C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER C—AIR PROGRAMS › PART 93—DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL IMPLEMENTATION PLANS › Subpart A—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws

40 C.F.R. § 93.123

Procedures for determining localized CO, PM10, and PM2.5 concentrations (hot-spot analysis)

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(a) CO hot-spot analysis. (1) The demonstrations required by § 93.116 (“Localized CO, PM10, and PM2.5 violations”) must be based on quantitative analysis using the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51, Appendix W (Guideline on Air Quality Models). These procedures shall be used in the following cases, unless different procedures developed through the interagency consultation process required in § 93.105 and approved by the EPA Regional Administrator are used:

(i) For projects in or affecting locations, areas, or categories of sites which are identified in the applicable implementation plan as sites of violation or possible violation;

(ii) For projects affecting intersections that are at Level-of-Service D, E, or F, or those that will change to Level-of-Service D, E, or F because of increased traffic volumes related to the project;

(iii) For any project affecting one or more of the top three intersections in the nonattainment or maintenance area with highest traffic volumes, as identified in the applicable implementation plan; and

(iv) For any project affecting one or more of the top three intersections in the nonattainment or maintenance area with the worst level of service, as identified in the applicable implementation plan.

(2) In cases other than those described in paragraph (a)(1) of this section, the demonstrations required by § 93.116 may be based on either:

(i) Quantitative methods that represent reasonable and common professional practice; or

(ii) A qualitative consideration of local factors, if this can provide a clear demonstration that the requirements of § 93.116 are met.

(3) DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that (93.116(a) is met without further hot-spot analysis for any project described in paragraphs (a)(1) and (a)(2) of this section based on appropriate modeling. DOT, in consultation with EPA, may also consider the current air quality circumstances of a given CO nonattainment or maintenance area in categorical hot-spot findings for applicable FHWA or FTA projects.

(b) PM10 and PM2.5hot-spot analyses. (1) The hot-spot demonstration required by § 93.116 must be based on quantitative analysis methods for the following types of projects:

(i) New highway projects that have a significant number of diesel vehicles, and expanded highway projects that have a significant increase in the number of diesel vehicles;

(ii) Projects affecting intersections that are at Level-of-Service D, E, or F with a significant number of diesel vehicles, or those that will change to Level-of-Service D, E, or F because of increased traffic volumes from a significant number of diesel vehicles related to the project;

(iii) New bus and rail terminals and transfer points that have a significant number of diesel vehicles congregating at a single location;

(iv) Expanded bus and rail terminals and transfer points that significantly increase the number of diesel vehicles congregating at a single location; and

(v) Projects in or affecting locations, areas, or categories of sites which are identified in the PM10 or PM2.5 applicable implementation plan or implementation plan submission, as appropriate, as sites of violation or possible violation.

(2) Where quantitative analysis methods are not available, the demonstration required by § 93.116 for projects described in paragraph (b)(1) of this section must be based on a qualitative consideration of local factors.

(3) DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that § 93.116 is met without further hot-spot analysis for any project described in paragraph (b)(1) of this section based on appropriate modeling. DOT, in consultation with EPA, may also consider the current air quality circumstances of a given PM2.5 or PM10 nonattainment or maintenance area in categorical hot-spot findings for applicable FHWA or FTA projects.

(4) The requirements for quantitative analysis contained in this paragraph (b) will not take effect until EPA releases modeling guidance on this subject and announces in the Federal Register that these requirements are in effect.

(c) General requirements. (1) Estimated pollutant concentrations must be based on the total emissions burden which may result from the implementation of the project, summed together with future background concentrations. The total concentration must be estimated and analyzed at appropriate receptor locations in the area substantially affected by the project.

(2) Hot-spot analyses must include the entire project, and may be performed only after the major design features which will significantly impact concentrations have been identified. The future background concentration should be estimated by multiplying current background by the ratio of future to current traffic and the ratio of future to current emission factors.

(3) Hot-spot analysis assumptions must be consistent with those in the regional emissions analysis for those inputs which are required for both analyses.

(4) CO, PM10, or PM2.5 mitigation or control measures shall be assumed in the hot-spot analysis only where there are written commitments from the project sponsor and/or operator to implement such measures, as required by § 93.125(a).

