Revision to the Near-road NO2 Minimum Monitoring Requirements

Revision to the Near-road NO2 Minimum Monitoring Requirements

Revision to the Near-road NO2 Minimum Monitoring Requirements

Gina McCarthy
Federal Motor Carrier Safety Administration
30 December 2016

[Federal Register Volume 81, Number 251 (Friday, December 30, 2016)]
[Rules and Regulations]
[Pages 96381-96388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31645]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 58

[EPA-HQ-OAR-2015-0486; FRL-9957-78-OAR]
RIN 2060-AS71

Revision to the Near-road NO2 Minimum Monitoring
Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes revisions to the minimum monitoring
requirements for near-road nitrogen dioxide (NO2) monitoring
by removing the existing requirements for near-road NO2
monitoring stations in Core Based Statistical Areas (CBSAs) having
populations between 500,000 and 1,000,000 persons, that are due by
January 1, 2017.

DATES: This final rule is effective December 30, 2016.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2015-0486. All documents in the docket are
listed at http://www.regulations.gov. Although listed in the index,
some information may not be publicly available, e.g., Confidential
Business Information (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 electronically through www.regulations.gov. In addition to
being available in the docket, an electronic copy of the rule will also
be available at https://www.epa.gov/no2-pollution/ambient-nitrogen-dioxide-monitoring-requirements.

FOR FURTHER INFORMATION CONTACT: Mr. Nealson Watkins, Air Quality
Assessment Division, Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Mail code C304-06, Research Triangle
Park, NC 27711; telephone: (919) 541-5522; fax: (919) 541-1903; email:
watkins.nealson@epa.gov.

SUPPLEMENTARY INFORMATION: Administrative Procedure Act: Section 553(d)
of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5,
generally provides that rules may not take effect earlier than 30 days
after they are published in the Federal Register. The Environmental
Protection Agency (EPA) is issuing this final rule under section
307(d)(1) of the Clean Air Act, which states: ``The provisions of
section 553 through 557 . . . of Title 5 shall not, except as expressly
provided in this section, apply to actions to which this subsection
applies.'' Thus, section 553(d) of the APA does not apply to this rule.
The EPA is nevertheless acting consistently with the purposes
underlying APA section 553(d) in making this rule effective no later
than January 1, 2017. Section 553(d) allows an effective date less than
30 days after publication for a rule that ``grants or recognizes an
exemption or relieves a restriction'' or ``as otherwise provided by the
agency for good cause found and published with the rule.'' The EPA
finds that there is good cause for this rule to become effective
immediately, because this rule removes a restriction. Specifically,
this final rule removes the requirement for states to install air
quality monitors in certain areas by January 1, 2017.
Judicial Review: This is a nationally applicable rulemaking because
it revises generally applicable monitoring network requirements. Even
if this rulemaking were not considered nationally applicable, EPA has
determined that this action is of nationwide scope and effect because
the monitors that will no longer be required under this rulemaking are
located in 28 states, which fall within the jurisdiction of all 10
federal courts of appeals. Therefore, under CAA section 307(b)(1),
judicial review of this final rule is available only by filing a
petition for review in the U.S. Court of Appeals for the D.C. Circuit
by February 28, 2017.

Table of Contents

The following topics are discussed in this preamble:

I. Background
II. Proposed Revisions to the Near-Road NO2 Minimum
Monitoring Requirements
III. Public Comments
IV. Conclusion and Final Action
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulations and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments

[[Page 96382]]

