# Transportation Conformity Rule PM2.5 and PM10 Amendments > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-5703 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 24, 2010 - **Citation:** 75 FR 14260 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 93 [EPA-HQ-OAR-2008-0540; FRL-9127-7] RIN 2060-AP29 Transportation Conformity Rule PM 2.5 and PM 10 Amendments AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: In this action, EPA is amending the transportation conformity rule to finalize provisions that were proposed on May 15, 2009. These amendments primarily affect conformity's implementation in PM 2.5 and PM 10 nonattainment and maintenance areas. EPA is updating the transportation conformity regulation in light of an October 17, 2006 final rule that strengthened the 24-hour PM 2.5 national ambient air quality standard (NAAQS) and revoked the annual PM 10 NAAQS. In addition, EPA is clarifying the regulations concerning hot-spot analyses to address a December 2007 remand from the Court of Appeals for the District of Columbia Circuit. This portion of the final rule applies to PM 2.5 and PM 10 nonattainment and maintenance areas as well as carbon monoxide nonattainment and maintenance areas. The Clean Air Act (CAA) requires federally supported transportation plans, transportation improvement programs, and projects to be consistent with (“conform to”) the purpose of the state air quality implementation plan. The U.S. Department of Transportation (DOT) is EPA's federal partner in implementing the transportation conformity regulation. EPA has consulted with DOT, and they concur with this final rule. DATES: This final rule is effective on April 23, 2010. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2008-0540. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the Air and Radiation Docket is (202) 566-1742. FOR FURTHER INFORMATION CONTACT: Laura Berry, State Measures and Conformity Group, Transportation and Regional Programs Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105, e-mail address: berry.laura@epa.gov, telephone number: (734) 214-4858, fax number: (734) 214-4052; or Patty Klavon, State Measures and Conformity Group, Transportation and Regional Programs Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105, e-mail address: klavon.patty@epa.gov, telephone number: (734) 214-4476, fax number: (734) 214-4052. SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in the following outline: I. General Information II. Background on the Transportation Conformity Rule III. General Overview of Transportation Conformity for the 2006 PM 2.5 NAAQS IV. Baseline Year for Certain 2006 PM 2.5 Nonattainment Areas V. Regional Conformity Tests in 2006 PM 2.5 Nonattainment Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997 PM 2.5 NAAQS VI. Regional Conformity Tests in 2006 PM 2.5 Areas That Have 1997 PM 2.5 SIP Budgets VII. Other Conformity Requirements for 2006 PM 2.5 Areas VIII. Transportation Conformity in PM 10 Nonattainment and Maintenance Areas and the Revocation of the Annual PM 10 NAAQS IX. Response to the December 2007 Hot-Spot Court Decision X. Statutory and Executive Order Reviews I. General Information A. Does This Action Apply to Me? Entities potentially regulated by the conformity rule are those that adopt, approve, or fund transportation plans, programs, or projects under title 23 U.S.C. or title 49 U.S.C. Regulated categories and entities affected by today's action include: Category Examples of regulated entities Local government Local transportation and air quality agencies, including metropolitan planning organizations (MPOs). State government State transportation and air quality agencies. Federal government Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit Administration (FTA)). This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this final rule. This table lists the types of entities of which EPA is aware that potentially could be regulated by the transportation conformity rule. Other types of entities not listed in the table could also be regulated. To determine whether your organization is regulated by this action, you should carefully examine the applicability requirements in 40 CFR 93.102. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. How Can I Get Copies of This Document? 1. Docket EPA has established an official public docket for this action under Docket ID No. EPA-HQ-OAR-2008-0540. You can get a paper copy of this Federal Register document, as well as the documents specifically referenced in this action, any public comments received, and other information related to this action at the official public docket. See the ADDRESSES section for its location. 2. Electronic Access You may access this Federal Register document electronically through EPA's Transportation Conformity Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm. You may also access this document electronically under the Federal Register listings at http://www.epa.gov/fedrgstr/. An electronic version of the official public docket is available through http://www.regulations.gov . You may use http://www.regulations.gov to view public comments, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number. Certain types of information will not be placed in the electronic public docket. Information claimed as CBI and other information for which disclosure is restricted by statute is not available for public viewing in the electronic public docket. EPA's policy is that copyrighted material is not placed in the electronic public docket but is available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in the electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in the electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in the ADDRESSES section. EPA intends to provide electronic access in the future to all of the publicly available docket materials through the electronic public docket. For additional information about the electronic public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. II. Background on the Transportation Conformity Rule A. What Is Transportation Conformity? Transportation conformity is required under CAA section 176(c) (42 U.S.C. 7506(c)) to ensure that transportation plans, transportation improvement programs (TIPs) and federally supported highway and transit project activities are consistent with (“conform to”) the purpose of the state air quality implementation plan (SIP). Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant national ambient air quality standards (NAAQS) or any interim milestones. 1 Transportation conformity applies to areas that are designated nonattainment, and those areas redesignated to attainment after 1990 (“maintenance areas”) for transportation-related criteria pollutants: Carbon monoxide (CO), ozone, nitrogen dioxide (NO 2 ) and particulate matter (PM 2.5 , and PM 10 ). 2 1 These requirements are found in Clean Air Act section 176(c)(B)(i), (ii), and (iii): “That such activities will not cause or contribute to any new violation of any standard in any area; increase the frequency or severity of any existing violation of any standard in any area; or delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area.” 2 40 CFR 93.102(b)(1) defines PM 2.5 and PM 10 as particles with an aerodynamic diameter less than or equal to a nominal 2.5 and 10 micrometers, respectively. EPA's transportation conformity rule (40 CFR Parts 51 and 93) establishes the criteria and procedures for determining whether transportation activities conform to the SIP. EPA first promulgated the transportation conformity rule on November 24, 1993 (58 FR 62188), and subsequently published several other amendments. DOT is EPA's federal partner in implementing the transportation conformity regulation. EPA has consulted with DOT, which concurs with this final rule. A few recent amendments to the transportation conformity rule are useful background for today's final rule. In a final rule EPA published on July 1, 2004 (69 FR 40004), EPA provided conformity procedures for state and local agencies under the 1997 8-hour ozone and PM 2.5 national ambient air quality standards (NAAQS). EPA's nonattainment area designations for the 1997 8-hour ozone and PM 2.5 NAAQS were effective in June 2004 and April 2005, respectively. The July 2004 update provided rules for implementing conformity for these NAAQS. In addition, on May 6, 2005, EPA promulgated a final rule entitled, “Transportation Conformity Rule Amendments for the New PM 2.5 National Ambient Air Quality Standard: PM 2.5 Precursors” (70 FR 24280). This final rule specified transportation-related PM 2.5 precursors and when they must be considered in transportation conformity determinations in PM 2.5 nonattainment and maintenance areas. On March 10, 2006, EPA promulgated a final rule (71 FR 12468) entitled, “PM 2.5 and PM 10 Hot-Spot Analyses in Project-Level Transportation Conformity Determinations for the New PM 2.5 and Existing PM 10 National Ambient Air Quality Standards.” This rule established the criteria and procedures for determining which transportation projects must be analyzed for local air quality impacts—or “hot-spots”—in PM 2.5 and PM 10 nonattainment and maintenance areas. See Section IX. of today's preamble for more information regarding the March 2006 rule; see EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/index.htm for further information about any of EPA's transportation conformity rulemakings. 3 3 At this website, click on “Regulations” to find all of EPA's proposed and final rules as well as the current transportation conformity regulations. B. Why Are We Issuing This Final Rule? Today's action is necessary because EPA promulgated a final rule on October 17, 2006 that changed the PM 2.5 and PM 10 NAAQS, as described further below. Today's action provides rules for implementing conformity for these revisions to the PM 2.5 and PM 10 NAAQS. Sections III. through VIII. describe the changes to the transportation conformity rule that are a result of the October 2006 revisions to the PM 2.5 and PM 10 NAAQS. Today's final rule is the second transportation conformity rulemaking undertaken primarily for the purpose of addressing a new or revised NAAQS. Due to other statutory requirements, EPA will continue to establish new or revised NAAQS in the future. Therefore, EPA may consider restructuring certain sections of the conformity rule in a future rulemaking so that existing rule requirements would clearly apply to areas designated for future new or revised NAAQS, without having to update the rule each time a new or revised NAAQS is established. Note that in 2009, EPA issued an interim conformity guidance for areas designated nonattainment for the 2006 PM 2.5 NAAQS 4 (“2006 PM 2.5 areas”). 5 EPA issued this interim guidance to help new nonattainment areas meet conformity requirements by the end of the one-year grace period. While this interim guidance is superseded by today's final rule, conformity determinations done according to the interim guidance are consistent with the CAA, and with the transportation conformity rule. 6 Therefore, conformity determinations based on the interim guidance and the transportation conformity rule in effect at the time of the conformity determination will remain valid. Conformity determinations completed on or after the effective date of this final rule must meet all the requirements in the final rule. EPA will work with the 2006 PM 2.5 areas to ensure they can meet conformity requirements on time. 4 “2006 PM 2.5 NAAQS” refers to the 24-hour PM 2.5 NAAQS promulgated in 2006. 5 “Interim Transportation Conformity Guidance for 2006 PM 2.5 Nonattainment Areas,” EPA-420-B-09-036, November 2009, available on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b09036.pdf. 6 Today's final rule changes the baseline year used to demonstrate conformity for the 2006 PM 2.5 NAAQS prior to having an adequate or approved PM 2.5 SIP budget; the interim guidance addressed this change. Refer to Section IV. for further discussion of the baseline year for conformity purposes. Today's final rule also responds to a court decision regarding the March 2006 hot-spot rulemaking. Section IX. of this preamble describes the issue, the court's decision, and EPA's response. III. General Overview of Transportation Conformity for the 2006 PM 2.5 NAAQS A. Background on 2006 PM 2.5 NAAQS Development EPA issued a final rule on October 17, 2006, effective December 18, 2006, that strengthened the 24-hour PM 2.5 NAAQS and revoked the annual PM 10 NAAQS (71 FR 61144). In that final rule, EPA strengthened the 24-hour PM 2.5 NAAQS from the 1997 level of 65 micrograms per cubic meter (μg/m 3 ) (average of 98th percentile values for three consecutive years) to 35 μg/m 3 , while the level of the annual PM 2.5 NAAQS remained unchanged at 15.0 µg/m 3 (average of three consecutive annual average values). EPA selected levels for the final NAAQS after completing an extensive review of thousands of scientific studies on the impact of fine and coarse particles on public health and welfare. For additional information about the October 17, 2006 rulemaking, the final rule and EPA outreach materials can be found at: http://www.epa.gov/pmdesignations/. The October 2006 rule establishing the 2006 PM 2.5 NAAQS did not revoke the 1997 annual or 24-hour PM 2.5 NAAQS. See Section III.D. below for details on how today's final rule interacts with conformity requirements for those areas designated nonattainment for the 1997 PM 2.5 NAAQS. 7 7 “1997 PM 2.5 NAAQS” includes both the annual and the 24-hour 1997 PM 2.5 NAAQS unless noted otherwise. EPA signed the final rule designating areas for the 2006 PM 2.5 NAAQS on October 8, 2009. 8 This final rule was published in the Federal Register on November 13, 2009, and became effective December 14, 2009. The designations for the 2006 PM 2.5 NAAQS are separate from the existing designations for the 1997 PM 2.5 NAAQS. 8 A Federal Register notice designating areas for the 2006 PM 2.5 NAAQS had been signed in late December 2008 by then-Administrator Johnson, where the designations were based on air quality data from 2005-2007. The December 2008 notice was awaiting publication in January 2009 when the newly elected Administration identified the notice as one that should receive additional review before publication. However, this notice was never published in the Federal Register and, therefore, designations were not officially promulgated. CAA section 107(d)(2)(A) requires EPA to publish the notice in the Federal Register in order to promulgate designations. Since January 2009, monitoring data for 2008 has become available for areas across the U.S. Therefore, the final designations in the final rule signed by Administrator Jackson on October 8, 2009 are based on air quality monitoring data from Federal Reference Method monitors for calendar years 2006-2008. However, in the final rule designating areas for the 2006 PM 2.5 NAAQS, EPA has also clarified that all 39 areas designated nonattainment for the 1997 PM 2.5 NAAQS were violating the annual PM 2.5 NAAQS, and two of those were also violating the 24-hour PM 2.5 NAAQS. 