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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TX 62-1-7271a; FRL-5971-7]

Approval and Promulgation of Implementation Plan for Texas:

General Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This action approves a revision to the Texas State

Implementation Plan (SIP) that contains regulations for implementing

and enforcing the general conformity rules which the EPA promulgated on

November 30, 1993. Specifically, Texas' adoption of the general

conformity rules enables the Texas Natural Resource Conservation

Commission (TNRCC) 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 SIPs submitted for the nonattainment and maintenance areas in

Texas. 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

approved the Texas transportation conformity SIP on November 8, 1995.

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 document.

DATES: This action will become effective on May 11, 1998, unless notice

is postmarked by April 10, 1998 that someone wishes to submit adverse

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

will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to Mr. Thomas H. Diggs,

Chief, Air Planning Section, at the EPA Region 6 address listed. Copies

of the Texas General Conformity SIP and other relevant information are

available for inspection during normal business

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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 Policy and Regulations Division, Texas Natural Resource

Conservation Commission, 12124 Park Circle, Austin, Texas 78753,

Telephone: (512) 239-0800.

Documents which are incorporated by reference are available for

public inspection at Air and Radiation Docket and Information Center,

U.S. Environmental Protection Agency, 401 M Street, S.W., Washington,

D.C. 20460.

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 Act, as amended, in

1977 (Pub. L. 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 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

codified them at 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

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

the Governor of Texas submitted a SIP revision which included the

general conformity rules adopted by the TNRCC. The State general

conformity rule 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 State's general

conformity SIP revision.

On November 22, 1994, the Governor of Texas submitted a SIP

revision in compliance with 40 CFR part 51, subpart W that contains the

general conformity rules. The SIP revision was adopted by the

commissioners on November 16, 1994, after appropriate public

participation and interagency consultation. The EPA could not approve

this revision based on the evaluation results described below.

The EPA's preliminary review indicated that sections

101.30(c)(3)(D), 101.30(c)(10), and 101.30(I)(2)(A)(ii) of the State

rule were more stringent than the Federal rules. The general conformity

rule, 40 CFR 51.851(b), requires the State conformity rule contain

criteria and procedures that are no less stringent than the Federal

rule. In addition, the conformity rule allows the State to establish

more stringent conformity criteria and procedures only if they apply

equally to non-Federal as well as Federal entities. The State had not

selected this option and the State rule was only applicable to the

Federal actions.

Section 101.30(c)(3)(D) allowed exemption of individual actions

which implement a decision to conduct or carry out a program that has

been found to conform to the SIP (such as prescribed burning actions

which are consistent with a conforming land management plan) only if

such land management plan has been found to conform within the past

five years. In contrast, EPA's regulation (see 40 CFR 51.853(c)(4))

does not place a time limit on the conformity determination for the

project unless the conformity determination on the plan lapses as a

result of a continuous program not having been implemented within a

reasonable time.

Section 101.30(c)(10) contained a phrase that made the State rule

inconsistent with the Federal rule because the Federal rule did not

include any additional qualifying phrase concerning the presumed de

minimis requirements. Inclusion of this phrase made this section

contradictory to other sections.

Section 101.30(I)(2)(A)(ii) allowed conformity analyses (for which

the analysis was begun during the grace period or no more than three

years before the Federal Register notice of availability of the latest

emission model) to continue to use the previous version of the model

specified by EPA only if a final conformity determination was made

within three years of such analysis. EPA's rule, 40 CFR

51.859(b)(1)(ii), does not include a time limit on the use of the model

analyses begun during or just before the grace period.

Since the State's rule is only applicable to the Federal actions,

EPA could not approve the State's general conformity SIP as submitted

by the Governor on November 22, 1994, because the State's rule was more

stringent than the Federal requirements. After EPA's consultation with

the State, the State of Texas has reconsidered its original SIP

submission and agreed with the EPA's assessment as discussed above.

Subsequently, the Governor of Texas submitted a revised SIP on August

21, 1997, which removed the inconsistencies described above. The

revised SIP was adopted by the TNRCC on July 9, 1997. The SIP

revisions, submitted on November 22, 1994, and August 21, 1997, adopt

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. The EPA has

determined that Texas' general conformity rule, as submitted by the

Governor on November 22, 1994, and August 21, 1997, meets the Federal

requirements

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and therefore, EPA is approving this SIP revision.

III. Final Action

The EPA is approving a revision to the State of Texas SIP which

contains general conformity regulations as submitted by the Governor of

Texas on November 22, 1994 and August 21, 1997. The State general

conformity rule is applicable to all nonattainment and maintenance

classifications in the State. The EPA has evaluated these SIP revisions

and has determined that TNRCC has fully adopted the provisions of the

Federal general conformity rules in accordance with 40 CFR part 51,

subpart W. The appropriate public participation and comprehensive

interagency consultations have been undertaken during development and

adoption of these rules by the TNRCC 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 May 11, 1998, unless adverse or critical comments concerning

this action are submitted and postmarked by April 10, 1998. 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

May 11, 1998.

IV. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget has exempted this regulatory

action from Executive Order 12866 review.

B. 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 (see 5 U.S.C. 603 and

604). Alternatively, 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.

The SIP 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, 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 Act, preparation of

a regulatory flexibility analysis would constitute Federal inquiry into

the economic reasonableness of State action. The Act 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).

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.

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, the 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 private sector, of $100

million or more. Under section 205, the 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 the EPA to establish a plan for informing and advising any

small governments that may be significantly or uniquely impacted by the

rule.

The 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

requirements. Accordingly, no additional costs to State, local, or

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

D. 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 the

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

U.S.C. 804(2).

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 May 11, 1998. 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).

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, Reporting and recordkeeping requirements, Volatile organic

compounds.

Dated: February 9, 1998.

Jerry Clifford,

Acting Regional Administrator, Region 6.

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 et seq.

Subpart SS--Texas

2. Section 52.2270 is amended by adding paragraph (c)(106) to read

as follows:

Sec. 52.2270 Identification of plan.

* * * * *

(c) * * *

(106) A revision to the Texas State Implementation Plan: Regulation

30 TAC Chapter 101 ``General Rules'', Section 101.30 ``Conformity of

General and State Actions to State

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Implementation Plans'' as adopted by the Texas Natural Resource

Conservation Commission (TNRCC) on November 16, 1994, and July 9, 1997,

was submitted by the Governor on November 22, 1994, and August 21,

1997, respectively.

(i) Incorporation by reference.

(A) The Texas Natural Resource Conservation Commission (TNRCC)

Regulation 30, TAC Chapter 101 ``General Rules'', Section 101.30

``Conformity of General and State Actions to State Implementation

Plans'' as adopted by TNRCC on November 16, 1994, and July 9, 1997.

(B) TNRCC orders Docket No. 94-0709-SIP and 97-0143-RUL as passed

and approved on November 16, 1994, and July 9, 1997, respectively.

* * * * *

[FR Doc. 98-5847 Filed 3-10-98; 8:45 am]

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