Proposed Rule2023-15498
Approval and Promulgation of Implementation Plans; Revisions to the California State Implementation Plan; San Francisco Bay Area
Primary source
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Published
July 27, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing under the Clean Air Act (CAA or "Act") to approve a revision to the San Francisco Bay Area portion of the California State Implementation Plan (SIP). This revision consists of updated transportation conformity procedures related to the interagency coordination on project-level conformity and exchange of travel data for emissions inventories developed for air quality plans and regional transportation conformity analyses. The intended effect is to update the transportation conformity criteria and procedures in the California SIP.
Full Text
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<title>Federal Register, Volume 88 Issue 143 (Thursday, July 27, 2023)</title>
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[Federal Register Volume 88, Number 143 (Thursday, July 27, 2023)]
[Proposed Rules]
[Pages 48406-48409]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15498]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2023-0203; FRL-10757-01-R9]
Approval and Promulgation of Implementation Plans; Revisions to
the California State Implementation Plan; San Francisco Bay Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing under
the Clean Air Act (CAA or ``Act'') to approve a revision to the San
Francisco Bay Area portion of the California State Implementation Plan
(SIP). This revision consists of updated transportation conformity
procedures related to the interagency coordination on project-level
conformity and exchange of travel data for emissions inventories
developed for air quality plans and regional transportation conformity
analyses. The intended effect is to update the transportation
conformity criteria and procedures in the California SIP.
DATES: Comments must be received on or before August 28, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2023-0203 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI or multimedia submissions, and
general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. If you need assistance in a
language other than English or if you are a person with a disability
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Michael Dorantes, Geographic
Strategies and Modeling Section (AIR-2-2), EPA Region IX, 75 Hawthorne
Street, San Francisco, CA 94105, (415) 972-3934, or by email at
<a href="/cdn-cgi/l/email-protection#492d263b28273d2c3a6724202a21282c25092c3928672e263f"><span class="__cf_email__" data-cfemail="22464d50434c5647510c4f4b414a43474e624752430c454d54">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.
Table of Contents
I. Transportation Conformity
II. Background and State Submittal
III. The EPA's Evaluation
IV. Summary of Our Proposed Action
[[Page 48407]]
V. Statutory and Executive Order Reviews
I. Transportation Conformity
Transportation conformity is required under section 176(c) of the
CAA to ensure that federally supported highway, transit projects, and
other activities are consistent with (``conform to'') the purpose of
the SIP. Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the relevant national ambient
air quality standards (NAAQS). Transportation conformity currently
applies to areas that are designated nonattainment, and to areas that
have been redesignated to attainment after 1990 (maintenance areas)
with plans developed under section 175A of the Act. This applies for
the following transportation-related criteria pollutants: ozone, fine
and coarse particulate matter (PM<INF>2.5</INF> and PM<INF>10</INF>),
carbon monoxide (CO), and nitrogen dioxide (NO<INF>2</INF>), as well as
criteria pollutant precursors. The transportation conformity regulation
is found in 40 CFR part 93 and provisions related to conformity SIPs
are found in 40 CFR 51.390.
On November 24, 1993, the EPA promulgated the federal
transportation conformity criteria and procedures (``conformity
rule''). Among other things, the conformity rule required states to
address all of its provision in their SIPs (``conformity SIPs'').\1\
The requirements were subsequently revised on August 10, 2005, when the
``Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users'' (SAFETEA-LU) was signed into law. SAFETEA-LU revised
section 176(c) of the CAA's transportation conformity provisions. One
of the changes streamlined the requirements for conformity SIPs. Under
SAFETEA-LU, states are required to address and tailor only three
sections of the conformity rule in their conformity SIPs: 40 CFR
93.105, 40 CFR 93.122(a)(4)(ii), and 40 CFR 93.125(c). These sections
address consultation procedures (40 CFR 93.105); written commitments to
control measures that are not included in a metropolitan planning
organization's (MPO's) transportation plan and transportation
improvement program that must be obtained prior to a conformity
determination, and the requirement that such commitments, when they
exist, must be fulfilled (40 CFR 93.122(a)(4)(ii)); and written
commitments to mitigation measures that must be obtained prior to a
project-level conformity determination, and the requirement that
project sponsors must comply with such commitments, when they exist (40
CFR 93.125(c)). In general, states are no longer required to submit
conformity SIP revisions that address the other sections of the
conformity rule but may elect to include any other provision of 40 CFR
part 93, subpart A.\2\ These changes took effect when SAFETEA-LU was
signed into law.