G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act

I. Background

On February 9, 2010, the EPA promulgated minimum monitoring
requirements for the ambient NO2 monitoring network in
support of the revised NO2 NAAQS (75 FR 6474; February 9,
2010). The 2010 NO2 NAAQS revision introduced a 1-hour
standard with a 98th percentile form averaged over 3 years and a level
of 100 parts per billion (ppb), reflecting the maximum allowable
NO2 concentration anywhere in an area, while retaining the
annual standard of 53 ppb.
As part of the 2010 NO2 NAAQS rulemaking, the EPA
promulgated revisions to requirements for minimum numbers of ambient
NO2 monitors which included new monitoring near major roads
in larger urban areas, requirements to characterize NO2
concentrations representative of wider spatial scales in larger urban
areas (area-wide monitors), and monitors intended to characterize
NO2 exposures of susceptible and vulnerable populations.
Specifically, the requirements for these minimum monitoring
requirements that were promulgated in 2010 were as follows:
(a) The first tier of the ambient NO2 monitoring network
required near-road monitoring.\1\ The requirements included the
placement of one near-road NO2 monitoring station in each
CBSA with a population of 500,000 or more persons to monitor a location
of expected maximum hourly concentrations sited near a major road. An
additional near-road NO2 monitoring station was required at
a second location of expected maximum hourly concentrations for any
CBSA with a population of 2,500,000 or more persons, or in any CBSA
with a population of 500,000 or more persons that has one or more
roadway segments with 250,000 or greater Annual Average Daily Traffic
(AADT) counts. Based upon 2010 census data and data maintained by the
U.S. Department of Transportation's Federal Highway Administration on
the most heavily trafficked roads in the U.S. (http://www.fhwa.dot.gov/policyinformation/tables/02.cfm), approximately 126 near-road
NO2 sites were required within 103 CBSAs nationwide at the
time of rule promulgation.
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\1\ See 40 CFR part 58, appendix D, section 4.3.2.
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(b) The second tier of the NO2 network required area-
wide NO2 monitoring,\2\ where area-wide means that the
monitor is representative of a spatial scale of representativeness of
neighborhood scale (0.5 to 4 km in dimension) or larger, as defined in
40 Code of Federal Regulations (CFR) part 58, appendix D, section 1.2.
Requirements included the placement of one monitor in each CBSA with a
population of 1,000,000 or more persons to monitor a location of
expected highest NO2 concentrations representing the
neighborhood or larger spatial scales. Based on 2010 census data,
approximately 52 area-wide NO2 sites were required within 52
CBSAs at the time of rule promulgation.
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\2\ See 40 CFR part 58, appendix D, section 4.3.3.
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(c) The third tier of the NO2 minimum monitoring
requirements was for the characterization of NO2 exposure
for susceptible and vulnerable populations.\3\ The EPA Regional
Administrators, in collaboration with states, required 40
NO2 monitoring stations nationwide in any area, inside or
outside of CBSAs, in addition to the minimum monitoring requirements
for near-road and area-wide monitors, with a primary focus on
monitoring in locations with susceptible and vulnerable populations.
Monitoring sites intended to satisfy these NO2 minimum
monitoring requirements were required to be submitted to the EPA for
approval. Per 40 CFR 58.10 and 58.13, states were required to submit a
plan to the EPA for establishing required area-wide NO2
monitoring sites and those NO2 monitoring sites intended to
represent areas with susceptible and vulnerable populations by July 1,
2012, and ensure that the monitoring stations were operational by
January 1, 2013. State and local air monitoring agencies fulfilled the
requirements for area-wide monitors and those sites representing areas
with susceptible and vulnerable populations on schedule.
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\3\ See 40 CFR part 58, appendix D, section 4.3.4.
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The near-road component of the ambient NO2 monitoring
network was also originally required to be completely operational by
January 1, 2013. However, in 2012, the EPA proposed (77 FR 64244;
October 19, 2012) and then finalized in 2013 (78 FR 16184; March 14,
2013), through a public notice and comment rulemaking, a requirement
that the near-road NO2 monitoring stations be installed in
three phases. The revised installation schedule allowed more time for
states to establish the near-road NO2 network on a schedule
consistent with available resources. The revised installation schedule
for the near-road NO2 monitoring network was modified to
reflect the following:
Phase 1: In CBSAs with a population of 1,000,000 or more persons,
one near-road NO2 monitor shall be reflected in the state
Annual Monitoring Network Plan submitted July 1, 2013, and that monitor
shall be operational by January 1, 2014.
Phase 2: In CBSAs where two near-road NO2 monitors are
required (either because the CBSA has a population of 2,500,000 or more
persons, or has a population of 500,000 or more persons plus one or
more roadway segments having AADT counts of 250,000 or more), the
second near-road NO2 monitor shall be reflected in the state
Annual Monitoring Network Plan submitted July 1, 2014, and that monitor
shall be operational by January 1, 2015.
Phase 3: In CBSAs with a population of at least 500,000 persons,
but less than 1,000,000 persons, one near-road NO2 monitor
shall be reflected in the state Annual Monitoring Network Plan
submitted July 1, 2016, and the monitor shall be operational by January
1, 2017.
As of November of 2016, the EPA estimates that 69 near-road
NO2 monitors are in operation. At the time of this
rulemaking, the EPA notes that a handful of near-road sites (4 from
Phase 1 and 6 from Phase 2) are still in the process of being installed
due to various delays at the state and local level. A review of near-
road site meta-data indicate that state and local air monitoring
agencies have successfully installed these new monitors in the
appropriate locations, collectively placing monitors adjacent to highly
trafficked roads in their respective CBSAs. The latest available near-
road NO2 monitoring site meta-data can be found at http://www3.epa.gov/ttn/amtic/nearroad.html.

II. Proposed Revisions to Near-Road NO2 Minimum Monitoring Requirements

We proposed revisions to the near-road NO2 minimum
monitoring requirements (81 FR 30224) on May 16, 2016, to remove the
requirement for near-road NO2 monitoring stations in CBSAs
having populations between 500,000 and 1,000,000 persons, also known as
Phase 3 of the near-road NO2 network. The proposal also
included a revision to the requirement for a second

[[Page 96383]]

near-road NO2 monitor in any CBSA having 500,000 or more
persons that also had one or more road segments with 250,000 or greater
AADT counts to only apply to CBSAs having 1,000,000 or more persons,
which was intended to align all near-road NO2 monitoring
requirement language to only apply to those CBSAs having 1,000,000
persons or more.
The proposed removal of Phase 3 of the required near-road
NO2 network was based on empirical data and technical
rationale, which were discussed in detail in the preamble to the
proposed rule and supported by the Near-road NO2 Network and
Data Analysis memo to the docket (docket memo) located at https://www.regulations.gov/docket?D=EPA-HQ-OAR-2015-0486. The three key
foundations of the proposal were that:
The Phase 1 and Phase 2 near-road sites that have been
installed to date are located at maximum concentration locations
consistent with the guidance in the Near-road NO2 Monitoring
Technical Assistance Document (TAD) (http://www3.epa.gov/ttn/amtic/files/nearroad/NearRoadTAD.pdf) as demonstrated by a detailed
examination of site meta-data.
The higher populated CBSAs that contain these near-road
NO2 sites have higher mobile source emissions and associated
indicators, such as Vehicle Miles Traveled (VMTs), than lesser
populated CBSAs.
Ambient concentrations collected at all existing near-road
monitoring sites are well below both the annual and 1-hour daily
maximum NAAQS levels of 53 ppb and 100 ppb, respectively.

