5 commenter also cited § 93.123(c)(5)’s
worsen existing air quality violations.
hot-spot analyses since PM2.5 SIP requirement that PM hot-spot analyses
EPA intends that the hot-spot analysis
measures are already enforceable as a not include temporary increases in
compare concentrations with and
matter of law based on the Clean Air Act emissions caused by construction-
without the project based on modeling
and the NEPA process. The commenter related activities that last 5 years or less
conditions in the analysis year. The hot-
argued that EPA should reevaluate its at any individual site.
spot analysis is intended to assess
previous rulemaking decisions on
possible violations due to the project in Response
compliance with PM2.5 and PM10 SIP
combination with changes in EPA agrees with some of these
control measures in 40 CFR 93.117
background levels over time. Estimation comments. In the preamble to the
because these requirements are
of background concentrations may take December 2004 supplemental proposal,
duplicative and unnecessary.
into account the effectiveness of any EPA described applying § 93.123(c)(1)
anticipated control measures if they are Response requirements to PM2.5 or PM10 hot-spot
enforceable and creditable. EPA disagrees with this comment and analyses while including re-entrained
EPA also believes that conformity believes that the conformity rule is the road dust and construction emissions in
should address long-term emissions appropriate context for meeting all such analyses only ‘‘as applicable’’ (69
from the transportation system, and that Clean Air Act conformity requirements. FR 72146). However, EPA did not
conformity should not prevent project Implementation and enforcement of elaborate on this caveat in its proposal,
implementation because of temporary measures can be an important part of so further clarification in today’s notice
emissions increases. In addition, the reducing emissions for projects, when is warranted. Whether or not to include
NEPA process provides the most necessary. Without assurance that such road or construction dust in PM2.5 or
appropriate forum to analyze measures will be implemented, it is not PM10 emissions analyses are addressed
construction-related emissions impacts possible to accurately predict what by different provisions in the existing
and to establish mitigation measures. emissions may be for project-level conformity rule.
PM2.5 and PM10 hot-spot analyses would conformity determinations, and whether Section 93.102(b)(3) states that re-
not have to include construction-related or not projects meet statutory entrained road dust is to be considered
activities which cause temporary and requirements. in any PM2.5 conformity determination,
self-correcting increases in local EPA also acknowledges that, though including PM2.5 hot-spot analyses, if
concentrations, which are defined under these control measures would already road dust has been found to be a
the existing and today’s final rule as be applicable to such projects through significant contributor to the PM2.5 air
those which occur only during the NEPA and other mechanisms, including quality program in a given area. In its
construction phase and last five years or commitments to them in conformity July 1, 2004 final rule, EPA highlighted
less at any individual site. See the determinations provides an additional this requirement in the context of
preamble for the January 1, 1993 enforcement tool that, at times, may be including such dust emissions in plan
proposal (58 FR 3779–3780) and necessary. and TIP regional emissions analyses.
November 24, 1993 final rule (58 FR However, § 93.102(b)(3) defines more
Comment
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62212–62213) for further information broadly what types of emissions are


regarding the intent and rationale for EPA also received comments considered in all types of conformity
these general hot-spot requirements. regarding when § 93.123(c) requires determinations for a given pollutant and
fugitive dust to be included in PM2.5 or precursor, and consequently, only
3. Response to Comments
PM10 hot-spot analyses. Some requires PM2.5 hot-spot analyses to
EPA received a limited number of commenters did not believe that road include road dust emissions if such
comments on the general requirements dust should be included in PM2.5 or emissions have been found significant

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12498 Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Rules and Regulations

through a finding of significance prior to believed that almost all transportation C. Rationale and Response to Comments
the PM2.5 SIP or as part of an adequate agencies apply the growth and land use About Motor Vehicle Emissions Factor
PM2.5 SIP motor vehicle emissions assumptions from the build case also to Models
budget. the no-build case, which was found to
However, EPA disagrees that re- 1. Rationale
be inappropriate in a previous court
entrained road dust would not be decision. The commenter cited EPA’s On February 24, 2004, EPA released
included in a PM10 hot-spot analysis, January 2001 guidance entitled, MOBILE6.2 as the approved motor
when performed in a PM10 vehicle emissions factor model for SIP
‘‘Improving Air Quality Through Land
nonattainment or maintenance area. and conformity purposes outside of
Use Activities,’’ which recommends the
Since the 1993 conformity rule was California, where EMFAC2002 is the
interagency consultation be used for
promulgated, EPA has intended for road most recently EPA-approved model for
dust emissions to be included in all agencies to agree to use the most that state. With the release of
conformity analyses of direct PM10 reasonable and best available MOBILE6.2, state and local
emissions because fugitive dust from assumptions. transportation agencies now have an
roadways and other sources dominate Response approved model for estimating regional
PM10 emissions inventories. To that PM2.5 and PM10 emissions factors in SIP
end, the conformity rule does not EPA agrees that PM2.5 and PM10 hot- inventories and regional emissions
include an exception for when road dust spot analyses must be based on the analyses for transportation conformity.
emissions are not included in PM10 hot- latest planning and land use However, MOBILE6.2 has significant
spot analyses, like the exception for development assumptions before and limitations that make it unsatisfactory
such emissions in PM2.5 analyses in 40 after a project is expected to be for use in microscale analysis of PM2.5
CFR 93.102(b)(3). By definition, PM10 implemented in a given analysis year. and PM10 emissions as necessary for
includes larger particles from fugitive To do otherwise would not produce quantitative hot-spot analyses. To
dust including roadway sources, credible hot-spot analyses that meet understand those limitations it is
whereas the role of re-entrained road Clean Air Act requirements. Section necessary to compare how emissions of
dust for PM2.5 air quality issues is less CO, hydrocarbons (HC), and NOX are
93.105(c)(1)(i) of the existing conformity
clear (November 5, 2003, 68 FR 62709). calculated in MOBILE6.2 with the
As described above, EPA continues to rule requires the interagency
consultation process to be used to methods used to calculate PM2.5 and
believe that construction dust emissions PM10 emissions.
would not be included in PM2.5 and evaluate and choose models and
EPA has incorporated CO, HC, and
PM10 hot-spot analyses, if such associated methods and assumptions to NOX emissions in MOBILE from the
emissions are considered temporary as be used in PM2.5 and PM10 hot-spot very first version of the model. EPA has
defined by § 93.123(c)(5). In most cases, analyses. had many years to collect data and
EPA anticipates that construction VI. Timing of PM2.5 and PM10 refine the methodologies used to
emissions would not be included in hot- estimate emissions of these pollutants.
Quantitative Hot-spot Analyses and
spot analyses because they would be As a result, MOBILE6.2 incorporates
Development of Future Guidance
considered temporary. However, there adjustments for the effects on CO, HC,
may be limited cases where a large A. Description of Final Rule and NOX emissions of environmental
project is constructed over a longer time conditions, such as temperature,
period where it may be appropriate to EPA is finalizing its proposal to not humidity, altitude; fleet characteristics,
include any non-temporary construction apply quantitative PM2.5 and PM10 hot- such as age distribution and mileage
emissions, when an analysis year is spot requirements until EPA releases accumulation by age; activity impacts,
chosen in which construction of the quantitative modeling guidance and such as speed and road type (i.e, driving
project is still occurring. announces in the Federal Register that cycle); and fuel characteristics, such as
Comment such requirements are in effect. This fuel sulfur level. These adjustments are
action extends the existing conformity incorporated as local input options in
Another commenter believed that rule’s § 93.123(b)(4) requirements for MOBILE6.2 and changes in any of them
PM2.5 and PM10 hot-spot analyses need PM10 areas to also cover PM2.5. EPA will can have significant affects on emissions
to meet existing requirements for up-to- consult with conformity stakeholders of CO, HC, and NOX as determined by
date and reasonable conformity
when developing its future quantitative the model. Therefore, quantitative CO
analyses. The commenter specifically
modeling guidance. hot-spot analyses have been required
cited 40 CFR 93.110 and 93.122 as since the original 1993 conformity rule
requiring the latest planning B. General Rationale because the MOBILE model has been
assumptions in conformity analyses and
EPA is finalizing the proposal because appropriate for these analyses in
reasonable assumptions regarding land
we continue to believe that appropriate project-level conformity determinations
use projections in regional emissions for CO areas (40 CFR 93.123(a)).
analyses. Furthermore, the commenter tools and guidance are necessary to
In contrast, emissions estimation for
believed that EPA should clarify that ensure credible and meaningful PM2.5 and PM10 was only added to
hot-spot analyses must be based on quantitative PM2.5 and PM10 hot-spot MOBILE6.2 in 2004.13 Because EPA has
honest and accurate assumptions and analyses. Before such analyses can be not since then developed sufficient
include trip distribution and land use performed, technical limitations in databases of vehicle PM2.5 or PM10
changes in order to meet statutory applying existing motor vehicle emissions that are as complete as those
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requirements. emission factor models must be for CO, HC, and NOX, the algorithms
The commenter also argued that addressed, and proper federal guidance used in MOBILE6.2 for estimating PM
project analyses are currently for using dispersion models for PM hot- emissions are much simpler than those
inadequate because they rely on spot analysis must be issued, as
unrealistic assumptions for no-build described further below. 13 PM
10 emissions were previously estimated
cases, and ultimately, understate using an EPA model called PART5, which had the
emissions impacts. This commenter same limitations described here for MOBILE6.2.

