[Federal Register Volume 60, Number 187 (Wednesday, September 27, 1995)]
[Rules and Regulations]
[Pages 49764-49767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23841]
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[[Page 49765]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AK10-1-7022a; FRL-5287-5]
Approval and Promulgation of Implementation Plans: Alaska
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Clean Air Act (CAA) requires the states to promulgate
conformity rules to ensure that Federal actions conform to the
appropriate State Implementation Plan (SIP). Conformity to a SIP is
defined in the CAA, as amended in 1990, as meaning conformity to a
SIP's purpose of eliminating or reducing the severity and number of
violations of the National ambient air quality standards (NAAQS) and
achieving expeditious attainment of such standards. The Federal agency
responsible for the action is required to determine if its actions
conform to the applicable SIP. Environmental Protection Agency (EPA)
approves most of Alaska's General conformity rules and Transportation
conformity rules received on December 9, 1994 from the Alaska
Department of Environmental Conservation (ADEC) and is taking no action
on the remaining small portion of the submittal.
DATES: This final rule is effective on November 27, 1995 unless adverse
or critical comments are received by October 27, 1995. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, Air & Radiation Branch (AT-082), EPA, AK10-1-7022, 1200
Sixth Avenue, Seattle, Washington 98101.
Documents which are incorporated by reference are available for
public inspection at the Air and Radiation Docket and Information
Center, Environmental Protection Agency, 401 M Street, SW., Washington,
DC 20460.
Copies of material submitted to EPA may be examined during normal
business hours at the following locations: EPA, Region 10, Air &
Radiation Branch, 1200 Sixth Avenue (AT-082), Seattle, Washington
98101, and Alaska Department of Environmental Conservation, 410
Willoughby, suite 105, Juneau, AK 99801.
FOR FURTHER INFORMATION CONTACT: Kelly Huynh, Air & Radiation Branch
(AT-082), EPA, Seattle, Washington 98101, (206) 553-1059.
SUPPLEMENTARY INFORMATION:
I. Background
The CAA section 176(c), as amended (42 U.S.C. 7401 et seq.),
requires states to submit to EPA revisions to their implementation
plans establishing transportation and general conformity criteria and
procedures. EPA regulation requires the states to submit SIP revisions
by November 25, 1994 and November 30, 1994. These conformity rules are
to ensure that all Federal actions conform to the appropriate SIP
developed pursuant to section 110 and part D of the CAA. Conformity to
a SIP is defined in the CAA, as amended in 1990, as meaning conformity
to a SIP's purpose of eliminating or reducing the severity and number
of violations of the National ambient air quality standards (NAAQS) 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 ties conformity to attainment and maintenance of the NAAQS.
Thus, Federal actions must not adversely affect the timely attainment
and maintenance of the NAAQS or emission reduction progress plans
leading to attainment. The Federal agency responsible for the action is
required to determine if its actions conform to the applicable SIP. The
Alaska conformity approved portions establish the criteria and
procedures governing the determination of conformity for all Federal
actions in the state of Alaska, including Federal highway and transit
actions (``transportation conformity''). Although EPA has concluded
that the conformity requirements apply in all areas, including
attainment areas, EPA must first complete notice and comment rulemaking
on the appropriate criteria and procedures for conformity
determinations in attainment areas before requesting the state
equivalent submittal. Therefore, the criteria and procedures
established in this rule apply only in areas that are nonattainment or
maintenance with respect to any of the criteria pollutants under the
CAA: carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2),
ozone (O3), particulate matter (PM10), and sulfur dioxide
(SO2). The rule covers direct and indirect emissions of criteria
pollutants or their precursors that are reasonably foreseeable and
caused by a Federal action.
The Alaska submittal containing both the general and transportation
conformity regulations is generally consistent with the CAA
requirements. This was accomplished largely through the incorporation
by reference of the Federal regulations as well as changes to
nonattainment plans to include the conformity requirements. The portion
of Alaska's submittal that is not being acted on is in direct
consequence to a revision of the Federal regulation. Alaska's
regulations establish procedural requirements including interagency
consultation procedures. They also require the responsible agency to
make their conformity determinations available for public review.
