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[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]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart (PP)--South Carolina

0
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]
BILLING CODE 6560-50-P
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