[Federal Register Volume 79, Number 216 (Friday, November 7, 2014)]
[Rules and Regulations]
[Pages 66291-66294]
[FR Doc No: 2014-26451]

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ENVIRONMENTAL PROTECTION AGENCY

 40 CFR Part 52

[EPA-R10-OAR-2014-0343; FRL-9918-84-Region 10]

Approval and Promulgation of Implementation Plans; Washington:
Nonattainment New Source Review

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving
revisions to the Washington State Implementation Plan (SIP) that were
submitted by the Department of Ecology (Ecology) on

January 27, 2014. These revisions update the preconstruction permitting
regulations for large industrial (major source) facilities located in
designated nonattainment areas, referred to as the Nonattainment New
Source Review (major nonattainment NSR or major NNSR) program. While
these revisions update Ecology's major NNSR program generally, the most
significant change is the incorporation of regulations to implement
major NNSR for fine particulate matter, particles with an aerodynamic
diameter less than or equal to a nominal 2.5 micrometers
(PM2.5). The major NNSR program is designed to ensure that
major stationary sources of air pollution are constructed or modified
in a manner that is consistent with attainment and maintenance of the
National Ambient Air Quality Standards (NAAQS).

DATES: This final rule is effective on December 8, 2014.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R10-OAR-2014-0343. All documents in the docket are
listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information (CBI) or other information the disclosure of which
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 Programs Unit, Office of Air Waste and Toxics, EPA
Region 10, 1200 Sixth Avenue, Seattle, WA, 98101. The EPA requests that
if at all possible, you contact the individual listed in the FOR
FURTHER INFORMATION CONTACT section to view the hard copy of the
docket. You may view the hard copy of the docket Monday through Friday,
8:00 a.m. to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt at<PHONE_NUMBER>,
<EMAIL_ADDRESS>or by using the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:

    (i) The words or initials ``Act'' or ``CAA'' mean or refer to
the Clean Air Act, unless the context indicates otherwise.
    (ii) The words ``EPA'', ``we'', ``us'' or ``our'' mean or refer
to the Environmental Protection Agency.
    (iii) The initials ``SIP'' mean or refer to State Implementation
Plan.
    (iv) The words ``Washington'' and ``State'' mean the State of
Washington.

Table of Contents

I. Background Information
II. Final Action
III. Statutory and Executive Orders Review

I. Background Information

    On January 27, 2014, Washington submitted revisions updating the
general air quality regulations that apply to sources within Ecology's
jurisdiction, including the major nonattainment NSR permitting program.
On July 25, 2014, the EPA proposed to approve the major nonattainment
NSR-related provisions contained in the submittal (79 FR 43345). An
explanation of the CAA requirements, a detailed explanation of the
revisions, and the EPA's reasons for approval were provided in the
notice of proposed rulemaking, and will not be restated here. The
public comment period for this proposed rule ended on August 25, 2014.
We did not receive any comments on the proposal.

II. Final Action

    The EPA is approving the major nonattainment NSR-related provisions
listed in the table below. As discussed in the proposed rulemaking, the
EPA intends to take action on the remaining provisions included in
Ecology's January 27, 2014 submittal, related to the Prevention of
Significant Deterioration and visibility permitting requirements for
major stationary sources, in a separate, future action. The EPA is also
approving the general air quality regulations contained in Washington
Administrative Code (WAC) 173-400-110 through-112 and WAC 173-400-171,
which were previously approved by the EPA for purposes of minor new
source review, as consistent with the EPA's requirements for major
nonattainment NSR. For more information see 79 FR 59653, October 3,
2014.
    At this time, the EPA's approval of the major nonattainment NSR-
related provisions listed in the table below is limited to only those
counties or sources where Ecology has direct jurisdiction. This
approval excludes sources subject to Energy Facility Site Evaluation
Council (EFSEC) or local clean air agency jurisdiction, as described in
the proposed rulemaking. The counties where Ecology has direct
jurisdiction are: Adams, Asotin, Chelan, Columbia, Douglas, Ferry,
Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend
Oreille, San Juan, Stevens, Walla Walla, and Whitman. The EPA also
notes that under the SIP-approved provisions of WAC 173-405-012, WAC
173-410-012, and WAC 173-415-012, Ecology has statewide, direct
jurisdiction for kraft pulping mills, sulfite pulping mills, and
primary aluminum plants, including the RockTenn facility located in the
Tacoma-Pierce County fine particulate matter nonattainment area.

                         Washington State Department of Ecology Regulations for Approval
----------------------------------------------------------------------------------------------------------------
                                                                    State
            State citation                   Title/subject        effective               Explanation
                                                                     date
----------------------------------------------------------------------------------------------------------------
                       Chapter 173-400 WAC, General Regulations for Air Pollution Sources
----------------------------------------------------------------------------------------------------------------
173-400-131..........................  Issuance of Emission           4/1/11  ..................................
                                        Reduction Credits
173-400-136..........................  Use of Emission              12/29/12  ..................................
                                        Reduction Credits (ERC)
173-400-800..........................  Major Stationary Source        4/1/11  ..................................
                                        and Major Modification
                                        in a Nonattainment Area
173-400-810..........................  Major Stationary Source      12/29/12  ..................................
                                        and Major Modification
                                        Definitions
173-400-820..........................  Determining if a New         12/29/12  ..................................
                                        Stationary Source or
                                        Modification to a
                                        Stationary Source is
                                        Subject to these
                                        Requirements

173-400-830..........................  Permitting Requirements      12/29/12  ..................................
173-400-840..........................  Emission Offset              12/29/12  ..................................
                                        Requirements
173-400-850..........................  Actual Emissions             12/29/12  ..................................
                                        Plantwide Applicability
                                        Limitation (PAL)
173-400-860..........................  Public Involvement             4/1/11  ..................................
                                        Procedures
----------------------------------------------------------------------------------------------------------------

III. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve State choices,
provided that they meet the criteria of the Clean Air Act. Accordingly,
this action merely approves State law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because this action does not involve technical standards; and
     does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land in
Washington except for as specifically noted below and is also not
approved to apply in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law. Washington's SIP is approved to apply on non-trust land within the
exterior boundaries of the Puyallup Indian Reservation, also known as
the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement
Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and
local agencies in Washington authority over activities on non-trust
lands within the 1873 Survey Area. Consistent with EPA policy, the EPA
nonetheless provided a consultation opportunity to the Puyallup Tribe
in a letter dated February 25, 2014. The EPA did not receive a request
for consultation.
    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. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 6, 2015. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: October 22, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.

    For the reasons stated in the preamble, 40 CFR part 52 is amended
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart WW--Washington

0
2. Section 52.2470 is amended in paragraph (c), table 2, by:
0
a. Adding in numerical order entries for 173-400-131, 173-400-136, and
173-400-800 through 173-400-860.
0
b. Revising the footnote at the bottom of the table.
    The additions and revisions read as follows:

Sec.  52.2470  Identification of plan.

