[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Rules and Regulations]
[Pages 67782-67784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32572]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MD076-3030a; FRL-6197-3]
Approval and Promulgation of Air Quality Implementation Plans;
State of Maryland--General Conformity Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking direct action on a State Implementation Plan
(SIP) revision submitted by the State of Maryland. The revision
includes Maryland's regulation for general conformity, which sets forth
policy, criteria and procedures for demonstrating and assuring
conformity of non-transportation related Federal projects to all
applicable air quality implementation plans. EPA is approving this
general conformity regulation as a SIP revision in accordance with the
Clean Air Act.
DATES: This direct final rule is effective on February 8, 1999 without
further notice unless EPA receives adverse written comment by January
8, 1999. If adverse comment is received, EPA 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.
ADDRESSES: Comments may be mailed to Robert Kramer, Chief; Energy
Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103;
the Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, 401 M Street, SW, Washington, DC 20460; and Maryland
Department of the Environment, 2500 Broening Highway, Baltimore,
Maryland 21224.
FOR FURTHER INFORMATION CONTACT: Larry Budney , (215) 814-2184, at the
EPA Region III office or via e-mail at [email protected].
[[Page 67783]]
SUPPLEMENTARY INFORMATION:
I. Background
On May 15, 1995, the Maryland Department of the Environment
submitted a formal revision to its State Implementation Plan (SIP) to
EPA. The SIP revision consists of the State's General Conformity
Regulation (COMAR 26.11.26.03), the purpose of which is to meet the
requirements of 40 CFR 51.851, State Implementation Plans, found under
40 CFR Part 51, Subpart W, Determining Conformity of General Federal
Actions to State and Federal Implementation Plans. Part 51, Subpart W
is commonly referred to as the Federal General Conformity Rule.
Maryland's SIP revision, which is the subject of this approval action,
consists of the State's General Conformity Rule. This action to approve
the State's General Conformity Rule as a SIP revision is being taken
under Section 110 of the Clean Air Act (CAA).
II. Summary of SIP Revision
The State's General Conformity Rule establishes standards and
procedures to follow when evaluating the conformity of non-
transportation related Federal projects to all applicable
implementation plans developed pursuant to Section 110 and Part D of
the CAA.
At 40 CFR Part 51, Subpart W, EPA promulgated the Federal rule for
General Conformity to implement section 176(c) of the CAA, as amended
(42 U.S.C. 7401 et seq.) which requires that all Federal actions
conform to applicable air quality implementation plans. This rule only
applies to areas designated nonattainment or maintenance areas under
the CAA, as amended. This Federal rule sets forth policy, criteria, and
procedures for demonstrating and assuring conformity of Federal actions
to all applicable implementation plans developed pursuant to Section
110 and Part D of the CAA. The rule generally applies to Federal
actions except:
(1) Those applicable under the transportation conformity rule (40
CFR Part 93, Subpart A);
(2) Actions with associated emissions below specified de minimis
levels; and
(3) Certain other actions which are exempt or presumed to conform
to applicable air quality implementation plans.
At 40 CFR 51.851, State Implementation Plans, EPA promulgated the
requirements that must be adopted by a State and submitted as a SIP
revision to implement the General Conformity provisions. The provisions
adopted by the State of Maryland for General Conformity are those
contained in and required by the Federal rule. EPA has reviewed the
State's General Conformity Rule and has determined that it satisfies
the requirements of 40 CFR 51.851. A Technical Support Document (TSD)
has been prepared which details the EPA's evaluation of the State's
General Conformity Rule. Interested parties may obtain a copy of the
TSD by contacting the EPA Regional Office listed in the ADDRESSES
section of this document.
EPA is approving this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse or critical comments be filed. This rule will be effective
February 8, 1999 without further notice unless the Agency receives
adverse comments by January 8, 1999.
If EPA receives such comments, then EPA will publish a timely
withdrawal of the direct final rule informing the public that the rule
will not take effect. All public comments received will then be
addressed in a subsequent final rule based on the proposed rule. EPA
will not institute a second comment period on this rule. Only parties
interested in commenting on this action should do so at this time. If
no such comments are received, the public is advised that this rule
will be effective on February 8, 1999 and no further action will be
taken on the proposed rule.
III. Final Action
EPA is approving the State of Maryland's General Conformity Rule
SIP revision submitted by the Maryland Department of the Environment on
May 15, 1998.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, E.O. 12875 requires EPA to
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
state, local, and tribal governments, the nature of their concerns,
copies of written communications from the governments, and a statement
supporting the need to issue the regulation. In addition, E.O. 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local, and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
E.O. 13045, entitled ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that the EPA determines (1) is ``economically
significant,'' as defined under E.O. 12866, and (2) the environmental
health or safety risk addressed by the rule has a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because it is not an
economically significant regulatory action as defined by E.O. 12866,
and it does not address an environmental health or safety risk that
would have a disproportionate effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
[[Page 67784]]
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments. This action does not involve or impose
any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of 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).
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
H. 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 February 8, 1999. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action to approve the Maryland General Conformity
Rule may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Ozone.
Dated: November 24, 1998.
Thomas Voltaggio,
Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart V--Maryland
2. Section 52.1070 is amended by adding paragraph (c)(136) to read
as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(c) * * *
(136) Revisions to the Maryland State Implementation Plan submitted
on May 15, 1995 by the Maryland Department of the Environment.
(i) Incorporation by reference.
(A) Letter of May 15, 1995 from the Maryland Department of the
Environment transmitting Maryland Regulation COMAR 26.11.26.03,
regarding General Conformity, for approval as a SIP revision.
(B) Maryland Regulation COMAR 26.11.26.03, effective June 5, 1995.
(ii) Additional material--Remainder of the May 15, 1995 state
submittal pertaining to General Conformity.
[FR Doc. 98-32572 Filed 12-8-98; 8:45 am]
BILLING CODE 6560-50-P