RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 127]
General Conformity
[26 Pa.B. 5374] The Environmental Quality Board (Board) by this order amends Chapter 127 (relating to construction, modification, reactivation and operation of sources) by adding Subchapter J (relating to general conformity) to read as set forth at 26 Pa.B. 1139 (March 16, 1996). The final rulemaking adopts and incorporates by reference the General Conformity Rule (rule) promulgated by the United States Environmental Protection Agency (EPA) under section 176(c) of the Federal Clean Air Act Amendments of 1990 (CAA) in its entirety. The regulations are contained in 40 CFR Part 93, Subpart B (relating to determining conformity of general Federal actions to state or Federal implementation plans) with respect to the conformity of general Federal actions to the Commonwealth's State Implementation Plan (SIP).
The Board adopted this order at its meeting of August 20, 1996.
A. Effective Date
These amendments will be effective immediately upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact J. Wick Havens, Chief, Division of Air Resource Management, Bureau of Air Quality, Rachel Carson State Office Building, 12th Floor, P. O. Box 8468, Harrisburg, PA 17105-8468, telephone (717) 787-4310, or Joyce Epps, Assistant Counsel, Bureau of Regulatory Counsel, Rachel Carson State Office Building, 9th Floor, P. O. Box 8464, Harrisburg, PA 17105-8464, telephone (717) 787-7060.
Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available through the Department of Environmental Protection (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The final rulemaking is being made under the authority of section 5 of the Air Pollution Control Act (act) (35 P. S. § 4005), which grants to the Board the authority to adopt rules and regulations for the prevention, control, reduction and abatement of air pollution in this Commonwealth.
D. Background and Summary
The purpose of this final rulemaking is to ensure that Federal actions do not adversely affect the timely attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) or emission reduction plans leading to attainment. The intent of integrating Federal actions with air quality planning is to protect the Commonwealth's air quality by helping to ensure that SIP growth projections are not exceeded, emission reduction targets are achieved, and air quality attainment and maintenance efforts are not undermined.
Under section 176(c) of the CAA, departments, agencies or instrumentalities of the Federal government are not permitted to engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which does not conform to the Commonwealth's SIP. Prior to taking any action, a determination that the proposed Federal action conforms to SIP must be made by the Federal agency in accordance with the policy, criteria and procedures contained in 40 CFR Part 93, Subpart B. Adoption of this final rulemaking will not impact any existing Commonwealth air quality regulations. The conformity determination, which examines direct and indirect emissions of regulated air pollutants resulting from the Federal actions, is the responsibility of the Federal agency taking the actions. Conformity with the applicable SIP must be determined prior to initiating any Federal action and the results of the conformity determination must be made available for review by the general public.
Examples of Federal actions requiring conformity determinations include:
--leasing of Federal land
--airport construction/modification grants
--private construction on Federal land
--construction of Federal office buildings
--prescribed burning
--reuse of military bases
--water treatment plants
The CAA required the EPA to promulgate rules to implement the general conformity requirements. On November 30, 1993, the EPA published the general conformity final rule at 58 FR 63214. The Federal general conformity criteria and procedures contained in 40 CFR Parts 51 and 93 were effective on January 31, 1994.
The Commonwealth is required under 40 CFR 51.851 to submit to the EPA a revision to the SIP, which establishes conformity criteria and procedures that are consistent with the Federal rule. This final rulemaking adopts and incorporates the Federal conformity requirements in 40 CFR Part 93, Subpart B by reference in their entirety.
The general conformity rule covers direct and indirect emissions of criteria pollutants or their precursors that are caused by a Federal action, are reasonably foreseeable, and can practically be controlled by the Federal agency through its continuing program responsibility. Criteria pollutants are carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone, particulate matter (PM-10) and sulfur dioxide (SO2). The criteria and procedures established in these regulations apply only in areas that are nonattainment or maintenance with respect to any of these criteria pollutants. Because the Commonwealth is included in the Ozone Transport Region established under section 184 of the CAA, by operation of law, the entire Commonwealth (except for the severe ozone nonattainment area in southeastern Pennsylvania) is considered a moderate ozone nonattainment area regardless of the designation and classification of certain areas. Therefore, the general conformity requirements apply to Federal actions Statewide.
