[Federal Register Volume 73, Number 170 (Tuesday, September 2, 2008)]
[Rules and Regulations]
[Pages 51222-51225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20139]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2008-0340; FRL-8700-7]


Approval and Promulgation of Air Quality Implementation Plans; 
State of Utah; Revised Transportation Conformity Consultation Process, 
and Approval of Related Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking direct final action approving State 
Implementation Plan (SIP) revisions submitted by the State of Utah on 
June 26, 2007 and April 17, 2008. The June 26, 2007 revision updates 
Section XII of the Utah SIP and Rule R307-110-20 of the Utah 
Administrative Code (UAC) to meet the federal transportation conformity 
consultation requirements. The amended Rule R307-110-20 incorporates by 
reference Section XII, ``Transportation Conformity Consultation,'' of 
the SIP. The April 17, 2008 revision makes minor changes to sections 
R307-101-2 ``Definitions,'' R307-115-1 ``Determining Conformity,'' 
R307-170-7 ``Performance Specification Audits,'' and R307-310-2, 
``Definitions,'' and adds R307-101-3 ``Version of CFR Incorporated by 
Reference.'' EPA is approving the SIP revisions submitted by the State 
of Utah on June 26, 2007 and April 17, 2008. This action is being taken 
under section 110 of the Clean Air Act.

DATES: This rule is effective on November 3, 2008 without further 
notice, unless EPA receives adverse comment by October 2, 2008. If 
adverse comment is received, EPA will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2008-0340, by one of the following methods:
     http://www.regulations.gov. Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected] and [email protected].
     Fax: (303) 312-6064 (please alert the individual listed in 
the FOR FURTHER INFORMATION CONTACT if you are faxing comments).
     Mail: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129.
     Hand Delivery: Callie A. Videtich, Director, Air Program, 
Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only 
accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal 
holidays. Special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-
2008-0340. 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. For additional information about EPA's public 
docket visit the EPA Docket Center home page at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to Section I. General Information of the SUPPLEMENTARY 
INFORMATION section of this document.
    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

[[Page 51223]]

materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, Environmental 
Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, 
Colorado 80202-1129. EPA requests that if at all possible, you contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Jeffery Kimes, Air Program, 
Environmental Protection Agency (EPA), Mailcode 8P-AR, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129, phone (303) 312-6445, and e-mail 
at: [email protected].

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or Utah mean the State of Utah, unless the 
context indicates otherwise.

Table of Contents

I. General Information
II. What Is the Purpose of This Action?
III. What Is the State Process To Submit These Materials to EPA?
IV. EPA's Evaluation of the State of Utah's June 26, 2007 Submittal
V. EPA's Evaluation of the State of Utah's April 17, 2008 Submittal
VI. Consideration of Section 110(l) of the Clean Air Act
VII. Final Action
VIII. Statutory and Executive Order Reviews

I. General Information

A. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
    a. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    b. Follow directions--The agency may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    c. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    d. Describe any assumptions and provide any technical information 
and/or data that you used.
    e. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    f. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    g. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    h. Make sure to submit your comments by the comment period deadline 
identified.

II. What Is the Purpose of This Action?

    EPA is approving revisions to Section XII, ``Transportation 
Conformity Consultation,'' of the Utah SIP, and to Rule R307-110-20 
(incorporating by reference Section XII) of the Utah Administrative 
Code. Section XII of the Utah SIP, ``Transportation Conformity 
Consultation,'' addresses the requirements of 42 U.S.C. 7506 and 40 CFR 
51.390(b) to formalize the consultation process and to ensure early 
coordination and negotiation among all parties affected by 
transportation conformity. By approving these provisions, EPA is making 
them part of the federally enforceable state implementation plan for 
Utah under the Clean Air Act (CAA).
    In addition, EPA is approving minor revisions to sections R307-101-
2, ``Definitions;'' R307-115-1, ``Determining Conformity;'' R307-170-7, 
``Performance Specification Audits;'' and R307-310-2, ``Definitions;'' 
these minor revisions change the date of a cross referenced technical 
source and remove the dates of various CFR and Federal Register 
references and replace them with a reference to new R307-101-3, which 
references the July 1, 2007 version of the CFR. EPA is also approving 
R307-101-3, ``Version of CFR Incorporated by Reference.'' By approving 
these provisions, EPA is making them part of the federally enforceable 
state implementation plan for Utah under the Clean Air Act (CAA).

III. What Is the State Process To Submit SIP Revisions to EPA?

    Section 110(k) of the CAA addresses our actions on submissions of 
revisions to a SIP. The CAA requires States to observe certain 
procedural requirements in developing SIP revisions for submittal to 
EPA. Section 110(a)(2) of the CAA requires that each SIP revision be 
adopted after reasonable notice and public hearing. This action must 
occur prior to the revision being submitted by a State to EPA.
    The Utah Air Quality Board (UAQB) held a public hearing on March 
15, 2007 for the revision to Section XII of the Utah SIP, and Rule 
R307-110-20 of the UAC. These revisions to the State SIP were adopted 
by the UAQB on May 2, 2007, and were submitted by the Governor to EPA 
on June 26, 2007. Rule R307-110-20 became effective on May 2, 2007.
    While the UAQB held a public comment period from November 14, 2007 
to December 31, 2007 on minor revisions to R307-101-2, R307-115-1, 
R307-170-7, and R307-310-2, and the addition of R307-101-3, no comments 
were received and a public hearing was not requested. These revisions 
to the State SIP were adopted by the UAQB on February 6, 2008, and were 
submitted by the Governor to EPA on April 17, 2008. These revisions 
became effective on February 8, 2008.

IV. EPA's Evaluation of the State of Utah June 26, 2007 Submittal

    EPA has reviewed the revised State of Utah Conformity 
Transportation Consultation SIP (Conformity SIP) submitted on June 26, 
2007 and finds that approval is warranted. The following is a summary 
of the key aspects of the SIP and our evaluation of each:
    A. We reviewed the submittal to assure consistency with our 
conformity regulations at 40 CFR 51.390(b), which were revised on 
January 24, 2008, 73 FR 4438. We also consulted the February 14, 2006, 
``Interim Guidance for Implementing the Transportation Conformity 
provisions in the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users (SAFETEA-LU)''. The guidance document 
can be found at http://epa.gov/otaq/stateresources/transconf/

[[Page 51224]]

policy.htm. Forty CFR part 51.390(b) establishes the requirements for 
conformity consultation SIPs. It provides that each state is required 
to address three specific sections of the EPA Conformity Rules found at 
40 CFR part 93. The provisions required are: 40 CFR 93.105 
(consultation procedures); 40 CFR 93.122(a)(4)(ii) (certain control 
measures); and 40 CFR 93.125(c) (mitigation measures).
    i. 40 CFR 93.105, ``Consultation,'' requires the transportation 
conformity SIP to include procedures for interagency consultation, 
resolution of conflicts, and public consultation. Utah's revised 
Conformity SIP establishes the Interagency Consultation Team (ICT). The 
ICT consists of the Utah Division of Air Quality (UDAQ), all Utah 
metropolitan planning organizations (MPOs) located in designated non-
attainment and maintenance areas, Utah Department of Transportation 
(UDOT), Utah public transit agencies, Federal Highway Administration 
(FHWA), Federal Transit Administration (FTA), and EPA. The revision 
establishes and outlines the specific roles and responsibilities of 
each of the members of the ICT. It also describes the interagency 
collaboration, consultation, and planning process. The SIP addresses 
SIP development, transportation planning and specific sub-processes 
such as emission and traffic modeling, project planning and changes, 
conformity triggers, and responsibility for conformity in donut areas 
(those areas within nonattainment and maintenance areas that are not 
included within any MPO boundaries).
    The revised Conformity SIP also includes procedures for resolving 
conformity-related disputes and including the public in the 
transportation conformity process.
    ii. 40 CFR 93.122(a)(4)(ii) requires the conformity implementation 
plan revision to provide that written commitments to control measures 
that are not included in the transportation plan and TIP must be 
obtained prior to a conformity determination and that such commitments 
must be fulfilled. The revised Conformity SIP meets this requirement.
    iii. 40 CFR 93.125 relates to the enforceability of a 
transportation project design concept and scope and project-level 
mitigation and control measures. 40 CFR 93.125(c) requires that written 
commitments to mitigation measures must be obtained prior to a positive 
conformity determination and that project sponsors must comply with 
such commitments. Utah has included these requirements in the revised 
Conformity SIP.

V. EPA's Evaluation of the State of Utah April 17, 2008 Submittal

    EPA has reviewed the revisions to sections R307-101-2, 
``Definitions;'' R307-115-1, ``Determining Conformity;'' R307-170-7, 
``Performance Specification Audits;'' and R307-310-2, ``Definitions.'' 
EPA has also reviewed new R307-101-3, ``Version of CFR Incorporated by 
Reference;'' EPA finds that approval of these SIP revisions is 
warranted. EPA's description of the revisions submitted April 17, 2008 
follows:
    A. Minor definition changes
    i. Changes to R307-101-2, ``Definitions.'' The State added the 
acronym ``ACGIH'' for the American Conference of Government Industrial 
Hygienists, changed the reference date for an ACGIH publication from 
2000 to 2007, added the acronym ``VOC'' for Volatile Organic Compound, 
and removed reference dates for 40 CFR 51.100(s)(1), which defines VOC, 
and replaced them with a reference to R307-101-3, which references the 
July 1, 2007 version of the CFR.
    B. Removal of citations to various specific volumes of the Federal 
Register and CFR and replacement with a reference to new R307-101-3, 
which references the July 1, 2007 version of the CFR.
    i. In addition to R307-101-2, ``Definitions,'' discussed above, 
R307-115-1, ``Determining Conformity,'' R307-170-7, ``Performance 
Specification Audits,'' and R307-310-2, ``Definitions,'' each 
incorporated by reference or cross-referenced specific EPA regulations 
by citing various volumes of the Federal Register of CFR. Utah replaced 
these disparate citations with a cross-reference to new R307-101-3, 
which in turn references the July 1, 2007 version of the CFR. This 
change will simplify future changes to the SIP to incorporate by 
reference or cross-reference future version of EPA's regulations.

