[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Rules and Regulations]
[Pages 56241-56244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27682]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NM-27-1-7208a; FRL-5322-6]
Approval and Promulgation of Implementation Plan for New Mexico--
Albuquerque/Bernalillo County: Transportation Conformity Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This document approves a revision to the New Mexico State
Implementation Plan (SIP) for the Albuquerque/Bernalillo County
nonattainment area that contains transportation conformity rules. The
transportation conformity SIP revision enables the Albuquerque/
Bernalillo County Air Quality Control Board to implement and enforce
the Federal transportation conformity requirements at the 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. The final approval action is limited only to 40
CFR part 51, subpart T (Transportation Conformity), and the SIP
revision submitted under 40 CFR part 51, subpart W, conformity of
general Federal actions, will be addressed in a separate document. The
EPA is approving this SIP revision under section 110(k) of the Clean
Air Act (CAA). The rationale for the approval action and other
information are provided in this document.
DATES: This action is effective on January 8, 1996, unless notice is
postmarked by December 8, 1995 that someone wishes to submit adverse or
critical comments. If the effective date is delayed, timely notice will
be published in the Federal Register (FR).
ADDRESSES: Copies of the State's submittal and other relevant
information are available for inspection during normal business hours
at the following locations. Interested persons wanting to examine these
documents 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, One Civic Plaza, Albuquerque, New Mexico 87103,
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:
I. Background
Conformity provisions first appeared in the CAA amendments of 1977
(Public Law 95-95). Although these provisions did not 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 EPA to promulgate criteria and procedures for
determining conformity of all Federal actions (transportation and
general) to a SIP. The EPA published the final transportation
conformity rules in the November 24, 1993, Federal Register 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. All other Federal actions (actions other than
those under Title 23 U.S.C. or the Federal Transit Act) were addressed
in a separate Federal Register notice. The conformity rules require the
States and local agencies to adopt and submit a transportation
conformity SIP revision to the EPA not later than November 24, 1994.
This notice does not address the conformity requirements of general
Federal actions (40 CFR Part 51 Subpart W), and EPA will take action on
these SIPs in a separate notice.
[[Page 56242]]
II. Evaluation of State's Submission
In response to the Federal Register notice of November 24, 1993,
the Governor of New Mexico submitted a SIP revision which included the
transportation conformity rules adopted by the Albuquerque/Bernalillo
County Air Quality Control Board. Currently, the Albuquerque/Bernalillo
area is a nonattainment for carbon monoxide and has requested
redesignation to attainment; however, the transportation conformity SIP
revision is applicable to all nonattainment and maintenance
classifications under the CAA. It must be noted that the final
transportation conformity rule requires that the majority of the
Federal rules be incorporated in verbatim form with a few exceptions,
however, the State rules can not be more stringent than the Federal
rules. The consultation section of the rule (40 CFR 51.402) is among
these exceptions and the State and local (where applicable) air quality
agencies are required to develop their own consultation rules. The
following paragraphs present EPA's review and evaluation of the
Albuquerque/Bernalillo County nonattainment area SIP revision.
A. Development of Consultation Rules
The Federal rules require the SIP's 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 Part 51 Section 51.402. Specifically, to
implement the requirements of Section 51.402, the SIP revisions must
include processes and procedures to be undertaken by Metropolitan
Planning Organizations (MPO), State Department of Transportation, and
the U.S. Department of Transportation (USDOT) with State and local air
quality agencies and EPA before making conformity determinations, and
by State and local air quality agencies and EPA with MPO's, State
Departments of Transportation, and USDOT in developing applicable SIPs.
In order to satisfy these requirements, Albuquerque/Bernalillo
County, the Albuquerque Environmental Health Department (air agency),
established an ad hoc multi-agency committee which included
representatives from the State air quality agency, State DOT, USDOT,
MPO's, EPA, the local air quality agency, local transportation
agencies, and local transit operators. The Albuquerque Environmental
Health Department served as the lead agency in coordinating the multi-
agency efforts for developing the consultation rules. The committee met
approximately on a biweekly basis and drafted consultation rules by
using the requirements of 40 CFR 51.402 and 23 CFR 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 nonattainment area. The
Albuquerque/Bernalillo County SIP revision has adequately addressed all
provisions of 40 CFR 51.402 and has met the EPA SIP requirements.
