[Federal Register: July 17, 2006 (Volume 71, Number 136)]
[Rules and Regulations]
[Page 40420-40427]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy06-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[EPA-HQ-OAR-2004-0491; FRL-8197-4]
RIN 2060-AN60
PM2.5 De Minimis Emission Levels for General Conformity
Applicability
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is taking final action to amend its regulations
relating to the Clean Air Act (CAA) requirement that Federal actions
conform to the appropriate State, Tribal or Federal implementation plan
for attaining clean air (``general conformity'') to add de minimis
emissions levels for particulate matter with an aerodynamic diameter
equal or less than 2.5 microns (PM2.5) National Ambient Air
Quality Standards (NAAQS) and its precursors.
DATES: The final rule amendments are effective on July 17, 2006.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2004-0491. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through http://www.regulations.gov or in hard copy at the Air Docket, EPA/DC,
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Coda, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, Mail Code
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-3037
or by e-mail at coda.tom@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Today's action applies to all Federal agencies and Federal
activities.
II. Background
A. What Is General Conformity and How Does It Affect Air Quality?
The intent of the General Conformity requirement is to prevent the
air quality impacts of Federal actions from causing or contributing to
a violation of the NAAQS or interfering with the purpose of a State
implementation plan (SIP). For the purpose of this rule, the term
``State implementation plan (SIP)'' refers to all approved applicable
and enforceable State, Federal and Tribal implementation plans (TIPs).
In the CAA, Congress recognized that actions taken by Federal
agencies could affect States, Tribes, and local agencies' abilities to
attain and maintain the NAAQS. Section 176(c)(42 U.S.C. 7506) of the
CAA requires Federal agencies to ensure that their actions conform to
the applicable SIP for attaining and maintaining the NAAQS. The CAA
Amendments of 1990 clarified and strengthened the provisions in section
176(c). Because certain provisions of section 176(c) apply only to
highway and mass transit funding and approvals actions, EPA published
two sets of regulations to implement section 176(c). The Transportation
Conformity Regulations, first published on November 24, 1993 (58 FR
62188) and recently revised on July 1, 2004 (69 FR 40004) and May 6,
2005 (70 FR 24280), address Federal actions related to highway and mass
transit funding and approval actions. The General Conformity
Regulations, published on November 30, 1993 (58 FR 63214) and codified
at 40 CFR 93.150, cover all other Federal actions. This action applies
only to the General Conformity Regulations.
When the applicability analysis shows that the action must undergo
a conformity determination, Federal agencies must first show that the
action will meet all SIP control requirements such as reasonably
available control measures, and the emissions from the action will not
interfere with the timely attainment of the standard, the maintenance
of the standard or the area's ability to achieve an interim emission
reduction milestone. Federal agencies then must demonstrate conformity
by meeting one or more of the methods specified in the regulation for
determining conformity:
1. Demonstrating that the total direct \1\ and indirect \2\
emissions are specifically identified and accounted for in the
applicable SIP,
2. Obtaining written statement from the State or local agency
responsible for the SIP documenting that the total direct and indirect
emissions from the action along with all other emissions in the
[[Page 40421]]
area will not exceed the SIP emission budget,
3. Obtaining a written commitment from the State to revise the SIP
to include the emissions from the action,
4. Obtaining a statement from the metropolitan planning
organization (MPO) for the area documenting that any on-road motor
vehicle emissions are included in the current regional emission
analysis for the area's transportation plan or transportation
improvement program,
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\1\ Direct emissions are emissions of a criteria pollutant or
its precursors that are caused or initiated by the Federal action
and occur at the same time and place as the action.
\2\ Indirect emissions are emissions of a criteria pollutant or
its precursors that: (1) Are caused by the Federal action, but may
occur later in time and/or may be further removed in distance from
the action itself but are still reasonably foreseeable; and (2) the
Federal agency can practically control or will maintain control over
due to the controlling program responsibility of the Federal action.
