[Federal Register Volume 64, Number 130 (Thursday, July 8, 1999)]
[Rules and Regulations]
[Pages 36786-36790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17204]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NM-37-1-7392a; FRL-6372-7]
Approval and Promulgation of Implementation Plan for New Mexico--
Albuquerque/Bernalillo County: Transportation Conformity Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: We, the EPA, are approving a revision to the New Mexico State
Implementation Plan (SIP) that contains the transportation conformity
rule for Albuquerque/Bernalillo County. The conformity rules assure
that in air quality nonattainment or maintenance areas, projected
emissions from transportation plans and projects stay within the motor
vehicle emissions ceiling in the SIP. The transportation conformity SIP
revision enables the Albuquerque/Bernalillo County Air Quality Control
Board (AQCB) to implement and enforce the Federal transportation
conformity requirements in the Albuquerque/Bernalillo County area level
per 40 CFR part 51, subpart T and 40 CFR part 93, 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. Our approval action streamlines the
conformity process and allows direct consultation among agencies at the
local levels. Our final approval action is limited to 40 CFR part 51,
subpart T and 40 CFR part 93, subpart A (Transportation Conformity). We
approved the SIP revision sent under 40 CFR part 51, subpart W
(conformity of general Federal actions) on September 13, 1996 (61 FR
48407).
We approve this SIP revision under sections 110(k) and 176 of the
Clean Air Act (Act). We have given our rationale for approving this SIP
revision in this action.
DATES: This rule is effective on September 7, 1999 without further
notice, unless EPA receives adverse comment by August 9, 1999. If we
receive adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: You should send your written comments to Mr. Thomas H.
Diggs, Chief, Air Planning Section (6PDL) at the address given below.
You may inspect copies of the State's SIP revision and other relevant
information during normal business hours at the following locations. If
you wish to examine these documents, you should make an appointment
with the appropriate office at least 24 hours before the visiting day.
Air Planning Section (6PDL), Multimedia Planning and Permitting
Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Dallas, Texas 75202, Telephone: (214) 665-7214.
Air Pollution Control Division, Albuquerque Environmental Health
Department, City of Albuquerque, One Civic Plaza, Albuquerque, New
Mexico 87102, Telephone: (505) 768-2600.
FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E.; Air Planning
Section (6PDL), Multimedia Planning and Permitting Division,
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, Telephone (214) 665-7247.
SUPPLEMENTARY INFORMATION: We have outlined the contents of this notice
below for your reading convenience:
I. Background
A. What is a SIP?
B. What is the Federal approval process for a SIP?
C. What is transportation conformity?
D. Why must the State send a transportation conformity SIP?
E. How does transportation conformity work?
II. Approval of the Albuquerque/Bernalillo County Transportation
Conformity Rule
A. What did the State send?
B. What is EPA approving today and why?
C. How did the AQCB satisfy the interagency consultation process (40
CFR 93.105)?
D. Why did the AQCB exclude the grace period for new nonattainment
areas (40 CFR 93.102(d))?
E. What parts of the rule are excluded?
III. Opportunity for Public Comments
IV. Administrative Requirements
I. Background
A. What is a SIP?
The states under section 110 of the Act must develop air pollution
regulations and control strategies to ensure that state air quality
meets the National Ambient Air Quality Standards (NAAQS) established by
the EPA. The Act under section 109 established these ambient standards
which currently includes six criteria pollutants. These pollutants are:
carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and
sulfur dioxide.
Each state must send these regulations and control strategies to
us, the EPA, for approval and incorporation into the federally
enforceable SIP.
Currently, each state has a federally approved SIP which protects
air quality and has emission control plans for nonattainment areas.
These SIPs can be extensive, containing state regulations or other
enforceable documents and supporting information such as emission
inventories, monitoring networks, and modeling demonstrations.
B. What is the Federal Approval Process for a SIP?
The states must formally adopt the regulations and control
strategies consistent with state and Federal laws for incorporating the
state regulations into the federally enforceable SIP. This process
generally includes a public notice, public hearing, public comment
period, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the
state will send these provisions to us for inclusion in the federally
enforceable SIP. We must then decide on an appropriate Federal action,
provide public notice,
[[Page 36787]]
and request additional public comment on the action. If anyone sends
adverse comments, we must consider the comments before a final action.
