[Federal Register Volume 64, Number 157 (Monday, August 16, 1999)]
[Rules and Regulations]
[Pages 44417-44420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21002]
-----------------------------------------------------------------------
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]]
Cause or contribute to any new violation of any standard
in any area;
Interfere with provisions in the applicable SIP for
maintenance of any standard;
Increase the frequency or severity of any existing
violation of any standard in any area; or
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 (NO2), ozone
(O3), particulate matter (PM), and sulfur dioxide
(SO2). 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
A. 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.
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. 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.
C. 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.
D. 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).
E. 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.
F. 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).
G. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in 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. 99-21002 Filed 8-13-99; 8:45 am]
BILLING CODE 6560-50-P
