[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24702-24706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12357]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[OH90-1-7255a; FRL-5500-5]


Approval and Promulgation of Implementation Plan; Ohio

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: This document conditionally approves a revision to the Ohio 
State Implementation Plan (SIP) to meet the requirements of the USEPA 
transportation conformity rule. The transportation conformity SIP 
revisions enable the State of Ohio to implement and enforce the Federal 
transportation conformity requirements at the State or local level. The 
Federal transportation conformity rule has been amended twice since the 
original 1993 publication, and the Ohio SIP will need to be amended to 
accommodate the changes. The purpose of transportation conformity is to 
assure that transportation plans, programs and projects, approved by 
the United States Department of Transportation conform to the purpose 
of the SIP to attain and maintain the public health based air quality 
standards. The rationale for this conditional approval and other 
information are provided in this document.

DATES: This ``direct final'' rule is effective on July 15, 1996, unless 
USEPA receives adverse or critical comments by June 17, 1996. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

Addresses: Copies of the SIP revision are available for inspection at 
the following address: (It is recommended that you telephone Patricia 
Morris at (312) 353-8656 before visiting the Region 5 Office.)
    United States Environmental Protection Agency, Region 5, Air and 
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
    Written comments should be sent to: J. Elmer Bortzer, Chief, 
Regulation Development Section, Air Programs Branch, (AR-18J), 77 West 
Jackson Boulevard, Chicago, Illinois 60604.


[[Page 24703]]


FOR FURTHER INFORMATION CONTACT: Patricia Morris, Regulation 
Development Section (AR-18J), Air Programs Branch, Air and Radiation 
Division, United States Environmental Protection Agency, Region 5, 77 
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312) 
353-8656.

SUPPLEMENTARY INFORMATION:

I. Background

    Conformity provisions first appeared in the Clean Air Act (CAA) 
amendments of 1977 (Public Law 95-95). Although these provisions did 
not specifically define conformity, they provided 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 promulgated.
    The CAA Amendments of 1990 expanded the scope and content of the 
conformity provisions by defining conformity to an implementation plan. 
Conformity is defined in section 176(c) of the CAA as conformity to the 
SIP's purpose of eliminating or reducing the severity and number of 
violations of the National Ambient Air Quality Standards 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 requires USEPA to promulgate criteria and procedures for 
determining conformity of all Federal actions (transportation and 
general) to a SIP (42 U.S.C. 7506(c)). The USEPA published the final 
transportation conformity rules in the Federal Register on November 24, 
1993, and codified them at 40 CFR part 51, subpart T--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 Act. The conformity rules require the 
States and local agencies to adopt and submit a transportation 
conformity SIP revision to the USEPA not later than November 24, 1994 
(40 CFR 51.396). This document does not address the conformity 
requirements of general Federal actions as required pursuant to 40 CFR 
part 51, subpart W. USEPA intends to take action on these requirements 
in a separate document.
    The federal transportation conformity rule was subsequently amended 
on August 8, 1995, and again on November 14, 1995. The November 14, 
1995, amendments allow 12 months from November 14, 1995, or until 
November 14, 1996 for States to submit a transportation conformity SIP 
revision consistent with these amendments. The submittal approved in 
this document is not consistent with these November 14, 1995, federal 
conformity amendments. However, Ohio has committed to submit another 
transportation conformity SIP revision consistent with these recent 
amendments by November 14, 1996. The OEPA has formalized their 
commitment in a letter dated April 1, 1996, incorporated herein by 
reference.

II. Evaluation of State Submittal

    Pursuant to the requirements under section 176(c)(4)(C) of the 
Clean Air Act, the Ohio Environmental Protection Agency (OEPA) 
submitted a SIP revision to the USEPA on August 17, 1995. This 
submittal was found to be complete on October 5, 1995. In its 
submittal, the State adopted State rules to meet the requirements of 40 
CFR part 51, subpart T, as published on November 24, 1993. 
Transportation conformity is required for all nonattainment or 
maintenance areas for any transportation related criteria pollutants 
(40 CFR 51.394 (b)).
    The State of Ohio currently has 28 counties which are ozone 
nonattainment or ozone maintenance areas. The areas are identified as 
follows: Toledo area (Lucas and Wood Counties), Cleveland/Akron area 
(Lorain, Cuyahoga, Medina, Summit, Portage, Geauga, Lake, and Ashtabula 
Counties), Youngstown area (Trumbull and Mahoning Counties), Canton 
(Stark County), Columbus (Franklin, Delaware and Licking Counties), 
Cincinnati (Hamilton, Butler, Clermont, and Warren Counties), Dayton 
(Preble, Montgomery, and Greene Counties), Springfield (Miami and Clark 
Counties), and Clinton County, and Columbiana County, and Jefferson 
County. In addition to the ozone nonattainment and maintenance areas, 
Cuyahoga County is also maintenance for carbon monoxide.
    Section 51.396 of the final transportation conformity rule requires 
that the majority of the Federal rules be incorporated in verbatim 
form, with only a few exceptions. In addition, the rule states that the 
State rules can not be more stringent than the Federal rules unless the 
conformity provisions ``apply equally to non-Federal as well as Federal 
entities'' (40 CFR 51.396(a)).
    The OEPA held a public hearing on the transportation conformity 
submittal on May 25, 1995. One comment was received by the OEPA and was 
addressed in the submittal.

