[Federal Register Volume 65, Number 56 (Wednesday, March 22, 2000)]
[Rules and Regulations]
[Pages 15244-15248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6969]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OR-73-7288-a; FRL-6544-2]


Approval and Promulgation of State Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) approves various 
revisions to Oregon's State Implementation Plan (SIP). This revision to 
the SIP was submitted to EPA, dated October 8, 1998.
    The revised regulations include Transportation Conformity (OAR 340-
020-710 through 340-020-1080) and General Conformity (OAR-020-1500 
through 340-020-1590).

DATES: This direct final rule is effective on May 22, 2000 without 
further notice, unless EPA receives adverse comment by April 21, 2000. 
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: Written comments should be addressed to: Ms. Christine 
Lemme, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue, 
Seattle, Washington 98101.
    Documents which are incorporated by reference are available for 
public inspection at the Air and Radiation Docket and Information 
Center, Environmental Protection Agency, Ariel Rios Building 1200 
Pennsylvania Avenue, N.W. Washington, D.C. 20460. Copies of material 
submitted to EPA may be examined during normal business hours at the 
following locations: EPA, Region 10, Office of Air Quality, 1200 Sixth 
Avenue (OAQ-107), Seattle, Washington 98101, and the Oregon Department 
of Environmental Quality, 811 SW Sixth Avenue, Portland, Oregon 97204-
1390.

FOR FURTHER INFORMATION CONTACT: Wayne Elson, Office of Air Quality 
(OAQ-107), EPA, Seattle, Washington 98101, (206) 553-1463.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

    A. What SIP amendments are EPA approving?
    B. What is Transportation Conformity?
    C. How does Transportation Conformity work?
    D. Why must the State have a Transportation Conformity SIP?
    E. What is EPA approving today for Transportation Conformity and 
Why?
    F. Why did the State Exclude the Grace Period for New 
Nonattainment Areas (40 CFR 93.102(d))?
    G. What parts of the Transportation Conformity Rule are 
Excluded?
    H. What is General Conformity?
    I. What is EPA approving today for General Conformity and Why?

A. What SIP Amendments Are EPA Approving?

    The following table outlines the submittals EPA received and is 
approving in this action:

------------------------------------------------------------------------
         Date of submittal to EPA                   Items revised
------------------------------------------------------------------------
10-8-98...................................  Transportation Conformity
                                             Rules.
10-8-98...................................  General Conformity Rules.
------------------------------------------------------------------------

B. What is Transportation Conformity?

    Conformity first appeared in the Act's 1977 amendments (Public Law 
95-95). Although the Act did not define conformity, it stated that no 
Federal department could engage in, support in any way or provide 
financial assistance for, license or permit, or approve any activity 
which did not conform to a SIP which has been approved or

[[Page 15245]]

promulgated. The Act's 1990 Amendments expanded the scope and content 
of the conformity concept by applying conformity to state 
implementation plans. Section 176(c) of the Act defines conformity as 
conformity to the SIP's purpose of eliminating or reducing the severity 
and number of violations of the NAAQS and achieving expeditious 
attainment of such standards. Also, the Act states that no Federal 
activity will: (1) cause or contribute to any new violation of any 
standard in any area, (2) increase the frequency or severity of any 
existing violation of any standard in any area, or (3) delay timely 
attainment of any standard or any required interim emission reductions 
or other milestones in any area.

C. How Does Transportation Conformity Work?

    The Federal or State Transportation Conformity Rule applies to all 
nonattainment and maintenance areas in the State. The Metropolitan 
Planning Organizations (MPO), the State Departments of Transportation 
(in absence of a MPO), and U.S. Department of Transportation make 
conformity determinations. These agencies make conformity 
determinations on programs and plans such as transportation improvement 
programs, transportation plans, and projects. These agencies calculate 
the projected emissions for the transportation plans and programs and 
compare those calculated emissions to the motor vehicle emissions 
ceiling established in the SIP. The calculated emissions must be 
smaller than the motor vehicle emissions ceiling for showing a positive 
conformity with the SIP.

D. Why Must the State Have a Transportation Conformity SIP?

    EPA was required to issue criteria and procedures for determining 
conformity of transportation plans, programs, and projects to a SIP by 
section 176(c) of the Act. The Act also required the procedure to 
include a requirement that each State submit a revision to its SIP 
including conformity criteria and procedures. EPA published the first 
transportation conformity rule in the November 24, 1993, Federal 
Register (FR), and it was codified at 40 CFR part 51, subpart T and 40 
CFR part 93, subpart A. EPA required the States and local agencies to 
adopt and submit a transportation conformity SIP revision by November 
25, 1994. The State of Oregon sent a transportation conformity SIP on 
April 17, 1995, and EPA approved this SIP on May 16, 1996 (61 FR 
24709). EPA revised the transportation conformity rule on August 7, 
1995 (60 FR 40098), November 14, 1995 (60 FR 57179), August 15, 1997 
(62 FR 43780), and it was codified under 40 CFR part 51, subpart T and 
40 CFR part 93, subpart A--Conformity to State or Federal 
Implementation Plans of Transportation Plans, Programs, and Projects 
Developed, Funded or Approved Under Title 23 U.S.C. or the Federal 
Transit Laws (62 FR 43780). EPA's action of August 15, 1997, required 
the States to change their rules and send a SIP revision by August 15, 
1998.

E. What Is EPA Approving Today for Transportation Conformity and 
Why?

    EPA is approving the modified Oregon Transportation Conformity 
Rules OAR 340-020-710 through 340-020-1080 that the ODEQ submitted on 
October 8, 1998 except for the sections OAR 340-020-730(3), OAR 340-
020-750(4), OAR 340-020-750(4)(b), OAR 340-020-800(3)-(6), OAR 340-020-
890(5), OAR 340-020-900(6)(c), OAR 340-020-910(1)(b), OAR 340-020-
1000(1)(a) and (2), and OAR 340-020-1030(2). The rationale for 
exclusion of these sections is discussed in Question G.
    The Federal Transportation Conformity Rule required the states to 
adopt the majority of the Federal rules in verbatim form with a few 
exceptions. The States cannot make their rules more stringent than the 
Federal rules unless the State's rules apply equally to non-federal 
entities as well as Federal entities. The Oregon Transportation 
Conformity Rule is different from the Federal rule in several areas. 
These differences were discussed in the May 16, 1996 EPA approval. The 
State has made no additional changes or modifications, with the 
exception to the changes required by the revisions to the Federal 
Transportation Conformity Rule, August 15, 1997 (62 FR 43780). EPA has 
evaluated this SIP revision and has determined that the State has fully 
adopted the Federal Transportation Conformity rules as described in 40 
CFR part 51, subpart T and 40 CFR part 93, subpart A. Also, the ODEQ 
has completed and satisfied the public participation and comprehensive 
interagency consultations during development and adoption of these 
rules at the local level. Therefore, EPA is approving this SIP 
revision.

F. Why Did the State Exclude the Grace Period for New Nonattainment 
Areas (40 CFR 93.102(d))?

    The State excluded 40 CFR 93.102(d) of the Federal Transportation 
Conformity Rule from its State rule. Section 93.102(d) allows up to 12 
months for newly designated nonattainment areas to complete their 
conformity determination. The Sierra Club challenged this section of 
the rule arguing that allowing a 12-month grace period was unlawful 
under the Act. On November 4, 1997, the United States Court of Appeals 
for the District of Columbia Circuit held in Sierra Club v. 
Environmental Protection Agency, No. 96-1007, cited EPA's grace period 
violates the plain terms of the Act and, therefore, is unlawful. Based 
on this court action, the State has excluded this section from its 
rule. We agree with the State's action, and exclusion of 40 CFR 
93.102(d) will not prevent us from approving the State transportation 
conformity SIP.

G. What Parts of the Transportation Conformity Rule Are Excluded?

    On March 2, 1999, the United States Court of Appeals for the 
District of Columbia Circuit issued its opinion in Environmental 
Defense Fund v. Environmental Protection Agency, No. 97-1637. The Court 
granted the environmental group's petition for review and ruled that 40 
CFR 93.102(c)(1), 93.121(a)(1), and 93.124(b) are unlawful and remanded 
40 CFR 93.118(e) and 93.120(a)(2) to EPA for revision to harmonize 
these provisions with the requirements of the Act for an affirmative 
determination the Federal actions will not cause or increase violations 
or delay attainment. The sections that were included in this decision 
were: (a) 40 CFR 93.102(c)(1) which allowed certain projects for which 
the National Environmental Policy Act (NEPA) process has been completed 
by the DOT to proceed toward implementation without further conformity 
determinations during a conformity lapse, (b) 40 CFR 93.118(e) which 
allowed use of motor vehicle emissions budgets (MVEB) in the submitted 
SIPs after 45 days if EPA had not declared them inadequate, (c) 40 CFR 
93.120(a)(2) which allowed use of the MVEB in a disapproved SIP for 120 
days after disapproval, (d) 40 CFR 93.121(a)(1) which allowed the non-
federally funded projects to be approved if included in the first three 
years of the most recently conforming transportation plan and 
transportation improvement programs, even if conformity status is 
currently lapsed, and (e) 40 CFR 93.124(b) which allowed areas to use a 
submitted SIP that allocated portions of a safety margin to 
transportation activities for conformity purposes before EPA approval. 
Since the States were required to submit transportation conformity SIPs 
not later than August

[[Page 15246]]

15, 1998, and include those provisions in verbatim form, the State's 
SIP revision includes all those sections which the Court ruled unlawful 
or remanded for consistency with the Act. The EPA can not approve these 
sections. EPA believes that ODEQ has complied with the SIP requirements 
and has adopted the Federal rules which were in effect at the time that 
the transportation conformity SIP was due to EPA. If the court had 
issued its ruling before adoption and SIP submittal by the ODEQ, we 
believe the ODEQ would have removed these sections from their rule. The 
ODEQ has expended its resources and time in preparing this SIP and 
meeting the Act's statutory deadline, and EPA acknowledges the agency's 
good faith effort in submitting the transportation conformity SIP on 
time. ODEQ will be required to submit a SIP revision in the future when 
EPA revises its rule to comply with the court decision. Because the 
court decision has invalidated these provisions, EPA believes that it 
is reasonable to exclude the corresponding sections of the state rules 
from this SIP approval action. As a result, we are not taking any 
action on the relevant sections in: OAR 340-020-730(3), OAR 340-020-
750(4), OAR 340-020-750(4)(b), OAR 340-020-800(3)-(6), OAR 340-020-
890(5), OAR 340-020-900(6)(c), OAR 340-020-910(1)(b), OAR 340-020-
1000(1)(a) and (2), and OAR 340-020-1030(2) of the modified Oregon 
Transportation Conformity Rules. The conformity determinations affected 
by these sections should comply with the relevant requirements of the 
statutory provisions of the Act underlying the court's decision on 
these issues. The EPA will be issuing guidance on how to implement 
these provisions in the interim prior to EPA amendment of the federal 
transportation conformity rules. Once these Federal rules have been 
revised, conformity determinations in Oregon should comply with the 
requirements of the revised Federal rule until corresponding provisions 
of the Oregon conformity SIP have been approved by EPA.

H. What Is General Conformity?

    General Conformity is similar to Transportation Conformity and also 
derived from section 176(c) of the CAA. The Act's 1990 Amendments 
expanded the scope and content of the conformity concept by applying 
conformity to state implementation plans. Section 176(c) of the Act 
defines conformity as conformity to the SIP's purpose of eliminating or 
reducing the severity and number of violations of the NAAQS and 
achieving expeditious attainment of such standards. Also, the Act 
states that no Federal activity will: (1) cause or contribute to any 
new violation of any standard in any area, (2) increase the frequency 
or severity of any existing violation of any standard in any area, or 
(3) delay timely attainment of any standard or any required interim 
emission reductions or other milestones in any area. General 
Conformity, however applies to federal actions where Transportation 
Conformity does not apply. Examples are ski resorts on public land, and 
airport improvements. Also General Conformity is only carried out on 
project by project basis.

I. What Is EPA Approving Today for General Conformity and Why?

    General Conformity requires that activities on federal lands (such 
as prescribed burning by the Forest Service) align with the air quality 
goals set in the Oregon SIP. Oregon's current General Conformity rules 
apply to all areas of the state. Since they were adopted, however, the 
U.S. Congress clarified that General Conformity pertains only to 
nonattainment and maintenance areas. The rule is changed to remove the 
applicability of the rule for federal actions involving prescribed 
burning in attainment or unclassifiable areas and remove all references 
to prescribed burning. These revisions will have no effect on existing 
prescribed burning practices, as implementation of the General 
Conformity requirements in attainment areas was delayed pending the 
outcome of a federal determination of applicability. The Oregon Smoke 
Management Plan will continue to provide statewide guidelines for state 
and federal land managers to minimize smoke impacts from prescribed 
burning.

Summary of Action

    EPA approves and takes no action on certain Oregon Administrative 
Rules (as noted in section I): ``Conformity to State or Federal 
Implementation Plans to Transportation Plans, Programs, and Projects 
Developed and Funded Under Title 23 U.S.C. or Federal Transit Laws'' 
found in:

