E8-20139. Approval and Promulgation of Air Quality Implementation Plans; State of Utah; Revised Transportation Conformity Consultation Process, and Approval of Related Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action approving State Implementation Plan (SIP) revisions submitted by the State of Utah on June 26, 2007 and April 17, 2008. The June 26, 2007 revision updates Section XII of the Utah SIP and Rule R307-110-20 of the Utah Administrative Code (UAC) to meet the federal transportation conformity consultation requirements. The amended Rule R307-110-20 incorporates by reference Section XII, “Transportation Conformity Consultation,” of the SIP. The April 17, 2008 revision makes minor changes to sections R307-101-2 “Definitions,” R307-115-1 “Determining Conformity,” R307-170-7 “Performance Specification Audits,” and R307-310-2, “Definitions,” and adds R307-101-3 “Version of CFR Incorporated by Reference.” EPA is approving the SIP revisions submitted by the State of Utah on June 26, 2007 and April 17, 2008. This action is being taken under section 110 of the Clean Air Act.

DATES:

This rule is effective on November 3, 2008 without further notice, unless EPA receives adverse comment by October 2, 2008. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2008-0340, by one of the following methods:

• http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail] and [e-mail].
• Fax: [phone] (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
• Mail: Callie A. Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
• Hand Delivery: Callie A. Videtich, Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2008-0340. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center home page at http://www.epa.gov/​epahome/​dockets.htm. For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Jeffery Kimes, Air Program, Environmental Protection Agency (EPA), Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone [phone], and e-mail at: [e-mail].

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words State or Utah mean the State of Utah, unless the context indicates otherwise.

Table of Contents

I. General Information

II. What Is the Purpose of This Action?

III. What Is the State Process To Submit These Materials to EPA?

IV. EPA's Evaluation of the State of Utah's June 26, 2007 Submittal

V. EPA's Evaluation of the State of Utah's April 17, 2008 Submittal

VI. Consideration of Section 110(l) of the Clean Air Act

VII. Final Action

VIII. Statutory and Executive Order Reviews

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through http://regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

d. Describe any assumptions and provide any technical information and/or data that you used.

e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

II. What Is the Purpose of This Action?

EPA is approving revisions to Section XII, “Transportation Conformity Consultation,” of the Utah SIP, and to Rule R307-110-20 (incorporating by reference Section XII) of the Utah Administrative Code. Section XII of the Utah SIP, “Transportation Conformity Consultation,” addresses the requirements of 42 U.S.C. 7506 and 40 CFR 51.390(b) to formalize the consultation process and to ensure early coordination and negotiation among all parties affected by transportation conformity. By approving these provisions, EPA is making them part of the federally enforceable state implementation plan for Utah under the Clean Air Act (CAA).

In addition, EPA is approving minor revisions to sections R307-101-2, “Definitions;” R307-115-1, “Determining Conformity;” R307-170-7, “Performance Specification Audits;” and R307-310-2, “Definitions;” these minor revisions change the date of a cross referenced technical source and remove the dates of various CFR and Federal Register references and replace them with a reference to new R307-101-3, which references the July 1, 2007 version of the CFR. EPA is also approving R307-101-3, “Version of CFR Incorporated by Reference.” By approving these provisions, EPA is making them part of the federally enforceable state implementation plan for Utah under the Clean Air Act (CAA).

III. What Is the State Process To Submit SIP Revisions to EPA?

Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to EPA. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This action must occur prior to the revision being submitted by a State to EPA.

The Utah Air Quality Board (UAQB) held a public hearing on March 15, 2007 for the revision to Section XII of the Utah SIP, and Rule R307-110-20 of the UAC. These revisions to the State SIP were adopted by the UAQB on May 2, 2007, and were submitted by the Governor to EPA on June 26, 2007. Rule R307-110-20 became effective on May 2, 2007.