* * * * *
    (c) * * *

   Table 2--Additional Regulations Approved for Washington Department of Ecology (Ecology) Direct Jurisdiction
 [Applicable in Adams, Asotin, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat,
   Lincoln, Okanogan, Pend Oreille, San Juan, Stevens, Walla Walla, and Whitman counties, excluding facilities
     subject to Energy Facilities Site Evaluation Council (EFSEC) jurisdiction. These regulations also apply
statewide for facilities subject to the applicability sections of WAC 173-405-012, WAC 173-410-012, and WAC 173-
                                                    415-012]
----------------------------------------------------------------------------------------------------------------
                                                            State
          State citation               Title/Subject      effective     EPA Approval date       Explanations
                                                             date
----------------------------------------------------------------------------------------------------------------
         Washington Administrative Code, Chapter 173-400--General Regulations for Air Pollution Sources
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
173-400-131......................  Issuance of Emission       4/1/11  11/7/14[Insert        ....................
                                    Reduction Credits.                 Federal Register
                                                                       citation].
173-400-136......................  Use of Emission          12/29/12  11/7/14[Insert        ....................
                                    Reduction Credits                  Federal Register
                                    (ERC).                             citation].
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
173-400-800......................  Major Stationary           4/1/11  11/7/14[Insert        ....................
                                    Source and Major                   Federal Register
                                    Modification in a                  citation].
                                    Nonattainment Area.
173-400-810......................  Major Stationary         12/29/12  11/7/14[Insert        ....................
                                    Source and Major                   Federal Register
                                    Modification                       citation].
                                    Definitions.
173-400-820......................  Determining if a New     12/29/12  11/7/14[Insert        ....................
                                    Stationary Source                  Federal Register
                                    or Modification to                 citation].
                                    a Stationary Source
                                    is Subject to these
                                    Requirements.
173-400-830......................  Permitting               12/29/12  11/7/14[Insert        ....................
                                    Requirements.                      Federal Register
                                                                       citation].
173-400-840......................  Emission Offset          12/29/12  11/7/14[Insert        ....................
                                    Requirements.                      Federal Register
                                                                       citation].
173-400-850......................  Actual Emissions         12/29/12  11/7/14[Insert        ....................
                                    Plantwide                          Federal Register
                                    Applicability                      citation].
                                    Limitation (PAL).
173-400-860......................  Public Involvement         4/1/11  11/7/14[Insert        ....................
                                    Procedures.                        Federal Register
                                                                       citation].
----------------------------------------------------------------------------------------------------------------
* The EPA's approval of the WAC 173-400-110 through -113, 173-400-036, 173-400-171, and 173-400-560 is not a
  determination that these regulations meet requirements for a SIP-approved Prevention of Significant
  Deterioration permitting program (40 CFR 51.166) or a SIP-approved visibility program (40 CFR 51.307) for
  major sources.

* * * * *
[FR Doc. 2014-26451 Filed 11-6-14; 8:45 am]
BILLING CODE 6560-50-P


facility such as an airport and would be considered to be at the ``same
facility''. However, military operations at a civilian airport would
not be considered to be at the ``same facility''. Therefore, an airport
could install equipment to supply power and conditioned air to
airplanes parked at a gate to reduce the use of diesel generators and
auxiliary power units at an airport terminal. Those reductions could be
considered to be implemented as part of an airport expansion project to
improve the terminal and thus would be at the ``same facility.''
    Since the general conformity program is based on annual emissions,
EPA is proposing to require that the credits be used in the same year
as they are generated. Such a restriction would ensure consistency with
the other parts of the general conformity program. This does not mean
that an emission reduction strategy cannot produce an

annual stream of credits, but does mean that the reduction credits
cannot be carried over to another year.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a significant regulatory action because it may interfere with
actions taken or planned by other Federal agencies. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.

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.
    Although the present proposed revisions to the regulations do not
establish any specific new information collection burden, it would
establish alternative voluntary approaches that may result in a
different burden. For example, the proposed facility-wide emission
budget would allow Federal agencies or operators of facilities subject
to the General Conformity Requirements such as commercial service
airports to work with the State, Tribe or local air quality agency to
develop an emission budget for the facility. The State, Tribe or local
agencies and Federal agencies or third party facility operators would
incur the burden of developing the budget. However, those entities
would be relieved of the burden of conducting and reviewing some, if
not all, the general conformity determinations for the facility.
    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 (RFA) 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 these proposed regulation
revisions 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.); (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 impact of these proposed revisions
to the regulations on small entities, I certify that this action will
not have a significant economic impact on a substantial number of small
entities. This proposal 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. We continue to be interested in the
potential impacts of the regulations on small entities and welcome
comments on issues related to related to such impacts.

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
proposals 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, these proposed
regulation revisions are not subject to the requirements of section 202
and 205 of the UMRA.
    The EPA has determined that these proposed regulation revisions
contain no regulatory requirements that may significantly or uniquely
affect small governments, including Tribal governments because these
regulations affect Federal agencies only. Nonetheless, EPA carried out
consultations with governmental entities affected by this regulation.

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 are 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. It 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 proposed regulation revisions.
    Although section 6 of Executive Order 13132 does not apply to these
proposed regulation revisions, EPA held meetings with the Federal
agencies and organizations that prepare technical support for Federal
agencies determinations at which it described the approaches it was
considering and provided an opportunity for States, Federal agencies
and other stakeholders to comment on the options being considered.
    In spirit of Executive Order 13121 and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA is soliciting comments on this proposal from State and local
officials.

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.
    These proposed regulation revisions do not have Tribal implications
as specified in 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, except for
allowing the Tribes to comment on draft conformity determinations,
these proposed 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 proposed regulation
revisions do not have Tribal implications, Executive Order 13175 does
not apply.
    Although Executive Order 13175 does not apply to these regulations,
EPA did consult with some Tribal officials in developing these proposed
regulations revisions and encouraged Tribal input at an early stage.
The EPA specifically solicits additional comment on the proposed
revisions to the regulations from Tribal officials.

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 proposed 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. The NAAQS are promulgated to protect the health and welfare
of sensitive populations, including children.
    The public is invited to submit or identify peer-reviewed studies
and data, of which the Agency may not be aware, that assessed results
of early life exposure to criteria air pollutant emissions regulated by
this rule.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    These revisions to the regulations are not subject to Executive
Order 13211, Actions That Significantly Affect Energy Supply,
Distribution, or Use, (66 FR 28355, May 22, 2001) because they are not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse energy effects.

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.
    These proposed revisions to the regulations do not involve
technical standards. Therefore, EPA is not considering the use of any
VCS. EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this proposed rule will not have

disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The proposed revisions to the regulations would, if
promulgated, revise procedures for other Federal agencies to follow and
does not relax the control measures on emission sources. As such, they
do not 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.

