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Air Plan Approval; NC; Transportation Conformity Publication: Federal Register Agency: Environmental Protection Agency Byline: Daniel Blackman Date: 7 February 2023 Subject: American Government  , The Environment
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[Federal Register Volume 88, Number 25 (Tuesday, February 7, 2023)]
[Proposed Rules]
[Pages 7903-7910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02488]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2021-0769; FRL-10576-01-R4]
Air Plan Approval; NC; Transportation Conformity
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by the
State of North Carolina, through the North Carolina Department of
Environmental Quality (DEQ), Division of Air Quality (DAQ) on September
24, 2021. The SIP revisions replace previously approved memoranda of
agreement (MOAs) with thirteen updated MOAs outlining transportation
conformity criteria and procedures related to interagency consultation,
conflict resolution, public participation, and enforceability of
certain transportation-related control and mitigation measures. EPA is
proposing to determine that North Carolina's September 24, 2021, SIP
revisions are consistent with the applicable provisions of the Clean
Air Act (CAA or Act).
DATES: Written comments must be received on or before March 9, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0769 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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. 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, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
[[Page 7904]]
FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-9222. Ms. Sheckler can also be reached via electronic mail at
sheckler.kelly@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. What is transportation conformity?
Transportation conformity is required under section 176(c) of the
CAA and is a process that ensures federally-supported transportation
activities are consistent with (``conform to'') the purposes of the
SIP. Examples of transportation activities include federally-supported
highway projects, transit projects, transportation plans, and
transportation improvement projects (TIPs). Transportation conformity
applies to areas that are designated nonattainment for transportation-
related national ambient air quality standards (NAAQS) (i.e., ozone,
particulate matter (e.g., PM2.5 and PM10), carbon
monoxide (CO), and nitrogen dioxide (NO2)) and to certain
areas that have been redesignated to attainment of a transportation-
related NAAQS.\1\
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\1\ In general, transportation conformity does not apply for
areas that have completed the entirety of the required maintenance
period (i.e., typically 20 years after redesignation).
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Pursuant to CAA section 176(c), conformity means conformity to a
SIP's purpose of eliminating or reducing the severity and number of
violations of the NAAQS and achieving expeditious attainment of such
standards, and that no federal or federally-supported activity under
section 176(c)(1) will: (1) cause or contribute to any new violation of
any NAAQS in any area, (2) increase the frequency or severity of any
existing violation of any standard in any area, or (3) delay timely
attainment of any standard or any required interim emission reductions
or other milestones in any area. The requirements of section 176(c) of
the CAA apply to all departments, agencies, and instrumentalities of
the federal government. Transportation conformity refers only to the
conformity of transportation plans, programs, and projects that are
funded or approved under title 23 U.S.C. or the Federal Transit Act (49
U.S.C. chapter 53). Pursuant to section 176(c) of the CAA, EPA issues
criteria and procedures for determining conformity of transportation
plans, programs, and projects to a SIP. One of the requirements is that
each state submit a revision to its SIP to include conformity criteria
and procedures.
B. Why are states required to submit a transportation conformity SIP?
EPA promulgated the first federal transportation conformity
criteria and procedures (``Conformity Rule'') on November 24, 1993 (see
58 FR 62188), codified at 40 CFR part 51, subpart T and 40 CFR part 93.
Among other things, the rule required states to address all provisions
of the conformity rule in their SIPs, frequently referred to as
``conformity SIPs.'' Under 40 CFR 51.390, most sections of the
conformity rule were required to be copied verbatim into the SIP. Since
then, the rule has been revised on August 7, 1995 (60 FR 40098),
November 14, 1995 (60 FR 57179), August 15, 1997 (62 FR 43780), April
10, 2000 (65 FR 18911), August 6, 2002 (67 FR 50808), and January 24,
2008 (73 FR 4438).
On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed
into law. SAFETEA-LU revised section 176(c) of the CAA transportation
conformity provisions by streamlining the requirements for conformity
SIPs. Under SAFETEA-LU, states are required to address and tailor only
three sections of the rule in their conformity SIPs: 40 CFR 93.105, 40
CFR 93.122(a)(4)(ii), and 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. These changes took effect on
August 10, 2005, when SAFETEA-LU was signed into law.
A transportation conformity SIP can be adopted as a state rule, a
memorandum of understanding (MOU), or a memorandum of agreement (MOA).
The MOA/MOU must establish the roles and procedures for transportation
conformity and include the detailed consultation procedures developed
for that particular area. The MOAs are enforceable through the
signature of all the transportation and air quality agencies, including
EPA and the U.S. Department of Transportation (USDOT) which consists of
the Federal Highway Administration (FHWA) and the Federal Transit
Administration (FTA). States may use an MOU or MOA as long as it meets
the following requirements: ``(1) it is fully enforceable under state
law against all parties involved in interagency consultation and in
approving, adopting and implementing transportation projects, TIPs, or
transportation plans, (2) the state submits it to EPA for inclusion
into the SIP, and (3) it has been signed by all agencies covered by the
conformity rule . . .'' \2\
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\2\ See ``Guidance for Developing Transportation Conformity
State Implementation Plans (SIPs)'' U.S. Environmental Protection
Agency, Office of Transportation and Air Quality, EPA-420-B-09-001
(January 2009). Available at: https://nepis.epa.gov/Exe/ZyPDF.cgi/P1002W5B.PDF?Dockey=P1002W5B.PDF.
