PM2.5, 40420-40427 [E6-11241]
Download as PDF
40420
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
Authority: 33 U.S.C. 499; 33 CFR 1.05–1(g);
Department of Homeland Security Delegation
No. 0170.1; § 117.255 also issued under the
authority of Public Law 102–587, 106 Stat.
5039.
2. Add new § 117.820 to read as
follows:
I
§ 117.820 Atlantic Intracoastal Waterway
(Alternate Route), Great Dismal Swamp
Canal.
The draw of the Great Dismal Swamp
Canal Bridge, mile 28.0 at South Mills,
NC, shall operate as follows:
(a) The draw shall remain in the open
position for navigation. The draw shall
only be closed for pedestrian crossings
or periodic maintenance authorized in
accordance with Subpart A of this part.
(b) The bridge shall be operated by the
Park Service Rangers at the Great Dismal
Swamp Visitors Center. Operational
information will be provided 24 hours
a day on marine channel 13.
(c) The bridge shall not be operated
when the operator’s visibility is
impaired.
(d) Before the bridge closes for any
reason, the operator will monitor
waterway traffic in the area. The bridge
shall only be closed if the operator’s
visual inspection shows that the
channel is clear and there are no vessels
transiting in the area. While the bridge
is moving, the operator shall maintain
constant surveillance of the navigation
channel.
(e) Before closing the draw, the horn
will sound five short blasts. Five short
blasts of the horn will continue until the
bridge is seated and locked down to
vessels.
(f) When pedestrian traffic has
cleared, the horn will sound one
prolonged blast followed by one short
blast to indicate the draw is opening to
vessel traffic.
Dated: July 3, 2006.
L.L. Hereth,
Rear Admiral, United States Coast Guard,
Commander, Fifth Coast Guard District.
[FR Doc. E6–11274 Filed 7–14–06; 8:45 am]
BILLING CODE 4910–15–P
A. Does This Action Apply to Me?
A. What Is General Conformity and How
Does It Affect Air Quality?
[EPA–HQ–OAR–2004–0491; FRL–8197–4]
RIN 2060–AN60
rmajette on PROD1PC67 with RULES
I. General Information
II. Background
40 CFR Parts 51 and 93
PM2.5 De Minimis Emission Levels for
General Conformity Applicability
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
15:22 Jul 14, 2006
Mr.
Thomas Coda, Office of Air Quality
Planning and Standards, U.S.
Environmental Protection Agency, Mail
Code C539–02, Research Triangle Park,
NC 27711, phone number (919) 541–
3037 or by e-mail at coda.tom@epa.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Today’s action applies to all Federal
agencies and Federal activities.
ENVIRONMENTAL PROTECTION
AGENCY
VerDate Aug<31>2005
SUMMARY: The EPA is taking final action
to amend its regulations relating to the
Clean Air Act (CAA) requirement that
Federal actions conform to the
appropriate State, Tribal or Federal
implementation plan for attaining clean
air (‘‘general conformity’’) to add de
minimis emissions levels for particulate
matter with an aerodynamic diameter
equal or less than 2.5 microns (PM2.5)
National Ambient Air Quality Standards
(NAAQS) and its precursors.
DATES: The final rule amendments are
effective on July 17, 2006.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2004–0491. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., 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 through
www.regulations.gov or in hard copy at
the Air Docket, EPA/DC, EPA West,
Room B102, 1301 Constitution Ave.,
NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the Air Docket is (202) 566–
1742.
Jkt 208001
The intent of the General Conformity
requirement is to prevent the air quality
impacts of Federal actions from causing
or contributing to a violation of the
NAAQS or interfering with the purpose
of a State implementation plan (SIP).
For the purpose of this rule, the term
‘‘State implementation plan (SIP)’’ refers
to all approved applicable and
PO 00000
Frm 00036
Fmt 4700
Sfmt 4700
enforceable State, Federal and Tribal
implementation plans (TIPs).
In the CAA, Congress recognized that
actions taken by Federal agencies could
affect States, Tribes, and local agencies’
abilities to attain and maintain the
NAAQS. Section 176(c)(42 U.S.C. 7506)
of the CAA requires Federal agencies to
ensure that their actions conform to the
applicable SIP for attaining and
maintaining the NAAQS. The CAA
Amendments of 1990 clarified and
strengthened the provisions in section
176(c). Because certain provisions of
section 176(c) apply only to highway
and mass transit funding and approvals
actions, EPA published two sets of
regulations to implement section 176(c).
The Transportation Conformity
Regulations, first published on
November 24, 1993 (58 FR 62188) and
recently revised on July 1, 2004 (69 FR
40004) and May 6, 2005 (70 FR 24280),
address Federal actions related to
highway and mass transit funding and
approval actions. The General
Conformity Regulations, published on
November 30, 1993 (58 FR 63214) and
codified at 40 CFR 93.150, cover all
other Federal actions. This action
applies only to the General Conformity
Regulations.
When the applicability analysis
shows that the action must undergo a
conformity determination, Federal
agencies must first show that the action
will meet all SIP control requirements
such as reasonably available control
measures, and the emissions from the
action will not interfere with the timely
attainment of the standard, the
maintenance of the standard or the
area’s ability to achieve an interim
emission reduction milestone. Federal
agencies then must demonstrate
conformity by meeting one or more of
the methods specified in the regulation
for determining conformity:
1. Demonstrating that the total direct 1
and indirect 2 emissions are specifically
identified and accounted for in the
applicable SIP,
2. Obtaining written statement from
the State or local agency responsible for
the SIP documenting that the total direct
and indirect emissions from the action
along with all other emissions in the
1 Direct emissions are emissions of a criteria
pollutant or its precursors that are caused or
initiated by the Federal action and occur at the
same time and place as the action.
2 Indirect emissions are emissions of a criteria
pollutant or its precursors that: (1) Are caused by
the Federal action, but may occur later in time and/
or may be further removed in distance from the
action itself but are still reasonably foreseeable; and
(2) the Federal agency can practically control or
will maintain control over due to the controlling
program responsibility of the Federal action.
E:\FR\FM\17JYR1.SGM
17JYR1
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
area will not exceed the SIP emission
budget,
3. Obtaining a written commitment
from the State to revise the SIP to
include the emissions from the action,
4. Obtaining a statement from the
metropolitan planning organization
(MPO) for the area documenting that
any on-road motor vehicle emissions are
included in the current regional
emission analysis for the area’s
transportation plan or transportation
improvement program,
5. Fully offset the total direct and
indirect emissions by reducing
emissions of the same pollutant or
precursor in the same nonattainment or
maintenance area, or
6. Where appropriate, in accordance
with 40 CFR 51.858(4), conduct air
quality modeling that can demonstrate
that the emissions will not cause or
contribute to new violations of the
standards, or increase the frequency or
severity of any existing violations of the
standards.
rmajette on PROD1PC67 with RULES
B. Applicability Analysis for General
Conformity
The National Highway System
Designation Act of 1995, (Pub. L. 104–
59) added section 176(c)(5) to the CAA
to limit applicability of the conformity
programs to areas designated as
nonattainment under section 107 of the
CAA and areas that had been
redesignated as maintenance areas with
a maintenance plan under section 175A
of the CAA only. Therefore, only
Federal actions taken in designated
nonattainment and maintenance areas
are subject to the General Conformity
regulation. In addition, the General
Conformity Regulations (58 FR 63214)
recognize that the vast majority of
Federal actions do not result in a
significant increase in emissions and,
therefore, include a number of
regulatory exemptions, such as de
minimis emission levels based on the
type and severity of the nonattainment
problem in an area.
In carrying out this type of
applicability analysis, the Federal
agency determines whether the total
direct and indirect emissions from the
action are below or above the de
minimis levels. If the action is
determined to have total direct and
indirect emissions for a given pollutant
that are at or above the de minimis level
for that pollutant, Federal agencies must
conduct a conformity determination for
the pollutant unless the action is
presumed to conform under the
regulation or the action is otherwise
exempt. If the action’s emissions are
below an applicable de minimis level, a
VerDate Aug<31>2005
15:22 Jul 14, 2006
Jkt 208001
Federal agency does not have to conduct
a conformity determination.
C. Why Is EPA Establishing De Minimis
Levels for PM2.5 Emissions at This Time?
The EPA has not revised the General
Conformity Regulations since they were
promulgated in 1993, although EPA
expects to promulgate, in a separate
rulemaking, proposed revisions to the
General Conformity Regulations in the
near future. For the purposes of general
conformity, the General Conformity
Regulations (58 FR 63214) define
NAAQS as ‘‘those standards established
pursuant to section 109 of the Act and
include standards for carbon monoxide
(CO), Lead (Pb), nitrogen dioxide (NO2),
ozone, particulate matter (PM10) and
sulfur dioxide (SO2).’’ Since 1993, EPA
has reviewed and revised the NAAQS
for particulate matter to include a new
PM2.5 standard (PM2.5 is particulate
matter with an aerodynamic diameter of
up to 2.5 µ referred to as the fine
particle fraction). Since PM2.5 was
established pursuant to section 109 of
the CAA, general conformity
requirements are applicable to areas
designated nonattainment for this
standard although it is not explicitly
included in the examples of criteria
pollutants in 58 FR 63214.