Consultation

    The Federal rules require the SIPs to include processes and 
procedures for interagency consultation among the Federal, State, and 
local agencies and resolution of conflicts in accordance with the 
criteria set forth in 40 CFR 51.402. Specifically, to implement the 
requirements of Sec. 51.402, the SIP revisions must include processes 
and procedures to be undertaken by Metropolitan Planning Organizations 
(MPOs), State Department of Transportation (DOT), and the United States 
Department of Transportation (USDOT) with State and local air quality 
agencies and USEPA before making conformity determinations, and by 
State and local air quality agencies and USEPA with MPOs, State 
Department of transportation, and USDOT in developing applicable SIPs.
    The consultation portion of the SIP is among the exceptions which 
are not required to be incorporated in verbatim form. The consultation 
section requires State and local (where applicable) air quality 
agencies to develop their own consultation rules.
    In order to satisfy these consultation requirements, the OEPA 
developed consultation procedures by using the requirements of 40 CFR 
51.402 and 23 CFR 450 (the metropolitan planning regulations), and by 
integrating the local procedures and processes into the final 
consultation rule. The consultation procedures outline the roles and 
responsibilities of each of the responsible agencies for the process 
for determining conformity. The consultation procedures further 
document the process of conflict resolution in the transportation 
conformity process, implementing the public participation process, and 
the documentation to be submitted in a conformity determination. The 
conformity SIP revision submitted has adequately addressed all 
provisions of 40 CFR 51.402 and has met the USEPA SIP requirements.

Verbatim Sections and Amendments to the Federal Rule

    Section 51.396 of transportation conformity rule states that to be 
approved by the USEPA, the SIP revision submitted to USEPA must 
``address all requirements of this subpart in a manner which gives them 
full legal effect''. In particular, the revision shall incorporate the 
provisions of the following sections in verbatim form, except insofar 
as needed to give

[[Page 24704]]

