[Federal Register Volume 63, Number 47 (Wednesday, March 11, 1998)]
[Rules and Regulations]
[Pages 11833-11836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5847]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TX 62-1-7271a; FRL-5971-7]
Approval and Promulgation of Implementation Plan for Texas:
General Conformity Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action approves a revision to the Texas State
Implementation Plan (SIP) that contains regulations for implementing
and enforcing the general conformity rules which the EPA promulgated on
November 30, 1993. Specifically, Texas' adoption of the general
conformity rules enables the Texas Natural Resource Conservation
Commission (TNRCC) to review conformity of all Federal actions (see 40
CFR part 51, subpart W--Determining Conformity of General Federal
Actions to State or Federal Implementation Plans) with the control
strategy SIPs submitted for the nonattainment and maintenance areas in
Texas. This approval action is intended to streamline the conformity
process and allow direct consultation among agencies at the local
levels. The Federal actions by the Federal Highway Administration and
Federal Transit Administration (under 23 U.S.C. or the Federal Transit
Act) are covered by the transportation conformity rules under 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 EPA
approved the Texas transportation conformity SIP on November 8, 1995.
The EPA is approving this SIP revision under sections 110(k) and
176 of the Clean Air Act (the Act). The rationale for the approval and
other information are provided in this document.
DATES: This action will become effective on May 11, 1998, unless notice
is postmarked by April 10, 1998 that someone wishes to submit adverse
or critical comments. If the effective date is delayed, timely notice
will be published in the Federal Register.
ADDRESSES: Written comments should be addressed to Mr. Thomas H. Diggs,
Chief, Air Planning Section, at the EPA Region 6 address listed. Copies
of the Texas General Conformity SIP and other relevant information are
available for inspection during normal business
[[Page 11834]]
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 Policy and Regulations Division, Texas Natural Resource
Conservation Commission, 12124 Park Circle, Austin, Texas 78753,
Telephone: (512) 239-0800.
Documents which are incorporated by reference are available for
public inspection at Air and Radiation Docket and Information Center,
U.S. Environmental Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460.
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 Act, as amended, in
1977 (Pub. L. 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 that has
been approved or promulgated for the nonattainment or maintenance
areas.
The 1990 Amendments of the Act 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 Act 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 Act requires EPA to promulgate criteria and procedures for
determining conformity of all other Federal actions in the
nonattainment or maintenance areas (actions other than those under
Title 23 U.S.C. or the Federal Transit Act) to a SIP. The criteria and
procedures developed for this purpose are called ``general conformity''
rules. The rules pertaining to actions under Title 23 U.S.C. or the
Federal Transit Act were published in a separate Federal Register
notice on November 24, 1993 (see 58 FR 62188). The EPA published the
final general conformity rules on November 30, 1993 (58 FR 63214) and
codified them at 40 CFR part 51, subpart W--Determining Conformity of
General Federal Actions to State or Federal Implementation Plans. The
general conformity rules require the States and local air quality
agencies (where applicable) to adopt and submit a general conformity
SIP revision to the EPA not later than November 30, 1994.
II. Evaluation of State's Submission
In response to the Federal Register notice of November 30, 1993,
the Governor of Texas submitted a SIP revision which included the
general conformity rules adopted by the TNRCC. The State general
conformity rule is applicable to all nonattainment and maintenance
classifications under the Act. The following paragraphs present the
results of EPA's review and evaluation of the State's general
conformity SIP revision.
On November 22, 1994, the Governor of Texas submitted a SIP
revision in compliance with 40 CFR part 51, subpart W that contains the
general conformity rules. The SIP revision was adopted by the
commissioners on November 16, 1994, after appropriate public
participation and interagency consultation. The EPA could not approve
this revision based on the evaluation results described below.
The EPA's preliminary review indicated that sections
101.30(c)(3)(D), 101.30(c)(10), and 101.30(I)(2)(A)(ii) of the State
rule were more stringent than the Federal rules. The general conformity
rule, 40 CFR 51.851(b), requires the State conformity rule contain
criteria and procedures that are no less stringent than the Federal
rule. In addition, the conformity rule allows the State to establish
more stringent conformity criteria and procedures only if they apply
equally to non-Federal as well as Federal entities. The State had not
selected this option and the State rule was only applicable to the
Federal actions.
