[Federal Register Volume 62, Number 133 (Friday, July 11, 1997)]
[Proposed Rules]
[Pages 37172-37175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18252]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[CA 193-0038; FRL-5856-5]


Approval and Promulgation of Implementation Plans; California 
State Implementation Plan Revision, Bay Area Air Quality Management 
District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the California State 
Implementation Plan (SIP) to govern transportation conformity and 
decisions in the San Francisco Bay Area. The intended effect of 
proposing approval of these rules is to implement the transportation 
conformity provisions of the Clean Air Act, as amended in 1990 (CAA or 
the Act). The revisions concern rules from the following District: Bay 
Area Air Quality Management District (BAAQMD). The rules define the 
criteria and procedures for transportation conformity actions and 
consultation for the Bay Area.

DATES: Comments on this proposed rule must be received in writing by 
August 11, 1997.

ADDRESSES: Written comments on this action should be addressed to: Mark 
Brucker, Air Planning Office (AIR-2), Air Division, U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901.
    Copies of the rule revisions and EPA's evaluation report for each 
rule are available for public inspection at EPA's Region IX office 
during normal business hours. Copies of the submitted rule revisions 
are available for inspection at the following locations:

Air Planning Office (AIR-2), Air Division, U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105, Ruth Verlar, (415) 744-1208.

[[Page 37173]]

California Air Resources Board, Transportation Strategies Group, Rule 
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 92123-1095, Eric 
Simon, (916) 322-2700.
Bay Area Air Quality Management District , 939 Ellis St., San 
Francisco, CA 94109, David Marshall, (415) 749-4678.

FOR FURTHER INFORMATION CONTACT: Mark Brucker, Air Planning Office, 
AIR-2, Air Division, U.S. Environmental Protection Agency, Region IX, 
75 Hawthorne Street, San Francisco, CA 94105, Telephone: (415) 744-
1231, email: [email protected]

SUPPLEMENTARY INFORMATION:

I. Applicability

    The rules being proposed for approval into the California SIP 
include: BAAQMD, ``The San Francisco Bay Area Transportation Air 
Quality Conformity Procedures,'' which includes Secs. 93.100 through 
93.104 and Secs. 93.106 through 93.136 and ``The San Francisco Bay Area 
Transportation Air Quality Conformity Interagency Consultation 
Procedures''. These rules were submitted by the California Air 
Resources Board to EPA on December 16, 1996. These rules are found to 
be complete pursuant to EPA's completeness criteria set forth in 40 CFR 
part 51, appendix V.

II. Background

    Section 176(c)(4) of the Clean Air Act requires EPA to promulgate 
criteria and procedures for demonstrating and ensuring conformity of 
Federal transportation actions to the applicable implementation plan 
developed pursuant to section 110 and part D of the Act. Conformity to 
an implementation plan is defined in the Act as conformity to an 
implementation plan's purpose of eliminating or reducing the severity 
and number of violations of the National Ambient Air Quality Standards 
and achieving expeditious attainment of the standards. The Act also 
stipulates that EPA's procedures must require that State Implementation 
Plans (SIPs) be revised to include conformity procedures and criteria 
for each nonattainment or maintenance area for one or more pollutant. 
EPA promulgated the federal transportation conformity criteria and 
procedures (referred to as the Transportation Conformity rule) on 
November 24, 1993. The rule established the process by which the 
Federal Highway Administration (FHWA), the Federal Transit 
Administration (FTA), and metropolitan planning organizations (MPOs) 
determine conformity of transportation actions. It also established 
requirements applicable to recipients of federal highway and transit 
funds when implementing projects which do not need federal approval.
    The Transportation Conformity rule also establishes the criteria 
for EPA approval of conformity SIPs (see 40 CFR 51.396). These criteria 
provide that the state provisions must address all requirements of the 
rule in a manner which makes them fully enforceable under state law, 
must incorporate certain provisions verbatim, and must be at least as 
stringent as the other requirements specified in the Transportation 
Conformity rule.
    The San Francisco Bay Area includes a designated moderate 
nonattainment area for carbon monoxide (CO) and is a maintenance area 
for ozone. However, since redesignation of the area to attainment for 
ozone in 1995 the ozone standards have been exceeded many times.

