[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24702-24706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12357]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH90-1-7255a; FRL-5500-5]
Approval and Promulgation of Implementation Plan; Ohio
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: This document conditionally approves a revision to the Ohio
State Implementation Plan (SIP) to meet the requirements of the USEPA
transportation conformity rule. The transportation conformity SIP
revisions enable the State of Ohio to implement and enforce the Federal
transportation conformity requirements at the State or local level. The
Federal transportation conformity rule has been amended twice since the
original 1993 publication, and the Ohio SIP will need to be amended to
accommodate the changes. The purpose of transportation conformity is to
assure that transportation plans, programs and projects, approved by
the United States Department of Transportation conform to the purpose
of the SIP to attain and maintain the public health based air quality
standards. The rationale for this conditional approval and other
information are provided in this document.
DATES: This ``direct final'' rule is effective on July 15, 1996, unless
USEPA receives adverse or critical comments by June 17, 1996. If the
effective date is delayed, timely notice will be published in the
Federal Register.
Addresses: Copies of the SIP revision are available for inspection at
the following address: (It is recommended that you telephone Patricia
Morris at (312) 353-8656 before visiting the Region 5 Office.)
United States Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch, (AR-18J), 77 West
Jackson Boulevard, Chicago, Illinois 60604.
[[Page 24703]]
FOR FURTHER INFORMATION CONTACT: Patricia Morris, Regulation
Development Section (AR-18J), Air Programs Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
353-8656.
SUPPLEMENTARY INFORMATION:
I. Background
Conformity provisions first appeared in the Clean Air Act (CAA)
amendments of 1977 (Public Law 95-95). Although these provisions did
not specifically define conformity, they provided that no Federal
department could engage in, support in any way or provide financial
assistance for, license or permit, or approve any activity which did
not conform to a SIP which has been approved or promulgated.
The CAA Amendments of 1990 expanded the scope and content of the
conformity provisions by defining conformity to an implementation plan.
Conformity is defined in section 176(c) of the CAA as conformity to the
SIP's purpose of eliminating or reducing the severity and number of
violations of the National Ambient Air Quality Standards and achieving
expeditious attainment of such standards, and that such activities will
not: (1) cause or contribute to any new violation of any standard in
any area, (2) increase the frequency or severity of any existing
violation of any standard in any area, or (3) delay timely attainment
of any standard or any required interim emission reductions or other
milestones in any area.
The CAA requires USEPA to promulgate criteria and procedures for
determining conformity of all Federal actions (transportation and
general) to a SIP (42 U.S.C. 7506(c)). The USEPA published the final
transportation conformity rules in the Federal Register on November 24,
1993, and codified them at 40 CFR part 51, subpart T--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 Act. The conformity rules require the
States and local agencies to adopt and submit a transportation
conformity SIP revision to the USEPA not later than November 24, 1994
(40 CFR 51.396). This document does not address the conformity
requirements of general Federal actions as required pursuant to 40 CFR
part 51, subpart W. USEPA intends to take action on these requirements
in a separate document.
The federal transportation conformity rule was subsequently amended
on August 8, 1995, and again on November 14, 1995. The November 14,
1995, amendments allow 12 months from November 14, 1995, or until
November 14, 1996 for States to submit a transportation conformity SIP
revision consistent with these amendments. The submittal approved in
this document is not consistent with these November 14, 1995, federal
conformity amendments. However, Ohio has committed to submit another
transportation conformity SIP revision consistent with these recent
amendments by November 14, 1996. The OEPA has formalized their
commitment in a letter dated April 1, 1996, incorporated herein by
reference.
II. Evaluation of State Submittal
Pursuant to the requirements under section 176(c)(4)(C) of the
Clean Air Act, the Ohio Environmental Protection Agency (OEPA)
submitted a SIP revision to the USEPA on August 17, 1995. This
submittal was found to be complete on October 5, 1995. In its
submittal, the State adopted State rules to meet the requirements of 40
CFR part 51, subpart T, as published on November 24, 1993.
Transportation conformity is required for all nonattainment or
maintenance areas for any transportation related criteria pollutants
(40 CFR 51.394 (b)).
