[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Rules and Regulations]
[Pages 37168-37171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17818]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2009-0303(a); FRL-8936-2]
Approval and Promulgation of Implementation Plans; South
Carolina; Transportation Conformity Memorandum of Agreement Update
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a revision to the
South Carolina State Implementation Plan (SIP) submitted on November
28, 2008, through the South Carolina Department of Health and
Environmental Control (SC DHEC). This revision consists of
transportation conformity criteria and procedures related to
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures. The intended effect
of this approval is to update the transportation conformity criteria
and procedures in the South Carolina SIP.
DATES: This direct final rule is effective September 28, 2009 without
further notice, unless EPA receives adverse comment by August 27, 2009.
If EPA receives such comments, it 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: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2009-0303, by one of the following methods:
a. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
b. E-mail: [email protected].
c. Fax: (404) 562-9019.
d. Mail: EPA-R04-OAR-2009-0303, Air Quality Modeling and
Transportation Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960.
e. Hand Delivery or Courier: Amanetta Wood, Air Quality Modeling
and Transportation Section, Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2009-0303. 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 through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. 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 homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Quality Modeling and
Transportation Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA
[[Page 37169]]
requests that if at all possible, you contact the person listed in the
FOR FURTHER INFORMATION CONTACT section to schedule your inspection.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Amanetta Wood, Air Quality Modeling
and Transportation Section, Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms.
Wood's telephone number is 404-562-9025. She can also be reached via
electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Transportation Conformity
II. Background for This Action
A. Federal Requirements
B. York County Conformity SIP
III. State Submittal and EPA Evaluation
IV. Public Comment and Final Action
V. Statutory and Executive Order Reviews
I. Transportation Conformity
Transportation conformity (hereafter referred to as ``conformity'')
is required under section 176(c) of the Clean Air Act (``CAA'' or
``Act'') to ensure that Federally supported highway, transit projects,
and other activities are consistent with (``conform to'') the purpose
of the SIP. Conformity currently applies to areas that are designated
nonattainment, and to areas that have been redesignated to attainment
after 1990 (maintenance areas) with plans developed under section 175A
of the Act, for the following transportation related criteria
pollutants: Ozone, particulate matter (e.g., PM2.5 and
PM10), carbon monoxide, and nitrogen dioxide.
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the relevant criteria
pollutants, also known as national ambient air quality standards
(NAAQS). The conformity regulation is found in 40 CFR part 93 and
provisions related to conformity SIPs are found in 40 CFR 51.390.
II. Background for This Action
A. Federal Requirements
EPA promulgated the Federal transportation conformity criteria and
procedures (``Conformity Rule'') on November 24, 1993 (58 FR 62188).
Among other things, the rule required States to address all provisions
of the conformity rule in their SIPs frequently referred to as
``conformity SIPs.'' Under 40 CFR 51.390, most sections of the
conformity rule were required to be copied verbatim. States were also
required to tailor all or portions of the following three sections of
the conformity rule to meet their State's individual circumstances: 40
CFR 93.105, which addresses consultation procedures; 40 CFR
93.122(a)(4)(ii), which addresses written commitments to control
measures that are not included in a metropolitan planning
organization's (MPO's) transportation plan and transportation
improvement program that must be obtained prior to a conformity
determination, and the requirement that such commitments, when they
exist, must be fulfilled; and 40 CFR 93.125(c), which addresses written
commitments to mitigation measures that must be obtained prior to a
project-level conformity determination, and the requirement that
project sponsors must comply with such commitments, when they exist.
On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed
into law. SAFETEA-LU revised section 176(c) of the CAA transportation
conformity provisions. One of the changes streamlines the requirements
for conformity SIPs. Under SAFETEA-LU, States are required to address
and tailor only three sections of the rule in their conformity SIPs: 40
CFR 93.105, 40 CFR 93.122(a)(4)(ii), and, 40 CFR 93.125(c), described
above. In general, States are no longer required to submit conformity
SIP revisions that address the other sections of the conformity rule.
These changes took effect on August 10, 2005, when SAFETEA-LU was
signed into law.
B. South Carolina Transportation Conformity SIP
Effective June 15, 2004, EPA designated Rock Hill, a portion of
York County, as a nonattainmnet area for the 1997 8-hour ozone standard
as part of the bi-State Charlotte-Gastonia-Rock Hill NC-SC
nonattainment area. The current designation status for the bi-State
Charlotte-Rock Hill Area for the 1997 8-hour ozone standard is
nonattainment. See, 40 CFR 81 for more information on designations.
The Rock Hill-Fort Mill Area Transit Study (RFATS) is the MPO for
the entire portion of York County that is included in the 1997 8-hour
ozone area. Per the Transportation Conformity Rule, the MPO's
conformity determination is not complete without a regional analysis
that considers the projects in the MPO area. For the purposes of 8-hour
conformity, the RFATS MPO serves as the lead agency for the
preparation, consultation, and distribution of the conformity
determinations.
Previously, South Carolina had established a conformity SIP. In
2004, EPA approved the State of South Carolina's SIP revision which
incorporated by reference 40 CFR 93 Subpart A, 67 FR 50808, and
customized 40 CFR 93.105, 93.122(a)(4)(ii), and 93.125(c) for all of
the MPOs in the entire State and for the South Carolina Department of
Transportation (SC DOT). Specifically, the State of South Carolina
established a Memorandum of Agreement (MOA) for implementing the
conformity Criteria and Consultation Procedure for all transportation-
related pollutants. The new conformity SIP (the subject of this
rulemaking) removed any incorporation by reference and has revised the
MOA to be consistent with the SAFETEA-LU revisions to the CAA (Pub. L.