While the UAQB held a public comment period from November 14, 2007 to December 31, 2007 on minor revisions to R307-101-2, R307-115-1, R307-170-7, and R307-310-2, and the addition of R307-101-3, no comments were received and a public hearing was not requested. These revisions to the State SIP were adopted by the UAQB on February 6, 2008, and were submitted by the Governor to EPA on April 17, 2008. These revisions became effective on February 8, 2008.

IV. EPA's Evaluation of the State of Utah June 26, 2007 Submittal

EPA has reviewed the revised State of Utah Conformity Transportation Consultation SIP (Conformity SIP) submitted on June 26, 2007 and finds that approval is warranted. The following is a summary of the key aspects of the SIP and our evaluation of each:

A. We reviewed the submittal to assure consistency with our conformity regulations at 40 CFR 51.390(b), which were revised on January 24, 2008, 73 FR 4438. We also consulted the February 14, 2006, “Interim Guidance for Implementing the Transportation Conformity provisions in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)”. The guidance document can be found at http://epa.gov/​otaq/​stateresources/​transconf/​policy.htm. Forty CFR part 51.390(b) establishes the requirements for conformity consultation SIPs. It provides that each state is required to address three specific sections of the EPA Conformity Rules found at 40 CFR part 93. The provisions required are: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (certain control measures); and 40 CFR 93.125(c) (mitigation measures).

i. 40 CFR 93.105, “Consultation,” requires the transportation conformity SIP to include procedures for interagency consultation, resolution of conflicts, and public consultation. Utah's revised Conformity SIP establishes the Interagency Consultation Team (ICT). The ICT consists of the Utah Division of Air Quality (UDAQ), all Utah metropolitan planning organizations (MPOs) located in designated non-attainment and maintenance areas, Utah Department of Transportation (UDOT), Utah public transit agencies, Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and EPA. The revision establishes and outlines the specific roles and responsibilities of each of the members of the ICT. It also describes the interagency collaboration, consultation, and planning process. The SIP addresses SIP development, transportation planning and specific sub-processes such as emission and traffic modeling, project planning and changes, conformity triggers, and responsibility for conformity in donut areas (those areas within nonattainment and maintenance areas that are not included within any MPO boundaries).

The revised Conformity SIP also includes procedures for resolving conformity-related disputes and including the public in the transportation conformity process.

ii. 40 CFR 93.122(a)(4)(ii) requires the conformity implementation plan revision to provide that written commitments to control measures that are not included in the transportation plan and TIP must be obtained prior to a conformity determination and that such commitments must be fulfilled. The revised Conformity SIP meets this requirement.

iii. 40 CFR 93.125 relates to the enforceability of a transportation project design concept and scope and project-level mitigation and control measures. 40 CFR 93.125(c) requires that written commitments to mitigation measures must be obtained prior to a positive conformity determination and that project sponsors must comply with such commitments. Utah has included these requirements in the revised Conformity SIP.

V. EPA's Evaluation of the State of Utah April 17, 2008 Submittal

EPA has reviewed the revisions to sections R307-101-2, “Definitions;” R307-115-1, “Determining Conformity;” R307-170-7, “Performance Specification Audits;” and R307-310-2, “Definitions.” EPA has also reviewed new R307-101-3, “Version of CFR Incorporated by Reference;” EPA finds that approval of these SIP revisions is warranted. EPA's description of the revisions submitted April 17, 2008 follows:

A. Minor definition changes

i. Changes to R307-101-2, “Definitions.” The State added the acronym “ACGIH” for the American Conference of Government Industrial Hygienists, changed the reference date for an ACGIH publication from 2000 to 2007, added the acronym “VOC” for Volatile Organic Compound, and removed reference dates for 40 CFR 51.100(s)(1), which defines VOC, and replaced them with a reference to R307-101-3, which references the July 1, 2007 version of the CFR.