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5. Fully offset the total direct and indirect emissions by reducing
emissions of the same pollutant or precursor in the same nonattainment
or maintenance area, or
6. Where appropriate, in accordance with 40 CFR 51.858(4), conduct
air quality modeling that can demonstrate that the emissions will not
cause or contribute to new violations of the standards, or increase the
frequency or severity of any existing violations of the standards.
B. Applicability Analysis for General Conformity
The National Highway System Designation Act of 1995, (Pub. L. 104-
59) added section 176(c)(5) to the CAA to limit applicability of the
conformity programs to areas designated as nonattainment under section
107 of the CAA and areas that had been redesignated as maintenance
areas with a maintenance plan under section 175A of the CAA only.
Therefore, only Federal actions taken in designated nonattainment and
maintenance areas are subject to the General Conformity regulation. In
addition, the General Conformity Regulations (58 FR 63214) recognize
that the vast majority of Federal actions do not result in a
significant increase in emissions and, therefore, include a number of
regulatory exemptions, such as de minimis emission levels based on the
type and severity of the nonattainment problem in an area.
In carrying out this type of applicability analysis, the Federal
agency determines whether the total direct and indirect emissions from
the action are below or above the de minimis levels. If the action is
determined to have total direct and indirect emissions for a given
pollutant that are at or above the de minimis level for that pollutant,
Federal agencies must conduct a conformity determination for the
pollutant unless the action is presumed to conform under the regulation
or the action is otherwise exempt. If the action's emissions are below
an applicable de minimis level, a Federal agency does not have to
conduct a conformity determination.
C. Why Is EPA Establishing De Minimis Levels for PM2.5
Emissions at This Time?
The EPA has not revised the General Conformity Regulations since
they were promulgated in 1993, although EPA expects to promulgate, in a
separate rulemaking, proposed revisions to the General Conformity
Regulations in the near future. For the purposes of general conformity,
the General Conformity Regulations (58 FR 63214) define NAAQS as
``those standards established pursuant to section 109 of the Act and
include standards for carbon monoxide (CO), Lead (Pb), nitrogen dioxide
(NO2), ozone, particulate matter (PM10) and
sulfur dioxide (SO2).'' Since 1993, EPA has reviewed and
revised the NAAQS for particulate matter to include a new
PM2.5 standard (PM2.5 is particulate matter with
an aerodynamic diameter of up to 2.5 [mu] referred to as the fine
particle fraction). Since PM2.5 was established pursuant to
section 109 of the CAA, general conformity requirements are applicable
to areas designated nonattainment for this standard although it is not
explicitly included in the examples of criteria pollutants in 58 FR
63214.
In July 1997, EPA promulgated two new NAAQS (62 FR 38652), one for
an 8-hour ozone standard and one established pursuant to section 109 of
the CAA for fine particulate matter known as PM2.5. The new
8-hour and old 1-hour ozone NAAQS address the same pollutant but differ
with respect to the averaging time, therefore, EPA retained the
existing de minimis emission levels for ozone precursors.
The EPA designated areas as nonattainment for PM2.5 on
April 5, 2005. Subsequently, EPA has proposed regulations to implement
the new particulate matter standard (70 FR 65984; November 1, 2005).
Currently, there are no de minimis emission levels for
PM2.5. Although PM2.5 is a subset of
PM10, it differs from the rest of PM10. While the
majority of ambient PM10 results from direct emissions of
the pollutant, a significant amount of the ambient PM2.5 can
result not only from direct emissions but also from transformation of
precursors and condensing of gaseous pollutants in the atmosphere. In
the preamble to the proposed regulation to implement the new
particulate matter standard, EPA included a discussion about the key
pollutants potentially contributing to PM2.5 concentrations
in the atmosphere which are direct PM2.5 emissions,
SO2, NOX, VOC and ammonia (70 FR 65998). The
discussion also included EPA's intent to issue a separate rulemaking to
establish de minimis levels for Federal actions covered by the General
Conformity program (70 FR 66033). At that time, EPA said it expected
the levels would be identical to the nonattainment area major source
levels for the New Source Review (NSR) program. While EPA recognized
that SO2, NOX, VOC and ammonia are precursors of
PM2.5 in the scientific sense because these pollutants can
contribute to the formation of PM2.5 in the ambient air, the
degree to which these individual precursors and pollutants contribute
to PM2.5 formation in a given location is complex and
variable. For ammonia, there is uncertainty about emissions inventories
and the potential efficacy of control measures from location to
location. For VOC, the role and relationship of gaseous organic
material in the formation of organic PM remains complex and further
research and technical tools are needed to better characterize
emissions inventories for specific VOC compounds. In light of these
factors, EPA proposed in its rule to implement the PM2.5
NAAQS that States are not required to address VOC's or ammonia as
PM2.5 nonattainment plan precursors, unless the State or EPA
makes a finding that VOC's or ammonia significantly contribute to a
PM2.5 nonattainment problem in the State or to other
downwind air quality concerns. For NOX EPA proposed that
States are required to address NOX as a PM2.5
nonattainment precursor, unless the State and EPA makes a finding that
NOX emissions from sources in the State do not significantly
contribute to the PM2.5 problem in a given area or to other
downwind air quality concerns.