We incorporate all state regulations and supporting information
(sent under section 110 of the Act) into the federally approved SIP
after our approval action. We maintain records of such SIP actions in
the Code of Federal Regulations (CFR) at Title 40, part 52, entitled
``Approval and Promulgation of Implementation Plans. The Government
does not reproduce the text of the federally approved state regulations
in the CFR. They are ``incorporated by reference,'' which means that
the specific state regulation is cited in the CFR and is considered a
part of the CFR the same as if the text were fully printed in the CFR.
C. What is Transportation Conformity?
Conformity first appeared in the Act's 1977 amendments (Public Law
95-95). Although the Act did not define conformity, it stated 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 Act's 1990 Amendments expanded the scope and content of the
conformity concept by defining conformity to an implementation plan.
Section 176(c) of the Act defines conformity as conformity to the SIP's
purpose of eliminating or reducing the severity and number of
violations of the NAAQS and achieving expeditious attainment of such
standards. Also, the Act states that no Federal activity will: (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.
D. Why Must the State Send a Transportation Conformity SIP?
We were required to issue criteria and procedures for determining
conformity of transportation plans, programs, and projects to a SIP by
section 176(c) of the Act. The Act also required the procedure to
include a requirement that each State submit a revision to its SIP
including conformity criteria and procedures. We published the first
transportation conformity rule in the November 24, 1993, Federal
Register, and it was codified at 40 CFR part 51, subpart T and 40 CFR
part 93, subpart A. We required the States and local agencies to adopt
and submit a transportation conformity SIP revision to us by November
25, 1994. The State Governor sent a transportation conformity SIP on
December 19, 1994, in behalf of Albuquerque/Bernalillo County Air
Quality Control Board (AQCB). We approved this SIP on November 8, 1995
(60 FR 56241). We revised the transportation conformity rule on August
7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), and August 15,
1997 (62 FR 43780), and it was codified under 40 CFR part 51, subpart T
and 40 CFR part 93, 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 (62 FR 43780). Our action of August 15, 1997, required the
States to change their rules and send a SIP revision by August 15,
1998.
E. How Does Transportation Conformity Work?
The Federal or State transportation conformity rule applies to all
nonattainment and maintenance areas in the State. The Metropolitan
Planning organizations (MPO), the State Departments of Transportation
(in absence of a MPO), and U.S. Department of Transportation make
conformity determinations. These agencies make conformity
determinations on programs and plans such as transportation improvement
programs, transportation plans, and projects. The MPOs calculate the
projected emissions for the transportation plans and programs and
compare those calculated emissions to the motor vehicle emissions
ceiling established in the SIP. The calculated emissions must be
smaller than the motor vehicle emissions ceiling for showing a positive
conformity with the SIP.
II. Approval of the Albuquerque/Bernalillo County Transportation
Conformity Rule
A. What Did the State Send?
On December 9, 1998, the Governor of New Mexico in behalf of AQCB
sent a SIP revision that includes the Albuquerque/Bernalillo
transportation conformity and consultation rule. The AQCB adopted this
SIP revision on May 13, 1998, after appropriate public participation
and interagency consultation.
B. What is EPA Approving Today and Why?
We are approving the Albuquerque/Bernalillo County transportation
conformity rule that the Governor of New Mexico sent us on December 9,
1998, except for New Mexico Administrative Code (NMAC) Title 20,
Chapter 11, Part 03, sections I.2.3, II.2.4, II.7.3--7.6, II.16.5,
II.18.1.B, II.19.1.A, and II.22.2. The rationale for exclusion of these
sections are discussed in section II-E of this action. The AQCB has
adopted the Federal rules in verbatim form except for the interagency
consultation section (40 CFR 93.105) and the grace period for new
nonattainment areas (40 CFR 93.102(d)). We will discuss the reasons for
exclusion of these two sections later in this document.
The Federal Transportation Conformity Rule required the states to
adopt a majority of the Federal rules in verbatim form with a few
exceptions. The States can not make their rules more stringent than the
Federal rules unless the state's rules apply equally to nonfederal as
well as Federal entities. The AQCB's transportation conformity rule is
the same as the Federal rule and the State has made no additional
changes or modifications, with the exception of those sections
mentioned above.
We have evaluated this SIP revision and have determined that the
AQCB has fully adopted the Federal Transportation Conformity Rules as
described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A.
Also, the AQCB has completed and satisfied the public participation and
comprehensive interagency consultations during development and adoption
of these rules at the local level. Therefore, we are approving this SIP
revision.
Our approval action does not include general conformity (40 CFR
part 51, subpart W). We approved the Albuquerque/Bernalillo County
general conformity SIP on September 13, 1996 (61 FR 48407).