B. Removal of citations to various specific volumes of the Federal Register and CFR and replacement with a reference to new R307-101-3, which references the July 1, 2007 version of the CFR.

i. In addition to R307-101-2, “Definitions,” discussed above, R307-115-1, “Determining Conformity,” R307-170-7, “Performance Specification Audits,” and R307-310-2, “Definitions,” each incorporated by reference or cross-referenced specific EPA regulations by citing various volumes of the Federal Register of CFR. Utah replaced these disparate citations with a cross-reference to new R307-101-3, which in turn references the July 1, 2007 version of the CFR. This change will simplify future changes to the SIP to incorporate by reference or cross-reference future version of EPA's regulations.

VI. Consideration of Section 110(l) of the Clean Air Act

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a National Ambient Air Quality Standard (NAAQS) or any other applicable requirement of the CAA. These revisions will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA.

VII. Final Action

EPA is approving, through direct final rulemaking, the revision to Section XII, “Transportation Conformity Consultation,” of the Utah SIP, and to Rule R307-110-20 (which incorporates Section XII) of the Utah Administrative Code, to reflect that the State has adequately addressed the required elements of 42 U.S.C. 7506 and 40 CFR 51.390(b). These revisions were adopted on May 2, 2007, and were submitted to EPA on June 26, 2007. Rule 307-110-20 became effective on May 2, 2007.

In addition, EPA is approving revisions to sections R307-101-2, “Definitions;” R307-115-1, “Determining Conformity;” R307-170-7, “Performance Specification Audits;” and R307-310-2, “Definitions.” EPA is also approving the addition of R307-101-3, “Version of CFR Incorporated by Reference.” These revisions were adopted on February 6, 2008, and were submitted to EPA on April 17, 2008. These revisions became effective on February 8, 2008. These revisions are minor and do not affect the adequacy of the SIP.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective November 3, 2008 without further notice unless the Agency receives adverse comments by October 2, 2008. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

VIII. Statutory and Executive Order Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the 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 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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 action is not a “major rule” as defined by 5 U.S.C. section 804(2).

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 3, 2008. 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
• Conformity
• Incorporation by reference
• Intergovernmental relations
• Transportation plan
• Transportation Improvement Program
• Volatile organic compounds

Dated: July 25, 2008.

Judith Wong,

Acting Deputy Regional Administrator, Region 8.

40 CFR part 52 is amended to read 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 TT—Utah

2. Section 52.2320 is amended by adding paragraphs (c)(66) and (c)(67) to read as follows:

§ 52.2320

Identification of plan.

* * * * *

(c) * * *

(66) Revisions to the Utah State Implementation Plan, “Section XII, Transportation Conformity Consultation,” as submitted by the Governor on June 26, 2007; and revisions to UAC R307-110-20, “Section XII, Transportation Conformity Consultation,” as submitted by the Governor on June 26, 2007.

(i) Incorporation by Reference.

(A) UAC R307-110-20, “Section XII, Transportation Conformity Consultation,” as adopted by the Utah Air Quality Board on May 2, 2007, effective on May 2, 2007.

(67) Revisions to the Utah State Implementation Plan, Sections R307-101-2, “Definitions,” R307-115-1, “Determining Conformity,” R307-170-7, “Performance Specification Audits,” R307-310-2, “Definitions,” and R307-101-3, “Version of CFR Incorporated by Reference,” as submitted by the Governor on April 17, 2008.

(i) Incorporation by Reference.

(A) UAC R307-101-2, “Definitions,” as adopted by the Utah Air Quality Board on February 6, 2008, effective on February 8, 2008.

(B) UAC R307-115-1, “Determining Conformity,” as adopted by the Utah Air Quality Board on February 6, 2008, effective on February 8, 2008.

(C) UAC R307-170-7, “Performance Specification Audits,” as by the Utah Air Quality Board adopted on February 6, 2008, effective on February 8, 2008.

(D) UAC R307-310-2, “Definitions,” as adopted by the Utah Air Quality Board on February 6, 2008, effective on February 8, 2008.

(E) UAC R307-101-3, “Version of CFR Incorporated by Reference,” as adopted by the Utah Air Quality Board on February 6, 2008, effective on February 8, 2008.