Approval and Promulgation of Implementation Plans for Louisiana: General Conformity Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[LA 25-1-6964a; FRL-5449-7]

Approval and Promulgation of Implementation Plans for Louisiana:

General Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action conditionally approves a revision to the Louisiana

State Implementation Plan (SIP) that contains regulations for

implementing and enforcing the general conformity rules which the EPA

promulgated on November 30, 1993. Specifically, the general conformity

rules enable the Louisiana Department of Environmental Quality (LDEQ)

to review conformity of all Federal actions (see 40 CFR part 51 subpart

W--Determining Conformity of General Federal Actions to State or

Federal Implementation Plans) with the control strategy SIP's submitted

for the nonattainment and maintenance areas in Louisiana. This approval

action is intended to streamline the conformity process and allow

direct consultation among agencies at the local levels. The Federal

actions by the Federal Highway Administration and Federal Transit

Administration (under 23 U.S.C. or the Federal Transit Act) are covered

by the transportation conformity rules under 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 EPA will

act on the State's transportation conformity SIP under a separate

Federal Register document.

The EPA is approving this SIP revision under sections 110(k) and

176 of the Clean Air Act (the Act). The rationale for the approval and

other information are provided in this notice.

DATES: This action is effective on November 12, 1996, unless adverse or

critical comments are received by October 15, 1996. If the effective

date is delayed, timely notice will be published in the Federal

Register.

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 and Radiation Docket and Information Center, Environmental

Protection Agency, 401 M Street, S.W., Washington, D.C. 20460

Air Quality Division, Louisiana Department of Environmental Quality,

7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810, Telephone:

(504) 765-0219

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

[[Page 48410]]

Avenue, Dallas, Texas 75202, telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION:

I. Background

Conformity provisions first appeared in the Act as amended in 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 that has

been approved or promulgated for the nonattainment or maintenance

areas.

The 1990 Amendments of the Act 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 Act 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 Act requires the EPA to promulgate criteria and procedures for

determining conformity of all other Federal actions in the

nonattainment or maintenance areas (actions other than those under

Title 23 U.S.C. or the Federal Transit Act ) to a SIP. The criteria and

procedures developed for this purpose are called ``general conformity''

rules. The rules pertaining to actions under Title 23 U.S.C. or the

Federal Transit Act were published in a separate Federal Register

notice on November 24, 1993 (see 58 FR 62188). The EPA published the

final general conformity rules on November 30, 1993 (58 FR 63214) and

are codified under 40 CFR Part 51 Subpart W--Determining Conformity of

General Federal Actions to State or Federal Implementation Plans. The

general conformity rules require the States and local air quality

agencies (where applicable) to adopt and submit a general conformity

SIP revision to the EPA not later than November 30, 1994.

II. Evaluation of State's Submission

A. Evaluation of the State Rules

In response to the Federal Register notice of November 30, 1993,

the Governor of Louisiana submitted a SIP revision which included the

general conformity rules adopted by the Louisiana Department of

Environmental Quality. The general conformity SIP revision is

applicable to all nonattainment and maintenance classifications under

the Act. The following paragraphs present the results of EPA's review

and evaluation of the Louisiana general conformity SIP revision.

On November 10, 1994, the Governor of Louisiana submitted a SIP

revision in compliance with 40 CFR Part 51 Subpart W that contained the

State general conformity rules. The SIP revision was adopted by the

State and published in the Louisiana Register on November 20, 1994,

after appropriate public participation and interagency consultation.

The LDEQ adopted the Federal general conformity rules verbatim with the

exception of limited changes and 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 Federal conformity requirements

in the State nonattainment and maintenance areas except for the

provision discussed in section II(B) of this notice.

B. Conditions and Commitments

Review of the State rules indicated that section 1405(B) of the

State rule allows the State Administrative authority to approve changes

to the emissions estimating methods and use of new or modified models

in the air quality and conformity analyses. This is contrary to 40 CFR

51.859 of the EPA general conformity rule which recommends use of the

EPA approved procedures and models, and retains the EPA's approval

authority for any deviation from the recommended provisions. In

addition, section 1411 of the State rule which contains identical

requirements as EPA's 40 CFR 51.859, requires approval of the EPA

Regional Administrator for use of the modified emissions estimating

methods and models if they are deviations from the EPA's recommended

procedures or models. Therefore, the EPA can not approve this SIP

revision unless this inconsistency has been corrected in section

1405(B) of the State's general conformity rule.

After the EPA's consultation with the State, the State has agreed

to modify section 1405(B) of its conformity rule by removing the

inconsistency discussed above. In a letter dated December 5, 1995, from

the Assistant Secretary of LDEQ to the EPA Region 6 Administrator, the

State commits to make the necessary correction in section 1405(B) and

submit a SIP revision to the EPA within twelve (12) months from the

date of this document, September 15, 1997. The EPA accepted this

commitment from the State because the EPA believes that the State has

shown a good faith effort in complying with the SIP requirements and

this minor inconsistency was not intentionally added to the

regulations. The State's commitment letter will allow the EPA to

proceed with a conditional approval while the State is preparing the

appropriate corrections for submission of a SIP revision.

