99-30232. Approval and Promulgation of Air Quality Implementation Plans; States of Colorado, Utah and Wyoming; General Conformity  

  • [Federal Register Volume 64, Number 223 (Friday, November 19, 1999)]
    [Rules and Regulations]
    [Pages 63206-63209]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-30232]
    
    
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    ENVIRONMENTAL PROTECTION AGENCY
    
    40 CFR Part 52
    
    [CO-001-0035a; UT-001-0023a; WY-001-0004a; FRL-6471-4]
    
    
    Approval and Promulgation of Air Quality Implementation Plans; 
    States of Colorado, Utah and Wyoming; General Conformity
    
    AGENCY: Environmental Protection Agency (EPA).
    
    ACTION: Direct final rule.
    
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    SUMMARY: EPA is approving General Conformity SIP revisions submitted by 
    the Governor of Wyoming on March 14, 1995; submitted by the Governor of 
    Utah on February 12, 1996; and submitted by the Governor of Colorado on 
    September 16, 1997. These SIP revisions were submitted to meet a 
    requirement of section 176(c) of the Clean Air Act.
    
    DATES: This direct final rule is effective on January 18, 2000, without 
    further notice, unless EPA receives adverse comments by December 20, 
    1999. If adverse comment is received, EPA 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: Written comments may be mailed to: Richard R. Long, 
    Director, Air and Radiation Program, Mailcode 8P-AR, United States 
    Environmental Protection Agency, Region VIII, 999
    
    [[Page 63207]]
    
    18th Street, Suite 500, Denver, Colorado 80202-2466.
        Copies of the documents relevant to this action are available for 
    public inspection during normal business hours at the following 
    offices:
    
    United States Environmental Protection Agency, Region VIII, Air and 
    Radiation Program, 999 18th Street, Suite 500, Denver, Colorado 80202-
    2466; and,
    United States Environmental Protection Agency, Air and Radiation Docket 
    and Information Center, 401 M Street, SW, Washington, DC 20460.
    
        Copies of the State documents relevant to this action are available 
    for public inspection at:
    
    Colorado Air Pollution Control Division, Colorado Department of Public 
    Health and Environment, 4300 Cherry Creek Drive South, Denver, 
    Colorado, 80246-1530.
    Utah Division of Air Quality, Department of Environmental Quality, 150 
    North 1950 West, Salt Lake City, Utah, 84114-4820.
    Air Quality Division, Department of Environmental Quality, 122 West 
    25th Street, Cheyenne, Wyoming, 82002.
    
    FOR FURTHER INFORMATION CONTACT: Jeff Houk, Air and Radiation Program, 
    Mailcode 8P-AR, United States Environmental Protection Agency, Region 
    VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466; 
    Telephone number: (303) 312-6446.
    
    SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,'' 
    ``our,'' or ``us'' is used, we mean EPA.
    
    I. Summary of EPA's Actions
    
        Today we are approving the General Conformity SIP revisions 
    submitted by the Governor of Wyoming on March 14, 1995; submitted by 
    the Governor of Utah on February 12, 1996; and submitted by the 
    Governor of Colorado on September 16, 1997. Our approval means that the 
    SIP criteria and procedures will govern future general conformity 
    determinations instead of the Federal rules at 40 CFR part 93, subpart 
    B.
    
    II. Evaluation of the States' Submittals
    
        Section 110(k) of the Act addresses our actions on submissions of 
    SIP revisions. The Act also requires States to observe certain 
    procedures in developing SIP revisions. Section 110(a)(2) of the Act 
    requires that each SIP revision be adopted after reasonable notice and 
    public hearing. We have evaluated the States' submissions and 
    determined that the necessary procedures were followed. We found that 
    Wyoming's SIP revision was administratively and technically complete in 
    a letter to the Governor dated May 26, 1995. Utah's SIP revision became 
    complete by operation of law on April 12, 1996. Colorado's SIP revision 
    became complete by operation of law on November 15, 1997.
        The States' General Conformity SIP revisions must contain criteria 
    and procedures that are at least as stringent as those in the Federal 
    rule. States may incorporate the Federal rule into State rules.
    
    Wyoming's New Air Quality Standards Regulation Section 32
    
        We are approving Wyoming's General Conformity SIP revision because 
    section 32 includes every requirement of the federal rule except for 40 
    CFR 93.151 (``State Implementation Plan (SIP) revision''), which 
    discusses how the Federal and State conformity rules interact. State 
    rules govern conformity determinations once we approve them. 40 CFR 
    93.151 has the same effect whether or not it is incorporated into the 
    State SIP because it specifies that any part of the Federal rule not 
    included in EPA-approved State rules remains in effect at the federal 
    level.
        Wyoming also added a definition to its rule that wasn't included in 
    the Federal rule, for ``CAA'' (Clean Air Act), and slightly modified 
    the definitions for ``Milestone,'' and ``Nonattainment Area (NAA).'' We 
    agree with these minor changes to the Federal rule language.
    
