Approval and Promulgation of Implementation Plan for Texas: Transportation Conformity Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX-56-1-7209a; FRL-5322-4]

Approval and Promulgation of Implementation Plan for Texas:

Transportation Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: This document approves a revision to the Texas State

Implementation Plan (SIP) that contains transportation conformity

rules. The transportation conformity SIP revision enables the State to

implement and enforce the Federal transportation conformity

requirements at the State level in accordance with 40 CFR part 51,

subpart T--Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Developed, Funded or

Approved Under Title 23 U.S.C. or the Federal Transit Act. The final

approval is limited only to 40 CFR part 51, subpart T (Transportation

Conformity), and the SIP revisions submitted under 40 CFR part 51,

subpart W, conformity of general Federal actions, will be addressed in

a separate notice. The EPA is approving this SIP revision under section

110(k) of the Clean Air Act (CAA). The rationale for the final approval

action and other information are provided in this document.

DATES: This action is effective on January 8, 1996, unless notice is

postmarked by December 8, 1995 that someone wishes to submit adverse or

critical comments. If the effective date is delayed, timely notice will

be published in the Federal Register (FR).

ADDRESSES: Copies of the State's submittal and other relevant

information are available for inspection during normal business hours

at the following locations. Interested persons wanting to examine these

documents should make an appointment with the appropriate office at

least 24 hours before the visiting day.

Air Planning Section (6PDL), Multimedia Planning and Permitting

Division, Environmental Protection Agency, Region 6, 1445 Ross

Avenue, Dallas, Texas 75202, Telephone: (214) 665-7214.

Texas Natural Resource Conservation Commission, Mobile Source

Division, 12124 Park 35 Circle, Austin, Texas 78753, Telephone:

(512) 239-1943.

FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E.; Air Planning

Section (6PDL), Multimedia Planning and Permitting Division,

Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,

Texas 75202, Telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION:

I. Background

Conformity provisions first appeared in the CAA amendments of 1977

(Public Law 95-95). Although these provisions did not define

conformity, they provided 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 CAA Amendments of 1990 expanded the scope and content of the

conformity provisions by defining conformity to an implementation plan.

Conformity is defined in section 176(c) of the CAA as conformity to the

SIP's purpose of eliminating or reducing the severity and number of

violations of the National Ambient Air Quality Standards 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 requires EPA to promulgate criteria and procedures for

determining conformity of all Federal actions (transportation and

general) to a SIP. The EPA published the final transportation

conformity rules in the November 24, 1993, Federal Register and

codified them at 40 CFR part 51 subpart T--Conformity to State or

Federal Implementation Plans of Transportation Plans, Programs, and

Projects Developed, Funded or Approved Under Title 23 U.S.C. or the

Federal Transit Act. All other Federal actions (actions other than

those under Title 23 U.S.C. or the Federal Transit Act) were addressed

in a separate Federal Register notice. The conformity rules require the

States and local agencies to adopt and submit a transportation

conformity SIP revision to the EPA not later than November 24, 1994.

This notice does not address the conformity requirements of general

Federal actions (40 CFR part 51 subpart W), and EPA will take action on

these SIPs in a separate notice.

II. Evaluation of State's Submission

In response to the Federal Register notice of November 24, 1993,

the State of Texas submitted a SIP revision which included adoption of

the transportation conformity rules and other required documents. The

transportation conformity SIP revision is applicable to the

nonattainment or maintenance areas. It must be noted that the final

transportation conformity rule requires that the majority of the

Federal rules be incorporated in verbatim form with a few exceptions,

however, the State rules can not be more stringent than the Federal

rules. The consultation section of the rule (40 CFR 51.402) is among

these exceptions and the State and local (where applicable) air quality

agencies are required to develop their own consultation rules. The

following paragraphs present EPA's review and evaluation of this SIP

revision.

A. Development of Consultation Rules

The Federal rules require the SIP's to include processes and

procedures for interagency consultation among the Federal, State, and

local agencies and resolution of conflicts in accordance with the

criteria set forth in 40 CFR part 51 Sec. 51.402. Specifically, to

implement the requirements of Section 51.402, the SIP revisions must

include processes and procedures to be undertaken by Metropolitan

Planning Organizations (MPO), State Department of

[[Page 56245]]

Transportation, and the U. S. Department of Transportation (USDOT) with

State and local air quality agencies and EPA before making conformity

determinations, and by State and local air quality agencies and EPA

with MPO's, State Departments of Transportation, and USDOT in

developing applicable SIPs.