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used for CO, HC, and NOX. While apply even to projects where changes in variables likely to affect localized PM2.5
MOBILE6.2 has the same input options vehicle speed are less of an issue. For emissions, specifically speed and drive
for PM as for the other pollutants, most example, long duration idling emissions cycles. One commenter supported EPA’s
of those input options do not have any are also poorly accounted for in development of MOVES since it will
affect on PM2.5 or PM10 emission MOBILE6.2. As a result, it is not an provide for better PM2.5 and PM10
estimates calculated by the model. For adequate tool for assessing the localized analyses in the future. Some of these
example, there are no temperature, impacts of individual projects such as commenters also noted that
humidity, or altitude corrections in bus, rail or freight terminals, or implementors will now have time to
MOBILE6.2 for PM2.5 or PM10. Speed, potential mitigation measures for gather data and obtain experience for
driving cycle, engine starts, and all of incorporation into such projects. conducting future quantitative analysis
the other activity input options EPA is working to resolve limitations of PM emissions.
similarly have no affect on PM2.5 or in MOBILE6.2 through a major data
collection and model development Response
PM10 emissions in MOBILE6.2. The only
conditions that do affect PM2.5 or PM10 effort. As part of that effort, EPA is EPA agrees with these comments for
emissions in MOBILE6.2 are fleet and collecting data on real-world the reasons given above and therefore
fuel characteristics. environmental and activity effects on has not required quantitative hot-spot
EPA has already determined that emissions for all pollutants, including analyses until appropriate tools and
these limitations are not a substantial PM2.5 and PM10. The next version of EPA guidance are available.
problem for regional scale emissions EPA’s motor vehicle emissions model Comment
estimation needed for PM2.5 and PM10 (called MOVES) will incorporate PM2.5
SIP inventories and regional emissions or PM10 adjustments for environmental Other commenters strongly disagreed
analyses for conformity. MOBILE6.2 and activity conditions (including long- with EPA’s proposed approach to
does account for the effects of vehicle duration idling) that are currently extend § 93.123(b)(4) to PM2.5 hot-spot
standards and the impacts of fleet missing in MOBILE6.2, and relevant to analyses. Commenters argued that the
turnover. Growth in activity is also hot-spot modeling as described above. absence of emissions factors was the
accounted for in projections of future MOVES will be specifically designed to single greatest obstacle to modeling
VMT which are multiplied by emission work at both the regional and micro- PM2.5 motor vehicle emissions, and now
factors to derive emissions inventories. scale level. EPA believes that MOVES that EPA has released MOBILE6.2, there
While it is desirable to include other will provide the level of detail needed is no basis for further delaying a
activity effects such as speed and for credible and meaningful PM2.5 or requirement that emissions from
driving cycle, differences in these PM10 hot-spot analysis. A draft version highways be quantified and assessed as
inputs are generalized over a larger area of MOVES that incorporates new part of a project-level conformity
in a regional analysis. Even in the emissions information for motor determination. Most of these
absence of data and methods to derive vehicles is expected in 2006 with a final commenters argued that continuing to
adjustment factors for these effects, EPA version in 2007. delay quantitative PM2.5 or PM10 hot-
believes that MOBILE6.2 is an adequate EPA also believes that both an spot analyses for transportation projects
tool for evaluation of PM2.5 and PM10 appropriate motor vehicle emissions is unjustified, given that great
emissions at the regional level. factor model and EPA’s guidance on advancements in modeling tools have
However, at the micro-scale level applying air quality models is necessary been made since the publication of the
needed for hot-spot analyses, these before quantitative PM2.5 and PM10 hot- original 1993 conformity rule. Because
limitations become very significant. spot modeling guidance can be required EPA has required the use of MOBILE6.2
Activity factors such as speed, driving in California. While EPA has approved for SIP development and regional
cycle, and number and distribution of EMFAC2002 for PM2.5 and PM10 emissions analyses, one commenter also
engine starts per day do have an regional emissions analysis in believed it would be unlawful not to
important impact on actual PM2.5 or California, we do not currently have require its use in PM2.5 and PM10 hot-
PM10 emissions from motor vehicles. enough information about how it spot analyses.
Most, if not all, transportation projects handles vehicle activity effects on PM2.5 Response
that would need to be analyzed would or PM10 emissions to make a
result in changes in these activity levels determination of its applicability to EPA disagrees with these commenters
that would need to be incorporated in quantitative PM2.5 and PM10 hot-spot based on the technical limitations of
credible hot-spot analyses. For example, analyses. EPA will evaluate the using MOBILE6.2 for hot-spot analyses
the construction of a highway applicability of EMFAC2002 for as discussed in detail above. The use of
interchange would likely result in quantitative PM2.5 and PM10 hot-spot MOBILE6.2 in hot-spot analyses will
significant changes to average speeds, analyses in the context of EPA’s future produce inaccurate results in some
driving cycles of vehicles, idling time, quantitative modeling guidance. cases. For example, a project that would
etc. in the immediate vicinity of the actually result in lower net emissions
interchange. The effects of these 2. Response to Comments due to traffic flow improvements, would
changes are an important and necessary EPA received several comments appear to result in an increase in
component of estimating the impact of directed at the application of motor emissions in an analysis done using
the new interchange on nearby PM2.5 or vehicle emissions models in MOBILE6.2 if the project also resulted
PM10 concentrations, but none of these quantitative PM2.5 or PM10 hot-spot in some increase in activity. This is
changes can be accounted for in the analyses. because MOBILE6.2 is insensitive to the
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currently available emissions factor effects of changes in speed for PM2.5 or


models. Comment PM10. At the same time, a project that
Likewise, the mitigating effects of Some commenters agreed that the actually results in increased emissions
potential control measures that smooth current modeling tools do not have the due to increased long-duration idling,
traffic flow, such as synchronization of ability to evaluate PM2.5 for hot-spot might appear to have no impact on
traffic signals, cannot be accounted for analyses adequately. They believed that emissions given that MOBILE6.2 does
in existing models. These limitations MOBILE6.2 is insensitive to many not properly account for long-duration

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idling emissions. Further, EPA does not EPA believes that it must first release Response
believe that it can be assumed that a quantitative modeling guidance that Although EPA agrees with
model is appropriate for a hot-spot describes how to apply existing air commenters that quantitative PM2.5 and
analysis simply because EPA has quality dispersion models to result in PM10 hot-spot analyses are critical for
approved a model for regional analyses. credible PM2.5 and PM10 hot-spot considering the public health
Any model EPA approves must be analyses. implications of transportation projects,
appropriate for the use to which it will we strongly disagree with commenters’
2. Response to Comments
be put. For all the reasons explained conclusions. EPA is not using the
above, MOBILE6.2 is not appropriate for Comment release of its future hot-spot modeling
PM2.5 or PM10 hot-spot analyses despite guidance to delay credible and
the fact that it may be appropriate for Many commenters supported the final
rule approach because they believed meaningful quantitative PM2.5 or PM10
regional analyses of those pollutants. hot-spot analyses. In fact, requiring such
that EPA guidance is essential for
Comment highlighting which dispersion models analyses now without having all models
are appropriate and for addressing other and EPA’s guidance available could
One of these commenters also
modeling issues. Some commenters result in analyses that are not credible
referenced text from pages 40–41 of
requested clarification on whether hot- and waste limited state and local
EPA’s August 2004 ‘‘Technical
spot analyses would be compared to the resources.
Guidance on the Use of MOBILE6.2 for EPA agrees that adequate air quality
Emission Inventory Preparation’’ as PM2.5 or PM10 annual or daily standards.
Some commenters agreed that guidance dispersion models may be available, but
evidence that MOBILE6.2 can be used to having such models is only one aspect
estimate emissions from individual is also necessary for the projection of
future travel activity levels and future of conducting credible PM2.5 or PM10
transportation projects. hot-spot analyses. As described in C.1.
background concentrations. Other
Response commenters believed that the issuance of this section, adequate dispersion
of guidance would provide modeling models alone are not enough to conduct
The commenter incorrectly
consistency and eliminate redundancy credible PM2.5 or PM10 hot-spot
interpreted the specific text referenced
across the country. analyses; adequate motor vehicle
in the MOBILE6.2 technical guidance
emissions factors and guidance for using
that describes how the model can be Response motor vehicle emissions factor and
used to account for differences in
dispersion models is also needed. The
emissions by roadway type. Although EPA agrees with these comments for results from dispersion models would
this input accounts for the differences in the reasons cited by the commenters. not be reliable for PM2.5 and PM10
emissions in stop-and-go driving as on EPA believes that the future hot-spot estimates if the emission factor models
an arterial street and continuous speed modeling guidance will provide used to provide input (such as
driving as on a freeway, those information that will be essential for MOBILE6.2) do not provide sufficient
differences only apply to the estimation addressing PM-specific modeling issues, detail to distinguish changes in activity
of CO, HC, and NOX emissions. PM10 which some commenters supported. In factors.
and PM2.5 emissions are not effected by addition, as stated elsewhere in this Nevertheless, even if the emission
these inputs. As described above, section, EPA also believes that its future factor models did provide this level of
differences in emissions by the type of development of the MOVES model is detail, EPA would still need to provide
driving that will occur are critical to essential to providing credible PM2.5 guidance on the application of
analyses of individual projects and and PM10 hot-spot analyses. dispersion models in determining
MOBILE6.2 cannot account for these
Comment whether a PM2.5 or PM10 hot-spot will
differences for PM2.5 or PM10 hot-spot
occur. Dispersion models are
analyses. Other commenters believed complicated tools that, if used
D. Rationale and Response to Comments § 93.123(b)(4) was originally included in incorrectly, could result in incorrect
About Dispersion Models and Other the 1993 conformity rule with EPA’s conclusions about the impact of an
Modeling Issues commitment to issue timely guidance individual project’s localized
on quantitative hot-spot analyses, which concentrations. For example, the
1. Rationale has not occurred. These commenters location of model receptors is
In order to complete appropriate hot- were very concerned that finalizing the particularly important in dispersion
spot modeling, EPA needs to specify proposal would create a loophole for modeling of PM2.5 and PM10 emissions.
which air quality dispersion models are delaying quantitative PM hot-spot If the receptors are predominately
appropriate for transportation projects analyses for projects that could upwind of the project being analyzed, it
and provide additional guidance for negatively impact air quality and public could lead to false conclusions about
estimating PM2.5 and PM10 health. These commenters believed that the likelihood of a violation. Guidance
concentrations at the local level. adequate dispersion models are already is also needed on making model output
Dispersion models estimate air quality available for PM2.5 and PM10 comparable to the relevant form of the
concentrations based on the emissions quantitative hot-spot analyses, and no air quality standards, and to EPA
produced by a particular project (which additional EPA guidance is needed regulations and guidance for PM2.5
will be provided in part through models before requiring such analyses. Another monitoring for the 24-hour and annual
like MOVES) and the background commenter believed that quantitative PM2.5 standards.
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concentrations assumed at a project hot-spot analyses of transportation Another important factor in


location. There are currently many projects should either apply dispersion modeling is the choice of
different dispersion models that are immediately upon promulgation of the meteorological data used in PM2.5 and
being used for air quality modeling, final rule or within a short period of PM10 hot-spot analyses. Areas need
including modeling of localized air time after promulgation (e.g., 120 days), guidance in how to choose
quality impacts for other pollutants. if EPA has not yet issued quantitative meteorological conditions that are
However, as described further below, modeling guidance by that time. properly representative of conditions