effect to a stated intent in the revision to establish criteria and 
procedure more stringent than the requirements stated in these 
sections: 51.392, 51.394, 51.398, 51.400, 51.404, 51.410, 51.412, 
51.414, 51.416, 51.418, 51.420, 51.422, 51.424, 51.426, 51.428, 51.430, 
51.432, 51.434, 51.436, 51.438, 51.440, 51.442, 51.444, 51.446, 51.448, 
51.450, 51.460, and 51.462.'' The State of Ohio submittal incorporated 
all of the above sections in verbatim form following the November 24, 
1993, version of the Federal rules, with only clarifying changes.
    It should be noted, however, that on February 8, 1995, USEPA 
promulgated an interim final rule that amended certain provisions of 40 
CFR 51.448 in the Federal transportation conformity rules. The rule was 
made permanent with an August 7, 1995, final rule (60 FR 40098) after 
the USEPA took public comment on the interim final rule. On November 
14, 1995, the USEPA finalized a second set of amendments to the 
conformity rule. It has not been USEPA's policy to approve sections 
into the SIP where major inconsistencies exist between the submittal 
and the final transportation conformity rule in terms of the portions 
that are required to be verbatim. In some cases where the difference is 
minor and has no weakening effect, the USEPA can approve the State 
rule. However, in cases where the State rule is more stringent, Sec.  
51.396 requires that the ``State's conformity provisions apply equally 
to non-Federal as well as Federal entities.'' The second set of 
amendments allows States until November 14, 1996, to revise the State 
conformity SIP to comply with the Federal changes.
    The USEPA believes that the OEPA 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 the USEPA. 
The OEPA in no way intentionally adopted rules that were not in 
verbatim form or more stringent than the Federal rule. Therefore, it 
would be unreasonable to discredit the agency's good faith effort in 
submitting the transportation conformity SIP and disapprove the State's 
SIP. The OEPA will be required to submit a SIP revision in the near 
future to incorporate the amended portions of the Federal 
transportation conformity rules and has committed to do so in its April 
1, 1996, letter.
    The first set of amendments (60 FR 40098-60 FR 40101) significantly 
revises Sec. 51.448, to align the timing of the transportation 
improvement program (TIP) lapsing provisions in cases of state air 
quality planning failures with the imposition of Clean Air Act highway 
sanctions. In the case of a conformity lapse, transportation projects 
could not be approved or funded by the USDOT unless they were listed as 
exempt. A conformity lapse is similar to a highway sanction in that it 
can stop highway projects from being funded. The Ohio rule has not yet 
incorporated this change and therefore is different and in this case, 
more stringent than the current Federal transportation conformity rule.
    The second set of amendments in 60 FR 57179, make the following 
changes to the Federal conformity rule:
    (1) transportation control measures (TCMs) from an approved SIP can 
proceed during a conformity lapse;
    (2) further amends Sec. 51.448 to align conformity lapses with the 
date of application of CAA highway sanctions for any failure to submit 
or submission of an incomplete control strategy SIP;
    (3) extends the duration of the grace period for areas which must 
determine conformity to a submitted control strategy implementation 
plan;
    (4) establishes a grace period before which transportation plan and 
program conformity must be determined in newly designated nonattainment 
areas; and
    (5) corrects (or clarifies) the nitrogen oxides provisions of the 
transportation conformity rule consistent with the CAA so that a 
NO<INF>X budget test is required in areas which have been granted a 
NO<INF>X waiver (60 FR 57179).
    These changes result in the Federal rule and the Ohio rule being 
different in sections that are required to be in verbatim form. 
However, the USEPA believes that conditional approval is appropriate in 
this situation. Although these changes may appear extensive, the 
difference from the Ohio rules should have little effect during the 
time period before the State amends the State conformity rules. Each of 
the changes are discussed individually below:
    (1) TCM's in the approved SIPs: Ohio does not currently have TCMs 
in the approved SIP for the Ohio nonattainment and maintenance areas. 
Therefore, this change to the Federal rule will have no effect on the 
Ohio areas. However, any future selected contingency measures which may 
include TCMs would not be able to proceed in the case of a conformity 
lapse. If Ohio changes its rules by November 14, 1996, there should be 
very little effect on the Ohio areas.
    (2) Lapsing Provisions: The extensive changes to the Federal rule 
in 40 CFR 51.448 make the Ohio rule more stringent than the Federal 
rule, as amended. Section 51.448 deals with the time period before a 
nonattainment area has an approved maintenance plan (the transition 
from the ``interim period'' to the ``control strategy period''). Most 
of the Ohio areas have approved maintenance plans and are now in the 
control strategy period, and thus, are not affected by this section. 
The only area which is still in the interim period is the Cincinnati 
ozone nonattainment area. The Cincinnati area currently has a complete 
15 percent rate of progress plan. Thus, this section would apply to the 
Cincinnati area only if the 15 percent plan or other control strategy 
plan were disapproved. Section 51.448(g)(2) applies to moderate ozone 
nonattainment areas using photochemical dispersion modeling to 
demonstrate reductions ``even if the area has submitted the 15 percent 
emission reduction demonstration''. However, the USEPA has not started 
any sanctions clocks due to a State's failure to submit as stated in 
Sec. 51.448(b)(1) and therefore, the Cincinnati area is not a candidate 
for a conformity lapse under this section, nor under OAC 3745-101-13, 
at least not within the next 12 months.
    The Federal conformity rule allows the State rule to be more 
stringent when the State rule applies equally to non-Federal projects. 
However, the Ohio rules do not extend to non-Federal projects. In the 
case of a conformity lapse, transportation plans, programs and projects 
could not be approved by USDOT. In some cases, non-Federal projects 
which are regionally significant and need a Federal action such as a 
National Environmental Protection Act (NEPA) decision would also be 
unapproved because of the need for a Federal action. In other cases, 
the non-Federal project could possibly proceed in the event of a lapse. 
In the case of Texas (60 FR 56244) and New Mexico (60 FR 56241), the 
Federal approval of State rules did not include the section 
corresponding to the Federal Sec. 51.448. If USEPA were to approve this 
State provision, Ohio would have a transportation conformity rule more 
stringent than other areas of the nation. However, OEPA has committed 
to submit a SIP revision to address this issue by November 14, 1996.
    (3) Extending the grace period for conformity to a submitted 
control strategy SIP: Extending the grace period for areas to determine 
conformity to a control strategy SIP is not expected to significantly 
affect the Ohio nonattainment and maintenance areas. Through excellent 
consultation procedures, the Ohio areas have participated in the 
control strategy mobile source budget development and it is USEPA's 
evaluation that the areas

