Updated PM Hotspot FAQs

EPA’s Office of Transportation & Air Quality (OTAQ) has updated the PM hot-spot FAQs on the Project-Level Conformity and Hot-Spot Analyses web page.  This update provides additional examples of projects that would not need a hot-spot analysis based on decisions that have been made in the field.

A link to EPA’s Project-Level Conformity and Hot-Spot Analyses webpage, with the document:
https://www.epa.gov/state-and-local-transportation/project-level-conformity-and-hot-spot-analyses#faq

And this is the direct link to the document itself:
https://www.epa.gov/sites/production/files/2018-06/documents/420f18011.pdf

IMPORTANT UPDATE: South Coast Air Quality Management District v. EPA Court Case

Late last week, AASHTO received a formal response from the EPA regarding the joint AASHTO/AMPO letter sent to Administrator Pruitt requesting that the EPA file a petition for rehearing of the South Coast Air Quality Management District v. EPA court case.

EPA’s petition to the D.C. Circuit included interim guidance developed by FHWA and FTA. The FHWA and FTA guidance states that that “all routine planning and project development actions can proceed throughout country” except in 82 so-called “orphan areas.” The term “orphan areas” refers to areas that are in attainment for the 2008 standard but were in non-attainment or maintenance status for the 1997 standard when implementation rules for the 2008 standard went into effect. The guidance document includes the full list of the 82 orphan areas.

With regard to the 82 orphan areas, the FHWA/FTA guidance states that:

(1) metropolitan plan and TIP amendments and updates that include the addition of non-exempt projects in the 82 areas cannot proceed until a transportation conformity determination is made for the 1997 standard;

(2) STIP approvals and amendments that include TIPs or non-exempt projects from the 82 areas cannot proceed until a transportation conformity determination is made for the 1997 standard; and

(3) NEPA approvals for FHWA/FTA projects in the 82 areas cannot proceed if the project requires a Plan, TIP, or STIP amendment until that amendment is approved, which would require a conformity determination for the 1997 standard. Additionally, projects that have already completed the NEPA process may proceed, including: grant obligations, approvals of plans, specifications and estimates, and authorizations to begin construction.

EPA’s letter (attached) states that “the decision does not affect transportation conformity requirements for areas that are designated as nonattainment or maintenance for the 2008 ozone NAAQS” and further states that “transportation conformity determinations for the 2008 ozone NAAQS should continue to be made as they have been prior to the decision.” This means that, in general, a conformity determination for the 1997 standard is not required in areas that are in nonattainment or maintenance for the 2008 standard; a conformity determination for the 2008 standard will suffice in those areas. But there is an exception: EPA’s indicates that conformity determinations for the 1997 standard are required in so-called “partial orphan areas,” where the nonattainment or maintenance boundary for the 1997 standard extends beyond the nonattainment or maintenance boundary for the 2008 standard. EPA’s letter does not include a list of those areas.

Based on our review of the FHWA/FTA guidance and EPA letter, our current understanding is that there are three distinct groups, with different requirements in each:

  • 82 “Orphan Areas”. These areas are in attainment for the 2008 ozone standard, and were in nonattainment or maintenance status for the 1997 standard. These 82 areas are listed in the FHWA/FTA guidance. Transportation conformity for the 1997 standard is required prior to any Plan, TIP, or STP updates or amendments involving non-exempt projects in these areas.
  • 33 “Non-Orphan Areas”. These areas are in nonattainment or maintenance for 2008 standard, and were also in nonattainment or maintenance for the 1997 standard, and boundary for the 1997 standard is entirely within the boundary for the 2008 standard.  Thus, a conformity determination for the 2008 standard would cover the entire area within the boundary for the 1997 standard. In these areas, our understanding is that a conformity determination for the 2008 standard will suffice. Based on EPA’s Greenbook, our understanding is that this category includes the 33 areas in the attached.
  • 10 “Partial Orphan Areas”. These areas are in nonattainment or maintenance for 2008 standard, and were also in nonattainment or maintenance for the 1997 standard – but boundary for the 1997 standard extends beyond the boundary for the 2008 standard.  Thus, a portion of the 1997 nonattainment or maintenance area is not covered by conformity determination for the 2008 standard. While it is not entirely clear, EPA seems to be saying that a conformity determination for the 1997 standard is required for Plan, TIP, and STIP approvals in the partial orphan areas, in addition to a conformity determination for the 2008 standard. Based on EPA’s Greenbook, our understanding is that this category includes the 10 areas in the attached.

In short, we believe the EPA letter indicates that the 33 non-orphan areas will not have to make a conformity determination for the 1997 standard, and transportation conformity determinations for the 2008 standard should continue to be made as they have been prior to the court decision. However, based on the letter, we believe that the 10 partial-orphan areas will have to determine conformity for both the 1997 standard and the 2008 standard at this time.

If a conformity determination for the 1997 standard is required in the 10 partial-orphan areas, then those 10 areas would be subject to the same restrictions identified in the FHWA/FTA guidance for the 82 orphan areas: that is, (1) the plan, TIP, or STIP cannot be updated or amended to include non-exempt projects until a conformity determination is made for the 1997 standard; and (2) a ROD or other NEPA approval cannot be issued for a project requiring a Plan, TIP, or STIP amendment until that amendment is approved, with the required conformity determination for the 1997 standard.

Separately, the EPA has released the additional designations and related materials for the 2015 Ozone NAAQS. The additional designations and related materials can be found here. We do not yet have guidance from EPA on how the DC Circuit decision will affect transportation conformity requirements during the transition to the 2015 ozone standard.

We will continue to work with the EPA, FHWA, and FTA to develop and provide guidance on implementation of the DC Circuit decision. New information will be shared as it becomes available. In the meantime, if you have any questions regarding the content of this email please feel free to contact us at any time.

Attachments:
EPA Response
Partial-OrphanAreas EXTERNAL
Non-OrphanAreas EXTERNAL