Approval and Promulgation of Air Quality Implementation Plans; States of Colorado, Utah and Wyoming; General Conformity

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CO-001-0035a; UT-001-0023a; WY-001-0004a; FRL-6471-4]

Approval and Promulgation of Air Quality Implementation Plans;

States of Colorado, Utah and Wyoming; General Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving General Conformity SIP revisions submitted by

the Governor of Wyoming on March 14, 1995; submitted by the Governor of

Utah on February 12, 1996; and submitted by the Governor of Colorado on

September 16, 1997. These SIP revisions were submitted to meet a

requirement of section 176(c) of the Clean Air Act.

DATES: This direct final rule is effective on January 18, 2000, without

further notice, unless EPA receives adverse comments by December 20,

1999. If adverse comment is received, EPA 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: Written comments may be mailed to: Richard R. Long,

Director, Air and Radiation Program, Mailcode 8P-AR, United States

Environmental Protection Agency, Region VIII, 999

[[Page 63207]]

18th Street, Suite 500, Denver, Colorado 80202-2466.

Copies of the documents relevant to this action are available for

public inspection during normal business hours at the following

offices:

United States Environmental Protection Agency, Region VIII, Air and

Radiation Program, 999 18th Street, Suite 500, Denver, Colorado 80202-

2466; and,

United States Environmental Protection Agency, Air and Radiation Docket

and Information Center, 401 M Street, SW, Washington, DC 20460.

Copies of the State documents relevant to this action are available

for public inspection at:

Colorado Air Pollution Control Division, Colorado Department of Public

Health and Environment, 4300 Cherry Creek Drive South, Denver,

Colorado, 80246-1530.

Utah Division of Air Quality, Department of Environmental Quality, 150

North 1950 West, Salt Lake City, Utah, 84114-4820.

Air Quality Division, Department of Environmental Quality, 122 West

25th Street, Cheyenne, Wyoming, 82002.

FOR FURTHER INFORMATION CONTACT: Jeff Houk, Air and Radiation Program,

Mailcode 8P-AR, United States Environmental Protection Agency, Region

VIII, 999 18th Street, Suite 500, Denver, Colorado 80202-2466;

Telephone number: (303) 312-6446.

SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we,''

``our,'' or ``us'' is used, we mean EPA.

I. Summary of EPA's Actions

Today we are approving the General Conformity SIP revisions

submitted by the Governor of Wyoming on March 14, 1995; submitted by

the Governor of Utah on February 12, 1996; and submitted by the

Governor of Colorado on September 16, 1997. Our approval means that the

SIP criteria and procedures will govern future general conformity

determinations instead of the Federal rules at 40 CFR part 93, subpart

B.

II. Evaluation of the States' Submittals

Section 110(k) of the Act addresses our actions on submissions of

SIP revisions. The Act also requires States to observe certain

procedures in developing SIP revisions. Section 110(a)(2) of the Act

requires that each SIP revision be adopted after reasonable notice and

public hearing. We have evaluated the States' submissions and

determined that the necessary procedures were followed. We found that

Wyoming's SIP revision was administratively and technically complete in

a letter to the Governor dated May 26, 1995. Utah's SIP revision became

complete by operation of law on April 12, 1996. Colorado's SIP revision

became complete by operation of law on November 15, 1997.

The States' General Conformity SIP revisions must contain criteria

and procedures that are at least as stringent as those in the Federal

rule. States may incorporate the Federal rule into State rules.

Wyoming's New Air Quality Standards Regulation Section 32

We are approving Wyoming's General Conformity SIP revision because

section 32 includes every requirement of the federal rule except for 40

CFR 93.151 (``State Implementation Plan (SIP) revision''), which

discusses how the Federal and State conformity rules interact. State

rules govern conformity determinations once we approve them. 40 CFR

93.151 has the same effect whether or not it is incorporated into the

State SIP because it specifies that any part of the Federal rule not

included in EPA-approved State rules remains in effect at the federal

level.

Wyoming also added a definition to its rule that wasn't included in

the Federal rule, for ``CAA'' (Clean Air Act), and slightly modified

the definitions for ``Milestone,'' and ``Nonattainment Area (NAA).'' We

agree with these minor changes to the Federal rule language.

Utah's General Conformity SIP Revision

We are approving Utah's General Conformity SIP, which simply adopts

the Federal rule into State rules. It was adopted in three separate

actions: (1) A new section XXII to the SIP, General Conformity; (2) a

new State rule, R307-2-30, incorporating this section of the SIP into

State rules, and (3) a new rule R307-19, formally incorporating the

Federal rule into State rules.

The effective date for the Federal rule cited in the State rule and

the SIP (November 30, 1992) is incorrect. The Federal rule took effect

on January 31, 1994. This error does not affect the applicability or

the approvability of Utah's SIP.

Colorado's revisions to its Regulation No. 10, ``Criteria for Analysis

of Conformity''

We are approving these revisions, which incorporate 40 CFR part 51,

subpart W, and 40 CFR 6.303 into the State rule. Colorado should have

incorporated the Federal conformity rule (40 CFR part 93, subpart B)

rather than the General Conformity SIP requirements of 40 CFR part 51,

subpart W. However, these two regulations are identical except for the

conformity SIP requirement itself (40 CFR 51.851(a)), which no longer

applies because the State has submitted its SIP.