III. Public Comments

The EPA received 22 individual submissions on the proposal during
the public comment period from public health and environmental groups,
industry groups, state and local air monitoring agencies and multi-
agency groups, and one anonymous public commenter.\4\
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\4\ The single anonymous public commenter provided comments that
were not within the scope of this rule action, as they requested a
revision of the NO2 NAAQS. That comment is not within the
scope of today's action because the EPA did not propose any
revisions relating to the level of the NAAQS.
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Overall, 18 of the 22 commenters supported the proposal. This
included all 14 state or multi-state groups: Association of Air
Pollution Control Agencies (AAPCA); Akron Regional Air Quality
Management District (ARAQMD); Central States Air Resource Agencies
Association (CENSARA); Colorado; Georgia; Iowa; Kentucky; Michigan;
National Association of Clean Air Agencies (NACAA); Northeast States
for Coordinated Air Use Management (NESCAUM); North Carolina; Regional
Air Pollution Control Agency, Dayton, OH (RAPCA); South Carolina; and
Wisconsin. In addition, all 4 of the industry commenters voiced support
of the proposal, including: American Petroleum Institute (API);
American Road and Transportation Builders Association (ARTBA); NAAQS
Implementation Coalition; and the Utility Air Regulatory Group (UARG).
Those commenters who supported the proposal primarily reiterated
that the use of existing network data and meta-data, plus other
supporting data, provide the rationale necessary to finalize the
proposed changes to remove requirements for Phase 3 monitors from the
near-road NO2 network requirements. For example, AAPCA
stated that the ``. . . [proposed] revision is based on clear evidence
from Phases 1 and 2 of the near-road network . . .'' and ultimately
that the data ``. . . demonstrate the need to remove the monitoring
requirements for Phase 3.'' The API noted that ``the Agency's phased
monitoring approach has provided EPA the time to collect and analyze
early monitoring data, and therefore develop a more accurate view of
NO2 concentrations near roads.'' The API went on to state
that ``near-road NO2 levels in 1,000,000 resident cities
represent current high end exposures which are expected to decrease due
to improving fleet fuel efficiency and turnover, the same is true for
smaller cities addressed by Phase 3.'' Other commenters also noted Tier
3 Motor Vehicle Emissions and Fuel standards,\5\ which the EPA expects
to reduce on-road emissions that directly contribute to near-road
NO2 concentrations going into the future. For example, the
Iowa Department of Natural Resources stated that ``NOx emissions from
mobile sources are expected to decrease with implementation of the Tier
3 engine and fuel standards. . . .'' Finally, NACAA commented that its
``. . . monitoring experts agree with EPA's conclusion that data
collected from Phase 3 monitors, which would be located in relatively
smaller CBSAs, would almost certainly measure lower or similar
NO2 concentrations [than those measured in the larger
CBSAs].''
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\5\ More information on the Tier 3 standards can be found at
https://www.epa.gov/regulations-emissions-vehicles-and-engines/regulations-smog-soot-and-other-air-pollution-passenger.
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Those commenters who opposed the proposed rule included all 3
submissions from public health and environmental groups. The first of
the three adverse comment submissions was collectively from the
following entities: Asthma and Allergy Network, Alliance of Nurses for
Healthy Environments, American Lung Association, American Public Health
Association, American Thoracic Society, Asthma and Allergy Foundation
of America, Children's Environmental Health Network, and Health Care
Trust for America's Health. For convenience, through the remainder of
this preamble, this group will be referred to as the ``Public Health
Organizations.'' The second submission with adverse comments was
collectively from the following entities: Earth Justice, Catholic
Charities of the Diocese of Stockton, Clean Air Council, Clean
Wisconsin, Midwest Environmental Defense Center, Natural Resources
Defense Council, Valley Improvement Projects, and We Act for
Environmental Justice. For convenience through the remainder of this
preamble, this second group will be referred to as the ``Environmental
Groups.'' The third submission with adverse comment to the proposed
rule was from Clean Air Watch.
The key issues raised in those adverse comments include: (1)
Arguments that the proposal is inconsistent with the original reasoning
behind the establishment of the near-road network requirements in the
2010 NO2 NAAQS rulemaking; (2) issues related to the near-
road NO2 network design and its installation; and (3) the
empirical data relied on in the rationale for the proposed rule, which
commenters criticized as being of relatively limited duration and
representation.
In regard to the assertion that the proposal is inconsistent with
the original reasoning behind the establishment of the near-road
network, the Environmental Groups and Clean Air Watch both cited
rationale provided in the 2010 NO2 NAAQS rulemaking that was
used to establish the original requirements for the near-road
NO2 network. They stated that the reasoning behind needing
the network as it was originally required has presently not changed.
The Environmental Groups stated that ``EPA's proposal to eliminate the
requirement to install near-road monitors in areas below 1 million
people is fundamentally inconsistent with EPA's prior conclusion, and
with the facts EPA found to support it.'' The Clean Air Watch noted
that after the 2010 NO2 NAAQS revision the Administrator had
highlighted that there would be many new roadside monitors going into
place.
The EPA disagrees that the rationale for this action is
inconsistent with the