In July 1997, EPA promulgated two
new NAAQS (62 FR 38652), one for an
8-hour ozone standard and one
established pursuant to section 109 of
the CAA for fine particulate matter
known as PM2.5. The new 8-hour and
old 1-hour ozone NAAQS address the
same pollutant but differ with respect to
the averaging time, therefore, EPA
retained the existing de minimis
emission levels for ozone precursors.
The EPA designated areas as
nonattainment for PM2.5 on April 5,
2005. Subsequently, EPA has proposed
regulations to implement the new
particulate matter standard (70 FR
65984; November 1, 2005). Currently,
there are no de minimis emission levels
for PM2.5. Although PM2.5 is a subset of
PM10, it differs from the rest of PM10.
While the majority of ambient PM10
results from direct emissions of the
pollutant, a significant amount of the
ambient PM2.5 can result not only from
direct emissions but also from
transformation of precursors and
condensing of gaseous pollutants in the
atmosphere. In the preamble to the
proposed regulation to implement the
new particulate matter standard, EPA
included a discussion about the key
pollutants potentially contributing to
PM2.5 concentrations in the atmosphere
which are direct PM2.5 emissions, SO2,
NOX, VOC and ammonia (70 FR 65998).
The discussion also included EPA’s
PO 00000
Frm 00037
Fmt 4700
Sfmt 4700
40421
intent to issue a separate rulemaking to
establish de minimis levels for Federal
actions covered by the General
Conformity program (70 FR 66033). At
that time, EPA said it expected the
levels would be identical to the
nonattainment area major source levels
for the New Source Review (NSR)
program. While EPA recognized that
SO2, NOX, VOC and ammonia are
precursors of PM2.5 in the scientific
sense because these pollutants can
contribute to the formation of PM2.5 in
the ambient air, the degree to which
these individual precursors and
pollutants contribute to PM2.5 formation
in a given location is complex and
variable. For ammonia, there is
uncertainty about emissions inventories
and the potential efficacy of control
measures from location to location. For
VOC, the role and relationship of
gaseous organic material in the
formation of organic PM remains
complex and further research and
technical tools are needed to better
characterize emissions inventories for
specific VOC compounds. In light of
these factors, EPA proposed in its rule
to implement the PM2.5 NAAQS that
States are not required to address VOC’s
or ammonia as PM2.5 nonattainment
plan precursors, unless the State or EPA
makes a finding that VOC’s or ammonia
significantly contribute to a PM2.5
nonattainment problem in the State or
to other downwind air quality concerns.
For NOX EPA proposed that States are
required to address NOX as a PM2.5
nonattainment precursor, unless the
State and EPA makes a finding that NOX
emissions from sources in the State do
not significantly contribute to the PM2.5
problem in a given area or to other
downwind air quality concerns.
Section 176(c)(6) states that the
general conformity requirements of
section 176(c) do not apply to an area
newly designated nonattainment for a
new NAAQS until 1 year after such
designation. The EPA made PM2.5
designations on April 5, 2005; thus, the
applicable general conformity
requirements were not effective in these
areas until April 5, 2006. Many Federal
actions result in little or no direct or
indirect emissions and EPA believes
that non-exempt Federal actions that
have covered emissions below the
equivalent major source thresholds
should not be required to prepare an
applicability analysis under the general
conformity rule. The general conformity
rule should only apply to major sources,
not de minimis sources. A different
interpretation could result in an
extremely wasteful process that
generates vast numbers of useless
E:\FR\FM\17JYR1.SGM
17JYR1
40422
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
applicability analyses with no
environmental benefit.
rmajette on PROD1PC67 with RULES
D. How Does EPA Determine the De
Minimis Threshold?
The EPA has previously considered
options and taken comment on how to
set de minimis levels to determine
applicability of general conformity
requirements. The following is a
summary of the options previously
considered and the methodology used
in setting de minimis levels. In this final
rule, the EPA is using the same
methodology to set PM2.5 de minimis
levels that the Agency previously used
for other NAAQS pollutants.
In the preamble to the proposal for
General Conformity Regulations (58 FR
13841), EPA recognized that the very
broad definition of Federal action in the
statute and the number of Federal
agencies subject to the conformity
requirements could create a requirement
for individual conformity decisions in
the thousands per day. To avoid
creating an unreasonable administrative
burden, EPA considered options for
mechanisms to focus the efforts of
affected agencies on key actions with
significant environmental impact, rather
than all actions. Prior to that proposal,
EPA consulted with numerous Federal
agencies, environmental groups, State
and local air quality agencies, building
industry representatives, and others.
Following consultation, EPA initially
proposed a de minimis level similar to
that specified by EPA for modifications
to major stationary sources under the
CAA preconstruction review programs.
Consequently, the de minimis levels
proposed for general conformity were
chosen to correspond to the emission
rates defined in 40 CFR 51.165 (NSR)
and 51.166 (prevention of significant
deterioration) as ‘‘significant.’’
Activities with emissions impacts below
the proposed de minimis levels would
not require conformity determinations.
After EPA received comments on this
proposal, we responded in the preamble
to the final General Conformity
Regulations (58 FR 63228) and stated:
‘‘Given the need to choose a threshold
based on air quality criteria and one that
avoids coverage of less significant projects,
and in response to certain comments, the de
minimis levels for conformity analyses in the
final rule are based on the Act’s major
stationary source definitions–not the
significance levels as proposed–for the
various pollutants. Use of the de minimis
levels assures that the conformity rule covers
only major Federal actions. Under the major
source definition, for example, the levels for
ozone would range from 10 tons/year (VOC
and NOX) for an extreme ozone
nonattainment area to 100 tons/year for
marginal and moderate areas, not from 10
VerDate Aug<31>2005
15:22 Jul 14, 2006
Jkt 208001
tons/year to 40 tons/year as proposed. The de
minimis levels proposed were generally those
used to define when modifications to existing
stationary sources require preconstruction
review. It was pointed out to EPA in
comments on the proposal that these
thresholds would result in the need to
perform a conformity analysis and
determination for projects that constituted a
‘modification’ to an existing source but not
a ‘major’ source in some cases. The EPA
agrees that conformity applies more
appropriately to ‘major’ source and after
careful consideration has decided to revise
its original proposal in the final rule to use
the emissions levels that define a major
source, except as described above for lead.
The definition of a major source under the
amended Act is explained in more detail in
the April 16, 1992 Federal Register in the
EPA’s General Preamble to Title I (57 FR
13498). Section 51.853(b)(3) of the rule has
also been revised to remove the provisions
that would automatically lower the de
minimis levels to that established for
stationary sources by the local air quality
agency. In keeping with its conclusion that
only major sources should be subject to
conformity review, EPA agrees that a zero
emissions threshold as established by some
local agencies, should not be required by this
rule.’’
The EPA adopts this rationale for the
de minimis levels we are setting for
PM2.5 in this final action.
This mechanism of relying on the
major stationary source levels in the
statute as de minimis levels for
conformity has worked well over the
last 12 years to lessen the administrative
burden of Federal agencies for actions
that emit relatively low emissions while
addressing actions with significant
emissions that could affect attainment of
the NAAQS. The EPA believes it is
appropriate to continue to use major
stationary source levels as de minimis
levels for the PM2.5 NAAQS in line with
past practice and recognizing that
Congress generally concluded it was
appropriate to apply more stringent air
quality review requirements to major
sources. For this reason, EPA has
decided to use this reasonable and
effective mechanism for setting de
minimis levels for PM2.5.
The EPA proposed regulations to
implement the new particulate matter
standard (70 FR 65984) on November 1,
2005). In the preamble to that proposal,
EPA included a discussion about the
key pollutants potentially contributing
to PM2.5 concentrations in the
atmosphere which are direct PM2.5
emissions, SO2, NOX, VOC and
ammonia (70 FR 65998). While EPA
recognized that SO2, NOX, VOC and
ammonia are precursors of PM2.5 in the
scientific sense because these pollutants
can contribute to the formation of PM2.5
in the ambient air, the degree to which
PO 00000
Frm 00038
Fmt 4700
Sfmt 4700
these individual precursors and
pollutants contribute to PM2.5 formation
in a given location is complex and
variable. For ammonia, there is
uncertainty about emissions inventories
and the potential efficacy of control
measures from location to location. For
VOC, the role and relationship of
gaseous organic material in the
formation of organic PM remains
complex and further research and
technical tools are needed to better
characterize emissions inventories for
specific VOC compounds. In light of
these factors, EPA proposed in its rule
to implement the PM2.5 NAAQS that
States are not required to address VOC’s
or ammonia as PM2.5 nonattainment
plan precursors, unless the State or EPA
makes a finding that VOC’s or ammonia
significantly contribute to a PM2.5
nonattainment problem in the State or
to other downwind air quality concerns.