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that might result in a violation. Without models is further discussed in this current, observed outdoor PM
proper guidance, areas might choose to section. measurements. The air quality impacts
use meteorological data that lead to of those transportation projects that are
Comment
under-or over-predicting the likelihood relevant to a conformity determination
of a violation. Three commenters recommended that are estimated in the future, when actual
Guidance is also necessary to describe new regulatory language be added to the monitoring data is not available. As
how the projection of future travel conformity rule to require that ‘‘state-of- such, source-oriented models that use
activity levels and future background the-art’’ modeling tools be used to emissions estimates and run them
concentrations can be used as inputs to conduct PM2.5 or PM10 hot-spot analyses through an air quality model are the
dispersion modeling. Projects need to be as determined through the interagency only appropriate tools for projecting
analyzed based on assumptions that consultation process. By having model future-year impacts of transportation
they are fully utilized, or are selection determined through projects. The second part of this
experiencing maximum predicted consultation, a commenter believed that comment suggests that chemical
emissions, rather than projections of use EPA would have an opportunity to transport models are required for
when they first open. Likewise, provide guidance on specific details microscale analysis. However, over the
dispersion modeling has to take into even if formal guidance has not yet been time during which air parcels pass from
account projected changes in issued. a transportation project to a location
background PM2.5 and PM10 Response several hundred meters downwind,
concentrations. where PM hot-spots could be a concern,
These are just a few examples of the EPA disagrees with this general there is insufficient time for chemical
kinds of issues that modelers will face approach. The significant technical reactions to affect PM mass
when developing PM2.5 and/or PM10 limitations in MOBILE6.2 discussed in concentrations. Dispersion models have
hot-spot analyses. EPA is currently C.1. of this section cannot simply be been used for this purpose in the past,
researching these kinds of issues so that resolved through interagency and have been evaluated in the
currently available dispersion models consultation, and EPA’s future modeling scientific literature. The commenter is
can be applied appropriately for PM2.5 guidance will ensure that credible correct that PM2.5 emissions from motor
and PM10 hot-spot analyses. Without analyses are conducted. However, once vehicles are expected to decline in the
having all necessary models and an appropriate motor vehicle emissions future as a result of new vehicle
detailed guidance, EPA cannot have model and EPA’s future guidance is standards and fuels. However, the
reasonable assurance that the results of available, EPA agrees that the impact of those new standards is
dispersion modeling in hot-spot consultation process will play an gradual and does not preclude the
analyses will be consistent and credible important role in performing PM2.5 or possibility of PM hot-spot problems in
throughout the country, and ensure that PM10 hot-spot analyses. Section the future.
all projects will meet statutory 93.105(c)(1)(i) of the conformity rule
already requires that consultation be Comment
requirements.
used to evaluate and choose models and Two commenters noted that existing
Comment associated methods and assumptions for tools have already been used in a few
Two commenters cited a recent hot-spot analyses. Such consultation cases for localized NEPA analyses for
paper 14 on modeling toxic emissions must be consistent with the use of EPA- PM10, which they argued supported the
which they interpret as providing strong approved motor vehicle emissions mandatory application of these tools for
evidence that currently available models and our future guidance. all PM10 and PM2.5 hot-spot analyses.
dispersion models are suitable for Comment Response
estimating local PM concentrations.
One commenter stated that PM2.5 EPA disagrees. While it is true that
Toxic air pollutants include non-
source apportionment techniques these analyses were done on a voluntary
reactive gases that would disperse like
should first be improved, and that basis, it is not clear how well these
CO, and others that are aerosols that
models that simulate the chemistry and analyses would stand up to review if
would disperse as particles in the
transport of PM2.5 should be validated at there was a mandatory requirement for
ambient air.
the microscale level before hot-spot quantitative PM2.5 or PM10 hot-spot
Response modeling is required. This same analyses, for the technical reasons
As discussed in the previous commenter also noted that MOBILE6.2 discussed above.
response, EPA agrees that current estimates that low-sulfur diesel fuel and
E. Process and Timing for Developing
dispersion models may be suitable for cleaner vehicles, due to the phase-in of
Guidance
estimating PM2.5. or PM10 Tier 2 and federal heavy duty engine
standards, will dramatically reduce As described above, EPA is working
concentrations, provided that accurate to resolve the limitations in MOBILE6.2
emissions inputs are available for the PM2.5 emissions in the future. Therefore,
this commenter implied that PM2.5 hot- as part of the development of MOVES,
dispersion models and that the models EPA’s new emissions model for mobile
are used properly, as will be addressed spots may not be as much of a concern
once PM2.5 source apportionment sources. As described above, EPA is
in EPA’s future quantitative modeling currently collecting and analyzing data,
guidance. The limitations of existing techniques and chemical/dispersion
models are available, since by that time while simultaneously developing the
emissions information for localized MOVES model itself. A draft version of
analysis have already been discussed in on-road mobile sources may only
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represent a small fraction of PM2.5 MOVES that incorporates new


detail in C.1 of this section. The need emissions information for motor
for additional guidance on dispersion emissions in nonattainment areas.
vehicles is expected in 2006 with a final
Response version in 2007. MOVES will undergo
14 RobertG. Ireson, ‘‘Dispersion Modeling for
Mobile Source Air Toxics Exposure,’’ (January 9,
PM source apportionment is not a both stakeholder and peer review. More
2005) Transportation Research Board’s 84th Annual relevant technique for project-level air information on MOVES can be found at
Meeting of Air Quality Management Consulting. quality modeling, because it pertains to http://www.epa.gov/otaq/ngm.htm. EPA

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will also release SIP and transportation process during the development of categorical hot-spot findings will not be
conformity policy guidance for the final quantitative PM2.5 or PM10 hot-spot made prior to EPA’s announcement in
release of MOVES, which among other guidance. the Federal Register that quantitative
issues will describe the grace period for PM2.5 and PM10 hot-spot analyses are
VII. Categorical PM2.5 and PM10 Hot-
using MOVES in regional and hot-spot required (40 CFR 93.123(b)(4)).
spot Findings
conformity analyses. Modeling used to support categorical
EPA has also dedicated significant A. Description of Final Rule hot-spot findings must consider the
resources to conducting research that EPA is finalizing its proposal allowing emissions produced from a category of
will be used in the development of the DOT to make categorical hot-spot projects based on project sizes,
Agency’s future guidance for findings 15 for appropriate cases in PM2.5 configurations, and activity levels.
quantitative PM2.5 and PM10 hot-spot and PM10 nonattainment and Modeling could also consider the
analyses, which would be available maintenance areas. A categorical hot- emissions produced by a category of
when states are able to begin using spot finding would be made if there is projects and the resulting impact on air
MOVES. This guidance will discuss appropriate modeling that shows that a quality under different circumstances.
how MOVES and dispersion models can particular category of highway or transit Categorical hot-spot findings could
be used to complete quantitative PM2.5 projects covered by § 93.123(b)(1) will apply in a variety of situations where
and PM10 hot-spot analyses for the not cause or contribute to new or modeling shows that such projects will
transportation projects specified in worsened local violations. Such not cause or contribute to new or
today’s final rule. worsened violations. For instance, there
findings have the potential to further
may be cases where a categorical hot-
Comment streamline meeting the PM2.5 or PM10
spot finding could be made for a
hot-spot requirements, since no
Several commenters agreed that category of projects that would never
additional quantitative hot-spot
stakeholders should be involved during cause a new air quality violation,
modeling would be required to support
the development of the future worsen an existing violation or delay
a qualifying project’s conformity
quantitative hot-spot modeling timely attainment in any PM2.5 or PM10
determination.16 A project-level
guidance. One commenter suggested area.
conformity determination relying on the There may be other categories of
that this guidance should be developed
categorical finding and meeting all other projects that may be expected to meet
through a formal process similar to
requirements is still required. Clean Air Act requirements without
rulemakings. Another commenter This final rule provides for FHWA
recommended that EPA subject future further hot-spot analysis if a given area
and FTA to make categorical hot-spot has PM2.5 or PM10 air quality data which
hot-spot models and guidance to peer findings as appropriate for PM2.5 and
review. is significantly below the PM2.5 or PM10
PM10 hot-spot analyses for projects air quality standards. For example, a
Response listed in § 93.123(b)(1) of today’s final categorical hot-spot finding may be
EPA agrees that stakeholder input will rule. See Section V. for more appropriate for a highway project with
be important in the guidance information about projects of air quality significant levels of diesel traffic in a
development process and intends to concern. EPA notes that the final rule PM10 maintenance area if that area is
provide for such input, but has not yet clarifies and improves the existing significantly below the PM10 standards.
determined exactly what that process conformity rule’s flexibility for FTA to FHWA is currently examining, in
will be. However, EPA does not intend make categorical hot-spot findings in consultation with EPA, whether certain
to develop its future hot-spot modeling PM10 areas, which was originally categories of highway projects could
guidance through notice-and-comment promulgated in the conformity rule in qualify for a finding based on different
rulemaking, since this has not been our November 24, 1993.17 See EPA’s levels of activity and air quality
past practice for such guidance or even January 11, 1993 proposal (58 FR 3780) circumstances.
for motor vehicle emissions factor for further information. EPA, with concurrence from DOT, is
Modeling used to support a clarifying in this final rule the general
models like MOBILE6.2.
categorical hot-spot finding must be process for making any categorical hot-
F. Suggestions for Future Guidance based on appropriate motor vehicle spot findings. As stated above, this final
Comment emissions factor models, dispersion rule does not affect the requirement for
models, and EPA’s future quantitative conformity determinations to be
Several commenters had specific hot-spot modeling guidance. As a result, completed for all non-exempt projects
recommendations for items that should
in PM2.5 and PM10 areas. The modeling
be included in EPA’s future quantitative 15 In the December 2004 supplemental proposal
on which a categorical finding is based
PM2.5 and PM10 hot-spot guidance. and previous conformity rule, EPA used the term
‘‘categorical conformity determination,’’ but now would serve to fulfill the quantitative
Examples of recommendations include:
• A screening procedure for reducing believes this term is misleading. A conformity hot-spot analysis requirement for
the number of quantitative analyses
determination that meets all applicable qualifying projects. The modeled
requirements continues to be required for projects scenarios used by DOT to make
required; where a categorical hot-spot finding is relied upon.
• A list of potential project-level Consequently, the final rule uses the more categorical hot-spot findings would be
mitigation measures; appropriate terminology of ‘‘categorical hot-spot derived through consultation and
• Information on determining finding.’’ participation by EPA.
background contributions;
16 Of course, categorical hot-spot findings would
Interagency consultation procedures
not be done for all other projects that are not an air for project-level conformity
• A new assessment of re-entrained quality concern since no hot-spot analysis—
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road dust and construction dust quantitative or qualitative—is required for those determinations must be followed (40
emission factors; and projects in PM2.5 and PM10 areas. These projects are CFR 93.105). Any project-level
• Information about idling emissions. already presumed to meet statutory requirements conformity determination that relies on
without any hot-spot analysis, as stipulated under a categorical hot-spot finding would
Response § 93.116(a) of the final rule.
17 EPA notes that no categorical hot-spot findings also be subject to the public
EPA will review these suggestions have been made by FTA to date for transit projects involvement requirements of the NEPA
and others as part of the stakeholder in PM10 nonattainment and maintenance areas. process and the transportation