Section 176(c)(6) states that the general conformity requirements
of section 176(c) do not apply to an area newly designated
nonattainment for a new NAAQS until 1 year after such designation. The
EPA made PM2.5 designations on April 5, 2005; thus, the
applicable general conformity requirements were not effective in these
areas until April 5, 2006. Many Federal actions result in little or no
direct or indirect emissions and EPA believes that non-exempt Federal
actions that have covered emissions below the equivalent major source
thresholds should not be required to prepare an applicability analysis
under the general conformity rule. The general conformity rule should
only apply to major sources, not de minimis sources. A different
interpretation could result in an extremely wasteful process that
generates vast numbers of useless
[[Page 40422]]
applicability analyses with no environmental benefit.
D. How Does EPA Determine the De Minimis Threshold?
The EPA has previously considered options and taken comment on how
to set de minimis levels to determine applicability of general
conformity requirements. The following is a summary of the options
previously considered and the methodology used in setting de minimis
levels. In this final rule, the EPA is using the same methodology to
set PM2.5 de minimis levels that the Agency previously used
for other NAAQS pollutants.
In the preamble to the proposal for General Conformity Regulations
(58 FR 13841), EPA recognized that the very broad definition of Federal
action in the statute and the number of Federal agencies subject to the
conformity requirements could create a requirement for individual
conformity decisions in the thousands per day. To avoid creating an
unreasonable administrative burden, EPA considered options for
mechanisms to focus the efforts of affected agencies on key actions
with significant environmental impact, rather than all actions. Prior
to that proposal, EPA consulted with numerous Federal agencies,
environmental groups, State and local air quality agencies, building
industry representatives, and others. Following consultation, EPA
initially proposed a de minimis level similar to that specified by EPA
for modifications to major stationary sources under the CAA
preconstruction review programs. Consequently, the de minimis levels
proposed for general conformity were chosen to correspond to the
emission rates defined in 40 CFR 51.165 (NSR) and 51.166 (prevention of
significant deterioration) as ``significant.'' Activities with
emissions impacts below the proposed de minimis levels would not
require conformity determinations.
After EPA received comments on this proposal, we responded in the
preamble to the final General Conformity Regulations (58 FR 63228) and
stated:
``Given the need to choose a threshold based on air quality
criteria and one that avoids coverage of less significant projects,
and in response to certain comments, the de minimis levels for
conformity analyses in the final rule are based on the Act's major
stationary source definitions-not the significance levels as
proposed-for the various pollutants. Use of the de minimis levels
assures that the conformity rule covers only major Federal actions.
Under the major source definition, for example, the levels for ozone
would range from 10 tons/year (VOC and NOX) for an
extreme ozone nonattainment area to 100 tons/year for marginal and
moderate areas, not from 10 tons/year to 40 tons/year as proposed.
The de minimis levels proposed were generally those used to define
when modifications to existing stationary sources require
preconstruction review. It was pointed out to EPA in comments on the
proposal that these thresholds would result in the need to perform a
conformity analysis and determination for projects that constituted
a `modification' to an existing source but not a `major' source in
some cases. The EPA agrees that conformity applies more
appropriately to `major' source and after careful consideration has
decided to revise its original proposal in the final rule to use the
emissions levels that define a major source, except as described
above for lead. The definition of a major source under the amended
Act is explained in more detail in the April 16, 1992 Federal
Register in the EPA's General Preamble to Title I (57 FR 13498).