VII. Statutory Authority

Clean Air Act Section 176(c) (42 U.S.C. 7506)

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.

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: December 20, 2007.
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:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS

    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]

    2. Remove and reserve Sec.  51.850 and Sec. Sec.  51.852 through
51.860.
    3. Section 51.851 is revised to read as follows:

Sec.  51.851  State implementation plan (SIP) or Tribal implementation
plan (TIP) revision.

    (a) A State or eligible Tribe (a Federally recognized Tribal
government determined to be eligible to submit a TIP under 40 CFR 49.6)
may submit to the Environmental Protection Agency (EPA) a revision to
its applicable implementation plan which contains criteria and
procedures for assessing the conformity of Federal actions to the
applicable implementation plan, consistent with this section and 40 CFR
part 93, subpart B.
    (b) Until EPA approves the conformity implementation plan revision
permitted by this section, Federal agencies shall use the provisions of
40 CFR part 93, subpart B in addition, to any existing applicable State
or Tribal requirements, to demonstrate conformity with the applicable
SIP or TIP as required by section 176(c) of the CAA (42 U.S.C. 7506).
    (c) Following EPA approval of the State or Tribal conformity
provisions (or a portion thereof) in a revision to the applicable SIP,
conformity determinations shall be governed by the approved (or
approved portion of) State criteria and procedures. The Federal
conformity regulations contained in 40 CFR part 93, subpart B would
apply only for the portion, if any, of the State's or Tribe's
conformity provisions that is not approved by EPA.
    (d) The State or Tribal conformity implementation plan criteria and
procedures cannot be any less stringent than the requirements in 40 CFR
part 93, subpart B.
    (e) A State's or Tribe's conformity provisions may contain criteria
and procedures more stringent than the requirements described in this
subpart and part 93, subpart B, only if the State's or Tribe's
conformity provisions apply equally to non-Federal as well as Federal
entities.
    (f) In its SIP or TIP, the State or Tribe may identify a list of
Federal actions or type of emissions that it presumes will conform. The
State or Tribe may place whatever limitations on that list that it
deems necessary. The State or Tribe must demonstrate that the action
will not interfere with attainment or maintenance of the standard,
meeting the reasonable further progress milestones or other
requirements of the Clean Air Act. For example, the State may identify
the emissions from a certain type and size of construction activities
that it presumes will conform. Federal agencies can use the list to
determine their ``presumed to conform'' emissions.
    (g) Any previously applicable SIP or TIP requirements relating to
conformity remain enforceable until EPA approves the revision to the
SIP or TIP to specifically remove them.

PART 93--DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR
FEDERAL IMPLEMENTATION PLANS

    4. The authority citation for part 93 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart B--[Amended]

    5. Section 93.150 is amended by removing and reserving paragraph
(c) and by adding paragraph (e) to read as follows:

Sec.  93.150  Prohibition.

* * * * *
    (e) If an action would result in emissions originating in more than
one nonattainment or maintenance area, the conformity must be evaluated
for each area separately.
    6. Section 93.151 is revised to read as follows:

Sec.  93.151  State implementation plan (SIP) revision.

    The provisions and requirements of this subpart to demonstrate
conformity required under section 176(c) of the Clean Air Act (CAA)
apply to all Federal actions in designated nonattainment and
maintenance areas where EPA has not approved the SIP required under 40
CFR 51.851. When EPA approves a State's conformity provisions (or a
portion thereof) in a revision to an applicable implementation plan, a
conformity evaluation is governed by the approved (or approved portion
of the) State criteria and procedures. The Federal conformity
regulations contained in this subpart apply only for the portions, if
any, of the State's conformity provisions that are not approved by EPA.
In addition, any previously applicable implementation plan conformity
requirements remain enforceable until the EPA approves the revision to
the applicable SIP to specifically include the revised requirements or
remove requirements.
    7. Section 93.152 is amended as follows:
    a. Add the definition for ``Applicability analysis.''
    b. Revise the definition of ``Applicable implementation plan or
applicable SIP.''
    c. Revise the definition for ``Areawide air quality modeling
analysis.''
    d. Add the following definitions in alphabetical order:
``Confidential business information,'' ``Conformity determinations,''
``Conformity

evaluations,'' ``Continuing program responsibility,'' and ``Continuous
program to implement.''
    e. Revise the definition of ``Direct emissions.''
    f. Add a new definition for ``Emission inventory.''
    g. Remove the definition for ``Emissions that a Federal agency has
a continuing program responsibility for.''
    h. Revise the definition of ``EPA.''
    i. Revise the definition of ``Indirect Emissions.''
    j. Revise the definition of ``Local air quality modeling
analysis.''
    k. Revise the definitions for ``Maintenance area'' and
``Metropolitan Planning Organization (MPO).''
    l. Add in alphabetical order a definition for ``Mitigations
measure.''
    m. Revise the definition for ``National ambient air quality
standards''.
    n. In the definitions for ``Precursors of a criteria pollutant''
revise paragraphs (3)(i), (3)(ii) and (3)(iii).
    o. Revise the definition for ``Reasonably foreseeable emissions.''
    p. Remove the definition for ``Regionally significant action.''
    q. Add the following definitions: ``Restricted information.''
    r. Add in alphabetical order the definitions for ``Take or start
the Federal action'' and ``Tribal implementation plan (TIP).''
    The additions and revisions read as follows:

Sec.  93.152  Definitions.

