2012-24376. Approval and Promulgation of State Implementation Plans: Oregon

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Oregon (the State). The submission addresses transportation conformity requirements. EPA is approving the submission in accordance with the requirements of the Clean Air Act (the Act).

DATES:

This action is effective on November 5, 2012.

ADDRESSES:

The EPA has established a docket for this action under Docket Identification Number: EPA-R10-OAR2010-0912. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at EPA Region 10, Office of Air, Waste, and Toxics (AWT-107), 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Region Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal Holidays.

FOR FURTHER INFORMATION CONTACT:

John Chi at telephone number: [phone], or Claudia Vergnani Vaupel at telephone number: [phone], email address: [e-mail], fax number: [phone], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. Information is organized as follows:

Table of Contents

I. Background

II. Final Action

III. Statutory and Executive Order Reviews

I. Background

On June 1, 2012 (77 FR 32481), EPA proposed to approve a SIP revision that revises the State of Oregon's (the State) transportation conformity criteria and procedures related to interagency consultation, and enforceability of certain transportation related control and mitigation measures. Transportation conformity is required under section 176(c) of the Act to ensure that federally supported highway, transit projects, and other activities are consistent with (“conform to”) the purpose of the SIP. Transportation conformity currently applies to areas that are designated nonattainment, and to areas that have been redesignated to attainment after 1990 (maintenance areas) with plans developed under section 175A of the Act, for the following transportation related criteria pollutants: Ozone, particulate matter (PM_2.5 and PM₁₀), carbon monoxide, and nitrogen dioxide.

Oregon's SIP revision updates the State's transportation conformity provisions, Oregon Administrative Rules (OAR) Division 252, to be consistent with the Act as amended by the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (SAFETEA-LU) and EPA regulations (40 CFR Part 93 and 40 CFR 51.390). Oregon's SIP revision also adds a provision that requires approval by the air quality agency in order for a Metropolitan Planning Organization (MPO) to shorten the timeframe of a conformity determination (OAR-340-252-0070). EPA has reviewed the submittal to assure consistency with the Act as amended by SAFETEA-LU and EPA regulations (40 CFR Part 93 and 40 CFR 51.390) governing state procedures for transportation conformity and interagency consultation and has concluded that the submittal is approvable with the exception of two sentences providing an example in OAR-340-252-0070 for shortening the conformity timeframe. Details of our review are set forth in a technical support document (TSD), which has been included in the docket for this action. Specifically, in the TSD, the EPA identifies how the submitted procedures, as clarified by the State's August 31, 2011, supplementary letter, satisfy the requirements under 40 CFR 93.105 for interagency consultation with respect to the development of transportation plans and programs, SIPs, and conformity determinations, the resolution of conflicts, and the provision of adequate public consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for enforceability of control measures and mitigation measures.

No relevant adverse comment was received on the proposal and today EPA is taking final action to approve the proposed SIP amendments without change.^[1] EPA is, accordingly, taking final action to approve the SIP revision as discussed in EPA's notice of proposed rulemaking.

II. Final Action

EPA is approving the SIP revision that was submitted by the State of Oregon on October 6, 2010, with the exception of an example in OAR-340-252-0070 for shortening the conformity timeframe as discussed in EPA's notice of proposed rulemaking. EPA is also taking no action on OAR-340-200-0040 (Oregon Clean Air Act Implementation Plan), which was included in the State's SIP submission, because this section merely describes the State's procedures for adopting its SIP and incorporates by reference all of the revisions adopted by Oregon's Environmental Quality commission for approval into the Oregon SIP (as a matter of state law).

III. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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. 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 December 3, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: August 1, 2012.

Dennis J. McLerran,

Regional Administrator, Region 10.

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 MM—Oregon

2. Section 52.1970 is amended by adding paragraph (c)(139)(i)(C) to read as follows:

§ 52.1970

Identification of plan.

* * * * *

(c) * * *

(139) * * *

(i) * * *

(C) Based on a SIP revision submitted by Oregon on October 6, 2010, and later supplemented in a letter submitted by the state on August 31, 2011, the following provisions from Oregon's Adminstrative Rules (OAR), Division 252, “Transportation Conformity,” are removed from the SIP.

(1) The following provisions, as effective October 14, 1999, are replaced by revised provisions effective March 5, 2010, Rules 340: 252-0030, 252-0060, 252-0070 (except the last two sentences), and 252-0230.

(2) The following provisions, as effective October 14, 1999, are removed without replacement, Rules 340: 252-0020 (except paragraph (3)), 252-0040, 252-0050 (except paragraphs (4) & (5)(b)), 252-0080, 252-0090, 252-0100 (except paragraphs (3) through (6)), 252-0110, 252-0120, 252-0130, 252-0140, 252-0150, 252-0160, 252-0170, 252-0180, 252-0190 (except paragraph (5)), 252-0200 (except paragraph (6)(c)), 252-0210 (except paragraph (1)(b)), 252-0220 (except paragraphs (1)(a) & (2)), 252-0240, 252-0250 (except paragraph (2)), 252-0260, 252-0270, 252-0280, and 252-0290.

* * * * *

Footnotes

1.  One comment was submitted that raised issues pertaining to critical habitat designations on private lands, which is not germane to this rulemaking.