9 That is, EPA's designations rule clarifies that only two areas were designated nonattainment for the 1997 24-hour PM 2.5 NAAQS, and that all 39 nonattainment areas were designated nonattainment for the 1997 annual PM 2.5 NAAQS. 9 The two areas designated as nonattainment for both the annual and 24-hour 1997 PM 2.5 NAAQS are the Los Angeles-South Coast Air Basin, CA nonattainment area and the San Joaquin Valley, CA nonattainment area. Transportation conformity applies for the NAAQS for which an area is designated nonattainment. 10 Therefore, in two of the 1997 PM 2.5 areas, conformity applies for both the 1997 annual and 24-hour NAAQS. In the other 37 1997 PM 2.5 areas, conformity applies for the 1997 annual NAAQS, and not the 1997 24-hour PM 2.5 NAAQS. 10 Clean Air Act section 176(c)(5) and 40 CFR 93.102(b). Refer to EPA's Web site at: http://www.epa.gov/pmdesignations/2006standards/index.htm for additional information about the nonattainment designations. B. When Does Conformity Apply for the 2006 PM 2.5 NAAQS? Transportation conformity for the 2006 PM 2.5 NAAQS does not apply until December 14, 2010, which is one year after the effective date of nonattainment designations for this NAAQS. CAA section 176(c)(6) and 40 CFR 93.102(d) provide a one-year grace period from the effective date of designations before transportation conformity applies in areas newly designated nonattainment for a particular NAAQS. 11 11 EPA began the process of notifying state and local agencies, via the EPA regional offices, of the timing of conformity under the 2006 PM 2.5 NAAQS in its April 16, 2007 memorandum entitled, “Transportation Conformity and the Revised 24-hour PM 2.5 Standard,” from Merrylin Zaw-Mon, Director, Transportation and Regional Programs Division, EPA Office of Transportation and Air Quality, to EPA Regional Air Directors, Regions I-X. The following discussion provides more details on the application of the one-year grace period in different types of newly designated nonattainment areas for the 2006 PM 2.5 NAAQS. This information is consistent with how conformity for new NAAQS has been implemented in the past. 12 The conformity grace period will be available to all newly designated nonattainment areas for the 2006 PM 2.5 NAAQS. 12 See EPA's July 1, 2004 final rule for further background on how EPA has implemented this conformity grace period for the 1997 PM 2.5 NAAQS (69 FR 40004). Metropolitan areas are urbanized areas that have a population greater than 50,000 and a designated metropolitan planning organization (MPO) responsible for transportation planning per 23 U.S.C. 134. Within one year after the effective date of the initial nonattainment designation for the 2006 PM 2.5 NAAQS, a conformity determination for this NAAQS must be made by the MPO and DOT for the MPO's transportation plan and TIP. MPOs must continue to meet conformity requirements for any other applicable NAAQS, including the 1997 PM 2.5 NAAQS, if the area is designated nonattainment or maintenance for such NAAQS as well. In nonattainment and maintenance areas with a donut portion, 13 adjacent MPOs must meet conformity requirements for the 2006 PM 2.5 NAAQS. The MPO must also continue to ensure that conformity is met for any other applicable NAAQS, including any 1997 PM 2.5 NAAQS for which the donut area is designated nonattainment. 14 The interagency consultation partners for each newly designated nonattainment area that includes a donut portion should determine how best to consider the donut area transportation system and new donut area projects in the MPO's regional emissions analyses and transportation plan and TIP conformity determinations. 13 For the purposes of transportation conformity, a “donut” area is the geographic area outside a metropolitan planning area boundary, but inside a designated nonattainment or maintenance area boundary that includes an MPO (40 CFR 93.101). For more discussion on how conformity determinations should be made for donut areas, see the preamble to the July 1, 2004 conformity rule (69 FR 40013). 14 Determining conformity for these other NAAQS during the one-year grace period is not necessary unless required by 40 CFR 93.104 (for example, a new or amended transportation plan and TIP are to be adopted). If, at the end of the one-year grace period, the MPO and DOT have not made a transportation plan and TIP conformity determination for the 2006 PM 2.5 NAAQS, the entire area, including any donut area, would be in a conformity “lapse.” 15 During a conformity lapse, only certain projects can receive additional federal funding or approvals to proceed ( e.g. exempt projects, project phases that were approved before the lapse). 16 The practical impact of a conformity lapse will vary on an area-by-area basis. 15 The lapse grace period provision in CAA section 176(c)(9) does not apply to the deadline for newly designated nonattainment areas to make the initial transportation plan/TIP conformity determination within 12 months of the effective date of the nonattainment designation. For additional details on the conformity lapse grace period, see the preamble to the January 24, 2008 conformity rule (73 FR 4423-4425). 16 For additional information on projects that can proceed during a conformity lapse, refer to the final rule of July 1, 2004 (69 FR 40005-40006), which addressed the March 2, 1999 U.S. Court of Appeals decision that affected related provisions of the conformity rule ( Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir. 1999). See also the following guidance memoranda that address this court decision: DOT's January 2, 2002 guidance, published in the Federal Register on February 7, 2002 (67 FR 5882); DOT's May 20, 2003 and FTA's April 9, 2003 supplemental guidance documents; and, EPA's May 14, 1999 guidance memorandum. The one-year grace period for conformity also applies to project-level conformity determinations (including hot-spot analyses in certain cases) in newly designated 2006 PM 2.5 nonattainment areas. At the end of the one-year grace period for conformity, requirements for project-level conformity determinations must be met for the 2006 PM 2.5 NAAQS (including hot-spot analyses in certain cases) before any new federal approvals for such projects can occur. See Table 1 in 40 CFR 93.109 for the conformity criteria that apply for project-level conformity determinations. Isolated rural nonattainment and maintenance areas are areas that do not contain or are not part of any metropolitan planning area as designated by 23 U.S.C. 134 and 49 U.S.C. 5303 (40 CFR 93.101). As in other newly designated nonattainment areas, the one-year conformity grace period for the 2006 PM 2.5 NAAQS will begin on the effective date of an isolated rural area's initial nonattainment designation. However, because these areas do not have federally required metropolitan transportation plans and TIPs, they are not subject to the frequency requirements for conformity determinations on transportation plans and TIPs (40 CFR 93.104(b),(c), and (e)). Instead, conformity determinations in isolated rural areas are required only when a non-exempt FHWA/FTA project(s) needs approval. Therefore, although the one-year conformity grace period is available to isolated rural areas, most likely no conformity consequences would occur upon the expiration date of the one-year grace period because these areas most likely would not have any projects that require federal funding or approval at that time. Once the conformity grace period has expired, a conformity determination would only be required in such areas when a non-exempt FHWA/FTA project needs approval. Conformity requirements for isolated rural areas can be found at 40 CFR 93.109(n). 17 17 Prior to today's rulemaking, the requirements for isolated rural areas were found at § 93.109(l). This section has been renamed as § 93.109(n), as a result of other revisions and additions in this regulatory section. This is merely an administrative change and the conformity requirements for isolated rural areas remain unchanged. Response to comments about the grace period. Some commenters believed that the one-year grace period would not allow enough time for some areas to meet the conformity requirements. These same commenters questioned whether a year would be enough time to adequately prepare attainment SIPs, learn EPA's new emissions factor model (called the Motor Vehicle Emissions Simulator, or MOVES model) when final, and complete their conformity determinations. To address these concerns, these commenters suggested lengthening the conformity grace period for newly designated nonattainment areas from one to two years. EPA understands that some areas, such as areas that have never done conformity before and multi-jurisdictional nonattainment areas ( e.g., areas with multiple states and/or multiple MPOs) may have additional challenges in conducting their initial conformity determinations. However, the CAA as amended on October 27, 2000 specifically provides newly designated nonattainment areas with only a one-year grace period, after which conformity applies as a matter of law under the statute. Therefore, we believe that the statutory language precludes EPA from extending the conformity grace period beyond one year for new nonattainment areas. In accordance with the CAA, states were initially required to submit their recommendations for nonattainment areas based on monitored data by December 18, 2007, well before designations became effective. 18 Additionally, EPA began the process of notifying state and local agencies, via the EPA regional offices, of the timing of conformity under the 2006 PM 2.5 NAAQS in the April 16, 2007 memorandum cited earlier. 19 As mentioned, EPA provided interim guidance for the 2006 PM 2.5 areas to assist in meeting conformity requirements by the end of the one-year grace period. Finally, EPA will be working with 2006 PM 2.5 areas to provide technical assistance in an expeditious manner, such as helping each area determine which test applies for the first 2006 PM 2.5 conformity determination. 18 Information on 2006 PM 2.5 nonattainment designations, including copies of EPA's designation letters, can be accessed from EPA's Web site at http://www.epa.gov/pmdesignations/2006standards/state.htm. 19 Memorandum entitled, “Transportation Conformity and the Revised 24-hour PM 2.5 Standard,” from Merrylin Zaw-Mon, then-Director, Transportation and Regional Programs Division, EPA Office of Transportation and Air Quality, to EPA Regional Air Directors, Regions I- X, found on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/generalinfo/rev24hr-pm25.pdf. We also want to clarify that while areas will have to complete a conformity determination for their transportation plans and TIPs within one year, they are not required to complete their attainment demonstration SIPs for the 2006 PM 2.5 NAAQS in that same time period as the commenter suggested. Instead, they will have three years from the effective date of designations to submit their attainment demonstrations, per CAA section 172(b). Also, implementers will have additional time before MOVES is required for conformity determinations, as a different grace period will apply for MOVES once it is released. The conformity rule at 40 CFR 93.111 provides a grace period before a new emissions model is required for conformity. This grace period can be anywhere from three months to two years depending on the degree of change from one model to another (40 CFR 93.111(b)(2)); EPA is intending to provide the maximum length two-year grace period for the transition to MOVES. Therefore, MOVES will not be required for the first transportation plan and TIP conformity determination done for the 2006 PM 2.5 NAAQS. EPA will provide specific guidance regarding the MOVES grace period and when MOVES will be required to be used for SIPs and conformity. This guidance will be available on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm#models . EPA and DOT understand the concern that the commenter notes with respect to learning the new MOVES model, and therefore have devoted significant staff time and resources to training state and local air quality and transportation planners in using MOVES. During 2009, 20 MOVES training sessions were held at locations across the U.S. Once MOVES is final, EPA intends to offer web-based training, and EPA and DOT are planning to hold additional in-person training sessions as well. See EPA's Web site: http://www.epa.gov/ otaq/models/moves/trainingsessions.htm for information about upcoming training sessions. Also note that other MOVES related guidance, including user guides and other technical information is available on EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm and http://www.epa.gov/otaq/stateresources/transconf/policy.htm C. Definitions for PM 2.5 NAAQS EPA is adding two new definitions to § 93.101 of the conformity rule to distinguish between the 1997 PM 2.5 NAAQS and the 2006 PM 2.5 NAAQS. These definitions will help implement certain conformity requirements in areas that have been designated nonattainment for 1997 PM 2.5 NAAQS and/or 2006 PM 2.5 NAAQS. Some areas designated nonattainment for the 2006 PM 2.5 NAAQS also are designated nonattainment for the 1997 PM 2.5 NAAQS. In addition, some areas are designated for only the 2006 PM 2.5 NAAQS. These definitions are similar to the rule's definitions in 40 CFR 93.101 for the 1-hour ozone NAAQS and 8-hour ozone NAAQS, and are generally consistent with how EPA is defining both kinds of PM 2.5 areas for air quality planning purposes. EPA also notes that any provision of the conformity rule that references only “PM 2.5 ” and does not specify which PM 2.5 NAAQS applies to any area designated nonattainment for a PM 2.5 NAAQS. EPA received no comments regarding these definitions. D. How Does This Final Rule Interact With Conformity Requirements for the 1997 PM 2.5 NAAQS? Sections IV. through VI. of today's final rule describe conformity requirements for areas designated nonattainment for the 2006 PM 2.5 NAAQS. No changes have been made to the existing transportation