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\1\ 58 FR 62188 (November 24, 1993).
\2\ 40 CFR 51.390(b).
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II. Background and State Submittal
For transportation planning purposes, the San Francisco Bay Area is
defined as the nine California counties of Alameda, Contra Costa,
Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma.
Transportation planning in the San Francisco Bay Area is conducted by
the Metropolitan Transportation Commission (MTC).\3\ As the San
Francisco Bay Area MPO, the MTC develops regional transportation plans
and transportation improvement plans for the area. By contrast, for air
quality planning purposes, the San Francisco Bay Area is defined as all
the same counties, except the eastern portion of Solano County and the
northern half of Sonoma County are excluded. This planning area is
designated as nonattainment for several 8-hour ozone NAAQS and for the
2006 PM<INF>2.5</INF> standard.\4\ A portion of the San Francisco Bay
Area, referred to as ``urbanized areas,'' was redesignated from
nonattainment to attainment for the CO NAAQS in 1998. The areas within
the San Francisco Bay Area, but outside the ``urbanized areas,'' were
designated as unclassifiable/attainment for the CO NAAQS. The San
Francisco Bay Area is considered unclassifiable/attainment for the
other NAAQS.\5\
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\3\ California Government Code section 66500 et seq.
\4\ 40 CFR 81.305.
\5\ Id.
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On December 16, 1996, the Governor's designee for SIP submittals,
the California Air Resources Board (CARB), submitted ``The San
Francisco Bay Area Transportation Air Quality Conformity Protocol--
Conformity Procedures'' and ``The San Francisco Bay Area Transportation
Air Quality Conformity Protocol--Interagency Consultation Procedures,''
together referred to as the ``San Francisco Bay Area conformity SIP
submittal'' to the EPA. The EPA approved the San Francisco Bay Area
conformity SIP submittal on October 21, 1997.\6\
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\6\ 62 FR 54587 (October 21, 1997).
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Following SAFETEA-LU's enactment in 2005, the co-lead agencies for
air quality planning in the San Francisco Bay Area, i.e., Bay Area Air
Quality Management District (BAAQMD), the MTC, and Association of Bay
Area Governments (ABAG), revised the San Francisco Bay Area conformity
SIP to reflect the SAFETEA-LU changes and to clarify interagency
consultation procedures. The revisions, referred to as the
Transportation Air Quality Conformity Protocol, were adopted by the
BAAQMD Board of Directors on July 19, 2006, by the ABAG Executive Board
on July 20, 2006, and by the MTC on July 26, 2006. The MTC subsequently
sent the transportation conformity protocol to CARB. On December 20,
2006, CARB adopted the transportation conformity protocol as a revision
to the California SIP and submitted the protocol to the EPA for
approval. The EPA approved the SIP revision on October 12, 2007.\7\
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\7\ 72 FR 58013 (October 12, 2007).
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The eastern portion of Solano County is in the Sacramento
Metropolitan air quality planning area, which is also designated
nonattainment for the same 8-hour ozone and PM<INF>2.5</INF> NAAQS as
the San Francisco Bay Area. For the Sacramento Metropolitan area,
transportation planning is conducted by the Sacramento Area Council of
Governments (SACOG).
Effective May 12, 1994, the MTC and SACOG entered into the original
``Memorandum of Understanding between the Metropolitan Transportation
Commission and the Sacramento Area Council of Governments'' to
establish an agreement regarding Federal conformity procedures and
programming of Federal Congestion Mitigation and Air Quality (CMAQ)
funds in Solano County. The MTC and SACOG then amended the original
Memorandum of Understanding (MOU) in 2004 to provide clarity regarding
their responsibilities during a conformity lapse.