Colorado also incorporated changes that we made to 40 CFR part 6 at

the time we finalized our conformity rule. 40 CFR part 6 contains

regulations to ensure that our actions meet the requirements of the

National Environmental Policy Act of 1969 and the Council on

Environmental Quality's implementing regulations of November 29, 1978

(43 FR 55978). We revised 40 CFR 6.303 to reference the general

conformity requirements and to state that our actions must meet these

requirements. We don't require states to incorporate these requirements

into general conformity SIPs, but they can.

III. Background on our General Conformity Requirements

The SIPs we are approving today were submitted to meet a

requirement of Clean Air Act section 176(c), which spells out the Act's

conformity requirements and directs each State to submit conformity

SIPs. Under section 176(c), ``no Federal department, agency, or

instrumentality shall engage in, support in any way or provide

financial assistance for, license or permit or approve any activity

which does not conform to a SIP that has been approved or promulgated

pursuant to the Act.'' This section defines conformity as compliance

with the SIP's purpose of attaining the National Ambient Air Quality

Standards, and states that federal activities will not cause or

contribute to a new violation of any standard in any area, increase the

frequency or severity of an existing violation of any standard in any

area, or delay timely attainment of a standard or any required interim

emission reductions or other milestones in any area.

Section 176(c)(4)(A) requires us to issue criteria and procedures

for determining conformity of all Federal actions to applicable SIPs.

40 CFR part 93, subpart A spells out criteria and procedures for

determining conformity of Federal actions related to transportation

projects funded or approved under Title 23 U.S.C. or the Federal

Transit Act. 40 CFR part 93, Subpart B (``Determining Conformity of

General Federal Actions to State or Federal Implementation Plans'')

spells out criteria and procedures for determining conformity of all

other Federal actions. These are the requirements that we are acting on

with

[[Page 63208]]

respect to the State SIPs in this approval.

IV. Final Action

In this action, EPA is approving the General Conformity SIP

revisions submitted by the Governor of Wyoming on March 14, 1995;

submitted by the Governor of Utah on February 12, 1996; and submitted

by the Governor of Colorado on August 19, 1998.

EPA is publishing this action without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

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

Federal Register publication, we are publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective January 18,

2000, without further notice unless the Agency receives adverse

comments by December 20, 1999.

If EPA receives such comments, then we will publish a timely

withdrawal of the direct final rule informing the public that the rule

will not take effect. All public comments received will then be

addressed in a subsequent final rule based on the proposed rule. The

EPA will not institute a second comment period on this rule. Any

parties interested in commenting on this rule should do so at this

time. If no such comments are received, the public is advised that this

rule will be effective on January 18, 2000, and no further action will

be taken on the proposed rule.

Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Orders 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.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),)

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612, (52 FR 41685 (October 30, 1987),) on federalism

still applies. This rule will not have a substantial direct effect on

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 12612.

The rule affects only three states, and does not alter the relationship

or the distribution of power and responsibilities established in the

Clean Air Act.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. 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, E.O. 13084 requires EPA to develop an effective

process permitting elected and other 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.

E. 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).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed

[[Page 63209]]

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 annual costs to State,

local, or tribal governments in the aggregate; or to 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 annual 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.

G. 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. A major rule cannot

take effect until 60 days after it is published in the Federal

Register. This rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so would be inconsistent with applicable law or otherwise

impractical.

The EPA believes that VCS are inapplicable to this action. Today's

action does not require the public to perform activities conducive to

the use of VCS.

I. 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 January 18, 2000. 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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Reporting and recordkeeping

requirements.

Dated: October 13, 1999

Jack W. McGraw,

Acting Regional Administrator, Region VIII.

Chapter I, title 40, parts 52 and 81 of the Code of Federal

Regulations are 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 G--Colorado

2. Section 52.320 is amended by adding paragraph (c)(85) to read as

follows:

Sec. 52.320 Identification of plan.

* * * * *

(c) * * *

(85) On September 16, 1997, the Governor of Colorado submitted

revisions to Regulation No. 10 ``Criteria for Analysis of Conformity''

that incorporate the General Conformity requirements of 40 CFR part 51,

Subpart W into State regulation.

(i) Incorporation by reference.

(A) Regulation No. 10 ``Criteria for Analysis of Conformity'', 5

CCR 1001-12, as adopted on October 17, 1996, effective December 30,

1996.

Subpart TT--Utah

3. Section 52.2320 is amended by adding paragraph (c)(42) to read

as follows:

Sec. 52.2320 Identification of plan.

* * * * *

(c) * * *

(42) On February 12, 1996, the Governor of Utah submitted revisions

submitted revisions to the SIP that incorporate the General Conformity

requirements of 40 CFR part 93, subpart B into the SIP and State

regulation.

(i) Incorporation by reference.

(A) UACR R307-2-30, Section XXII, General Conformity, as adopted on

October 4, 1995, effective October 12, 1995.

(B) UACR R307-19, General Conformity, as adopted on October 4,

1995, effective October 12, 1995.

Subpart ZZ--Wyoming

4. Section 52.2620 is amended by adding paragraph (c)(28) to read

as follows:

Sec. 52.2620 Identification of plan.

* * * * *

(c) * * *

(28) On March 14, 1995, the Governor of Wyoming submitted revisions

to the SIP that incorporate the General Conformity requirements of 40

CFR part 93, Subpart B into State regulation.

(i) Incorporation by reference.

(A) Section 32 of the Wyoming Air Quality Standards, ``Conformity

of General Federal Actions to State Implementation Plans,'' effective

February 13, 1995.

[FR Doc. 99-30232 Filed 11-18-99; 8:45 am]

BILLING CODE 6560-50-U