B. Transition From the Interim Period to the Control Strategy Period;
40 CFR 51.448
The EPA promulgated an interim final rule on February 8, 1995, that
amended certain provisions of 40 CFR 51.448 in the Federal
transportation conformity rules. The interim final rule aligned the
timing of certain transportation conformity consequences with the
imposition of the CAA highway sanctions for a six-month period. The
amendment delays the lapse in conformity status, which would otherwise
prevent approval of new highway and transit projects, and allow States
more time to prevent the lapse by submitting complete control strategy
implementation plan. Since the States were required to submit
transportation conformity SIPs not later than November 24, 1994, the
State's (Albuquerque/Bernalillo County's) SIP revision does not include
the amendment of February 8, 1995. Lack of amended sections of 40 CFR
51.448 in the Albuquerque/Bernalillo County's rules makes the local
rules more stringent than the Federal rules. However, the EPA believes
that the Albuquerque Environmental Health Department 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. The agency in no way intentionally adopted more stringent
rules than the Federal rules in developing its transportation
conformity SIP. Therefore, it would be unreasonable to discredit the
agency's good faith effort in submitting the transportation conformity
SIP on time and disapprove this portion of the State's SIP. Since the
Albuquerque Environmental Health Department will be required to submit
a SIP revision in the near future to incorporate the amended portions
of the Federal transportation conformity rules, the EPA believes that
it would be reasonable to exclude the section of the local rules which
correspond to 40 CFR 51.448, from this SIP approval action. As a
result, the EPA is not taking any action on section 42.11 of the
Albuquerque/Bernalillo County rules.
C. Evaluation of Albuquerque/Bernalillo County Rules
The Albuquerque Environmental Health Department (AEHD) is the lead
air agency for SIP development, adoption, and enforcement in the
Bernalillo County carbon monoxide nonattainment area. The New Mexico
Air Quality Control Act (NMAQCA) allows, by ordinance, ``A'' class
counties (as defined in the New Mexico statute) and any municipality
within an ``A'' class county to create a municipal, county, or joint
air quality board to administer and enforce the provisions of the
NMAQCA. The City of Albuquerque and Bernalillo County have jointly
established such a board, Albuquerque/Bernalillo County Air Quality
Control Board, for administration and enforcement of NMAQCA because
Bernalillo County is an ``A'' class county. The AEHD is the regulatory
and administrative agency for implementing and enforcing the air
quality control regulations of the Board in the Bernalillo County
nonattainment area.
On December 19, 1994, the Governor of New Mexico submitted a SIP
revision on behalf of Albuquerque/Bernalillo County in compliance with
40 CFR Part 51 Subpart T that contained the transportation conformity
and its consultation rule. The SIP revision was adopted by the
Albuquerque/Bernalillo County Air Quality Control Board on November 9,
1994, after appropriate public participation and interagency
consultation. The AEHD has adopted the Federal transportation
conformity rules in verbatim form except for the interagency
consultation rule which has been developed in the manner described
earlier in this notice. The AEHD has made limited changes and has added
additional definitions, where necessary, to create consistency with the
local processes, procedures, and area-specific terms or names. These
minor modifications and additional clarifications do not in any way
alter the effect, implementation and enforcement of the conformity
rules in the Bernalillo County nonattainment area. The EPA has
determined that AEHD's transportation conformity rule meets the Federal
requirements except as provided in section II(B) of this notice, and
EPA is approving this SIP revision.
III. Final Approval Action
The EPA is approving the transportation conformity SIP revision for
the Albuquerque/Bernalillo County nonattainment area except for section
[[Page 56243]]
42.11. The EPA is not taking any action on section 42.11 of the
Albuquerque/Bernalillo County rules as discussed in detail in section
II(B) of this notice. The EPA has evaluated this SIP revision and has
determined that the Albuquerque/Bernalillo County Air Quality Control
Board has fully adopted the provisions of the Federal transportation
conformity rules in accordance with 40 CFR Part 51 Subpart T. The
appropriate public participation and comprehensive interagency
consultations have been undertaken during development and adoption of
the rules by the Albuquerque Environmental Health Department at the
local level.