    Utah's General Conformity SIP Revision
    
        We are approving Utah's General Conformity SIP, which simply adopts 
    the Federal rule into State rules. It was adopted in three separate 
    actions: (1) A new section XXII to the SIP, General Conformity; (2) a 
    new State rule, R307-2-30, incorporating this section of the SIP into 
    State rules, and (3) a new rule R307-19, formally incorporating the 
    Federal rule into State rules.
        The effective date for the Federal rule cited in the State rule and 
    the SIP (November 30, 1992) is incorrect. The Federal rule took effect 
    on January 31, 1994. This error does not affect the applicability or 
    the approvability of Utah's SIP.
    
    Colorado's revisions to its Regulation No. 10, ``Criteria for Analysis 
    of Conformity''
    
        We are approving these revisions, which incorporate 40 CFR part 51, 
    subpart W, and 40 CFR 6.303 into the State rule. Colorado should have 
    incorporated the Federal conformity rule (40 CFR part 93, subpart B) 
    rather than the General Conformity SIP requirements of 40 CFR part 51, 
    subpart W. However, these two regulations are identical except for the 
    conformity SIP requirement itself (40 CFR 51.851(a)), which no longer 
    applies because the State has submitted its SIP.
        Colorado also incorporated changes that we made to 40 CFR part 6 at 
    the time we finalized our conformity rule. 40 CFR part 6 contains 
    regulations to ensure that our actions meet the requirements of the 
    National Environmental Policy Act of 1969 and the Council on 
    Environmental Quality's implementing regulations of November 29, 1978 
    (43 FR 55978). We revised 40 CFR 6.303 to reference the general 
    conformity requirements and to state that our actions must meet these 
    requirements. We don't require states to incorporate these requirements 
    into general conformity SIPs, but they can.
    
    III. Background on our General Conformity Requirements
    
        The SIPs we are approving today were submitted to meet a 
    requirement of Clean Air Act section 176(c), which spells out the Act's 
    conformity requirements and directs each State to submit conformity 
    SIPs. Under section 176(c), ``no Federal department, agency, or 
    instrumentality shall engage in, support in any way or provide 
    financial assistance for, license or permit or approve any activity 
    which does not conform to a SIP that has been approved or promulgated 
    pursuant to the Act.'' This section defines conformity as compliance 
    with the SIP's purpose of attaining the National Ambient Air Quality 
    Standards, and states that federal activities will not cause or 
    contribute to a new violation of any standard in any area, increase the 
    frequency or severity of an existing violation of any standard in any 
    area, or delay timely attainment of a standard or any required interim 
    emission reductions or other milestones in any area.
        Section 176(c)(4)(A) requires us to issue criteria and procedures 
    for determining conformity of all Federal actions to applicable SIPs. 
    40 CFR part 93, subpart A spells out criteria and procedures for 
    determining conformity of Federal actions related to transportation 
    projects funded or approved under Title 23 U.S.C. or the Federal 
    Transit Act. 40 CFR part 93, Subpart B (``Determining Conformity of 
    General Federal Actions to State or Federal Implementation Plans'') 
    spells out criteria and procedures for determining conformity of all 
    other Federal actions. These are the requirements that we are acting on 
    with
    
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    respect to the State SIPs in this approval.
    
    IV. Final Action
    
        In this action, EPA is approving the General Conformity SIP 
    revisions submitted by the Governor of Wyoming on March 14, 1995; 
    submitted by the Governor of Utah on February 12, 1996; and submitted 
    by the Governor of Colorado on August 19, 1998.
        EPA is publishing this action without prior proposal because the 
    Agency views this as a noncontroversial amendment and anticipates no 
    adverse comments. However, in the proposed rules section of this 
    Federal Register publication, we are publishing a separate document 
    that will serve as the proposal to approve the SIP revision should 
    adverse comments be filed. This rule will be effective January 18, 
    2000, without further notice unless the Agency receives adverse 
    comments by December 20, 1999.
        If EPA receives such comments, then we will publish a timely 
    withdrawal of the direct final rule informing the public that the rule 
    will not take effect. All public comments received will then be 
    addressed in a subsequent final rule based on the proposed rule. The 
    EPA will not institute a second comment period on this rule. Any 
    parties interested in commenting on this rule should do so at this 
    time. If no such comments are received, the public is advised that this 
    rule will be effective on January 18, 2000, and no further action will 
    be taken on the proposed rule.
    
    Administrative Requirements
    
    A. Executive Order 12866
    
        The Office of Management and Budget (OMB) has exempted this 
    regulatory action from Executive Order (E.O.) 12866, entitled 
    ``Regulatory Planning and Review.''
    
