[Federal Register Volume 64, Number 157 (Monday, August 16, 1999)]
[Rules and Regulations]
[Pages 44417-44420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21002]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH039-7166a; A-1-FRL-6416-2]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; General Conformity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving New Hampshire's General Conformity Rule, 
incorporating it into the State Implementation Plan (SIP).

DATES: This direct final rule takes effect on October 15, 1999 without 
further notice, unless EPA receives adverse or critical comments by 
September 15, 1999. If EPA does receive adverse comments, we 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: You may mail comments to Susan Studlien, Deputy Director, 
Office of Ecosystem Protection, EPA Region 1 (CAA), One Congress 
Street, Suite 1100 (CAA), Boston, MA 02114. You may also email comments 
to [email protected].
    You may review copies of the relevant documents to this action by 
appointment during normal business hours at the Office Ecosystem 
Protection, EPA Region 1, One Congress Street, Boston, Massachusetts; 
the Air and Radiation Docket and Information Center, USEPA, 401 M 
Street, S.W., (LE-131), Washington, DC; and the Air Resources Division, 
Department of Environmental Services, 64 North Main Street, Concord, 
New Hampshire.

FOR FURTHER INFORMATION CONTACT: Matthew B. Cairns at 617-918-1667 or 
[email protected].

SUPPLEMENTARY INFORMATION: This section is organized as follows:
What action is EPA taking today?
What is General Conformity?
Where does General Conformity apply?
Who must follow General Conformity?
How does General Conformity differ from Transportation Conformity?
What did New Hampshire submit to EPA for approval?
Why did New Hampshire have to develop its own General Conformity 
Rule?
Why must New Hampshire's Rule be federally enforceable?
How does New Hampshire's General Conformity Rule meet the 
requirements of a federally enforceable General Conformity Rule?
Does New Hampshire's General Conformity Rule differ from the Federal 
General Conformity rule?
How does General Conformity affect air quality in New Hampshire?
Where can I get copies of the New Hampshire General Conformity Rule?
What is the process for EPA's approval of these SIP revisions?

What Action Is EPA Taking Today?

    EPA is approving New Hampshire's General Conformity Rule, 
incorporating it into the State Implementation Plan (SIP). This action 
makes New Hampshire's General Conformity Rule federally enforceable.

What is General Conformity?

    General Conformity is a safeguard that no action by the Federal 
government interferes with a SIP's protection of the National Ambient 
Air Quality Standards (NAAQS). Under General Conformity, any action by 
the Federal government cannot:

[[Page 44418]]

     Cause or contribute to any new violation of any standard 
in any area;
     Interfere with provisions in the applicable SIP for 
maintenance of any standard;
     Increase the frequency or severity of any existing 
violation of any standard in any area; or
     Delay timely attainment of any standard of any required 
interim emission reductions or other milestones in any area.
    General Conformity is a requirement of section 176(c) of the Clean 
Air Act Amendments of 1990 (CAA).

Where Does General Conformity Apply?

    General Conformity applies in all nonattainment areas and 
maintenance areas for all the criteria pollutants under the CAA: carbon 
monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone 
(O3), particulate matter (PM), and sulfur dioxide 
(SO2). It applies to Federal actions which produce 
reasonably foreseeable direct and indirect emissions of criteria 
pollutants or their precursors.

Who Must Follow General Conformity?

    All Federal government agencies must follow General Conformity 
rules. The General Conformity rule establishes thresholds for 
triggering a conformity analysis. These rules and the requirements for 
a conformity analysis appear in detail in 40 CFR 51.851 and 93.151.

How Does General Conformity Differ From Transportation Conformity?

    Transportation Conformity applies to transportation plans, 
programs, and projects funded or approved by the Federal Highway 
Administration or the Federal Transit Administration or recipients of 
fund from those agencies. General Conformity applies to all other 
Federal actions. When both Transportation Conformity and General 
Conformity apply to an action, if a transportation plan, program, or 
project meets the requirements of the Transportation Conformity rules 
in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A, it is 
considered to meet the requirements of General Conformity.

What Did New Hampshire Submit to EPA for Approval?

    New Hampshire submitted its General Conformity Rule, titled 
``Chapter Env-A 1500--Conformity, Part Env-A 1502--Conformity of 
General Federal Actions,'' to EPA on July 10, 1996 as a revision to its 
SIP. The SIP revision for this rule incorporates by reference 
appropriate sections of 40 CFR part 51, subpart W and thereby 
establishes General Conformity criteria and procedures in the New 
Hampshire SIP.

Why Did New Hampshire Have to Develop Its Own General Conformity 
Rule?

    The CAA requires each State to develop rules to implement the 
General Conformity rule. (See 40 CFR 51.851 and 93.151.) EPA believes 
that the Federal government does not have the primary responsibility 
for achieving clean air goals; Congress assigned that responsibility to 
State and local agencies. Therefore, each State must submit a revised 
SIP that includes General Conformity criteria and procedures that are 
consistent with the General Conformity rule. These criteria require 
that State Rules must be at least as stringent as the requirements 
specified in EPA's General Conformity rule. Furthermore, that they can 
only be more stringent if they apply equally to Federal and non-federal 
entities.

Why Must New Hampshire's Rule Be Federally Enforceable?

    New Hampshire's General Conformity SIP revision enables the State 
of New Hampshire to implement and enforce the Federal General 
Conformity rules in New Hampshire's nonattainment and maintenance areas 
at the State and local level. By approving New Hampshire's Rule into 
the SIP, EPA also gains the authority to enforce the Federal General 
Conformity rules and New Hampshire's General Conformity Rule at the 
Federal level.

