Skip to Content

Rule

Approval and Promulgation of Implementation Plans; Revisions to the California State Implementation Plan; San Francisco Bay Area

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action under the Clean Air Act to approve a revision to the San Francisco Bay Area portion of the California State Implementation Plan (SIP). 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 is to update the transportation conformity criteria and procedures in the applicable SIP.

DATES:

This rule is effective on December 11, 2007 without further notice, unless EPA receives adverse comments by November 13, 2007. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

ADDRESSES:

Submit comments, identified by docket number EPA-R09-OAR-2007-0657, by one of the following methods:

1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions.

2. E-mail: vagenas.ginger@epa.gov.

3. Mail or deliver: Ginger Vagenas (Air-2), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.

Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. 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.

Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Ginger Vagenas, EPA Region IX, (415) 972-3964, vagenas.ginger@epa.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Throughout this document, “we,” “us” and “our” refer to EPA. This supplementary information section is arranged as follows:

I. Transportation Conformity

II. Background for This Action

A. Federal Requirements

B. San Francisco Bay Area 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 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 (PM2.5 and PM10), carbon monoxide (CO), and nitrogen dioxide (NO2).

Conformity to the purpose of the SIP means that transportation activities will Start Printed Page 58014not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant national ambient air quality standards (NAAQS). The transportation 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 (the conformity rule) on November 24, 1993. See 58 FR 62188. Among other things, the rule required states to address all provisions of the conformity rule in their SIPs (“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 Clean Air Act's 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 conformity 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. San Francisco Bay Area Conformity SIP

For transportation planning purposes, the San Francisco Bay Area is defined as the nine California counties of Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma. All but the eastern half of Solano County and the northern half of Sonoma County lie within the San Francisco Bay Area 8-hour ozone nonattainment area. The eastern half of Solano County is also designated nonattainment for the ozone NAAQS but is included in the Sacramento Metropolitan air quality planning area.[1] The northern half of Sonoma County is designated unclassifiable/attainment for ozone. A portion of the San Francisco Bay Area referred to as “urbanized areas” was redesignated from nonattainment to attainment for the CO NAAQS in 1998 and is subject to a maintenance plan. Areas within the San Francisco Bay Area but outside “urbanized areas” are designated as unclassifiable/attainment for the CO NAAQS. The San Francisco Bay Area is considered unclassifiable/attainment for the other NAAQS. See 40 CFR 81.305 for California air quality planning areas and designations.

On December 16, 1996, the Governor's designee for SIP submittals, the California Air Resources Board (ARB), submitted “The San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures” (“conformity procedures”) and “The San Francisco Bay Area Transportation Air Quality Conformity Protocol—Interagency Consultation Procedures” (“consultation procedures”), together referred to as the “San Francisco Bay Area conformity SIP” to EPA. EPA approved the San Francisco Bay Area conformity SIP on October 21, 1997. See 62 FR 54587. ARB submitted a revision to the San Francisco Bay Area conformity SIP on August 6, 1998. EPA did not act on that submittal.

Subsequent to SAFETEA-LU being enacted, the co-lead agencies for air quality planning in the San Francisco Bay Area—Bay Area Air Quality Management District (BAAQMD), Metropolitan Transportation Commission (MTC), and Association of Bay Area Governments (ABAG)—revised the San Francisco Bay Area conformity SIP to reflect the SAFETEA-LU changes and to clarify interagency consultation procedures. Resolutions approving the revised transportation conformity criteria and procedures, referred to as the transportation conformity protocol, were adopted by the BAAQMD Board of Directors on July 19, 2006, by the ABAG Executive Board on July 20, 2006, and by the MTC Commission on July 26, 2006. MTC subsequently forwarded the transportation conformity protocol to ARB, and ARB adopted and submitted the protocol to EPA as a revision to the California SIP on December 20, 2006. The December 20, 2006 SIP revision submittal supersedes the August 6, 1998 submittal.