E. Summary of Comments and Changes to the Proposal
During the month of April 1996, the Board held three public hearings so that interested persons could provide testimony on the proposed rulemaking published at 26 Pa.B. 1139. The hearings were held on the following dates: April 15, 1996 (Pittsburgh), April 17, 1996 (Harrisburg) and April 22, 1996 (Conshohocken). The Board received no testimony on the general conformity proposal. Persons interested in providing written comments on the proposal had the opportunity to submit written comments to the Board during the 67-day public comment period. However, the Board did not receive any comments on the proposal. Therefore, no changes have been made to the general conformity proposal.
On June 13, 1996, the Department consulted with the Air and Water Quality Technical Advisory Committee concerning these amendments and received a unanimous recommendation that the general conformity requirements be submitted to the Board for consideration as a final rulemaking.
F. Benefits and Costs
Executive Order 1996-1 requires a cost/benefit analysis of the final regulations.
These regulations require affected Federal actions to include SIP planning methods and goals in evaluation of the environmental impact. These regulations should not affect present paperwork requirements. Presently, environmental assessments are required of major activities that may adversely affect the Commonwealth's air quality. These regulations will directly affect Federal activities by requiring Federal agencies to include Pennsylvania SIP planning and goals in the assessment of the proposed Federal action in affected areas of the Commonwealth.
Emission Impact and Environmental Impact
The current regulations are intended to achieve or maintain the Federal NAAQS for the general conformity criteria pollutants CO, Pb, NO2, ozone, PM-10 and SO2. These general conformity amendments will not change the emission impact of the current regulations.
These regulations will require agencies of the Federal government to ensure that an affected Federal action is consistent with the requirements and milestones of the Commonwealth's SIP. The final rulemaking will prevent direct and indirect emissions of criteria pollutants from the Federal action from causing or contributing to new violations of the NAAQS or increasing the frequency or severity of the violations. Therefore, the general conformity requirements will ensure that the Federal action does not cause any environmental degradation and that there is no adverse impact on air quality from the Federal action.
Impact on Regulated Industry
The general conformity regulations will not have an impact on regulated industry. The conformity determination, which is similar to the environmental impact analysis of Federal agencies under the National Environmental Policy Act (NEPA), must be conducted by agencies of the Federal government prior to commencing a Federal action.
Cost to the Commonwealth, Local Government and the General Public
These regulations will not affect costs to the Commonwealth, local governments or regulated community. The Department's regional offices presently review the types of environmental impact statements that these final-form regulations will require.
G. Sunset Date
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the notice of proposed rulemaking, published at 26 Pa.B. 1139 to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. In compliance with section 5(b.1) of the Regulatory Review Act, the Department provided IRRC and the Committees with a copy of the comments received, as well as other documentation.
These final-form regulations were deemed approved by the Senate Environmental Resources and Energy Committee and the House Environmental Resources and Energy Committee on September 23, 1996. IRRC met on October 3, 1996, and the regulations were deemed approved under section 5(b.3) of the Regulatory Review Act.
I. Findings
The Board finds that:
(1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period and public hearings were provided as required by law. However, no comments or testimony were received by the Board.
(3) These regulations do not enlarge the purpose of the proposed rulemaking published at 26 Pa.B. 1139.
(4) These regulations are necessary and appropriate for the administration, enforcement and implementation of the act identified in Section C of the Preamble.
(5) These regulations are necessary for the Commonwealth to achieve and maintain ambient air quality standards.
(6) These regulations are also necessary and appropriate to satisfy obligations imposed by the Federal Clean Air Act and must be promulgated to ensure that sanctions are not imposed for the Commonwealth's failure to comply with requirements of the Clean Air Act.
J. Order
(a) The regulations of the Department, 25 Pa. Code Chapter 127, are amended by adding §§ 127.801 and 127.802, to read as set forth at 26 Pa.B. 1139.
(b) The Chairperson of the Board shall submit this order and 26 Pa.B. 1139 to the Office of Attorney General and Office of General Counsel for review as to legality and form as required by law.
(c) The Chairperson of the Board shall submit this order and 26 Pa.B. 1139 to the House and Senate Environmental Resources and Energy Committees and IRRC as required by law.
(d) The Chairperson of the Board shall certify this order and 26 Pa.B. 1139 and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 5181 (October 26, 1996).)
Fiscal Note: Fiscal Note 7-295 remains valid for the final adoption of the subject regulations.
[Pa.B. Doc. No. 96-1872. Filed for public inspection November 8, 1996, 9:00 a.m.]
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