For NOX EPA proposed that States are
required to address NOX under all
aspects of the program, unless the State
and EPA makes a finding that NOX
emissions from sources in the State do
not significantly contribute to the PM2.5
problem in a given area or to other
downwind air quality concerns. For SO2
EPA proposed that States are required to
address SO2 as a PM2.5 nonattainment
precursor. Therefore, for the purposes of
general conformity applicability, VOC’s
and ammonia emissions are only
considered PM2.5 precursors in
nonattainment areas where either a
State or EPA has made a finding that
they significantly contribute to the PM2.5
problem in a given area or to other
downwind air quality concerns; NOX
emissions are considered a PM2.5
precursor unless the State and EPA
makes a finding that NOX emissions
from sources in the State do not
significantly contribute to the PM2.5
problem in a given area or to other
downwind air quality concerns; and
SO2 are always considered a PM2.5
precursor. The EPA’s proposed
implementation strategy for the PM2.5
standard included options for
addressing PM2.5 precursors in other air
quality planning programs (e.g., New
Source Review for stationary sources).
The public has had the opportunity to
comment on these options during the
comment period for that rulemaking.
The EPA will consider those comments
in its final PM2.5 implementation rule.
Today’s final rule should not be
interpreted as prejudging our decision
on the PM2.5 precursor requirements
that will be finalized in the PM2.5
implementation rulemaking. Our final
rule for the implementation proposal
will reflect how PM2.5 precursors should
E:\FR\FM\17JYR1.SGM
17JYR1
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
best be considered in those air quality
planning programs and the comments
received on that proposal. While EPA’s
final decisions on PM2.5 precursors must
be legally consistent, EPA could take
differing positions with respect to
various precursors in other programs
(e.g., New Source Review for stationary
sources) as appropriate to the
programmatic needs, technical
information, legal requirements and
pollution sources relevant to the
differing programs.
The EPA notes, however, that if in the
future we change our legal rationale or
technical basis for considering PM2.5
precursors among the various air quality
planning programs from the positions
currently under consideration as a result
of comments received on the PM2.5
implementation strategy proposal, such
changes could necessitate a subsequent
revision to the general conformity rule.
In the case where an amendment to the
General Conformity regulations is
needed to reflect an alternative
approach to considering PM2.5
precursors, EPA would conduct such a
revision through full public notice and
comment rulemaking.
III. Response to Comments
The proposed rule published on April
5, 2006 solicited comments on
establishing 100 tons per year of PM2.5
direct or precursor emissions as the de
minimis threshold for General
Conformity applicability. Three
comments were received, one in support
of the proposed de minimis level, and
two other comments suggesting lower
levels. Responses to these comments
follow.
A. De Minimis Level for Prescribed
Burning
1. Comment
A commenter stated that ‘‘leaving out
prescribed burning with its release of
fine particulate matter and mercury is
absolutely wrong.’’ In addition, the
commenter stated that he does not
understand why EPA does not address
the way certain Federal agencies, like
the National Park Service, engage in
prescribed burning on Federal lands and
that EPA needs to address this
‘‘wrongdoing.’’
rmajette on PROD1PC67 with RULES
2. Response
To the extent that this comment is
stating that prescribed burning should
be regulated as an activity by the
General Conformity rule, such comment
is beyond the scope of this action since
this rulemaking does not concern any
substantive requirements for any
Federal activities nor does it address
VerDate Aug<31>2005
15:22 Jul 14, 2006
Jkt 208001
ways in which a Federal activity such
as prescribed burning can be found to
conform to an applicable
implementation plan. EPA is currently
considering whether to promulgate
proposed revisions to the General
conformity rule, including ways in
which activities can be found to
conform, and if such a rule were
proposed in the future, EPA encourages
the commenter to submit comments at
that time. To the extent that the
commenter intended his comment to
mean that EPA should not promulgate a
de minimis level for prescribed burning
activities, EPA notes that the General
Conformity regulations are not
structured to provide differing de
minimis levels for different types of
Federal activities. The EPA has
proposed uniform de minimis emission
rates for all Federal activities
independent of their source because
pollution is pollution, whether caused
by prescribed burning or any other
Federal activity. In other words, all of
the de minimis levels are based on
levels of pollution impact from all types
of federal activities, whatever they may
be. Prescribed burning activities do not
produce any new type of pollution
which would necessitate a different type
of de minimis level or no level at all.
The EPA believes that the General
Conformity rule’s de minimis thresholds
should provide for the uniform
treatment of air pollution emissions
regardless of their source.
B. De Minimis Level for Direct PM2.5
Emissions
1. Comment
One commenter suggested lower de
minimis levels for directly emitted
PM2.5. The commenter proposed that the
de minimis level for emissions of direct
PM2.5 should be set significantly lower
than 100 tons per year—in the range of
25–50 tons per year in areas that are
likely to attain the PM2.5 NAAQS within
5 years, and a level of 10–25 tons per
year in areas that are likely to take more
than five years to achieve the NAAQS.
2. Response
The intent of the de minimis levels is
to assure that the General Conformity
rule covers only major Federal actions
that are major sources of emission. The
Act in section 302(j) defines a major
source as meaning ‘‘any stationary
facility or source of air pollutants which
directly emits, or has the potential to
emit, one hundred tons per year or more
of any air pollutant (including any
major emitting facility or source of
fugitive emissions of any such pollutant,
as determined by rule by the
PO 00000
Frm 00039
Fmt 4700
Sfmt 4700
40423
Administrator).’’ This definition
provides a Congressional threshold for a
major source. As discussed in the
preamble of the proposal, EPA is using
the same methodology to set the de
minimis level for PM2.5 as it did for the
other NAAQS pollutants (with the
exception of lead). This methodology is
based on a level found in statute as
defining major stationary sources of air
pollution. The commenter suggests a
sliding scale for the direct PM2.5 de
minimis level based on the severity of
the attainment problem which is akin to
a classification scheme. A classification
scheme was constructed for PM10 nonattainment areas and the Act provides
for a lower major sources definition
threshold of 70 tons per year in section
189(b)(3) for PM10 areas classified as
serious. The EPA designated all PM2.5
nonattainment areas under subpart 1 of
the Act. Subpart 1 does not mandate a
classification scheme for nonattainment
areas based on the severity of an area’s
air quality problem. Therefore, there is
no basis for EPA to determine in this
rulemaking what would constitute a
serious PM2.5 nonattainment problem
and set different de minimis levels
based on seriousness of the air quality
problem. Absent a classification scheme
for PM2.5, EPA does not believe that
basing the de minimis levels on
differing air quality levels is warranted
at this time. If a different classification
approach is taken in the PM2.5
implementation rule, we may consider
addressing this issue differently.
IV. Summary of the Action
The EPA is revising the tables in subparagraphs (b)(1) and (b)(2) of 40 CFR
51.853 and 40 CFR 93.153 by adding the
de minimis emission levels for PM2.5.
The EPA is establishing the proposed
100 tons per year as the de minimis
emission level for direct PM2.5 and each
of its precursors as defined in revised
section 91.152. The precursors for the
purposes of general conformity
applicability are, VOC’s and ammonia
emissions are only considered PM2.5
precursors in nonattainment areas
where either a State or EPA has made
a finding that they significantly
contribute to the PM2.5 problem in a
given area or to other downwind air
quality concerns; NOX emissions are
considered a PM2.5 precursor unless the
State and EPA makes a finding that NOX
emissions from sources in the State do
not significantly contribute to the PM2.5
problem in a given area or to other
downwind air quality concerns; and
SO2 emissions are always considered a
PM2.5 precursor. Since EPA did not
propose any classifications for the PM2.5
nonattainment areas, EPA is not
E:\FR\FM\17JYR1.SGM
17JYR1
40424
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
establishing PM2.5 de minimis emission
levels for higher classified
nonattainment areas. This action will
maintain the consistency between the
conformity de minimis emission levels
and the size of a major stationary source
under the Act (section 302(j) and the
NSR program (70 FR 65984). These
levels are also consistent with the levels
proposed for VOC and NOX emissions
in subpart 1 areas under the 8-hour
ozone implementation strategy (68 FR
32843).
V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), the Agency
must determine whether the regulatory
action is ‘‘significant’’ and, therefore,
subject to Office of Management and
Budget (OMB) review and the
requirements of the Executive Order.
The Order defines ‘‘significant
regulatory action’’ as one that is likely
to result in a regulation that may:
1. Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
2. Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
3. Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
4. Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that these revisions to the regulations
are considered a ‘‘significant regulatory
action’’ because although they do not
impose any additional requirements on
other Federal agencies, they do affect
the process Federal agencies use to
determine applicability of existing
requirements. As such, this action was
submitted to OMB for review.
rmajette on PROD1PC67 with RULES
B. Paperwork Reduction Act
This action does not directly impose
an information collection burden under
the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
on non-Federal entities. The General
Conformity Regulations require Federal
agencies to determine that their actions
conform to the SIPs or TIPs. However,
VerDate Aug<31>2005
15:22 Jul 14, 2006
Jkt 208001
depending upon how Federal agencies
implement the regulations, non-Federal
entities seeking funding or approval
from those Federal agencies may be
required to submit information to that
agency.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information. An agency
may not conduct or sponsor, and a
person is not required to respond to a
collection of information unless it
displays a currently valid OMB control
number. The OMB control numbers for
EPA’s regulations in 40 CFR are listed
in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
generally requires an Agency to prepare
a regulatory flexibility analysis of any
regulation subject to notice and
comment rulemaking requirements
under the Administrative Procedures
Act or any other statute unless the
Agency certifies the rule will not have
a significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts
of today’s action on small entities, small
entity is defined as:
1. A small business that is a small
industrial entity as defined in the U.S.
