[Federal Register: December 27, 2002 (Volume 67, Number 249)]
[Rules and Regulations]
[Page 78983-78987]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de02-19]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NC-93; NC-101-200122a; FRL-7402-6]
Approval and Promulgation of Implementation Plans North Carolina:
Approval of Revisions to North Carolina State Implementation Plan:
Transportation Conformity Rule and Interagency Memorandum of Agreements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is approving a revision to the North Carolina State
Implementation Plan (SIP) with the exception of one state regulation
pertaining to triggers. The revision contains the transportation
conformity rule pursuant to the Clean Air Act as amended in 1990 (Act)
and seven memoranda of agreements that establish procedures for
consultation as part of the transportation conformity provisions. The
transportation conformity rule assures that projected emissions from
transportation plans, improvement programs and projects in air quality
nonattainment or maintenance areas stay within the motor vehicle
emissions ceiling contained in the SIP. The transportation conformity
SIP revision enables the State to implement and enforce the Federal
transportation conformity requirements at the state level per
regulations for conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, funded or
Approved Under Title 23 U.S.C. of the Federal Transit Laws. This EPA
approval action streamlines the conformity process to allow direct
consultation among agencies at the local level. This final approval
action is limited to requirements for Transportation Conformity.
Rationale for approving this SIP revision is provided in the
Supplemental Information section of this action.
DATES: This direct final rule is effective on February 25, 2003,
without further notice, unless EPA receives adverse comment before
January 27, 2003. If adverse comments are received, EPA will publish a
timely withdrawal of the direct final rule in the Federal Register
informing the public that this rule will not take effect.
ADDRESSES: All comments should be addressed to: Kelly Sheckler at the
EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta,
Georgia 30303-8960.
Copies of the State submittal(s) are available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region 4, Air Planning Branch, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Kelly Sheckler, 404/
562-9042.
North Carolina Department of Environment and Natural Resources,
2728 Capital Boulevard, Raleigh, North Carolina 27604.
FOR FURTHER INFORMATION CONTACT: Kelly Sheckler at 404/562-9042, e-
mail: Sheckler.Kelly@epa.gov.
SUPPLEMENTARY INFORMATION: Outlined below are the contents of this
document:
I. Background
A. What Is a SIP?
B. What Is the Federal Approval Process for a SIP?
C. What Is Transportation Conformity?
D. Why Must the State Submit a Transportation Conformity SIP?
E. How Does Transportation Conformity Work?
II. Approval of the State Transportation Conformity Rule
A. What Did the State Submit?
B. What Is EPA Approving Today and Why?
C. How Did the State Satisfy the Interagency Consultation
Process (40 CFR 93.105)?
III. Final Action
IV. Administrative Requirements
I. Background
A. What Is a SIP?
The states, under section 110 of the Act, must develop air
pollution regulations and control strategies to ensure that state air
quality meets National Ambient Air Quality Standards (NAAQS)
established by EPA. The Act, under section 109, established these NAAQS
which currently address six criteria pollutants. These pollutants are:
Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and
sulfur dioxide.
Each state must send these regulations and control strategies to
EPA for approval and incorporation into the Federally enforceable SIP,
which protects air quality and contains emission control plans for
NAAQS nonattainment area. These SIPs can be extensive, containing state
regulations or other enforceable documents and supporting information
such as emission inventories, monitoring networks, and modeling
demonstrations.
B. What Is the Federal Approval Process for a SIP?
The states must formally adopt the regulations and control
strategies consistent with state and Federal laws for incorporating the
state regulations into the Federally enforceable SIP. This process
generally includes a public notice, public comment period, public
hearing, and a formal adoption by a state-authorized rulemaking body.
Once a state rule, regulation, or control strategy is adopted, the
state will send these provisions to EPA for inclusion in the Federally
enforceable SIP. EPA must then determine the appropriate Federal
action, provide public notice, and request additional public comment on
the action. The possible Federal actions include: Approval,
disapproval, conditional approval and limited approval/disapproval. If
adverse comments are received, EPA must consider and address the
comments before taking final action.