How Does New Hampshire's General Conformity Rule Meet the 
Requirements of a Federally Enforceable General Conformity Rule?

    Section 110 of the CAA requires each State to adopt and submit to 
EPA a plan providing for the implementation, maintenance, and 
enforcement of air quality standards and control programs.
    The New Hampshire Office of Legislative Services has determined 
that this SIP revision will be enforceable under the Laws of New 
Hampshire, RSA 125-C:4 Rulemaking Authority; Subpoena Power. This law 
states in part, ``The director shall adopt rules, subject to the 
written approval of the commissioner, under RSA 541-A, relative to:
    (a) The prevention, control, abatement, and limitation of air 
pollution, including, but not limited to, open air source pollution, 
mobile source pollution, and stationary source pollution, and
    (b) Primary and secondary ambient air quality standards.''

Does New Hampshire's General Conformity Rule Differ From the 
Federal General Conformity Rule?

    New Hampshire has incorporated the Federal General Conformity rule 
by reference, so New Hampshire's rule is no more stringent that the 
Federal rule and does not impose any additional controls on non-federal 
entities.

How Does General Conformity Affect Air Quality in New Hampshire?

    If New Hampshire did not take steps to avoid pollution, air quality 
in New Hampshire would be degraded. The principle behind General 
Conformity is that the agency that sponsors or supports an activity is 
in the best position to limit the adverse air quality impacts of that 
activity. General Conformity is designed to hold those with the 
responsibility for a project accountable for the emissions that result 
from that project. The ultimate goal is to prevent actions that the 
Federal government supports from undermining State efforts to achieve 
and maintain clean air in a cost-effective manner.

Where Can I Get Copies of the New Hampshire General Conformity 
Rule?

    As stated in the ADDRESSES section above, you may review copies of 
the New Hampshire General Conformity Rule by appointment during normal 
business hours at the Office Ecosystem Protection, EPA Region 1, One 
Congress Street, Boston, Massachusetts; the Air and Radiation Docket 
and Information Center, USEPA, 401 M Street, S.W., (LE-131), 
Washington, DC; and the Air Resources Division, Department of 
Environmental Services, 64 North Main Street, Concord, New Hampshire. 
You may also view a copy of the New Hampshire General Conformity Rule 
via the Internet at http://www.state.nh.us/des/ard/enva1502.pdf.

What Is the Process for EPA's Approval of These SIP Revisions?

    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, EPA is also publishing a separate document that 
will serve as the proposal to approve this SIP revision should we 
receive relevant adverse comments. This action will be effective 
October 15, 1999 without further notice unless we receive relevant 
adverse comments by September 15, 1999.
    If EPA does receive adverse comments, we will withdraw the direct 
final rule and publish a notice that the rule will not take effect. We 
will then

[[Page 44419]]

respond to all public comments received in a subsequent final rule 
based on the proposed rule. The EPA will not institute a second comment 
period on the proposed rule. If you are interested in commenting on 
this action, you should do so at this time. If no such comments are 
received, you should know that this rule will be effective on October 
15, 1999 and no further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Orders 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
    The final rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks,'' because it is not an ``economically significant'' action under 
Executive Order 12866.

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 the mandate is unfunded, EPA must 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 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 the mandate is unfunded, 
EPA must 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 summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, 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. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

D. Regulatory Flexibility

    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 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).

E. Unfunded Mandates

    Under sections 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 
costs to State, local, or tribal governments in the aggregate; or to 
the 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 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.

F. 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).

G. 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 October 15, 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 may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).) EPA encourages 
interested parties to comment in response to the proposed rule rather 
than petition for judicial review, unless the objection arises after 
the comment period allowed for in the proposal.

[[Page 44420]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur dioxide.

    Note: Incorporation by reference of the State Implementation 
Plan for the State of New Hampshire was approved by the Director of 
the Federal Register on July 1, 1982.

    Dated: July 28, 1999.
John P. DeVillars,
Regional Administrator, Region 1.
    Part 52 of chapter I, title 40 of the Code of Federal Regulations 
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 EE--New Hampshire

    2. Section 52.1520 is amended by adding paragraph (c)(63) to read 
as follows:


Sec. 52.1520  Identification of plan.

* * * * * *
    (c) * * *
(63) Revisions to the State Implementation Plan Submitted by the New 
Hampshire Department of Environmental Services on July 10, 1996.
    (i) Incorporation by reference.
    (A) Letter from the New Hampshire Department of Environmental 
Services dated July 10, 1996 submitting a revision to the New Hampshire 
State Implementation Plan.
    (B) Part Env-A 1502 of Chapter Env-A 1500 of the New Hampshire Code 
of Administrative Rules titled ``Conformity of General Federal 
Actions,'' adopted in the State of New Hampshire on April 25, 1996.
For the State of New Hampshire
    3. In Sec. 52.1525, Table 52.1525 is amended by adding at the end 
of the table a new state citation for Conformity of General Federal 
Actions to read as follows:


Sec. 52.1525  EPA-approved  New Hampshire state regulations.s

* * * * *

                                            Table 52.1525--EPA-Approved Rules and Regulations--New Hampshire
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                                    State citation      Date  adopted by    Date approved by    Federal Register
         Title/subject                 chapter               State                 EPA              citation            52.1520            Comments
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          *                  *                  *                  *                  *                  *                  *
Conformity of General Federal    CH Env-A 1500, Part  April 19, 1996.....  August 16, 1999...  [Insert FR         c(63)               None.
 Actions.                         Env-A 1502.                                                   citation from
                                                                                                published date].
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[FR Doc. 99-21002 Filed 8-13-99; 8:45 am]
BILLING CODE 6560-50-P