[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48409-48412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23264]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA 25-1-6964a; FRL-5449-7]
Approval and Promulgation of Implementation Plans for Louisiana:
General Conformity Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action conditionally approves a revision to the Louisiana
State Implementation Plan (SIP) that contains regulations for
implementing and enforcing the general conformity rules which the EPA
promulgated on November 30, 1993. Specifically, the general conformity
rules enable the Louisiana Department of Environmental Quality (LDEQ)
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 SIP's submitted
for the nonattainment and maintenance areas in Louisiana. 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 will
act on the State's transportation conformity SIP under a separate
Federal Register document.
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 notice.
DATES: This action is effective on November 12, 1996, unless adverse or
critical comments are received by October 15, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
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 and Radiation Docket and Information Center, Environmental
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460
Air Quality Division, Louisiana Department of Environmental Quality,
7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810, Telephone:
(504) 765-0219
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
[[Page 48410]]
Avenue, Dallas, Texas 75202, telephone (214) 665-7247.
SUPPLEMENTARY INFORMATION:
I. Background
Conformity provisions first appeared in the Act as amended in 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 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 the 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
are codified under 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
A. Evaluation of the State Rules
In response to the Federal Register notice of November 30, 1993,
the Governor of Louisiana submitted a SIP revision which included the
general conformity rules adopted by the Louisiana Department of
Environmental Quality. The general conformity SIP revision 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 Louisiana general conformity SIP revision.
On November 10, 1994, the Governor of Louisiana submitted a SIP
revision in compliance with 40 CFR Part 51 Subpart W that contained the
State general conformity rules. The SIP revision was adopted by the
State and published in the Louisiana Register on November 20, 1994,
after appropriate public participation and interagency consultation.
The LDEQ adopted 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 nonattainment and maintenance areas except for the
provision discussed in section II(B) of this notice.
B. Conditions and Commitments
Review of the State rules indicated that section 1405(B) of the
State rule allows the State Administrative authority to approve changes
to the emissions estimating methods and use of new or modified models
in the air quality and conformity analyses. This is contrary to 40 CFR
51.859 of the EPA general conformity rule which recommends use of the
EPA approved procedures and models, and retains the EPA's approval
authority for any deviation from the recommended provisions. In
addition, section 1411 of the State rule which contains identical
requirements as EPA's 40 CFR 51.859, requires approval of the EPA
Regional Administrator for use of the modified emissions estimating
methods and models if they are deviations from the EPA's recommended
procedures or models. Therefore, the EPA can not approve this SIP
revision unless this inconsistency has been corrected in section
1405(B) of the State's general conformity rule.
After the EPA's consultation with the State, the State has agreed
to modify section 1405(B) of its conformity rule by removing the
inconsistency discussed above. In a letter dated December 5, 1995, from
the Assistant Secretary of LDEQ to the EPA Region 6 Administrator, the
State commits to make the necessary correction in section 1405(B) and
submit a SIP revision to the EPA within twelve (12) months from the
date of this document, September 15, 1997. The EPA accepted this
commitment from the State because the EPA believes that the State has
shown a good faith effort in complying with the SIP requirements and
this minor inconsistency was not intentionally added to the
regulations. The State's commitment letter will allow the EPA to
proceed with a conditional approval while the State is preparing the
appropriate corrections for submission of a SIP revision.
The EPA has determined that LDEQ's general conformity rule meets
the Federal requirements except the provisions of section 1405(B) as
cited above. Therefore, the EPA is conditionally approving this SIP
revision until the State makes the appropriate corrections and submits
a SIP revision before the date specified above. If the State does not
submit a SIP revision for correction of section 1405(B) by the date
specified in section II(B) of this notice, this conditional approval
will automatically be converted to a disapproval on the date specified
above and as further discussed in section III of this notice.
III. Final Action
The EPA is conditionally approving a revision to the Louisiana
general conformity SIP revision based on the rationale elaborated in
this action. The general conformity rule is applicable to all
nonattainment and maintenance areas. The EPA has evaluated this SIP
revision and has determined that the State has fully adopted the
provisions of the Federal general conformity rules in accordance with
40 CFR Part 51 Subpart W, with one exception as noted in section II of
this notice. The State has undertaken appropriate public participation
and comprehensive interagency consultations during development and
adoption of the rules at the local level.