Section 51.853(b)(3) of the rule has also been revised to remove the
provisions that would automatically lower the de minimis levels to
that established for stationary sources by the local air quality
agency. In keeping with its conclusion that only major sources
should be subject to conformity review, EPA agrees that a zero
emissions threshold as established by some local agencies, should
not be required by this rule.''
The EPA adopts this rationale for the de minimis levels we are
setting for PM2.5 in this final action.
This mechanism of relying on the major stationary source levels in
the statute as de minimis levels for conformity has worked well over
the last 12 years to lessen the administrative burden of Federal
agencies for actions that emit relatively low emissions while
addressing actions with significant emissions that could affect
attainment of the NAAQS. The EPA believes it is appropriate to continue
to use major stationary source levels as de minimis levels for the
PM2.5 NAAQS in line with past practice and recognizing that
Congress generally concluded it was appropriate to apply more stringent
air quality review requirements to major sources. For this reason, EPA
has decided to use this reasonable and effective mechanism for setting
de minimis levels for PM2.5.
The EPA proposed regulations to implement the new particulate
matter standard (70 FR 65984) on November 1, 2005). In the preamble to
that proposal, EPA included a discussion about the key pollutants
potentially contributing to PM2.5 concentrations in the
atmosphere which are direct PM2.5 emissions, SO2,
NOX, VOC and ammonia (70 FR 65998). While EPA recognized
that SO2, NOX, VOC and ammonia are precursors of
PM2.5 in the scientific sense because these pollutants can
contribute to the formation of PM2.5 in the ambient air, the
degree to which these individual precursors and pollutants contribute
to PM2.5 formation in a given location is complex and
variable. For ammonia, there is uncertainty about emissions inventories
and the potential efficacy of control measures from location to
location. For VOC, the role and relationship of gaseous organic
material in the formation of organic PM remains complex and further
research and technical tools are needed to better characterize
emissions inventories for specific VOC compounds. In light of these
factors, EPA proposed in its rule to implement the PM2.5
NAAQS that States are not required to address VOC's or ammonia as
PM2.5 nonattainment plan precursors, unless the State or EPA
makes a finding that VOC's or ammonia significantly contribute to a
PM2.5 nonattainment problem in the State or to other
downwind air quality concerns. For NOX EPA proposed that
States are required to address NOX under all aspects of the
program, unless the State and EPA makes a finding that NOX
emissions from sources in the State do not significantly contribute to
the PM2.5 problem in a given area or to other downwind air
quality concerns. For SO2 EPA proposed that States are
required to address SO2 as a PM2.5 nonattainment
precursor. Therefore, for the purposes of general conformity
applicability, VOC's and ammonia emissions are only considered
PM2.5 precursors in nonattainment areas where either a State
or EPA has made a finding that they significantly contribute to the
PM2.5 problem in a given area or to other downwind air
quality concerns; NOX emissions are considered a
PM2.5 precursor unless the State and EPA makes a finding
that NOX emissions from sources in the State do not
significantly contribute to the PM2.5 problem in a given
area or to other downwind air quality concerns; and SO2 are
always considered a PM2.5 precursor. The EPA's proposed
implementation strategy for the PM2.5 standard included
options for addressing PM2.5 precursors in other air quality
planning programs (e.g., New Source Review for stationary sources). The
public has had the opportunity to comment on these options during the
comment period for that rulemaking. The EPA will consider those
comments in its final PM2.5 implementation rule. Today's
final rule should not be interpreted as prejudging our decision on the
PM2.5 precursor requirements that will be finalized in the
PM2.5 implementation rulemaking. Our final rule for the
implementation proposal will reflect how PM2.5 precursors
should
[[Page 40423]]
best be considered in those air quality planning programs and the
comments received on that proposal. While EPA's final decisions on
PM2.5 precursors must be legally consistent, EPA could take
differing positions with respect to various precursors in other
programs (e.g., New Source Review for stationary sources) as
appropriate to the programmatic needs, technical information, legal
requirements and pollution sources relevant to the differing programs.