* * * * *
    Applicability analysis is the process of determining if your
Federal action must be supported by a conformity determination.
    Applicable implementation plan or applicable SIP means the portion
(or portions) of the SIP or most recent revision thereof, which has
been approved under section 110(k) of the Act, a Federal implementation
plan promulgated under section 110(c) of the Act, or a plan promulgated
or approved pursuant to section 301 (d) of the Act (Tribal
implementation plan or TIP) and which implements the relevant
requirements of the Act.
    Areawide air quality modeling analysis means an assessment on a
scale that includes the entire nonattainment or maintenance area using
an air quality dispersion model or photochemical grid model to
determine the effects of emissions on air quality, for example, an
assessment using EPA's community multilayer air quality (CMAQ) model.
* * * * *
    Confidential business information (CBI) is information that has
been determined by a Federal agency, in accordance with its applicable
regulations, to be a trade secret--or commercial or financial
information obtained from a person and privileged or confidential; it
is exempt from required disclosure under the Freedom of Information Act
(5 U.S.C.552(b)(4)).
    Conformity determination is the evaluation made after an
applicability analysis is completed that a Federal action conforms to
the applicable implementation plan and meets the requirements of this
subpart.
    Conformity evaluation is the entire process from the applicability
analysis through the conformity determination demonstrating that the
Federal action conforms to the requirements of this subpart.
    Continuing program responsibility means a Federal agency has
responsibility for emissions caused by:
    (1) Actions it takes itself; or
    (2) Actions of non-Federal entities that the Federal agency, in
exercising its normal programs and authorities, approves, funds,
licenses or permits; provided the agency can impose conditions on any
portion of the action that could affect the emissions.
    Continuous program to implement means that the Federal agency has
started the action identified in the plan and does not stop the actions
for more than an 18-month period, unless it can demonstrate that such a
stoppage was included in the original plan.
* * * * *
    Direct emissions means those emissions of a criteria pollutant or
its precursors that are caused or initiated by the Federal action and
originate in a nonattainment or maintenance area and occur at the same
time and place as the action and are reasonably foreseeable.
* * * * *
    Emission Inventory is a listing of information on the location,
type of source, type and quantity of pollutant emitted as well as other
parameters of the emissions.
* * * * *
    EPA means the U.S. Environmental Protection Agency.
* * * * *
    Indirect emissions means those emissions of a criteria pollutant or
its precursors. For the purposes of this definition, even if a federal
licensing, rulemaking or other approving action is a required initial
step for a subsequent activity that causes emissions, such initial
steps do not mean that a federal agency can practically control any
resulting emissions:
    (1) That are caused or initiated by the Federal action and
originate in the same nonattainment or maintenance area but occur at a
different time or place as the action;
    (2) That are reasonably foreseeable;
    (3) That the agency can practically control; and
    (4) For which the agency has continuing program responsibility.
* * * * *
    Local air quality modeling analysis means an assessment of
localized impacts on a scale smaller than the entire nonattainment or
maintenance area, including, for example, congested roadways on a
Federal facility, which uses an air quality dispersion model, e.g.,
Industrial Source Complex Model or Emission and Dispersion Model
System, to determine the effects of emissions on air quality.
    Maintenance area means an area that was designated as nonattainment
and has been re-designated in 40 CFR part 81 to attainment, meeting the
provisions of section 107(d)(3)(E) of the Act and has a maintenance
plan approved under section 175A of the Act.
* * * * *
    Metropolitan Planning Organization (MPO) means the policy board of
an organization created as a result of the designation process in 23
U.S.C. 134(d).
* * * * *
    Mitigation measure means any method of reducing emissions of the
pollutant or its precursor taken at the location of the Federal action
and used to reduce the impact of the emissions of that pollutant caused
by the action.
* * * * *
    National ambient air quality standards (NAAQS) are 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 (PM-10 and PM2.5), and sulfur
dioxide (SO2).
* * * * *
    Precursors of a criteria pollutant are:
* * * * *
    (3) * * *
    (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.
    Reasonably foreseeable emissions are projected future direct and
indirect emissions that are identified at the time

the conformity determination is made; the location of such emissions is
known and the emissions are quantifiable as described and documented by
the Federal agency based on its own information and after reviewing any
information presented to the Federal agency.
* * * * *
    Restricted Information is information that is privileged or that is
otherwise protected from disclosure pursuant to applicable statutes,
Executive Orders, or regulations. Such information includes, but is not
limited to: Classified national security information, protected
critical infrastructure information, sensitive security information,
and proprietary business information.
    Take or start the Federal action means the date that the Federal
agency signs or approves the permit, license, grant or contract or
otherwise begins the Federal action that requires a conformity
evaluation under this subpart.
* * * * *
    Tribal implementation plan (TIP) means a plan to implement the
national ambient air quality standards adopted by a federally
recognized Indian Tribal government determined to be eligible under 40
CFR 49.9 and the plan has been approved by EPA.
    8. Section 93.153 is amended as follows:
    a. By revising paragraph (a).
    b. By revising paragaraphs (b) introductory text and (b)(1).
    c. By adding paragraph (c)(2)(xxii).
    d. By revising paragraphs (d)(1) and (d)(2).
    e. By revising paragraph (e)(2).
    f. By adding paragraph (e)(3).
    g. By revising paragraph (f).
    h. By revising paragraph (g) introductory text.
    i. By Adding paragraph (g)(3).
    j. By revising paragraphs (h) introductory text, (h)(1), (h)(2),
and (h)(4).
    k. By revising paragraphs (i), (j), and (k).

Sec.  93.153  Applicability.

    (a) Conformity determinations for Federal actions related to
transportation plans, programs and projects developed, funded or
approved under title 23 U.S.C. or 49 U.S.C. Chapter 53 must meet the
procedures and criteria of 40 CFR part 51, subpart T, in lieu of the
procedures set forth in this subpart.
    (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
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 significant                     100
     precursors)...........................................
    VOC or ammonia (if determined to be significant                  100
     precursors)...........................................
Pb: All NAA's..............................................           25
------------------------------------------------------------------------

* * * * *
    (c) * * *
    (2) * * *
    (xxii) Air traffic control activities and adopting approach,
departure and enroute procedures for aircraft operations above 3,000
feet above ground level.
* * * * *
    (d) * * *
    (1) The portion of an action that includes major or minor new or
modified stationary sources that require a permit under the new source
review (NSR) program (section 173 of the Act) or the prevention of
significant deterioration program (title I, part C of the Act).
    (2) Actions in response to emergencies which are typically
commenced on the order of hours or days after the emergency and, if
applicable, which meet the requirements of paragraph (e) of this
section.
* * * * *
    (e) * * *
    (2) For actions which are to be taken after those actions covered
by paragraph (e)(1) of this section, the Federal agency makes a new
determination as provided in paragraph (e)(1) of this section and:
    (i) Provides a draft copy of the written determinations required to
affected EPA Regional office(s), the affected State(s) and/or air
pollution control agencies, and any Federal recognized Indian Tribal
government in the nonattainment or maintenance area. Those
organizations must be allowed 15 days from the beginning of the
extension period to comment on the draft determination, and
    (ii) Within 30 days after making the determination, publish a
notice of the determination by placing a prominent advertisement in a
daily newspaper of general circulation in the area affected by the
action.
    (3) If additional actions are necessary in response to an emergency
or disaster under paragraph (d)(2) of this section beyond the specified
time period in paragraph (e)(2) of this section, a Federal agency can
make a new written determination as described in (e)(2) of this section
for as many 6-month periods as needed, but in no case shall this
exemption extend beyond 3 6-month periods except where an agency:
    (i) provide information to EPA and the State stating that the
conditions that gave rise to the emergency exemption continue to exist
and how such conditions effectively prevent the agency from conducting
a conformity evaluation.
    (ii) [Reserved]
    (f) Notwithstanding other requirements of this subpart, actions
specified by individual Federal agencies that have met the criteria set
forth in either paragraphs (g)(1) (g)(2) or (g)(3) of this section and
the procedures set forth in paragraph (h) of this section are presumed
to conform, except as provided in paragraph (j) of this section.
Actions specified by individual Federal agencies as presumed to conform
may not be used in combination with one another when the total direct
and indirect emissions from the combination of actions would equal or
exceed any of the rates specified in paragraphs (b)(1) or (2) of this
section.
    (g) The Federal agency must meet the criteria for establishing
activities that are presumed to conform by fulfilling the requirements
set forth in either paragraphs (g)(1), (g)(2), or (g)(3) of this
section:
* * * * *
    (3) The Federal agency must clearly demonstrate that the emissions
from the type or category of actions and the amount of emissions from
the action are included in the applicable SIP and the State or local
air quality agencies responsible for the SIP(s) provide written
concurrence that the emissions from the actions along with all other
expected emissions in the area will not exceed the emission budget in
the SIP.

