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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''.

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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

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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]

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