conformity requirements for areas designated nonattainment for the 1997 PM 2.5 NAAQS. Nonattainment designations for the 1997 and 2006 PM 2.5 NAAQS are different designations with separate SIP requirements, different attainment dates, etc. As a result, CAA section 176(c)(5) requires conformity requirements to be met in both 1997 and 2006 PM 2.5 nonattainment and maintenance areas, as applicable. Some areas designated nonattainment for the 2006 PM 2.5 NAAQS have never been subject to PM 2.5 conformity requirements. Under today's final rule and CAA section 176(c)(5), these areas must meet conformity requirements only for the 2006 PM 2.5 NAAQS, and not for the 1997 PM 2.5 NAAQS, because these areas are not designated nonattainment for the 1997 PM 2.5 NAAQS. Other areas designated nonattainment for the 2006 PM 2.5 NAAQS have been designated also, in whole or in part, for the 1997 PM 2.5 NAAQS. ( See Section III.A. for the clarification that EPA has made in designations for the 1997 PM 2.5 NAAQS areas.) These areas must continue to meet their existing conformity requirements for the 1997 PM 2.5 NAAQS as well as those that apply for the 2006 PM 2.5 NAAQS. One commenter was concerned that, given identical boundaries, an area could potentially be required to prepare conformity determinations for three different PM NAAQS ( i.e., the 24-hr PM 10 NAAQS, 1997 PM 2.5 NAAQS, and 2006 PM 2.5 NAAQS), and believed that this could mean three separate analyses would be required. This commenter recommended that an area should only have to model to the most restrictive NAAQS. As described in the May 2009 proposal, nonattainment designations for these NAAQS are different designations with separate SIP requirements, different attainment dates, etc. As a result, CAA section 176(c)(5) requires conformity to be met for all of the NAAQS for which an area has been designated. However, MPOs subject to more than one PM NAAQS will be able to use existing transportation models and data for regional emissions analyses, especially where nonattainment area boundaries are the same. Some analysis years for the regional emissions analyses will be the same, such as the last year of the transportation plan. In addition, MPOs in areas designated for more than one PM NAAQS will be able to meet consultation and other conformity requirements through the existing processes. Furthermore, if an area is designated nonattainment for both the 1997 and 2006 PM 2.5 NAAQS and it has no adequate or approved PM 2.5 budgets, it could use the same interim emissions test for both NAAQS ( see Section V.; note that the baseline year for these two NAAQS are different, see Section IV.) If such an area has budgets only for the 1997 PM 2.5 NAAQS, conformity determinations for the 2006 PM 2.5 NAAQS will be based on the same conformity test— i.e., the budget test—that is being used for the 1997 PM 2.5 NAAQS (note that the attainment year for each of these NAAQS, which is a required analysis year for the budget test, will differ). As described in Section VI., MPOs must use any adequate or approved SIP budgets for the 1997 PM 2.5 NAAQS for conformity determinations that are made prior to SIP budgets for the 2006 PM 2.5 NAAQS being found adequate or approved. Today's final rule does not impact project-level conformity requirements for the 1997 PM 2.5 NAAQS. For example, this rule does not substantively change the PM 2.5 hot-spot analysis requirements, and EPA and FHWA's existing qualitative guidance for such analyses continues to be available. 20 For the purposes of PM 2.5 conformity, a hot-spot analysis must address the PM 2.5 NAAQS for which the area has been designated nonattainment. 21 See Section VII. for further information regarding project-level conformity requirements for the 2006 PM 2.5 NAAQS. 20 “Transportation Conformity Guidance for Qualitative Hot-spot Analyses in PM 2.5 and PM 10 Nonattainment and Maintenance Areas,” EPA420-B-06-902, March 2006. 21 EPA notes that today's final rule does not address project requirements for the National Environmental Policy Act or other environmental programs. EPA will work with PM 2.5 nonattainment areas as needed to ensure that state and local agencies can meet conformity requirements for both the applicable 1997 and 2006 PM 2.5 NAAQS in a timely and efficient manner. E. Precursors That Apply for 2006 PM 2.5 Conformity The existing transportation conformity rule at 40 CFR 93.102(b) describes the pollutants and precursors that must be examined in a regional emissions analysis in PM 2.5 areas, and these provisions apply to 2006 PM 2.5 areas as well as 1997 PM 2.5 areas. Direct PM 2.5 must be analyzed per 40 CFR 93.102(b)(1). Before SIP budgets are adequate or approved, NO X must also be analyzed, unless both EPA and the state air quality agency find that transportation-related emissions of NO X are not a significant contributor to the PM 2.5 nonattainment problem and notify the MPO and DOT (40 CFR 93.102(b)(iv)). 22 Before SIP budgets are adequate or approved, VOCs, sulfur dioxide, and ammonia do not have to be analyzed unless either EPA or the state air quality agency finds that such a precursor is a significant contributor, and notifies the MPO and DOT (40 CFR 93.102(b)(v)). Similarly, before SIP budgets are adequate or approved, road dust does not have to be included in the regional emission analysis of directly emitted PM 2.5 unless EPA or the state air agency find that re-entrained road dust emissions are a significant contributor, and notifies the MPO and DOT (40 CFR 93.102(b)(3)). 22 Note that instead of establishing a budget for direct PM 2.5 or NO X , a SIP could demonstrate that the pollutant or precursor is insignificant based on 40 CFR 93.109(k). Once budgets from a submitted PM 2.5 SIP have been found adequate or approved, a conformity determination for the 2006 PM 2.5 NAAQS must include any precursors for which budgets are established (40 CFR 93.102(b)(iv) and (v)). If road dust is included in the direct PM 2.5 budget, it must also be included in a regional emissions analysis (40 CFR 93.102(b)(3)). Please use the interagency consultation process if there are questions regarding whether a regional emissions analysis for the 2006 PM 2.5 NAAQS must include specific precursors or road dust. IV. Baseline Year for Certain 2006 PM 2.5 Nonattainment Areas A. Background Conformity determinations for transportation plans, TIPs, and projects not from a conforming transportation plan and TIP must include a regional emissions analysis that fulfills CAA provisions. The conformity rule provides for several different regional emissions analysis tests that satisfy CAA requirements in different situations. Once a SIP with a motor vehicle emissions budget (“budget”) is submitted for an air quality NAAQS and EPA finds the budget adequate for conformity purposes or approves it as part of the SIP, conformity is demonstrated using the budget test for that pollutant or precursor, as described in 40 CFR 93.118. Before an adequate or approved SIP budget is available, conformity of the transportation plan, TIP, or project not from a conforming transportation plan and TIP is demonstrated using the interim emissions test(s), as described in 40 CFR 93.119. The interim emissions tests include different forms of the “build/no-build” test and “baseline year” test. In general, for the baseline year test, emissions from the planned transportation system are compared to emissions that occurred in the baseline year. Today's rule updates section 93.119 of the conformity rule for the 2006 PM 2.5 NAAQS. The baseline year for nonattainment areas under the 1997 PM 2.5 NAAQS is 2002 (40 CFR 93.119(e)(2)). Sections V. and VI. of today's final rule go into further detail about how the baseline year will be applied in 2006 PM 2.5 areas. B. Baseline Year for 2006 PM 2.5 Areas 1. Description of Final Rule In today's final rule, EPA is defining the baseline year as the most recent year for which EPA's Air Emissions Reporting Requirements (AERR) (40 CFR Part 51) requires submission of on-road mobile source emissions inventories, 23 as of the effective date of EPA's nonattainment designations for any PM 2.5 NAAQS other than the 1997 PM 2.5 NAAQS. EPA had proposed this definition under “Option 2” in the proposed rule. AERR requires on-road mobile source emission inventories to be submitted every three years, for example, 2002, 2005, 2008, 2011, etc. See § 93.119(e)(2)(B) for the regulatory text. 23 40 CFR 51.30(b). Today's final rule results in a baseline year of 2008 for the 2006 PM 2.5 areas. The year 2008 is the most recent year as of the effective date of the 2006 PM 2.5 designations, December 14, 2009, for which AERR requires submission of on-road mobile source emissions inventories. In other words, the designations were effective on December 14, 2009, and the most recent year for which an on-road mobile source inventory was required as of that date was 2008. Therefore, 2008 is the baseline year for 2006 PM 2.5 areas. This final rule would also govern the baseline year for conformity purposes for any areas designated for a PM 2.5 NAAQS that EPA promulgates in the future. EPA will clarify the relevant baseline year under today's regulation for each such future NAAQS for conformity implementers in guidance and maintain a list of baseline years that result from today's final rule on EPA's Web site. 24 24 See http://www.epa.gov/otaq/stateresources/transconf/index.htm. Today's action does not change the 2002 baseline year for areas designated nonattainment for the 1997 PM 2.5 NAAQS and the conformity rule now clarifies that 2002 applies as the baseline year only to areas designated nonattainment for the 1997 PM 2.5 NAAQS. The baseline year for 1997 PM 2.5 NAAQS areas is found in § 93.119(e)(2)(A). The existing interagency consultation process (40 CFR 93.105(c)(1)(i)) must be used to determine the latest assumptions and models for generating baseline year motor vehicle emissions to complete any baseline year test. The baseline year emissions level that is used in conformity must be based on the latest planning assumptions available, the latest emissions model, and appropriate methods for estimating travel and speeds as required by 40 CFR 93.110, 93.111, and 93.122 of the current conformity rule. The baseline year test can be completed with a submitted or draft baseline year motor vehicle emissions SIP inventory, if the SIP reflects the latest information and models. If such a SIP baseline is not available, an MPO, in consultation with state and local air agencies, could also develop baseline year emissions as part of the conformity analysis. 2. Rationale and Response to Comments General overview. EPA believes that today's definition for the baseline year results in an environmentally protective and legal baseline year for conformity under the 2006 PM 2.5 NAAQS and any future PM 2.5 NAAQS revisions, and best accomplishes several important goals. First, as EPA discussed in the preamble to the proposed rule, EPA believes that a more recent year than 2002 (the baseline year for 1997 PM 2.5 areas) is appropriate for meeting CAA conformity requirements for 2006 PM 2.5 nonattainment areas. EPA also believes that using a more recent year is more environmentally protective than 2002, and more relevant for the 2006 PM 2.5 NAAQS. Several commenters agreed with these points. Because the AERR requires submission of inventories every three years, today's final rule results in a baseline year that is recent for any PM 2.5 NAAQS established after 1997. The baseline year will always be either the same year as the year in which designations are effective, or one or two years prior to the effective date of designations. For example, in the case of the 2006 PM 2.5 NAAQS, the baseline year, 2008, is the year before the year in which designations are effective, 2009. EPA had also proposed 2005 as a baseline year as it is also more recent than 2002. One commenter preferred a 2005 baseline year because the introduction of Tier 2 and improved fuel and engine technologies since then would allow transportation plans and TIPs to meet conformity more easily. However, because of the implementation of EPA's Tier 2 Vehicle and Gasoline Program as well as other federal programs, motor vehicle emissions in the year 2005 were higher than emissions in the year 2008. Thus today's rule, which results in a baseline year of 2008, provides more protection for the environment than would a baseline year of 2005, in the time before an area has adequate or approved motor vehicle emissions budgets from a SIP that addresses PM 2.5 . Second, today's baseline year definition coordinates the conformity baseline year with other air quality planning requirements, which allows state and local governments to use their resources more efficiently. Coordinating the conformity baseline year with the year used for SIP planning and an emission inventory year was EPA's rationale for using 2002 as the baseline year for conformity tests in existing PM 2.5 nonattainment areas for the 1997 NAAQS. Today's regulatory text results in a conformity baseline year that is consistent with emission inventory requirements, and most likely will be consistent with the baseline year used for SIP planning as well. Several commenters voiced support for coordinating the conformity baseline year with these other air quality planning requirements. Third, today's final rule provides transportation planners with knowledge of the baseline year for any future PM 2.5 NAAQS upon the effective date of designations for that NAAQS, without having to wait either for EPA to amend the transportation conformity rule or select a SIP planning baseline year. As a result, MPOs and other transportation planners would understand conformity requirements for future PM 2.5 NAAQS revisions more quickly, which may, in turn, also allow more time to prepare and complete necessary conformity determinations. Several commenters agreed that not having to wait for a rule revision would be a benefit of defining the baseline year as in today's rule, rather than choosing a specific year. Some commenters preferred defining the baseline year in terms of the year used as the baseline year for SIP planning. Today's final rule addresses these concerns since it will most likely result in a conformity baseline year that is consistent with the SIP baseline year, and in the future will give transportation planners the advantage of knowing the baseline year at the beginning of the grace period for newly designated areas. Last, given that the CAA requires EPA to review the NAAQS for possible revision once every