[[Page 96384]]

2010 rule. Rather, the revision to the 2010 rule's near-road monitoring
provisions is based on the EPA's evaluation of monitoring data
generated after issuance of the 2010 rule. The EPA notes that the key
objective of the 2010 revision to the NO2 NAAQS was to limit
exposure to peak NO2 concentrations that occur anywhere in
an area. In recognition of the fact that the majority of exposure risks
were found to be tied to mobile sources and the lack of specific
information concerning the concentrations of NO2 in the
near-road environment that was available at the time, the near-road
NO2 monitoring network was required to address this lack of
characterization. In the 2009 NO2 NAAQS proposal, the agency
noted that the NO2 monitoring network at that time was ``. .
.not oriented to address peak concentrations, such as the on-road and
near-road environment. . .'' (74 FR 34440). At the time of that
proposal and the promulgation of the 2010 final rule, there was a
limited amount of near-road monitored data, which consisted mostly of
integrated and continuous concentration data from research studies as
opposed to compliance-quality data suitable for comparison to the
NAAQS. The agency used those limited data in conjunction with
information collected and presented in the Integrated Science
Assessment (https://www.regulations.gov/document?D=EPA-HQ-OAR-2006-0922-0048) and the Risk and Exposure Assessment (https://www.regulations.gov/document?D=EPA-HQ-OAR-2006-0922-0047) to finalize
the network design that originally required at least one monitor in all
CBSAs having populations of 500,000 persons or more. As was noted by
several commenters on the May 2016 proposal for this rule, the final
2010 network design was described as a near-road network that would
provide ``. . . data from a geographically and spatially diverse set of
CBSAs that supports the intent of the revised NAAQS . . .'' (75 FR
6508).
Subsequent to the 2010 NO2 NAAQS rulemaking, the EPA has
received and evaluated data from near-road NO2 monitors
installed in response to the requirements of the rule. As of November
2016, there are 69 operating near-road NO2 sites, with an
ever increasing data record. Due to the establishment and operation of
these near-road NO2 monitors, the EPA and the public now
have a significantly better understanding of what ambient, near-road
concentrations look like across a geographically diverse set of urban
areas of differing population sizes, including several CBSAs with
populations under 1,000,000 persons, than we did in 2010. It is the
evaluation of these new data, not a change in the EPA's view that the
near-road network reflects areas of peak NO2 concentration,
which led to the EPA's conclusion that the requirement to operate
additional near-road NO2 sites required by Phase 3 of the
network is no longer necessary to provide adequate characterization on
a national basis. These new data, which were not available during the
2010 NO2 NAAQS rulemaking provide the EPA with a different
and improved understanding of near-road NO2 concentrations
compared to the time when the network was originally required. In
particular, these new data show that NO2 concentrations from
sites adjacent to some of the nation's highest trafficked roads in the
most populated CBSAs (i.e., expected maximum concentrations sites in
the near-road environment) are not exceeding or even threatening to
approach the level of the NAAQS. It is, therefore, evident that the
degree of geographic and spatial diversity required of the near-road
network is less than originally thought. Accordingly, the agency
believes it is appropriate to reconsider the necessity of Phase 3 of
the near-road NO2 network by leveraging empirical evidence
and targeted assessments and analyses of available near-road
NO2 network information, as explained in more detail in the
docket memo associated with this action.
The second issue raised by the Environmental Groups and Public
Health Organizations was in regard to the network design and physical
characteristics of the existing near-road NO2 network. The
Public Health Organizations stated that ``limiting the required
monitoring to only one or two locations in cities with millions of
people severely limits the information available on near-road exposure
in metropolitan areas.'' The Environmental Groups stated that ``the
information relied upon by EPA does not show that the near-road
monitors installed to date have been located to detect maximum
[NO2] levels.'' Finally, the Public Health Organizations
also stated that ``new research examining the early results of some of
these near-road monitors warn that the assumptions made in the initial
siting decisions may not adequately reflect the wors[t] sources of
highway emissions, even in major urban areas like Los Angeles.''
With regard to the Public Health Organizations' comment that the
amount of near-road monitoring in a given urban area is limited, the
EPA disagrees that additional monitors are needed. The network design
targets expected maximum concentrations in the near-road environment.
In the 2010 NO2 NAAQS rulemaking, the near-road
NO2 network was required to be installed with consideration
of six key factors: AADT, fleet mix, congestion patterns, roadway
design, terrain, and meteorology. These factors varied by CBSA, where
quantitative data was variable in availability and quality. The
consideration of these six factors was required so that near-road
monitors would be placed at locations in near-road environments where
peak NO2 concentrations, derived from on-road mobile
sources, would be most likely to be observed within that CBSA. Because
of this specific objective of the network, the need for multiple other
near-road monitoring sites, above what is already required within a
given CBSA to ascertain compliance with the NAAQS, is minimized.
The EPA strongly disagrees with the assertion that the near-road
monitors installed to date have not been located to detect maximum
NO2 levels. The agency handled this issue through siting
requirements in the CFR and through additional support via the
production of the TAD. The TAD was created through collaboration
amongst multiple offices across the agency, state and local air quality
management agencies, the U.S. Department of Transportation, and several
state departments of transportation. Further, the TAD was reviewed by
the Clean Air Scientific Advisory Committee's Air Monitoring and
Methods Subcommittee. The state and local air agencies' adherence to
the siting requirements in the CFR and their use of the TAD is
evidenced by meta-data presented and discussed in the proposal and the
associated docket memo. As a result of the diligence of state and local
air agencies, and the support and oversight of the agency, the near-
road network meets all siting requirements and the selection of sites
for the current near-road network was carried out with a high degree of
success. For example, as was noted in the proposal, 55 percent of the
near-road sites are adjacent to one of the top five highest trafficked
road segments in their respective CBSA, 71 percent are adjacent to one
of the top 10 most highly trafficked roads, and 91 percent are adjacent
to one of the top 25 most highly trafficked roads. As there are
thousands of road segments within each CBSA, this means that virtually
all near-road monitors are adjacent to one of the most heavily
trafficked roads within their respective CBSAs. And, as noted in the
EPA's analysis of the existing near-road monitoring data, if the