In order to satisfy these requirements, the State established an ad

hoc multi-agency committee which included representatives from the

State air quality agency, State DOT, USDOT, MPO's, EPA, the local air

quality agency, local transportation agencies, and local transit

operators. The State air quality agency served as the lead agency in

coordinating the multi-agency efforts for developing the consultation

rules. The committee met approximately on a biweekly basis and drafted

consultation rules by using the requirements of 40 CFR 51.402 and 23

CFR 450, and by integrating the local procedures and processes into the

final consultation rule. The consultation rule developed through this

process is unique to the State of Texas. The State has adequately

addressed all provisions of 40 CFR 51.402 and has met the EPA SIP

requirements.

B. Transition From the Interim Period to the Control Strategy Period;

40 CFR 51.448

The EPA promulgated an interim final rule on February 8, 1995, that

amended certain provisions of 40 CFR 51.448 in the Federal

transportation conformity rules. The interim final rule aligned the

timing of certain transportation conformity consequences with the

imposition of the CAA highway sanctions for a six-month period. The

amendment delays the lapse in conformity status, which would otherwise

prevent approval of new highway and transit projects, and allow States

more time to prevent the lapse by submitting complete control strategy

implementation plan. Since the States were required to submit

transportation conformity SIPs not later than November 24, 1994, the

State's SIP revision does not include the amendment of February 8,

1995. Lack of amended sections of 40 CFR 51.448 in the State's rules

makes the State's rules more stringent than the Federal rules. However,

the EPA believes that the State has complied with the SIP requirements

and has adopted the Federal rules which were in effect at the time that

the transportation conformity SIP was due to the EPA. The State in no

way intentionally adopted more stringent rules than the Federal rules

in developing its transportation conformity SIP. Therefore, it would be

unreasonable to discredit the State's good faith effort in submitting

the transportation conformity SIP on time and disapprove this portion

of the State's SIP. Since the State will be required to submit a SIP

revision in the near future to incorporate the amended portions of the

Federal transportation conformity rules, the EPA believes that it would

be reasonable to exclude the section of the State's rules which

corresponds to 40 CFR 51.448, from this SIP approval action. As a

result, the EPA is not taking any action on a portion of section

114.27(c) that contains provisions of 40 CFR 51.448 under the State

rules.

C. Evaluation of the State Rules

On November 6, 1994, the Governor of Texas submitted a SIP revision

in compliance with 40 CFR Part 51 Subpart T that contained the State's

transportation conformity and its consultation rule. The SIP revision

was adopted by the Texas Natural Resource Conservation Commission

(TNRCC) on October 19, 1994, after appropriate public participation and

interagency consultation. The TNRCC has adopted the Federal rules by

``incorporation by reference'' except for the interagency consultation

rule which has been developed in the manner described earlier in this

notice. The TNRCC transportation conformity rules are identical to the

Federal rules and the State has made no additional changes or

modifications. The EPA has determined that the TNRCC's transportation

conformity rule meets the Federal requirements except as provided in

section II(B) of this notice, and EPA is approving this SIP revision.

III. Final Approval Action

The EPA is approving the transportation conformity SIP revision for

the State of Texas except for a portion of section 114.27(c) that

contains provisions of 40 CFR 51.448 under the State rules. The EPA is

not taking any action on a portion of section 114.27(c) that contains

provisions of 40 CFR 51.448 under the State rules, as discussed in

detail in section II(B) of this notice. The EPA has evaluated this SIP

revision and has determined that Texas has fully adopted the provisions

of the Federal transportation conformity rules in accordance with 40

CFR Part 51 Subpart T. The appropriate public participation and

comprehensive interagency consultations have been undertaken during

development and adoption of these rules by the TNRRC at the local

level.

The EPA is publishing this action without prior proposal because

the EPA 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 on January 8, 1996, unless adverse or critical comments are

received by December 8, 1995. 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 then 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 on this action, the public is advised

that this action will be effective January 8, 1996.

The EPA has reviewed this transportation conformity SIP revision

for conformance with the provisions of the CAA and has determined that

this action conforms to those requirements.

IV. Administrative Requirements

A. Regulatory Process

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the 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, under 5 U.S.C. 605(b), the EPA may certify that the rule

will not have a significant impact on a substantial number of small

entities (see 46 FR 8709). Small entities include small businesses,

small not-for-profit enterprises, and governmental entities with

jurisdiction over populations of less than 50,000.

Nothing in this action shall be construed as permitting, allowing,

or establishing a precedent for any future request for a 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.

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 small entities. Moreover, due

[[Page 56246]]

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 from basing its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.

1976); 42 U.S.C. section 7410(a)(2). The Office of Management and

Budget has exempted this action from review under Executive Order

12866.

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by January 8, 1996. Filing a petition for

reconsideration of this final rule by the Regional Administrator does

not affect the finality of this rule for purposes of judicial review;

nor does it extend the time within which a petition for judicial review

may be filed, or postpone the effectiveness of this rule. This action

may not be challenged later in proceedings to enforce its requirements

(see section 307(b)(2)).

B. Unfunded Mandates

Under sections 202, 203, and 205 of the Unfunded Mandates Reform

Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,

1995, EPA must undertake various actions in association with proposed

or final rules that include a Federal mandate that may result in

estimated costs of $100 million or more to the private sector, or to

State, local, or tribal governments in the aggregate.

Through submission of this SIP or plan revision approved in this

action, the State and any affected local or tribal governments have

elected to adopt the program provided for under section 175A of the

Clean Air Act. The rules and commitments approved in this action may

bind State, local, and tribal governments to perform certain actions

and also require the private sector to perform certain duties. To the

extent that the rules and commitments being approved by this action

will impose or lead to the imposition of any mandate upon the State,

local, or tribal governments, either as the owner or operator of a

source or as a regulator, or would impose or lead to the imposition of

any mandate upon the private sector, EPA's action will impose no new

requirements; such sources are already subject to these requirements

under State law. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Therefore, EPA has determined that this final action does not include a

mandate that may result in estimated costs of $100 million or more to

State, local, or tribal governments in the aggregate or to the private

sector.

C. Procedural Information

This action has been classified as a Table Three action for

signature by the Regional Administrator under the procedures published

in the Federal Register on January 19, 1989 (54 FR 2214-2225), as

revised by a July 10, 1995, memorandum from May Nichols, Assistant

Administrator for Air and Radiation. The Office of Management and

Budget has exempted this regulatory action from Executive Order 12866

review.

D. Executive Order 12866

Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the

EPA must determine whether the regulatory action is ``significant'',

and therefore subject to Office of Management and Budget (OMB) review

and the requirements of the Executive Order. 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

Air pollution control, Carbon monoxide, Environmental protection,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Particulate matter, Transportation conformity,

Transportation-air quality planning, Volatile organic compounds.

Dated: October 20, 1995.

A. Stanley Meiburg,

Acting Regional Administrator.

Title 40, part 52, of the Code of Federal Regulations 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. 7401-7671q.

Subpart SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(96) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(96) A revision to the Texas State Implementation Plan for

Transportation Conformity: Regulation 30 TAC Chapter 114 ``Control of

Air Pollution from Motor Vehicles'', Section 114.27 ``Transportation

Conformity'' as adopted by the Texas Natural Resource Conservation

Commission (TNRCC) on October 19, 1994, was submitted by the Governor

on November 6, 1994. No action is taken on a portion of 30 TAC

114.27(c) that contains provisions of 40 CFR 51.448.

(i) Incorporation by reference.

(A) The TNRRC 30 TAC Chapter 114 ``Control of Air Pollution from

Motor Vehicles'', 114.27 ``Transportation Conformity'' as adopted by

the TNRCC on October 19, 1994. No action is taken on a portion of 30

TAC 114.27(c) that contains provisions of 40 CFR 51.448.

(B) TNRCC order No. 94-40 as passed and approved on October 12,

1994.

(ii) Additional material. None.

[FR Doc. 95-27680 Filed 11-7-95; 8:45 am]

BILLING CODE 6560-50-P