EPA incorporates state regulations and supporting information (sent
under section 110 of the Act) into the Federally approved SIP through
the approval action. EPA maintains records of all such SIP actions in
the CFR at Title 40, Part 52, entitled ``Approval and Promulgation of
Implementation Plans.'' The EPA does not reproduce the text of the
Federally approved state regulations in the CFR. They are
``incorporated by reference,'' which means that the
[[Page 78984]]
specific state regulation is cited in the CFR and is considered a part
of the CFR the same as if the text were fully printed in the CFR.
C. What Is Transportation Conformity?
Conformity first appeared as a requirement in the Act's 1977
amendments (Public Law 95-95). Although the Act did not define
conformity, it stated 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 which
has been approved or promulgated.
The 1990 Amendments to the Act expanded the scope and content of
the conformity concept by defining conformity to a SIP. Section 176(c)
of the Act defines conformity as conformity to the SIP's purpose of
eliminating or reducing the severity and number of violations of the
NAAQS and achieving expeditious attainment of such standards. Also, the
Act states ``that no Federal activity will: (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
requirements of section 176(c) of the Clean Air Act apply to all
departments, agencies and instrumentalities of the Federal government.
Transportation conformity refers only to the conformity of
transportation plans, programs and projects that are funded or approved
under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. Chapter
53).
D. Why Must the State Submit a Transportation Conformity SIP?
A transportation conformity SIP is a plan which contains criteria
and procedures for the Department of Transportation (DOT), Metropolitan
Planning Organizations (MPOs), and other state or local agencies to
assess the conformity of transportation plans, programs and projects to
ensure that they do not cause or contribute to new violations of a
NAAQS in the area substantially affected by the project, increase the
frequency or severity of existing violations of a standard in such area
or delay timely attainment. 40 CFR 51.390, subpart T requires states to
submit a SIP that establishes criteria for conformity to EPA. 40 CFR
Part 93, subpart A, provides the criteria the SIP must meet to satisfy
40 CFR 51.390.
EPA was required to issue criteria and procedures for determining
conformity of transportation plans, programs, and projects to a SIP by
section 176(c) of the Act. The Act also required the procedure to
include a requirement that each state submit a revision to its SIP
including conformity criteria and procedures. EPA published the first
transportation conformity rule in the November 24, 1993, Federal
Register (FR), and it was codified at 40 CFR part 51, subpart T and 40
CFR part 93, subpart A. The transportation conformity rule required the
states to adopt and submit a transportation conformity SIP revision to
the appropriate EPA Regional Office by November 25, 1994. The State of
North Carolina submitted a transportation conformity SIP to the EPA
Region 4 on November 15, 1994. EPA did not take action on this SIP
because the Agency was in the process of revising the transportation
conformity requirements. EPA revised the transportation conformity rule
on August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), and
August 15, 1997 (62 FR 43780), and codified the revisions under 40 CFR
part 51, subpart T and 40 CFR part 93, subpart A--Conformity to State
or Federal Implementation Plans of Transportation Plans, Programs, and
Projects Developed, Funded or Approved Under Title 23 U.S.C. of the
Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997,
required the states to change their rules and submit a SIP revision to
EPA by August 15, 1998.
States may choose to develop in place of regulations, a memorandum
of agreement (MOA) which establishes the roles and procedures for
transportation conformity. The MOA includes the detailed consultation
procedures developed for that particular area. The MOAs are enforceable
through the signature of all the transportation and air quality
agencies, including the Federal Highway Administration, Federal Transit
Administration and the Environmental Protection Agency.
E. How Does Transportation Conformity Work?
The Federal or state transportation conformity rule applies to all
NAAQS nonattainment and maintenance areas in the state. The
Metropolitan Planning Organizations (MPO), the State Department of
Transportation (DOT) (in absence of a MPO), State and local Air Quality
Agencies , U.S. Environmental Protection Agency and U.S. Department of
Transportation (USDOT) are involved in the process of making conformity
determinations. Conformity determinations are made on programs and
plans such as transportation improvement programs (TIP), transportation
plans, and projects. The MPOs calculate the projected emissions that
will result from implementation of the transportation plans and
programs and compare those calculated emissions to the motor vehicle
emissions budget established in the SIP. The calculated emissions must
be equal to or smaller than the Federally approved motor vehicle
emissions budget in order for USDOT to make a positive conformity
determination with respect to the SIP.