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conformity rule (40 CFR 93.105(e)), 2. Response to Comments analyses. These criteria are contained in
during which commenters can address EPA received numerous comments §§ 93.116 and 93.123 of the conformity
all appropriate issues relating to the that supported the proposal, as well as rule, including the revised provisions
categorical finding used in the a number of comments that did not. relating to categorical hot-spot findings.
conformity determination. Today’s final The conclusions by DOT in making
rule does not create any new public Comment categorical hot-spot findings that certain
participation requirements in project- Several commenters supported the categories of projects will not cause or
level conformity determinations. See C. proposal to allow FHWA and FTA to contribute to new or worsened
of this section for further details on the make categorical hot-spot findings, if violations, as well as the modeling
process for making categorical hot-spot appropriate modeling shows that the supporting such findings, will be
findings. Clean Air Act requirements are met conducted consistent with EPA’s
without additional PM2.5 or PM10 hot- conformity rule and future hot-spot
B. Rationale and Response to Comments modeling guidance discussed in Section
spot analyses. These commenters
on Categorical Findings VI. All aspects of a project-level
believed using Federal resources to
1. Rationale make such findings would also reduce conformity determination—including
the resource burden for state, regional the reliance on a categorical hot-spot
EPA concludes that it is both
and local agencies, and provide greater finding—are subject to interagency
appropriate and in compliance with the
certainty and stability to the consultation and public comment as
Clean Air Act to allow DOT to make
transportation planning process. described in 40 CFR 93.105(e).
categorical hot-spot findings with Furthermore, the authority to make
respect to categories of projects of air Response categorical hot-spot findings does not
quality concern, where modeling shows EPA agrees and is taking final action enable DOT to identify projects that do
that such projects will not cause or consistent with the December 2004 not require hot-spot analyses at all.
contribute to new or worsened air supplemental proposal and these Rather, although hot-spot analyses are
quality violations. As long as modeling comments. still required for all projects of air
shows that projects do not cause, quality concern, this requirement can be
contribute or worsen violations of the Comment satisfied by relying on modeling that
standards—either through an analysis of Other commenters objected to EPA’s concludes that certain categories of
a category of projects or a hot-spot proposal because they believed that it projects will not cause or contribute to
analysis for a single project—then would illegally delegate to FHWA and new or worsened violations. Further,
statutory conformity requirements are FTA the Agency’s statutory authority to although EPA retains the authority to
met. establish criteria and procedures for require hot-spot modeling in its
As discussed in Section V., EPA PM2.5 and PM10 transportation conformity procedures and to specify
finalized the criteria in § 93.123(b)(1) of conformity determinations. These appropriate models and methods in its
this final rule for when quantitative commenters believed that Congress future guidance, DOT has always had
PM2.5 or PM10 hot-spot analyses are explicitly required in the 1990 Clean Air the authority to make project-level
required, based on the best available Act Amendments that EPA, not DOT, conformity determinations, including
information to date. Expanding the promulgate the criteria and procedures deciding whether a project meets the
ability for DOT to make categorical hot- for determining conformity, including hot-spot analysis requirement through a
spot findings will allow future the criteria and procedures for making categorical hot-spot finding or separate
information to be taken into account in categorical hot-spot findings. Many of analysis.
an expedited manner, so that these commenters stated that the
quantitative PM2.5 and PM10 hot-spot proposal to expand the application of Comment
analyses are only required for categorical hot-spot findings would cede A few commenters stated that EPA’s
individual projects when necessary to EPA’s authority not only to identify proposal also conflicts with
protect public health and meet statutory projects that do not require hot-spot § 93.123(b)(4) of the conformity rule,
requirements. analyses, but also to select the models which one commenter believes requires
Making hot-spot findings on a or methods for determining whether EPA (not DOT) to issue modeling
category basis will reduce the resource emissions will cause or contribute to guidance for quantitative PM2.5 and
burden for state, regional and local violations or delay timely attainment. PM10 hot-spot analyses. A different
agencies, and provide greater certainty These commenters believed that it is commenter believed that the proposal
and stability to the transportation EPA’s statutory responsibility to adopt conflicted with § 93.123(b)(3) of the
planning process. A specific project- criteria and procedures for any PM10 proposed conformity rule, which
level conformity determination, and PM2.5 categorical hot-spot findings. required interagency consultation be
including use of the categorical finding, used to identify sites that require a hot-
will still be subject to applicable Response
spot analysis. This commenter argued
interagency consultation and public EPA disagrees with these comments. that the screening threshold or
involvement as described in 40 CFR EPA does not believe that allowing DOT mechanism for identifying projects that
93.105(e). to make categorical hot-spot findings in do not require hot-spot analyses and
Categorical hot-spot findings must be any way delegates EPA’s statutory selection of models or methods for hot-
supported by credible modeling obligation to establish criteria and spot analyses need to be agreed upon
demonstrations showing that project procedures for PM2.5 and PM10 under the interagency consultation
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categories will not cause or contribute to transportation conformity process.


new or worsened violations of the air determinations. EPA, through its
quality standards. Such modeling would regulations and modeling guidance, Response
need to be derived in consultation with continues to establish the criteria and EPA disagrees with commenters. The
EPA, and consistent with EPA’s future procedures for PM2.5 and PM10 final rule does not cede any of EPA’s
PM2.5 and PM10 quantitative hot-spot transportation conformity statutory authority to another Federal
modeling guidance. determinations, including hot-spot agency, and EPA will issue modeling

