Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; General Conformity

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH039-7166a; A-1-FRL-6416-2]

Approval and Promulgation of Air Quality Implementation Plans;

New Hampshire; General Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving New Hampshire's General Conformity Rule,

incorporating it into the State Implementation Plan (SIP).

DATES: This direct final rule takes effect on October 15, 1999 without

further notice, unless EPA receives adverse or critical comments by

September 15, 1999. If EPA does receive adverse comments, we will

publish a timely withdrawal of the direct final rule in the Federal

Register and inform the public that the rule will not take effect.

ADDRESSES: You may mail comments to Susan Studlien, Deputy Director,

Office of Ecosystem Protection, EPA Region 1 (CAA), One Congress

Street, Suite 1100 (CAA), Boston, MA 02114. You may also email comments

to [email protected].

You may review copies of the relevant documents to this action by

appointment during normal business hours at the Office Ecosystem

Protection, EPA Region 1, One Congress Street, Boston, Massachusetts;

the Air and Radiation Docket and Information Center, USEPA, 401 M

Street, S.W., (LE-131), Washington, DC; and the Air Resources Division,

Department of Environmental Services, 64 North Main Street, Concord,

New Hampshire.

FOR FURTHER INFORMATION CONTACT: Matthew B. Cairns at 617-918-1667 or

[email protected].

SUPPLEMENTARY INFORMATION: This section is organized as follows:

What action is EPA taking today?

What is General Conformity?

Where does General Conformity apply?

Who must follow General Conformity?

How does General Conformity differ from Transportation Conformity?

What did New Hampshire submit to EPA for approval?

Why did New Hampshire have to develop its own General Conformity

Rule?

Why must New Hampshire's Rule be federally enforceable?

How does New Hampshire's General Conformity Rule meet the

requirements of a federally enforceable General Conformity Rule?

Does New Hampshire's General Conformity Rule differ from the Federal

General Conformity rule?

How does General Conformity affect air quality in New Hampshire?

Where can I get copies of the New Hampshire General Conformity Rule?

What is the process for EPA's approval of these SIP revisions?

What Action Is EPA Taking Today?

EPA is approving New Hampshire's General Conformity Rule,

incorporating it into the State Implementation Plan (SIP). This action

makes New Hampshire's General Conformity Rule federally enforceable.

What is General Conformity?

General Conformity is a safeguard that no action by the Federal

government interferes with a SIP's protection of the National Ambient

Air Quality Standards (NAAQS). Under General Conformity, any action by

the Federal government cannot:

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Cause or contribute to any new violation of any standard

in any area;

Interfere with provisions in the applicable SIP for

maintenance of any standard;

Increase the frequency or severity of any existing

violation of any standard in any area; or

Delay timely attainment of any standard of any required

interim emission reductions or other milestones in any area.

General Conformity is a requirement of section 176(c) of the Clean

Air Act Amendments of 1990 (CAA).

Where Does General Conformity Apply?

General Conformity applies in all nonattainment areas and

maintenance areas for all the criteria pollutants under the CAA: carbon

monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone

(O3), particulate matter (PM), and sulfur dioxide

(SO2). It applies to Federal actions which produce

reasonably foreseeable direct and indirect emissions of criteria

pollutants or their precursors.

Who Must Follow General Conformity?

All Federal government agencies must follow General Conformity

rules. The General Conformity rule establishes thresholds for

triggering a conformity analysis. These rules and the requirements for

a conformity analysis appear in detail in 40 CFR 51.851 and 93.151.

How Does General Conformity Differ From Transportation Conformity?

Transportation Conformity applies to transportation plans,

programs, and projects funded or approved by the Federal Highway

Administration or the Federal Transit Administration or recipients of

fund from those agencies. General Conformity applies to all other

Federal actions. When both Transportation Conformity and General

Conformity apply to an action, if a transportation plan, program, or

project meets the requirements of the Transportation Conformity rules

in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A, it is

considered to meet the requirements of General Conformity.

What Did New Hampshire Submit to EPA for Approval?

New Hampshire submitted its General Conformity Rule, titled

``Chapter Env-A 1500--Conformity, Part Env-A 1502--Conformity of

General Federal Actions,'' to EPA on July 10, 1996 as a revision to its

SIP. The SIP revision for this rule incorporates by reference

appropriate sections of 40 CFR part 51, subpart W and thereby

establishes General Conformity criteria and procedures in the New

Hampshire SIP.

Why Did New Hampshire Have to Develop Its Own General Conformity

Rule?

The CAA requires each State to develop rules to implement the

General Conformity rule. (See 40 CFR 51.851 and 93.151.) EPA believes

that the Federal government does not have the primary responsibility

for achieving clean air goals; Congress assigned that responsibility to

State and local agencies. Therefore, each State must submit a revised

SIP that includes General Conformity criteria and procedures that are

consistent with the General Conformity rule. These criteria require

that State Rules must be at least as stringent as the requirements

specified in EPA's General Conformity rule. Furthermore, that they can

only be more stringent if they apply equally to Federal and non-federal

entities.

Why Must New Hampshire's Rule Be Federally Enforceable?

New Hampshire's General Conformity SIP revision enables the State

of New Hampshire to implement and enforce the Federal General

Conformity rules in New Hampshire's nonattainment and maintenance areas

at the State and local level. By approving New Hampshire's Rule into

the SIP, EPA also gains the authority to enforce the Federal General

Conformity rules and New Hampshire's General Conformity Rule at the

Federal level.

How Does New Hampshire's General Conformity Rule Meet the

Requirements of a Federally Enforceable General Conformity Rule?

