Air quality implementation plans; approval and promulgation; various States: New Hampshire,

[Federal Register: August 16, 1999 (Volume 64, Number 157)]

[Rules and Regulations]

[Page 44417-44420]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr16au99-11]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH039-7166a; A-1-FRL-6416-2]

Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; General Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving New Hampshire's General Conformity Rule, incorporating it into the State Implementation Plan (SIP).

DATES: This direct final rule takes effect on October 15, 1999 without further notice, unless EPA receives adverse or critical comments by September 15, 1999. If EPA does receive adverse comments, we will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES: You may mail comments to Susan Studlien, Deputy Director, Office of Ecosystem Protection, EPA Region 1 (CAA), One Congress Street, Suite 1100 (CAA), Boston, MA 02114. You may also email comments to cairns.matthew@epa.gov.

You may review copies of the relevant documents to this action by appointment during normal business hours at the Office Ecosystem Protection, EPA Region 1, One Congress Street, Boston, Massachusetts; the Air and Radiation Docket and Information Center, USEPA, 401 M Street, S.W., (LE-131), Washington, DC; and the Air Resources Division, Department of Environmental Services, 64 North Main Street, Concord, New Hampshire.

FOR FURTHER INFORMATION CONTACT: Matthew B. Cairns at 617-918-1667 or cairns.matthew@epa.gov.

SUPPLEMENTARY INFORMATION: This section is organized as follows: What action is EPA taking today? What is General Conformity? Where does General Conformity apply? Who must follow General Conformity? How does General Conformity differ from Transportation Conformity? What did New Hampshire submit to EPA for approval? Why did New Hampshire have to develop its own General Conformity Rule? Why must New Hampshire's Rule be federally enforceable? How does New Hampshire's General Conformity Rule meet the requirements of a federally enforceable General Conformity Rule? Does New Hampshire's General Conformity Rule differ from the Federal General Conformity rule? How does General Conformity affect air quality in New Hampshire? Where can I get copies of the New Hampshire General Conformity Rule? What is the process for EPA's approval of these SIP revisions?

What Action Is EPA Taking Today?

EPA is approving New Hampshire's General Conformity Rule, incorporating it into the State Implementation Plan (SIP). This action makes New Hampshire's General Conformity Rule federally enforceable.

What is General Conformity?

General Conformity is a safeguard that no action by the Federal government interferes with a SIP's protection of the National Ambient Air Quality Standards (NAAQS). Under General Conformity, any action by the Federal government cannot:

[[Page 44418]]

‹bullet› Cause or contribute to any new violation of any standard in any area;

‹bullet› Interfere with provisions in the applicable SIP for maintenance of any standard;

‹bullet› Increase the frequency or severity of any existing violation of any standard in any area; or

‹bullet› Delay timely attainment of any standard of any required interim emission reductions or other milestones in any area.

General Conformity is a requirement of section 176(c) of the Clean Air Act Amendments of 1990 (CAA).

Where Does General Conformity Apply?

General Conformity applies in all nonattainment areas and maintenance areas for all the criteria pollutants under the CAA: carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO‹INF›2‹/INF›), ozone (O‹INF›3‹/INF›), particulate matter (PM), and sulfur dioxide (SO‹INF›2‹/INF›). It applies to Federal actions which produce reasonably foreseeable direct and indirect emissions of criteria pollutants or their precursors.

Who Must Follow General Conformity?

All Federal government agencies must follow General Conformity rules. The General Conformity rule establishes thresholds for triggering a conformity analysis. These rules and the requirements for a conformity analysis appear in detail in 40 CFR 51.851 and 93.151.

How Does General Conformity Differ From Transportation Conformity?

Transportation Conformity applies to transportation plans, programs, and projects funded or approved by the Federal Highway Administration or the Federal Transit Administration or recipients of fund from those agencies. General Conformity applies to all other Federal actions. When both Transportation Conformity and General Conformity apply to an action, if a transportation plan, program, or project meets the requirements of the Transportation Conformity rules in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A, it is considered to meet the requirements of General Conformity.

What Did New Hampshire Submit to EPA for Approval?

New Hampshire submitted its General Conformity Rule, titled ``Chapter Env-A 1500--Conformity, Part Env-A 1502--Conformity of General Federal Actions,'' to EPA on July 10, 1996 as a revision to its SIP. The SIP revision for this rule incorporates by reference appropriate sections of 40 CFR part 51, subpart W and thereby establishes General Conformity criteria and procedures in the New Hampshire SIP.

Why Did New Hampshire Have to Develop Its Own General Conformity Rule?

The CAA requires each State to develop rules to implement the General Conformity rule. (See 40 CFR 51.851 and 93.151.) EPA believes that the Federal government does not have the primary responsibility for achieving clean air goals; Congress assigned that responsibility to State and local agencies. Therefore, each State must submit a revised SIP that includes General Conformity criteria and procedures that are consistent with the General Conformity rule. These criteria require that State Rules must be at least as stringent as the requirements specified in EPA's General Conformity rule. Furthermore, that they can only be more stringent if they apply equally to Federal and non-federal entities.

Why Must New Hampshire's Rule Be Federally Enforceable?

New Hampshire's General Conformity SIP revision enables the State of New Hampshire to implement and enforce the Federal General Conformity rules in New Hampshire's nonattainment and maintenance areas at the State and local level. By approving New Hampshire's Rule into the SIP, EPA also gains the authority to enforce the Federal General Conformity rules and New Hampshire's General Conformity Rule at the Federal level.

How Does New Hampshire's General Conformity Rule Meet the Requirements of a Federally Enforceable General Conformity Rule?