Notice of draft and final conformity determinations must be provided
directly to air quality regulatory agencies and to the public by
publication in a local newspaper. The conformity determination examines
the impacts of the direct and indirect emissions from the Federal
action. The regulations require the Federal action to also meet any
applicable SIP requirements and emission milestones. Each Federal
agency must determine that any actions covered by the rule conform to
the applicable SIP before the action is taken.
Specifically, Articles 5 through 9 are being acted on as part of
the Alaska SIP as well as changes to Volume II: Analysis of Problems,
Control Action of the State Air Quality Control Plan. The explanations
of these approved articles are summarized as follows unless no action
is specifically indicated:
Article 5, 18 AAC 50.620 was amended to include December 1, 1994 as
the latest date in which the Alaska SIP was amended.
Article 6 of 18 AAC 50 was amended as Reserved.
Article 7-Conformity, included many changes to sections as follows.
Section 700-Purpose, explains that the following sections are written
to comply with 40 CFR part 51, subparts T and W, and that if Federal
money is used for a project within a nonattainment or maintenance area
that it will not hinder attainment of the National ambient air quality
standards in that area.
Section 705-Coverage of 18 AAC 50.700-18 AAC 50.735, applies to
transportation plans, programs or projects within the nonattainment or
maintenance area, and all other federally-funded projects or
activities. This section defines ``responsible agency''.
[[Page 49766]]
Section 710-Transportation Conformity: Incorporation By Reference
of Federal Regulations. Most of this section is being approved as it
incorporates most of the Federal regulations directly from 40 CFR part
51. The following sections of 40 CFR part 51 are incorporated by
reference and are being approved: Sec. 51.392 (except the term
``regionally significant project'' which is defined elsewhere in the
Alaska state regulation), Sec. Sec. 51.394, 51.398, 51.400, 51.404,
51.406, 51.408, 51.410, 51.412, 51.414, 51.416, 51.418, 51.420, 51.422,
51.424, 51.426, 51.428, 51.430, 51.432, 51.434, 51.436, 51.438, 51.440,
51.442, 51.444, 51.446, 51.450, 51.452, 51.454, 51.456, 51.458, 51.460,
51.462. However, EPA is taking no action at this time on 18 AAC
50.710(27). This portion of the regulation incorporates by reference
Federal regulation 40 CFR 51.448, Transition from the interim period to
the control strategy period, as amended through December 1, 1994. Soon
after this time EPA began work to amend 40 CFR 51.448 and published the
amended section on August 7, 1995. Because a portion of the Alaska
regulation 18 AAC 50.710 adopted a section of the Federal regulation
which has subsequently been significantly revised, EPA is taking no
action on paragraph (27) of the state rule at this time. Alaska has
indicated that it will revise 18 AAC 50.710(27) in a future SIP
submittal.
Section 715-Transportation Conformity: Interagency Consultation
Procedures. This section establishes procedures for consultation
(Federal, State, and local), resolution of conflicts, including
referral to the governor when necessary, and procedures for public
review and comment. The regulation addresses the consultation procedure
elements identified under 40 CFR 50.402.
Section 720-Transportation Conformity: Public Involvement. This
section requires a public involvement process to provide opportunity
for public review and comment of the public review draft before the
agency issues a final conformity determination. This section also
establishes public hearing or meeting requirements.
Section 725-General Conformity: Incorporation by Reference of
Federal Regulations. This section incorporates the entire Federal
general conformity program into the regulation except Sec. 51.857
(Frequency of conformity determinations) and Sec. 51.860 (Mitigation of
air quality impacts) which are included in sections 730 and 735 of the
state submittal.
Section 730-General Conformity: Mitigation of Air Quality Impacts.