Small Business Administration (SBA)
size standards. (See 13 CFR 121.201);
2. A governmental jurisdiction that is
a government of a city, county, town,
school district or special district with a
population of less than 50,000; and
3. A small organization that is any
not-for-profit enterprise which is
independently owned and operated and
is not dominant in its field.
After considering the economic
impacts of today’s regulation revisions,
I certify that this action will not have a
significant economic impact on a
substantial number of small entities.
Today’s action will not impose any
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
requirements on small entities. The
General Conformity Regulations require
Federal agencies to conform to the
appropriate State, Tribal or Federal
implementation plan for attaining clean
air.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final
regulations with ‘‘Federal mandates’’
that may result in expenditures to State,
local, and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any 1 year.
Before promulgating an EPA regulation
for which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and to adopt the least
costly, most cost-effective or least
burdensome alternative that achieves
the objectives of the regulation. The
provisions of section 205 do not apply
when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
regulations an explanation why that
alternative was not adopted. Before EPA
establishes any regulatory requirements
that may significantly or uniquely affect
small governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
actions with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
The EPA has determined that these
revisions to the regulations do not
contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and Tribal
governments, in the aggregate, or the
private sector in any 1 year. Thus,
today’s regulation revisions are not
subject to the requirements of sections
202 and 205 of the UMRA.
The EPA has determined that these
regulation revisions contain no
E:\FR\FM\17JYR1.SGM
17JYR1
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
Tribal implications, Executive Order
13175 does not apply.
regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255; August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have Federalism
implications.’’ ‘‘Policies that have
Federalism implications’’ is defined in
the Executive Order to include
regulations that 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.’’
This action does not have Federalism
implications. The regulations will 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. Previously, EPA
determined the costs to States to
implement the General Conformity
Regulations to be less than $100,000 per
year. Thus, Executive Order 13132 does
not apply to these regulation revisions.
rmajette on PROD1PC67 with RULES
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ This determination is
stated below.
These regulation revisions do not
have Tribal implications as defined by
Executive Order 13175. They do not
have a substantial direct effect on one or
more Indian Tribes, since no Tribe has
to demonstrate conformity for their
actions. Furthermore, these regulation
revisions do not affect the relationship
or distribution of power and
responsibilities between the Federal
government and Indian Tribes. The
CAA and the Tribal Air Rule establish
the relationship of the Federal
government and Tribes in developing
plans to attain the NAAQS, and these
revisions to the regulations do nothing
to modify that relationship. Because
these regulation revisions do not have
VerDate Aug<31>2005
15:22 Jul 14, 2006
Jkt 208001
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045: ‘‘Protection of
Children from Environmental Health
and Safety Risks’’ (62 FR 19885, April
23, 1997) applies to any rule that (1) is
determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
These revisions to the regulations are
not subject to Executive Order 13045
because they are not economically
significant as defined in Executive
Order 12866 and because EPA does not
have reason to believe the
environmental health or safety risk
addressed by the General Conformity
Regulations present a disproportionate
risk to children. The General
Conformity Regulations ensure that
Federal agencies comply with the SIP,
TIP or FIP for attaining and maintaining
the NAAQS.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
These revisions to the regulations are
not considered a ‘‘significant energy
action’’ as defined in Executive Order
13211, ‘‘Actions That Significantly
Affect Energy Supply, Distribution, or
Use,’’ (66 FR 28355, May 22, 2001)
because it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104–113,
section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards (VCS) in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. The VCS are
technical standards (e.g., materials
specifications, test methods, sampling
procedures, and business practices) that
are developed or adopted by VCS
bodies. The NTTAA directs EPA to
provide Congress, through OMB,
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
40425
explanations when the Agency decides
not to use available and applicable VCS.
This revision to the regulations does
not involve technical standards.
Therefore, EPA is not considering the
use of any VCS.
However, EPA will encourage the
Federal agencies to consider the use of
such standards, where appropriate, in
the implementation of the General
Conformity Regulations.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 requires that
each Federal agency make achieving
environmental justice part of its mission
by identifying and addressing, as
appropriate, disproportionately high
and adverse human health
environmental effects of its programs,
policies, and activities on minorities
and low-income populations.
The EPA believes that these revisions
to the regulations should not raise any
environmental justice issues. The
revisions to the regulations would, if
promulgated revise procedures for other
Federal agencies to follow. They do not
disproportionately affect the health or
safety of minority or low income
populations. The EPA encourages other
agencies to carefully consider and
address environmental justice in their
implementation of their evaluations and
conformity determinations.
K. Congressional Review Act
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
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. It requires that 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).
Therefore this rule will be effective July
17, 2006.
List of Subjects
40 CFR Part 51
Environmental protection,
Administrative practice and procedures,
Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile
organic compounds.
E:\FR\FM\17JYR1.SGM
17JYR1
40426
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
40 CFR Part 93
Subpart W—[Amended]
Environmental protection,
Administrative practice and procedures,
Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile
organic compounds.
2. Section 51.852 is amended by
removing the ‘‘; and’’ at the end of
paragraph (1) and adding a period in its
place and adding paragraph (3) to
definition of ‘‘Precursors of criteria
pollutant’’ to read as follows:
I
§ 51.852
*
I
Definitions.
*
Dated: July 11, 2006.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble,
title 40, chapter I of the Code of Federal
Regulations is proposed to be amended
as follows:
I
PART 51—[AMENDED]
1. The authority citation for part 51
continues to read as follows:
I
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
where either the State or EPA
determines that they are significant
precursors.
*
*
*
*
*
*
*
*
*
Precursors of a criteria pollutant are:
*
*
*
*
*
(3) For PM2.5:
(i) Sulfur dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(ii) Nitrogen oxides in all PM2.5
nonattainment and maintenance areas
unless both the State and EPA
determine that it is not a significant
precursor, and
(iii) Volatile organic compounds
(VOC) and ammonia (NH3) only in PM2.5
nonattainment or maintenance areas
3. Section 51.853 is amended by
revising paragraph (b) to read as follows:
§ 51.853
Applicability.
*
*
*
*
(b) For Federal actions not covered by
paragraph (a) of this section, a
conformity determination is required for
each criteria pollutant or precursor
where the total of direct and indirect
emissions of the criteria pollutant or
precursor in a nonattainment or
maintenance area caused by a Federal
action would equal or exceed any of the
rates in paragraphs (b)(1) or (2) of this
section.
(1) For purposes of paragraph (b) of
this section, the following rates apply in
nonattainment areas (NAA’s):
Tons/year
Ozone (VOC’s or NOX):
Serious NAA’s ......................................................................................................................................................................................
Severe NAA’s .......................................................................................................................................................................................
Extreme NAA’s .....................................................................................................................................................................................
Other ozone NAA’s outside an ozone transport region .......................................................................................................................
Other ozone NAA’s inside an ozone transport region:
VOC ......................................................................................................................................................................................................
NOX ......................................................................................................................................................................................................
Carbon monoxide: All NAA’s .......................................................................................................................................................................
SO2 or NO2: All NAA’s .................................................................................................................................................................................
PM–10:
Moderate NAA’s ...................................................................................................................................................................................
Serious NAA’s ......................................................................................................................................................................................
PM2.5:
Direct emissions ...................................................................................................................................................................................
SO2 .......................................................................................................................................................................................................
NOX (unless determined not to be a significant precursor) .................................................................................................................
VOC or ammonia (if determined to be significant precursors) ............................................................................................................
Pb: All NAA’s ...............................................................................................................................................................................................
50
25
10
100
50
100
100
100
100
70
100
100
100
100
25
(2) For purposes of paragraph (b) of
this section, the following rates apply in
maintenance areas:
rmajette on PROD1PC67 with RULES
Tons/year
Ozone (NOX, SO2 or NO2):
All Maintenance Areas .........................................................................................................................................................................
Ozone (VOC’s):
Maintenance areas inside an ozone transport region ..........................................................................................................................
Maintenance areas outside an ozone transport region .......................................................................................................................
Carbon monoxide: All Maintenance Areas ..................................................................................................................................................
PM–10: All Maintenance Areas ...................................................................................................................................................................
PM2.5:
Direct emissions ...................................................................................................................................................................................
SO2 .......................................................................................................................................................................................................
NOX (unless determined not to be a significant precursor) .................................................................................................................
VOC or ammonia (if determined to be significant precursors) ............................................................................................................
Pb: All Maintenance Areas ..........................................................................................................................................................................
VerDate Aug<31>2005
15:22 Jul 14, 2006
Jkt 208001
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
E:\FR\FM\17JYR1.SGM
17JYR1
100
50
100
100
100
100
100
100
100
25
Federal Register / Vol. 71, No. 136 / Monday, July 17, 2006 / Rules and Regulations
*
*
*
*
*
Tons/year
PART 93—[AMENDED]
4. The authority citation for part 93
continues to read as follows:
I
Authority: 21 U.S.C. 101; 42 U.S.C. 7401–
7671q.
Subpart B—[Amended]
5. Section 93.152 is amended by
removing the ‘‘; and’’ at the end of
paragraph (1) and adding a period in its
place and adding paragraph (3) to
definition of ‘‘Precursors of criteria
pollutant’’ to read as follows:
I
§ 93.152
SO2 or NO2: All NAA’s .................