    (h) In addition to meeting the criteria for establishing exemptions
set forth in paragraphs (g)(1) (g)(2) or (g)(3) of this section, the
following procedures must also be complied with to presume that
activities will conform:
    (1) The Federal agency must identify through publication in the
Federal Register its list of proposed activities that are presumed to
conform and the basis for the presumptions. The notice must clearly
identify the type and size of the action that would be presumed to
conform and provide criteria for determining if the type and size
action qualifies it for the presumption;
    (2) The Federal agency must notify the appropriate EPA Regional
Office(s), State and local air quality agencies and, where applicable,
the agency designated under section 174 of the Act and the MPO and
provide at least 30 days for the public to comment on the list of
proposed activities presumed to conform. If the presumed to conform
action has regional or national application (e.g., the action will
cause emission increases in excess of the de minimis levels identified
in paragraph(b) of this section in more than one of EPA's Regions), the
Federal agency, as an alternative to sending it to EPA Regional
Offices, can send the draft conformity determination to U.S. EPA,
Office of Air Quality Planning and Standards;
* * * * *
    (4) The Federal agency must publish the final list of such
activities in the Federal Register.
    (i) Emissions from the following actions are presumed to conform:
    (1) Actions at installations with facility-wide emission budgets
meeting the requirements in Sec.  93.161 provided that the State has
included the emission budget in the EPA approved SIP and the emissions
from the action along with all other emissions from the installation
will not exceed the facility-wide emission budget.
    Alternative 1 for paragraph (i)(2):
    (2) Prescribed fires conducted in accordance with a State certified
smoke management program (SMP) which meets the requirements of EPA's
Air Quality Policy on Wildland and Prescribed Fires.
    Alternative 2 for paragraph (i)(2):
    (2) Prescribed fires conducted in accordance with a State certified
smoke management program (SMP) which meets the requirements of EPA's
Air Quality Policy on Wildland and Prescribed Fires or, in the absence
of a State certified SMP, where the Federal agency has obtained written
assurance from the State prior to the burn that the planned burn
employs State approved basic smoke management practices.
    (3) Emissions for actions that the State identifies in the EPA
approved SIP as presumed to conform.
    (j) Even though an action would otherwise be presumed to conform
under paragraph (f) or (i) of this section, an action shall not be
presumed to conform and the requirements of Sec.  93.150, Sec.  93.151,
Sec. Sec.  93.154 through 93.160 and Sec. Sec.  93.162 through 93.164
shall apply to the action if EPA or a third party shows that the action
would:
    (i) Cause or contribute to any new violation of any standard in any
area;
    (ii) Interfere with provisions in the applicable SIP for
maintenance of any standard;
    (iii) Increase the frequency or severity of any existing violation
of any standard in any area; or
    (iv) Delay timely attainment of any standard or any required
interim emissions reductions or other milestones in any area including,
where applicable, emission levels specified in the applicable SIP for
purposes of:
    (A) A demonstration of reasonable further progress;
    (B) A demonstration of attainment; or
    (C) A maintenance plan.
    (k) The provisions of this subpart shall apply in all nonattainment
and maintenance areas except conformity requirements for newly
designated nonattainment areas are not applicable until 1 year after
the effective date of the final nonattainment designation for each
NAAQS and pollutant in accordance with section 176(c)(6) of the Act.
    9. Section 93.154 is revised to read as follows:

Sec.  93.154  Federal agency conformity responsibility.

    Any department, agency, or instrumentality of the Federal
government taking an action subject to this subpart must make its own
conformity determination consistent with the requirements of this
subpart. In making its conformity determination, a Federal agency must
follow the requirements in Sec. Sec.  93.155 through 93.160 and
Sec. Sec.  93.162 through 93.165 and must consider comments from any
interested parties. Where multiple Federal agencies have jurisdiction
for various aspects of a project, a Federal agency may choose to adopt
the analysis of another Federal agency or develop its own analysis in
order to make its conformity determination.
    10. Section 93.155 is revised to read as follows:

Sec.  93.155  Reporting requirements.

    (a) A Federal agency making a conformity determination under
Sec. Sec.  93.154 through 93.160 and Sec. Sec.  93.162 through 93.164
must provide to the appropriate EPA Regional Office(s), State and local
air quality agencies, any federally-recognized Indian Tribal government
in the nonattainment or maintenance area, and, where applicable,
affected Federal land managers, the agency designated under section 174
of the Act and the MPO a 30-day notice which describes the proposed
action and the Federal agency's draft conformity determination on the
action. If the action has multi-regional or national impacts (e.g., the
action will cause emission increases in excess of the de minimis levels
identified in Sec.  93.153(b) in two or more of EPA's Regions), the
Federal agency, as an alternative to sending it to EPA Regional
Offices, can provide the notice to EPA's Office of Air Quality Planning
and Standards.
    (b) A Federal agency must notify the appropriate EPA Regional
Office(s), State and local air quality agencies, any federally-
recognized Indian Tribal government in the nonattainment or maintenance
area, and, where applicable, affected Federal land managers, the agency
designated under section 174 of the Clean Air Act and the MPO within 30
days after making a final conformity determination under this subpart.
    (c) The draft and final conformity determination shall exclude any
restricted information or confidential business information. The
disclosure of restricted information and confidential business
information shall be controlled by the applicable laws, regulations,
security manuals, or executive orders concerning the use, access, and
release of such materials. Subject to applicable procedures to protect
restricted information from public disclosure, any information or
materials excluded from the draft or final conformity determination or
supporting materials may be made available in a restricted information
annex to the determination for review by Federal and State
representatives who have received appropriate clearances to review the
information.
    11. Section 93.156 is revised to read as follows:

Sec.  93.156  Public participation.