The EPA is publishing this action without prior proposal because
the EPA views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective on January 8, 1996, unless adverse or critical comments are
received by December 8, 1995. If the EPA receives such comments, this
action will be withdrawn before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on this action serving as a proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting on this action should do so at this time. If
no such comments are received on this action, the public is advised
that this action will be effective January 8, 1996.
The EPA has reviewed this transportation conformity SIP for
conformance with the provisions of the CAA and has determined that this
action conforms to those requirements.
IV. Administrative Requirements
A. Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
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, under 5 U.S.C. 605(b), the EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities (see 46 FR 8709). Small entities include small businesses,
small not-for-profit enterprises, and governmental entities with
jurisdiction over populations of less than 50,000.
Nothing in this action shall be construed as permitting, allowing,
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
SIP approvals under section 110 and subchapter I, part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on small entities. Moreover, due to the
nature of the Federal-State relationship under the CAA, preparation of
a regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of State action. The CAA forbids EPA from
basing its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section
7410(a)(2). The Office of Management and Budget has exempted this
action from review under Executive Order 12866.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 8, 1996. Filing a petition for
reconsideration of this final rule by the Regional Administrator does
not affect the finality of this rule for purposes of judicial review;
nor does it extend the time within which a petition for judicial review
may be filed, or postpone the effectiveness of this rule. This action
may not be challenged later in proceedings to enforce its requirements
(see section 307(b)(2)).
B. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this SIP or plan revision approved in this
action, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 175A of the
Clean Air Act. The rules and commitments approved in this action may
bind State, local, and tribal governments to perform certain actions
and also require the private sector to perform certain duties. To the
extent that the rules and commitments being approved by this action
will impose or lead to the imposition of any mandate upon the State,
local, or tribal governments, either as the owner or operator of a
source or as a regulator, or would impose or lead to the imposition of
any mandate upon the private sector, EPA's action will impose no new
requirements; such sources are already subject to these requirements
under State law. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Therefore, EPA has determined that this final action does not include a
mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
C. Procedural Information
This action has been classified as a Table Three 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 Ms. Mary Nichols, Assistant
Administrator for Air and Radiation. The Office of Management and
Budget has exempted this regulatory action from Executive Order 12866
review.
D. Executive Order 12866
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the
EPA must determine whether the regulatory action is ``significant'',
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. It has been determined
that this rule is not a ``significant regulatory action'' under the
terms of Executive Order 12866, and is therefore not subject to OMB
review.
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Environmental protection,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Transportation conformity,
Transportation-air quality planning, Volatile organic compounds.
Dated: October 20, 1995.
A. Stanley Meiburg,
Acting Regional Administrator.
Title 40, part 52, of the Code of Federal Regulations is amended to
read as follows:
[[Page 56244]]
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart GG--New Mexico
2. Section 52.1620 is amended by adding paragraph (c)(59) to read
as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
(59) A revision to the New Mexico State Implementation Plan for
Transportation Conformity: Albuquerque/Bernalillo County Air Quality
Control Regulation (AQCR) No. 42 ``Transportation Conformity'' as
adopted on November 9, 1994 and filed with the State Records and
Archives Center on December 16, 1994, was submitted by the Governor on
December 19, 1994. No action is taken on AQCR No. 42 Section 11.
(i) Incorporation by reference.
(A) Albuquerque/Bernalillo County Air Quality Control Regulation
(AQCR) No. 42 ``Transportation Conformity'' as adopted on November 9,
1994 and filed with the State Records and Archives Center on December
16, 1994. No action is taken on AQCR No. 42 Section 11.
(ii) Additional material. None.
[FR Doc. 95-27682 Filed 11-7-95; 8:45 am]
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