II. Approval of the State Transportation Conformity Rule
A. What Did the State Submit?
The State of North Carolina chose to address the transportation
conformity SIP requirements using a combination of rules and MOAs. All
portions of the conformity rule, with the exception of 40 CFR 93.105,
were developed as a state rule, applicable to all areas subject to
conformity in the state. For the consultation procedures in 40 CFR
93.105, the state chose to develop a MOA for each individual
nonattainment/maintenance area. On April 13, 1998, the State of North
Carolina, through the Department of Environment and Natural Resources
(DENR), submitted the rules for transportation conformity. The
consultation procedures for individual MOAs were not included with this
submittal. The Environmental Management Commission (EMC) of North
Carolina amended North Carolina Air Quality rules to adopt revisions to
15A NCAC 2D .2000, Transportation Conformity. [Authority G.S. 150B-
21.19]. DENR gave notice of rule-making proceedings to the public on
April 15, 1998, Notice of text on August 3, 1998 and hearing on August
20, 1998. The agency adopted the revisions on October 10, 1998,
effective on April 1, 1999. MOAs for Greensboro, High Point, Durham,
Raleigh (CAMPO), Durham-Chapel Hill (DCHC), and Winston-Salem were
signed by all parties and submitted to EPA for approval into the SIP on
July 19, 2002. To fully meet the requirements of the Transportation
Conformity Rule, the Mecklenburg-Union interagency consultation
agreement will need to be submitted as a revision to the SIP. A
separate action to approve that MOA will be taken once the state
submits it to EPA.
B. What Is EPA Approving Today and Why?
EPA is approving the North Carolina transportation conformity rule
submitted to the EPA Region office on April 13, 1999 by the Director of
the
[[Page 78985]]
North Carolina DENR. One exception is the approval of state regulation
.2003, which is the only portion of the state rule that will not be
approved in today's action. State regulation .2003 requires compliance
with 40 CFR 93.104 of the conformity rule. The state adopted this
provision prior to EPA's rulemaking change to 40 CFR 93.104(e). The
August 2002, rulemaking changes the starting point for eighteen month
clocks that are currently running for areas with initial SIP
submissions, so that these areas are given the full eighteen months
after EPA's adequacy finding to determine conformity to their SIPs. In
other words, in areas where a SIP has been submitted and EPA is
currently reviewing it for adequacy, the eighteen-month clock required
by 40 CFR 93.104(e) (2) will now not start until the effective date of
our adequacy finding. For areas that have submitted initial SIPs that
EPA has already found adequate and to which conformity has not yet been
determined, the August rule restarts the eighteen-month clock from the
effective date of EPA's positive adequacy finding. For more information
on the eighteen-month conformity requirement for initial SIP
submissions see the August 6, 2002 final rule (67 FR 50808).
EPA has evaluated this SIP revision and the seven MOA's and has
determined that the SIP requirements of the Federal transportation
conformity rule as described in 40 CFR part 51, subpart T and 40 CFR
part 93, subpart A have been met. The North Carolina DENR has satisfied
participation and comprehensive interagency consultation requirements
due to the adoption of the SIP and MOAs at the local level. Therefore,
EPA is approving this revision to the North Carolina SIP.
C. How Did the State Satisfy the Interagency Consultation Process (40
CFR 93.105)?
EPA's rule requires the states to develop their own processes and
procedures for interagency consultation among the Federal, state, and
local agencies and resolution of conflicts, meeting the criteria in 40
CFR 93.105. The SIP revision must include the process and procedures to
be followed by the MPO, State DOT, Federal Highway Administration
(FHWA), Federal Transit Administration (FTA), the state and local air
quality agencies and EPA before making conformity determinations. The
transportation conformity SIP revision must include processes and
procedures for the state and local air quality agencies and EPA to
coordinate the development of applicable SIPS with MPOs, states DOTs,
FHWA and FTA.