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guidance for quantitative PM2.5 and such hot-spot analyses. The reference to should be extended to CO
PM10 hot-spot analyses. Furthermore, Appendix W in the conformity nonattainment and maintenance areas.
DOT will follow this guidance in regulation is due to a historical anomaly
Response
conducting modeling to support any resulting from the fact that EPA had
future categorical hot-spot findings. approved localized CO modeling EPA did not propose expansion of the
The final rule merely allows DOT to techniques available at the time the hot-spot flexibility to CO, and therefore
conduct such a single analysis for a original 1993 conformity rule was can not take final action on such
category of projects rather than state and promulgated; however, no such expansion at this time.
local agencies conducting a separate techniques were approved for PM2.5 or Comment
analysis for each project in such a PM10 hot-spot analyses at that time. EPA
category. DOT will consult with EPA on intends to recommend in its future hot- One commenter who supported
categorical hot-spot findings, and spot modeling guidance the use of air options that would define the need for
project-level conformity determinations quality models, data bases, and other PM2.5 hot-spot analyses through the SIP
will be subject to interagency requirements that are consistent with (i.e., Options 2 and B) opposed EPA’s
consultation and public involvement. SIP development for those provisions of proposal for categorical hot-spot
Appendix W that apply. The public will findings. This commenter believed that
Comment SIP revisions and consultation
have the opportunity to comment on
Some commenters argued that the this guidance. For all of these reasons, procedures could best address when
criteria and procedures for making EPA believes that the final rule is categories of projects may be assumed to
categorical hot-spot findings, including consistent with both the Clean Air Act conform. In addition, this commenter
modeling tools or other methods, must and the public input requirements of the stated that SIP revisions should be
be established through a revision to the Administrative Procedures Act. required to detail the types of projects
conformity rule or in 40 CFR part 51, where hot-spots are likely. The
Appendix W (Guideline on Air Quality Comment commenter also believed that
Models). Such an approach, these Some commenters questioned quantitative analyses can be performed,
commenters argued, would be whether FHWA could adequately where appropriate or where data is
consistent with 40 CFR 93.123(a)(1) for implement categorical hot-spot findings sufficient.
quantitative CO hot-spot analyses, so that Clean Air Act requirements are
which requires such analyses to be met and protect public health. One Response
based on ‘‘applicable air quality models, commenter believed that FHWA has not EPA concludes that the comment is
data bases, and other requirements properly implemented the current PM10 no longer relevant to this rulemaking
specified in 40 CFR part 51, Appendix hot-spot requirements and FHWA’s because the rule will not be defining the
W * * * unless different procedures September 2001 guidance on PM10 need for hot-spot analyses solely
developed through the interagency qualitative hot-spot analyses. Other through the SIP process. Moreover, EPA
consultation process’’ are approved by commenters stated that EPA should reiterates that categorical hot-spot
EPA. Finally, one of these commenters maintain the statutory responsibility findings do not provide a determination
also specified that criteria for whether a Congress transferred in the 1990 Clean that projects are assumed to conform.
project qualifies for a categorical hot- Air Act Amendments, since EPA was Rather, they are a conclusion based on
spot finding must be promulgated by given this authority due to DOT not modeling that a category of projects will
EPA through notice-and-comment sufficiently implementing the 1977 not cause or contribute to NAAQS
procedures prescribed by 42 U.S.C. Clean Air Act conformity requirements. violations. A conformity determination
7506(c)(4)(A). is still required for all projects including
Response a localized hot-spot analysis, which
Response This final rule requires that project- would be done by reference to the
EPA does not agree that additional level conformity determinations include categorical finding. Finally, EPA notes
rulemaking is required or necessary to hot-spot analyses for projects of air that the Agency does not have authority
ensure that credible modeling is done to quality concern in PM2.5 and PM10 areas. under Clean Air Act section 176(c) to
support categorical hot-spot findings. As stated above, EPA believes that it is impose requirements on the content of
EPA has already requested comment in retaining its authority to promulgate SIP revisions relating to types of
the development of today’s final rule on: conformity criteria and procedures in transportation projects that might
(1) The criteria for whether a project providing for categorical hot-spot produce hot-spots. States are free to
qualifies for a categorical hot-spot findings in this final rule. It is true that consider this issue when developing
finding; and (2) the modeling that is qualitative PM10 hot-spot analyses have PM2.5 attainment SIPs and to impose
used in such findings. The categorical been required to this point, however appropriate controls on transportation
hot-spot finding provisions in this final this is due to the fact that credible activities as necessary to demonstrate
rule do not change the requirement for quantitative hot-spot analyses cannot timely attainment.
projects to not cause or contribute to yet be performed. Finally, prior to the
PM2.5 or PM10 air quality violations 1977 Clean Air Act Amendments, Comment
under the Clean Air Act and 40 CFR specific requirements on transportation One commenter also recommended
93.116. conformity determinations including that any categorical hot-spot findings
EPA also notes that the conformity hot-spot analyses did not exist, thus this may need to be subject to a SIP finding
regulations have historically required comment is not relevant to should the SIP for an area determine
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PM10 hot-spot analyses without implementation of the current statutory that such a categorical finding is
reference in its regulations to the air provisions. inappropriate under local conditions.
quality modeling requirements in
Appendix W, since the ‘‘Guideline’’ Comment Response
includes only general information One commenter believed that the Categorical hot-spot findings are a
regarding PM2.5 and PM10 air quality proposed flexibility for FHWA and FTA conclusion by DOT based on
modeling that would be applicable to to make categorical hot-spot findings appropriate modeling data that projects

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of a certain type will not worsen air process for DOT to make categorical hot- Response
quality. Such findings would be used in spot findings for certain highway and
future conformity determinations to transit projects. Commenters generally It is not reasonable for EPA to make
satisfy the requirements of 40 CFR supported the proposal to have FHWA categorical hot-spot findings because
93.116 and 93.123 relating to localized consult with EPA on categorical hot- EPA does not conduct the analyses to
PM2.5 and PM10 hot-spot analyses for spot findings. Several of these support conformity determinations. EPA
projects of air quality concern. Should commenters stipulated that promulgates criteria and procedures for
any SIP include a determination based making conformity determinations and
transportation and other conformity
on modeling that various categories of then DOT makes the determinations
stakeholders should also be consulted
transportation projects would cause or consistent with those criteria. It is DOT
when FHWA and EPA select the types
contribute to violations of the standards, that determines whether appropriate
of roadway and intersection projects
a categorical hot-spot finding could not models from EPA’s modeling guidance
covered and the modeling analyses used
be made, unless updated modeling and have been used in individual
to support categorical hot-spot findings. conformity determinations, and DOT
assumptions at a later date showed that
such projects met statutory Response that makes the final conformity
requirements. determinations. Thus, it is proper for
EPA has outlined the process for DOT to make all findings with respect
C. Description of and Response to making categorical hot-spot findings in to localized emission impacts, whether
Comments on Process for Making the preamble to the final rule as on an individual basis or categorically.
Categorical Hot-spot Findings requested by commenters. DOT will EPA will participate with DOT on final
1. Description of Process consult with EPA in making the categorical hot-spot findings and the
findings as requested by commenters. modeling used to support such findings,
In its December 2004 supplemental Project-level conformity determinations as recommended by the commenter.
proposal, EPA stated that it would work that rely on categorical hot-spot findings
with DOT to provide additional Comment
will remain subject to interagency
guidance on making categorical hot-spot consultation and public comment, as
findings. EPA has consulted with DOT One commenter believed that EPA
described in 40 CFR 93.105. As and state and local air quality agencies
and categorical hot-spot findings will be
discussed under Section VI., EPA also must be required to concur on
made according to the following general
plans to consider stakeholder input categorical hot-spot findings, at a
process:
• FHWA and/or FTA, as applicable, when preparing its future quantitative minimum.
will develop modeling, analyses, and hot-spot modeling guidance; categorical
Response
documentation to support the hot-spot findings must be consistent
categorical hot-spot finding. This would with this guidance. EPA does not believe it is necessary
be done with early and comprehensive Comment for EPA, state or local air agencies to
consultation and participation with concur in a categorical hot-spot finding.
EPA. One commenter believed that the These findings are a preliminary step in
• FHWA and/or FTA will provide proposed options for defining the need DOT completion of a conformity
EPA an opportunity to review and for PM2.5 hot-spot analyses through the determination. Neither EPA, states nor
comment on the complete categorical SIP (i.e., Options 2 and B) could provide local air agencies concur in conformity
hot-spot finding documentation. Any a full public process for categorical determinations, which are made by DOT
comments would need to be resolved in findings, since the public is involved in after interagency consultation with EPA,
a manner acceptable to EPA prior to the development of SIPs. states and local agencies, as well as
issuance of the categorical hot-spot public involvement. Stakeholders retain
finding. Consultation with EPA on issue Response all of the input authority they have
resolution would be documented. under EPA and DOT rules with respect
As described in Sections III. and IV.,
• FHWA and/or FTA would make the to conformity determinations in general.
EPA is not finalizing SIP-based options DOT is authorized to make conformity
final categorical hot-spot finding in a
memorandum or letter, which would be for applying PM2.5 and PM10 hot-spot determinations under the Clean Air Act
posted on EPA’s and DOT’s respective analysis requirements because these and the conformity regulations without
conformity Web sites. options do not meet statutory explicit concurrence by other
• Subsequently transportation conformity requirements. Furthermore, stakeholders. EPA concludes that it is
projects that meet the criteria set forth the conformity rule already provides an appropriate for DOT to continue to do
in the categorical finding would opportunity for project-level conformity so consistent with the Clean Air Act
reference that finding in their project- determinations—including those that after providing for interagency
level conformity determination, which rely on a categorical hot-spot finding— consultation and public comment,
would be subject to interagency to be subject to interagency consultation including those determinations that rely
consultation and the public and public comment. The final rule on a categorical hot-spot finding.
involvement requirements of the NEPA relies on these existing requirements.
Comment
process and the conformity rule. The Comment
existing consultation and public One commenter was concerned that
involvement processes would be used to One commenter believed that EPA the proposal appeared to only apply to
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consider the categorical hot-spot finding should make categorical hot-spot projects in which FHWA is
in the context of a particular project. findings in consultation with FHWA. participating. This commenter requested
2. Response to Comments Another commenter suggested that the that language be added to the final rule
types of roadway and intersection to allow state transportation agencies to
Comment projects covered by this flexibility be apply for the identified categorical hot-
Several commenters believed that developed through EPA and DOT spot finding for projects that require no
EPA needed to further define the consultation. Federal funds, if applicable.