VI. Consideration of Section 110(l) of the Clean Air Act

    Section 110(l) of the CAA states that a SIP revision cannot be 
approved if the revision would interfere with any applicable 
requirement concerning attainment and reasonable further progress 
towards attainment of a National Ambient Air Quality Standard (NAAQS) 
or any other applicable requirement of the CAA. These revisions will 
not interfere with attainment, reasonable further progress, or any 
other applicable requirement of the CAA.

VII. Final Action

    EPA is approving, through direct final rulemaking, the revision to 
Section XII, ``Transportation Conformity Consultation,'' of the Utah 
SIP, and to Rule R307-110-20 (which incorporates Section XII) of the 
Utah Administrative Code, to reflect that the State has adequately 
addressed the required elements of 42 U.S.C. 7506 and 40 CFR 51.390(b). 
These revisions were adopted on May 2, 2007, and were submitted to EPA 
on June 26, 2007. Rule 307-110-20 became effective on May 2, 2007.
    In addition, EPA is approving revisions to sections R307-101-2, 
``Definitions;'' R307-115-1, ``Determining Conformity;'' R307-170-7, 
``Performance Specification Audits;'' and R307-310-2, ``Definitions.'' 
EPA is also approving the addition of R307-101-3, ``Version of CFR 
Incorporated by Reference.'' These revisions were adopted on February 
6, 2008, and were submitted to EPA on April 17, 2008. These revisions 
became effective on February 8, 2008. These revisions are minor and do 
not affect the adequacy of the SIP.
    EPA is publishing 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 today's 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective November 3, 2008 
without further notice unless the Agency receives adverse comments by 
October 2, 2008. If the EPA receives adverse comments, EPA will publish 
a timely withdrawal in the Federal Register informing the public that 
the rule will not take effect. EPA will address all public comments in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. Please note that if 
EPA receives adverse comment on an amendment, paragraph, or section of 
this rule and if that provision may be severed from the remainder of 
the rule, EPA may adopt as final those provisions of the rule that are 
not the subject of an adverse comment.

VIII. Statutory and Executive Order Review

    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

[[Page 51225]]

Office of Management and Budget. For this reason, this action is also 
not subject to Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001). 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 
(Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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). This action 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 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule 
implementing a Federal standard.
    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. 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. section 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. 
section 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 November 3, 2008. 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, Conformity, 
Incorporation by reference, Intergovernmental relations, Transportation 
plan, Transportation Improvement Program, Volatile organic compounds.

    Dated: July 25, 2008.
Judith Wong,
Acting Deputy Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read 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 TT--Utah

0
2. Section 52.2320 is amended by adding paragraphs (c)(66) and (c)(67) 
to read as follows:


Sec.  52.2320  Identification of plan.

* * * * *
    (c) * * *
    (66) Revisions to the Utah State Implementation Plan, ``Section 
XII, Transportation Conformity Consultation,'' as submitted by the 
Governor on June 26, 2007; and revisions to UAC R307-110-20, ``Section 
XII, Transportation Conformity Consultation,'' as submitted by the 
Governor on June 26, 2007.
    (i) Incorporation by Reference.
    (A) UAC R307-110-20, ``Section XII, Transportation Conformity 
Consultation,'' as adopted by the Utah Air Quality Board on May 2, 
2007, effective on May 2, 2007.
    (67) Revisions to the Utah State Implementation Plan, Sections 
R307-101-2, ``Definitions,'' R307-115-1, ``Determining Conformity,'' 
R307-170-7, ``Performance Specification Audits,'' R307-310-2, 
``Definitions,'' and R307-101-3, ``Version of CFR Incorporated by 
Reference,'' as submitted by the Governor on April 17, 2008.
    (i) Incorporation by Reference.
    (A) UAC R307-101-2, ``Definitions,'' as adopted by the Utah Air 
Quality Board on February 6, 2008, effective on February 8, 2008.
    (B) UAC R307-115-1, ``Determining Conformity,'' as adopted by the 
Utah Air Quality Board on February 6, 2008, effective on February 8, 
2008.
    (C) UAC R307-170-7, ``Performance Specification Audits,'' as by the 
Utah Air Quality Board adopted on February 6, 2008, effective on 
February 8, 2008.
    (D) UAC R307-310-2, ``Definitions,'' as adopted by the Utah Air 
Quality Board on February 6, 2008, effective on February 8, 2008.
    (E) UAC R307-101-3, ``Version of CFR Incorporated by Reference,'' 
as adopted by the Utah Air Quality Board on February 6, 2008, effective 
on February 8, 2008.

[FR Doc. E8-20139 Filed 8-29-08; 8:45 am]
BILLING CODE 6560-50-P