(5) CO, PM10, and PM2.5 hot-spot analyses are not required to consider construction-related activities which cause temporary increases in emissions. Each site which is affected by construction-related activities shall be considered separately, using established “Guideline” methods. Temporary increases are defined as those which occur only during the construction phase and last five years or less at any individual site.

[58 FR 62235, Nov. 24, 1993, as amended at 71 FR 12510, Mar. 10, 2006; 73 FR 4441, Jan. 24, 2008]
Notes of Decisions
Cited in 6 cases, 1999–2017 · leading case: Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007).
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Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). · cites it 8× “7506(c)(4)(B) and as set forth by the EPA’s Hot-Spot regulation in 40 C.F.R. 93.123. See 71 Fed.Reg. 12467. Specifically, Plaintiffs assert that the Defendants did not make the required quantitative calculations with regard to the hot-spot analysis of PM2.”
Sierra Club v. Env't Prot. Agency, 873 F.3d 946 (D.C. Cir. 2017). · cites it 5× “40 C.F.R. § 93.123 (c)(1); see also 75 Fed.”
City of South Pasadena v. Slater, 56 F. Supp. 2d 1095 (C.D. Cal. 1999). · cites it 3× “The defendants’ argument essentially is that the 40 C.F.R. § 93.123 (b)(4) creates an exemption to the requirement that they evaluate local PM sub10 hotspots until the EPA issues regulations effectuating that requirement.”
City of South Pasadena v. Slater, 56 F. Supp. 2d 1106 (C.D. Cal. 1999). “The defendants’ argument essentially is that 40 C.F.R. § 93.123 (b)(4) creates an exemption to the requirement that they evaluate local PM sub10 hotspots until the EPA issues regulations effectuating that requirement.”
Nat. Resources Def. Council, Inc. v. U.S. Dep't of Transp., 770 F.3d 1260 (9th Cir. 2014). · cites it 2× “” 40 C.F.R. § 93.123 (c)(1). In NRDC’s view, this provision’s use of the plural “locations,” and its reference to “the area significantly affected by the project,” impliedly interprets the CAA’s “any area” requirement to mandate collection and analysis of data drawn from the…”
Nrdc v. Usdot (9th Cir. 2014). · cites it 2× “” 40 C.F.R. § 93.123 (c)(1). In NRDC’s view, this provision’s use of the plural “locations,” and its reference to “the area significantly affected by the project,” impliedly interprets the CAA’s “any area” requirement to mandate collection and analysis of data drawn 3 In…”
— 40 C.F.R. § 93.123(a) — 1 case
Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). “7506(c)(4)(B) and as set forth by the EPA’s Hot-Spot regulation in 40 C.F.R. 93.123. See 71 Fed.Reg. 12467. Specifically, Plaintiffs assert that the Defendants did not make the required quantitative calculations with regard to the hot-spot analysis of PM2.”
— 40 C.F.R. § 93.123(b)(1) — 1 case
Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). “7506(c)(4)(B) and as set forth by the EPA’s Hot-Spot regulation in 40 C.F.R. 93.123. See 71 Fed.Reg. 12467. Specifically, Plaintiffs assert that the Defendants did not make the required quantitative calculations with regard to the hot-spot analysis of PM2.”
— 40 C.F.R. § 93.123(b)(4) — 1 case
Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). “7506(c)(4)(B) and as set forth by the EPA’s Hot-Spot regulation in 40 C.F.R. 93.123. See 71 Fed.Reg. 12467. Specifically, Plaintiffs assert that the Defendants did not make the required quantitative calculations with regard to the hot-spot analysis of PM2.”
— 40 C.F.R. § 93.123(c)(1) — 1 case
Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). “7506(c)(4)(B) and as set forth by the EPA’s Hot-Spot regulation in 40 C.F.R. 93.123. See 71 Fed.Reg. 12467. Specifically, Plaintiffs assert that the Defendants did not make the required quantitative calculations with regard to the hot-spot analysis of PM2.”
— 40 C.F.R. § 93.123(c)(2) — 1 case
Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. United States Dep't of Transp., 524 F. Supp. 2d 642 (D. Maryland 2007). “7506(c)(4)(B) and as set forth by the EPA’s Hot-Spot regulation in 40 C.F.R. 93.123. See 71 Fed.Reg. 12467. Specifically, Plaintiffs assert that the Defendants did not make the required quantitative calculations with regard to the hot-spot analysis of PM2.”
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