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

[Federal Register: July 8, 1999 (Volume 64, Number 130)]

[Rules and Regulations]

[Page 36786-36790]

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

[DOCID:fr08jy99-8]

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.

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:

1. Background

   1. 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?

2. Approval of the Albuquerque/Bernalillo County Transportation Conformity Rule

   1. 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?

3. Opportunity for Public Comments

4. Administrative Requirements

1. Background

   1. 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.

   2. 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,

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      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.

   3. 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.

   4. 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.

   5. 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.

2. Approval of the Albuquerque/Bernalillo County Transportation Conformity Rule

   1. 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.

   2. 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).

   3. 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

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      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.

   4. 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.

   5. 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.

3. 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.

4. Administrative Requirements

   1. 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.''

   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, 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

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      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.

   3. 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.

   4. 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.

   5. 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).

   6. 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.

   7. 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).

   8. Petitions for Judicial Review

      Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filedin 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.

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      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

         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.

         [FR Doc. 99-17204Filed7-7-99; 8:45 am]

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