    (a) Upon request by any person regarding a specific Federal action,
a Federal agency must make available, subject to the limitation in
paragraph(e) of this section, for review its draft conformity
determination under Sec.  93.154 with supporting materials which
describe the analytical methods and conclusions relied upon in making

the applicability analysis and draft conformity determination.
    (b) A Federal agency must make public its draft conformity
determination under Sec.  93.154 by placing a notice by prominent
advertisement in a daily newspaper of general circulation in the area
affected by the action and by providing 30 days for written public
comment prior to taking any formal action on the draft determination.
This comment period may be concurrent with any other public
involvement, such as occurs in the National Environmental Policy Act
(NEPA) process. If the action has multi-regional or national impacts
(e.g., the action will cause emission increases in excess of the de
minimis levels identified in Sec.  93.153(b) in two or more of EPA's
Regions), the Federal agency, as an alternative to publishing separate
notices, can publish a notice in the Federal Register.
    (c) A Federal agency must document its response to all the comments
received on its draft conformity determination under Sec.  93.154 and
make the comments and responses available, subject to the limitation in
paragraph (e) of this section, upon request by any person regarding a
specific Federal action, within 30 days of the final conformity
determination.
    (d) A Federal agency must make public its final conformity
determination under Sec.  93.154 for a Federal action by placing a
notice by prominent advertisement in a daily newspaper of general
circulation in the area affected by the action within 30 days of the
final conformity determination. If the action would have multi-regional
or national impacts the Federal agency, as an alternative, can publish
the notice in the Federal Register.
    (e) The draft and final conformity determination shall exclude any
restricted information or confidential business information. The
disclosure of restricted information and confidential business
information shall be controlled by the applicable laws, regulations or
executive orders concerning the release of such materials.
    12. Section 93.157 is revised to read as follows:

Sec.  93.157  Reevaluation of conformity.

    (a) Once a conformity evaluation is completed by a Federal agency,
that determination is not required to be re-evaluated if the agency
has: maintained a continuous program to implement the action; the
determination has not lapsed as specified in paragraph (a) of this
section; or any modification to the action does not result in an
increase in emissions above the levels specified in paragraph (d) of
this section. If a conformity determination is not required for the
action at the time NEPA analysis is completed, the date of the finding
of no significant impact (FONSI) for an Environmental Assessment, a
record of decision (ROD) for an Environmental Impact Statement, or a
categorical exclusion determination can be used as a substitute date
for the conformity determination date.
    (b) The conformity status of a Federal action automatically lapses
5 years from the date a final conformity determination is reported
under Sec.  93.155, unless the Federal action has been completed or a
continuous program to implement the Federal action has been commenced.
    (c) Ongoing Federal activities at a given site showing continuous
progress are not new actions and do not require periodic re-
determinations so long as such activities are within the scope of the
final conformity determination reported under Sec.  93.155 of the NEPA
analysis.
    (d) If the Federal agency determines through the applicability
analysis that a conformity determination was not necessary because the
emissions for the action were below the limits in Sec.  93.153(b) and
changes to the action would result in the total emissions from the
action being above the limits in Sec.  93.153(b), then the Federal
agency must make a conformity determination.
    13. Section 93.158 is amended as follows:
    a. Revising paragraphs (a)(1), (a)(2), (a)(3) introductory text and
(a)(4) introductory text;
    b. Revising paragraph (a)(5) introductory text;
    c. Revising paragraphs (a)(5)(i) introductory text, and
(a)(5)(i)(C), and
    d. Adding (a)(5)(i)(D).
    e. Revising paragraphs (a)(5)(iii), (a)(5)(iv) introductory text;
(a)(5)(iv)(A)(1 ), (a)(5)(iv)(A)(2) and paragraph (a)(5)(iv)(B).

Sec.  93.158  Criteria for determining conformity of general Federal
actions.

    (a) * * *
    (1) For any criteria pollutant or precursor, the total of direct
and indirect emissions from the action are specifically identified and
accounted for in the applicable SIP's attainment or maintenance
demonstration or reasonable further progress milestone or in a
facility-wide emission budget included in a SIP accordance with Sec.
93.161 of this rule;
    (2) For precursors of ozone, nitrogen dioxide, or PM, the total of
direct and indirect emissions from the action are fully offset within
the same nonattainment or maintenance area (or nearby area of equal or
higher classification provided the emissions from that area contribute
to the violations, or have contributed to violations in the past, in
the area with the Federal action) through a revision to the applicable
SIP or a similarly enforceable measure that effects emissions
reductions so that there is no net increase in emissions of that
pollutant;
    (3) For any directly-emitted criteria pollutant, the total of
direct and indirect emissions from the action meets the requirements:
* * * * *
    (4) For CO or directly emitted PM--
* * * * *
    (5) For ozone or nitrogen dioxide, and for purposes of paragraphs
(a)(3)(ii) and (a)(4)(ii) of this section, each portion of the action
or the action as a whole meets any of the following requirements:
    (i) Where EPA has approved a revision to the applicable
implementation plan after the area was designated as nonattainment and
the State makes a determination as provided in paragraph (a)(5)(i)(A)
of this section or where the State makes a commitment as provided in
paragraph (a)(5)(i)(B) of this section:
* * * * *
    (C) Where a Federal agency made a conformity determination based on
a State commitment under paragraph (a)(5)(i)(B) of this section and the
State has submitted a SIP to EPA covering the time period during which
the emissions will occur or is scheduled to submit such a SIP within 18
months of the conformity determination, the State commitment is
automatically deemed a call for a SIP revision by EPA under section
110(k)(5) of the Act, effective on the date of the Federal conformity
determination and requiring response within 18 months or any shorter
time within which the State commits to revise the applicable SIP;
    (D) Where a Federal agency made a conformity determination based on
a State commitment under paragraph (a)(5)(i)(B) of this section and the
State has not submitted a SIP covering the time period of the emissions
will occur or is not scheduled to submit such a SIP within 18 months of
the conformity determination, the State must, within 18 months, submit
to EPA a revision to the existing SIP committing to include the
emissions in the future SIP revision.
* * * * *
    (iii) The action (or portion thereof) fully offsets its emissions
within the same nonattainment or maintenance

area (or nearby area of equal or higher classification provided the
emissions from that area contribute to the violations, or have
contributed to violation in the past, in the area with the Federal
action) through a revision to the applicable SIP or an equally
enforceable measure that effects emissions reductions equal to or
greater than the total of direct and indirect emissions from the action
so that there is no net increase in emissions of that pollutant;
    (iv) Where EPA has not approved a revision to the relevant SIP
since the area was designated or reclassified, the total of direct and
indirect emissions from the action for the future years (described in
Sec.  93.159(d)) do not increase emissions with respect to the baseline
emissions:
    (A) * * *
    (1 ) The most current calendar year with a complete emission
inventory available before an area is designated unless EPA sets
another year, or;
    (2) The emission budget in the applicable SIP;
* * * * *
    (B) The baseline emissions are the total of direct and indirect
emissions calculated for the future years (described in Sec.
93.159(d)) using the historic activity levels (described in paragraph
(a)(5)(iv)(A) of this section) and appropriate emission factors for the
future years; or
* * * * *
    14. Section 93.159 is amended by:
    a. Revising paragraphs (b) introductory text and (b)(1)(ii);
    b. Revising paragraphs (b)(2) and (c) introductory text; and
    c. Removing footnotes 1 and 2,
    d. Revising paragraph (d).
    The revisions and additions read as follows:

Sec.  93.159  Procedures for conformity determinations of general
Federal actions.