The EPA notes, however, that if in the future we change our legal
rationale or technical basis for considering PM2.5
precursors among the various air quality planning programs from the
positions currently under consideration as a result of comments
received on the PM2.5 implementation strategy proposal, such
changes could necessitate a subsequent revision to the general
conformity rule. In the case where an amendment to the General
Conformity regulations is needed to reflect an alternative approach to
considering PM2.5 precursors, EPA would conduct such a
revision through full public notice and comment rulemaking.
III. Response to Comments
The proposed rule published on April 5, 2006 solicited comments on
establishing 100 tons per year of PM2.5 direct or precursor
emissions as the de minimis threshold for General Conformity
applicability. Three comments were received, one in support of the
proposed de minimis level, and two other comments suggesting lower
levels. Responses to these comments follow.
A. De Minimis Level for Prescribed Burning
1. Comment
A commenter stated that ``leaving out prescribed burning with its
release of fine particulate matter and mercury is absolutely wrong.''
In addition, the commenter stated that he does not understand why EPA
does not address the way certain Federal agencies, like the National
Park Service, engage in prescribed burning on Federal lands and that
EPA needs to address this ``wrongdoing.''
2. Response
To the extent that this comment is stating that prescribed burning
should be regulated as an activity by the General Conformity rule, such
comment is beyond the scope of this action since this rulemaking does
not concern any substantive requirements for any Federal activities nor
does it address ways in which a Federal activity such as prescribed
burning can be found to conform to an applicable implementation plan.
EPA is currently considering whether to promulgate proposed revisions
to the General conformity rule, including ways in which activities can
be found to conform, and if such a rule were proposed in the future,
EPA encourages the commenter to submit comments at that time. To the
extent that the commenter intended his comment to mean that EPA should
not promulgate a de minimis level for prescribed burning activities,
EPA notes that the General Conformity regulations are not structured to
provide differing de minimis levels for different types of Federal
activities. The EPA has proposed uniform de minimis emission rates for
all Federal activities independent of their source because pollution is
pollution, whether caused by prescribed burning or any other Federal
activity. In other words, all of the de minimis levels are based on
levels of pollution impact from all types of federal activities,
whatever they may be. Prescribed burning activities do not produce any
new type of pollution which would necessitate a different type of de
minimis level or no level at all. The EPA believes that the General
Conformity rule's de minimis thresholds should provide for the uniform
treatment of air pollution emissions regardless of their source.
B. De Minimis Level for Direct PM2.5 Emissions
1. Comment
One commenter suggested lower de minimis levels for directly
emitted PM2.5. The commenter proposed that the de minimis
level for emissions of direct PM2.5 should be set
significantly lower than 100 tons per year--in the range of 25-50 tons
per year in areas that are likely to attain the PM2.5 NAAQS
within 5 years, and a level of 10-25 tons per year in areas that are
likely to take more than five years to achieve the NAAQS.
2. Response
The intent of the de minimis levels is to assure that the General
Conformity rule covers only major Federal actions that are major
sources of emission. The Act in section 302(j) defines a major source
as meaning ``any stationary facility or source of air pollutants which
directly emits, or has the potential to emit, one hundred tons per year
or more of any air pollutant (including any major emitting facility or
source of fugitive emissions of any such pollutant, as determined by
rule by the Administrator).'' This definition provides a Congressional
threshold for a major source. As discussed in the preamble of the
proposal, EPA is using the same methodology to set the de minimis level
for PM2.5 as it did for the other NAAQS pollutants (with the
exception of lead). This methodology is based on a level found in
statute as defining major stationary sources of air pollution. The
commenter suggests a sliding scale for the direct PM2.5 de
minimis level based on the severity of the attainment problem which is
akin to a classification scheme. A classification scheme was
constructed for PM10 non-attainment areas and the Act
provides for a lower major sources definition threshold of 70 tons per
year in section 189(b)(3) for PM10 areas classified as
serious. The EPA designated all PM2.5 nonattainment areas
under subpart 1 of the Act. Subpart 1 does not mandate a classification
scheme for nonattainment areas based on the severity of an area's air
quality problem. Therefore, there is no basis for EPA to determine in
this rulemaking what would constitute a serious PM2.5
nonattainment problem and set different de minimis levels based on
seriousness of the air quality problem. Absent a classification scheme
for PM2.5, EPA does not believe that basing the de minimis
levels on differing air quality levels is warranted at this time. If a
different classification approach is taken in the PM2.5
implementation rule, we may consider addressing this issue differently.