The State of North Carolina developed its consultation rule based
on the elements contained in 40 CFR 93.105, and included it in the
MOAs. As a first step, the State worked with each of the MPOs through
existing monthly statewide interagency committee meetings. The
interagency committee includes representatives from the state air
quality agency-DENR, NCDOT, FHWA-NC Division, FTA-Region 4, EPA Region
4, Capital Area MPO, Mecklenburg-Union MPO, Greensboro MPO, Gaston MPO,
Winston-Salem MPO, Durham MPO, High Point MPO, and the Mecklenburg
County Department of Environmental Protection. The interagency
committee met regularly and drafted the consultation rules considering
elements in 40 CFR 93.105, and integrated the local transportation
planning and local and state SIP processing procedures and processes
into the consultation MOAs for each nonattainment/maintenance area. The
consultation process developed in these MOAs are unique to the State of
North Carolina. The MOA's are enforceable against the parties by their
signed consent in the MOA.
III. Final Action
EPA is approving the aforementioned changes to the SIP, with one
exception o section .2003 which requires the state comply with outdated
conformity rule trigger provisions. Because the state adopted this
regulation prior to EPA's rulemaking amending 40 CFR 93.104(e), this
action approves state regulation .2003 with the exception of its
reference to 40 CFR 93.104(e). All other revisions are consistent with
Clean Air Act and EPA regulatory requirements. In addition, EPA is
approving the aforementioned seven MOA's.
The EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial submittal and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective February 25,
2003 without further notice unless the Agency receives adverse comments
by January 27, 2003.
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.
If the EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on February 25, 2003 and no
further action will be taken on the proposed rule.
IV. Administrative Requirements
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
[[Page 78986]]
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 is not economically significant.
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 February 25, 2003. 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, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Dated: October 21, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR Part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority for citation for part 52 continues to read as
follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart II--North Carolina
2. Section 52.1770 is amended:
a. In paragraph (c), Table 1 is amended under subchapter 2D by
adding in numerical order a new section ``.2000 Transportation
Conformity''.
b. By adding and reserving paragraph (d).
c. By adding a new paragraph (e).
The additions read as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
Table 1.--EPA Approved North Carolina Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
State EPA approval
State citation Title/subject effective date date Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subchapter 2D......................... Air Pollution Control
Requirements
* * * * * * *
Section .2000 Transportation Conformity
Sect. .2001........................... Purpose, Scope and 04/01/99 12/27/02 .................................................
Applicability.
Sect. .2002........................... Definitions.................. 04/01/99 12/27/02 .................................................
Sect. .2003........................... Transportation Conformity 04/01/99 12/27/02 Except for the incorporation by reference of 40
Determination. CFR 93.104(e) of the Transportation Conformity
Rule.
Sect. .2004........................... Determining transportation 04/01/99 12/27/02 .................................................
Related Emissions.
Sect. .2005........................... Memorandum of Agreement...... 04/01/99 12/27/02 .................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(d) [Reserved]
(e) EPA Approved North Carolina Non-regulatory Provisions.
EPA Approved North Carolina Non-regulatory Provisions
----------------------------------------------------------------------------------------------------------------
State EPA approval
Provision effective date date Federal Register citation
----------------------------------------------------------------------------------------------------------------
Capital Area, North Carolina 1/01/02 12/27/02 [insert FR page citation from publication
Interagency Transportation date]
Conformity Memorandum of
Agreement.
Durham-Chapel Hill Interagency 1/01/02 12/27/02 [insert FR page citation from publication
Transportation Conformity date]
Memorandum of Agreement.
Winston-Salem Interagency 1/01/02 12/27/02 [insert FR page citation from publication
Transportation Conformity date]
Memorandum of Agreement.
High Point Interagency 1/01/02 12/27/02 [insert FR page citation from publication
Transportation Conformity date]
Memorandum of Agreement.
[[Page 78987]]
Greensboro Interagency 1/01/02 12/27/02 [insert FR page citation from publication
Transportation Conformity date]
Memorandum of Agreement.
Gaston, North Carolina Interagency 1/01/02 12/27/02 [insert FR page citation from publication
Transportation Conformity date]
Memorandum of Agreement.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 02-32549 Filed 12-26-02; 8:45 am]
BILLING CODE 6560-50-P