five years, today's baseline year provision potentially reduces the need for future rule revisions for any future PM 2.5 NAAQS. While today's final rule establishes a baseline year for any PM 2.5 NAAQS other than the 1997 PM 2.5 NAAQS, the same rationale would apply for establishing the same type of baseline year definition for any future new or revised NAAQS of a transportation-related criteria pollutant. Therefore, EPA may amend the rule in the future to apply the baseline year language found in today's § 93.119(e)(2)(B) more generally. However, EPA did not propose such an amendment, and intends to solicit and consider public comment before it would adopt any such provision. Specific comments. EPA is responding today to several comments regarding the baseline year. A couple of commenters indicated that they thought proposed Option 2 would create a “rolling” baseline year, that is, one that would be updated every three years. One commenter did not support such a rolling baseline; another did support it as long as motor vehicle emissions in an inventory year were less than the prior reporting year. However, today's final rule does not establish a rolling baseline year for any PM 2.5 NAAQS. It establishes a single baseline year for each PM 2.5 NAAQS that does not change over time. For example, for the 2006 PM 2.5 NAAQS, the definition results in a baseline year of 2008. The year 2008 will remain the baseline year for 2006 PM 2.5 areas until it's no longer needed, i.e., until adequate or approved budgets are available in a given area. One commenter who supported the option finalized in today's rule expressed concern that final emissions data would not be available for 2008 for some time. However, if a final AERR inventory for 2008 is not available in a particular area, there are other options for generating the motor vehicle emissions in the baseline year, discussed above under “IV.B.1. Description of Final Rule.” Another commenter expressed concern that MOVES would not be available in time for the year 2008 for the first conformity determination for the 2006 PM 2.5 NAAQS. At this time, the current emissions model, MOBILE6.2, applies for conformity in all areas except California, where EMFAC2007 applies. Therefore, if the MOVES model is not available to generate a 2008 baseline estimate for use in conformity, the MOBILE6.2 model must be used. Once MOVES is available, areas can create a new baseline emissions estimate for use in conformity using MOVES along with other interim analysis years. EPA will provide a policy guidance document for using MOVES in conformity determinations that will include more details about when MOVES must be used. When available, this guidance will be found on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm#models. For more information on MOVES, please see EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm. One commenter thought that the baseline year should be determined through interagency consultation. This was not a proposed option. However, EPA believes that details for the baseline year test must be determined through rulemaking, as EPA has done for other NAAQS since 1993. Today's rule better accomplishes the purposes of meeting the CAA's requirements, coordinating with SIP and inventory planning, and providing certainty to transportation planners. Furthermore, today's rule ensures consistency across the nation, whereas allowing each area to determine its own baseline year through interagency consultation could result in different baseline years in different areas. V. Regional Conformity Tests in 2006 PM 2.5 Nonattainment Areas That Do Not Have Adequate or Approved SIP Budgets for the 1997 PM 2.5 NAAQS This section of the preamble discusses regional conformity tests for nonattainment areas for the 2006 PM 2.5 NAAQS that do not have adequate or approved PM 2.5 SIP budgets for the 1997 NAAQS. This part of the final rule applies to 2006 PM 2.5 nonattainment areas that were not covered by the 1997 PM 2.5 NAAQS, as well as nonattainment areas for both PM 2.5 NAAQS that do not have an adequate or approved 1997 PM 2.5 SIP budget. EPA has addressed conformity tests for these areas under section 93.109(j) of the conformity rule. See Section VI. of today's final rule for conformity tests in 2006 PM 2.5 areas that have adequate or approved SIP budgets for the 1997 PM 2.5 NAAQS. Note that the rule finalizes new requirements for conformity only under the 2006 PM 2.5 NAAQS. Today's final rule does not address or change the requirements for demonstrating conformity for the 1997 PM 2.5 NAAQS. A. Conformity After 2006 PM 2.5 SIP Budgets Are Adequate or Approved 1. Description of Final Rule Once a SIP for the 2006 PM 2.5 NAAQS is submitted with a budget(s) that EPA has found adequate or approved, the budget test must be used in accordance with 40 CFR 93.118 to complete all applicable regional emissions analyses for the 2006 PM 2.5 NAAQS. This requirement is found at § 93.109(j)(2). Conformity is demonstrated if the transportation system emissions reflecting the proposed transportation plan, TIP, or project not from a conforming transportation plan and TIP are less than or equal to the motor vehicle emissions budget level defined by the SIP as being consistent with CAA requirements. The first SIP for the 2006 PM 2.5 NAAQS could be a control strategy SIP required by the CAA ( i.e., reasonable further progress SIP or attainment demonstration) or a maintenance plan. States could also voluntarily choose to submit an “early progress SIP” prior to required SIP submissions. Early progress SIPs must demonstrate a significant level of future emissions reductions from a previous year's emissions. For example, an area could submit an early progress SIP for the 2006 PM 2.5 NAAQS that demonstrates a specific percentage of emissions reductions ( e.g. 5-10%) in an area's attainment year from the baseline year emissions ( e.g., 2008). An early progress SIP would include emissions inventories for all emissions sources for the entire 2006 PM 2.5 nonattainment area and would meet applicable requirements for reasonable further progress SIPs. EPA has discussed this option in past conformity rule preambles, e.g. the July 1, 2004 transportation conformity final rule (69 FR 40028), and many states have established early progress SIP budgets for conformity purposes. Whatever the case, the interim emissions test(s) would no longer be used for direct PM 2.5 or a relevant precursor once an adequate or approved SIP budget for the 2006 PM 2.5 NAAQS is established and effective for the pollutant or precursor. States are required to develop their future 2006 PM 2.5 SIPs in consultation with MPOs, state and local transportation agencies, and local air quality agencies in an effort to facilitate future conformity determinations. EPA Regions will be available to assist states in the development of early progress SIPs for the 2006 PM 2.5 NAAQS, if desired. 2. Rationale and Response to Comments EPA believes that this provision meets statutory requirements for conformity determinations that occur after SIP budgets are available for the 2006 PM 2.5 NAAQS. Section 176(c) of the CAA states that transportation activities must “conform to an implementation plan…” (SIP) and states further that conformity to an implementation plan means conformity to the SIP's purpose. Once EPA finds a budget for the 2006 PM 2.5 NAAQS adequate or approves the SIP that includes it, the budget test provides the best means to determine whether transportation plans and TIPs meet the statutory obligations in CAA sections 176(c)(1)(A) and (B) for that NAAQS. That is, the budget test best shows that transportation plans and TIPs conform to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of the NAAQS (176(c)(1)(A)); and best confirms the requirement that transportation plans and TIPs not cause or contribute to any new violation, worsen an existing violation, or delay timely attainment or any interim milestones (176(c)(1)(B)). The budget test also best demonstrates that transportation plans and TIPs comply with the statutory obligation to be consistent with the emissions estimates in SIPs, according to CAA section 176(c)(2)(A). By being consistent with the on-road mobile source emissions levels in the SIP, transportation planners can ensure that their activities remain consistent with state and local air quality goals to protect public health. EPA received no comments on this aspect of today's rule. B. Conformity Before 2006 PM 2.5 SIP Budgets Are Adequate or Approved 1. Description of Final Rule The 2006 PM 2.5 nonattainment areas that do not have existing adequate or approved PM 2.5 budgets for the 1997 PM 2.5 NAAQS must meet one of the following interim emissions tests for conformity determinations conducted before adequate or approved 2006 24-hour PM 2.5 SIP budgets are established: • The build-no-greater-than-no-build test (“build/no-build test”), or • The no-greater-than-baseline year emissions test (“baseline year test”). This aspect of today's final rule is similar to the transportation conformity rule at 40 CFR 93.119(e) for nonattainment areas for the 1997 PM 2.5 NAAQS. Today's final rule allows 2006 PM 2.5 nonattainment areas without SIP budgets to choose between the two interim emissions tests, rather than require that one specific test or both tests be completed. Conformity is demonstrated if, for each analysis year, the transportation emissions reflecting the proposed transportation plan or TIP (build) are less than or equal to either the emissions from the existing transportation system (no-build), or the level of motor vehicle emissions in the baseline year, as described in 40 CFR 93.119. For the discussion of the baseline year for the 2006 PM 2.5 NAAQS, please refer to Section IV. of today's notice. 2. Rationale and Response to Comments EPA believes that this provision of today's rule meets statutory requirements for conformity determinations that occur before SIP budgets are available for the 2006 PM 2.5 NAAQS. EPA believes it is appropriate to provide flexibility and allow 2006 PM 2.5 areas to meet only one interim emissions test before adequate or approved PM 2.5 SIP budgets are established. Using either the build/no-build test or baseline year test is sufficient to meet CAA section 176(c)(1)(B) requirements that transportation activities do not cause or contribute to new air quality violations, worsen existing violations, or delay timely attainment or any interim milestones. The baseline year and the build/no-build tests are sufficient for demonstrating conformity when an area does not have a SIP budget for a portion of a nonattainment area. Based on the CAA, EPA has previously determined that only in ozone and CO areas of higher classifications 25 are transportation plans and TIPs required to also satisfy section 176(c)(3)(A)(iii), i.e., that the transportation plan and TIP contribute to emissions reductions, during the time period before adequate or approved SIP budgets are available (58 FR 3782-3783; 62 FR 43784-43785; 69 FR 40018, 40019-40031). As a result, the current rule requires these ozone and CO areas to meet both interim emissions tests, rather than only one test. 25 These areas include ozone areas classified as moderate and above, CO areas classified as moderate with design value greater than 12.7 ppm, and CO areas classified as serious. However, prior to today's rule, the conformity rule already allowed areas designated for the other pollutants, as well as the lower classifications of ozone and CO, to conform based on only one interim emissions test, rather than having to complete two tests and thereby contribute further reductions towards attainment. Today's final rule requiring the 2006 PM 2.5 areas also to meet only one of the interim emissions tests meets the CAA's requirements in section 176(c)(1)(B) (described above in Section II.A., footnote 1). For more information and the full rationale for allowing some areas to conform based on only one interim emissions test, see the November 24, 1993 final rule (58 FR 62197) that addressed interim requirements for PM 10 and NO 2 areas, the July 1, 2004 final rule (69 FR 40029) that established interim requirements for 1997 PM 2.5 areas, and the May 15, 2009 proposed rule. EPA believes that the no-greater-than-baseline year interim emissions test is an appropriate test for meeting section 176(c)(1)(B) (refer to footnote 1 in Section II.A.) requirements in 2006 PM 2.5 nonattainment areas. By definition, the no-greater-than baseline year test ensures that emissions from on-road mobile sources are no greater than they were during the baseline year that will most likely be used for 2006 PM 2.5 NAAQS SIP planning purposes. If future on-road emissions do not increase above their base year levels, applicable statutory requirements are met. The build/no-build test also allows a 2006 PM 2.5 area to meet statutory requirements. As described above, the build/no-build test requires a regional emissions analysis to demonstrate that the emissions from the proposed transportation system in future years would be less than the emissions from the built transportation system in future years. Since for each analysis year, a new transportation plan, TIP, or project (the build scenario) could not result in regional emissions that are higher than those that would occur in the absence of the proposed transportation activities (the no-build scenario) for the system, CAA section 176(c)(1)(B) requirements are met. For these reasons, EPA believes that the build/no-build test continues to be an appropriate interim test prior to SIP budgets being available. Most commenters supported allowing 2006 PM 2.5 areas to meet only one of the interim emissions tests because it would give areas the flexibility to use the test they deem most appropriate, given the available data and the unique circumstances of individual areas. However, one commenter objected, arguing that the rule doesn't promote the CAA or the SIP process because it doesn't require reduction of PM 2.5 emissions. The commenter also stated that the case EPA cited in its proposal, Environmental Defense v. EPA 467 F .3d 1329 (DC Cir. 2006), is not pertinent because it did not consider climate change factors in any way. EPA disagrees. First, it has already been clearly established in case law that the conformity provisions of the CAA do not require that transportation projects achieve additional emission reductions in PM 2.5 areas before SIP budgets are available. As discussed above, allowing 2006 PM 2.5 areas the choice of interim emissions tests does meet the CAA's requirements. Today's rule is parallel to the current rule's requirements for 1997 PM 2.5 nonattainment areas (69 FR 40028-40031), which were upheld by an October 2006 court decision. Environmental Defense v. EPA, 467 F.3d 1329 (D.C. Cir. 2006). 