PM–10:
Moderate NAA’s ........................
Serious NAA’s ...........................
PM2.5:
Direct emissions ........................
SO2 ............................................
NOX (unless determined not to
be a significant precursor) .....
VOC or ammonia (if determined
to be significant precursors) ..
Pb: All NAA’s ................................
100
100
100
100
25
Tons/year
*
§ 93.153
100
70
(2) For purposes of paragraph (b) of
this section, the following rates apply in
maintenance areas:
Definitions.
*
*
*
*
Precursors of a criteria pollutant are:
*
*
*
*
*
(3) For PM2.5:
(i) Sulfur dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(ii) Nitrogen oxides in all PM2.5
nonattainment and maintenance areas
unless both the State and EPA
determine that it is not a significant
precursor, and
(iii) Volatile organic compounds
(VOC) and ammonia (NH3) only in PM2.5
nonattainment or maintenance areas
where either the State or EPA
determines that they are significant
precursors.
*
*
*
*
*
I 6. Section 93.153 is amended by
revising paragraph (b) to read as follows:
100
Ozone (NOX, SO2 or NO2):
All Maintenance Areas ..............
Ozone (VOC’s):
Maintenance areas inside an
ozone transport region ..........
Maintenance areas outside an
ozone transport region ..........
Carbon monoxide: All Maintenance Areas ..............................
PM–10: All Maintenance Areas ....
PM2.5:
Direct emissions ........................
SO2 ............................................
NOX (unless determined not to
be a significant precursor) .....
VOC or ammonia (if determined
to be significant precursors) ..
Pb: All Maintenance Areas ...........
*
*
*
*
100
50
100
100
100
100
100
100
100
25
*
[FR Doc. E6–11241 Filed 7–14–06; 8:45 am]
BILLING CODE 6560–50–P
Applicability.
*
*
*
*
*
(b) For Federal actions not covered by
paragraph (a) of this section, a
conformity determination is required for
each criteria pollutant or precursor
where the total of direct and indirect
emissions of the criteria pollutant or
precursor in a nonattainment or
maintenance area caused by a Federal
action would equal or exceed any of the
rates in paragraphs (b)(1) or (2) of this
section.
(1) For purposes of paragraph (b) of
this section, the following rates apply in
nonattainment areas (NAA’s):
rmajette on PROD1PC67 with RULES
Tons/year
Ozone (VOC’s or NOX):
Serious NAA’s ...........................
Severe NAA’s ............................
Extreme NAA’s ..........................
Other ozone NAA’s outside an
ozone transport region ..........
Other ozone NAA’s inside an
ozone transport region:
VOC ..........................................
NOX ...........................................
Carbon monoxide: All NAA’s ........
VerDate Aug<31>2005
15:22 Jul 14, 2006
Jkt 208001
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 174
[EPA–HQ–OPP–2006–0554; FRL–8076–5]
Bacillus Thuringiensis Cry1A.105
Protein and the Genetic Material
Necessary for Its Production in Corn in
or on All Corn Commodities;
Temporary Exemption From the
Requirement of a Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: This regulation establishes a
temporary exemption from the
requirement of a tolerance for residues
of the Bacillus Thuringiensis Cry1A.105
protein and the genetic material
100
necessary for its production in corn on
field corn, sweet corn, and popcorn
50 when applied/used as a plant100 incorporated protectant. Monsanto
100 Company submitted a petition to EPA
50
25
10
PO 00000
Frm 00043
Fmt 4700
Sfmt 4700
40427
under the Federal Food, Drug, and
Cosmetic Act (FFDCA), as amended by
the Food Quality Protection Act of 1996
(FQPA), requesting the temporary/
tolerance exemption. This regulation
eliminates the need to establish a
maximum permissible level for residues
of Bacillus Thuringiensis Cry1A.105
protein and the genetic material
necessary for its production in corn. The
temporary tolerance exemption will
expire on June 30, 2009.
DATES: This regulation is effective July
17, 2006. Objections and requests for
hearings must be received on or before
September 15, 2006, and must be filed
in accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
ADDRESSES: EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2006–0554. All documents in the
docket are listed in the index for the
docket. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information (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 in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S-4400,
One Potomac Yard (South Building),
2777 S. Crystal Drive, Arlington, VA.
The Docket Facility is open from 8:30
a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
telephone number is (703) 305–5805.
FOR FURTHER INFORMATION CONTACT:
Mike Mendelsohn, Biopesticides and
Pollution Prevention Division (7511P),
Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
(703) 308–8715; e-mail address:
mendelsohn.mike@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112)
E:\FR\FM\17JYR1.SGM
17JYR1
Agencies
[Federal Register Volume 71, Number 136 (Monday, July 17, 2006)]
[Rules and Regulations]
[Pages 40420-40427]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-11241]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[EPA-HQ-OAR-2004-0491; FRL-8197-4]
RIN 2060-AN60
PM2.5 De Minimis Emission Levels for General Conformity
Applicability
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is taking final action to amend its regulations
relating to the Clean Air Act (CAA) requirement that Federal actions
conform to the appropriate State, Tribal or Federal implementation plan
for attaining clean air (``general conformity'') to add de minimis
emissions levels for particulate matter with an aerodynamic diameter
equal or less than 2.5 microns (PM2.5) National Ambient Air
Quality Standards (NAAQS) and its precursors.
DATES: The final rule amendments are effective on July 17, 2006.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2004-0491. All documents in the docket are
listed on the https://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g., 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
through www.regulations.gov or in hard copy at the Air Docket, EPA/DC,
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Coda, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, Mail Code
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-3037
or by e-mail at coda.tom@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Today's action applies to all Federal agencies and Federal
activities.
II. Background
A. What Is General Conformity and How Does It Affect Air Quality?
The intent of the General Conformity requirement is to prevent the
air quality impacts of Federal actions from causing or contributing to
a violation of the NAAQS or interfering with the purpose of a State
implementation plan (SIP). For the purpose of this rule, the term
``State implementation plan (SIP)'' refers to all approved applicable
and enforceable State, Federal and Tribal implementation plans (TIPs).
In the CAA, Congress recognized that actions taken by Federal
agencies could affect States, Tribes, and local agencies' abilities to
attain and maintain the NAAQS. Section 176(c)(42 U.S.C. 7506) of the
CAA requires Federal agencies to ensure that their actions conform to
the applicable SIP for attaining and maintaining the NAAQS. The CAA
Amendments of 1990 clarified and strengthened the provisions in section
176(c). Because certain provisions of section 176(c) apply only to
highway and mass transit funding and approvals actions, EPA published
two sets of regulations to implement section 176(c). The Transportation
Conformity Regulations, first published on November 24, 1993 (58 FR
62188) and recently revised on July 1, 2004 (69 FR 40004) and May 6,
2005 (70 FR 24280), address Federal actions related to highway and mass
transit funding and approval actions. The General Conformity
Regulations, published on November 30, 1993 (58 FR 63214) and codified
at 40 CFR 93.150, cover all other Federal actions. This action applies
only to the General Conformity Regulations.
When the applicability analysis shows that the action must undergo
a conformity determination, Federal agencies must first show that the
action will meet all SIP control requirements such as reasonably
available control measures, and the emissions from the action will not
interfere with the timely attainment of the standard, the maintenance
of the standard or the area's ability to achieve an interim emission
reduction milestone. Federal agencies then must demonstrate conformity
by meeting one or more of the methods specified in the regulation for
determining conformity:
1. Demonstrating that the total direct \1\ and indirect \2\
emissions are specifically identified and accounted for in the
applicable SIP,
2. Obtaining written statement from the State or local agency
responsible for the SIP documenting that the total direct and indirect
emissions from the action along with all other emissions in the
[[Page 40421]]
area will not exceed the SIP emission budget,
3. Obtaining a written commitment from the State to revise the SIP
to include the emissions from the action,
4. Obtaining a statement from the metropolitan planning
organization (MPO) for the area documenting that any on-road motor
vehicle emissions are included in the current regional emission
analysis for the area's transportation plan or transportation
improvement program,
---------------------------------------------------------------------------
\1\ Direct emissions are emissions of a criteria pollutant or
its precursors that are caused or initiated by the Federal action
and occur at the same time and place as the action.
\2\ Indirect emissions are emissions of a criteria pollutant or
its precursors that: (1) Are caused by the Federal action, but may
occur later in time and/or may be further removed in distance from
the action itself but are still reasonably foreseeable; and (2) the
Federal agency can practically control or will maintain control over
due to the controlling program responsibility of the Federal action.
---------------------------------------------------------------------------
5. Fully offset the total direct and indirect emissions by reducing
emissions of the same pollutant or precursor in the same nonattainment
or maintenance area, or
6. Where appropriate, in accordance with 40 CFR 51.858(4), conduct
air quality modeling that can demonstrate that the emissions will not
cause or contribute to new violations of the standards, or increase the
frequency or severity of any existing violations of the standards.
B. Applicability Analysis for General Conformity
The National Highway System Designation Act of 1995, (Pub. L. 104-
59) added section 176(c)(5) to the CAA to limit applicability of the
conformity programs to areas designated as nonattainment under section
107 of the CAA and areas that had been redesignated as maintenance
areas with a maintenance plan under section 175A of the CAA only.