The State of Ohio currently has 28 counties which are ozone
nonattainment or ozone maintenance areas. The areas are identified as
follows: Toledo area (Lucas and Wood Counties), Cleveland/Akron area
(Lorain, Cuyahoga, Medina, Summit, Portage, Geauga, Lake, and Ashtabula
Counties), Youngstown area (Trumbull and Mahoning Counties), Canton
(Stark County), Columbus (Franklin, Delaware and Licking Counties),
Cincinnati (Hamilton, Butler, Clermont, and Warren Counties), Dayton
(Preble, Montgomery, and Greene Counties), Springfield (Miami and Clark
Counties), and Clinton County, and Columbiana County, and Jefferson
County. In addition to the ozone nonattainment and maintenance areas,
Cuyahoga County is also maintenance for carbon monoxide.
Section 51.396 of the final transportation conformity rule requires
that the majority of the Federal rules be incorporated in verbatim
form, with only a few exceptions. In addition, the rule states that the
State rules can not be more stringent than the Federal rules unless the
conformity provisions ``apply equally to non-Federal as well as Federal
entities'' (40 CFR 51.396(a)).
The OEPA held a public hearing on the transportation conformity
submittal on May 25, 1995. One comment was received by the OEPA and was
addressed in the submittal.
Consultation
The Federal rules require the SIPs to include processes and
procedures for interagency consultation among the Federal, State, and
local agencies and resolution of conflicts in accordance with the
criteria set forth in 40 CFR 51.402. Specifically, to implement the
requirements of Sec. 51.402, the SIP revisions must include processes
and procedures to be undertaken by Metropolitan Planning Organizations
(MPOs), State Department of Transportation (DOT), and the United States
Department of Transportation (USDOT) with State and local air quality
agencies and USEPA before making conformity determinations, and by
State and local air quality agencies and USEPA with MPOs, State
Department of transportation, and USDOT in developing applicable SIPs.
The consultation portion of the SIP is among the exceptions which
are not required to be incorporated in verbatim form. The consultation
section requires State and local (where applicable) air quality
agencies to develop their own consultation rules.
In order to satisfy these consultation requirements, the OEPA
developed consultation procedures by using the requirements of 40 CFR
51.402 and 23 CFR 450 (the metropolitan planning regulations), and by
integrating the local procedures and processes into the final
consultation rule. The consultation procedures outline the roles and
responsibilities of each of the responsible agencies for the process
for determining conformity. The consultation procedures further
document the process of conflict resolution in the transportation
conformity process, implementing the public participation process, and
the documentation to be submitted in a conformity determination. The
conformity SIP revision submitted has adequately addressed all
provisions of 40 CFR 51.402 and has met the USEPA SIP requirements.
Verbatim Sections and Amendments to the Federal Rule
Section 51.396 of transportation conformity rule states that to be
approved by the USEPA, the SIP revision submitted to USEPA must
``address all requirements of this subpart in a manner which gives them
full legal effect''. In particular, the revision shall incorporate the
provisions of the following sections in verbatim form, except insofar
as needed to give
[[Page 24704]]
effect to a stated intent in the revision to establish criteria and
procedure more stringent than the requirements stated in these
sections: 51.392, 51.394, 51.398, 51.400, 51.404, 51.410, 51.412,
51.414, 51.416, 51.418, 51.420, 51.422, 51.424, 51.426, 51.428, 51.430,
51.432, 51.434, 51.436, 51.438, 51.440, 51.442, 51.444, 51.446, 51.448,
51.450, 51.460, and 51.462.'' The State of Ohio submittal incorporated
all of the above sections in verbatim form following the November 24,
1993, version of the Federal rules, with only clarifying changes.
It should be noted, however, that on February 8, 1995, USEPA
promulgated an interim final rule that amended certain provisions of 40
CFR 51.448 in the Federal transportation conformity rules. The rule was
made permanent with an August 7, 1995, final rule (60 FR 40098) after
the USEPA took public comment on the interim final rule. On November
14, 1995, the USEPA finalized a second set of amendments to the
conformity rule. It has not been USEPA's policy to approve sections
into the SIP where major inconsistencies exist between the submittal
and the final transportation conformity rule in terms of the portions
that are required to be verbatim. In some cases where the difference is
minor and has no weakening effect, the USEPA can approve the State
rule. However, in cases where the State rule is more stringent, Sec.
51.396 requires that the ``State's conformity provisions apply equally
to non-Federal as well as Federal entities.'' The second set of
amendments allows States until November 14, 1996, to revise the State
conformity SIP to comply with the Federal changes.