Section 101.30(c)(3)(D) allowed exemption of individual actions
which implement a decision to conduct or carry out a program that has
been found to conform to the SIP (such as prescribed burning actions
which are consistent with a conforming land management plan) only if
such land management plan has been found to conform within the past
five years. In contrast, EPA's regulation (see 40 CFR 51.853(c)(4))
does not place a time limit on the conformity determination for the
project unless the conformity determination on the plan lapses as a
result of a continuous program not having been implemented within a
reasonable time.
Section 101.30(c)(10) contained a phrase that made the State rule
inconsistent with the Federal rule because the Federal rule did not
include any additional qualifying phrase concerning the presumed de
minimis requirements. Inclusion of this phrase made this section
contradictory to other sections.
Section 101.30(I)(2)(A)(ii) allowed conformity analyses (for which
the analysis was begun during the grace period or no more than three
years before the Federal Register notice of availability of the latest
emission model) to continue to use the previous version of the model
specified by EPA only if a final conformity determination was made
within three years of such analysis. EPA's rule, 40 CFR
51.859(b)(1)(ii), does not include a time limit on the use of the model
analyses begun during or just before the grace period.
Since the State's rule is only applicable to the Federal actions,
EPA could not approve the State's general conformity SIP as submitted
by the Governor on November 22, 1994, because the State's rule was more
stringent than the Federal requirements. After EPA's consultation with
the State, the State of Texas has reconsidered its original SIP
submission and agreed with the EPA's assessment as discussed above.
Subsequently, the Governor of Texas submitted a revised SIP on August
21, 1997, which removed the inconsistencies described above. The
revised SIP was adopted by the TNRCC on July 9, 1997. The SIP
revisions, submitted on November 22, 1994, and August 21, 1997, adopt
the Federal general conformity rules verbatim with the exception of
limited changes and 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 Federal conformity requirements in the State. The EPA has
determined that Texas' general conformity rule, as submitted by the
Governor on November 22, 1994, and August 21, 1997, meets the Federal
requirements
[[Page 11835]]
and therefore, EPA is approving this SIP revision.
III. Final Action
The EPA is approving a revision to the State of Texas SIP which
contains general conformity regulations as submitted by the Governor of
Texas on November 22, 1994 and August 21, 1997. The State general
conformity rule is applicable to all nonattainment and maintenance
classifications in the State. The EPA has evaluated these SIP revisions
and has determined that TNRCC has fully adopted the provisions of the
Federal general conformity rules in accordance with 40 CFR part 51,
subpart W. The appropriate public participation and comprehensive
interagency consultations have been undertaken during development and
adoption of these rules by the TNRCC 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 May 11, 1998, unless adverse or critical comments concerning
this action are submitted and postmarked by April 10, 1998. 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 concerning this action
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
May 11, 1998.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Regulatory Flexibility
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 (see 5 U.S.C. 603 and
604). Alternatively, 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.
The 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 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 Act, preparation of
a regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of State action. The Act 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).
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.
C. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, the 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 private sector, of $100
million or more. Under section 205, the 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 the 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 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.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, the EPA submitted 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
General Accounting Office 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).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 11, 1998. 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
General conformity, Hydrocarbons, Incorporation by reference,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Volatile organic
compounds.
Dated: February 9, 1998.
Jerry Clifford,
Acting Regional Administrator, Region 6.
Part 52, 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 SS--Texas
2. Section 52.2270 is amended by adding paragraph (c)(106) to read
as follows:
Sec. 52.2270 Identification of plan.
* * * * *
(c) * * *
(106) A revision to the Texas State Implementation Plan: Regulation
30 TAC Chapter 101 ``General Rules'', Section 101.30 ``Conformity of
General and State Actions to State
[[Page 11836]]
Implementation Plans'' as adopted by the Texas Natural Resource
Conservation Commission (TNRCC) on November 16, 1994, and July 9, 1997,
was submitted by the Governor on November 22, 1994, and August 21,
1997, respectively.
(i) Incorporation by reference.
(A) The Texas Natural Resource Conservation Commission (TNRCC)
Regulation 30, TAC Chapter 101 ``General Rules'', Section 101.30
``Conformity of General and State Actions to State Implementation
Plans'' as adopted by TNRCC on November 16, 1994, and July 9, 1997.
(B) TNRCC orders Docket No. 94-0709-SIP and 97-0143-RUL as passed
and approved on November 16, 1994, and July 9, 1997, respectively.
* * * * *
[FR Doc. 98-5847 Filed 3-10-98; 8:45 am]
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