Therefore, only Federal actions taken in designated nonattainment and
maintenance areas are subject to the General Conformity regulation. In
addition, the General Conformity Regulations (58 FR 63214) recognize
that the vast majority of Federal actions do not result in a
significant increase in emissions and, therefore, include a number of
regulatory exemptions, such as de minimis emission levels based on the
type and severity of the nonattainment problem in an area.
In carrying out this type of applicability analysis, the Federal
agency determines whether the total direct and indirect emissions from
the action are below or above the de minimis levels. If the action is
determined to have total direct and indirect emissions for a given
pollutant that are at or above the de minimis level for that pollutant,
Federal agencies must conduct a conformity determination for the
pollutant unless the action is presumed to conform under the regulation
or the action is otherwise exempt. If the action's emissions are below
an applicable de minimis level, a Federal agency does not have to
conduct a conformity determination.
C. Why Is EPA Establishing De Minimis Levels for PM2.5
Emissions at This Time?
The EPA has not revised the General Conformity Regulations since
they were promulgated in 1993, although EPA expects to promulgate, in a
separate rulemaking, proposed revisions to the General Conformity
Regulations in the near future. For the purposes of general conformity,
the General Conformity Regulations (58 FR 63214) define NAAQS as
``those standards established pursuant to section 109 of the Act and
include standards for carbon monoxide (CO), Lead (Pb), nitrogen dioxide
(NO2), ozone, particulate matter (PM10) and
sulfur dioxide (SO2).'' Since 1993, EPA has reviewed and
revised the NAAQS for particulate matter to include a new
PM2.5 standard (PM2.5 is particulate matter with
an aerodynamic diameter of up to 2.5 [mu] referred to as the fine
particle fraction). Since PM2.5 was established pursuant to
section 109 of the CAA, general conformity requirements are applicable
to areas designated nonattainment for this standard although it is not
explicitly included in the examples of criteria pollutants in 58 FR
63214.
In July 1997, EPA promulgated two new NAAQS (62 FR 38652), one for
an 8-hour ozone standard and one established pursuant to section 109 of
the CAA for fine particulate matter known as PM2.5. The new
8-hour and old 1-hour ozone NAAQS address the same pollutant but differ
with respect to the averaging time, therefore, EPA retained the
existing de minimis emission levels for ozone precursors.
The EPA designated areas as nonattainment for PM2.5 on
April 5, 2005. Subsequently, EPA has proposed regulations to implement
the new particulate matter standard (70 FR 65984; November 1, 2005).
Currently, there are no de minimis emission levels for
PM2.5. Although PM2.5 is a subset of
PM10, it differs from the rest of PM10. While the
majority of ambient PM10 results from direct emissions of
the pollutant, a significant amount of the ambient PM2.5 can
result not only from direct emissions but also from transformation of
precursors and condensing of gaseous pollutants in the atmosphere. In
the preamble to the proposed regulation to implement the new
particulate matter standard, EPA included a discussion about the key
pollutants potentially contributing to PM2.5 concentrations
in the atmosphere which are direct PM2.5 emissions,
SO2, NOX, VOC and ammonia (70 FR 65998). The
discussion also included EPA's intent to issue a separate rulemaking to
establish de minimis levels for Federal actions covered by the General
Conformity program (70 FR 66033). At that time, EPA said it expected
the levels would be identical to the nonattainment area major source
levels for the New Source Review (NSR) program. While EPA recognized
that SO2, NOX, VOC and ammonia are precursors of
PM2.5 in the scientific sense because these pollutants can
contribute to the formation of PM2.5 in the ambient air, the
degree to which these individual precursors and pollutants contribute
to PM2.5 formation in a given location is complex and
variable. For ammonia, there is uncertainty about emissions inventories
and the potential efficacy of control measures from location to
location. For VOC, the role and relationship of gaseous organic
material in the formation of organic PM remains complex and further
research and technical tools are needed to better characterize
emissions inventories for specific VOC compounds. In light of these
factors, EPA proposed in its rule to implement the PM2.5
NAAQS that States are not required to address VOC's or ammonia as
PM2.5 nonattainment plan precursors, unless the State or EPA
makes a finding that VOC's or ammonia significantly contribute to a
PM2.5 nonattainment problem in the State or to other
downwind air quality concerns. For NOX EPA proposed that
States are required to address NOX as a PM2.5
nonattainment precursor, unless the State and EPA makes a finding that
NOX emissions from sources in the State do not significantly
contribute to the PM2.5 problem in a given area or to other
downwind air quality concerns.
Section 176(c)(6) states that the general conformity requirements
of section 176(c) do not apply to an area newly designated
nonattainment for a new NAAQS until 1 year after such designation. The
EPA made PM2.5 designations on April 5, 2005; thus, the
applicable general conformity requirements were not effective in these
areas until April 5, 2006. Many Federal actions result in little or no
direct or indirect emissions and EPA believes that non-exempt Federal
actions that have covered emissions below the equivalent major source
thresholds should not be required to prepare an applicability analysis
under the general conformity rule. The general conformity rule should
only apply to major sources, not de minimis sources. A different
interpretation could result in an extremely wasteful process that
generates vast numbers of useless
[[Page 40422]]
applicability analyses with no environmental benefit.
D. How Does EPA Determine the De Minimis Threshold?
The EPA has previously considered options and taken comment on how
to set de minimis levels to determine applicability of general
conformity requirements. The following is a summary of the options
previously considered and the methodology used in setting de minimis
levels. In this final rule, the EPA is using the same methodology to
set PM2.5 de minimis levels that the Agency previously used
for other NAAQS pollutants.
In the preamble to the proposal for General Conformity Regulations
(58 FR 13841), EPA recognized that the very broad definition of Federal
action in the statute and the number of Federal agencies subject to the
conformity requirements could create a requirement for individual
conformity decisions in the thousands per day. To avoid creating an
unreasonable administrative burden, EPA considered options for
mechanisms to focus the efforts of affected agencies on key actions
with significant environmental impact, rather than all actions. Prior
to that proposal, EPA consulted with numerous Federal agencies,
environmental groups, State and local air quality agencies, building
industry representatives, and others. Following consultation, EPA
initially proposed a de minimis level similar to that specified by EPA
for modifications to major stationary sources under the CAA
preconstruction review programs. Consequently, the de minimis levels
proposed for general conformity were chosen to correspond to the
emission rates defined in 40 CFR 51.165 (NSR) and 51.166 (prevention of
significant deterioration) as ``significant.'' Activities with
emissions impacts below the proposed de minimis levels would not
require conformity determinations.
After EPA received comments on this proposal, we responded in the
preamble to the final General Conformity Regulations (58 FR 63228) and
stated:
``Given the need to choose a threshold based on air quality
criteria and one that avoids coverage of less significant projects,
and in response to certain comments, the de minimis levels for
conformity analyses in the final rule are based on the Act's major
stationary source definitions-not the significance levels as
proposed-for the various pollutants. Use of the de minimis levels
assures that the conformity rule covers only major Federal actions.
Under the major source definition, for example, the levels for ozone
would range from 10 tons/year (VOC and NOX) for an
extreme ozone nonattainment area to 100 tons/year for marginal and
moderate areas, not from 10 tons/year to 40 tons/year as proposed.
The de minimis levels proposed were generally those used to define
when modifications to existing stationary sources require
preconstruction review. It was pointed out to EPA in comments on the
proposal that these thresholds would result in the need to perform a
conformity analysis and determination for projects that constituted
a `modification' to an existing source but not a `major' source in
some cases. The EPA agrees that conformity applies more
appropriately to `major' source and after careful consideration has
decided to revise its original proposal in the final rule to use the
emissions levels that define a major source, except as described
above for lead. The definition of a major source under the amended
Act is explained in more detail in the April 16, 1992 Federal
Register in the EPA's General Preamble to Title I (57 FR 13498).
Section 51.853(b)(3) of the rule has also been revised to remove the
provisions that would automatically lower the de minimis levels to
that established for stationary sources by the local air quality
agency. In keeping with its conclusion that only major sources
should be subject to conformity review, EPA agrees that a zero
emissions threshold as established by some local agencies, should
not be required by this rule.''
The EPA adopts this rationale for the de minimis levels we are
setting for PM2.5 in this final action.
This mechanism of relying on the major stationary source levels in
the statute as de minimis levels for conformity has worked well over
the last 12 years to lessen the administrative burden of Federal
agencies for actions that emit relatively low emissions while
addressing actions with significant emissions that could affect
attainment of the NAAQS. The EPA believes it is appropriate to continue
to use major stationary source levels as de minimis levels for the
PM2.5 NAAQS in line with past practice and recognizing that
Congress generally concluded it was appropriate to apply more stringent
air quality review requirements to major sources. For this reason, EPA
has decided to use this reasonable and effective mechanism for setting
de minimis levels for PM2.5.
