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Approval and Promulgation of Implementation Plans; Ohio
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[Federal Register: May 30, 2000 (Volume 65, Number 104)]
[Rules and Regulations]
[Page 34395-34399]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my00-5]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH1351a, FRL66008]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving, as set forth below, a request from Ohio
for a revision to the Ohio State Implementation Plan (SIP) for
transportation conformity. The transportation conformity SIP revision
enables the State of Ohio to implement and enforce the Federal
transportation conformity requirements at the State or local level. The
submitted amendments to Ohio Administrative Code reflect the third set
of EPA revisions to the federal transportation conformity rules. These
rule changes will assure conformity of transportation improvement
programs, transportation plans and transportation projects to the SIP.
On October 6, 1999, the State of Ohio submitted the adopted rules and
public hearing documentation to EPA and requested a revision to the
federally approved SIP.
DATES: This rule is effective on July 31, 2000, unless EPA receives
adverse written comments by June 29, 2000. If adverse comment is
received, EPA will publish a timely withdrawal of the rule in the
Federal Register and inform the public that the rule will not take
effect.
ADDRESSES: Send written comments to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR18J),
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the material submitted by the State in support of this
request is available for inspection at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. (Please telephone Patricia Morris
at (312) 3538656 before visiting the Region 5 Office.)
FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental
Scientist, Regulation Development Section, Air Programs Branch (AR18J),
USEPA, Region 5, Chicago, Illinois 60604, (312) 3538656.
SUPPLEMENTARY INFORMATION: Throughout this document wherever we, us, or
our is used we mean EPA.
Table of Contents
I. Background
A. What is Transportation Conformity?
B. Why Must the State Submit a Transportation Conformity SIP?
II. Review of the State Transportation Conformity Rule.
A. What Did the State Submit?
B. How Does the Submittal Change the Currently Approved State
Transportation Conformity Rules?
C. What is EPA Approving Today and Why?
III. Rulemaking Actions
IV. Administrative Requirements
A. Executive Order 12866
B. Executive Orders on Federalism
C. Executive Order 13045
D. Executive Order 13084
E. Regulatory Flexibility Act
F. Unfunded Mandates
G. Submission to Congress and the Comptroller General
H. National Technology Transfer and Advancement Act
I. Petitions for Judicial Review
I. Background
A. What is Transportation Conformity?
The purpose of transportation conformity is to assure that
transportation plans, programs and projects, approved by the United
States Department of Transportation conform to the purpose of the SIP
to attain and maintain the public health based air quality standards.
Conformity provisions first appeared in the Clean Air Act (CAA)
amendments of 1977 (Public Law 9595). Although these provisions did not
define the term 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 CAA Amendments of 1990 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 CAA 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 affected 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 requires EPA to promulgate criteria and procedures for
determining conformity of all Federal actions in the nonattainment or
maintenance areas to the SIP. Actions under title 23 United States Code
(U.S.C.) or the Federal Transit Act are covered under the
transportation conformity rules codified at 40 CFR part 51, subpart T
and part 93, subpart AConformity 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
criteria and procedures developed for all other federal actions are
called general conformity rules.
B. Why Must the State Submit a Transportation Conformity SIP?
The original 1993 conformity rule required the States and local
agencies to adopt and submit a transportation conformity SIP revision
to the EPA not later than November 24, 1994 (40 CFR 51.396). Ohio
submitted its SIP revision for state transportation conformity rules on
August 17, 1995.
The federal transportation conformity rule however, was amended on
August 8, 1995, and again on November 14, 1995. The November 14, 1995,
amendments allow 12 months, or until November 14, 1996, for States to
submit a transportation conformity SIP revision consistent with these
amendments. Ohio had submitted state conformity rules consistent with
the original November 24, 1994, conformity rules on August 17, 1995,
and these rules were conditionally approved by EPA on May 16, 1996 (61
FR 24702). The condition of the approval was that Ohio update the State
transportation conformity rules to be consistent with the federal
amendments. Ohio updated its State
[[Page 34396]]
rules and met the condition of the conditional approval within the
allotted time.
The federal conformity rule was again amended on August 15, 1997
(40 CFR parts 51 and 93 Transportation Conformity Rule Amendments:
Flexibility and Streamlining). States were again given a 12 month time
frame to submit State rules consistent with the amendment. Ohio
proceeded to update the state transportation conformity rules and
submitted the rules on October 6, 1999 (this submittal is the subject
of this rulemaking action). However, on March 2, 1999, the United
States Court of Appeals for District of Columbia Circuit issued its
opinion in Environmental Defense Fund v. Environmental Protection
Agency, No. 971637. The Court granted the environmental group's
petition for review and ruled that several provisions in the federal
transportation conformity rules were unlawful. The rules approved in
this rulemaking are consistent with the August 15, 1997, federal
conformity amendments that remained unchanged by the Court decision.
However, Ohio will need to submit another transportation conformity SIP
revision consistent with future amendments to the transportation
conformity rule.
The approval of these State transportation conformity rules will
update the federally approved State rules to be more consistent with
the federal conformity rules, thereby improving the conformity process
and providing consistency with other States rules and the federal rule.