The regulation content is consistent with that of 40 CFR 51.860, which
requires that a commitment be made to conduct the air quality
mitigation measures if the conformity decision is based on that amount
of decreased air pollution.
Section 735-General conformity: Frequency of Conformity
Determination. The regulation content is consistent with that of 40 CFR
51.857, which requires that if a Federal action in not commenced within
five years and this has not been accounted for in the initial
conformity determination that a new determination be conducted unless
the activity is just following the natural project progression. If at
any time the project increases its emissions a new conformity
determination would need to be conducted.
18 AAC 50 was also amended to include Article 8 Reserved.
Article 9. General Provisions Section 900-Definitions, was amended
to include two new definitions; ``maintenance area'' which refers to a
previously designated nonattainment area that has been since designated
as an attainment area and ``regionally significant project'' which is a
transportation project that is on a facility serving regional
transportation needs.
II. This Action
This action approves numerous sections of Chapter 50-Air Quality
Control of the Alaska SIP. The approved sections include 18 AAC 50.620
of Article 5, Article 6-Reserved, Article 7-Conformity except section
710(27), Article 8-Reserved, and Article 9-General Provisions. EPA is
taking no action on Article 7, Section 710(27). EPA also is approving
certain portions of Volume II: Analysis of Problems; Control Actions,
which include page III.A3-5, III.B.7-1, III.C.7-1, III.I-1 through
III.I-6, III.J-1 through III.J-4.
III. Administrative Review
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., 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, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
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 any small entities affected. 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 to base its actions concerning SIPs on such grounds.
Union Electric Co. v. USEPA, 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under section 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
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
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.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal
[[Page 49767]]
Register on January 19, 1989 (54 FR 2214-2225), as revised by a July
10, 1995 memorandum from Mary Nichols, Assistant Administrator for Air
and Radiation.
The EPA is publishing this action without prior proposal because
the Agency 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 27, 1995 unless, by October 27, 1995 adverse or
critical comments are received.
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 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, the public is
advised that this action will be effective November 27, 1995.
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 November 27, 1995. 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), 42 U.S.C.
7607(b)(2).
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
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides,
Volatile organic compounds.
Note: Incorporation by reference of the Implementation Plan for
the State of Alaska was approved by the Director of the Office of
Federal Register on July 1, 1982.
Dated: August 18, 1995.
Charles Findley,
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 C--Alaska
2. Section 52.70 is amended by adding paragraph (c)(24) to read as
follows:
Sec. 52.70 Identification of plan.
* * * * *
(c) * * *
(24) On December 5, 1994 the Alaska Department of Environmental
Conservation sent EPA revisions for inclusion into Alaska's SIP that
address transportation and general conformity regulations as required
by EPA under the CAA.
(i) Incorporation by reference.
(A) December 5, 1994 letter from the Governor of Alaska to EPA,
Region 10, submitting amendments addressing transportation and general
conformity revisions to the SIP:
(1) Regulations to 18 AAC 50, Air Quality Control, including
Article 5, Procedure and Administration, 18 AAC 620; Article 6,
Reserved; Article 7, Conformity, 18 AAC 50.700-18 AAC 50.735; Article
8, Reserved; and Article 9, General Provisions, 18 AAC 50.900, all of
which contain final edits (23 pages total) by the Alaska Department of
Law, were filed by the Lieutenant Governor on December 5, 1994 and
effective on January 4, 1995.
(2) Amendments to the Alaska State Air Quality Control Plan,
``Volume II: Analysis of Problems, Control Actions,'' as revised on
December 1, 1994, adopted by reference in 18 AAC 50.620, containing
final edits by the Alaska Department of Law, all of which were
certified by the Commissioner of Alaska to be the correct plan
amendments, filed by the Alaska Lieutenant Governor on December 5, 1994
and effective on January 4, 1995.
[FR Doc. 95-23841 Filed 9-26-95; 8:45 am]
BILLING CODE 6560-50-F
