![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090510210119im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Approval and Promulgation of Implementation Plans; Revisions to South Carolina State Implementation Plan: Transportation Conformity Rule
[Federal Register: January 29, 2004 (Volume 69, Number 19)] [Rules and Regulations] [Page 4245-4249] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr29ja04-13] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [SC-50-200405 (a); FRL-7614-7] Approval and Promulgation of Implementation Plans; Revisions to South Carolina State Implementation Plan: Transportation Conformity Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: The EPA is approving the State Implementation Plan (SIP) revision submitted by the State of South Carolina on November 19, 2003, for the purpose of establishing specific consultation procedures for the implementation of transportation conformity requirements. This SIP revision also incorporates the State's adoption of the Federal transportation conformity regulations verbatim. EPA is not taking action on portions of the transportation conformity regulations affected by Environmental Defense Fund v. EPA, 167 F.3d 641 (DC Cir. 1999), including sections 102(c)(1), 118(e)(1), 120(a)(2), 121(a)(1), and 124(b). The transportation conformity rule assures that projected emissions from transportation plans, improvement programs and projects in air quality nonattainment or maintenance areas stay within the motor vehicle emissions ceiling contained in the SIP. The transportation conformity SIP revision enables the State to implement and enforce the Federal transportation conformity requirement at the state level. This action streamlines the conformity process to allow direct consultation among agencies at the local level. This final approval action is limited to requirements for transportation conformity. DATES: This direct final rule is effective March 29, 2004 without further notice, unless EPA receives adverse comment by March 1, 2004. If adverse comment is received, EPA 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: Comments may be submitted by mail to: Matt Laurita, 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. Comments may also be submitted electronically, or through hand delivery/courier. Please follow the detailed instructions described in sections IV.B.1. through 3. FOR FURTHER INFORMATION CONTACT: Matt Laurita, 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. The telephone number is (404) 562-9044. Mr. Laurita can also be reached via electronic mail at laurita.matthew@epa.gov. supplementary information: I. Background A. What Is a SIP? The states, under section 110 of the Clean Air Act as amended in 1990 (Act), must develop air pollution regulations and control strategies to ensure that state air quality meets National Ambient Air Quality Standards (NAAQS) established by EPA. The Act, under section 109, established these NAAQS which currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each state must send these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP, which protects air quality and contains emission control plans for NAAQS nonattainment areas. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations. B. What Is the Federal Approval Process for a SIP? The states must formally adopt the regulations and control strategies consistent with state and Federal laws for incorporating the state regulations into the Federally enforceable SIP. This process generally includes a public notice, public comment period, public hearing, and a formal adoption by a state-authorized rulemaking body. Once a state rule, regulation, or control strategy is adopted, the state will send these provisions to EPA for inclusion in the Federally enforceable SIP. EPA must then determine the appropriate Federal action, provide public notice, and request additional public comment on the action. The possible Federal actions include approval, disapproval, conditional approval and limited approval/disapproval. If adverse comments are received, EPA must consider and address the comments before taking final action. EPA incorporates state regulations and supporting information (sent under section 110 of the Act) into the Federally approved SIP through the approval action. EPA maintains records of all such SIP actions in the Code of Federal Regulations (CFR) at Title 40, part 52, entitled ``Approval and Promulgation of Implementation Plans.'' The EPA does not reproduce the text of the Federally approved state regulations in the CFR. They are ``incorporated by reference,'' which means that the specific state regulation is cited in the CFR and is considered a part of the CFR the same as if the text were fully printed in the CFR. C. What Is Transportation Conformity? Conformity first appeared as a requirement in the Act's 1977 amendments (Pub. L. 95-95). Although [[Page 4246]] the Act did not define conformity, it stated 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 1990 Amendments to the Act expanded the scope and content of the conformity concept by defining conformity to a SIP. Section 176(c) of the Act defines conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. Also, the Act states ``that no Federal activity will: (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 requirements of section 176(c) of the Clean Air Act apply to all departments, agencies and instrumentalities of the Federal government. Transportation conformity refers only to the conformity of transportation plans, programs and projects that are funded or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. Chapter 53). D. Why Must the State Submit a Transportation Conformity SIP? A transportation conformity SIP is a plan which contains criteria and procedures for the State Department of Transportation (DOT), Metropolitan Planning Organizations (MPOs), and other state or local agencies to assess the conformity of transportation plans, programs and projects to ensure that they do not cause or contribute to new violations of a NAAQS in the area substantially affected by the project, increase the frequency or severity of existing violations of a standard in such area or delay timely attainment. 40 CFR 51.390, subpart T requires states to submit a SIP that establishes criteria for conformity to EPA. 40 CFR part 93, subpart A, provides the criteria the SIP must meet to satisfy 40 CFR 51.390. EPA was required to issue criteria and procedures for determining conformity of transportation plans, programs, and projects to a SIP by section 176(c) of the Act. The Act also required the procedure to include a requirement that each state submit a revision to its SIP including conformity criteria and procedures. EPA published the first transportation conformity rule in the November 24, 1993, Federal Register (FR), and it was codified at 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. The transportation conformity rule required the states to adopt and submit a transportation conformity SIP revision to the appropriate EPA Regional Office by November 25, 1994. The rule was subsequently revised on August 7, 1995 (60 FR 40098), and November 14, 1995 (60 FR 57179). The State of South Carolina submitted a transportation conformity SIP to EPA Region 4 on November 8, 1996. EPA did not take action on this SIP because the Agency was in the process of revising the transportation conformity requirements. EPA revised the transportation conformity rule on August 15, 1997 (62 FR 43780), April 10, 2000 (65 FR 18911), and August 6, 2002 (67 FR 50808), and codified the revisions under 40 CFR part 51, subpart T and 