The MTC and SACOG updated the Memorandum of Understanding between
the two agencies (``revised MTC-SACOG MOU'' or ``revised MOU'') again
in 2018. The MTC approved resolution No. 2611, Revised, on July 6,
2018, and MTC's and SACOG's executive directors executed the MOU on
September 11, 2018.\8\ To provide further clarification regarding the
updated coordination between the MTC and SACOG, the BAAQMD, the
[[Page 48408]]
MTC, and ABAG proposed further revisions to the San Francisco Bay Area
Transportation Air Quality Conformity Protocol (``revised
transportation conformity protocol'' or ``revised protocol''). On
February 26, 2020, MTC adopted a resolution approving the revisions.\9\
Following the MTC's adoption of the resolution, the BAAQMD adopted the
revisions on March 4, 2020,\10\ and ABAG adopted the revisions on April
23, 2020.\11\ The BAAQMD then submitted the revisions to CARB for
approval on June 11, 2020.\12\ CARB subsequently adopted the revised
protocol on May 6, 2021,\13\ and submitted it the EPA for approval on
May 17, 2021.\14\
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\8\ Metropolitan Transportation Commission Resolution No. 2611.
Revised, MTC/Sacramento Area Council of Governments (SACOG)
Memorandum of Understanding (MOU) for Air Quality Planning in
Eastern Solano County.
\9\ Metropolitan Transportation Commission Resolution No. 3757,
``Re: Approval of San Francisco Bay Area Transportation Air Quality
Conformity Protocol,'' February 26, 2020.
\10\ BAAQMD Board of Directors Regular Meeting Agenda Item #6
and BAAQMD Board of Directors Regular Meeting Approved Minutes,
March 4, 2020.
\11\ ABAG Executive Board Resolution No. 04-2020, ``Authorizing
Approval of Proposed Final San Francisco Bay Area Transportation Air
Quality Conformity Protocol and Interagency Consultation
Procedures,'' April 23, 2020.
\12\ Letter from Jack P. Broadbent, Executive Officer and Air
Pollution Control Officer, BAAQMD, to Richard Corey, Executive
Officer, CARB. Re: San Francisco Bay Area State Implementation Plan
Amended Transportation Air Quality Conformity Protocol (Dated June
11, 2020).
\13\ CARB Executive Order R-20-005, ``Approval of the Amended
San Francisco Bay Area Transportation Air Quality Conformity
Protocol as a Revision to the California State Implementation
Plan,'' approved May 6, 2021.
\14\ In addition to other supporting documents, the submittal
package included the following documents: ``San Francisco Bay Area
Transportation Air Quality Conformity Protocol, Revised: February
26, 2020; Amended and Restated Memorandum of Understanding Between
The Metropolitan Transportation Commission and The Sacramento Area
Council of Governments, (September 11, 2018); Letter dated May 6,
2021, (submitted electronically May 17, 2021), from Richard W.
Corey, Executive Officer, CARB, to Deborah Jordan, Acting Regional
Administrator, EPA Region IX, Subject: ``San Francisco Bay Area
State Implementation Plan Amended Transportation Air Quality
Conformity Protocol.''
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The most recent revision to the transportation conformity protocol
supersedes the 2006 revision and is the subject of this proposed
action. The revised protocol largely retains the content of the
previous protocol adopted in 2006 but contains revisions explicitly
reflecting the revised MOU language along with some other content
changes. A notable revision is the addition of a new standalone section
(``Section X''), entitled ``Addressing Activities and Emissions that
Cross MPO Boundaries.'' Section X retains relevant text from the
previous transportation conformity protocol and references revisions
made within the revised MTC-SACOG MOU that clarify MTC and SACOG roles
and responsibilities related to updated Federal transportation air
quality requirements. These address the responsibilities related to the
programming of Federal CMAQ funds, coordination between the MTC and
SACOG when exchanging travel data for emissions inventories, and
coordination between the MTC and SACOG when conducting project-level
and regional conformity, including procedures to follow in the event of
a conformity lapse and considerations for new PM<INF>2.5</INF> hot-spot
analysis requirements.
