[Federal Register Volume 75, Number 77 (Thursday, April 22, 2010)]
[Rules and Regulations]
[Pages 20922-20925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9196]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2005-NM-0007; FRL-9140-2]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Transportation Conformity Requirement for Bernalillo County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action approving a State
Implementation Plan (SIP) revision submitted by the Governor of New
Mexico on December 4, 2008 on behalf of the Albuquerque Environmental
Health Department (AEHD). This revision serves to incorporate recent
changes to the Federal conformity rule into the state conformity SIP
for Bernalillo County, and supersedes previous revisions submitted by
the Governor of New Mexico on May 15, 2003 and August 4, 2005. EPA is
approving the December 4, 2008 revision in accordance with the
requirements of the Federal Clean Air Act (CAA).
DATES: This rule is effective on June 21, 2010 without further notice,
unless EPA receives relevant adverse comment by May 24, 2010. If EPA
receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2005-NM-0007, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select
``Air'' before submitting comments.
E-mail: Mr. Guy Donaldson at [email protected]. Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2005-NM-0007. EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. 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, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a 15 cent per page
fee for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
City of Albuquerque Environmental Health Department, Air Quality
[[Page 20923]]
Division, Office of Air Quality, One Civic Plaza Northwest,
Albuquerque, New Mexico 87103.
FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone 214-665-8542; fax number
214-665-7263; e-mail address [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we''
``us'' or ``our'' is used, we mean the EPA.
Outline
I. What Is Transportation Conformity?
II. What Is the Background for This Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. Final Action
V. Statutory and Executive Order Reviews
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. Conformity currently applies to areas that
are designated nonattainment, and those areas redesignated to
attainment after 1990 (maintenance areas), with 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?
The transportation conformity SIP enables the area to implement and
enforce the Federal transportation conformity requirements per 40 CFR
51 subpart T and 40 CFR 93 subpart A. The AEHD initially complied with
this requirement by submitting a SIP to EPA on December 19, 1994; we
approved this SIP on November 8, 1995 (60 FR 56241). A revision to the
conformity SIP was submitted on December 9, 1998 and approved by EPA on
July 8, 1999 (64 FR 36786). Since the July 8, 1999 approval, the
Governor of New Mexico has submitted three further revisions to the
conformity SIP. The most recent of these, the December 4, 2008
submittal, supersedes the previous revisions submitted on May 15, 2003
and August 4, 2005. These previous revisions were also made to
incorporate Federal conformity rule changes into the state conformity
SIP for Bernalillo County, but contained language that was in conflict
with the Federal rules that were in effect at the time of EPA's review
of the conformity SIP. Therefore, EPA could not approve the language in
question. EPA and AEHD agreed that rather than EPA acting to partially
approve the submittals, AEHD would develop a subsequent submittal to
supersede the previous submittal, address the conflicting language, and
capture any revisions made to the Federal rules in the elapsed time
since state adoption of revisions to the Bernalillo County
transportation conformity SIP. This approach was taken on both the
August 4, 2005 submittal (to supersede the May 15, 2003 submittal) and
the December 4, 2008 submittal (to supersede the August 4, 2005
submittal) to keep pace with necessary revisions to the Bernalillo
County transportation conformity SIP.
On January 9, 2002, the AEHD adopted changes to the conformity SIP
to include a definition for Land Use Measures (LUM) along with
requirements for using LUMs as air quality credits in conformity
determinations. This revision also incorporated language regarding an
acceptable Transportation Control Measure (TCM) substitution process
and provided clarity on when emission reduction credits for TCMs may be
used in the conformity process. These revisions were approved by the
AEHD on January 9, 2002 and they were submitted to EPA by the Governor
of New Mexico on May 15, 2003. EPA did not take action on these
revisions, and the December 4, 2008 submittal is intended to supersede
these revisions.
On July 1, 2004, EPA published significant revisions to our
conformity regulations (69 FR 4004) to address criteria and procedures
for the new 8-hour ozone and fine particulate (PM2.5)
National Ambient Air Quality Standards (NAAQS). In the same Federal
Register notice, EPA also addressed a March 2, 1999 ruling by the U.S.
Court of Appeals for the District of Columbia (Environmental Defense
Fund v. EPA, et al., 167 F. 3d 641 D.C. Cir. 1999); the July 1
revisions served to bring our regulatory language in line with this
court decision. The SIP revision package adopted by the AEHD on May 11,
2005, and submitted by the Governor of New Mexico on August 4, 2005,
addressed these mandatory revisions, as well as EPA's August 6, 2002
revision to the Federal conformity rule (67 FR 50808). EPA did not take
action on these revisions, and the December 4, 2008 submittal is
intended to supersede these revisions.
On August 10, 2005, the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed
into law. SAFETEA-LU revised certain provisions of section 176(c) of
the Clean Air Act, related to transportation conformity. Prior to
SAFETEA-LU, states were required to address all of the Federal Rule's
provisions in their conformity SIPs. After SAFETEA-LU, 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 conformity rule.