[[Page 96385]]

measure of traffic is adjusted for the fleet mix to account for higher
oxides of nitrogen (NOX) emissions from heavy-duty diesel
vehicles, an even greater percentage of near-road monitors are adjacent
to the road segments where NO2 exposure is expected to be
highest. Moreover, traffic volume was just one criterion out of a
number of factors, plus logistical limitations, that all had bearing on
site selection. These data, along with all the other data presented in
the proposal and the docket memo, are indicative of a successful
network deployment.
The EPA notes that in general, ambient monitor placement is a
balancing act of knowing where an ideal monitoring location might be
versus the reality of actually being able to place and operate a
monitor in a particular location. This concept applies to all ambient
monitoring endeavors, as the physical process of siting a monitor is
subject to a myriad of logistical influences including, but not limited
to: Permissions for access; physical limitations on site placement
including the immediate terrain, topography, or the roadway design of a
target road in the specific case of near-road monitoring; safety
considerations, which are particularly important and evident in near-
road siting situations; and utilities availability. Considering the
factors and influences involved in the near-road siting process and the
known characteristics of the network, the EPA strongly asserts that the
network is appropriately deployed and situated to provide measurements
that are a good representation of maximum near-road NO2
concentrations that exist in a given CBSA, evidenced by meta-data
presented and discussed in both the proposal and the docket memo.\6\
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\6\ In addition to the requirements for near-road monitors in
state monitoring plans, the regulations also require the EPA
Regional Administrators to identify locations for at least 40
additional NO2 monitoring stations nationwide beyond the
minimum monitoring requirements for each state, with the primary
focus on siting these additional monitors in locations to protect
susceptible and vulnerable populations. Moreover, even beyond that
requirement, each Regional Administrator has the discretion to
require additional monitors in any area. 40 CFR part 58, appendix D,
section 4.3.4(a) and (b).
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In response to the Public Health Organizations' statement that
``new research examining the early results of some of these near-road
monitors warn that the assumptions made in the initial siting decisions
may not adequately reflect the wors[t] sources of highway emissions,
even in major urban areas like Los Angeles,'' the EPA would first like
to point out that the research conducted for the referenced journal
article did not utilize any data from the near-road NO2
network, nor did it directly measure NO2 during their on-
road experiments. The data behind the referenced multi-pollutant
research study were collected as part of an on-road mobile source
emissions study primarily focused on improving understanding of the
variability and influences on fleet-wide emissions via alternative
methods of calculating emission factors. As such, the study does not
indicate that information utilized in network siting decisions may not
adequately reflect the worst sources of highway emissions. In fact, it
does not even address near-road monitoring data from monitors installed
to measure NO2 levels. Instead, the EPA believes the study
reinforces the fact that the required consideration of a number of
previously mentioned factors including traffic volume and fleet mix,
which were important to the cited literature, were appropriate and
critical to the near-road site selection process.
The third issue raised was the claim that empirical data relied on
in the proposal were too limited. To initiate their argument, the
Environmental Groups stated that the ``. . . EPA has virtually no
emissions data for CBSAs with populations under 1 million, so EPA's
claim that `higher populated CBSAs,' i.e., CBSAs over 1 million people,
will have `higher mobile source emissions' is unfounded.''
In response, the EPA notes that data presented and reviewed in the
docket memo clearly show otherwise. The emissions data used in the
docket memo analysis came from the 2011 National Emissions Inventory
(NEI). The NEI mobile source data come from the EPA's Motor Vehicle
Emissions Simulator (MOVES), which aggregates mobile source emissions
data from the county level across the entire country. Therefore, the
commenter's statement that the EPA has ``virtually no emissions data''
from CBSAs with populations less than 1 million persons, and their
subsequent argument, is incorrect. Still regarding emissions data and
analysis, later in their arguments the Environmental Groups state that
``. . . NOX emissions coming from on-road mobile sources in
areas with 1 and 2.5 million persons is nearly the same in areas with
500,000 to 1 million people,'' suggesting that NOX emissions
are nearly the same in the smaller populated CBSAs as they are in the
larger ones, with a difference of only 3.2 percentage points. In the
docket memo, the EPA presents NOX emissions inventory data,
broken down by the categories of on-road mobile, non-road mobile, and
all non-mobile source categories. These data are subsequently sorted
into bins based on CBSA populations corresponding to the three phases
by which the near-road network has been installed, plus a bin for all
CBSAs with populations having less than 500,000 persons. The
Environmental Group's comments are focused on the modest difference in
percent contribution of on-road mobile sources to the total
NOX emissions between the 500,000 to 1 million person CBSA
bin (48.1 percent) and the larger CBSA bins (51.3 percent for CBSAs
having between 1 million and 2.5 million persons and 55.3 percent for
CBSAs having 2.5 million or more persons). However, the differences
between these CBSA groups are significant when considering the actual
amount of NOX in tons per year (tpy). The collective of
CBSAs having 500,000 to 1 million persons have a NOX
emissions profile where 48.1 percent of a total of 950,000 tpy are
attributable to on-road mobile sources (i.e., 456,950 tpy). Meanwhile,
the collective of CBSAs having 1 million to 2.5 million persons have a
NOX emissions profile where 51.3 percent of 2,000,000 tpy
are attributable to on-road mobile sources (i.e., 1,026,000 tpy) and
the collective of CBSAs having 2.5 million persons or more have a
NOX emissions profile where 55.3 percent of 7,500,000 tpy
are attributable to on-road mobile sources (i.e., 4,147,500 tpy). It is
clear by these data, and the analysis provided in the docket memo, that
the larger CBSAs do in fact have much more on-road mobile source
emissions than CBSAs with less than 1 million persons. Specifically,
CBSAs with over 2.5 million persons have approximately 9 times more on-
road mobile source NOX emissions in tpy than CBSAs with
populations between 500,000 and 1 million, while the CBSAs with
populations between 1 million and 2.5 million have 2.2 times more.
These data support the conclusion that the larger populated CBSAs have
greater potential for exposure due to marked increases in coincidence
between emissions and population. See Docket Memo at pp. 9-11.
Concluding the Public Health Organizations' and Environmental
Groups' arguments, they commented that the EPA relied on monitored
near-road NO2 data from too few sites, particularly from
CBSAs with less than 1 million persons, to substantiate the proposed
rulemaking. The Public Health Organizations stated that ``. . . even if
the preliminary data indicated compliance with the standards, the
sparse number [of monitoring sites]