Section 110 of the CAA requires each State to adopt and submit to

EPA a plan providing for the implementation, maintenance, and

enforcement of air quality standards and control programs.

The New Hampshire Office of Legislative Services has determined

that this SIP revision will be enforceable under the Laws of New

Hampshire, RSA 125-C:4 Rulemaking Authority; Subpoena Power. This law

states in part, ``The director shall adopt rules, subject to the

written approval of the commissioner, under RSA 541-A, relative to:

(a) The prevention, control, abatement, and limitation of air

pollution, including, but not limited to, open air source pollution,

mobile source pollution, and stationary source pollution, and

(b) Primary and secondary ambient air quality standards.''

Does New Hampshire's General Conformity Rule Differ From the

Federal General Conformity Rule?

New Hampshire has incorporated the Federal General Conformity rule

by reference, so New Hampshire's rule is no more stringent that the

Federal rule and does not impose any additional controls on non-federal

entities.

How Does General Conformity Affect Air Quality in New Hampshire?

If New Hampshire did not take steps to avoid pollution, air quality

in New Hampshire would be degraded. The principle behind General

Conformity is that the agency that sponsors or supports an activity is

in the best position to limit the adverse air quality impacts of that

activity. General Conformity is designed to hold those with the

responsibility for a project accountable for the emissions that result

from that project. The ultimate goal is to prevent actions that the

Federal government supports from undermining State efforts to achieve

and maintain clean air in a cost-effective manner.

Where Can I Get Copies of the New Hampshire General Conformity

Rule?

As stated in the ADDRESSES section above, you may review copies of

the New Hampshire General Conformity Rule by appointment during normal

business hours at the Office Ecosystem Protection, EPA Region 1, One

Congress Street, Boston, Massachusetts; the Air and Radiation Docket

and Information Center, USEPA, 401 M Street, S.W., (LE-131),

Washington, DC; and the Air Resources Division, Department of

Environmental Services, 64 North Main Street, Concord, New Hampshire.

You may also view a copy of the New Hampshire General Conformity Rule

via the Internet at http://www.state.nh.us/des/ard/enva1502.pdf.

What Is the Process for EPA's Approval of These SIP Revisions?

EPA is publishing this rule without prior proposal because we view

this as a noncontroversial amendment and anticipate no adverse

comments. However, in the proposed rules section of this Federal

Register publication, EPA is also publishing a separate document that

will serve as the proposal to approve this SIP revision should we

receive relevant adverse comments. This action will be effective

October 15, 1999 without further notice unless we receive relevant

adverse comments by September 15, 1999.

If EPA does receive adverse comments, we will withdraw the direct

final rule and publish a notice that the rule will not take effect. We

will then

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respond to all public comments received in a subsequent final rule

based on the proposed rule. The EPA will not institute a second comment

period on the proposed rule. If you are interested in commenting on

this action, you should do so at this time. If no such comments are

received, you should know that this rule will be effective on October

15, 1999 and no further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Orders 12866 and 13045

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

The final rule is not subject to Executive Order 13045, entitled

``Protection of Children from Environmental Health Risks and Safety

Risks,'' because it is not an ``economically significant'' action under

Executive Order 12866.

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a State, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of State, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on State, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, representatives of Indian tribal governments

``to provide meaningful and timely input in the development of

regulatory policies on matters that significantly or uniquely affect

their communities.'' Today's rule does not significantly or uniquely

affect the communities of Indian tribal governments. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

D. Regulatory Flexibility

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air 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

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

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

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of State action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

E. Unfunded Mandates

Under sections 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 to State, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. 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

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

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

F. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit 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 United States 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).

G. Petitions for Judicial Review

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 October 15, 1999. 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).) EPA encourages

interested parties to comment in response to the proposed rule rather

than petition for judicial review, unless the objection arises after

the comment period allowed for in the proposal.

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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, Reporting and

recordkeeping requirements, Sulfur dioxide.

Note: Incorporation by reference of the State Implementation

Plan for the State of New Hampshire was approved by the Director of

the Federal Register on July 1, 1982.

Dated: July 28, 1999.

John P. DeVillars,

Regional Administrator, Region 1.

Part 52 of 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 EE--New Hampshire

2. Section 52.1520 is amended by adding paragraph (c)(63) to read

as follows:

Sec. 52.1520 Identification of plan.

* * * * * *

(c) * * *

(63) Revisions to the State Implementation Plan Submitted by the New

Hampshire Department of Environmental Services on July 10, 1996.

(i) Incorporation by reference.

(A) Letter from the New Hampshire Department of Environmental

Services dated July 10, 1996 submitting a revision to the New Hampshire

State Implementation Plan.

(B) Part Env-A 1502 of Chapter Env-A 1500 of the New Hampshire Code

of Administrative Rules titled ``Conformity of General Federal

Actions,'' adopted in the State of New Hampshire on April 25, 1996.

For the State of New Hampshire

3. In Sec. 52.1525, Table 52.1525 is amended by adding at the end

of the table a new state citation for Conformity of General Federal

Actions to read as follows:

Sec. 52.1525 EPA-approved New Hampshire state regulations.s

* * * * *

Table 52.1525--EPA-Approved Rules and Regulations--New Hampshire

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State citation Date adopted by Date approved by Federal Register

Title/subject chapter State EPA citation 52.1520 Comments

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* * * * * * *

Conformity of General Federal CH Env-A 1500, Part April 19, 1996..... August 16, 1999... [Insert FR c(63) None.

Actions. Env-A 1502. citation from

published date].

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[FR Doc. 99-21002 Filed 8-13-99; 8:45 am]

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