However, as with previous SIP revisions, the AEHD has maintained its
practice of incorporating federal language into local rules and
customizing such rules to meet the standard required by the New Mexico
Administrative Code (NMAC) style guidance, rather than incorporating by
reference the federal rules.
EPA promulgated amendments to the Federal conformity rule on
January 24, 2008 (73 FR 4420). The December 4, 2008 revision serves to
update Albuquerque's regulations and bring them in line with these most
recent changes to the Federal conformity rule, as well as EPA's May 6,
2005 (70 FR 24279) and March 10, 2006 (71 FR 12467) revisions to the
Federal conformity rule.
III. What Did the State Submit, and How Did We Evaluate It?
On December 4th, 2008, the Governor of New Mexico submitted a
revision to the Bernalillo County, New Mexico State Implementation Plan
(SIP) for Transportation Conformity purposes. The SIP revision consists
of language to address the three provisions of the EPA Conformity Rule
required under SAFETEA-LU: 40 CFR 93.105 (consultation procedures); 40
CFR 93.122(a)(4)(ii) (certain control measures), and 40 CFR 93.125(c)
[[Page 20924]]
(mitigation measures). As previously stated, the AEHD did not
incorporate the Federal conformity rule by reference, but submitted
language intended to mirror the content of the Federal conformity rule,
while placing greater specificity on the roles and expectations of
state and local agencies/entities which have responsibility for
undertaking transportation conformity in conjunction with
transportation planning activities along with the three Federal
Agencies (EPA, Federal Highway Administration, and Federal Transit
Administration) who are participating members in the conformity
consultation process.
We reviewed the submittal to assure consistency with the January
2009, ``Guidance for Developing Transportation Conformity State
Implementation Plans''. The guidance document can be found at http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf. The
guidance document states that each state is only required to address
and tailor the afore-mentioned three sections of the Federal Conformity
Rule in their state conformity SIPs.
EPA's review of New Mexico's Bernalillo County Transportation
Conformity SIP revision indicates that it is consistent with EPA's
guidance in that it included the three elements specified by SAFETEA-LU
and EPA's guidance. Consistent with the EPA Conformity Rule at 40 CFR
93.105 (consultation procedures), NMAC 20.11.3.202 establishes the
requirements for the appropriate agencies, procedures and allocation of
responsibilities as required under 40 CFR 93.105 for consultation
procedures. In addition, this chapter provides 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), NMAC
20.11.3.219(A)(4)(b) and NMAC 20.11.3.222(C) of the executed MOUs
specifies that written commitments for control measures and mitigation
measures for meeting these requirements will be provided as needed.
IV. Final Action
EPA is hereby approving the Bernalillo County SIP revision for
Transportation Conformity, which was submitted on December 4, 2008. We
have evaluated the State's submittal and have determined that it meets
the applicable requirements of the Clean Air Act and EPA regulations,
and is consistent with EPA policy. The December 4, 2008 submission
supersedes the May 15, 2003 and August 4, 2005 submissions, so no
action is necessary on these earlier submissions.
EPA is publishing this rule without prior proposal because we view
this as a non-controversial amendment and anticipate 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 if relevant adverse
comments are received. This rule will be effective on June 21, 2010
without further notice unless we receive adverse comment by May 24,
2010. If we receive adverse comments, we will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. We will address all public comments in a
subsequent final rule based on the proposed rule. We will not institute
a second comment period on this action. Any parties interested in
commenting must do so now. Please note that if we receive adverse
comment on an amendment, paragraph, or section of this rule and if that
provision may be severed from the remainder of the rule, we may adopt
as final those provisions of the rule that are not the subject of an
adverse comment.
V. Statutory and Executive Order Reviews
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. 104-4);
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.
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).
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 21, 2010. 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. This action may not be challenged later in
proceedings to
[[Page 20925]]
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, Ozone, Nitrogen dioxides,
Particulate matter, Reporting and recordkeeping requirements,
Transportation conformity, Transportation--air quality planning,
Volatile organic compounds.
Dated: April 9, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart GG--New Mexico
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2. The second table in Sec. 52.1620(c) entitled ``EPA Approved
Albuquerque/Bernalillo County, NM Regulations'' is amended by revising
the entry for Part 3 (20.11.3 NMAC), Transportation Conformity, to read
as follows:
Sec. 52.1620 Identification of plan.
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(c) * * *
EPA-Approved Albuquerque/Bernalillo County, NM Regulations
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State approval/
State citation Title/subject effective date EPA approval date Explanation
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New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 11--Albuquerque/Bernalillo County
Air Quality Control Board
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Part 3 (20.11.3 NMAC)........... Transportation 12/17/2008 April 22, 2010 ....................
Conformity. [Insert FR page
number where
document begins].
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[FR Doc. 2010-9196 Filed 4-21-10; 8:45 am]
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