[[Page 96386]]

leaves open many questions. . . .'' The Environmental Groups argued
that only having near-road NO2 data from two CBSAs with
populations under 1 million persons (Boise, Idaho and Des Moines,
Iowa), ``. . . are not sufficient data from which to conclude that any
kind of trend exists or to make any prediction about what one-hour
NO2 concentrations are likely to be reported in CBSAs with
populations between 500,000 and 1 million; Boise and Des Moines alone
are unlikely to be representative of all other CBSAs in this
category.'' The Environmental Groups go on to discuss an analysis of
the available near-road data and state that variability in the
collected data, particularly for the 98th percentile 1-hour daily
maximum values (1-hour values), makes ``. . . it exceedingly hard to
predict whether an individual CBSA in either group [of different CBSA
population sizes] would be likely to report high or low near-road
NO2 concentrations based on its population alone,'' and
ultimately that ``. . . EPA's own data show that less-populated areas
are not significantly less likely to have high near-road NO2
concentrations (98th percentile one-hour daily max).''
Because Phases 1 and 2 of the network have nearly been fully
deployed, there are sufficient data to analyze and to support a
conclusion that the first two phases of the near-road monitoring
network are sufficient to protect against risks associated with
exposures to peak concentrations of NO2. Regarding the
length of the data record, we must consider the fact that the agency
has multiple years of complete data that have already been used to
judge compliance against the annual standard. Between 2013 and 2015,
there were 69 annual design value data points across 39 different CBSAs
(some with two near-road sites) available for analysis and comparison
to the NAAQS. Further, regarding hourly data during the same (2013-
2015) time period, there were a similar number of 98th percentile 1-
hour daily maximum concentration values available for review. There
were four sites in four separate CBSAs (Boise, ID; Des Moines, IA;
Detroit, MI; and St. Louis, MO) with 3 years' worth of complete data
that allowed the calculation of design values for the hourly standard.
Although the remaining sites did not have enough data for the hourly
design value calculation, the available data still provided evidence of
what hourly near-road NO2 concentrations look like across 1
or 2 years. All those data represent significant spatial representation
nationally and across CBSAs of various population sizes, and were
presented and discussed in the docket memo. (See Docket Memo, Figures
9, 10, and 11.) The data were ample enough to detect patterns and
trends that provide an indication of whether or not near-road
concentrations are threatening the NAAQS. Those indications, coupled
with the understanding of NOx emissions and anticipated future
emissions profiles, provided a strong basis for the proposal. We
disagree that there are insufficient data on which to base our
conclusions regarding the sufficiency of the near-road network.
Commenters assert that the EPA has ``virtually no emissions data'' for
CBSAs with populations under 1 million, which may have been intended to
mean that the EPA has virtually no near-road NO2 air quality
data for CBSAs with populations under 1 million. This is incorrect. As
explained in the docket memo, EPA has complete data for a full year
from two sites, one in Boise and one in Des Moines. The commenters did
not provide any explanation to support their comment that there are not
enough data.
Regarding specific comments on variability of some of the data,
particularly in the hourly data across different near-road sites in
different CBSAs across a range of population sizes, the EPA notes that
such variability is to be expected in more highly time-resolved data.
Further, as explained above, each near-road site is influenced by a
number of factors, which all can contribute to inter-site variability.
The Environmental Groups believe that the Boise and Des Moines CBSAs
would not likely be representative of all other CBSAs of the same CBSA
size class, without explanation. The EPA notes that no single CBSA is
expected to be totally representative of any other individual CBSA.
However, as presented in the proposal and the docket memo, despite the
expected variability, there are relationships within the data that are
evident when analyzing emissions, traffic data, measured concentration
data, and CBSA populations. Particularly, higher populated CBSAs
correspondingly have more vehicles, which in turn increases the
availability of mobile source derived emissions that lead to increased
opportunity for higher NO2 concentrations, particularly in
the near-road environment. It is these relationships that lend to the
concept that higher near-road NO2 concentrations are
expected in more heavily populated CBSAs as compared to those with
lesser populations.\7\
---------------------------------------------------------------------------