IV. Summary of the Action
The EPA is revising the tables in sub-paragraphs (b)(1) and (b)(2)
of 40 CFR 51.853 and 40 CFR 93.153 by adding the de minimis emission
levels for PM2.5. The EPA is establishing the proposed 100
tons per year as the de minimis emission level for direct
PM2.5 and each of its precursors as defined in revised
section 91.152. The precursors for the purposes of general conformity
applicability are, VOC's and ammonia emissions are only considered
PM2.5 precursors in nonattainment areas where either a State
or EPA has made a finding that they significantly contribute to the
PM2.5 problem in a given area or to other downwind air
quality concerns; NOX emissions are considered a
PM2.5 precursor unless the State and EPA makes a finding
that NOX emissions from sources in the State do not
significantly contribute to the PM2.5 problem in a given
area or to other downwind air quality concerns; and SO2
emissions are always considered a PM2.5 precursor. Since EPA
did not propose any classifications for the PM2.5
nonattainment areas, EPA is not
[[Page 40424]]
establishing PM2.5 de minimis emission levels for higher
classified nonattainment areas. This action will maintain the
consistency between the conformity de minimis emission levels and the
size of a major stationary source under the Act (section 302(j) and the
NSR program (70 FR 65984). These levels are also consistent with the
levels proposed for VOC and NOX emissions in subpart 1 areas
under the 8-hour ozone implementation strategy (68 FR 32843).
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
regulation that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that these revisions to the regulations are considered a
``significant regulatory action'' because although they do not impose
any additional requirements on other Federal agencies, they do affect
the process Federal agencies use to determine applicability of existing
requirements. As such, this action was submitted to OMB for review.
B. Paperwork Reduction Act
This action does not directly impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., on non-Federal entities. The General Conformity
Regulations require Federal agencies to determine that their actions
conform to the SIPs or TIPs. However, depending upon how Federal
agencies implement the regulations, non-Federal entities seeking
funding or approval from those Federal agencies may be required to
submit information to that agency.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an Agency to
prepare a regulatory flexibility analysis of any regulation subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the Agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's action on small
entities, small entity is defined as:
1. A small business that is a small industrial entity as defined in
the U.S. Small Business Administration (SBA) size standards. (See 13
CFR 121.201);
2. A governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and
3. A small organization that is any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's regulation
revisions, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Today's
action will not impose any requirements on small entities. The General
Conformity Regulations require Federal agencies to conform to the
appropriate State, Tribal or Federal implementation plan for attaining
clean air.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final regulations with ``Federal mandates''
that may result in expenditures to State, local, and Tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any 1 year. Before promulgating an EPA regulation
for which a written statement is needed, section 205 of the UMRA
generally requires EPA to identify and consider a reasonable number of
regulatory alternatives and to adopt the least costly, most cost-
effective or least burdensome alternative that achieves the objectives
of the regulation. The provisions of section 205 do not apply when they
are inconsistent with applicable law. Moreover, section 205 allows EPA
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final regulations an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory actions with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
The EPA has determined that these revisions to the regulations do
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and Tribal governments, in the
aggregate, or the private sector in any 1 year. Thus, today's
regulation revisions are not subject to the requirements of sections
202 and 205 of the UMRA.
The EPA has determined that these regulation revisions contain no
[[Page 40425]]
regulatory requirements that may significantly or uniquely affect small
governments, including Tribal governments.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255; August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the 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.''