[[Page 24705]]

are aware of the need to show conformity to the budget where 
appropriate.
    (4) Conformity for newly designated nonattainment areas: This 
change establishes a grace period for newly designated nonattainment 
areas. There are no newly designated nonattainment areas in the State 
of Ohio, nor does the USEPA anticipate newly designated nonattainment 
areas in the near future.
    (5) Conformity to a NO<INF>X budget in areas with a NO<INF>x 
waiver: The correction (or clarification) of the need to show 
conformity to the NO<INF>X mobile source budget in areas which have 
NO<INF>X waivers is important to the many areas in Ohio which have been 
granted NO<INF>X waivers. The Ohio conformity consultation process has 
already confirmed that the correct interpretation of the rule is to 
require a NO<INF>X budget test in these areas. Therefore, although this 
clarification is important, the clarification in Ohio has been 
accomplished through the consultation process.
    Therefore, the USEPA believes that the Ohio rules can be 
conditionally approved based on the State's commitment letter dated 
April 1, 1996, and the above analysis.

III. USEPA Action

    The USEPA conditionally approves the Ohio transportation conformity 
SIP revision. This conditional approval is based, in part, on the 
State's commitment, submitted in a letter on April 1, 1996, to submit 
revised transportation conformity rules to incorporate the two 
amendments to the federal transportation conformity regulations. The 
State of Ohio committed to revise its transportation conformity rules 
by November 14, 1996. If the State ultimately fails to meet its 
commitment to meet these requirements within one year of final 
conditional approval, then USEPA's action for the State's requested SIP 
revision will automatically convert to a final disapproval. This 
conditional approval is consistent with USEPA's authority under section 
110(k)(4) of the Act.
    Because USEPA considers this action noncontroversial and routine, 
we are approving it without prior proposal. This action will become 
effective on July 15, 1996. However, if we receive adverse comments by 
June 17, 1996, EPA will publish a document that withdraws this action.

IV. Miscellaneous

A. Applicability to Future SIP Decisions

    Nothing in this action should be construed as permitting, allowing 
or establishing a precedent for any future request for revision to any 
SIP. The EPA shall consider each request for revision to the SIP in 
light of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.

B. Executive Order 12866

    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 D. Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this regulatory action from E.O. 12866 review.

C. Regulatory Flexibility

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA 
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, USEPA 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.
    This approval does not create any new requirements. Therefore, I 
certify that this action does not have a significant impact on any 
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of the State action. The Act forbids USEPA to base its 
actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
E.P.A., 427 U.S. 246, 256-66 (1976).
    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 
USEPA 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, the USEPA 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 the USEPA 
to establish a plan for informing and advising any small governments 
that may be significantly or uniquely impacted by the rule.
    The USEPA has determined that the approval action promulgated today 
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 the private 
sector, result from this action.

D. Petitions for Judicial Review

    Under section 307(b)(1) of the 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)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Ozone, Transportation conformity, Transportation-air quality planning, 
Volatile organic compounds.

    Dated: April 19, 1996.
Valdas V. Adamkus,
Regional Administrator.

    40 CFR part 52, 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 KK--Ohio

    2. Section 52.1919 is amended by adding and reserving paragraph 
(a)(2) and by adding paragraph (a)(3) to read as follows:


Sec. 52.1919  Identification of plan-conditional Approval.

    (a)* * *
    (3) Conditional Approval--On August 17, 1995, the Ohio 
Environmental Protection Agency submitted a revision to the State 
Implementation Plan. The

[[Page 24706]]

submittal pertained to a plan for the implementation of the federal 
transportation conformity requirements at the State or local level in 
accordance with 40 CFR part 51, subpart T--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 Act. This conditional approval is based, in part, on 
the State's commitment, submitted in a letter on April 1, 1996, to 
submit revised transportation conformity rules to incorporate the two 
amendments to the federal transportation conformity regulations. The 
State of Ohio committed to revise its transportation conformity rules 
by November 14, 1996. If the State ultimately fails to meet its 
commitment to meet these requirements within one year of final 
conditional approval, then USEPA's action for the State's requested SIP 
revision will automatically convert to a final disapproval.
    (i) Incorporation by reference. August 1, 1995, Ohio Administrative 
Code Chapter 3745-101, effective August 21, 1995.
* * * * *
[FR Doc. 96-12357 Filed 5-15-96; 8:45 am]
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