III. EPA Evaluation and Action

    On December 16, 1996, the state of California submitted a proposed 
revision to the SIP for Transportation Conformity for the Bay Area. The 
Bay Area's proposed revision to the SIP incorporates virtually all of 
the criteria and procedures mandated by the federal rule verbatim. One 
area of the proposed revision which cannot be incorporated verbatim is 
the consultation section. EPA's rule requires a state to develop, in 
coordination with other interested agencies, consultation procedures 
which meet the minimum federal requirements. EPA's regulations specify 
certain topics which must be consulted on, but not how that 
consultation shall occur. EPA finds that the consultation section is 
approvable. EPA finds that the full conformity submission meets the 
criteria set forth in Sec. 51.396 of the Transportation Conformity 
rule. This includes full enforceability under state law. EPA has 
reviewed the submittal and determined that the adoption by the Bay Area 
Air Quality Management District makes the rules fully enforceable under 
state law.
    On August 8, 1995, and November 14, 1995, EPA published revisions 
to the Transportation Conformity Rule. The revisions were developed in 
response to and through consultation with conformity stakeholders from 
throughout the country. The Bay Area proposal incorporates those 
changes. In addition, EPA has proposed to make further changes to the 
regulations to accommodate stakeholder requests (July 9, 1996). Those 
changes are expected to be made final in 1997. Once that occurs the Bay 
Area agencies will have a year to incorporate those changes. If these 
rules are approved, conformity in the Bay Area will be governed by the 
procedures being proposed for approval in this notice until EPA 
approves changes to the SIP to incorporate the 1997 changes to EPA's 
regulations.
    The SIP submittal includes ``The San Francisco Bay Area 
Transportation Air Quality Conformity Procedures,'' which includes 
sections 93.100-93.104 and sections 93.106-93.136, and ``The San 
Francisco Bay Area Transportation Air Quality Conformity Interagency 
Consultation Procedures''. These rules were adopted by the Bay Area Air 
Quality Management District on November 6, 1996, after proper notice 
and a public hearing held October 11, 1996 by the Metropolitan 
Transportation Commission (MTC) on behalf of MTC, the Bay Area Air 
Quality Management District and the Association of Bay Area 
Governments. The procedures apply to all aspects of transportation 
conformity related to ozone and carbon monoxide in the Bay Area and 
provide for coverage of particulate matter less than 10 microns (PM-10) 
(with one exception described below) and Nitrogen Dioxide (NO2) in case 
the area is redesignated to nonattainment for PM-10 or NO2, as required 
by Sec. 51.394 of the Transportation Conformity rule.
    The conformity rules are verbatim copies of the federal regulations 
with two exceptions. Section 93.133(c) has been appropriately modified 
as described below to satisfy EPA's Transportation Conformity rule, and 
Sec. 93.131(b) has been added to the EPA provisions to make CO hotspot 
requirements developed in the Bay Area enforceable under the Clean Air 
Act if approved by EPA. Section 93.133(c) is required by EPA to 
stipulate that any mitigation measures that are to be employed must be 
committed to in writing and must be implemented. The submitted version 
does so.
    EPA's regulations allow Regional Administrators to approve CO 
hotspot analysis procedures different from EPA's if they are equally 
effective in protecting air quality and have been consulted on through 
the interagency consultation process in the relevant nonattainment and/
or maintenance area (40 CFR 93.131(a)). They can be approved by EPA 
Regional Administrators outside the SIP revision process and without a 
Federal Register notice. EPA has received proposed CO hotspot 
requirements for the Bay Area that appear to be approvable as being as 
stringent as EPA's requirements. EPA is not taking any action on the 
hotspot