This action does not have Federalism implications. The regulations
will not have substantial direct effects on the 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 13132. Previously, EPA
determined the costs to States to implement the General Conformity
Regulations to be less than $100,000 per year. Thus, Executive Order
13132 does not apply to these regulation revisions.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This determination is stated
below.
These regulation revisions do not have Tribal implications as
defined by Executive Order 13175. They do not have a substantial direct
effect on one or more Indian Tribes, since no Tribe has to demonstrate
conformity for their actions. Furthermore, these regulation revisions
do not affect the relationship or distribution of power and
responsibilities between the Federal government and Indian Tribes. The
CAA and the Tribal Air Rule establish the relationship of the Federal
government and Tribes in developing plans to attain the NAAQS, and
these revisions to the regulations do nothing to modify that
relationship. Because these regulation revisions do not have Tribal
implications, Executive Order 13175 does not apply.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health 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
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.
These revisions to the regulations are not subject to Executive
Order 13045 because they are not economically significant as defined in
Executive Order 12866 and because EPA does not have reason to believe
the environmental health or safety risk addressed by the General
Conformity Regulations present a disproportionate risk to children. The
General Conformity Regulations ensure that Federal agencies comply with
the SIP, TIP or FIP for attaining and maintaining the NAAQS.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
These revisions to the regulations are not considered a
``significant energy action'' as defined in Executive Order 13211,
``Actions That Significantly Affect Energy Supply, Distribution, or
Use,'' (66 FR 28355, May 22, 2001) because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. The VCS are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
VCS bodies. The NTTAA directs EPA to provide Congress, through OMB,
explanations when the Agency decides not to use available and
applicable VCS.
This revision to the regulations does not involve technical
standards. Therefore, EPA is not considering the use of any VCS.
However, EPA will encourage the Federal agencies to consider the
use of such standards, where appropriate, in the implementation of the
General Conformity Regulations.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health environmental effects of its programs, policies, and activities
on minorities and low-income populations.
The EPA believes that these revisions to the regulations should not
raise any environmental justice issues. The revisions to the
regulations would, if promulgated revise procedures for other Federal
agencies to follow. They do not disproportionately affect the health or
safety of minority or low income populations. The EPA encourages other
agencies to carefully consider and address environmental justice in
their implementation of their evaluations and conformity
determinations.
K. Congressional Review Act
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. It requires that 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). Therefore this rule
will be effective July 17, 2006.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedures,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
[[Page 40426]]
40 CFR Part 93
Environmental protection, Administrative practice and procedures,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Dated: July 11, 2006.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be amended as follows:
PART 51--[AMENDED]
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart W--[Amended]
0
2. Section 51.852 is amended by removing the ``; and'' at the end of
paragraph (1) and adding a period in its place and adding paragraph (3)
to definition of ``Precursors of criteria pollutant'' to read as
follows:
Sec. 51.852 Definitions.
* * * * *
Precursors of a criteria pollutant are:
* * * * *
(3) For PM2.5:
(i) Sulfur dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(ii) Nitrogen oxides in all PM2.5 nonattainment and
maintenance areas unless both the State and EPA determine that it is
not a significant precursor, and
(iii) Volatile organic compounds (VOC) and ammonia (NH3)
only in PM2.5 nonattainment or maintenance areas where
either the State or EPA determines that they are significant
precursors.
* * * * *
0
3. Section 51.853 is amended by revising paragraph (b) to read as
follows:
Sec. 51.853 Applicability.
* * * * *
(b) For Federal actions not covered by paragraph (a) of this
section, a conformity determination is required for each criteria
pollutant or precursor where the total of direct and indirect emissions
of the criteria pollutant or precursor in a nonattainment or
maintenance area caused by a Federal action would equal or exceed any
of the rates in paragraphs (b)(1) or (2) of this section.