340-20-710  Purpose.
340-20-720  Definitions.
340-20-730  Applicability.
340-20-750  Frequency of Conformity Determinations.
340-20-760  Consultation.
340-20-770  Content of Transportation Plans.
340-20-780  Relationship of Transportation Plan and TIP Conformity with 
the NEPA Process.
340-20-790  Fiscal Constraints for Transportation Plans.
340-20-800  Criteria and Procedures for Determining Conformity of 
Transportation Plans, Programs, and Projects: General.
340-20-810  Criteria and Procedures: Latest Planning Assumptions.
340-20-820  Criteria and Procedures: Latest Emissions Model.
340-20-830  Criteria and Procedures: Consultation.
340-20-840  Criteria and Procedures: Timely Implementation of TCMs.
340-20-850  Criteria and Procedures: Currently Conforming 
Transportation Plan and TIP.
340-20-860  Criteria and Procedures: Projects from a Plan and TIP.
340-20-870  Criteria and Procedures: Localized CO and PM-10 Violations 
(Hot spots).
340-20-880  Criteria and Procedures: Compliance with PM-10 Control 
Measures.
340-20-890  Criteria and Procedures: Motor Vehicle Emissions Budget.
340-20-900  Criteria and Procedures: Emissions Reductions in Areas 
Without Motor Vehicle Emissions Budgets.
340-20-910  Consequences of Control Strategy Implementation Plan 
Failures.
340-20-1000  Requirements for Adoption or Approval of Projects by Other 
Recipients of Funds Designated under title 23 U.S.C. or the Federal 
Transit Laws.
340-20-1010  Procedures for Determining Regional Transportation-Related 
Emissions.
340-20-1020  Procedures for Determining Localized CO and PM-10 
Concentrations (Hot-Spot Analysis).
340-20-1030  Using the Motor Vehicle Emissions Budget in the Applicable 
Implementation Plan (or Implementation Plan Submission).
340-20-1040  Enforceability of Design Concept and Scope and Project-
Level Mitigation and Control Measures.
340-20-1050  Exempt Projects.
340-20-1060  Projects Exempt from Regional Emissions Analyses.
340-20-1070  Traffic Signal Synchronization Projects.

    EPA approves the changes made to certain sections of the Oregon 
Administrative Rules: ``Determining Conformity of General Federal 
Actions to State and Federal Implementation Plans'' found in:

340-020-1510  Definitions.
340-020-1520  Applicability.
340-020-1530  Conformity Analysis.
340-020-1570  Criteria for Determining Conformity of General Federal 
Actions.
340-020-1580  Procedures for Conformity Determinations of General 
Federal Actions.

[[Page 15247]]

340-020-1590  Procedures Mitigation of Air Quality Impacts

    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal 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 comments be filed. This rule will be effective May 22, 2000  
without further notice unless the Agency receives adverse comments by 
April 21, 2000.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and 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. The EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on May 22, 2000 and no 
further action will be taken on the proposed rule.

Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule 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 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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. 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). This rule will be effective May 22, 2000 unless EPA receives 
adverse written comments by April 21, 2000.
    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 May 22, 2000. 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).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Reporting and recordkeeping requirements.

    Dated: February 22, 2000.
Chuck Findley,
Acting Regional Administrator, Region 10.

    PART 52, 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 MM--Oregon

    2. Section 52.1970 is amended by adding paragraph (c) (129) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (129) The Environmental Protection Agency (EPA) approves various 
amendments to the Oregon State Air Quality Control Plan contained in a 
submittal to EPA, dated October 8, 1997.
    (i) Incorporation by reference.
    (A) EPA is approving or taking no action on the modified Oregon 
Transportation Conformity Rules submitted on October 8, 1998. EPA is 
approving: OAR 340-20-710, 340-20-720, 340-20-730, 340-20-750, 340-20-
760 340-20-770, 340-20-780, 340-20-790, 340-20-800, 340-20-810, 340-20-
820, 340-20-830, 340-20-840, 340-20-850, 340-20-860 340-20-870, 340-20-
880, 340-20-890, 340-20-900, 340-20-910 340-20-1000, 340-20-1010, 340-
20-1020, 340-20-1030, 340-20-1040, 340-20-1050, 340-20-1060 and 340-20-
1070, effective September 23, 1998.
    (B) EPA is taking no action on sections OAR 340-020-730(3), 340-
020-

[[Page 15248]]

750(4), 340-020-750(4)(b), 340-020-800(3)-(6), 340-020-890(5), 340-020-
900(6)(c), 340-020-910(1)(b), 340-020-1000(1)(a) and (2), and 340-020-
1030(2).
    (C) EPA approves the changes made to certain sections of the Oregon 
Administrative Rules: ``Determining Conformity of General Federal 
Actions to State and Federal Implementation Plans' found in: OAR 340-
020-1510, 340-020-1520, 340-020-1530, 340-020-1570, 340-020-1580, and 
340-020-1590, effective September 23, 1998.
[FR Doc. 00-6969 Filed 3-21-00; 8:45 am]
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