II. Review of the State Transportation Conformity Rule
A. What Did the State Submit?
Pursuant to the requirements under section 176(c)(4)(C) of the
Clean Air Act, the Ohio Environmental Protection Agency (OEPA)
submitted a SIP revision to the EPA on October 6, 1999. In its
submittal, the State adopted State rules to meet the requirements of 40
CFR part 51, subpart T, and part 93 subpart A, as published on August
15, 1997. Transportation conformity is required for all nonattainment
or maintenance areas for any transportation related criteria pollutants
(40 CFR 51.394 (b)).
The State of Ohio currently has 28 counties which are ozone
nonattainment or ozone maintenance areas and thus require Ohio to
prepare transportation conformity analyses. These areas are: Toledo
area (Lucas and Wood Counties), Cleveland/Akron area (Lorain, Cuyahoga,
Medina, Summit, Portage, Geauga, Lake, and Ashtabula Counties),
Youngstown area (Trumbull and Mahoning Counties), Canton (Stark
County), Columbus (Franklin, Delaware and Licking Counties), Cincinnati
(Hamilton, Butler, Clermont, and Warren Counties), Dayton (Preble,
Montgomery, and Greene Counties), Springfield (Miami and Clark
Counties), Clinton County, Columbiana County, and Jefferson County. In
addition to the ozone nonattainment and maintenance areas, Cuyahoga
County is also a maintenance area for carbon monoxide.
Section 51.390 of the transportation conformity rule requires that
the majority of the Federal rules be incorporated verbatim, with only a
few exceptions. In addition, the rule states that State rules can not
be more stringent than the Federal rules unless the conformity
provisions apply equally to non-federal as well as Federal entities (40
CFR 51.396(a)). The OEPA held a public hearing on the transportation
conformity submittal on December 10, 1998.
B. How Does the Submittal Change the Currently Approved State
Transportation Conformity Rules?
The currently approved Ohio conformity rules comply with the 1994
federal conformity regulations. These federal regulations have been
amended significantly, as discussed in the previous section. The Ohio
submittal revises the State conformity regulations consistent with the
1997 Transportation Conformity Rule Amendments: Flexibility and
Streamlining, which is the most current federal transportation
conformity regulation.
Section 51.390 of the federal transportation conformity rule states
that to be approved by the EPA, the submitted SIP revision must address
all requirements of this subpart in a manner which gives them full
legal effect. In particular, the revision shall incorporate the
provisions of the following sections verbatim, except insofar as needed
to give effect to a stated intent in the revision to establish criteria
and procedure more stringent than the requirements stated in these
sections: 93.101, 93.102, 93.103, 93.104, 93.106, 93.109, 93.110,
93.111, 93.112, 93.113, 93.114, 93.115, 93.116, 93.117, 93.118, 93.119,
93.120, 93.121, 93.126, and 93.127. The State of Ohio submittal
incorporated all of the above sections verbatim following the August
15, 1997 version of the federal rules, with only clarifying changes.
The criteria and procedures for consultation between State and local
agencies, metropolitan planning organizations and federal agencies were
changed from the previous State consultation rules. These changes are
not being approved, as discussed further in the next section.
C. What is EPA Approving Today and Why?
We are approving certain sections of the Ohio transportation
conformity rule amendments which were adopted on January 26, 1999, and
became effective on February 16, 1999.
The following is a summary of the Ohio Administrative Code and the
sections that are being approved and why, and the sections that are not
being approved and why:
OAC 374510102 Definitions. These definitions are consistent with
the federal rule and the Court decisions. This rule is being approved.
OAC 374510103 (A), (B), (C), (D), (G), (H), (I), (J), (K), (L)
Applicability, priority, and frequency of conformity determinations.
The sections listed are being approved as consistent with the federal
rule and the Court decisions. However, sections (E) and (F) are not
being approved. Section E allows projects to proceed to completion
after completing the National Environmental Policy Act (NEPA)
requirements. This provision was struck down by the court in case No.
971637. Section F allows a grace period of 12 months for new
nonattainment areas. This was disallowed by the United States Court of
Appeals for the District of Columbia Circuit in case No. 961007.
OAC 374510104 Consultation. This section is not being approved. The
State is required to promulgate procedures and rules for consultation
between State and local agencies, metropolitan planning organizations
and federal agencies. Although this section has not been affected by
the Court decisions, the submitted version does not have the detail of
the previously approved consultation rule. Therefore, rule OAC
374510104 will remain the same as previously approved.
OAC 374510105 Content of transportation plans. This section is
being approved. It is consistent with the federal rule and the Court
decisions.
OAC 374510106 Relationship with NEPA and fiscal constraints. This
section is being approved. It is consistent with the federal rule and
the Court decisions.
OAC 374510107 Criteria and procedures for conformity determination,
assumptions, emissions model, and consultation. Sections A, B, C, D, E,
F, G, H, I, and J are being approved except for the parts of the
sections which require a submitted budget to be used 45 days after
submittal to EPA. These sections are contrary to the March 2, 1999,
Court
[[Page 34397]]
decisions. The parts of sections that are not being approved are as
follows: OAC 374510107 (C)(1)(a), (C)(2)(a),
OAC 374510108 Criteria and procedures for implementation of TCMs,
current conformity, and projects from a plan and TIP. This section is
being approved. It is consistent with the federal rule and the Court
decisions.