(1) For purposes of paragraph (b) of this section, the following
rates apply in nonattainment areas (NAA's):
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
Serious NAA's............................................ 50
Severe NAA's............................................. 25
Extreme NAA's............................................ 10
Other ozone NAA's outside an ozone transport region...... 100
Other ozone NAA's inside an ozone transport region:
VOC...................................................... 50
NOX...................................................... 100
Carbon monoxide: All NAA's................................... 100
SO2 or NO2: All NAA's........................................ 100
PM-10:
Moderate NAA's........................................... 100
Serious NAA's............................................ 70
PM2.5:
Direct emissions......................................... 100
SO2...................................................... 100
NOX (unless determined not to be a significant precursor) 100
VOC or ammonia (if determined to be significant 100
precursors).............................................
Pb: All NAA's................................................ 25
------------------------------------------------------------------------
(2) For purposes of paragraph (b) of this section, the following
rates apply in maintenance areas:
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
All Maintenance Areas.................................... 100
Ozone (VOC's):
Maintenance areas inside an ozone transport region....... 50
Maintenance areas outside an ozone transport region...... 100
Carbon monoxide: All Maintenance Areas....................... 100
PM-10: All Maintenance Areas................................. 100
PM2.5:
Direct emissions......................................... 100
SO2...................................................... 100
NOX (unless determined not to be a significant precursor) 100
VOC or ammonia (if determined to be significant 100
precursors).............................................
Pb: All Maintenance Areas.................................... 25
------------------------------------------------------------------------
[[Page 40427]]
* * * * *
PART 93--[AMENDED]
0
4. The authority citation for part 93 continues to read as follows:
Authority: 21 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart B--[Amended]
0
5. Section 93.152 is amended by removing the ``; and'' at the end of
paragraph (1) and adding a period in its place and adding paragraph (3)
to definition of ``Precursors of criteria pollutant'' to read as
follows:
Sec. 93.152 Definitions.
* * * * *
Precursors of a criteria pollutant are:
* * * * *
(3) For PM2.5:
(i) Sulfur dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(ii) Nitrogen oxides in all PM2.5 nonattainment and
maintenance areas unless both the State and EPA determine that it is
not a significant precursor, and
(iii) Volatile organic compounds (VOC) and ammonia (NH3)
only in PM2.5 nonattainment or maintenance areas where
either the State or EPA determines that they are significant
precursors.
* * * * *
0
6. Section 93.153 is amended by revising paragraph (b) to read as
follows:
Sec. 93.153 Applicability.
* * * * *
(b) For Federal actions not covered by paragraph (a) of this
section, a conformity determination is required for each criteria
pollutant or precursor where the total of direct and indirect emissions
of the criteria pollutant or precursor in a nonattainment or
maintenance area caused by a Federal action would equal or exceed any
of the rates in paragraphs (b)(1) or (2) of this section.
(1) For purposes of paragraph (b) of this section, the following
rates apply in nonattainment areas (NAA's):
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
Serious NAA's.............................................. 50
Severe NAA's............................................... 25
Extreme NAA's.............................................. 10
Other ozone NAA's outside an ozone transport region........ 100
Other ozone NAA's inside an ozone transport region:
VOC........................................................ 50
NOX........................................................ 100
Carbon monoxide: All NAA's................................... 100
SO2 or NO2: All NAA's........................................ 100
PM-10:
Moderate NAA's............................................. 100
Serious NAA's.............................................. 70
PM2.5:
Direct emissions........................................... 100
SO2........................................................ 100
NOX (unless determined not to be a significant precursor).. 100
VOC or ammonia (if determined to be significant precursors) 100
Pb: All NAA's................................................ 25
------------------------------------------------------------------------
(2) For purposes of paragraph (b) of this section, the following
rates apply in maintenance areas:
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
All Maintenance Areas...................................... 100
Ozone (VOC's):
Maintenance areas inside an ozone transport region......... 50
Maintenance areas outside an ozone transport region........ 100
Carbon monoxide: All Maintenance Areas....................... 100
PM-10: All Maintenance Areas................................. 100
PM2.5:
Direct emissions........................................... 100
SO2........................................................ 100
NOX (unless determined not to be a significant precursor).. 100
VOC or ammonia (if determined to be significant precursors) 100
Pb: All Maintenance Areas.................................... 25
------------------------------------------------------------------------
* * * * *
[FR Doc. E6-11241 Filed 7-14-06; 8:45 am]
BILLING CODE 6560-50-P