Section 110 of the CAA requires each State to adopt and submit to EPA a plan providing for the implementation, maintenance, and enforcement of air quality standards and control programs.

The New Hampshire Office of Legislative Services has determined that this SIP revision will be enforceable under the Laws of New Hampshire, RSA 125-C:4 Rulemaking Authority; Subpoena Power. This law states in part, ``The director shall adopt rules, subject to the written approval of the commissioner, under RSA 541-A, relative to:

(a) The prevention, control, abatement, and limitation of air pollution, including, but not limited to, open air source pollution, mobile source pollution, and stationary source pollution, and

(b) Primary and secondary ambient air quality standards.''

Does New Hampshire's General Conformity Rule Differ From the Federal General Conformity Rule?

New Hampshire has incorporated the Federal General Conformity rule by reference, so New Hampshire's rule is no more stringent that the Federal rule and does not impose any additional controls on non-federal entities.

How Does General Conformity Affect Air Quality in New Hampshire?

If New Hampshire did not take steps to avoid pollution, air quality in New Hampshire would be degraded. The principle behind General Conformity is that the agency that sponsors or supports an activity is in the best position to limit the adverse air quality impacts of that activity. General Conformity is designed to hold those with the responsibility for a project accountable for the emissions that result from that project. The ultimate goal is to prevent actions that the Federal government supports from undermining State efforts to achieve and maintain clean air in a cost-effective manner.

Where Can I Get Copies of the New Hampshire General Conformity Rule?

As stated in the ADDRESSES section above, you may review copies of the New Hampshire General Conformity Rule by appointment during normal business hours at the Office Ecosystem Protection, EPA Region 1, One Congress Street, Boston, Massachusetts; the Air and Radiation Docket and Information Center, USEPA, 401 M Street, S.W., (LE-131), Washington, DC; and the Air Resources Division, Department of Environmental Services, 64 North Main Street, Concord, New Hampshire. You may also view a copy of the New Hampshire General Conformity Rule via the Internet at http://www.state.nh.us/des/ard/enva1502.pdf.

What Is the Process for EPA's Approval of These SIP Revisions?

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is also publishing a separate document that will serve as the proposal to approve this SIP revision should we receive relevant adverse comments. This action will be effective October 15, 1999 without further notice unless we receive relevant adverse comments by September 15, 1999.

If EPA does receive adverse comments, we will withdraw the direct final rule and publish a notice that the rule will not take effect. We will then

[[Page 44419]]

respond to all public comments received in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. If you are interested in commenting on this action, you should do so at this time. If no such comments are received, you should know that this rule will be effective on October 15, 1999 and no further action will be taken on the proposed rule.

Administrative Requirements

1. Executive Orders 12866 and 13045

   The Office of Management and Budget (OMB) has exempted this regulatory action from E.O. 12866 review.

   The final rule is not subject to Executive Order 13045, entitled ``Protection of Children from Environmental Health Risks and Safety Risks,'' because it is not an ``economically significant'' action under Executive Order 12866.

2. 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. If the mandate is unfunded, EPA must provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected State, local, and tribal governments, the nature of their concerns, copies of 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.

3. Executive Order 13084

   Under E.O. 13084, EPA may not issue a regulation that is not required by statute, that significantly affects 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. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, 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, 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.

4. Regulatory Flexibility

   The Regulatory Flexibility Act (RFA) 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 Clean Air 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 Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

5. Unfunded Mandates

   Under sections 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act''), 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 costs to State, local, or tribal governments in the aggregate; or to the 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.

   EPA has determined that the approval action promulgated 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 requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

6. 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. 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).

7. Petitions for Judicial Review

   Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filedin the United States Court of Appeals for the appropriate circuit by October 15, 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).) EPA encourages interested parties to comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal.

   [[Page 44420]]

   List of Subjects in 40 CFR Part 52

   Environmental protection, Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.

   Note: Incorporation by reference of the State Implementation Plan for the State of New Hampshire was approved by the Director of the Federal Register on July 1, 1982.

   Dated: July 28, 1999. John P. DeVillars, Regional Administrator, Region 1.

   Part 52 of chapter I, title 40 of the Code of Federal Regulations 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 et seq.

      Subpart EE--New Hampshire

   2. Section 52.1520 is amended by adding paragraph (c)(63) to read as follows:

      Sec. 52.1520 Identification of plan.

      * * * * * *

      (c) * * * (63) Revisions to the State Implementation Plan Submitted by the New Hampshire Department of Environmental Services on July 10, 1996.

      (i) Incorporation by reference.

      (A) Letter from the New Hampshire Department of Environmental Services dated July 10, 1996 submitting a revision to the New Hampshire State Implementation Plan.

      (B) Part Env-A 1502 of Chapter Env-A 1500 of the New Hampshire Code of Administrative Rules titled ``Conformity of General Federal Actions,'' adopted in the State of New Hampshire on April 25, 1996. For the State of New Hampshire

   3. In Sec. 52.1525, Table 52.1525 is amended by adding at the end of the table a new state citation for Conformity of General Federal Actions to read as follows:

      Sec. 52.1525 EPA-approved New Hampshire state regulations.s

      * * * * *

      Table 52.1525--EPA-Approved Rules and Regulations--New Hampshire

      State citation Date adopted by Date approved by Federal Register Title/subject

      chapter

      State

      EPA

      citation

      52.1520

      Comments

      *

      *

      *

      *

      *

      *

      * Conformity of General Federal CH Env-A 1500, Part April 19, 1996..... August 16, 1999... [Insert FR

      c(63)

      None. Actions.

      Env-A 1502.

      citation from published date].

      [FR Doc. 99-21002Filed8-13-99; 8:45 am]

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