    B. Executive Orders 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.
        On August 4, 1999, President Clinton issued a new executive order 
    on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),) 
    which will take effect on November 2, 1999. In the interim, the current 
    Executive Order 12612, (52 FR 41685 (October 30, 1987),) on federalism 
    still applies. This rule will not have a substantial direct effect on 
    States, on the relationship between the national government and the 
    States, or on the distribution of power and responsibilities among the 
    various levels of government, as specified in Executive Order 12612. 
    The rule affects only three states, and does not alter the relationship 
    or the distribution of power and responsibilities established in the 
    Clean Air Act.
    
    C. Executive Order 13045
    
        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.
        This rule is not subject to E.O. 13045 because it does not involve 
    decisions intended to mitigate environmental health or safety risks.
    
    D. 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, E.O. 13084 requires EPA to develop an effective 
    process permitting elected 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
    
        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).
    
    F. Unfunded Mandates
    
        Under section 202 of the Unfunded Mandates Reform Act of 1995 
    (``Unfunded Mandates Act''), signed
    
    [[Page 63209]]
    
    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.
        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 
    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.
    
    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. 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. A major rule cannot 
    take effect until 60 days after it is published in the Federal 
    Register. This rule is not a ``major'' rule as defined by 5 U.S.C. 
    804(2).
    
    H. National Technology Transfer and Advancement Act
    
        Section 12 of the National Technology Transfer and Advancement Act 
    (NTTAA) of 1995 requires Federal agencies to evaluate existing 
    technical standards when developing a new regulation. To comply with 
    NTTAA, EPA must consider and use ``voluntary consensus standards'' 
    (VCS) if available and applicable when developing programs and policies 
    unless doing so would be inconsistent with applicable law or otherwise 
    impractical.
        The EPA believes that VCS are inapplicable to this action. Today's 
    action does not require the public to perform activities conducive to 
    the use of VCS.
    
    I. 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 January 18, 2000. 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, Incorporation by 
    reference, Intergovernmental relations, Reporting and recordkeeping 
    requirements.
    
        Dated: October 13, 1999
    Jack W. McGraw,
    Acting Regional Administrator, Region VIII.
    
        Chapter I, title 40, parts 52 and 81 of the Code of Federal 
    Regulations are 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 G--Colorado
    
        2. Section 52.320 is amended by adding paragraph (c)(85) to read as 
    follows:
    
    
    Sec. 52.320  Identification of plan.
    
    * * * * *
        (c) * * *
        (85) On September 16, 1997, the Governor of Colorado submitted 
    revisions to Regulation No. 10 ``Criteria for Analysis of Conformity'' 
    that incorporate the General Conformity requirements of 40 CFR part 51, 
    Subpart W into State regulation.
        (i) Incorporation by reference.
        (A) Regulation No. 10 ``Criteria for Analysis of Conformity'', 5 
    CCR 1001-12, as adopted on October 17, 1996, effective December 30, 
    1996.
    
    Subpart TT--Utah
    
        3. Section 52.2320 is amended by adding paragraph (c)(42) to read 
    as follows:
    
    
    Sec. 52.2320  Identification of plan.
    
    * * * * *
        (c) * * *
        (42) On February 12, 1996, the Governor of Utah submitted revisions 
    submitted revisions to the SIP that incorporate the General Conformity 
    requirements of 40 CFR part 93, subpart B into the SIP and State 
    regulation.
        (i) Incorporation by reference.
        (A) UACR R307-2-30, Section XXII, General Conformity, as adopted on 
    October 4, 1995, effective October 12, 1995.
        (B) UACR R307-19, General Conformity, as adopted on October 4, 
    1995, effective October 12, 1995.
    
    Subpart ZZ--Wyoming
    
        4. Section 52.2620 is amended by adding paragraph (c)(28) to read 
    as follows:
    
    
    Sec. 52.2620  Identification of plan.
    
    * * * * *
        (c) * * *
        (28) On March 14, 1995, the Governor of Wyoming submitted revisions 
    to the SIP that incorporate the General Conformity requirements of 40 
    CFR part 93, Subpart B into State regulation.
        (i) Incorporation by reference.
        (A) Section 32 of the Wyoming Air Quality Standards, ``Conformity 
    of General Federal Actions to State Implementation Plans,'' effective 
    February 13, 1995.
    
    [FR Doc. 99-30232 Filed 11-18-99; 8:45 am]
    BILLING CODE 6560-50-U
    
    
    

Document Information

Effective Date:
1/18/2000
Published:
11/19/1999
Department:
Environmental Protection Agency
Entry Type:
Rule
Action:
Direct final rule.
Document Number:
99-30232
Dates:
This direct final rule is effective on January 18, 2000, without further notice, unless EPA receives adverse comments by December 20, 1999. If adverse comment is received, EPA 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.
Pages:
63206-63209 (4 pages)
Docket Numbers:
CO-001-0035a, UT-001-0023a, WY-001-0004a, FRL-6471-4
PDF File:
99-30232.pdf
CFR: (3)
40 CFR 52.320
40 CFR 52.2320
40 CFR 52.2620