26 Contrary to the commenter's view, this court case is not rendered irrelevant because it doesn't consider climate change factors; conformity applies only to nonattainment and maintenance areas for transportation-related criteria pollutants and their precursors. 26 Petitioners challenged several aspects of the conformity regulations. In its decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld EPA's regulations at 40 CFR 93.119(b)(2), (d), and (e) “because the Act does not require that activities involving transportation actually reduce pollutants, but merely not frustrate an implementation plan's purpose to reduce overall emissions.” The court also upheld EPA's regulations at 40 CFR 93.118(b), (d), and (e)(6). The court vacated a narrow provision at 40 CFR 93.109(e)(2)(v) which had allowed 8-hour ozone areas to avoid using their existing 1-hour budgets under certain circumstances. This provision was removed from the transportation conformity regulation in the January 24, 2008 final rule ( see 73 FR 4434). The same commenter thought that the 2006 court case does not preclude EPA from reasonably determining that more stringent interim rules are required to “conform to a SIP's purpose of reducing overall emissions.” However, EPA believes that the best interpretation of the Act is that reflected in today's rule, which allows 2006 PM 2.5 areas the choice between the interim emissions tests. This interpretation is also consistent with past rulemakings for interim emissions test requirements for other pollutants, as described above. Finally, one commenter asked EPA to clarify whether an area that is currently using one of the interim emissions tests for the 1997 PM 2.5 NAAQS could use the results of that test for the 2006 PM 2.5 NAAQS. When areas are determining conformity for the 1997 and 2006 PM 2.5 NAAQS at the same time, they could apply some of the information developed in the 1997 PM 2.5 regional emissions analysis in creating 2006 PM 2.5 regional emissions analysis. First, note that regardless of whether the area is using the baseline year test or build/no-build test, the same analysis years can be used for 1997 PM 2.5 conformity and 2006 PM 2.5 conformity when the analyses are done at the same time (refer to 40 CFR 93.119(g) for analysis year requirements). In most 1997 PM 2.5 areas, conformity applies only for the annual NAAQS. 27 While the results of an interim emissions test for the 1997 annual PM 2.5 NAAQS cannot be directly applied for the 2006 24-hour PM 2.5 NAAQS, the option described below could save implementers some effort when conformity is being determined for both of these NAAQS at the same time. This option applies only when using MOBILE6.2 for regional emissions analyses. 28 27 There are two areas where conformity for both the 1997 annual and 24-hour NAAQS applies. See Section III.A. for more information. 28 Areas in California should use the interagency consultation process to determine appropriate methods. In all other 2006 PM 2.5 areas, EPA expects that MOBILE6.2 will be used for the first 2006 PM 2.5 conformity determinations. Areas should develop the annual emissions for the 1997 PM 2.5 NAAQS by estimating emissions in two seasons, summer and winter; four seasons; or the 12 months of the year. 29 29 This description reflects how analyses are to be done for the 1997 PM 2.5 NAAQS, which is covered in “Guidance for Creating Annual On-Road Mobile Source Emission Inventories for PM 2.5 Nonattainment Areas for Use in SIPs and Conformity,” EPA420-B-05-008, August 2005, found on EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b05008.pdf. In particular, Question 7 on pp. 5-8 of that guidance addresses how analyses are to be done for the 1997 PM 2.5 NAAQS. To apply information from the analysis done for the 1997 PM 2.5 NAAQS to the 2006 PM 2.5 analysis, for each analysis year, areas should use the emission factors developed in the 1997 PM 2.5 NAAQS regional emissions analysis for PM 2.5 and NO X in a season or month where violations of the 2006 PM 2.5 NAAQS occurred, and multiply these emission factors by the seasonally-adjusted average daily VMT for the area of the analysis year. 30 If violations occurred in more than one season or month, the interagency consultation process should be used to choose the season or month that would best ensure that the CAA is met, for example by choosing the season with the most frequent or most severe violations, or the season with the highest vehicle miles traveled, or both. 31 The choice of season or seasons should be based on air quality data from the three years used to make designations ( i.e., 2006-2008), unless more recent air quality data indicates that a different season should be analyzed, as decided through consultation. 30 If a 24-hour emissions estimate is available in the appropriate season or month because this step has been completed for 1997 PM 2.5 NAAQS conformity and conformity is being determined for the 1997 PM 2.5 NAAQS and the 2006 PM 2.5 NAAQS at the same time, it does not need to be redone but can be applied in the regional emissions analysis for 2006 PM 2.5 conformity. 31 Note that this guidance regarding the choice of season applies only when using MOBILE6.2 and not MOVES because MOBILE6.2 PM 2.5 emission factors are not sensitive to changes in temperature. EPA will provide guidance on this issue when MOVES is released. See EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm and http://www.epa.gov/otaq/stateresources/transconf/policy.htm for future MOVES guidance. Whatever season is chosen to estimate the build scenario emissions, the same season should be used for comparison whether using the baseline year test or build/no-build test. For example, emissions for a build scenario calculated using winter MOBILE6.2 inputs should be compared to emissions in the winter of the baseline year, or emissions in winter from the no-build scenario. Note that after the effective date of today's final rule, the baseline year for the 2006 PM 2.5 NAAQS will be 2008 while the baseline year for the 1997 PM 2.5 NAAQS remains 2002. See Section IV. for additional discussion of the baseline year. As stated above, once an area has adequate or approved budgets for any PM 2.5 NAAQS, it must use the budget test instead of an interim emissions test. C. Implementation of Regional Tests The existing conformity rule's general requirements for PM 2.5 regional emissions analyses apply to 2006 PM 2.5 areas that do not have adequate or approved SIP budgets for the 1997 PM 2.5 NAAQS. EPA is including this discussion of the existing regulation's requirements for clarity, to help readers understand how the existing regulation applies to areas designated nonattainment for the 2006 PM 2.5 NAAQS. The discussion below is intended to illustrate how today's final rule is to be implemented in practice for 2006 PM 2.5 areas without adequate or approved 1997 PM 2.5 SIP budgets. 1. Decisions Made Through the Interagency Consultation Process The existing rule's consultation process must be used to determine the test for completing any regional emissions analysis for the 2006 PM 2.5 NAAQS, as required by 40 CFR 93.105(c)(1)(i). The existing interagency consultation process must also be used to determine the latest assumptions and models for generating motor vehicle emissions regardless of the test used. Refer to Section IV. of this preamble for details about generating baseline year emissions if that interim emissions test is selected for a given conformity determination. In addition, the consultation process must be used to determine which analysis years should be selected for regional emissions analyses. Before an adequate or approved 2006 PM 2.5 budget is available, areas would be able to choose, through interagency consultation, either interim emissions test for each conformity determination. However, the same test must be used for each analysis year for a given determination. EPA believes that sufficient flexibility exists without mixing and matching interim emissions tests for different analysis years within one conformity determination, which is unnecessarily complicated and may indicate that an area would not conform using one test consistently. 2. How a Regional Emissions Analysis Can Be Developed When Using An Interim Emissions Test Under the “Rationale and Response to Comments” above, EPA described how an area using an interim emissions test for 1997 PM 2.5 conformity could apply it to 2006 PM 2.5 conformity. This section provides general guidance for creating a 2006 PM 2.5 regional emissions analysis. Because the 2006 PM 2.5 NAAQS designations were only for the 2006 24-hour PM 2.5 NAAQS, the regional emissions analysis will be based on emissions for a 24-hour time period. For either the baseline year test or the build/no-build test, for each analysis year, emissions must be estimated for the build scenario according to 40 CFR 93.119(i) with a 24-hour emissions inventory. (The build scenario is referred to as the “Action” scenario at 40 CFR 93.119(i).) This emissions inventory would include direct PM 2.5 , NO X , and any other relevant precursor emissions 32 that result from the build scenario using MOBILE6.2 for a 24-hour period. For each analysis year chosen, areas should choose MOBILE6.2 inputs for the season of the year where violations of the 2006 PM 2.5 NAAQS occurred. 33 If violations occurred in more than one season, implementers should use the interagency consultation process to choose the season (or seasons) that would best ensure that the CAA is met, for example by choosing the season with the most frequent or most severe violations, or the season with the highest vehicle miles traveled, or both. 34 The choice of season or seasons should be based on air quality data from the three years used to make designations ( i.e., 2006-2008), unless more recent air quality data indicates that a different season should be analyzed, as decided through consultation. 32 Refer to 40 CFR 93.102(b) for which precursors apply. To date, before they have adequate or approved budgets from a PM 2.5 SIP, PM 2.5 areas have determined conformity for only direct PM 2.5 and NO X . 33 In California where EMFAC is used, areas should use the interagency consultation process to determine appropriate methods. 34 Note that this guidance regarding the choice of season applies only when using MOBILE6.2 and not MOVES because MOBILE6.2 PM 2.5 emission factors are not sensitive to changes in temperature. EPA will provide guidance on this issue when MOVES is released. See EPA's Web site at: http://www.epa.gov/otaq/models/moves/index.htm and http://www.epa.gov/otaq/stateresources/transconf/policy.htm for future MOVES guidance. For each analysis year, these emission factors from MOBILE6.2 for direct PM 2.5 , NO X , and any other relevant precursor for the season chosen should be multiplied by the seasonally-adjusted average daily VMT in that analysis year to create an estimate of transportation emissions in a 24-hour period. For additional guidance on creating daily emissions inventories, refer to EPA's existing guidance documents. 35 35 Specifically, see EPA's “Technical Guidance on the Use of MOBILE6.2 for Emission Inventory Preparation,” EPA420-R-04-013, August 2004, found on EPA's Web site at: http://www.epa.gov/otaq/models/mobile6/420r04013.pdf and “Procedures for Emission Inventory Preparation—Vol IV: Mobile Sources,” found at: http://ntl.bts.gov/DOCS/AQP.html. Note that whatever season is chosen to estimate the build scenario emissions, the same season should be used for comparison whether using the baseline year test or build/no-build test. For example, emissions for a build scenario calculated using winter MOBILE6.2 inputs should be compared to emissions in the winter of the baseline year ( see Section IV. for a discussion of the baseline year in 2006 PM 2.5 areas), or emissions in winter from the no-build scenario. Refer to 40 CFR 93.119 for additional information about conducting the build/no-build and baseline year tests. 3. Conformity Test Requirements for All Areas Regional emissions analyses under today's final rule are to be implemented through existing conformity requirements such as 40 CFR 93.118, 93.119, and 93.122. For example, the existing conformity rule requires that certain years within the transportation plan (or alternate timeframe) be examined. Under 40 CFR 93.118(d), the following years would be analyzed for the budget test with 2006 PM 2.5 SIP budgets: • The attainment year for the 2006 PM 2.5 NAAQS (if it is within the timeframe of the transportation plan and conformity determination); • The last year of the timeframe of the conformity determination (40 CFR 93.106(d)); and • Intermediate years as necessary so that analysis years are no more than ten years apart. For the interim emissions tests, the existing conformity rule (40 CFR 93.119(g)) requires the following analysis years: • A year no more than five years beyond the year in which the conformity determination is being made; • The last year of the timeframe of the conformity determination (as described in 40 CFR 93.106(d)); • Intermediate years as necessary so that analysis years are no more than 10 years apart. See the relevant regulatory sections of the conformity rule and the July 1, 2004 final rule preamble for further background on how tests have been implemented for other pollutants and NAAQS (69 FR 40020). 4. Cases Involving Multi-Jurisdictional Areas In July 2004, EPA issued a guidance document for implementing conformity requirements in multi-jurisdictional areas. 36 Multi-jurisdictional areas are nonattainment and maintenance areas with multiple MPOs, one or more MPOs and a donut area, or multi-state areas. EPA believes that this guidance should also apply to 2006 PM 2.5 areas with multiple jurisdictions. 