The USEPA believes that the OEPA has complied with the SIP
requirements and has adopted the Federal rules which were in effect at
the time that the transportation conformity SIP was due to the USEPA.
The OEPA in no way intentionally adopted rules that were not in
verbatim form or more stringent than the Federal rule. Therefore, it
would be unreasonable to discredit the agency's good faith effort in
submitting the transportation conformity SIP and disapprove the State's
SIP. The OEPA will be required to submit a SIP revision in the near
future to incorporate the amended portions of the Federal
transportation conformity rules and has committed to do so in its April
1, 1996, letter.
The first set of amendments (60 FR 40098-60 FR 40101) significantly
revises Sec. 51.448, to align the timing of the transportation
improvement program (TIP) lapsing provisions in cases of state air
quality planning failures with the imposition of Clean Air Act highway
sanctions. In the case of a conformity lapse, transportation projects
could not be approved or funded by the USDOT unless they were listed as
exempt. A conformity lapse is similar to a highway sanction in that it
can stop highway projects from being funded. The Ohio rule has not yet
incorporated this change and therefore is different and in this case,
more stringent than the current Federal transportation conformity rule.
The second set of amendments in 60 FR 57179, make the following
changes to the Federal conformity rule:
(1) transportation control measures (TCMs) from an approved SIP can
proceed during a conformity lapse;
(2) further amends Sec. 51.448 to align conformity lapses with the
date of application of CAA highway sanctions for any failure to submit
or submission of an incomplete control strategy SIP;
(3) extends the duration of the grace period for areas which must
determine conformity to a submitted control strategy implementation
plan;
(4) establishes a grace period before which transportation plan and
program conformity must be determined in newly designated nonattainment
areas; and
(5) corrects (or clarifies) the nitrogen oxides provisions of the
transportation conformity rule consistent with the CAA so that a
NOX budget test is required in areas which have been granted a
NOX waiver (60 FR 57179).
These changes result in the Federal rule and the Ohio rule being
different in sections that are required to be in verbatim form.
However, the USEPA believes that conditional approval is appropriate in
this situation. Although these changes may appear extensive, the
difference from the Ohio rules should have little effect during the
time period before the State amends the State conformity rules. Each of
the changes are discussed individually below:
(1) TCM's in the approved SIPs: Ohio does not currently have TCMs
in the approved SIP for the Ohio nonattainment and maintenance areas.
Therefore, this change to the Federal rule will have no effect on the
Ohio areas. However, any future selected contingency measures which may
include TCMs would not be able to proceed in the case of a conformity
lapse. If Ohio changes its rules by November 14, 1996, there should be
very little effect on the Ohio areas.
(2) Lapsing Provisions: The extensive changes to the Federal rule
in 40 CFR 51.448 make the Ohio rule more stringent than the Federal
rule, as amended. Section 51.448 deals with the time period before a
nonattainment area has an approved maintenance plan (the transition
from the ``interim period'' to the ``control strategy period''). Most
of the Ohio areas have approved maintenance plans and are now in the
control strategy period, and thus, are not affected by this section.
The only area which is still in the interim period is the Cincinnati
ozone nonattainment area. The Cincinnati area currently has a complete
15 percent rate of progress plan. Thus, this section would apply to the
Cincinnati area only if the 15 percent plan or other control strategy
plan were disapproved. Section 51.448(g)(2) applies to moderate ozone
nonattainment areas using photochemical dispersion modeling to
demonstrate reductions ``even if the area has submitted the 15 percent
emission reduction demonstration''. However, the USEPA has not started
any sanctions clocks due to a State's failure to submit as stated in
Sec. 51.448(b)(1) and therefore, the Cincinnati area is not a candidate
for a conformity lapse under this section, nor under OAC 3745-101-13,
at least not within the next 12 months.
The Federal conformity rule allows the State rule to be more
stringent when the State rule applies equally to non-Federal projects.
However, the Ohio rules do not extend to non-Federal projects. In the
case of a conformity lapse, transportation plans, programs and projects
could not be approved by USDOT. In some cases, non-Federal projects
which are regionally significant and need a Federal action such as a
National Environmental Protection Act (NEPA) decision would also be
unapproved because of the need for a Federal action. In other cases,
the non-Federal project could possibly proceed in the event of a lapse.