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Response D. Stakeholder Suggestions for Eligible and air quality circumstances, for
Projects and Future Federal Efforts example the NAAQS level at different
EPA disagrees with this comment. kinds of project locations. This and
Under the conformity regulations, only In the December 2004 supplemental
proposal, EPA specifically requested other future work may eventually lead
projects of air quality concern that to development of categorical hot-spot
require FHWA or FTA funding or comment on the types of projects that
might be appropriate for consideration findings through the process identified
approval are subject to the requirements above, and this work will be consistent
of 40 CFR 93.116 and thus are required under a categorical hot-spot finding.
EPA received numerous helpful with EPA’s future quantitative PM2.5
to have conformity determinations and and PM10 modeling guidance and any
localized hot-spot analyses. Therefore, suggestions, which are summarized
below. EPA has decided that it does not models that are appropriate for use by
state transportation agencies would state and local implementers in
have no need to conduct categorical hot- have sufficient information at this time
to specify in the final rule which individual project analyses.
spot findings under the Federal
projects of air quality concern could VIII. Minor Change for Exempt Projects
conformity rule for regionally
receive future categorical hot-spot Regarding Compliance With PM2.5 SIP
significant non-federal projects, as the
findings to streamline meeting the Control Measures
commenter suggested. State
quantitative PM2.5 and PM10 hot-spot
transportation planners are certainly EPA proposed a minor regulatory
requirements. EPA is instead indicating
free to do localized hot-spot analyses as change in the December 2004
here that findings could be made for any
part of their transportation planning, but supplemental proposal in regard to
categories of projects addressed in
such analyses would not need to be compliance with PM2.5 SIP control
§ 93.123(b)(1) for which the Federal
conducted pursuant to the provisions of measures. EPA is finalizing today a
agencies have adequate modeling to
the Federal conformity regulations. As a small change to the footnote at the
support demonstrating that such types
result, EPA concludes that it is bottom of Table 2 in 40 CFR 93.126.
of projects will not cause or contribute
unnecessary to change the final rule in Section 93.126 is titled, ‘‘Exempt
to any new or worsened localized
response to this comment. projects’’ and Table 2 lists these projects
violations.
under several different headings.
Comment However, the suggestions submitted
Projects listed in the table are exempt
to the docket for this final rule will be
One commenter stated that categorical from the requirement to determine
considered in deciding where to begin
hot-spot findings should be left to the conformity, and may proceed even in
to consider the development of the
states working through their existing the absence of a conforming
technical analyses necessary to support
interagency consultation processes. This transportation plan and TIP.
future categorical hot-spot findings, and
commenter believed that the analysis Today’s final rule adds ‘‘and PM2.5’’
could be considered by DOT in deciding
after ‘‘PM10’’ in the footnote at the
associated with such findings would whether to make a categorical hot-spot
bottom of Table 2. Currently, the
more appropriately be performed at the finding. The following are some of the
footnote reads, ‘‘Note: In PM10
state level due to variations between suggestions received from commenters
nonattainment or maintenance areas,
projects, emission control programs, for categories of projects and different
such projects are exempt only if they are
meteorology, etc. at the local, state, air quality circumstances that could be
in compliance with control measures in
regional and national level. addressed by future findings:
the applicable implementation plan.’’
Types of projects:
Response • Projects that reduce congestion and However, PM2.5 areas also need to be
idling. One commenter suggested that included in this note to make § 93.126
The final rule relies on the existing consistent with 40 CFR 93.117. In the
rule’s interagency consultation projects that eliminated bottlenecks and
reduced congestion could be eligible July 1, 2004 final rule, EPA updated
provisions. Categorical findings are § 93.117, which discusses compliance
simply a way to streamline hot-spot since less congestion means less stop-
and-go traffic, and hence would reduce with SIP control measures to also cover
analysis requirements in advance to PM2.5 areas. EPA should have updated
support subsequent project-level PM even with a significant increase in
diesel traffic. This commenter believed the footnote in § 93.126 in the July 1,
conformity determinations that meet 2004 rule; we are correcting this
statutory and regulatory requirements. that analyses could be conducted to
quantify this tradeoff so as to determine oversight in today’s action. With this
However, it is DOT, not states that make change, projects on the exempt list in
conformity determinations, and thus it if and when a congestion-reducing
project might still trigger hot-spot § 93.126 would be exempt in a PM2.5
is appropriate for DOT to also make area only if they are in compliance with
concerns.
categorical hot-spot findings that will control measures in the applicable SIP.
Types of air quality circumstances:
support future project-level conformity
• Projects in locations with IX. How Does Today’s Final Rule Affect
determinations. Project-level conformity
significant margins of safety relative to Conformity SIPs?
determinations that rely on a categorical
the applicable standards.
finding will remain subject to • Projects in portions of the A. PM2.5 Areas and PM10 Areas Without
interagency consultation and public nonattainment area where current Approved Conformity SIPs
comment. monitoring data and forecasted All provisions in today’s final rule
As stated above, states will have input concentrations show no violation of the relating to PM2.5 hot-spots apply
to any conformity determinations PM2.5 standards. immediately in all PM2.5 nonattainment
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relying on a categorical hot-spot finding FHWA has recently dedicated and maintenance areas because no prior
through the interagency consultation resources to begin considering what conformity rules (or approved
process on such determinations, and as projects could qualify for future conformity SIPs) address these PM2.5
such can provide input on the categorical hot-spot findings, in hot-spot requirements. PM10 areas that
applicability of the categorical hot-spot consultation with EPA. This ongoing do not have approved conformity SIPs
finding analysis for a particular project’s effort is focused on evaluating the will be able to use immediately all of
determination. impacts of individual types of projects the conformity amendments related to

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PM10 that are included in today’s final also include all other sections of the X. Statutory and Executive Order
rule. Federal rule. Therefore, states with Reviews
approved conformity SIPs may decide to
B. PM10 Areas With Approved A. Executive Order 12866: Regulatory
Conformity SIPs withdraw the sections which they are Planning and Review
no longer required to include in their
In some areas, EPA has already SIPs. EPA will process these SIP Under Executive Order 12866, (58 FR
approved conformity SIPs that include revisions as expeditiously as possible 51735; October 4, 1993) the Agency
PM10 hot-spot provisions from previous through flexible administrative must determine whether the regulatory
conformity rulemakings that EPA is techniques such as parallel processing action is ‘‘significant’’ and therefore
revising in today’s final rule. In these and direct final rulemaking, since these subject to review and the requirements
areas, the Clean Air Act prohibits provisions are no longer required by the of the Executive Order. The Order
today’s Federal rule amendments from Clean Air Act. defines significant ‘‘regulatory action’’
superceding the previously approved as one that is likely to result in a rule
state rules. Therefore, the PM10 hot-spot C. No New Conformity SIP Deadline Is that may:
rule amendments in today’s final rule— Created by Final Rule (1) Have an annual effect on the
including the new §§ 93.116(a) and economy of $100 million or more, or
93.123(b)—will only be effective in EPA believes that no new conformity otherwise adversely affect in a material
areas with approved conformity SIPs SIP deadline is triggered by this final way the economy, a sector of the
that include related rule provisions rule in any PM2.5 or PM10 nonattainment economy, productivity, competition,
when the state either: or maintenance area. However, PM10 jobs, the environment, public health or
• Withdraws the existing provisions areas with approved conformity SIPs safety, or State, local, or tribal
from its approved conformity SIP and may decide to update their SIPs to governments or communities;
EPA approves the withdrawal because, reflect the final rule’s PM10 hot-spot (2) Create a serious inconsistency or
as discussed below, the Clean Air Act provisions, as described above. otherwise interfere with an action taken
has been amended to streamline With respect to the provisions that or planned by another agency;
conformity SIP requirements, or now must be included in SIPs under (3) Materially alter the budgetary
• Includes the revised PM10 hot-spot SAFETEA–LU, today’s final rule does
impact of entitlements, grants, user fees,
requirements in a SIP revision and EPA or loan programs or the rights and
not make any changes to either
approves that SIP revision. obligations of recipients thereof;
§ 93.122(a)(4)(ii) or § 93.125(c). (4) Raise novel legal or policy issues
EPA has no authority to disregard this
However, today’s final rule does amend arising out of legal mandates, the
statutory requirement for those portions
§ 93.105 by deleting § 93.105(c)(1)(v) President’s priorities, or the principles
of today’s final rule.
The Safe, Accountable, Flexible, from the conformity rule. Section set forth in the Executive Order.
Efficient Transportation Equity Act: A 93.105(c)(1)(v) required areas to consult Under the terms of Executive Order
Legacy for Users (SAFETEA–LU) (Pub. on determining which projects in PM10 12866, it has been determined that
L. 109–59) amended the conformity SIP nonattainment and maintenance areas amendments to this rule that are related
requirements contained in Clean Air Act are located at sites which have vehicle to conformity under the current PM2.5
section 176(c)(4). Prior to SAFETEA–LU and roadway emission and dispersion air quality standards are a ‘‘significant
being signed into law, Clean Air Act characteristics which are essentially regulatory action.’’ As such, this action
section 176(c)(4)(C) required states to identical to those at sites which have was submitted to OMB for Executive
submit revisions to their SIPs to reflect violations verified by monitoring, and Order 12866 review. Changes made in
all of the Federal criteria and therefore require a quantitative PM10 response to OMB suggestions or
procedures for determining conformity. hot-spot analysis. EPA deleted this recommendations are documented in
SAFETEA–LU section 6011(f)(4) provision for reasons described in the public record.
amends Clean Air Act section 176(c)(4) Section V. of today’s action.
B. Paperwork Reduction Act
so that states are now required to EPA believes the deletion of
address in their conformity SIPs only § 93.105(c)(1)(v) is not significant OMB has approved the information
the three sections on the Federal enough by itself to warrant any states collection requirements related to PM2.5
conformity rule that are required to be being required to update their contained in this rule for PM2.5 areas
tailored, which are: conformity SIPs within 12 months of the under the provisions of the Paperwork
• Section 93.105 which addresses publication of today’s final rule given Reduction Act, 44 U.S.C. 3501 et seq.
consultation procedures; and has assigned OMB control number
that states can continue to effectively
• Section 93.122(a)(4)(ii) which implement their existing conformity
2060–0561.
addresses written commitments to Transportation conformity
SIPs with this provision remaining in
control measures that are not included determinations are required under Clean
place. Although as noted above, a PM10 Air Act section 176(c) (42 U.S.C.
in an MPO’s transportation plan and TIP area with an approved SIP may decide
which must be obtained prior to a 7506(c)) to ensure that federally
to update its SIP in order to use the final supported highway and transit project
conformity determination and the
rule’s PM10 hot-spot provisions. activities are consistent with (‘‘conform
requirement that such commitments
must be fulfilled; and EPA and DOT have provided to’’) the purpose of the SIP. Conformity
• Section 93.125(c) which addresses guidance on implementing the to the purpose of the SIP means that
written commitments to mitigation conformity SIP provisions contained in transportation activities will not cause
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measures which must be obtained prior SAFETEA–LU. This guidance is posted or contribute to new air quality
to a project-level conformity on EPA’s transportation conformity Web violations, worsen existing violations, or
determination, and the requirement that site listed in Section I.B.2. of today’s delay timely attainment of the relevant
project sponsors must comply with such final rule, and is also available on DOT’s air quality standards. Transportation
commitments. Web site at: conformity applies under EPA’s
SAFETEA–LU eliminates the previous http://www.fhwa.dot.gov/environment/ conformity regulations at 40 CFR 51.390
statutory conformity rule requirement to conformity/sec6011guidmemo.htm. and 40 CFR part 93 to areas that are