The updated SIP revision that CARB submitted to the EPA consisted
of the revised transportation conformity protocol, as well as documents
from the MTC, ABAG, the BAAQMD, and CARB adopting the revisions. In
November 2019, the BAAQMD and ABAG delegated authority to the MTC to
conduct a public hearing on the proposed conformity protocol.\15\ The
MTC provided notice of a 30-day public comment period beginning on
December 27, 2019,\16\ and held a public hearing on January 10, 2020,
on the revised protocol.\17\ The MTC received no comments other than a
suggested non-substantive edit from the EPA.
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\15\ Letter from Jack P. Broadbent, Executive Officer and Air
Pollution Control Officer, BAAQMD, to Richard Corey, Executive
Officer, CARB. Re: San Francisco Bay Area State Implementation Plan
Amended Transportation Air Quality Conformity Protocol (Dated June
11, 2020).
\16\ Metropolitan Transportation Commission Notice of Public
Hearing: ``Draft Bay Area Transportation Air Quality Conformity
Protocol (MTC Resolution No. 3757 Revised).''
\17\ Metropolitan Transportation Commission, Planning Committee,
``Public Hearing: MTC Resolution No. 3757, Revised: Draft Bay Area
Transportation Air Quality Conformity Protocol,'' January 10, 2020.
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III. The EPA's Evaluation
We have reviewed the submittal to ensure consistency with the Clean
Air Act and with EPA regulations (40 CFR part 93 and 40 CFR 51.390)
governing state procedures for transportation conformity and
interagency consultation and have concluded that the submittal is
approvable. The public comment period and hearing the MTC held for this
SIP revision satisfies the requirements of CAA section 110(l) and 40
CFR 51.102. Additional details of our review are set forth in a
technical support document (TSD), which has been included in the docket
for this proposed rulemaking. Specifically, in our TSD, we identify how
the submitted procedures satisfy our requirements under 40 CFR 93.105
for interagency consultation with respect to the development of
transportation plans and programs, SIPs, and conformity determinations,
the resolution of conflicts, the provision of adequate public
consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and
93.125(c) for enforceability of control measures and mitigation
measures.
IV. Summary of Our Proposed Action
In accordance with section 110(k) of the Act, and for the reasons
set forth in Section III of this document, the EPA is proposing to
approve the ``San Francisco Bay Area Air Quality Conformity Protocol--
Conformity Procedures and Interagency Consultation Procedures'' as a
revision to the California SIP.
If we finalize our action as proposed, the revised protocol adopted
by the BAAQMD on March 4, 2020, by ABAG on April 23, 2020, and by the
MTC February 26, 2020, then adopted on May 6, 2021, and submitted to
the EPA on May 17, 2021 by CARB, will be incorporated into the San
Francisco Bay Area portion of the California SIP, and thereby replace
the previous version of the revised protocol approved on October 11,
2007.
The EPA is soliciting public comments on the issues discussed in
this document. We will accept comments from the public on this proposal
until August 28, 2023, and will consider comments before taking final
action.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 proposed 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 proposed action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> Is certified as not having a significant economic impact
on a substantial number of small entities
[[Page 48409]]
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it proposes to approve a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<bullet> Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA.
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
Feb. 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. The EPA did not perform an EJ analysis and did not consider
EJ in this action. Due to the nature of the proposed action being taken
here, this action is expected to have a neutral to positive impact on
the air quality of the affected area. Consideration of EJ is not
required as part of this proposed action, and there is no information
in the record inconsistent with the stated goal of E.O. 12898 of
achieving environmental justice for people of color, low-income
populations, and Indigenous peoples.
In addition, the SIP is not approved to apply on any Indian
reservation land or 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 and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental Relations, Nitrogen
oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 17, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-15498 Filed 7-26-23; 8:45 am]
BILLING CODE 6560-50-P
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