109-59) and subsequent regulations published on January 24, 2008 (73 FR
4420). While South Carolina currently has only one nonattainment area
(i.e. a portion of York County) for the 1997 standard its MOA covers
all of the MPOs in the State should new areas become subject to
conformity requirements for a transportation-related pollutant in the
future.
The State of North Carolina will establish conformity procedures
for the counties that make up the North Carolina portion of the bi-
State Charlotte-Rock Hill nonattainment area in the individual
conformity SIPs.
III. State Submittal and EPA Evaluation
On November 19, 2008, the State of South Carolina, through SC DHEC,
submitted the Statewide conformity and consultation interagency SIP,
based on an MOA signed by all of the MPOs in the State and SC DOT, to
EPA as a revision to the SIP. The South Carolina conformity SIP
establishes procedures for interagency consultation and supersedes the
November 19, 2003, incorporation into the SIP of the MOA (which
included previous procedures for interagency consultation). Prior to
today, the MOA incorporated EPA regulations in 40 CFR 93 Subpart A
(July 1, 1997), and 62 FR 43780 (August 15, 1997) by reference. The
revision to the MOA that EPA is approving now no longer incorporates
the Federal conformity rules by reference. Additionally, as was the
case with the previous MOA, it applies to all counties in South
Carolina.
[[Page 37170]]
The State of South Carolina developed its consultation SIP based on
the elements contained in 40 CFR 93.105, 93.122(a)(4)(ii), and
93.125(c) and included it in the SIP. As a first step, the State worked
with the existing transportation planning organization's interagency
committees that included representatives from the SC DHEC; SC DOT; all
of the MPOs in the State; Federal Highway Administration--South
Carolina Division; Federal Transit Administration; and the Region 4
office of EPA. The interagency committee met regularly and drafted the
consultation procedures considering elements in 40 CFR Part 93.105,
93.122(a)(4)(ii), and 93.125(c), and integrated the local procedures
and processes into the MOA. The resulting consultation process
developed is unique to the State of South Carolina. On April 28, 2008,
SC DHEC held a public hearing for the transportation conformity MOA.
The final MOA was issued by South Carolina on November 19, 2008, and
subsequently submitted to EPA as a SIP revision.
EPA has evaluated this SIP revision and has determined that the
State has met the requirements of Federal transportation conformity
rules as described in 40 CFR Part 51, Subpart T and 40 CFR Part 93,
Subpart A. SC DHEC has satisfied the public participation and
comprehensive interagency consultation requirement during development
and adoption of the MOA at the local level. Therefore, EPA is approving
the MOA as a revision to the South Carolina SIP. EPA's rule requires
the States to develop their own processes and procedures for
interagency consultation among the Federal, State, and local agencies
and resolution of conflicts meeting the criteria in 40 CFR 93.105. The
SIP revision must include processes and procedures to be followed by
the MPO, State DOT, and U.S. DOT in consulting with the State and local
air quality agencies and EPA before making conformity determinations.
The conformity SIP revision must also include processes and procedures
for the State and local air quality agencies and EPA to coordinate the
development of applicable SIPs with MPOs, State DOTs, and the U.S. DOT.
EPA has reviewed the submittal to assure consistency with the CAA
as amended by SAFETEA-LU and EPA regulations (40 CFR part 93 and 40 CFR
51.390) governing State procedures for transportation conformity and
interagency consultation and has concluded that the submittal is
approvable. Details of our review are set forth in a technical support
document (TSD), which has been included in the docket for this action.
Specifically, in the TSD, we identify how the submitted procedures
satisfy our requirements under 40 CFR 93.105 for interagency
consultation with respect to the development of transportation plans
and programs, SIPs, and conformity determinations, the resolution of
conflicts, and the provision of adequate public consultation, and our
requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for
enforceability of control measures and mitigation measures.
IV. Public Comment and Final Action
For the reasons set forth above, EPA is taking action under section
110 of the Act to approve the rule implementing the conformity criteria
and consultation procedures revision to the South Carolina SIP pursuant
to the CAA, as a revision to the South Carolina SIP. As a result of
this action, South Carolina's previously SIP-approved conformity
procedures for South Carolina 69 FR 4245, January 29, 2004, will be
replaced by the procedures submitted to EPA on November 19, 2008 for
approval and adopted by the State of South Carolina on November 28,
2008. This action also establishes consultation procedures for all
counties in South Carolina.
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 September 28,
2009 without further notice unless the Agency receives adverse comments
by August 27, 2009.
If EPA receives such comments, then EPA will publish a document
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. 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 September 28, 2009 and
no further action will be taken on the proposed rule.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
Tribal governments or preempt Tribal law.
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
[[Page 37171]]
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 action 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).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 28, 2009. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the Proposed Rules
section of today's Federal Register; rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. 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,
Intergovernmental relations, Incorporation by reference,
Intergovernmental relations, Incorporation by reference, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: July 8, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart (PP)--South Carolina
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2. Section 52.2120(e) is amended by adding a new entry at the end of
the table for ``Transportation Conformity SIP'' to read as follows:
Sec. 52.2120 Identification of plan.
* * * * *
(e) * * *
EPA-Approved South Carolina Non-Regulatory Provisions
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State
Provision effective date EPA approval date Explanation
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* * * * * * *
South Carolina Transportation Conformity Air 11/28/2008 7/28/2009 [Insert citation of ..............
Quality Implementation Plan. publication].
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[FR Doc. E9-17818 Filed 7-27-09; 8:45 am]
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