[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24709-24712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12353]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[OR47-11-7052a; FRL-5504-8]


Approval and Promulgation of Implementation Plans: Oregon

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: Environmental Protection Agency (EPA) approves Oregon's 
Transportation conformity rules received on April 17, 1995, from the 
Oregon Department of Environmental Quality (ODEQ). The Clean Air Act 
(CAA or Act) requires the states to promulgate conformity rules to 
ensure that Federal actions conform to the appropriate State 
Implementation Plan (SIP). Conformity to a SIP is defined in the CAA, 
as amended in 1990, as meaning conformity to a SIP's purpose of 
eliminating or reducing the severity and number of violations of the 
national ambient air quality standards (NAAQS) and achieving 
expeditious attainment of such standards. The Federal agency 
responsible for the action is required to determine if its actions 
conform to the applicable SIP.

DATES: This action is effective on July 15, 1996 unless adverse or 
critical comments are received by June 17, 1996. If the effective date 
is delayed,

[[Page 24710]]

timely notice will be published in the Federal Register.

ADDRESSES: Written comments should be addressed to: Montel Livingston, 
SIP Manager, EPA Region 10, Office of Air Quality (OAQ-107), OR47-11-
7052, 1200 Sixth Avenue, Seattle, WA 98101. Documents which are 
incorporated by reference are available for public inspection at the 
Air and Radiation Docket and Information Center, Environmental 
Protection Agency, 401 M Street, SW, 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, WA 98101, and the Oregon Department of 
Environmental Quality, 811 S.W. 6th Avenue, Portland, OR 97204.

FOR FURTHER INFORMATION CONTACT: Wayne Elson, EPA Region 10, Office of 
Air Quality (OAQ-107), 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-
1463.

SUPPLEMENTARY INFORMATION:

I. Background

    The CAA section 176(c), as amended (42 U.S.C. 7401 et seq.), 
requires states to submit to EPA revisions to their implementation 
plans establishing transportation and general conformity criteria and 
procedures. EPA regulation requires the states to submit SIP revisions 
by November 25, 1994, and November 30, 1994. These conformity rules are 
to ensure that all Federal actions conform to the appropriate SIP 
developed pursuant to section 110 and part D of the CAA. Conformity to 
a SIP is defined in the CAA, as amended in 1990, as meaning conformity 
to a SIP's purpose of eliminating or reducing the severity and number 
of violations of the national ambient air quality standards (NAAQS) and 
achieving expeditious attainment of such standards, and that such 
activities will not:
    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.
    The CAA ties conformity to attainment and maintenance of the NAAQS. 
Thus, Federal actions must not adversely affect the timely attainment 
and maintenance of the NAAQS or emission reduction progress plans 
leading to attainment. The Federal agency responsible for the action is 
required to determine if its actions conform to the applicable SIP. The 
Oregon transportation conformity rule establishes the criteria and 
procedures governing the determination of conformity for all Federal 
actions in nonattainment or maintenance areas in the State of Oregon 
for Federal highway and transit actions. Therefore, the criteria and 
procedures established in this rule apply only in areas that are 
nonattainment or maintenance with respect to any of the criteria 
pollutants under the CAA: carbon monoxide (CO), lead (Pb), nitrogen 
dioxide (NO<INF>2), ozone (O<INF>3), particulate matter (PM<INF>10), 
and sulfur dioxide (SO<INF>2). The rule covers direct and indirect 
emissions of criteria pollutants or their precursors that are 
reasonably foreseeable and caused by a Federal action.
    The Oregon submittal contains transportation conformity regulations 
that are consistent with the CAA requirements. These regulations are at 
least as stringent as the Federal regulations and in some cases are 
more stringent. Oregon's regulations establish procedural requirements 
including interagency consultation procedures. They also require the 
responsible agency to make their conformity determinations available 
for public review. Notice of draft and final conformity determinations 
must be provided directly to air quality regulatory agencies and to the 
public by publication in a local newspaper. The conformity 
determination examines the impacts of the direct and indirect emissions 
from the Federal action. The regulations require the Federal action to 
also meet any applicable SIP requirements and emission milestones. Each 
Federal agency must determine that any actions covered by the rule 
conform to the applicable SIP before the action is taken.
    The Oregon rule includes interagency consultation procedures which 
will occur during the development of transportation plans, 
transportation improvement programs, and State Implementation Plans, 
and before findings of conformity.
    The rule includes a provision that ``regionally significant'' 
transportation projects meet the criteria of the rule regardless of the 
funding source (OAR 340-20-720 (42) and OAR 340-20-760). The 
determination of ``regionally significant'' projects will be made 
through interagency consultation with affected parties.
    The rule includes reduced time frames for compliance with mobile 
source emissions budget once a maintenance SIP has been approved by the 
Oregon Environmental Quality Commission (EQC). The rule also includes 
reduced time frames for demonstrating timely implementation of 
transportation control measures (TCMs) once the EQC adopts a SIP 
revision which adds TCMs. The rule requires timely implementation of 
all TCMs identified as necessary to where attainment or maintenance of 
and air quality standard is jeopardized, regardless of their 
eligibility for Federal funding.