The EPA has determined that LDEQ's general conformity rule meets

the Federal requirements except the provisions of section 1405(B) as

cited above. Therefore, the EPA is conditionally approving this SIP

revision until the State makes the appropriate corrections and submits

a SIP revision before the date specified above. If the State does not

submit a SIP revision for correction of section 1405(B) by the date

specified in section II(B) of this notice, this conditional approval

will automatically be converted to a disapproval on the date specified

above and as further discussed in section III of this notice.

III. Final Action

The EPA is conditionally approving a revision to the Louisiana

general conformity SIP revision based on the rationale elaborated in

this action. The general conformity rule is applicable to all

nonattainment and maintenance areas. The EPA has evaluated this SIP

revision and has determined that the State has fully adopted the

provisions of the Federal general conformity rules in accordance with

40 CFR Part 51 Subpart W, with one exception as noted in section II of

this notice. The State has undertaken appropriate public participation

and comprehensive interagency consultations during development and

adoption of the rules at the local level.

The EPA is approving this SIP revision, based on the State's

December 5, 1995, commitment letter and on the condition that the State

will adopt and submit a revised general conformity rule which will

contain the corrections detailed in this notice (see section II) within

twelve months of this final approval action, but not later than

September 15, 1997. If the State fails to submit a SIP revision, as

committed in the letter of December 5, 1995, for correction of section

1405(B) by September 15, 1997, this conditional approval under section

110(k) will

[[Page 48411]]

automatically be converted to a disapproval on that date and the

sanctions clock will begin. If the State does not submit a SIP, and the

EPA does not approve the SIP on which the disapproval was based within

18 months of the disapproval, the EPA must impose the sanctions under

section 179 of the Act.

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 November 12, 1996, unless adverse or critical comments

concerning this action are submitted and postmarked by October 15,

1996. 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 concerning this

action 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 November 12, 1996.

IV. Administrative Requirements

A. Regulatory Flexibility

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.

Conditional approvals under section 110 and subchapter I, part D of

the Act 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, the EPA

certifies that it does not have a significant impact on small entities.

Moreover, due to the nature of the Federal-State relationship under the

Act, preparation of a regulatory flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Act forbids the 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.

If conditional approval is converted to a disapproval under Section

110(k), based on the State's failure to meet the commitment, it will

not affect any existing State requirements applicable to small

entities. Federal disapproval of the State submittal does not affect

its State-enforceability. Moreover, the EPA's disapproval of the

submittal does not impose a new Federal requirement. Therefore, the EPA

certifies that such a disapproval will not have a significant impact on

a substantial number of small entities because it does not remove

existing State requirements, nor does it substitute a new Federal

requirement.

B. Unfunded Mandates

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

Act of 1995, signed into law on March 22, 1995, the 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 sections 110 and 176 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, the 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, the 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. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, the EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

D. 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.

E. Petitions for Judicial Review

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

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

the appropriate circuit by November 12, 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)).

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.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

General conformity, Hydrocarbons, Incorporation by reference,

Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate

matter, Volatile organic compounds.

[[Page 48412]]

Dated: July 24, 1996.

Allyn M. Davis,

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 T--Louisiana

2. Section 52.970 is amended by adding paragraph (c)(67) to read as

follows:

Sec. 52.970 Identification of plan.

* * * * *

(c) * * *

(67) A revision to the Louisiana State Implementation Plan for

General Conformity: LAC 33:III. CHAPTER 14. SUBCHAPTER A ``Determining

Conformity of General Federal Actions to State or Federal

Implementation Plan'' as adopted by the Louisiana Department of

Environmental Quality Secretary and published in the Louisiana

Register, Vol. 20, No. 11, 1268, November 20, 1994, was submitted by

the Governor on November 10, 1994.

(i) Incorporation by reference.

(A) Louisiana General Conformity: LAC 33:III. CHAPTER 14.

SUBCHAPTER A ``Determining Conformity of General Federal Actions to

State or Federal Implementation Plan'' as adopted by the Louisiana

Department of Environmental Quality Secretary and published in the

Louisiana Register, Vol. 20, No. 11, 1268, November 20, 1994.

3. Section 52.994 is added to read as follows:

Sec. 52.994 Conditional approvals.

(a) General Conformity. A letter, dated December 5, 1995, from

Assistant Secretary of the Louisiana Department of Environmental

Quality to the EPA Regional Administrator, commits the State to make

corrections in section 1405(B) for restoring the EPA's authority in

certain sections of the rule. Specifically, the letter states that:

The State of Louisiana submitted a State Implementation Plan

(SIP) for General Conformity on November 30, 1994. The SIP review

conducted by EPA General Counsel identified an inconsistency with

the federal rule.

EPA's General Counsel advised that under 40 CFR 51.859 and LAC

33:III.1411, administrative authority belongs to EPA; and clarifies

that all requirements of Section 51.859 (State's 1411) are

applicable to any analyses required in 40 CFR 51.859 (State's LAC

33:III.1405). To clarify that requirements of Section 1411 are

applicable to Section 1405 and to correct the inconsistency, the

sentence cited in EPA's review will be changed to read as follows:

`Emissions from federal actions must be determined using methods

described in Section 1411 of this Subchapter.' Since Section 1411

gives administrative authority to EPA regional administrator, no

further clarification will be needed.

The State commits to make the above rule change within one year

from the Federal Register publication of final notice of conditional

approval to Louisiana's General Conformity SIP.

(b) (reserved)

[FR Doc. 96-23264 Filed 9-12-96; 8:45 am]

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