Approval and Promulgation of Implementation Plans: Oregon

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR47-11-7052a; FRL-5504-8]

Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) approves Oregon's

Transportation conformity rules received on April 17, 1995, from the

Oregon Department of Environmental Quality (ODEQ). The Clean Air Act

(CAA or Act) 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.

DATES: This action is effective on July 15, 1996 unless adverse or

critical comments are received by June 17, 1996. If the effective date

is delayed,

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timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston,

SIP Manager, EPA Region 10, Office of Air Quality (OAQ-107), OR47-11-

7052, 1200 Sixth Avenue, Seattle, WA 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, D.C. 20460. Copies of

material submitted to EPA may be examined during normal business hours

at the following locations: EPA Region 10, Office of Air Quality, 1200

Sixth Avenue (OAQ-107), Seattle, WA 98101, and the Oregon Department of

Environmental Quality, 811 S.W. 6th Avenue, Portland, OR 97204.

FOR FURTHER INFORMATION CONTACT: Wayne Elson, EPA Region 10, Office of

Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-

1463.

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

Oregon transportation conformity rule establishes the criteria and

procedures governing the determination of conformity for all Federal

actions in nonattainment or maintenance areas in the State of Oregon

for Federal highway and transit actions. 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 Oregon submittal contains transportation conformity regulations

that are consistent with the CAA requirements. These regulations are at

least as stringent as the Federal regulations and in some cases are

more stringent. Oregon'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.

The Oregon rule includes interagency consultation procedures which

will occur during the development of transportation plans,

transportation improvement programs, and State Implementation Plans,

and before findings of conformity.

The rule includes a provision that ``regionally significant''

transportation projects meet the criteria of the rule regardless of the

funding source (OAR 340-20-720 (42) and OAR 340-20-760). The

determination of ``regionally significant'' projects will be made

through interagency consultation with affected parties.

The rule includes reduced time frames for compliance with mobile

source emissions budget once a maintenance SIP has been approved by the

Oregon Environmental Quality Commission (EQC). The rule also includes

reduced time frames for demonstrating timely implementation of

transportation control measures (TCMs) once the EQC adopts a SIP

revision which adds TCMs. The rule requires timely implementation of

all TCMs identified as necessary to where attainment or maintenance of

and air quality standard is jeopardized, regardless of their

eligibility for Federal funding.

II. This Action

This Action approves Oregon Administrative Rule (OAR) Sections 340-

2-700 to 1080 as an amendment to the Oregon SIP. Specifically these

rules are as follows:

340-20-700 Title.

340-20-710 Purpose.

340-20-720 Definitions.

340-20-730 Applicability.

340-20-740 Priority.

340-20-750 Frequency of conformity determinations.

340-20-760 Consultation.

340-20-770 Content of transportation plans.

340-20-780 Relationship of transportation plan and TIP conformity with

the NEPA process.

340-20-790 Fiscal constraints for transportation plans.

340-20-800 Criteria and procedures for determining conformity of

transportation plans.

340-20-810 Criteria and procedures: Latest planning assumptions.

340-20-820 Criteria and procedures: Latest emissions model.

340-20-830 Criteria and procedures: Consultation.

340-20-840 Criteria and procedures: Timely implementation of TCMs.

340-20-850 Criteria and procedures: Currently conforming

transportation plan and TIP.

340-20-860 Criteria and procedures: Projects from a plan and TIP.

340-20-870 Criteria and procedures: Localized CO and PM-10 violations

(hot spots).

340-20-880 Criteria and procedures: Compliance with PM-10 control

measures.

340-20-890 Motor vehicle emissions budget (transportation plan).

340-20-900 Criteria and procedures: Motor vehicle emissions budget

(TIP).

340-20-910 Criteria and procedures: Motor vehicle emissions budget

(project not from a plan and TIP).

340-20-920 Criteria and procedures: Localized CO violations (hot

spots) in the interim period.

340-20-930 Criteria and procedures: Interim period reductions in ozone

and CO areas (transportation plan).

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340-20-940 Criteria and procedures: Interim period reductions in ozone

and CO areas (TIP).

340-20-950 Criteria and procedures: Interim period reductions for

ozone and CO areas (project not from a plan and TIP).

340-20-960 Criteria and procedures: Interim period reductions for PM-

10 and NO2 areas (transportation plan).

340-20-970 Criteria and procedures: Interim period reductions for PM-

10 and NO2 areas (TIP).

340-20-980 Criteria and procedures: Interim period reductions for PM-

10 and NO2 areas (project not from a plan and TIP).

340-20-990 Transition from the interim period to the control strategy

period.

340-20-1000 Requirements for the adoption or approval of projects by

recipients of funds designated under title 23 U.S.C. or the Federal

Transit Act.

340-20-1010 Procedures for determining regional transportation-related

emissions.

340-20-1020 Procedures for determining localized CO and PM-10

concentrations (hot-spot analysis).

340-20-1030 Using the motor vehicle emissions budget in the applicable

implementation plan (or implementation plan submission).

340-20-1040 Enforceability of design concept and scope and project-

level mitigation and control measures.

340-20-1050 Exempt projects.

340-20-1060 Projects exempt from regional emissions analyses.

340-20-1070 Special provisions for nonattainment areas which are not

required to demonstrate reasonable further progress and attainment.

340-20-1080 Savings provisions.

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. U.S.E.P.A., 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 of $100 million or more to State, local, or Tribal governments in

the aggregate; or to the private sector. 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 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 July 15, 1996 unless, by June 17, 1996 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 July 15, 1996.

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 July 15, 1996. 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 Oregon was approved by the Director of the Office of

Federal Register on July 1, 1982.

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Dated: May 2, 1996.

Chuck Clarke,

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 MM--Oregon

2. Section 52.1970 is amended by adding paragraph (c) (113) to read

as follows:

Sec. 52.1970 Identification of plan.

* * * * *

(c) * * *

(113) On April 14, 1995, the Oregon Department of Environmental

Quality submitted a revision to its SIP for the State of Oregon to

include the Transportation Conformity: OAR 340-20-710 through 340-20-

1080.

(i) Incorporation by reference.

(A) April 14, 1995 letter from ODEQ director Lydia Taylor to EPA

Regional Administrator Chuck Clarke submitting a revision to the Oregon

SIP to include the Transportation Conformity: OAR 340-20-710 through

340-20-1080; Division 20, Air Pollution Control, Criteria and

Procedures for Determining Conformity to State or Federal

Implementation Plans of Transportation Plans, Programs, and Projects

Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act,

effective March 29, 1995.

[FR Doc. 96-12353 Filed 5-15-96; 8:45 am]

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