\7\ The commenters claim that the variability makes it difficult
to predict NO2 levels in a particular CBSA based on
population alone, pointing to 2015 data showing one-hour
concentrations in certain CBSAs with population between 1 million
and 2.5 million that were higher than concentrations in some CBSAs
with more than 2.5 million people. While NO2 levels can
vary from hour-to-hour, the EPA notes that the levels commenters
refer to are all well below the level of the NO2 NAAQS.
(e.g., the 98th percentile level in Providence, RI, is 67.4 ppb,
which is well below the one-hour NAAQS of 100 ppb). See Docket Memo,
Figure 11.
---------------------------------------------------------------------------

It is also critical to conduct an analysis of the available near-
road data. The analysis of all these data, which include data from the
most heavily populated CBSAs and two CBSAs having populations between
500,000 and 1 million persons, reveals that there are no design values
for either the annual or hourly NAAQS, or even a single 98th percentile
1-hour daily maximum value, that are approaching or exceeding the
NAAQS. The highest recorded values throughout the 2013-2015 time
period, analyzed and presented in the docket memo, were an annual
average of 27 ppb in Los Angeles and an 98th percentile 1-hour value of
72 ppb from an incomplete year of data in New York City. In comparison,
the NO2 annual standard level is 53 ppb and the 98th
percentile 1-hour daily maximum standard level averaged over 3 years is
100 ppb. The fact that no data collected to date have exceeded or are
threatening to the NAAQS is paramount to the reasoning behind the
approach to revise network requirements. There are no compelling
concentration data or meta-data that indicate that the smaller CBSAs
would be expected to have near-road NO2 concentrations at or
above those measured in more heavily populated CBSAs that have sites
proximate to more heavily trafficked roads.
Further, the EPA expects a continuation in the reduction of on-road
mobile source emissions on a per vehicle basis as a result of the
implementation of mobile source standards such as the Tier 3 engine and
fuel standards, which was echoed in the public comments. These
continuing emission reductions should reduce the amount of measured
NO2 in the near-road environment, although other factors
such as changes in traffic volume can impact those reductions.
Finally, the EPA notes that EPA Regional Administrators have the
authority to work with state and local air monitoring agencies to
require monitoring above the minimum requirements as needed to address
a

[[Page 96387]]

situation where near-road NO2 concentrations are suspected
to be approaching or exceeding the NAAQS. Accordingly, near-road
monitoring could subsequently be required in smaller CBSAs should
circumstances indicate the need to provide additional characterization
beyond the monitoring provided by Phases 1 and 2 of the network. This
Regional Administrator authority serves as an effective backstop
against any unusual situation that could occur where monitoring might
be warranted in an area that is not subject to minimum monitoring
requirements.
Other comments received were outside the scope of this rule and not
discussed in this preamble.

IV. Conclusion and Final Action

An analysis of available near-road NO2 monitoring data
indicates that air quality levels in the near-road environment are well
below the NO2 NAAQS. Based on the analysis of available
concentration data, as well as related emissions, traffic, and network
metadata, the EPA anticipates that measured near-road NO2
concentrations in relatively smaller CBSAs (i.e., CBSAs with
populations less than 1,000,000 persons) would exhibit similar, and
more likely, lower concentrations, than what is being measured at
existing near-road NO2 sites in larger urban areas. In
consideration of the data presented and reviewed in the proposal and
the public comments received on the proposal, the EPA is finalizing, as
proposed, the removal of monitoring requirements for near-road
NO2 monitors in CBSAs having populations between 500,000 and
1,000,000 persons, also known as Phase 3 of the near-road
NO2 network. The agency is also finalizing, as proposed, the
removal of the requirement for a second near-road NO2
monitor in any CBSA having 500,000 or more persons that also had one or
more road segments with 250,000 or greater AADT counts. The revised
requirement for a second near-road NO2 monitor will only
apply to CBSAs having 1,000,000 or more persons with a road segment of
250,000 or greater AADT counts.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under
the PRA. The final revisions do not add any information collection
requirements beyond those imposed by the existing NO2
monitoring requirements.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This action will remove a sub-set of the
current air monitoring requirements and, therefore, relieve state and
local air monitoring agencies from having to provide evidence of
compliance with the NO2 NAAQS in the near-road environment
in CBSAs with less than 1,000,000 persons. We have, therefore,
concluded that this action will relieve regulatory burden for all
directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local or tribal governments or the
private sector. This action will reduce the number of required near-
road NO2 monitors to be operated by state and local air
monitoring agencies.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This action does not have tribal implications, as specified in
Executive Order 13175. This final rule imposes no requirements on
tribal governments. Thus, Executive Order 13175 does not apply to this
action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