The EPA proposed regulations to implement the new particulate
matter standard (70 FR 65984) on November 1, 2005). In the preamble to
that proposal, EPA included a discussion about the key pollutants
potentially contributing to PM2.5 concentrations in the
atmosphere which are direct PM2.5 emissions, SO2,
NOX, VOC and ammonia (70 FR 65998). While EPA recognized
that SO2, NOX, VOC and ammonia are precursors of
PM2.5 in the scientific sense because these pollutants can
contribute to the formation of PM2.5 in the ambient air, the
degree to which these individual precursors and pollutants contribute
to PM2.5 formation in a given location is complex and
variable. For ammonia, there is uncertainty about emissions inventories
and the potential efficacy of control measures from location to
location. For VOC, the role and relationship of gaseous organic
material in the formation of organic PM remains complex and further
research and technical tools are needed to better characterize
emissions inventories for specific VOC compounds. In light of these
factors, EPA proposed in its rule to implement the PM2.5
NAAQS that States are not required to address VOC's or ammonia as
PM2.5 nonattainment plan precursors, unless the State or EPA
makes a finding that VOC's or ammonia significantly contribute to a
PM2.5 nonattainment problem in the State or to other
downwind air quality concerns. For NOX EPA proposed that
States are required to address NOX under all aspects of the
program, unless the State and EPA makes a finding that NOX
emissions from sources in the State do not significantly contribute to
the PM2.5 problem in a given area or to other downwind air
quality concerns. For SO2 EPA proposed that States are
required to address SO2 as a PM2.5 nonattainment
precursor. Therefore, for the purposes of general conformity
applicability, VOC's and ammonia emissions are only considered
PM2.5 precursors in nonattainment areas where either a State
or EPA has made a finding that they significantly contribute to the
PM2.5 problem in a given area or to other downwind air
quality concerns; NOX emissions are considered a
PM2.5 precursor unless the State and EPA makes a finding
that NOX emissions from sources in the State do not
significantly contribute to the PM2.5 problem in a given
area or to other downwind air quality concerns; and SO2 are
always considered a PM2.5 precursor. The EPA's proposed
implementation strategy for the PM2.5 standard included
options for addressing PM2.5 precursors in other air quality
planning programs (e.g., New Source Review for stationary sources). The
public has had the opportunity to comment on these options during the
comment period for that rulemaking. The EPA will consider those
comments in its final PM2.5 implementation rule. Today's
final rule should not be interpreted as prejudging our decision on the
PM2.5 precursor requirements that will be finalized in the
PM2.5 implementation rulemaking. Our final rule for the
implementation proposal will reflect how PM2.5 precursors
should
[[Page 40423]]
best be considered in those air quality planning programs and the
comments received on that proposal. While EPA's final decisions on
PM2.5 precursors must be legally consistent, EPA could take
differing positions with respect to various precursors in other
programs (e.g., New Source Review for stationary sources) as
appropriate to the programmatic needs, technical information, legal
requirements and pollution sources relevant to the differing programs.
The EPA notes, however, that if in the future we change our legal
rationale or technical basis for considering PM2.5
precursors among the various air quality planning programs from the
positions currently under consideration as a result of comments
received on the PM2.5 implementation strategy proposal, such
changes could necessitate a subsequent revision to the general
conformity rule. In the case where an amendment to the General
Conformity regulations is needed to reflect an alternative approach to
considering PM2.5 precursors, EPA would conduct such a
revision through full public notice and comment rulemaking.
III. Response to Comments
The proposed rule published on April 5, 2006 solicited comments on
establishing 100 tons per year of PM2.5 direct or precursor
emissions as the de minimis threshold for General Conformity
applicability. Three comments were received, one in support of the
proposed de minimis level, and two other comments suggesting lower
levels. Responses to these comments follow.
A. De Minimis Level for Prescribed Burning
1. Comment
A commenter stated that ``leaving out prescribed burning with its
release of fine particulate matter and mercury is absolutely wrong.''
In addition, the commenter stated that he does not understand why EPA
does not address the way certain Federal agencies, like the National
Park Service, engage in prescribed burning on Federal lands and that
EPA needs to address this ``wrongdoing.''
2. Response
To the extent that this comment is stating that prescribed burning
should be regulated as an activity by the General Conformity rule, such
comment is beyond the scope of this action since this rulemaking does
not concern any substantive requirements for any Federal activities nor
does it address ways in which a Federal activity such as prescribed
burning can be found to conform to an applicable implementation plan.
EPA is currently considering whether to promulgate proposed revisions
to the General conformity rule, including ways in which activities can
be found to conform, and if such a rule were proposed in the future,
EPA encourages the commenter to submit comments at that time. To the
extent that the commenter intended his comment to mean that EPA should
not promulgate a de minimis level for prescribed burning activities,
EPA notes that the General Conformity regulations are not structured to
provide differing de minimis levels for different types of Federal
activities. The EPA has proposed uniform de minimis emission rates for
all Federal activities independent of their source because pollution is
pollution, whether caused by prescribed burning or any other Federal
activity. In other words, all of the de minimis levels are based on
levels of pollution impact from all types of federal activities,
whatever they may be. Prescribed burning activities do not produce any
new type of pollution which would necessitate a different type of de
minimis level or no level at all. The EPA believes that the General
Conformity rule's de minimis thresholds should provide for the uniform
treatment of air pollution emissions regardless of their source.
B. De Minimis Level for Direct PM2.5 Emissions
1. Comment
One commenter suggested lower de minimis levels for directly
emitted PM2.5. The commenter proposed that the de minimis
level for emissions of direct PM2.5 should be set
significantly lower than 100 tons per year--in the range of 25-50 tons
per year in areas that are likely to attain the PM2.5 NAAQS
within 5 years, and a level of 10-25 tons per year in areas that are
likely to take more than five years to achieve the NAAQS.
2. Response
The intent of the de minimis levels is to assure that the General
Conformity rule covers only major Federal actions that are major
sources of emission. The Act in section 302(j) defines a major source
as meaning ``any stationary facility or source of air pollutants which
directly emits, or has the potential to emit, one hundred tons per year
or more of any air pollutant (including any major emitting facility or
source of fugitive emissions of any such pollutant, as determined by
rule by the Administrator).'' This definition provides a Congressional
threshold for a major source. As discussed in the preamble of the
proposal, EPA is using the same methodology to set the de minimis level
for PM2.5 as it did for the other NAAQS pollutants (with the
exception of lead). This methodology is based on a level found in
statute as defining major stationary sources of air pollution. The
commenter suggests a sliding scale for the direct PM2.5 de
minimis level based on the severity of the attainment problem which is
akin to a classification scheme. A classification scheme was
constructed for PM10 non-attainment areas and the Act
provides for a lower major sources definition threshold of 70 tons per
year in section 189(b)(3) for PM10 areas classified as
serious. The EPA designated all PM2.5 nonattainment areas
under subpart 1 of the Act. Subpart 1 does not mandate a classification
scheme for nonattainment areas based on the severity of an area's air
quality problem. Therefore, there is no basis for EPA to determine in
this rulemaking what would constitute a serious PM2.5
nonattainment problem and set different de minimis levels based on
seriousness of the air quality problem. Absent a classification scheme
for PM2.5, EPA does not believe that basing the de minimis
levels on differing air quality levels is warranted at this time. If a
different classification approach is taken in the PM2.5
implementation rule, we may consider addressing this issue differently.
IV. Summary of the Action
The EPA is revising the tables in sub-paragraphs (b)(1) and (b)(2)
of 40 CFR 51.853 and 40 CFR 93.153 by adding the de minimis emission
levels for PM2.5. The EPA is establishing the proposed 100
tons per year as the de minimis emission level for direct
PM2.5 and each of its precursors as defined in revised
section 91.152. The precursors for the purposes of general conformity
applicability are, VOC's and ammonia emissions are only considered
PM2.5 precursors in nonattainment areas where either a State
or EPA has made a finding that they significantly contribute to the
PM2.5 problem in a given area or to other downwind air
quality concerns; NOX emissions are considered a
PM2.5 precursor unless the State and EPA makes a finding
that NOX emissions from sources in the State do not
significantly contribute to the PM2.5 problem in a given
area or to other downwind air quality concerns; and SO2
emissions are always considered a PM2.5 precursor. Since EPA
did not propose any classifications for the PM2.5
nonattainment areas, EPA is not
[[Page 40424]]
establishing PM2.5 de minimis emission levels for higher
classified nonattainment areas. This action will maintain the
consistency between the conformity de minimis emission levels and the
size of a major stationary source under the Act (section 302(j) and the
NSR program (70 FR 65984). These levels are also consistent with the
levels proposed for VOC and NOX emissions in subpart 1 areas
under the 8-hour ozone implementation strategy (68 FR 32843).
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
regulation that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that these revisions to the regulations are considered a
``significant regulatory action'' because although they do not impose
any additional requirements on other Federal agencies, they do affect
the process Federal agencies use to determine applicability of existing
requirements. As such, this action was submitted to OMB for review.