II. This Action

    This Action approves Oregon Administrative Rule (OAR) Sections 340-
2-700 to 1080 as an amendment to the Oregon SIP. Specifically these 
rules are as follows:

340-20-700  Title.
340-20-710  Purpose.
340-20-720  Definitions.
340-20-730  Applicability.
340-20-740  Priority.
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.
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  Motor vehicle emissions budget (transportation plan).
340-20-900  Criteria and procedures: Motor vehicle emissions budget 
(TIP).
340-20-910  Criteria and procedures: Motor vehicle emissions budget 
(project not from a plan and TIP).
340-20-920  Criteria and procedures: Localized CO violations (hot 
spots) in the interim period.
340-20-930  Criteria and procedures: Interim period reductions in ozone 
and CO areas (transportation plan).

[[Page 24711]]

340-20-940  Criteria and procedures: Interim period reductions in ozone 
and CO areas (TIP).
340-20-950  Criteria and procedures: Interim period reductions for 
ozone and CO areas (project not from a plan and TIP).
340-20-960  Criteria and procedures: Interim period reductions for PM-
10 and NO2 areas (transportation plan).
340-20-970  Criteria and procedures: Interim period reductions for PM-
10 and NO2 areas (TIP).
340-20-980  Criteria and procedures: Interim period reductions for PM-
10 and NO2 areas (project not from a plan and TIP).
340-20-990  Transition from the interim period to the control strategy 
period.
340-20-1000  Requirements for the adoption or approval of projects by 
recipients of funds designated under title 23 U.S.C. or the Federal 
Transit Act.
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  Special provisions for nonattainment areas which are not 
required to demonstrate reasonable further progress and attainment.
340-20-1080  Savings provisions.

III. Administrative Review

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the state is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 
U.S.C. 7410(a)(2).
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs of $100 million or more to State, local, or Tribal governments in 
the aggregate; or to the private sector. 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 
Federal requirements. Accordingly, no additional costs to State, local, 
or Tribal governments, or to the private sector, result from this 
action.
    The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air 
Act Amendments enacted on November 15, 1990. The EPA has determined 
that this action conforms with those requirements.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing to approve the SIP revision 
should adverse or critical comments be filed. This action will be 
effective July 15, 1996 unless, by June 17, 1996 adverse or critical 
comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period on 
this action. Any parties interested in commenting on this action should 
do so at this time. If no such comments are received, the public is 
advised that this action will be effective July 15, 1996.
    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 July 15, 1996. 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), 42 U.S.C. 
7607(b)(2).
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

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, Sulfur oxides, 
Volatile organic compounds.

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


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    Dated: May 2, 1996.
Chuck Clarke,
Regional Administrator.

    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. 7401-7671q.

Subpart MM--Oregon

    2. Section 52.1970 is amended by adding paragraph (c) (113) to read 
as follows:


Sec. 52.1970  Identification of plan.

* * * * *
    (c) * * *
    (113) On April 14, 1995, the Oregon Department of Environmental 
Quality submitted a revision to its SIP for the State of Oregon to 
include the Transportation Conformity: OAR 340-20-710 through 340-20-
1080.
    (i) Incorporation by reference.
    (A) April 14, 1995 letter from ODEQ director Lydia Taylor to EPA 
Regional Administrator Chuck Clarke submitting a revision to the Oregon 
SIP to include the Transportation Conformity: OAR 340-20-710 through 
340-20-1080; Division 20, Air Pollution Control, Criteria and 
Procedures for Determining Conformity to State or Federal 
Implementation Plans of Transportation Plans, Programs, and Projects 
Funded or Approved Under Title 23 U.S.C. or the Federal Transit Act, 
effective March 29, 1995.

[FR Doc. 96-12353 Filed 5-15-96; 8:45 am]
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