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12508 Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Rules and Regulations

designated nonattainment and those to respond to a collection of sector. Under section 202 of the UMRA,
redesignated to attainment after 1990 information; search data sources; EPA generally must prepare a written
(‘‘maintenance areas’’ with SIPs complete and review the collection of statement, including a cost-benefit
developed under Clean Air Act section information; and, transmit or otherwise analysis, for proposed and final rules
175A) for transportation-source criteria disclose the information. with ‘‘Federal mandates’’ that may
pollutants. The Clean Air Act gives EPA An agency may not conduct or result in expenditures to State, local,
the statutory authority to establish the sponsor, and a person is not required to and tribal governments, in the aggregate,
criteria and procedures for determining respond to a collection of information or to the private sector, of $100 million
whether transportation activities unless it displays a currently valid OMB or more in any one year. Before
conform to the SIP. control number. The OMB control promulgating an EPA rule for which a
Provisions in today’s final rule that numbers for EPA’s regulations in 40 written statement is needed, section 205
are related to conformity requirements CFR are listed in 40 CFR part 9. In of the UMRA generally requires EPA to
in existing PM10 nonattainment and addition, EPA has amended the table in identify and consider a reasonable
maintenance areas do not impose any 40 CFR part 9 of currently approved number of regulatory alternatives and
new information collection OMB control numbers for various adopt the least costly, most cost-
requirements from EPA that require regulations to list the regulatory effective or least burdensome alternative
approval by OMB under the Paperwork citations for the information that achieves the objectives of the rule.
Reduction Act, 44 U.S.C. 3501 et seq. requirements contained in this final The provisions of section 205 do not
The information collection requirements rule. apply when they are inconsistent with
of revisions in today’s action for existing applicable law. Moreover, section 205
C. Regulatory Flexibility Act
PM10 areas are covered under the DOT allows EPA to adopt an alternative other
information collection request (ICR) The Regulatory Flexibility Act, as than the least costly, most cost-effective
entitled, ‘‘Metropolitan and Statewide amended by the Small Business or least burdensome alternative if the
Transportation Planning,’’ with the Regulatory Enforcement Fairness Act of Administrator publishes with the final
OMB control number of 2132–0529. 1996, requires the Agency to conduct a rule an explanation why that alternative
EPA provided two opportunities for regulatory flexibility analysis of any was not adopted. Before EPA establishes
public comment on the incremental significant impact a rule will have on a any regulatory requirements that may
burden estimates for transportation substantial number of small entities. significantly or uniquely affect small
conformity determinations under the Small entities include small businesses, governments, including tribal
new 8-hour ozone and PM2.5 standards. small not-for-profit organizations and governments, it must have developed
EPA received comments on both the small government jurisdictions. under section 203 of the UMRA a small
initial burden estimates provided in the For purposes of assessing the impacts
government agency plan. The plan must
November 5, 2003 proposal (68 FR of today’s final rule on small entities,
provide for notifying potentially
62719–62720) and on the revised small entity is defined as: (1) A small
affected small governments, enabling
estimates in the January 2004 ICR (69 business as defined by the Small
officials of affected small governments
FR 336). EPA responded to all of these Business Administration’s (SBA)
to have meaningful and timely input in
comments in the ICR that has been regulations at 13 CFR 121.201; (2) a
the development of EPA regulatory
approved by OMB. The approved ICR small governmental jurisdiction that is a
proposals with significant Federal
addresses all aspects of the conformity government of a city, county, town,
intergovernmental mandates, and
rule as it applies to the new 8-hour school district or special district with a
informing, educating, and advising
ozone and PM2.5 air quality standards. population of less than 50,000; and (3)
small governments on compliance with
The approved ICR accounts for PM2.5 a small organization that is any not-for-
hot-spot burden associated with the the regulatory requirements.
profit enterprise which is independently
most intensive of the proposed options owned and operated and is not EPA has determined that this final
(i.e., requiring PM2.5 hot-spot analyses dominant in its field. rule itself does not contain a Federal
for all projects in PM2.5 areas at all After considering the economic mandate that may result in expenditures
times). Consequently, since this final impacts of today’s final rule on small of $100 million or more for State, local,
rule only requires hot-spot analyses for entities, I certify that this action will not and tribal governments, in the aggregate,
a subset of all types of projects (i.e., have a significant economic impact on or the private sector in any one year.
projects of air quality concern), the a substantial number of small entities. The primary purpose of this final rule
approved ICR addresses—and even This regulation directly affects Federal is to determine requirements for hot-
overestimates—the actual PM2.5 hot-spot agencies, state departments of spot analyses in PM2.5 and PM10
burden that will occur under this final transportation and metropolitan nonattainment and maintenance areas.
rule. planning organizations that, by Clean Air Act section 176(c)(5) requires
Burden means the total time, effort, or definition, are designated under federal the applicability of conformity to such
financial resources expended by persons transportation laws only for areas as a matter of law one year after
to generate, maintain, retain, disclose or metropolitan areas with a population of new nonattainment designations. Thus,
provide information to or for a Federal at least 50,000. These organizations do although this rule explains how these
agency. This includes the time needed not constitute small entities within the analyses should be conducted, it merely
to review instructions; develop, acquire, meaning of the Regulatory Flexibility implements already established law that
install and utilize technology and Act. imposes conformity requirements and
systems for the purposes of collecting, does not itself impose requirements that
D. Unfunded Mandates Reform Act
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validating, and verifying information, may result in expenditures of $100


processing and maintaining Title II of the Unfunded Mandates million or more in any year. Thus,
information, and disclosing and Reform Act of 1995 (UMRA), Public today’s final rule is not subject to the
providing information; adjust the Law 104–4, establishes requirements for requirements of sections 202 and 205 of
existing ways to comply with any federal agencies to assess the effects of the UMRA and EPA has not prepared a
previously applicable instructions and their regulatory actions on state, local, statement with respect to budgetary
requirements; train personnel to be able and tribal governments and the private impacts.

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E. Executive Order 13132: Federalism areas subject to conformity requirements otherwise impractical. Voluntary
Executive Order 13132, entitled under the Clean Air Act that would not consensus standards are technical
‘‘Federalism’’ (64 FR 43255, August 10, have substantial direct effects on tribal standards (e.g., materials specifications,
1999), requires EPA to develop an governments, on the relationship test methods, sampling procedures, and
accountable process to ensure between the Federal government and business practices) that are developed or
‘‘meaningful and timely input by State Indian tribes, or on the distribution of adopted by voluntary consensus
and local officials in the development of power and responsibilities between the standards bodies. The NTTAA directs
regulatory policies that have federalism Federal government and Indian tribes, EPA to provide Congress, through OMB,
implications.’’ ‘‘Policies that have as specified in Executive Order 13175, explanations when the Agency decides
since these rules merely establish not to use available and applicable
federalism implications’’ is defined in
procedures for implementing the voluntary consensus standards.
the Executive Order to include
statutory mandates of the conformity This final rule does not involve
regulations that have ‘‘substantial direct
provisions which already apply under technical standards. Therefore, the use
effects on the States, on the relationship
the Clean Air Act as a matter of law. of voluntary consensus standards does
between the national government and
Accordingly, the requirements of not apply to this final rule.
the States, or on the distribution of
Executive Order 13175 are not
power and responsibilities among the J. Congressional Review Act
applicable to this final rule.
various levels of government.’’ The Congressional Review Act, 5
This final rule does not have G. Executive Order 13045: Protection of U.S.C. 801 et seq., as added by the Small
federalism implications. It will not have Children From Environmental Health Business Regulatory Enforcement
substantial direct effects on the States, and Safety Risks Fairness Act of 1996, generally provides
on the relationship between the national Executive Order 13045: ‘‘Protection of that before a rule may take effect, the
government and the States, or on the Children from Environmental Health agency promulgating the rule must
distribution of power and Risks and Safety Risks’’ (62 FR 19885, submit a rule report, which includes a
responsibilities among the various April 23, 1997) applies to any rule that: copy of the rule, to each House of the
levels of government, as specified in (1) Is determined to be ‘‘economically Congress and to the Comptroller General
Executive Order 13132. The Clean Air significant’’ as defined under Executive of the United States. The EPA will
Act requires conformity to apply in Order 12866, and (2) concerns an submit this final rule and other required
certain nonattainment and maintenance environmental health or safety risk that information to the U.S. Senate, the U.S.
areas as a matter of law, and this final EPA has reason to believe may have a House of Representatives, and the
action merely establishes and revises disproportionate effect on children. If Comptroller General of the United
procedures for transportation planning the regulatory action meets both criteria, States prior to publication of the final
entities in subject areas to follow in the Agency must evaluate the rule in the Federal Register. This rule
meeting their existing statutory environmental health or safety effects of is not a ‘‘major rule’’ as defined by 5
obligations. Thus, Executive Order the planned rule on children, and U.S.C. 804(2).
13132 does not apply to this final rule. explain why the planned regulation is This final rule is effective April 5,
F. Executive Order 13175: Consultation preferable to other potentially effective 2006 for good cause found as explained
and Coordination With Indian Tribal and reasonably feasible alternatives in this rule.
Governments considered by the Agency. K. Petitions for Judicial Review
This final is not subject to Executive
Executive Order 13175: ‘‘Consultation Order 13045 because it is not Under Clean Air Act section 307(b)(1),
and Coordination with Indian Tribal economically significant within the petitions for judicial review of this
Governments’’ (65 FR 67249, November meaning of Executive Order 12866 and action must be filed in the United States
6, 2000) requires EPA to develop an does not involve the consideration of Court of Appeals for the appropriate
accountable process to ensure relative environmental health or safety circuit by May 9, 2006. Filing a petition
‘‘meaningful and timely input by tribal risks to children. for reconsideration by the Administrator
officials in the development of of this final rule does not affect the
regulatory policies that have tribal H. Executive Order 13211: Actions That finality of this rule for the purposes of
implications.’’ ‘‘Policies that have tribal Significantly Affect Energy Supply, judicial review, nor does it extend the
implications’’ is defined in the Distribution or Use time within which a petition for judicial
Executive Order to include regulations This final rule is not subject to review may be filed, and shall not
that have ‘‘substantial direct effects on Executive Order 13211, ‘‘Action postpone the effectiveness of such a rule
one or more Indian tribes, on the Concerning Regulations That or action. This action may not be
relationship between the Federal Significantly Affect Energy Supply, challenged later in proceedings to
government and the Indian tribes, or on Distribution, or Use’’ (66 FR 28355; May enforce its requirements. (See section
the distribution of power and 22, 2001) because it will not have a 307(b)(2) of the Administrative
responsibilities between the Federal significant adverse effect on the supply, Procedures Act.)
government and Indian tribes.’’ distribution, or use of energy.
Today’s amendments to the L. Determination Under Section 307(d)
conformity rule do not significantly or I. National Technology Transfer and Pursuant to Clean Air Act section
uniquely affect the communities of Advancement Act 307(d)(1)(U), the Administrator
Indian tribal governments, as the Clean Section 12(d) of the National determines that this action is subject to
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Air Act requires transportation Technology Transfer and Advancement the provisions of section 307(d). Section
conformity to apply in any area that is Act of 1995 (‘‘NTTAA’’), Public Law No. 307(d)(1)(U) provides that the
designated nonattainment or 104–113, section 12(d) (15 U.S.C. 272 provisions of section 307(d) apply to
maintenance by EPA. This final rule note) directs EPA to use voluntary ‘‘such other actions as the Administrator
incorporates into the conformity rule consensus standards in its regulatory may determine.’’ While the
provisions addressing newly designated activities unless to do so would be Administrator did not make this
PM2.5 nonattainment and maintenance inconsistent with applicable law or determination earlier, the Administrator