* * * * *
    (b) The analyses required under this subpart must be based on the
latest and most accurate emission estimation techniques available as
described below, unless such techniques are inappropriate. If such
techniques are inappropriate, the Federal agency may obtain written
approval from the appropriate EPA Regional Administrator for a
modification or substitution, of another technique on a case-by-case
basis or, where appropriate, on a generic basis for a specific Federal
agency program.
    (1) * * *
    (ii) A grace period of 3 months shall apply during which the motor
vehicle emissions model previously specified by EPA as the most current
version may be used unless EPA announces a longer grace period in the
Federal Register. Conformity analyses for which the analysis was begun
during the grace period or no more than 3 years before the Federal
Register notice of availability of the latest emission model may
continue to use the previous version of the model specified by EPA.
    (2) For non-motor vehicle sources, including stationary and area
source emissions, the latest emission factors specified by EPA in the
``Compilation of Air Pollutant Emission Factors'' (AP-42, http://www.epa.gov/ttn/chiefs/efpac
) must be used for the conformity analysis

unless more accurate emission data are available, such as actual stack
test data from stationary sources which are part of the conformity
analysis.
    (c) The air quality modeling analyses required under this subpart
must be based on the applicable air quality models, data bases, and
other requirements specified in the most recent version of the
``Guideline on Air Quality Models.'' (Appendix W to 40 CFR part 51).
* * * * *
    (d) The analyses required under this subpart must be based on the
total of direct and indirect emissions from the action and must reflect
emission scenarios that are expected to occur under each of the
following cases:
    (1) The attainment year specified in the SIP, or if the SIP does
not specify an attainment year, the latest attainment year possible
under the Act, or
    (2) The last year for which emissions are projected in the
maintenance plan;
    (3) The year during which the total of direct and indirect
emissions from the action is expected to be the greatest on an annual
basis; and
    (4) Any year for which the applicable SIP specifies an emissions
budget.
    15. Section 93.160 is amended as follows:
    a. Revising paragraph (e);
    b. Revising paragraph (f); and
    c. Revising paragraph (g).

Sec.  93.160  Mitigation of air quality impacts.

* * * * *
    (e) When necessary because of changed circumstances, mitigation
measures may be modified so long as the new mitigation measures
continue to support the conformity determination. Any proposed change
in the mitigation measures is subject to the reporting requirements of
Sec.  93.156 and the public participation requirements of Sec.  93.157.
    (f) Written commitments to mitigation measures must be obtained
prior to a positive conformity determination and that such commitments
must be fulfilled.
    (g) After a State revises its SIP to adopt its general conformity
regulations and EPA approves that SIP revision, any agreements,
including mitigation measures, necessary for a conformity determination
will be both State and Federally enforceable. Enforceability through
the applicable SIP will apply to all persons who agree to mitigate
direct and indirect emissions associated with a Federal action for a
conformity determination.
    16. Subpart B is further amended by adding Sec. Sec.  93.161
through 93.165 to read as follows:

Sec.  93.161  Conformity evaluation for Federal installations with
facility-wide emission budgets.

    (a) The State or local agency responsible for implementing and
enforcing the SIP can in cooperation with Federal agencies or third
parties authorized by the agency that operate installations subject to
Federal oversight (e.g., a military base or a commercial service
airport) develop and adopt a facility-wide emission budget to be used
for demonstrating conformity under Sec.  93.158(a)(1). The facility-
wide budget must meet the following criteria:
    (1) Be for a set time period;
    (2) Cover the pollutants or precursors of the pollutants for which
the area is designated nonattainment or maintenance;
    (3) Include specific quantities allowed to be emitted on an annual
or seasonal basis;
    (4) The emissions from the facility along with all other emissions
in the area will not exceed the emission budget for the area;
    (5) Include specific measures to ensure compliance with the budget
such as periodic reporting requirements or compliance demonstration
when the Federal agency is taking an action that would otherwise
require a conformity determination;
    (6) Be submitted to EPA as a SIP revision;
    (7) The SIP revision must be approved by EPA.
    (b) The facility-wide budget developed and adopted in accordance
with paragraph (a) of this section can be revised by following the
requirements in paragraph (a) of this section.
    (c) Total direct and indirect emissions from Federal actions in
conjunction with all other emissions subject to general conformity from
the facility that do not exceed the facility budget adopted pursuant to
paragraph (a) of this section are presumed to conform to the SIP and do
not require a conformity analysis.

    (d) If the total direct and indirect emissions from the Federal
actions in conjunction with the other emissions subject to general
conformity from the facility exceed the budget adopted pursuant to
paragraph (a) of this section, the action must be evaluated for
conformity. A Federal agency can use the compliance with the facility-
wide emissions budget as part of the demonstration of conformity, i.e.,
the agency would have to mitigate or offset the emissions that exceed
the emission budget.
    (e) If the SIP for the area includes a category for construction
emissions, the negotiated budget can exempt construction emissions from
further conformity analysis.

Sec.  93.162  Emissions beyond the time period covered by the SIP.

    If a Federal action would result in total direct and indirect
emissions which would be emitted beyond the time period covered by the
SIP, the Federal agency can:
    (a) Demonstrate conformity with the last emission budget in the
SIP; or
    (b) Request the State to adopt an emissions budget for the action
for inclusion in the SIP. The State must submit a SIP revision to EPA
within 18 months either including the emissions in the existing SIP or
establishing an enforceable commitment to include the emissions in
future SIP revisions based on the latest planning assumptions at the
time of the SIP revision. No such commitment by a State shall restrict
a State's ability require RACT, RACM or any other control measures
within the State's authority to ensure timely attainment of the NAAQS.

Sec.  93.163  Timing of offsets and mitigation measures.

    (a) The emissions reductions from an offset or mitigation measure
used to demonstrate conformity must occur during the same calendar year
as the emission increases from the action except as provided in
paragraph (b) of this section.
    (b) The State may approve reductions in other years provided:
    (1) The reductions are greater than the emission increases by the
following ratios:

(i) Extreme nonattainment areas...............................     1.5:1
(ii) Severe nonattainment areas...............................     1.3:1
(iii) Serious nonattainment areas.............................     1.2:1
(iv) Moderate nonattainment areas.............................    1.15:1
(v) All other areas...........................................     1.1:1

    (2) The time period for completing the emissions reductions must
not exceed twice the period of the emissions.
    (3) The offset or mitigation measure with emissions reductions in
another year will not:
    (i) Cause or contribute to a new violation of any air quality
standard, (ii) Increase the frequency or severity of any existing
violation of any air quality standard, or
    (iii) Delay the timely attainment of any standard or any interim
emissions reductions or other milestones in any area.
    (c) The approval by the State of an offset or mitigation measure
with emissions reductions in another year, does not relieve the State
of any obligation to meet any SIP or Clean Air Act milestone or
deadline.

Sec.  93.164  Inter-precursor mitigation measures and offsets.