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C. How does transportation conformity work?
The transportation conformity rule applies to certain NAAQS
nonattainment and maintenance areas in the state. The Metropolitan
Planning Organization (MPO), the state department of transportation
(DOT) (in absence of an MPO), state and local air quality agencies,
EPA, and the USDOT are involved in the process of making conformity
determinations. Conformity determinations are made on programs and
plans such as a TIP, transportation plans, and transportation projects.
The projected emissions that will result from implementation of the
transportation plans and programs are calculated and compared to the
motor vehicle emissions budget (MVEB) established in the SIP. The
calculated emissions must be equal to or smaller than the federally
approved MVEB for the USDOT to make a positive conformity determination
with respect to the SIP.
Pursuant to federal regulations, when an area is designated
nonattainment for a transportation-related NAAQS, the state is required
to submit a transportation conformity SIP within one year of the
effective date of the nonattainment area designations. See 40 CFR
51.390(c). Previously, North Carolina established, and EPA subsequently
approved, a transportation conformity SIP to address areas that were
designated nonattainment or previously designated nonattainment for the
CO and 1-hour ozone NAAQS. See 67 FR 32549 (December 27, 2002) for
EPA's rulemaking approving North Carolina's transportation conformity
SIP. North Carolina subsequently submitted a SIP revision on July 12,
2013, to update and replace North Carolina's previously approved
transportation conformity SIP. EPA approved this revision on December
26, 2013. See 78 FR 78266.
D. The South Coast II Decision
On February 16, 2018, the United States Court of Appeals for the
District of Columbia Circuit issued a decision in South Coast Air
Quality Mgmt. Dist. v. EPA (``South Coast II,'' 882 F.3d 1138)
[[Page 7905]]
that affected the process for making transportation conformity
decisions in areas that were either nonattainment or maintenance for
the 1997 ozone NAAQS. The case revolved around a challenge to EPA's
final rule establishing implementation requirements for the 2008 ozone
NAAQS and revoking the 1997 8-hour ozone NAAQS, known as the 2008 ozone
NAAQS SIP Requirements Rule. See 80 FR 12264 (March 6, 2015). As a
result of this rule, areas that were nonattainment or maintenance for
the 1997 ozone NAAQS were no longer required to implement
transportation conformity requirements for the 1997 8-hour ozone NAAQS.
In South Coast II, multiple environmental interest groups challenged
EPA's 2008 ozone NAAQS SIP Requirements Rule. The Court vacated
portions of EPA's 2008 ozone NAAQS SIP Requirements Rule, but upheld
EPA's revocation of the 1997 ozone NAAQS.
The Court decision referred to the 1997 ozone NAAQS nonattainment
or maintenance areas that were designated attainment for the 2008 ozone
NAAQS as ``orphan areas.'' The decision stated that transportation
conformity still applies for the revoked 1997 ozone NAAQS in these
orphan areas. For areas that were nonattainment for the 1997 ozone
NAAQS at the time it was revoked, the court stated that transportation
conformity applies as an anti-backsliding measure. See South Coast II,
882 F.3d at 1149. For areas that were maintenance for the 1997 ozone
NAAQS at the time it was revoked, the court stated that transportation
conformity applies based on the court's interpretation of CAA section
176(c)(5)(B). See id. at 1155.
Based on the Agency's review of the court decision, EPA has
concluded that the decision does not affect transportation conformity
requirements for areas originally designated nonattainment for the more
stringent 2008 ozone NAAQS (see 77 FR 30160, May 21, 2012), or areas
designated nonattainment for the more stringent 2015 ozone NAAQS (see
83 FR 25776, June 4, 2018). However, as a result of this court
decision, the previous 1997 8-hour ozone NAAQS nonattainment areas are
required to implement transportation conformity. These areas are as
follows for North Carolina: (1) the bi-state Charlotte-Gastonia-Rock
Hill, NC-SC; (2) Greensboro-Winston Salem-High Point, NC; (3) Great
Smoky National Park (North Carolina portion); (4) Hickory-Morganton-
Lenoir, NC; (5) Raleigh-Durham-Chapel Hill, NC; and (6) Rocky Mount,
NC.
II. EPA Analysis of North Carolina's Submittals
CAA Section 176(c)(4)(E) and 40 CFR 51.390(b) require states to
develop conformity SIPs that address three specific provisions of
federal regulations. First, EPA's transportation conformity rule
requires states to develop their own processes and procedures which
meet the criteria in 40 CFR 93.105 for interagency consultation and
resolution of conflicts among the federal, state, and local agencies.