[[Page 37174]]

requirements in this notice because they were not submitted for and do 
not need to be included in the SIP. EPA cannot approve them in any case 
until after the Bay Area's rules are approved and make such procedures 
enforceable. If this approval becomes final, then enforceability will 
have been established for hotspot requirements developed for the Bay 
Area through the language in Sec. 93.131(b) of the rules described 
above. EPA anticipates being able to approve the hotspot requirements 
if and when approval of the conformity procedures becomes final. 
However, we have informed the Bay Area that they should solicit and 
consider public comment on the Protocol before expecting EPA to 
consider giving approval.
    The Preamble to the federal conformity regulations strongly 
encourages agencies to adopt a definition of ``adoption and approval'' 
for implementation of ``non-federal'' projects by recipients of federal 
surface transportation funds (58 FR 62205, November 24, 1993 Federal 
Register). It says: ``The SIP must designate what action by each 
affected recipient constitutes adoption or approval.'' The Bay Area's 
rules do not include this definition. Without such definition there may 
be some ambiguity and difficulty for agencies attempting to proceed 
with such projects. However, EPA does not consider this significant 
enough to interfere with approval.
    Section 51.402 (Sec. 93.105) identifies a number of specific 
processes or decisions for which interagency or public consultation is 
required. For each of these, the Procedures must assign or identify a 
lead agency and specify the nature of the consultation process. Almost 
all of the consultation provisions that are required are included, but 
some of the topics in the federal rules are not included in the Bay 
Area's consultation procedures, as described in the Technical Support 
Document. The rules do not include provisions for identifying which 
projects should be subject to PM-10 hotspot analyses and do not provide 
a process to address projects outside the metropolitan planning area 
but within a nonattainment or maintenance area. Neither of these 
provisions is needed at this time; the area is not currently required 
to analyze the hotspot impacts of PM-10 projects and the planning area 
covers all air quality nonattainment and maintenance areas. If 
conditions change such that one or both of these provisions are needed, 
then EPA will have to issue a SIP call requiring that those provisions 
be added to the rules. However, EPA still considers the rules 
approvable.
    The section of the Consultation Procedures which addresses 
development of SIPs provided that the three co-lead agencies can 
``delegate authority to one of the three co-lead agencies to hold a 
public hearing * * *.'' This provision is acceptable, but the public 
notice must make it clear that the one hearing is for all three 
agencies and all of them must in fact take into account the public 
input from the hearing.
    If these rules are approved it will not amend any existing SIP 
rules or requirements. Because no existing SIP provisions would be 
amended or deleted, this action does not need to address the provisions 
of sections 110(l) and 193 of the Act, which stipulate that certain 
tests must be met if SIP provisions are being revised, to ensure 
continued satisfaction of Act requirements and protection of National 
Ambient Air Quality Standards. However, it is possible that this 
approval will modify existing procedures being followed by MTC. MTC 
claims that if this approval becomes final it will result in lifting 
1990 and 1991 U.S. District court orders that mandated specific 
conformity procedures currently embodied in MTC Resolution 2270. EPA 
offers no opinion on this claim.
    EPA has evaluated the submitted rules and has determined that they 
are consistent with the CAA, EPA regulations, and EPA policy. 
Therefore, The San Francisco Bay Area Transportation Air Quality 
Conformity Procedures and The San Francisco Bay Area Transportation Air 
Quality Conformity Interagency Consultation Procedures are being 
approved under section 110(k)(3) of the CAA as meeting the requirements 
of section 110(a) and section 176(c)(4).
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future implementation 
plan. Each request for revision to the state implementation plan shall 
be considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

IV. Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Through submission of this state implementation plan, the State has 
elected to adopt the program provided for under Section 110 of the 
Clean Air Act. These rules may bind State and local governments to 
perform certain actions and also require the private sector to perform 
certain duties. To the extent that the rules being proposed for 
approval by this action will impose new requirements, affected parties 
are already subject to these regulations under State law. Accordingly, 
no additional costs to State or local governments, or to the private 
sector, result from this final action. EPA has also determined that 
this final action does not include a mandate that may result in 
estimated costs of $100 million or more to State or local governments 
in the aggregate or to the private sector.
    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 impose any new requirements, the 
Administrator certifies that it does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the CAA, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

C. 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

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may result in estimated 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 proposed does not 
include a Federal mandate that may result in estimated 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 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Intergovernmental relations, Ozone, Oxides of nitrogen, Particulates, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: June 27, 1997.
Felicia Marcus,
Regional Administrator.
[FR Doc. 97-18252 Filed 7-10-97; 8:45 am]
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