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12510 Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Rules and Regulations

believes that all of the procedural TABLE 1.—CONFORMITY CRITERIA— ■ e. Amending paragraph (c)(5) by
requirements, e.g., docketing, hearing Continued removing ‘‘CO and PM10’’ in the first
and comment periods, of section 307(d) sentence and adding in its place ‘‘CO,
have been complied with during the PM10, and PM2.5’’.
course of this rulemaking. * * * * *
§ 93.116 .............. CO, PM10, and PM2.5 hot- § 93.123 Procedures for determining
List of Subjects in 40 CFR Part 93 spots. localized CO, PM10, and PM2.5
concentrations (hot-spot analysis).
Environmental protection, * * * * *
Administrative practice and procedure, * * * * *
Air pollution control, Carbon monoxide, (b) PM10 and PM2.5 hot-spot analyses.
* * * * * (1) * * *
Intergovernmental relations, Nitrogen (i) * * *
dioxide, Ozone, Particulate matter, (i) New or expanded highway projects
(1) FHWA/FTA projects in PM2.5
Transportation, Volatile organic that have a significant number of or
nonattainment or maintenance areas
compounds. significant increase in diesel vehicles;
must satisfy the appropriate hot-spot
test required by § 93.116(a). (ii) Projects affecting intersections that
Dated: February 23, 2006.
are at Level-of-Service D, E, or F with a
Stephen L. Johnson, * * * * * significant number of diesel vehicles, or
Administrator. ■ 5. In § 93.116, the section heading and those that will change to Level-of-
paragraph (a) are revised to read as Service D, E, or F because of increased
■ For the reasons set out in the
follows: traffic volumes from a significant
preamble, 40 CFR part 93 is amended as
follows: § 93.116 Criteria and procedures:
number of diesel vehicles related to the
Localized CO, PM10, and PM2.5 violations project;
PART 93—[AMENDED] (hot-spots). (iii) New bus and rail terminals and
(a) This paragraph applies at all times. transfer points that have a significant
■ 1. The authority citation for part 93 number of diesel vehicles congregating
continues to read as follows: The FHWA/FTA project must not cause
or contribute to any new localized CO, at a single location;
Authority: 42 U.S.C. 7401–7671q. PM10, and/or PM2.5 violations or (iv) Expanded bus and rail terminals
increase the frequency or severity of any and transfer points that significantly
§ 93.101 [Amended]
existing CO, PM10, and/or PM2.5 increase the number of diesel vehicles
■ 2. Section 93.101 is amended in the violations in CO, PM10, and PM2.5 congregating at a single location; and
first sentence of the definition for ‘‘Hot- nonattainment and maintenance areas. (v) Projects in or affecting locations,
spot analysis’’ by removing ‘‘CO and This criterion is satisfied without a hot- areas, or categories of sites which are
PM10’’ and adding in its place ‘‘CO, spot analysis in PM10 and PM2.5 identified in the PM10 or PM2.5
PM10, and/or PM2.5’’. nonattainment and maintenance areas applicable implementation plan or
§ 93.105 [Amended] for FHWA/FTA projects that are not implementation plan submission, as
identified in § 93.123(b)(1). This appropriate, as sites of violation or
■ 3. Section 93.105 is amended by criterion is satisfied for all other FHWA/ possible violation.
removing paragraph (c)(1)(v) and FTA projects in CO, PM10 and PM2.5 (2) Where quantitative analysis
redesignating paragraphs (c)(1)(vi) and nonattainment and maintenance areas if methods are not available, the
(vii) as paragraphs (c)(1)(v) and (vi). it is demonstrated that during the time demonstration required by § 93.116 for
■ 4. Section 93.109 is amended as frame of the transportation plan (or projects described in paragraph (b)(1) of
follows: regional emissions analysis) no new this section must be based on a
■ a. In Table 1 of paragraph (b), revising local violations will be created and the qualitative consideration of local
both entries for ‘‘§ 93.116’’; severity or number of existing violations factors.
■ b. By redesignating paragraphs (i)(1) will not be increased as a result of the (3) DOT, in consultation with EPA,
and (2) as paragraphs (i)(2) and (3) and project. The demonstration must be may also choose to make a categorical
adding new paragraph (i)(1); performed according to the consultation hot-spot finding that § 93.116 is met
■ c. In paragraph (j) by removing ‘‘CO requirements of § 93.105(c)(1)(i) and the without further hot-spot analysis for any
and PM10’’ and adding in its place ‘‘CO, methodology requirements of § 93.123. project described in paragraph (b)(1) of
PM10, and PM2.5’’; * * * * * this section based on appropriate
■ d. In paragraph (k) by removing ‘‘CO modeling. DOT, in consultation with
■ 6. Section 93.123 is amended as
and PM10’’ and adding in its place ‘‘CO, EPA, may also consider the current air
PM10, and PM2.5’’; and follows:
quality circumstances of a given PM2.5
■ a. Revising the section heading;
■ e. In paragraph (l)(1) by removing ‘‘CO or PM10 nonattainment or maintenance
■ b. Amending the first sentence in
and PM10’’ and adding in its place ‘‘CO, area in categorical hot-spot findings for
paragraph (a)(1) introductory text by
PM10, and PM2.5’’. applicable FHWA or FTA projects.
removing ‘‘CO and PM10’’ and adding in
§ 93.109 Criteria and procedures for its place ‘‘CO, PM10, and PM2.5’’; * * * * *
determining conformity of transportation ■ c. Amending paragraph (b) by:
§ 93.125 [Amended]
plans, programs, and projects: General. ■ i. Revising the paragraph heading;
* * * * * ■ ii. Revising paragraphs (b)(1)(i), (ii) ■ 7. Section 93.125(a) is amended by
(b) * * * and (iii), and adding new paragraphs removing ‘‘PM10 or CO’’ in the first
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(b)(1)(iv) and (v); and sentence and adding in its place ‘‘CO,
TABLE 1.—CONFORMITY CRITERIA ■ iii. Revising paragraphs (b)(2) and PM10, or PM2.5’’.
(b)(3);
§ 93.126 [Amended]
■ d. Amending paragraph (c)(4) by
* * * * * removing ‘‘PM10 or CO’’ in the first ■ 8. Section 93.126 is amended in
§ 93.116 .............. CO, PM10, and PM2.5 hot- sentence and adding in its place ‘‘CO, footnote 1 by removing ‘‘PM10’’ and
spots. PM10, or PM2.5’’; and adding in its place ‘‘PM10 and PM2.5’’.

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Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Rules and Regulations 12511

§ 93.127 [Amended] ■ b. Adding a new sentence after the making a project-level conformity
second sentence to read as follows: determination, if a project in Table 3
■ 9. Section 93.127 is amended as ‘‘The local effects of projects with also meets the criteria in § 93.123(b)(1).’’
follows: respect to PM10 and PM2.5
[FR Doc. 06–2178 Filed 3–6–06; 9:21 am]
■ a. Amending the second sentence by concentrations must be considered and
removing ‘‘or PM10’’. a hot-spot analysis performed prior to BILLING CODE 6560–50–P
dsatterwhite on PROD1PC65 with PROPOSAL

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