Federal Register: April 29, 2009 (Volume 74, Number 81)

DOCID: fr29ap09-11 FR Doc E9-9846

ENVIRONMENTAL PROTECTION AGENCY

Environmental Protection Agency

CFR Citation: 40 CFR Part 52

EPA ID: [EPA-R03-OAR-2008-0898; FRL-8898-4]

NOTICE: RULES

DOCID: fr29ap09-11

DOCUMENT ACTION: Direct final rule.

SUBJECT CATEGORY:

Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania: Transportation Conformity Requirement

DATES: This rule is effective on June 29, 2009 without further notice, unless EPA receives adverse written comment by May 29, 2009. If EPA receives such comments, it 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.

DOCUMENT SUMMARY:

EPA is taking direct final action to approve revisions to the Pennsylvania State Implementation Plan (SIP) submitted by the Commonwealth of Pennsylvania. The revisions establish State transportation conformity requirements. EPA is approving these revisions in accordance with the requirements of the Clean Air Act.

SUMMARY:

Approval and Promulgation of Air Quality Implementation Plans: ; Pennsylvania; Transportation Conformity Requirement,

SUPPLEMENTAL INFORMATION

Throughout this document whenever ``we'', ``us'', or ``our'' is used, we mean EPA.

I. What Is Transportation Conformity?

Transportation conformity is required under Section 176(c) of the Clean Air Act to ensure that Federally supported highway, transit projects, and other activities are consistent with (conform to) the purpose of the approved SIP. Transportation Conformity currently applies to areas that are designated nonattainment, and those areas redesignated to attainment after 1990 (maintenance areas), with maintenance plans developed under section 175A of the Clean Air Act for the following transportation related criteria pollutants: Ozone, particulate matter (PM2.5 and PM10), carbon monoxide (CO), and nitrogen dioxide (NO2). Conformity with the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant National Ambient Air Quality Standards (NAAQS). The Federal transportation conformity regulations (Federal Rule) are found in 40 CFR part 93 and provisions related to conformity SIPs are found in 40 CFR 51.390.

II. What Is the Background for This Action?

On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEALU) was signed into law. SAFETEALU revised certain provisions of section 176(c) of the Clean Air Act, related to transportation conformity. Prior to SAFETEALU, states were required to address all of the Federal Rule's provisions in their conformity SIPs. After SAFETEALU, state's SIPs were required to contain all or portions of only the following three sections of the Federal Rule, modified as appropriate to each state's circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (written commitments to implement certain kinds of control measures); and 40 CFR 93.125(c) (written commitments to implement certain kinds of mitigation measures). Pursuant to SAFETEA LU, States are no longer required to submit conformity SIP revisions that address the other sections of the Federal Rule.

III. What Did the State Submit and How Did We Evaluate It?

On May 29, 2008, the Pennsylvania Department of Environmental Protection submitted a revision to its State Implementation Plan (SIP) for Transportation Conformity purposes. The SIP revision consists of eighteen executed Memorandams of Agreements (MOAs) which will constitute the Pennsylvania SIP for transportation conformity purposes. The eighteen MOAs were executed among the State of Pennsylvania and the various
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Metropolitan Planning Organizations and Rural Planning Organizations within the Commonwealth of Pennsylvania which have responsibility for undertaking transportation conformity in conjunction with
transportation planning activities. These MOAs which make up the SIP revision address the three provisions of the Federal Rule required under SAFETEALU: 40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) (certain control measures), and 40 CFR 93.125(c) (mitigation measures).

We reviewed the submittal to assure consistency with the February 14, 2006, ``Interim Guidance for Implementing the Transportation Conformity provisions in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEALU)''. The guidance document can be found at http://epa.gov/otaq/stateresources/ transconf/policy.htm. The guidance document states that each state is only required to address and tailor the aforementioned three sections of the Federal Rule in their state conformity SIPs.

EPA's review of Pennsylvania's Transportation Conformity SIP revision indicates that it is consistent with EPA's guidance in that the SIP revision included the three elements specified by SAFETEALU and EPA's guidance. Consistent with the Federal Rule at 40 CFR 93.105 (consultation procedures), paragraph (a)(2) of each of the executed MOAs establishes the requirements for the appropriate agencies, procedures and allocation of responsibilities as required under 40 CFR 93.105 for consultation procedures. In addition, the executed MOAs provide for appropriate public consultation/public involvement consistent with 40 CFR 93.105. With respect to 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), paragraphs (a)(3) and (a)(4) of the executed MOAs specify that written commitments for implementation of control measures and mitigation measures for meeting these requirements will be provided as needed.

IV. Final Action

EPA is hereby approving the Pennsylvania SIP revision for Transportation Conformity, which was submitted on May 29, 2008. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the ``Proposed Rules'' section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on June 29, 2009 without further notice unless EPA receives adverse comment by May 29, 2009. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.
V. Statutory and Executive Order Reviews

A. General Requirements

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

  • Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
  • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
  • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
  • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 1044);
  • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
  • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
  • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
  • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
  • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    B. 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 action 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 action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

    C. 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 June 29, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action to approve the Pennsylvania Transportation Conformity SIP may not
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    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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 15, 2009.
    William C. Early,
    Acting Regional Administrator, Region III.
    40 CFR Part 52 is amended as follows:
    PART 52[AMENDED]
    1. The authority citation for 40 CFR part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.
    Subpart NNPennsylvania
    In Sec. 52.2020, the table in paragraph (e)(1) is amended by adding an entry for Transportation Conformity Requirements at the end of the table to read as follows:
    Sec. 52.2020 Identification of plan.
    * * * * *
    (e)(1)* * *
    EPAApproved NonRegulatory and QuasiRegulatory Material Name of nonregulatory SIP Applicable State revision geographic area submittal date EPA approval date Additional explanation * * * * * * * Transportation Conformity Entire State...... 5/29/08 4/29/09 [Insert Memoranda of Requirements. page number where Understanding between the document EPA, FHWA, FTA, begins]. Pennsylvania, Virginia, and eighteen Metropolitan and Rural Planning Organizations. * * * * *
    [FR Doc. E99846 Filed 42809; 8:45 am]
    BILLING CODE 656050P

    FOR FURTHER INFORMATION CONTACT

    Martin Kotsch, (215) 814-3335, or by email at kotsch.martin@epa.gov.

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