The EPA is approving this SIP revision, based on the State's
December 5, 1995, commitment letter and on the condition that the State
will adopt and submit a revised general conformity rule which will
contain the corrections detailed in this notice (see section II) within
twelve months of this final approval action, but not later than
September 15, 1997. If the State fails to submit a SIP revision, as
committed in the letter of December 5, 1995, for correction of section
1405(B) by September 15, 1997, this conditional approval under section
110(k) will
[[Page 48411]]
automatically be converted to a disapproval on that date and the
sanctions clock will begin. If the State does not submit a SIP, and the
EPA does not approve the SIP on which the disapproval was based within
18 months of the disapproval, the EPA must impose the sanctions under
section 179 of the Act.
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 November 12, 1996, unless adverse or critical comments
concerning this action are submitted and postmarked by October 15,
1996. 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 November 12, 1996.
IV. Administrative Requirements
A. 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 (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.
Conditional 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, the EPA
certifies 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 the 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.
If conditional approval is converted to a disapproval under Section
110(k), based on the State's failure to meet the commitment, it will
not affect any existing State requirements applicable to small
entities. Federal disapproval of the State submittal does not affect
its State-enforceability. Moreover, the EPA's disapproval of the
submittal does not impose a new Federal requirement. Therefore, the EPA
certifies that such a disapproval will not have a significant impact on
a substantial number of small entities because it does not remove
existing State requirements, nor does it substitute a new Federal
requirement.
B. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995, signed into law on March 22, 1995, the 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 sections 110 and 176 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, the 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, the 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. 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 today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
D. 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.
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 November 12, 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)).
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.
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, Volatile organic compounds.
[[Page 48412]]
Dated: July 24, 1996.
Allyn M. Davis,
Acting Regional Administrator.
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. 7401-7671q.
Subpart T--Louisiana
2. Section 52.970 is amended by adding paragraph (c)(67) to read as
follows:
Sec. 52.970 Identification of plan.
* * * * *
(c) * * *
(67) A revision to the Louisiana State Implementation Plan for
General Conformity: LAC 33:III. CHAPTER 14. SUBCHAPTER A ``Determining
Conformity of General Federal Actions to State or Federal
Implementation Plan'' as adopted by the Louisiana Department of
Environmental Quality Secretary and published in the Louisiana
Register, Vol. 20, No. 11, 1268, November 20, 1994, was submitted by
the Governor on November 10, 1994.
(i) Incorporation by reference.
(A) Louisiana General Conformity: LAC 33:III. CHAPTER 14.
SUBCHAPTER A ``Determining Conformity of General Federal Actions to
State or Federal Implementation Plan'' as adopted by the Louisiana
Department of Environmental Quality Secretary and published in the
Louisiana Register, Vol. 20, No. 11, 1268, November 20, 1994.
3. Section 52.994 is added to read as follows:
Sec. 52.994 Conditional approvals.
(a) General Conformity. A letter, dated December 5, 1995, from
Assistant Secretary of the Louisiana Department of Environmental
Quality to the EPA Regional Administrator, commits the State to make
corrections in section 1405(B) for restoring the EPA's authority in
certain sections of the rule. Specifically, the letter states that:
The State of Louisiana submitted a State Implementation Plan
(SIP) for General Conformity on November 30, 1994. The SIP review
conducted by EPA General Counsel identified an inconsistency with
the federal rule.
EPA's General Counsel advised that under 40 CFR 51.859 and LAC
33:III.1411, administrative authority belongs to EPA; and clarifies
that all requirements of Section 51.859 (State's 1411) are
applicable to any analyses required in 40 CFR 51.859 (State's LAC
33:III.1405). To clarify that requirements of Section 1411 are
applicable to Section 1405 and to correct the inconsistency, the
sentence cited in EPA's review will be changed to read as follows:
`Emissions from federal actions must be determined using methods
described in Section 1411 of this Subchapter.' Since Section 1411
gives administrative authority to EPA regional administrator, no
further clarification will be needed.
The State commits to make the above rule change within one year
from the Federal Register publication of final notice of conditional
approval to Louisiana's General Conformity SIP.
(b) (reserved)
[FR Doc. 96-23264 Filed 9-12-96; 8:45 am]
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