40 CFR part 93, subpart A--Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. of the Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997, required the states to change their rules and submit a SIP revision to EPA by August 15, 1998. States may choose to develop in place of regulations, a Memorandum of Agreement (MOA) which establishes the roles and procedures for transportation conformity. The MOA includes the detailed consultation procedures developed for that particular area. The MOAs are enforceable through the signature of all the transportation and air quality agencies, including the Federal Highway Administration (FHWA), Federal Transit Administration (FTA) and EPA. E. How Does Transportation Conformity Work? The Federal or state transportation conformity rule applies to applicable NAAQS nonattainment and maintenance areas in the state. The MPO, the DOT (in absence of a MPO), State and local Air Quality Agencies , EPA and U.S. Department of Transportation (USDOT) are involved in the process of making conformity determinations. Conformity determinations are made on programs and plans such as transportation improvement programs (TIP), transportation plans, and projects. The MPOs calculate the projected emissions that will result from implementation of the transportation plans and programs and compare those calculated emissions to the motor vehicle emissions budget (MVEB) established in the SIP. The calculated emissions must be equal to or smaller than the Federally approved MVEB in order for USDOT to make a positive conformity determination with respect to the SIP. II. Analysis of State's Submittal A. What Did the State Submit? The State of South Carolina chose to address the transportation conformity SIP requirements using State rules that incorporate by reference portions of the Federal conformity rule and a Memorandum of Agreement (MOA) that provides the procedures for interagency consultation. The transportation conformity rule, 40 CFR 93.105, requires the state to develop specific procedures for consultation, resolution of conflict and public consultation. On November 19, 2003, the State of South Carolina, through the Department of Health and Environmental Control (DHEC), submitted the rules for transportation conformity to satisfy the conformity SIP requirement of the August 15, 1997 (62 FR 43780) conformity rule revision. This submittal also includes the revisions to the conformity regulations made on April 10, 2000 (65 FR 18911), and August 6, 2002 (67 FR 50808). DHEC gave notice of rule-making proceedings to the public on August 22, 2003 and held a public hearing on September 22, 2003. These amendments to the South Carolina Code of Regulations Chapter 61 became effective October 24, 2003. B. What Is EPA Approving Today and Why? EPA is approving the South Carolina transportation conformity rule submitted to the EPA Region 4 office on November 19, 2003, by the Deputy Commissioner of the South Carolina Department of Health and Environmental Control, with the exception of portions of the transportation conformity regulations affected by Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir. 1999), including sections 102(c)(1), 118(e)(1), 120(a)(2), 121(a)(1), and 124(b). EPA has evaluated this SIP revision and determined that the SIP requirements of the Federal transportation conformity rule, as described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A, have been met. Therefore, EPA is approving this revision to the South Carolina SIP. C. How Did the State Satisfy the Interagency Consultation Process (40 CFR 93.105)? EPA's rule requires the states to develop their own processes and procedures for interagency consultation [[Page 4247]] among Federal, state, and local agencies and resolution of conflicts meeting the criteria of 40 CFR 93.105. The SIP revision must include the process and procedures to be followed by the MPOs, DOT, FHWA, FTA, local transit operators, the state and local air quality agencies and EPA before making conformity determinations. The transportation 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, FHWA and FTA. The State of South Carolina developed a statewide consultation rule based on a Memorandum of Agreement (MOA) signed by the Columbia Area Transportation Study MPO, the Greenville Area Transportation Study MPO, the Spartanburg Area Transportation Study MPO, the Augusta Regional Transportation Study MPO, the Rock Hill/Fort Mill Area Transportation Study MPO, Florence Area Transportation Study MPO, the Anderson Area Transportation Study MPO, the Charleston Area Transportation Study MPO, the Grand Strand Area Transportation Study MPO, the Sumter Area Transportation Study MPO, the South Carolina DHEC, the South Carolina DOT, the FHWA South Carolina Division Office, FTA Region 4, and EPA Region 4. The requirement for interagency consultation is currently only applicable to the Cherokee County 1-hour ozone maintenance area, as it is the only area in South Carolina that had previously been designated nonattainment for any NAAQS. The interagency consultation requirement will become effective for any other areas designated as nonattainment under the 8-hour ozone or PM2.5 NAAQS. The consultation process developed by the South Carolina Department of Health and Environmental Control is unique to the State of South Carolina and is enforceable, effective October 24, 2003. III. Final Action EPA is approving the aforementioned changes to the South Carolina SIP. 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 March 29, 2004 without further notice unless the Agency receives adverse comments by March 1, 2004. If the 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. The 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 March 29, 2004 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment. IV. Supplementary Information A. How Can I Get Copies of This Document and Other Related Information? 1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under SC-50. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Regulatory Development 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 requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 9 to 3:30, excluding federal holidays. 2. Copies of the State submittal and EPA's technical support document are also available for public inspection during normal business hours, by appointment at the Bureau of Air Quality, South Carolina Department of Health and Environmental Control, 2600 Bull Street, Columbia, South Carolina 29201. 3. Electronic Access. You may access this Federal Register document electronically through the Regulation.gov web site located at http://www.regulations.govwhere you can find, review, and submit comments on Federal rules that have been published in the Federal Register, the Government's legal newspaper, and are open for comment. For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection. B. How and to Whom Do I Submit Comments? You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text ``Public comment on proposed rulemaking SC-50.'' in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments. 1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that [[Page 4248]] is placed in the official public docket. 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. i. E-mail. Comments may be sent by electronic mail (e-mail) to laurita.matthew@epa.gov. Please include the text ``Public comment on proposed rulemaking SC-50.'' in the subject line. EPA's e-mail system is not an ``anonymous access'' system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket. ii. Regulation.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov