Approval and Promulgation of Implementation Plan for New Mexico Albuquerque/Bernalillo County: Transportation Conformity Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NM-27-1-7208a; FRL-5322-6]

Approval and Promulgation of Implementation Plan for New Mexico--

Albuquerque/Bernalillo County: Transportation Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This document approves a revision to the New Mexico State

Implementation Plan (SIP) for the Albuquerque/Bernalillo County

nonattainment area that contains transportation conformity rules. The

transportation conformity SIP revision enables the Albuquerque/

Bernalillo County Air Quality Control Board to implement and enforce

the Federal transportation conformity requirements at the local 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 action is limited only to 40

CFR part 51, subpart T (Transportation Conformity), and the SIP

revision submitted under 40 CFR part 51, subpart W, conformity of

general Federal actions, will be addressed in a separate document. The

EPA is approving this SIP revision under section 110(k) of the Clean

Air Act (CAA). The rationale for the 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.

Air Pollution Control Division, Albuquerque Environmental Health

Department, One Civic Plaza, Albuquerque, New Mexico 87103,

Telephone: (505) 768-2600.

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.

[[Page 56242]]

II. Evaluation of State's Submission

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

the Governor of New Mexico submitted a SIP revision which included the

transportation conformity rules adopted by the Albuquerque/Bernalillo

County Air Quality Control Board. Currently, the Albuquerque/Bernalillo

area is a nonattainment for carbon monoxide and has requested

redesignation to attainment; however, the transportation conformity SIP

revision is applicable to all nonattainment and maintenance

classifications under the CAA. 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 the

Albuquerque/Bernalillo County nonattainment area 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 Section 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 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, Albuquerque/Bernalillo

County, the Albuquerque Environmental Health Department (air agency),

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 Albuquerque Environmental

Health Department 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 Albuquerque/Bernalillo County nonattainment area. The

Albuquerque/Bernalillo County SIP revision 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 (Albuquerque/Bernalillo County's) SIP revision does not include

the amendment of February 8, 1995. Lack of amended sections of 40 CFR

51.448 in the Albuquerque/Bernalillo County's rules makes the local

rules more stringent than the Federal rules. However, the EPA believes

that the Albuquerque Environmental Health Department 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 agency 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

agency's good faith effort in submitting the transportation conformity

SIP on time and disapprove this portion of the State's SIP. Since the

Albuquerque Environmental Health Department 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 local rules which

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

result, the EPA is not taking any action on section 42.11 of the

Albuquerque/Bernalillo County rules.

C. Evaluation of Albuquerque/Bernalillo County Rules

The Albuquerque Environmental Health Department (AEHD) is the lead

air agency for SIP development, adoption, and enforcement in the

Bernalillo County carbon monoxide nonattainment area. The New Mexico

Air Quality Control Act (NMAQCA) allows, by ordinance, ``A'' class

counties (as defined in the New Mexico statute) and any municipality

within an ``A'' class county to create a municipal, county, or joint

air quality board to administer and enforce the provisions of the

NMAQCA. The City of Albuquerque and Bernalillo County have jointly

established such a board, Albuquerque/Bernalillo County Air Quality

Control Board, for administration and enforcement of NMAQCA because

Bernalillo County is an ``A'' class county. The AEHD is the regulatory

and administrative agency for implementing and enforcing the air

quality control regulations of the Board in the Bernalillo County

nonattainment area.

On December 19, 1994, the Governor of New Mexico submitted a SIP

revision on behalf of Albuquerque/Bernalillo County in compliance with

40 CFR Part 51 Subpart T that contained the transportation conformity

and its consultation rule. The SIP revision was adopted by the

Albuquerque/Bernalillo County Air Quality Control Board on November 9,

1994, after appropriate public participation and interagency

consultation. The AEHD has adopted the Federal transportation

conformity rules in verbatim form except for the interagency

consultation rule which has been developed in the manner described

earlier in this notice. The AEHD has made limited changes and has added

additional definitions, where necessary, to create consistency with the

local processes, procedures, and area-specific terms or names. These

minor modifications and additional clarifications do not in any way

alter the effect, implementation and enforcement of the conformity

rules in the Bernalillo County nonattainment area. The EPA has

determined that AEHD'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 Albuquerque/Bernalillo County nonattainment area except for section

[[Page 56243]]

42.11. The EPA is not taking any action on section 42.11 of the

Albuquerque/Bernalillo County rules as discussed in detail in section

II(B) of this notice. The EPA has evaluated this SIP revision and has

determined that the Albuquerque/Bernalillo County Air Quality Control

Board 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

the rules by the Albuquerque Environmental Health Department 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 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 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 Ms. Mary 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:

[[Page 56244]]

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart GG--New Mexico

2. Section 52.1620 is amended by adding paragraph (c)(59) to read

as follows:

Sec. 52.1620 Identification of plan.

* * * * *

(c) * * *

(59) A revision to the New Mexico State Implementation Plan for

Transportation Conformity: Albuquerque/Bernalillo County Air Quality

Control Regulation (AQCR) No. 42 ``Transportation Conformity'' as

adopted on November 9, 1994 and filed with the State Records and

Archives Center on December 16, 1994, was submitted by the Governor on

December 19, 1994. No action is taken on AQCR No. 42 Section 11.

(i) Incorporation by reference.

(A) Albuquerque/Bernalillo County Air Quality Control Regulation

(AQCR) No. 42 ``Transportation Conformity'' as adopted on November 9,

1994 and filed with the State Records and Archives Center on December

16, 1994. No action is taken on AQCR No. 42 Section 11.

(ii) Additional material. None.

[FR Doc. 95-27682 Filed 11-7-95; 8:45 am]

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