36 “Companion Guidance for the July 1, 2004, Final Transportation Conformity Rule: Conformity Implementation in Multi-Jurisdictional Nonattainment and Maintenance Areas for Existing and New Air Quality Standard,” EPA420-B-04-012, July 2004, found on EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf . There are two parts of this existing guidance that are most relevant for implementing conformity for multi-jurisdictional 2006 PM 2.5 areas that do not have adequate or approved 1997 PM 2.5 SIP budgets. Part 2 of this guidance describes how conformity would be implemented in all 2006 PM 2.5 areas before adequate or approved SIP budgets are available for an applicable NAAQS. Part 3 of this guidance is relevant for meeting conformity requirements once adequate or approved 2006 PM 2.5 SIP budgets are available. For example, Part 3 of this guidance describes how a state or MPO in a multi-state nonattainment area can operate independently from other states/MPOs for conformity purposes once adequate or approved SIP budgets for a state are established. This same conformity guidance also applies for the 2006 PM 2.5 NAAQS in these types of areas. Part 3 applies to the cases where subarea budgets are established for a nonattainment area within one state with multiple MPOs. For further information, please refer to EPA's 2004 multi-jurisdictional conformity guidance. VI. Regional Conformity Tests in 2006 PM 2.5 Areas That Have Adequate or Approved 1997 PM 2.5 SIP Budgets This section describes the conformity tests required for completing regional emissions analyses in areas designated for the 2006 PM 2.5 NAAQS that have adequate or approved SIP budgets for the 1997 PM 2.5 NAAQS that cover either part or all of the 2006 PM 2.5 area. The conformity tests for these areas are found under a new section 93.109(k). See Section V. of this preamble for conformity tests in 2006 PM 2.5 areas that do not have an adequate or approved 1997 PM 2.5 SIP budget. A. Conformity After 2006 PM 2.5 SIP Budgets Are Adequate or Approved 1. Description of Final Rule Once a SIP for the 2006 PM 2.5 NAAQS is submitted with budget(s) that EPA has found adequate or approved, the budget test must be used in accordance with 40 CFR 93.118 to complete all applicable regional emissions analyses for the 2006 PM 2.5 NAAQS. Conformity is demonstrated if the transportation system emissions reflecting the proposed transportation plan, TIP, or project not from a conforming transportation plan and TIP were less than or equal to the motor vehicle emissions budget level defined by the SIP as being consistent with CAA requirements. The first submitted SIP for the 2006 PM 2.5 NAAQS may be an attainment demonstration or a maintenance plan. Nonattainment areas for the 2006 PM 2.5 NAAQS could also voluntarily choose to submit an “early progress SIP” to establish budgets for conformity purposes prior to required SIPs. See Section V. for further details on requirements for early progress SIPs. EPA has discussed this option in past conformity rule preamble, e.g. the July 1, 2004 transportation conformity final rule (69 FR 40028), and some states have established early progress SIP budgets for conformity purposes. Whatever the case, interim emissions tests and/or any existing 1997 PM 2.5 SIP budget would no longer be used for conformity in 2006 PM 2.5 areas for direct PM 2.5 or a relevant precursor once an adequate or approved SIP budget for the 2006 PM 2.5 NAAQS is established for the pollutant or precursor. Once a SIP budget for the 2006 PM 2.5 NAAQS is adequate or approved, the budget test for 2006 PM 2.5 conformity would be done based on 24-hour emissions ( i.e., tons per day). As noted earlier in Section III.D., areas that were also designated for the 1997 PM 2.5 NAAQS would continue to meet their existing conformity requirements for the 1997 PM 2.5 NAAQS, which would include a regional emissions analysis based on annual emissions (i.e., tons per year). The conformity rule at 40 CFR 93.105 requires consultation on the development of SIPs; EPA encourages states to consult with MPOs, state and local transportation agencies, and local air quality agencies sufficiently early when developing 2006 PM 2.5 SIPs to facilitate future conformity determinations. Once EPA's nonattainment designations are finalized, EPA Regions would be available to assist states in developing early progress SIPs for the 2006 PM 2.5 NAAQS, if desired. 2. Rationale and Response to Comments EPA's rationale for the use of the budget test once adequate or approved SIP budgets addressing the 2006 PM 2.5 NAAQS are available, and the summary of comments received on this provision, is found in Section V.A.2. of this preamble. It is not repeated here. B. Conformity Before 2006 PM 2.5 SIP Budgets Are Adequate or Approved 1. Description of the Final Rule This portion of the final rule is for completing conformity under the 2006 PM 2.5 NAAQS before 2006 PM 2.5 SIP budgets are established. For areas designated nonattainment for the 2006 PM 2.5 NAAQS where all, or a portion, of the area is covered by adequate or approved 1997 PM 2.5 SIP budgets, the 1997 PM 2.5 SIP budgets serve as the surrogate for budgets for the 2006 PM 2.5 NAAQS until the point when 2006 PM 2.5 SIP budgets are adequate or approved. The interagency consultation process should be used if there are questions about what adequate or approved budgets are established in an area's 1997 PM 2.5 SIP. In addition, in the case where the 1997 budget does not cover the entire 2006 PM 2.5 area, one of the interim emissions tests must also be used, as described below. Section IV. of today's rule covers the baseline year to be used for the baseline year interim emissions test and Section V. covers interim emissions tests in 2006 PM 2.5 areas before adequate or approved SIP budgets for the 2006 PM 2.5 NAAQS are available. Many nonattainment areas for the 1997 PM 2.5 NAAQS may have adequate or approved SIP budgets for the 1997 annual PM 2.5 NAAQS. For areas that use annual PM 2.5 budgets to meet 2006 PM 2.5 requirements, a regional emissions analysis would be done based on an analysis of annual, rather than 24-hour, emissions ( i.e., tons per year). The final rule creates a new provision in § 93.109(k) that covers the four possible scenarios that could result when areas are designated nonattainment for the 2006 PM 2.5 NAAQS: • Scenario 1: the 2006 PM 2.5 area nonattainment boundary is the same as the 1997 PM 2.5 area boundary. • Scenario 2: the 2006 PM 2.5 area is smaller than (and completely within) the 1997 PM 2.5 area boundary. • Scenario 3: the 2006 PM 2.5 area is larger than (and contains) the 1997 PM 2.5 area boundary. • Scenario 4: the 2006 PM 2.5 area boundary overlaps with a portion of the 1997 PM 2.5 area boundary. Most of the 2006 PM 2.5 areas that are also designated for the 1997 PM 2.5 NAAQS are Scenario 1 areas; there are areas that belong to Scenarios 2 and 3 as well. EPA is including rules for all four scenarios for the sake of completeness. 37 The following paragraphs describe today's rule provisions for each possible scenario for 2006 PM 2.5 nonattainment areas. 37 Today's final rule is based on EPA's experience in establishing conformity requirements for areas designated for the 1997 8-hour ozone NAAQS that had SIP budgets for the 1-hour ozone NAAQS, found in 40 CFR 93.109(e)(2). The four boundary scenarios are the same as the four boundary scenarios EPA described for the 1997 8-hour ozone areas that had existing 1-hour ozone budgets. EPA's 2004 guidance entitled, “Companion Guidance for the July 1, 2004 Final Transportation Conformity Rule, Conformity Implementation in Multi-Jurisdictional Nonattainment and Maintenance Areas for Existing and New Air Quality Standards,” (EPA420-B-04-012), contains diagrams of the four scenarios for 8-hour ozone areas. Readers may be interested in reviewing these diagrams as they read the following description of the regulation. This document can be found on EPA's transportation conformity website at: http://www.epa.gov/otaq/stateresources/transconf/policy/420b04012.pdf . Scenario 1: 2006 PM 2.5 areas where the nonattainment boundary is exactly the same as the 1997 PM 2.5 boundary. In this case, the 2006 and 1997 PM 2.5 nonattainment boundaries cover exactly the same geographic area. Such areas must meet the budget test for the 2006 PM 2.5 NAAQS using existing adequate or approved SIP budgets for the 1997 PM 2.5 NAAQS. Scenario 2: 2006 PM 2.5 areas where the boundary is smaller than and within the 1997 PM 2.5 boundary. In this case, the 2006 PM 2.5 nonattainment area is smaller than and completely encompassed by the 1997 PM 2.5 nonattainment boundary. Such areas must meet one of the following versions of the budget test: • The budget test using the subset or portion of existing adequate or approved 1997 PM 2.5 SIP budgets that applies to the 2006 PM 2.5 nonattainment area, where such portion(s) can be appropriately identified; or • The budget test using the existing adequate or approved 1997 PM 2.5 SIP budgets for the entire 1997 PM 2.5 nonattainment area. In this case, any additional reductions beyond those addressed by control measures in the 1997 PM 2.5 SIP would be required to come from the 2006 PM 2.5 nonattainment area as described below. Under today's rule, areas could choose either test each time they make a conformity determination. For any particular conformity determination, however, the same choice would have to be used for each analysis year. EPA believes that to do otherwise would be unnecessarily complicated and may indicate that one test option used consistently for all analysis years would not demonstrate conformity. The consultation process must be used to determine whether using a portion of a 1997 PM 2.5 SIP budget is appropriate and feasible, and if so, how deriving such a portion would be accomplished. See the preamble of the July 1, 2004 final rule (69 FR 40022-40023) for a description of a similar provision for the 1997 8-hour ozone NAAQS. A conformity determination using the entire 1997 PM 2.5 budget would have to include a comparison between the on-road regional emissions produced in the entire 1997 PM 2.5 area and the existing 1997 PM 2.5 SIP budget(s). However, if additional reductions are required to meet conformity beyond those produced by control measures in the 1997 PM 2.5 SIP budgets, those reductions must be obtained from within the 2006 PM 2.5 nonattainment area only, since the conformity determination is being made for the 2006 PM 2.5 NAAQS. Scenario 3: 2006 PM 2.5 areas where the boundary is larger than the 1997 PM 2.5 boundary. In this case, an entire 1997 PM 2.5 nonattainment or maintenance area would be within a larger 2006 PM 2.5 nonattainment area and the 1997 PM 2.5 budgets would not cover the entire 2006 PM 2.5 nonattainment area. Such areas are required to meet one of the following: • The budget test using the 1997 PM 2.5 budget(s) for the 1997 PM 2.5 area, that is, the portion of the 2006 PM 2.5 area that lies within the 1997 PM 2.5 area boundary, and one of the interim emissions tests for either the remaining portion of the 2006 PM 2.5 nonattainment area, the entire 2006 PM 2.5 area, or the entire portion of the 2006 PM 2.5 area within an individual state, if 1997 PM 2.5 budgets are established in each state in a multi-state area; or • The budget test using the existing adequate or approved 1997 PM 2.5 SIP budgets for the entire 2006 PM 2.5 nonattainment area. 38 38 While the existing regulation for 8-hour ozone areas does not explicitly contain this option, it was addressed in the preamble to the final rule addressing 8-hour ozone areas (July 1, 2004, 69 FR 40027). The budget test must be completed according to the requirements in 40 CFR 93.118, and the interim emissions test must follow the requirements of 40 CFR 93.119. Once an area selects a particular interim emissions test and the geographic area it will address, the same test must be used consistently for all analysis years. The consultation process must be used to determine which analysis years should be selected for regional emissions analyses where the budget test and interim emissions tests are used. It may be possible to choose analysis years that satisfy both the budget and interim emissions test requirements for areas using both tests prior to adequate or approved 2006 PM 2.5 SIP budgets being established. Further information regarding the implementation of these requirements is illustrated later in this section. Scenario 4: 2006 PM 2.5 areas where the boundary partially overlaps a portion of the 1997 PM 2.5 boundary. In this case, the 1997 and 2006 PM 2.5 nonattainment boundaries partially overlap. As in the case with Scenario 3 areas, the 1997 PM 2.5 budgets would not cover the entire 2006 PM 2.5 nonattainment area. However, unlike Scenario 3 areas, the 2006 area does not contain the entire 1997 PM 2.5 nonattainment or maintenance area. Therefore, 1997 PM 2.5 budgets cannot be the sole test of conformity for the 2006 PM 2.5 NAAQS, since a conformity determination must include a regional emissions analysis that includes the entire 2006 PM 2.5 nonattainment area. The 2006 PM 2.5 areas covered under this scenario must use the 1997 PM 2.5 budget(s) to meet the budget test for the portion of the 1997 PM 2.5 area and budgets that overlap with the 2006 PM 2.5 area boundary, and one of the interim emissions tests for either the remaining portion of the 2006 PM 2.5 nonattainment area, the entire 2006 PM 2.5 area, or the entire portion of the 2006 PM 2.5 area within an individual state, if 1997 PM 2.5 budgets are established in each state in a multi-state area. Under this final rule, the budget test must be completed according to the requirements in 40 CFR 93.118, and the interim emissions test must follow the requirements of 40 CFR 93.119. Similar to Scenario 3 areas, once an area selects a particular interim emissions test and the geographic area it will address, the same test must be used consistently for all analysis years. Further information regarding the implementation of these requirements is found in the discussion above for Scenario 3, and illustrated later in this section. 