The EPA interprets EO 13045 as applying only to those regulatory
actions that concern environmental health or safety risks that the EPA
has reason to believe may disproportionately affect children, per the
definition of ``covered regulatory action'' in section 2-202 of the
Executive Order. This action is not subject to Executive Order 13045
because it does not concern an environmental health risk or safety
risk.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

This action does not involve technical standards.

J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations. The results of the network and data
evaluation are contained in the Near-road NO2 Network and
Data Analysis docket memo, which provides a review and analysis of the
characteristics of the existing near-road NO2 monitoring
network and the relationships between NO2 emissions,
population, traffic, and NO2 concentration data. Further,
this rule does not modify the existing requirements for near-road
monitors required in CBSAs having 1,000,000 or more persons, area-wide
NO2 monitors, or monitoring of NO2 in areas with
susceptible and vulnerable populations.

K. Congressional Review Act (CRA)

This action is subject to the Congressional Review Act (CRA), and
the EPA will submit a rule report to each House of Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 58

Environmental protection, Administrative practice and procedure,

[[Page 96388]]

Air pollution control, Intergovernmental relations.

Dated: December 22, 2016.
Gina McCarthy,
Administrator.

For the reasons stated in the preamble, the Environmental
Protection Agency is amending title 40, chapter I of the Code of
Federal Regulations as follows:

PART 58--AMBIENT AIR QUALITY SURVEILLANCE

0
1. The authority citation for part 58 continues to read as follows:

Authority: 42 U.S.C. 7403, 7405, 7410, 7414, 7601, 7611, 7614,
and 7619.

0
2. Amend Sec. 58.10 by revising paragraph (a)(5)(iv) and removing
paragraph (a)(5)(v) to read as follows:

Sec. 58.10 Annual monitoring network plan and periodic network
assessment.

(a) * * *
(5) * * *
(iv) A plan for establishing a second near-road NO2
monitor in any CBSA with a population of 2,500,000 persons or more, or
a second monitor in any CBSA with a population of 1,000,000 or more
persons that has one or more roadway segments with 250,000 or greater
AADT counts, in accordance with the requirements of appendix D, section
4.3.2 to this part, shall be submitted as part of the Annual Monitoring
Network Plan to the EPA Regional Administrator by July 1, 2014. The
plan shall provide for these required monitors to be operational by
January 1, 2015.
* * * * *

0
3. Amend Sec. 58.13 by revising paragraph (c)(4) and removing
paragraph (c)(5) to read as follows:

Sec. 58.13 Monitoring network completion.

* * * * *
(c) * * *
(4) January 1, 2015, for a second near-road NO2 monitor
in CBSAs that have a population of 2,500,000 or more persons or a
second monitor in any CBSA with a population of 1,000,000 or more
persons that has one or more roadway segments with 250,000 or greater
AADT counts that is required in appendix D, section 4.3.2.
* * * * *

0
4. Appendix D to part 58 is amended by revising section 4.3.2 to read
as follows:

Appendix D to Part 58--Network Design Criteria for Ambient Air Quality
Monitoring

* * * * *

4.3.2 Requirement for Near-road NO2 Monitors

(a) Within the NO2 network, there must be one
microscale near-road NO2 monitoring station in each CBSA
with a population of 1,000,000 or more persons to monitor a location
of expected maximum hourly concentrations sited near a major road
with high AADT counts as specified in paragraph 4.3.2(a)(1) of this
appendix. An additional near-road NO2 monitoring station
is required for any CBSA with a population of 2,500,000 persons or
more, or in any CBSA with a population of 1,000,000 or more persons
that has one or more roadway segments with 250,000 or greater AADT
counts to monitor a second location of expected maximum hourly
concentrations. CBSA populations shall be based on the latest
available census figures.
(1) The near-road NO2 monitoring sites shall be
selected by ranking all road segments within a CBSA by AADT and then
identifying a location or locations adjacent to those highest ranked
road segments, considering fleet mix, roadway design, congestion
patterns, terrain, and meteorology, where maximum hourly
NO2 concentrations are expected to occur and siting
criteria can be met in accordance with appendix E of this part.
Where a state or local air monitoring agency identifies multiple
acceptable candidate sites where maximum hourly NO2
concentrations are expected to occur, the monitoring agency shall
consider the potential for population exposure in the criteria
utilized to select the final site location. Where one CBSA is
required to have two near-road NO2 monitoring stations,
the sites shall be differentiated from each other by one or more of
the following factors: fleet mix; congestion patterns; terrain;
geographic area within the CBSA; or different route, interstate, or
freeway designation.
(b) Measurements at required near-road NO2 monitor
sites utilizing chemiluminescence FRMs must include at a minimum:
NO, NO2, and NOX.
* * * * *
[FR Doc. 2016-31645 Filed 12-29-16; 8:45 am]
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