OAC 374510109 Localized CO and PM10 violations and compliance with
PM10 control measures. This section is being approved. It is consistent
with the federal rule and the Court decisions.
OAC 374510110 Motor Vehicle Emissions Budgets. Sections A, B, C and
D are being approved because these sections are consistent with the
federal rule and the Court decisions. Section E is not being approved
because it is not consistent with the March 2, 1999 Court decisions.
OAC 374510111 Criteria and Procedures: Emission Reductions in Areas
Without Motor Vehicle Emissions Budgets. This section is being
approved. It is consistent with the federal rule and the Court
decisions.
OAC 374510112 Consequences of Control Strategy Implementation Plan
Failures. This section is being approved because it is consistent with
the federal rule and the Court decisions, except for section (A)(2)
which allows 120 days after a control strategy SIP disapproval before a
conformity lapse takes effect. The Court ruled that a conformity lapse
must take effect on the same day as the effective date of a control
strategy disapproval.
OAC 374510113 Requirements for Adoption or Approval of Projects by
Other Recipients of Funds Designated Under Title 23 U.S.C. or the
Federal Transit Laws. This section is being approved because it is
consistent with the federal rule and the Court decisions, except for
section (A)(1) which allows a regionally significant project in the
first 3 years of the Transportation Improvement Program to proceed
during a conformity lapse. This provision was rescinded by the Court.
OAC 374510114 Procedures for Determining Regional Transportation-
Related Emissions. This section is being approved. It is consistent
with the federal rule and the Court decisions.
OAC 374510115 Procedures for Determining Localized CO and PM10
Concentrations (Hot-Spot Analysis). This section is being approved. It
is consistent with the federal rule and the Court decisions.
OAC 374510117 Enforceability of design concept and scope and
project-level mitigation and control measures. This section is being
approved. It is consistent with the federal rule and the Court
decisions.
OAC 374510118 Exempt projects. This section is being approved. It
is consistent with the federal rule and the Court decisions.
OAC 374510119 Traffic Signal Synchronization Projects. This section
is being approved. It is consistent with the federal rule and the Court
decisions.
III. Rulemaking Actions
EPA is approving portions of the Ohio Transportation Conformity SIP
revision submitted on October 6, 1999. EPA is only approving the
sections detailed in the above listing. The rules being approved are
consistent with the federal transportation conformity rule and the
subsequent Court decisions. EPA is publishing this action without prior
proposal because EPA views this as a noncontroversial revision and
anticipates no adverse comments. However, in a separate document in
this Federal Register publication, EPA is proposing to approve the SIP
revision should adverse written comments be filed. This action will be
effective without further notice unless EPA receives significant and
relevant adverse written comments by June 29, 2000. Should the Agency
receive such comments, it will publish a final rule informing the
public that this action will not take effect. 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 on July 31, 2000.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled Regulatory
Planning and Review.
B. Executive Orders on Federalism
Under Executive Order 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, Executive Order 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 Executive Order 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 one State, 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 Executive
Order 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 Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
D. Executive Order 13084
Under Executive Order 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
[[Page 34398]]
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, Executive Order 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 Executive Order 13084
do not apply to this rule.
E. Regulatory Flexibility Act
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, 25566 (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 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 July 31, 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, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Transportation conformity,
Transportation-air quality planning, Volatile organic compounds.
Dated: April 14, 2000.
Elissa Speizman,
Acting Regional Administrator, Region 5.
For the reasons stated in the preamble, 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 KKOhio
2. Section 52.1870 is amended by adding paragraph (c)(122) to read
as follows:
52.1870 Identification of Plan.
* * * * *
(c) ***
(122) On October 6, 1999, the Ohio Environmental Protection Agency
submitted revised Transportation Conformity rules for the State of
Ohio. The submittal made revisions to the current State plan for the
implementation of the federal transportation conformity requirements at
the State and local level in accordance with 40 CFR part 51, subpart
TConformity to State or Federal Implementation Plans of Transportation
Plans, Programs, and Projects
[[Page 34399]]
Developed, Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Act. Only certain sections of the submittal are approved.
(i) Incorporation by reference.
(A) Ohio Administrative Code: amended rules, OAC 374510102, OAC
374510103 (A), (B), (C), (D), (G), (H), (I), (J), (K), (L), except (E)
and (F), OAC 374510105, OAC 374510106, OAC 374510107 (A), (B), (C)
except for (C)(1)(a) and (C)(2)(a), (D), (E), (F), (G), (H), (I), (J),
OAC 374510108, OAC 374510109, OAC 374510110, OAC 374510111, OAC
374510112 except for (A)(2), OAC 374510113 except (A)(1), OAC
374510114, OAC 374510115, OAC 374510117, OAC 374510118, OAC 374510119,
effective on February 16, 1999.
(B) No action is being taken on: OAC 374510104.
* * * * *
[FR Doc. 0013334 Filed 52600; 8:45 am]
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