B. Paperwork Reduction Act
This action does not directly impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., on non-Federal entities. The General Conformity
Regulations require Federal agencies to determine that their actions
conform to the SIPs or TIPs. However, depending upon how Federal
agencies implement the regulations, non-Federal entities seeking
funding or approval from those Federal agencies may be required to
submit information to that agency.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an Agency to
prepare a regulatory flexibility analysis of any regulation subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the Agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's action on small
entities, small entity is defined as:
1. A small business that is a small industrial entity as defined in
the U.S. Small Business Administration (SBA) size standards. (See 13
CFR 121.201);
2. A governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and
3. A small organization that is any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's regulation
revisions, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Today's
action will not impose any requirements on small entities. The General
Conformity Regulations require Federal agencies to conform to the
appropriate State, Tribal or Federal implementation plan for attaining
clean air.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final regulations with ``Federal mandates''
that may result in expenditures to State, local, and Tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any 1 year. Before promulgating an EPA regulation
for which a written statement is needed, section 205 of the UMRA
generally requires EPA to identify and consider a reasonable number of
regulatory alternatives and to adopt the least costly, most cost-
effective or least burdensome alternative that achieves the objectives
of the regulation. The provisions of section 205 do not apply when they
are inconsistent with applicable law. Moreover, section 205 allows EPA
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final regulations an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory actions with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
The EPA has determined that these revisions to the regulations do
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and Tribal governments, in the
aggregate, or the private sector in any 1 year. Thus, today's
regulation revisions are not subject to the requirements of sections
202 and 205 of the UMRA.
The EPA has determined that these regulation revisions contain no
[[Page 40425]]
regulatory requirements that may significantly or uniquely affect small
governments, including Tribal governments.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255; August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This action does not have Federalism implications. The regulations
will 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. Previously, EPA
determined the costs to States to implement the General Conformity
Regulations to be less than $100,000 per year. Thus, Executive Order
13132 does not apply to these regulation revisions.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This determination is stated
below.
These regulation revisions do not have Tribal implications as
defined by Executive Order 13175. They do not have a substantial direct
effect on one or more Indian Tribes, since no Tribe has to demonstrate
conformity for their actions. Furthermore, these regulation revisions
do not affect the relationship or distribution of power and
responsibilities between the Federal government and Indian Tribes. The
CAA and the Tribal Air Rule establish the relationship of the Federal
government and Tribes in developing plans to attain the NAAQS, and
these revisions to the regulations do nothing to modify that
relationship. Because these regulation revisions do not have Tribal
implications, Executive Order 13175 does not apply.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
These revisions to the regulations are not subject to Executive
Order 13045 because they are not economically significant as defined in
Executive Order 12866 and because EPA does not have reason to believe
the environmental health or safety risk addressed by the General
Conformity Regulations present a disproportionate risk to children. The
General Conformity Regulations ensure that Federal agencies comply with
the SIP, TIP or FIP for attaining and maintaining the NAAQS.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
These revisions to the regulations are not considered a
``significant energy action'' as defined in Executive Order 13211,
``Actions That Significantly Affect Energy Supply, Distribution, or
Use,'' (66 FR 28355, May 22, 2001) because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. The VCS are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
VCS bodies. The NTTAA directs EPA to provide Congress, through OMB,
explanations when the Agency decides not to use available and
applicable VCS.
This revision to the regulations does not involve technical
standards. Therefore, EPA is not considering the use of any VCS.
However, EPA will encourage the Federal agencies to consider the
use of such standards, where appropriate, in the implementation of the
General Conformity Regulations.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that each Federal agency make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health environmental effects of its programs, policies, and activities
on minorities and low-income populations.
The EPA believes that these revisions to the regulations should not
raise any environmental justice issues. The revisions to the
regulations would, if promulgated revise procedures for other Federal
agencies to follow. They do not disproportionately affect the health or
safety of minority or low income populations. The EPA encourages other
agencies to carefully consider and address environmental justice in
their implementation of their evaluations and conformity
determinations.
K. Congressional Review Act
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 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. It requires that 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). Therefore this rule
will be effective July 17, 2006.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedures,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
[[Page 40426]]
40 CFR Part 93
Environmental protection, Administrative practice and procedures,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Dated: July 11, 2006.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be amended as follows:
PART 51--[AMENDED]
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart W--[Amended]
0
2. Section 51.852 is amended by removing the ``; and'' at the end of
paragraph (1) and adding a period in its place and adding paragraph (3)
to definition of ``Precursors of criteria pollutant'' to read as
follows:
Sec. 51.852 Definitions.
* * * * *
Precursors of a criteria pollutant are:
* * * * *
(3) For PM2.5:
(i) Sulfur dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(ii) Nitrogen oxides in all PM2.5 nonattainment and
maintenance areas unless both the State and EPA determine that it is
not a significant precursor, and
(iii) Volatile organic compounds (VOC) and ammonia (NH3)
only in PM2.5 nonattainment or maintenance areas where
either the State or EPA determines that they are significant
precursors.
* * * * *
0
3. Section 51.853 is amended by revising paragraph (b) to read as
follows:
Sec. 51.853 Applicability.
* * * * *
(b) For Federal actions not covered by paragraph (a) of this
section, a conformity determination is required for each criteria
pollutant or precursor where the total of direct and indirect emissions
of the criteria pollutant or precursor in a nonattainment or
maintenance area caused by a Federal action would equal or exceed any
of the rates in paragraphs (b)(1) or (2) of this section.
(1) For purposes of paragraph (b) of this section, the following
rates apply in nonattainment areas (NAA's):
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
Serious NAA's............................................ 50
Severe NAA's............................................. 25
Extreme NAA's............................................ 10
Other ozone NAA's outside an ozone transport region...... 100
Other ozone NAA's inside an ozone transport region:
VOC...................................................... 50
NOX...................................................... 100
Carbon monoxide: All NAA's................................... 100
SO2 or NO2: All NAA's........................................ 100
PM-10:
Moderate NAA's........................................... 100
Serious NAA's............................................ 70
PM2.5:
Direct emissions......................................... 100
SO2...................................................... 100
NOX (unless determined not to be a significant precursor) 100
VOC or ammonia (if determined to be significant 100
precursors).............................................
Pb: All NAA's................................................ 25
------------------------------------------------------------------------
(2) For purposes of paragraph (b) of this section, the following
rates apply in maintenance areas:
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
All Maintenance Areas.................................... 100
Ozone (VOC's):
Maintenance areas inside an ozone transport region....... 50
Maintenance areas outside an ozone transport region...... 100
Carbon monoxide: All Maintenance Areas....................... 100
PM-10: All Maintenance Areas................................. 100
PM2.5:
Direct emissions......................................... 100
SO2...................................................... 100
NOX (unless determined not to be a significant precursor) 100
VOC or ammonia (if determined to be significant 100
precursors).............................................
Pb: All Maintenance Areas.................................... 25
------------------------------------------------------------------------
[[Page 40427]]
* * * * *
PART 93--[AMENDED]
0
4. The authority citation for part 93 continues to read as follows:
Authority: 21 U.S.C. 101; 42 U.S.C. 7401-7671q.
Subpart B--[Amended]
0
5. Section 93.152 is amended by removing the ``; and'' at the end of
paragraph (1) and adding a period in its place and adding paragraph (3)
to definition of ``Precursors of criteria pollutant'' to read as
follows:
Sec. 93.152 Definitions.
* * * * *
Precursors of a criteria pollutant are:
* * * * *
(3) For PM2.5:
(i) Sulfur dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(ii) Nitrogen oxides in all PM2.5 nonattainment and
maintenance areas unless both the State and EPA determine that it is
not a significant precursor, and
(iii) Volatile organic compounds (VOC) and ammonia (NH3)
only in PM2.5 nonattainment or maintenance areas where
either the State or EPA determines that they are significant
precursors.
* * * * *
0
6. Section 93.153 is amended by revising paragraph (b) to read as
follows:
Sec. 93.153 Applicability.
* * * * *
(b) For Federal actions not covered by paragraph (a) of this
section, a conformity determination is required for each criteria
pollutant or precursor where the total of direct and indirect emissions
of the criteria pollutant or precursor in a nonattainment or
maintenance area caused by a Federal action would equal or exceed any
of the rates in paragraphs (b)(1) or (2) of this section.
(1) For purposes of paragraph (b) of this section, the following
rates apply in nonattainment areas (NAA's):
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (VOC's or NOX):
Serious NAA's.............................................. 50
Severe NAA's............................................... 25
Extreme NAA's.............................................. 10
Other ozone NAA's outside an ozone transport region........ 100
Other ozone NAA's inside an ozone transport region:
VOC........................................................ 50
NOX........................................................ 100
Carbon monoxide: All NAA's................................... 100
SO2 or NO2: All NAA's........................................ 100
PM-10:
Moderate NAA's............................................. 100
Serious NAA's.............................................. 70
PM2.5:
Direct emissions........................................... 100
SO2........................................................ 100
NOX (unless determined not to be a significant precursor).. 100
VOC or ammonia (if determined to be significant precursors) 100
Pb: All NAA's................................................ 25
------------------------------------------------------------------------
(2) For purposes of paragraph (b) of this section, the following
rates apply in maintenance areas:
------------------------------------------------------------------------
Tons/year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
All Maintenance Areas...................................... 100
Ozone (VOC's):
Maintenance areas inside an ozone transport region......... 50
Maintenance areas outside an ozone transport region........ 100
Carbon monoxide: All Maintenance Areas....................... 100
PM-10: All Maintenance Areas................................. 100
PM2.5:
Direct emissions........................................... 100
SO2........................................................ 100
NOX (unless determined not to be a significant precursor).. 100
VOC or ammonia (if determined to be significant precursors) 100
Pb: All Maintenance Areas.................................... 25
------------------------------------------------------------------------
* * * * *
[FR Doc. E6-11241 Filed 7-14-06; 8:45 am]
BILLING CODE 6560-50-P