III. State Submittal and EPA Evaluation

The SIP revision submitted to EPA on December 20, 2006, consists of the San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures and Interagency Consultation Procedures. The submittal documents public notice and hearing for this SIP revision in compliance with CAA section 110(l) and 40 CFR 51.102. The submittal also contains a request that we delete the analogous SIP-approved conformity procedures, which are no longer required under SAFETEA-LU, and replace them with the submitted language that addresses 40 CFR 93.122(a)(4)(ii) and 93.125(c). When the SIP-approved conformity procedures are rescinded, the Federal transportation conformity regulations will apply, except for those sections addressed by the current submittal. EPA approval of these changes is consistent with Federal law and regulations, and will obviate the need for SIP revisions that would have otherwise been triggered by changes to the underlying Federal regulations.

The submittal also includes provisions that would replace the SIP-approved interagency consultation procedures with revised procedures.[2] The changes to the interagency consultation procedures include the Start Printed Page 58015addition of more detail regarding the consultation structure and procedures for regional transportation plan and transportation improvement program updates and amendments, clarification of agency roles and responsibilities for the conformity and SIP consultation processes, and additional detail regarding consultation on conformity analyses.

We have reviewed the submittal to assure consistency with the Clean Air Act 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 have 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 our 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

Under section 110(k) of the Act, and for the reasons set forth above, EPA is taking action to approve the San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures and Interagency Consultation Procedures, as a revision to the California SIP. As a result of this action, the Bay Area's previously SIP-approved conformity protocol will be replaced by the procedures adopted by BAAQMD on July 19, 2006, by ABAG on July 20, 2006, and by MTC on July 26, 2006, and submitted by ARB to EPA on December 20, 2006.

We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submittal. If we receive adverse comments by November 13, 2007, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 11, 2007. This will incorporate these transportation conformity procedures into the federally enforceable SIP and thereby replace the previous version of the procedures approved on October 21, 1997 (62 FR 54587) in the San Francisco Bay Area portion of the California SIP except for the MOU covering eastern Solano County.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves state law implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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 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 rule 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 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 December 11, 2007. 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 Start Printed Page 58016challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Start List of Subjects

List of Subjects in 40 CFR Part 52

End List of Subjects Start Signature

Dated: September 20, 2007.

Wayne Nastri,

Regional Administrator, Region IX.

End Signature Start Amendment Part

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

End Amendment Part Start Part

PART 52—[AMENDED]

End Part Start Amendment Part

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

End Amendment Part Start Authority

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

End Authority

Subpart F—California

Start Amendment Part

2. Section 52.220 is amended by adding paragraph (c)(349) to read as follows:

End Amendment Part
Identification of plan.
* * * * *

(c) * * *

(349) San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures and Interagency Consultation Procedures was submitted on December 20, 2006, by the Governor's designee.

(i) Incorporation by reference.

(A) Association of Bay Area Governments (ABAG), Bay Area Air Quality Management District (BAAQMD), and Metropolitan Transportation Commission (MTC).

(1) The San Francisco Bay Area Transportation Air Quality Conformity Protocol—Conformity Procedures (July 26, 2006) and San Francisco Bay Area Transportation Air Quality Conformity Protocol—Interagency Consultation Procedures (July 26, 2006), adopted by BAAQMD on July 19, 2006, by ABAG on July 20, 2006, and by MTC on July 26, 2006.

* * * * *
End Supplemental Information

Footnotes

1.  The Sacramento Area Council of Governments (SACOG) is the MPO for the Sacramento area. The Metropolitan Transportation Commission (MTC) and SACOG, in consultation with the California Department of Transportation (Caltrans), the California Air Resources Board, and the Governor's office, have developed and signed a Memorandum of Understanding (MOU) for undertaking conformity analysis in eastern Solano County. This MOU, approved and adopted by MTC in Resolution No. 2611 on September 22, 1993, was included as Appendix A to the San Francisco Bay Area interagency consultation procedures that we approved into the California SIP on October 21, 1997 (62 FR 54587).

Back to Citation

2.  CARB's December 20, 2006 SIP revision submittal does not include the MOU concerning conformity analyses in eastern Solano County and thus does not entirely supersede the previously-approved interagency consultation procedures. With today's action, the previously-approved MOU will continue to be a part of the applicable California SIP. It is our understanding that a revision to the MOU will be submitted as a SIP revision. If approved, it will supersede the previously approved MOU.

Back to Citation

[FR Doc. E7-20059 Filed 10-11-07; 8:45 am]

BILLING CODE 6560-50-P