C. How Did the AQCB Satisfy the Interagency Consultation Process (40
CFR 93.105)?
Our rule requires the states to develop their own processes and
procedures for interagency consultation among the Federal, State, and
local agencies and resolution of conflicts by meeting the criteria in
40 CFR 93.105. The SIP revisions must include processes and procedures
to be followed by the MPO, State Department of Transportation (DOT),
and the U.S. Department of Transportation (USDOT) in consulting with
the State and local air quality agencies and EPA before making
conformity determinations. Also, the transportation conformity SIP
revision must have processes and procedures for
[[Page 36788]]
the State and local air quality agencies and EPA in coordinating
development of applicable SIPs with MPOs, State DOT, and USDOT.
The AQCB developed its own consultation rule based on the elements
in 40 CFR 93.105, and excluded this section from its rule. As a first
step, the AQCB established an ad hoc multi-agency committee that
included representatives from the State air quality agency, State DOT,
USDOT, MPOs, EPA, the local air quality agency, local transportation
agencies, and local transit operators. The AQCB served as the lead
agency in coordinating the multi-agency efforts for developing the
consultation rule. The committee met approximately biweekly and drafted
consultation rules by considering the elements in 40 CFR 93.105 and 23
CFR part 450, and by integrating the local procedures and processes
into the final consultation rule. The consultation rule developed
through this process is unique to the Albuquerque/Bernalillo County and
is codified under 20 NMAC 11.03.II.3. We have determined that the AQCB
adequately included all elements of 40 CFR 93.105 in their rule and it
meets the EPA SIP requirements.
D. Why Did the AQCB Exclude the Grace Period for New Nonattainment
Areas (40 CFR 93.102(d))?
The AQCB excluded 40 CFR 93.102(d) from its rule. This section
allows up to 12 months for newly designated nonattainment areas to
complete their conformity determination. However, Sierra Club
challenged this section of the rule arguing that allowing a 12 month
grace period was unlawful under the Act. On November 4, 1997, the
United Sates Court of Appeals for the District of Columbia Circuit held
in Sierra Club v. Environmental Protection Agency, No. 96.1007, cited
EPA's grace period violates the plain terms of the Act and, therefore,
is unlawful. Based on this court action, the AQCB has excluded this
section from its rule. We agree with the AQCB's action, and exclusion
of 40 CFR 93.102(d) will not prevent us from approving the State
transportation conformity SIP.
E. What Parts of the Rule Are Excluded?
We promulgated the transportation conformity rule on August 15,
1997. On March 2, 1999, the United States Court of Appeals for the
District of Columbia Circuit issued its opinion in Environmental
Defense Fund v. Environmental Protection Agency, No. 97-1637. The Court
granted the environmental group's petition for review and ruled that 40
CFR 93.102(c)(1), 40 CFR 93.121(a)(1), and 40 CFR 93.124(b) are
unlawful and remanded 40 CFR 93.118(e) and 40 CFR 93.120(a)(2) to EPA
for revision to harmonize these provisions with the requirements of the
Act for an affirmative determination the federal actions will not cause
or increase violations or delay attainment. The sections that were
included in this decision were:
(a) 40 CFR 93.102(c)(1) which allowed certain projects for which
the NEPA process has been completed by the DOT to proceed toward
implementation without further conformity determinations during a
conformity lapse,
(b) 40 CFR 93.118(e) which allowed use of motor vehicle
emissions budgets (MVEB) in the submitted SIPs after 45 days if EPA
had not declared them inadequate,
(c) 40 CFR 93.120(a)(2) which allowed use of the MVEB in a
disapproved SIP for 120 days after disapproval,
(d) 40 CFR 93.121(a)(1) which allowed the nonfederally funded
projects to be approved if included in the first three years of the
most recently conforming transportation plan and transportation
improvement programs, even if conformity status is currently lapsed,
and
(e) 40 CFR 93.124(b) which allowed areas to use a submitted SIP
that allocated portions of a safety margin to transportation
activities for conformity purposes before EPA approval.
Since the States were required to submit transportation conformity
SIPs not later than August 15, 1998, and include those provisions in
verbatim form, the State's (Albuquerque/Bernalillo County's) SIP
revision includes all those sections which the Court ruled unlawful or
remanded for consistency with the Act. The EPA can not approve these
sections.