2. Rationale and Response to Comments General. EPA believes that using the existing 1997 PM 2.5 budgets as a surrogate for the 2006 PM 2.5 NAAQS is required by the CAA. In Environmental Defense v. EPA, 467 F.3d 1329 (D.C. Cir. 2006), the Court of Appeals for the District of Columbia Circuit held that where a motor vehicle emissions budget developed for the revoked 1-hour ozone NAAQS existed in an approved SIP, that budget must be used to demonstrate conformity to the 8-hour ozone NAAQS until the SIP is revised to include budgets for the new NAAQS. EPA reflected the court's decision for ozone conformity tests in its January 24, 2008 final rule (73 FR 4434). While the Environmental Defense case concerned ozone, EPA believes the court's holding is relevant for other pollutants for which conformity must be demonstrated. Consequently, EPA believes that 2006 PM 2.5 areas that have 1997 PM 2.5 budgets must use them for 2006 PM 2.5 conformity before 2006 PM 2.5 SIP budgets are established. The use of the 1997 PM 2.5 budgets as a surrogate for the 2006 PM 2.5 NAAQS also would ensure that CAA requirements are met. Section 176(c) of the CAA requires that transportation activities may not cause or contribute to new violations, worsen existing violations, or delay timely attainment or any interim milestones. In these areas, the budgets for the 1997 annual PM 2.5 NAAQS have been the measure of PM 2.5 conformity thus far, and have been consistent with these areas' PM 2.5 air quality progress to date. Therefore, using budgets that address the 1997 annual PM 2.5 NAAQS where no other PM 2.5 budgets are available ensures that the requirements of CAA 176(c) are met. Once 2006 PM 2.5 budgets are found adequate or approved, the budget test for that NAAQS provides the best means to determine whether transportation plans, TIPs, or projects meet CAA requirements. The budget test is also a better environmental measure than the interim emissions tests when SIP budgets for a pollutant or precursor are available. As EPA reiterated in its July 1, 2004 final rule (69 FR 40026), when motor vehicle emissions budgets have been established by SIPs, they provide a more relevant basis for conformity determinations than the interim emissions tests. EPA believes this is true even though in most cases the budgets established for the 1997 PM 2.5 NAAQS would address an annual rather than a 24-hour NAAQS. A 1997 PM 2.5 budget represents the state's best estimate of the level of permissible PM 2.5 emissions from the on-road transportation sector for a particular area. Such a budget is created based on local information for that particular area—its population, its estimated vehicle miles traveled and other travel data, its transit availability, its particular vehicle fleet, its local controls, and so forth. Hence EPA believes using budgets, designed for specific areas and based on information from those specific areas, is preferable to using either of the more generic interim emissions tests. The baseline year and the build/no-build tests are sufficient for demonstrating conformity when an area does not have a budget for a portion of a nonattainment area. However, these interim emissions tests usually do not ensure that transportation emissions promote progress for the NAAQS to the same extent that the use of motor vehicle emissions budgets do. In addition, using the 1997 PM 2.5 budgets for 2006 PM 2.5 conformity purposes may also streamline the conformity process for areas designated nonattainment for both the 1997 and 2006 PM 2.5 NAAQS. These areas would already be using 1997 PM 2.5 budgets for conformity of that NAAQS. In areas where the 1997 and 2006 PM 2.5 nonattainment boundaries are the same (Scenario 1), today's final rule requires these areas to meet only one type of test—the budget test—to demonstrate conformity for both the 1997 and 2006 PM 2.5 NAAQS, although the attainment year, which is a required analysis year, will be different for these two NAAQS. For multi-state 2006 PM 2.5 nonattainment areas, today's final rule preserves states' ability to determine conformity independently from one another, if a state has already established budgets for its own state (and/or MPO(s)) for the 1997 PM 2.5 NAAQS. Further explanation and examples are given below in Section VI.C. While today's final rule concerns the 2006 PM 2.5 NAAQS, this same rationale regarding conformity tests would apply for future new or revised NAAQS of any transportation-related criteria pollutant. Therefore, EPA may amend the rule in the future to apply the conformity test language found in today's § 93.109(j) and (k) more generally. EPA is not doing so in today's final rule as such a provision was not proposed, and EPA intends to solicit and consider public comments on applying this language to future new or revised NAAQS before adopting any such provision. Scenario 1 and 2 areas. Today's final rule for conformity in 2006 PM 2.5 areas before budgets that address that NAAQS are available is largely consistent with the process that EPA finalized for 8-hour ozone areas designated under the 1997 ozone NAAQS where 1-hour ozone budgets exist (69 FR 40021-40028). Requirements for Scenario 1 and 2 areas are identical to the final rule for these 8-hour ozone areas. Scenario 2 2006 PM 2.5 areas also have the choice of adjusting the existing 1997 PM 2.5 budgets for the new geographical area. As we indicated in the November 5, 2003 proposed rule for the 8-hour ozone areas (68 FR 62702), using the relevant portion of existing budgets for purposes of conducting conformity determinations for a different NAAQS of the same pollutant is appropriate since the budgets for the 1997 PM 2.5 NAAQS would only be used as a surrogate for the 2006 PM 2.5 NAAQS. These 1997 PM 2.5 budgets still have to be met in the 1997 PM 2.5 areas. Scenario 3 and 4 areas. Some Scenario 3 areas and all Scenario 4 areas must also meet one of the interim emissions tests, for either the portion of the 2006 PM 2.5 area not covered by the 1997 PM 2.5 SIP budgets, the entire PM 2.5 area, or the entire portion of the 2006 PM 2.5 area within an individual state. As explained in the November 2003 proposed rule for 8-hour ozone areas (68 FR 62702), in these cases budgets cannot be the sole test of conformity because a conformity determination must include a regional emissions analysis that covers the entire nonattainment area. However, some Scenario 3 areas may be able to demonstrate conformity without an interim emissions test. Scenario 3 PM 2.5 areas have an option that similar 8-hour ozone areas also have: The entire larger, newly designated area could meet budgets established for the smaller, existing area. In the July 1, 2004 final rule, EPA clarified that 8-hour ozone areas have this option. In that final rule, EPA noted that while this option was not explicitly addressed by the regulatory text, it is consistent with the requirements and is available to interested 8-hour ozone areas (69 FR 40027). Finally, EPA believes that statutory requirements are met under the proposal to use either interim emissions test when no adequate or approved PM 2.5 SIP budgets are available. See further rationale regarding this flexibility in today's final rule in Section V. EPA did not receive any specific comments on this portion of the rulemaking, but one commenter supported the use of EPA's 2004 multi-jurisdictional guidance for 2006 PM 2.5 areas. This guidance, discussed further below in C.2. of this section, reflects the requirements finalized today. C. General Implementation of Regional Tests Today's final rule applies the existing conformity rule's general requirements for PM 2.5 regional emissions analyses to all 2006 PM 2.5 areas. As described in Section V.C., EPA is including this discussion of the existing regulation's requirements for clarity, to help readers understand how the existing regulation would apply to areas designated nonattainment for the 2006 PM 2.5 NAAQS. The discussion below is intended to illustrate how today's rule will be implemented in practice for 2006 PM 2.5 areas with adequate or approved 1997 PM 2.5 SIP budgets. 1. Conformity Test Requirements for Most Areas Regional emissions analyses under today's final rule must be implemented through existing conformity requirements such as 40 CFR 93.118, 93.119, and 93.122. For example, the conformity rule requires that only certain years within the transportation plan (or alternate timeframe) be examined. The consultation process must be used to determine which analysis years should be selected for regional emissions analyses for the budget test. The conformity rule at 40 CFR 93.118(d)(2) requires the following analysis years for this test: • The attainment year for the 2006 PM 2.5 NAAQS (if it is within the timeframe of the transportation plan and conformity determination); • The last year of the timeframe of the conformity determination (40 CFR 93.106(d)); and • Intermediate years as necessary so that analysis years are no more than ten years apart. Areas covered by § 93.109(k) of today's final rule will also be determining conformity for the 1997 PM 2.5 NAAQS, using adequate or approved budgets established for that NAAQS, although there will be some differences in analysis years required for the 2006 and 1997 PM 2.5 NAAQS ( e.g. , the attainment year, which is a required analysis year, will be different for these two NAAQS). See the relevant regulatory sections of the conformity rule and the July 1, 2004 final rule preamble for further background on how tests have been implemented for other pollutants and standards (69 FR 40020). 2. Cases Involving Multi-Jurisdictional Areas As described earlier, EPA issued a guidance document in 2004 for implementing conformity requirements in multi-jurisdictional areas. There are two parts of this existing guidance that are relevant for implementing conformity for these areas. Part 3 of the existing guidance describes how conformity would be implemented in all 2006 PM 2.5 areas once adequate or approved SIP budgets for the 2006 PM 2.5 NAAQS are established. Part 4 of this guidance is relevant for meeting conformity requirements when only 1997 PM 2.5 budgets are available. 39 39 This section of the guidance covers how 8-hour ozone areas that have 1-hour ozone budgets would proceed with developing their regional emissions analyses and making conformity determinations, which is analogous to any 2006 PM 2.5 areas that have 1997 budgets in the interim. This guidance is also applicable for conformity purposes in multi-state and multi-MPO areas. For example, in multi-state 2006 PM 2.5 nonattainment areas where each state has its own 1997 PM 2.5 SIP budgets, the states could determine conformity for the 2006 NAAQS (as well as the 1997 PM 2.5 NAAQS) independently of each other. In addition, MPOs in areas that have subarea budgets for the 1997 PM 2.5 NAAQS could use these subarea budgets for conformity to the 2006 PM 2.5 NAAQS. For further information, please refer to Section V.C. and EPA's 2004 multi-jurisdictional conformity guidance. VII. Other Conformity Requirements for 2006 PM 2.5 Areas The conformity regulations already provide the remaining requirements that are necessary for conformity under the 2006 PM 2.5 NAAQS. Any existing conformity requirements that are listed for “PM 2.5 ” areas that have not been revised by today's final rule apply to 2006 PM 2.5 nonattainment or maintenance areas as well. These provisions have already been promulgated, based on past rulemakings and rationale, and are unchanged by today's rule. For example, a hot-spot analysis is required for certain projects in any PM 2.5 nonattainment and maintenance areas before such projects can be found to conform. These requirements are found in §§ 93.116(a) and § 93.123(b) of the conformity rule, although please note that EPA for other reasons has clarified amendments to section 93.116(a) in today's final rule; see Section IX. The hot-spot analysis requirements that were promulgated for “PM 2.5 ” areas in the conformity rule did not need to be amended to apply to 2006 PM 2.5 areas, because they already apply for this NAAQS. A hot-spot analysis in an area designated for both the 1997 and 2006 PM 2.5 NAAQS would have to demonstrate that the project meets the conformity rule's hot-spot requirements for all of the PM 2.5 NAAQS for which the area is designated nonattainment: • If an area is designated nonattainment for only the 2006 PM 2.5 NAAQS, the analysis would have to consider only this NAAQS; • If an area is designated nonattainment for the 1997 annual NAAQS and the 2006 24-hour NAAQS, the analysis would have to consider both NAAQS; • If an area is designated nonattainment for both the 1997 annual and 1997 24-hour NAAQS, as well as the 2006 24-hour NAAQS, the analysis would have to consider all of these NAAQS. Please refer to the March 10, 2006 final rule for additional information regarding hot-spot analyses (47 FR 12468) and EPA and FHWA's current guidance for implementing this requirement (Transportation Conformity Guidance for Qualitative Hot-spot Analyses in PM 2.5 and PM 10 Nonattainment and Maintenance Areas, March 2006, EPA420-B-06-902). EPA will also be releasing PM quantitative hot-spot modeling guidance in the near future. Please check EPA's Web site at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm. Section 93.117 of the conformity rule, which requires project-level conformity determinations to comply with any PM 2.5 control measures in an approved SIP, also applies for conformity under the 2006 PM 2.5 NAAQS. Again, EPA promulgated this requirement in general for nonattainment and maintenance areas under the PM 2.5 NAAQS. See EPA's July 2004 final rule for further information on this requirement (69 FR 40036-40037). EPA will work with PM 2.5 nonattainment areas as needed to ensure that state and local agencies can meet existing and new conformity requirements for the 2006 PM 2.5 NAAQS in a timely and efficient manner. VIII. Transportation Conformity in PM 10 Nonattainment and Maintenance Areas and the Revocation of the Annual PM 10 NAAQS A. Background On October 17, 2006, EPA issued a final rule establishing changes to the PM 2.5 and PM 10 NAAQS (71 FR 61144). The October 2006 final rule retained the 24-hour PM 10 NAAQS of 150 μg/m 3 , and revoked the annual PM 10 NAAQS of 50 μg/m 3 . EPA made a commitment in the October 2006 final rule to provide information regarding how transportation conformity will be implemented under the revised PM 10 NAAQS (71 FR 61215). To satisfy this commitment, EPA described which conformity tests would apply in PM 10 nonattainment and maintenance areas (“PM 10 areas”) in a guidance document. 40 Today's final rule updates the conformity rule in response to this commitment. 