    Federal agencies must reduce the same type pollutant as being
increased by the Federal action except the State may approve offsets or
mitigation measures of different precursors of the same criteria
pollutant, if such trades are allowed by a State in a SIP approved new
source review regulation, is technically justified, and has a
demonstrated environmental benefit.

Sec.  93.165  Early emission reduction credit programs at Federal
facilities and installation subject to Federal oversight.

    (a) Federal facilities and installation subject to Federal
oversight can, with the approval of the State agency responsible for
the SIP in that area, create an early emissions reductions credit
program. The Federal agency can create the emission reduction credits
in accordance with the requirements in paragraph (b) of this section
and can used them in accordance with paragraph (c) of this section.
    (b) Creation of emission reduction credits. (1) Emissions
reductions must be quantifiable through the use of standard emission
factors or measurement techniques. If non-standard factors or
techniques to quantify the emissions reductions are used, the Federal
agency must receive approval from the State agency responsible for the
implementation of the SIP and from EPA's Regional Office. The emission
reduction credits do not have to be quantified before the reduction
strategy is implemented, but must be quantified before the credits are
used.
    (2) The emission reduction methods must be consistent with the
applicable SIP attainment and reasonable further progress
demonstrations.
    (3) The emissions reductions can not be required by or credited to
other applicable SIP provisions.
    (4) Both the State and Federal air quality agencies must be able to
take legal action to ensure continued implementation of the emission
reduction strategy. In addition, private citizens must also be able to
initiate action to ensure compliance with the control requirement.
    (5) The emissions reductions must be permanent or the timeframe for
the reductions must be specified.
    (6) The Federal agency must document the emissions reductions and
provide a copy of the document to the State air quality agency and the
EPA regional office for review. The documentation must include a
detailed description of the strategy and a discussion of how it meets
the requirements of paragraphs (b)(1) through (5) of this section.
    (c) Use of emission reduction credits. The emission reduction
credits created in accordance with paragraph (b) of this section can be
used, subject to the following limitations, to reduce the emissions
increase from a Federal action at the facility for the conformity
evaluation.
    (1) If the technique used to create the emission reduction is
implemented at the same facility as the Federal action and could have
occurred in conjunction with the Federal action, then the credits can
be used to reduce the total direct and indirect emissions used to
determine the applicability of the regulation as required in Sec.
93.153 and as offsets or mitigation measures required by Sec.  93.158.
    (2) If the technique used to create the emission reduction is not
implemented at the same facility as the Federal action or could not
have occurred in conjunction with the Federal action, then the credits
cannot be used to reduce the total direct and indirect emissions used
to determine the applicability of the regulation as required in Sec.
93.153, but can be used to offset or mitigate the emissions as required
by Sec.  93.158.
    (3) Emissions reductions credits must be used in the same year in
which they are generated.
    (4) Once the emission reduction credits are used, they cannot be
used as credits for another conformity evaluation. However, unused
credits from a strategy used for one conformity evaluation can be used
for another conformity evaluation as long as the reduction credits are
not double counted. For example, emission reduction credits from a
control measure could be used in one year as offset for construction
emission increases and in another year to mitigate operational emission
increases.
    (5) Federal agencies must notify the State air quality agency and
EPA

Regional Office when the emission reduction credits are being used.

 [FR Doc. E7-25241 Filed 1-7-08; 8:45 am]

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[Federal Register Volume 79, Number 122 (Wednesday, June 25, 2014)]
[Notices]
[Pages 36054-36055]
[FR Doc No: 2014-14835]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2013-0328; FRL-9912-32-OEI]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; NESHAP for Vinyl Chloride (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency has submitted an
information collection request (ICR), NESHAP for Vinyl Chloride (40 CFR
part 61, Subpart F) (Renewal)'' (EPA ICR No. 0186.13, OMB Control No.
2060-0071), to the Office of Management and Budget (OMB) for review and
approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
et seq.). This is a proposed extension of the ICR, which is currently
approved through June 30, 2014. Public comments were previously
requested via the Federal Register (78 FR 35023) on June 11, 2013
during a 60-day comment period. This notice allows for an additional 30
days for public comments. A fuller description of the ICR is given
below, including its estimated burden and cost to the public. 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.

DATES: Additional comments may be submitted on or before July 25, 2014.

ADDRESSES: Submit your comments, referencing Docket ID Number EPA-HQ-
OECA-2013-0328, to (1) EPA online using www.regulations.gov (our
preferred method), or by email to<EMAIL_ADDRESS>or by mail to:
EPA Docket Center, Environmental Protection Agency, Mail Code 28221T,
1200 Pennsylvania Ave. NW., Washington, DC 20460; and (2) OMB via email
to<EMAIL_ADDRESS>Address comments to OMB Desk Officer
for EPA.
    EPA's policy is that all comments received will be included in the
public docket without change including any personal information
provided, unless the comment includes profanity, threats, information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Patrick Yellin, Monitoring,
Assistance, and Media Programs Division, Office of Compliance, Mail
Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave.
NW., Washington, DC 20460; telephone number:<PHONE_NUMBER>; fax
number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Supporting documents, which explain in
detail the information that the EPA will be collecting, are available
in the public docket for this ICR. The docket can be viewed online at
www.regulations.gov or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW., Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's public docket, visit: http://www.epa.gov/dockets.
    Abstract: The affected entities are subject to the General
Provisions of the NESHAP at 40 CFR part 61, subpart A, and any changes
or additions to the Provisions specified at 40 CFR part 61, subpart F.
Owners or operators of the affected facilities must submit a one-time-
only notification report of any physical or operational changes,
initial performance tests, and periodic reports and results. Owners or
operators are

also required to maintain records of the occurrence and duration of any
startup, shutdown, or malfunction in the operation of an affected
facility, or any period during which the monitoring system is
inoperative. Reports are required quarterly at a minimum.
    Form Numbers: None.
    Respondents/affected entities: Owners or operators of vinyl
chloride production facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 61,
subpart F).
    Estimated number of respondents: 18 (total).
    Frequency of response: Initially, quarterly, and occasionally.
    Total estimated burden: 7,603 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $1,553,615 (per year), includes $810,000
annualized capital or operation & maintenance costs.
    Changes in the Estimates: There is a decrease of 4,223 hours in the
total estimated respondent burden compared with the ICR currently
approved by OMB as a result of the PVC NESHAP standard at 40 CFR part
63, subpart HHHHHHH. Beginning in April 17, 2015, 12 of the existing
vinyl chloride plants will comply with the part 63 rule, and will no
longer be subject to the part 61 NESHAP. Therefore, we expect a
decrease in the number of respondents beginning in Year 2 of this ICR
period. In addition, we have updated the number of existing sources
from 28 in the previous ICR to 26 based on latest Agency estimates for
this industry.

Spencer Clark,
Acting Director, Collection Strategies Division.
[FR Doc. 2014-14835 Filed 6-24-14; 8:45 am]
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