In the case of Texas (60 FR 56244) and New Mexico (60 FR 56241), the
Federal approval of State rules did not include the section
corresponding to the Federal Sec. 51.448. If USEPA were to approve this
State provision, Ohio would have a transportation conformity rule more
stringent than other areas of the nation. However, OEPA has committed
to submit a SIP revision to address this issue by November 14, 1996.
(3) Extending the grace period for conformity to a submitted
control strategy SIP: Extending the grace period for areas to determine
conformity to a control strategy SIP is not expected to significantly
affect the Ohio nonattainment and maintenance areas. Through excellent
consultation procedures, the Ohio areas have participated in the
control strategy mobile source budget development and it is USEPA's
evaluation that the areas
[[Page 24705]]
are aware of the need to show conformity to the budget where
appropriate.
(4) Conformity for newly designated nonattainment areas: This
change establishes a grace period for newly designated nonattainment
areas. There are no newly designated nonattainment areas in the State
of Ohio, nor does the USEPA anticipate newly designated nonattainment
areas in the near future.
(5) Conformity to a NOX budget in areas with a NOx
waiver: The correction (or clarification) of the need to show
conformity to the NOX mobile source budget in areas which have
NOX waivers is important to the many areas in Ohio which have been
granted NOX waivers. The Ohio conformity consultation process has
already confirmed that the correct interpretation of the rule is to
require a NOX budget test in these areas. Therefore, although this
clarification is important, the clarification in Ohio has been
accomplished through the consultation process.
Therefore, the USEPA believes that the Ohio rules can be
conditionally approved based on the State's commitment letter dated
April 1, 1996, and the above analysis.
III. USEPA Action
The USEPA conditionally approves the Ohio transportation conformity
SIP revision. This conditional approval is based, in part, on the
State's commitment, submitted in a letter on April 1, 1996, to submit
revised transportation conformity rules to incorporate the two
amendments to the federal transportation conformity regulations. The
State of Ohio committed to revise its transportation conformity rules
by November 14, 1996. If the State ultimately fails to meet its
commitment to meet these requirements within one year of final
conditional approval, then USEPA's action for the State's requested SIP
revision will automatically convert to a final disapproval. This
conditional approval is consistent with USEPA's authority under section
110(k)(4) of the Act.
Because USEPA considers this action noncontroversial and routine,
we are approving it without prior proposal. This action will become
effective on July 15, 1996. However, if we receive adverse comments by
June 17, 1996, EPA will publish a document that withdraws this action.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
B. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, USEPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids USEPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976).
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the
USEPA must prepare a budgetary impact statement to accompany any
proposed or final rule that includes a Federal mandate that may result
in estimated costs to State, local, or tribal governments in the
aggregate; or to the private sector, of $100 million or more. Under
section 205, the USEPA must select the most cost-effective and least
burdensome alternative that achieves the objectives of the rule and is
consistent with statutory requirements. Section 203 requires the USEPA
to establish a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule.
The USEPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector.
This Federal action approves pre-existing requirements under State
or local law, and imposes no new Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or the private
sector, result from this action.
D. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 15, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Ozone, Transportation conformity, Transportation-air quality planning,
Volatile organic compounds.
Dated: April 19, 1996.
Valdas V. Adamkus,
Regional Administrator.
40 CFR part 52, is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C 7401-7671q.
Subpart KK--Ohio
2. Section 52.1919 is amended by adding and reserving paragraph
(a)(2) and by adding paragraph (a)(3) to read as follows:
Sec. 52.1919 Identification of plan-conditional Approval.
(a)* * *
(3) Conditional Approval--On August 17, 1995, the Ohio
Environmental Protection Agency submitted a revision to the State
Implementation Plan. The
[[Page 24706]]
submittal pertained to a plan for the implementation of the federal
transportation conformity requirements at the State or local level in
accordance with 40 CFR part 51, subpart T--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 Act. This conditional approval is based, in part, on
the State's commitment, submitted in a letter on April 1, 1996, to
submit revised transportation conformity rules to incorporate the two
amendments to the federal transportation conformity regulations. The
State of Ohio committed to revise its transportation conformity rules
by November 14, 1996. If the State ultimately fails to meet its
commitment to meet these requirements within one year of final
conditional approval, then USEPA's action for the State's requested SIP
revision will automatically convert to a final disapproval.
(i) Incorporation by reference. August 1, 1995, Ohio Administrative
Code Chapter 3745-101, effective August 21, 1995.
* * * * *
[FR Doc. 96-12357 Filed 5-15-96; 8:45 am]
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