40 Transportation Conformity in PM 10 Nonattainment and Maintenance Areas and the Revocation of the Annual PM 10 Standard, September 25, 2008, found on EPA's Web site at: http://www.epa.gov/otaq./stateresources/transconf/policy.htm. CAA section 176(c)(5) requires conformity only in areas that are designated nonattainment or maintenance for a given pollutant and NAAQS. Therefore, transportation conformity has continued to apply to all PM 10 nonattainment and maintenance areas because transportation conformity applies based on an area's status as a nonattainment or maintenance area, and PM 10 designations were not affected by the October 2006 final rule. As stated in the October 2006 final rule, “both transportation and general conformity will continue to apply to all PM 10 nonattainment and maintenance areas since no designations are changing” (71 FR 61215). As of the effective date of the October 2006 rule, conformity determinations in PM 10 areas have been required only for the 24-hour PM 10 NAAQS. The October 2006 final rule stated, “However, because EPA is revoking the annual PM 10 NAAQS in this final rule, after the effective date of this rule conformity determinations in PM 10 areas will only be required for the 24-hour PM 10 NAAQS; conformity to the annual PM 10 NAAQS will no longer be required” (71 FR 61215). Please refer to the October 17, 2006 final rule for additional information (71 FR 61144). B. Description of the Final Rule EPA has added two new definitions to 40 CFR 93.101 of the conformity rule to distinguish between the 24-hour PM 10 NAAQS and the annual PM 10 NAAQS. EPA has also updated 40 CFR 93.109(g) so that: • PM 10 areas that have adequate or approved SIP budgets for both the 24-hour and annual PM 10 NAAQS are required to use only the budgets established for the 24-hour PM 10 NAAQS. Conformity to the annual PM 10 budgets in such a case is no longer required. • PM 10 areas that have adequate or approved SIP budgets for only the annual PM 10 NAAQS are required to use them for PM 10 conformity determinations until PM 10 SIP budgets for the 24-hour PM 10 NAAQS are found adequate or approved. For areas that use annual PM 10 budgets, a regional emissions analysis must be done based on an analysis of annual, rather than 24-hour, emissions. No other conformity requirements for PM 10 nonattainment and maintenance areas have been changed by the final rule. For example, the requirement for project-level conformity determinations in PM 10 areas continues to apply, including hot-spot analyses in some cases (see §§ 93.116(a) and 93.123(b)). Although project-level conformity requirements and any required hot-spot analyses apply only with respect to the 24-hour PM 10 NAAQS, this requires no revisions to the conformity rule to implement. Where an area has adequate or approved PM 10 budgets for both the annual and 24-hour PM 10 NAAQS, it is not necessary to remove the annual PM 10 NAAQS budgets from the SIP. Such annual budgets do not apply for conformity purposes if an area has budgets for the 24-hour PM 10 NAAQS. However, states can choose to revise such SIPs to remove any annual PM 10 budgets, since this NAAQS has been revoked and remaining 24-hour PM 10 budgets ensure that anti-backsliding SIP requirements are met. C. Rationale and Response to Comments Today's update to the rule for PM 10 conformity tests results from the revocation of the annual PM 10 NAAQS. In areas where annual PM 10 budgets are the only PM 10 budgets that are adequate or approved, EPA believes it is necessary to use such budgets to demonstrate conformity for the 24-hour PM 10 NAAQS to meet CAA requirements. As discussed above in Section VI.B.2., a 2006 decision by the Court of Appeals for the DC Circuit clarified this point. In this decision, the court stated, “A current SIP, even one tied to outdated NAAQS, remains in force until replaced by another but later-approved SIP. The CAA provides that the current SIPs are legally sufficient until they are replaced by new SIPs.” ( Environmental Defense v. EPA, 467 F.3d 1329, 1335 (DC Cir. 2006)). Refer to Section VI.B.2. for further information about the decision. EPA believes that today's final rule is consistent with this decision. Consequently, EPA believes that annual PM 10 budgets must be used to demonstrate conformity for the 24-hour PM 10 NAAQS when adequate or approved 24-hour PM 10 budgets are not yet established. In areas with PM 10 budgets that address only the annual PM 10 NAAQS, these budgets have been the measure of PM 10 conformity thus far, and have been consistent with these areas' PM 10 air quality progress to date. Therefore, using annual PM 10 budgets where no other PM 10 SIP budgets are available ensures that air quality progress to date is maintained, air quality will not be worsened and attainment and any interim milestones for the 24-hour PM 10 NAAQS will not be delayed because of emissions increases. Once 24-hour PM 10 budgets are found adequate or approved, the budget test using only the budgets for the 24-hour PM 10 NAAQS provides the best means to determine whether transportation plans, TIPs, or projects meet CAA conformity requirements. Most PM 10 areas already have adequate or approved budgets for only the 24-hour PM 10 NAAQS. However, there are a limited number of PM 10 areas that have SIP budgets only for the annual PM 10 NAAQS. EPA believes that the statute as interpreted by the court requires such areas to continue to use these adequate or approved annual PM 10 SIP budgets, rather than use one of the interim emissions tests in 40 CFR 93.119(d) which could be less environmentally protective tests than SIP budgets. While EPA addressed how the revocation affected PM 10 transportation conformity requirements in its September 2008 guidance, updating the regulation clarifies the requirements and simplifies implementation. This final rule also saves resources in some areas with adequate or approved SIP budgets for both the 24-hour and annual PM 10 NAAQS because these areas are no longer required to use budgets for the annual PM 10 NAAQS. As mentioned above, today's minor revision to the conformity rule is consistent with what is already required in the field for PM 10 nonattainment and maintenance areas. EPA received one comment supporting this rule change and no comments opposing it. IX. Response to the December 2007 Hot-Spot Court Decision A. Background EPA promulgated a final rule on March 10, 2006 (71 FR 12468) that revised the previous PM 10 conformity hot-spot analysis requirements and applied these revised requirements to PM 2.5 . 41 A hot-spot analysis is defined in 40 CFR 93.101 as an estimation of likely future localized pollutant concentrations and a comparison of those concentrations to relevant NAAQS. A hot-spot analysis assesses the air quality impacts of an individual transportation project on a scale smaller than a regional emissions analysis for an entire nonattainment or maintenance area. 41 The March 10, 2006 rule constituted final action on EPA's original proposal from November 5, 2003 (68 FR 62690, 62712) and a supplemental proposal from December 13, 2004 (69 FR 72140, 72144-45, and 72149-50). Prior to today, section 93.116(a) of the conformity rule read: “* * * The FHWA/FTA project must not cause or contribute to any new localized CO, PM 10 , and/or PM 2.5 violations or increase the frequency or severity of any existing CO, PM 10 , and/or PM 2.5 violations * * *.” These requirements continue to apply in today's rule, and are satisfied for applicable projects 42 “if it is demonstrated that during the time frame of the transportation plan no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project.” Sections 93.105(c)(1)(i) and 93.123 contain the consultation and methodology requirements for conducting hot-spot analyses. 42 Section 93.123(b) contains the types of projects for which a hot-spot analysis applies in PM 2.5 and PM 10 areas. For additional discussion, please refer to “V. Projects of Air Quality Concern and General Requirements for PM 2.5 and PM 10 Hot-Spot Analyses” in the preamble of the March 10, 2006 final rule at 71 FR 12490-12498. A hot-spot analysis, when required, is only one part of a project-level conformity determination. In order to meet all CAA requirements, an individual project must also be included in a conforming transportation plan and TIP (and regional emissions analysis for the entire nonattainment or maintenance area) and meet any other applicable requirements. Environmental petitioners challenged the March 2006 final rule, and raised several issues related to it. First, petitioners alleged that the final rule did not ensure that transportation projects complied with CAA section 176(c)(1)(A) and (c)(1)(B)(iii). Second, petitioners alleged that EPA had previously approved its MOBILE6.2 on-road mobile source emissions model for use in quantitative PM 2.5 and PM 10 hot-spot analyses, and withdrew such approval in the March 2006 final rule without providing adequate notice and opportunity for public comment. 43 43 EPA and petitioners settled a third issue that was not raised to the court. The settlement was finalized on June 22, 2007 (72 FR 34460), and described a stakeholder process that EPA will use to develop its future PM 2.5 and PM 10 quantitative hot-spot modeling guidance. On December 11, 2007, the D.C. Circuit Court of Appeals issued its decision, and upheld EPA's March 2006 final rule and remanded one issue for clarification. Environmental Defense v. EPA, 509 F.3d. 553 (D.C. Cir. 2007). The court agreed with EPA's position that CAA section 176(c)(1)(A) does not require that an individual transportation project reduce emissions, but only that such a project not worsen air quality compared to what would have otherwise occurred if the project was not implemented. The court held that, assuming section 176(c)(1)(A) applies in the local area surrounding an individual project, EPA's position that this provision is met if a transportation project conforms to the emissions estimates and control requirements of the SIP was a reasonable one. The court also rejected petitioners' arguments regarding MOBILE6.2 and found that EPA had in fact provided adequate notice and comment on its decision not to require quantitative PM hot-spot analyses using MOBILE6.2 due to the model's technical limitations at the project-level (71 FR 12498-12502). However, the court remanded one issue to EPA for further explanation of the Agency's interpretation of CAA section 176(c)(1)(B)(iii). The court instructed EPA on remand to interpret how this provision of the Act is met within the local area affected by an individual project, or explain why this statutory provision does not apply within such an area. Today's final rule responds to this part of the court's decision. B. Description of the Final Rule EPA has made two changes to section 93.116(a) of the conformity rule to address the court's remand. First, EPA is explicitly stating in this provision that federally funded or approved highway and transit projects in PM 2.5 and PM 10 nonattainment and maintenance areas must meet the requirements of CAA section 176(c)(1)(B)(iii) within the local area affected by the project. That is, § 93.116(a) now expressly says that project must not delay timely attainment or any interim milestones. EPA has also explicitly stated in § 93.116 the requirement that projects must be included in a regional emissions analysis under 40 CFR 93.118 or 93.119. Consistent with the court's decision, as explained below, EPA is not requiring an individual project to reduce emissions in the local project area. These revisions are intended to clarify and make more explicit EPA's longstanding interpretation of the CAA as it applies to hot-spot analyses, and do not reflect any substantive changes to existing requirements for project-level conformity determinations. Under today's final rule, project-level conformity determinations, including any hot-spot analyses, will continue to be performed in the same manner as current practice. Projects will continue to be required to be a part of a regional emissions analysis that supports a conforming transportation plan and TIP. Hot-spot analyses will need to demonstrate that during the time frame of the transportation plan no new local violations would be created and the severity or number of existing violations would not be increased as a result of a new project. By making these demonstrations, it can be assured that the project would not delay timely attainment or any required interim reductions or milestones, as described further below. In addition, project sponsors must continue to document the hot-spot analysis as part of the project-level conformity determination, and the public continues to be able to comment on any aspects of the conformity determination through existing public involvement requirements. EPA notes that today's final rule also addresses new projects in CO nonattainment and maintenance areas, since the hot-spot analysis requirements in section 93.116(a) also apply to such areas. Although the March 2006 final rule and the December 2007 court case did not involve CO hot-spot requirements, EPA believes it is appropriate to clarify that CAA section 176(c)(1)(B)(iii) must also be met for projects in CO nonattainment and maintenance areas. C. Rationale and Response to Comments 1. General Project-level conformity determinations must demonstrate that all of the requirements in CAA section 176(c)(1)(B) are met. Section 176(c)(1)(B) defines conformity to a SIP to mean “that such activities will not (i) cause or contribute to any new violation of any NAAQS in any area; (ii) increase the frequency or severity of any existing violation of any NAAQS in any area; or (iii) delay timely attainment of any NAAQS or any required interim emission reductions or other milestones in any area.” In Environmental Defense, the court held that EPA did not adequately explain how it interpreted the language of CAA section 176(c)(1)(B)(iii) in conjunction with related language in sections 176(c)(1)(B)(i) and (ii). The court stated that, if “any area” in the first two provisions refers to a “local area,” then EPA must either interpret the term “any area” in section 176(c)(1)(B)(iii) to also mean “local area,” or explain why a different interpretation is reasonable. 509 F.3d at 560-61. EPA believes that “any area” as used in the first two provisions does include local areas, and that the same interpretation should apply to the third provision as well; therefore all of section 176(c)(1)(B) requirements must be met in the local project area. EPA believes that its conformity hot-spot regulations, as well as other conformity requirements, already require that individual projects comply with section 176(c)(1)(B)(iii) in the local project area. EPA has always intended the term “any area” in all three statutory provisions of section 176(c)(1)(B) to include the local area affected by the emissions produced by a new project. For example, as EPA stated in the March 2006 final hot-spot rule (71 FR 12483), “a regional emissions analysis for an area's entire planned transportation system is not sufficient to ensure that individual projects meet the requirements of section 176(c)(1)(B) where projects could have a localized air quality impact.” To implement section 176(c)(1)(B) requirements in PM 2.5 , PM 10 , and CO nonattainment and maintenance areas [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-5703. Public record. Not legal advice.