We believe that the AQCB 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 EPA. If the court had
issued its ruling before adoption and SIP submittal by the AQCB, we
believe the AQCB would have removed these unlawful sections from its
SIP. The AQCB has expended its resources and time in preparing this SIP
and meeting the Act's statutory deadline, and EPA acknowledges the
agency's good faith effort in submitting the transportation conformity
SIP on time and disapprove the entire transportation conformity SIP.
The AQCB will be required to submit a SIP revision in the future
when EPA revises its rule to comply with the court decision. Because
the court decision has invalidated these provisions, we believe that it
would be reasonable to exclude the corresponding sections of the AQCB
rules from this SIP approval action. As a result, we are not taking any
action on 20 NMAC 11.03, sections I.2.3, II.2.4, II.7.3-7.6, II.16.5,
II.18.1.B, II.19.1.A, and II.22.2 of the Albuquerque/Bernalillo County
transportation rules. The conformity determinations affected by these
sections must comply with the relevant requirements of the statutory
provisions of the Clear Air Act underlying the court's decision on
these issues. EPA will be issuing guidance on how to implement these
provisions in the interim prior to EPA amendment of the Federal
transportation conformity rules. Once these Federal rules have been
revised, conformity determinations in the Albuquerque/Bernalillo County
area should comply with the requirements of the revised Federal rule
until corresponding provisions of the State's conformity SIP have been
approved by EPA.
III. Opportunity for Public Comments
The EPA is publishing this rule without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comment. However, in the ``Proposed Rules'' section of today's Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve this SIP revision if adverse comments
are filed. This rule will be effective on September 7, 1999 without
further notice unless we receive adverse comment by August 9, 1999. If
EPA receives adverse comment, we will publish a timely withdrawal in
the Federal Register informing the public that the rule will not take
effect. We will address all public comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.
IV. Administrative Requirements
A. Executive Order (E.O.) 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866, entitled ``Regulatory Planning and
Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a State, local or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to provide to the OMB a description
of the extent of EPA's prior consultation with representatives of
affected State, local
[[Page 36789]]
and tribal governments, the nature of their concerns, copies of any
written communications from the governments, and a statement supporting
the need to issue the regulation. In addition, E.O. 12875 requires EPA
to develop an effective process permitting elected officials and other
representatives of State, local and tribal governments to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under E.O. 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets E.O. 13045 as applying only to those regulatory
actions that are based on health or safety risks, such that the
analysis required under section 5-501 of the Order has the potential to
influence the regulation. This final rule is not subject to E.O. 13045
because it approves a State program.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
provide to OMB, in a separately identified section of the preamble to
the rule, a description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, E.O. 13084 requires EPA to develop an
effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 600 et seq., generally
requires an agency to conduct a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking requirements unless the
agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. This final rule will not have a significant
impact on a substantial number of small entities because SIP approvals
under section 110 and subchapter I, part D of the Act do not create any
new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Act
forbids EPA to base its actions concerning SIPs on such grounds. See
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C.
7410(a)(2).
F. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated annual costs to State,
local, or tribal governments in the aggregate; or to private sector, of
$100 million or more. Under section 205, EPA 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 EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated does
not include a Federal mandate that may result in estimated annual 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 preexisting requirements under State or local law, and imposes
no new requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
H. 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 September 7, 1999. 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, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Transportation conformity, Transportation--air
quality planning, Volatile organic compounds.
[[Page 36790]]
Dated: June 9, 1999.
W.B. Hathaway,
Acting Regional Administrator, Region 6.
Part 52, Chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
Subpart GG--New Mexico
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.1620(c) is amended by adding the following citation
and part 3 entry to the end of the first table to read as follows:
Sec. 52.1620 Identification of Plan.
* * * * *
(c) * * *
EPA Approved New Mexico Regulations
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State
approval/
State citation Title/subject effective EPA approval date Comments
date
----------------------------------------------------------------------------------------------------------------
New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
* * * * * *
*
New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11--Albuquerque/Bernalillo County
Air Quality Control Board (AQCB)
Part 03............. Transportation 07/01/98 July 8, 1999. 64 (1) No action is taken on sections
Conformity. FR 36790. I.2.3., II.2.4, II.7.3-7.6, II.16.5,
II.18.1.B, II.19.1.A, and II.22.2.
and (2) this rule supersedes
Regulation 42 codified under
Albuquerque-Bernalillo County, Air
Quality Control Regulations.
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[FR Doc. 99-17204 Filed 7-7-99; 8:45 am]
BILLING CODE 6560-50-P