The SIP revision must include processes and procedures to be followed
by the MPO, state DOT, and the USDOT in consultation with the state and
local air quality agencies and EPA before making conformity
determinations. The conformity SIP revision must also include processes
and procedures for the state and local air quality agencies and EPA to
coordinate the development of applicable SIPs with MPOs, state DOTs,
and the USDOT. Second, 40 CFR 93.122(a)(4)(ii) states that conformity
SIPs must require written commitments to control measures to be
obtained prior to a conformity determination if those measures are not
included in an MPO's transportation plan and TIP. This rule also
requires that such commitments are fulfilled. Finally, 40 CFR 93.125(c)
states that conformity SIPs must require that written commitments to
mitigation measures must be obtained prior to a project-level
conformity determination, and that the project sponsors comply with
these commitments.
On July 12, 2013, the State of North Carolina, through DAQ,
submitted its ``Conformity SIP'' for the applicable transportation-
related NAAQS. Specifically, North Carolina requested EPA approval of
its Conformity SIP which included MOAs signed by the federal and state
transportation and air quality partners, and all of the MPOs in the
state subject to transportation conformity requirements. EPA approved
these MOAs into the North Carolina SIP on December 26, 2013. See 78 FR
78266.
North Carolina's September 24, 2021, conformity SIP revisions add
new interagency partners and MPOs, establish new procedures for
interagency consultation, dispute resolution, public participation and
enforceability of certain transportation-related control measures and
mitigation measures, and supersede the MOAs incorporated into the SIP
on December 26, 2013. For a list of MPOs for which North Carolina has
established MOAs in the September 24, 2021, submission, see Table 1,
below. Table 1 also includes a list of the areas and/or counties which
are covered under the updated MOAs.
Table 1--MOA Administrators and Covered Areas
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MOA administrator Covered areas
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Burlington-Graham MPO........ Alamance County and portions of Guilford
and Orange Counties.
Cabarrus-Rowan MPO........... Cabarrus and Rowan Counties.
Charlotte Regional Charlotte Urbanized Area which includes
Transportation Planning Charlotte and the remainder of
Organization. Mecklenburg County plus that area beyond
the existing urbanized area boundary of
Iredell, Mecklenburg, and Union Counties
that is expected to become urban within
a twenty-year planning period.
Durham-Chapel Hill-Carrboro Durham County, the portion of Orange
MPO. County that contains the towns of Chapel
Hill, Carrboro, and Hillsborough, and
Northeast Chatham County.
Gaston-Cleveland-Lincoln MPO. Gaston, Cleveland, and Lincoln Counties.
Greater Hickory MPO.......... Alexander, Burke, Caldwell, and Catawba
Counties.
Greensboro Urban Area MPO.... City of Greensboro, the majority of
unincorporated Guilford County, and the
towns of Oak Ridge, Pleasant Garden,
Sedalia, Stokesdale, and Summerfield.
High Point Urban Area MPO.... Archdale, Denton, High Point, Jamestown,
Lexington, Thomasville, Trinity,
Wallburg, and portions of Davidson
County, Forsyth County and Randolph
County.
North Carolina Capital Area Wake County and parts of Franklin,
MPO. Granville, Harnett, and Johnston
Counties.
Rocky Mount Urban Area MPO... City of Rocky Mount, Towns of Nashville
and Sharpsburg, and portions of
Edgecombe and Nash Counties.
Winston-Salem-Forsyth Union Portions of Forsyth, Davidson, Davie, and
Area MPO. Stokes Counties.
Rural (counties not covered Person County.
by MPO, administered by
North Carolina DOT).
[[Page 7906]]
Great Smoky Mountains Portions of Haywood and Swain Counties.
National Park (administered
by NPS).
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Table 2, below, identifies the applicable NAAQS for which each
planning agency is required to implement transportation conformity, and
therefore, establish interagency consultation procedures. As stated
above, the MOAs are the documents which establish each area's
interagency consultation procedures.
Table 2--MOA Administrators and the Applicable NAAQS for Transportation
Conformity
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MOA administrator Applicable NAAQS
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Burlington-Graham MPO........ 1997 8-hour ozone and 1997 annual PM2.5
NAAQS.
Cabarrus-Rowan MPO........... 1997 8-hour ozone, 2008 8-hour ozone, and
2015 8-hour ozone NAAQS.
Charlotte Regional 1971 CO, 1997 8-hour ozone, and 2008 8-
Transportation Planning hour ozone NAAQS.
Organization.
Durham-Chapel Hill-Carrboro 1971 CO and 1997 8-hour ozone NAAQS.
MPO.
Gaston-Cleveland-Lincoln MPO. 1997 8-hour ozone and 2008 8-hour ozone
NAAQS.
Greater Hickory MPO.......... 1997 annual PM2.5 NAAQS.
Greensboro Urban Area MPO.... 1997 annual PM2.5 NAAQS.
High Point Urban Area MPO.... 1971 CO and 1997 annual PM2.5 NAAQS.
North Carolina Capital Area 1971 CO and 1997 8-hour ozone NAAQS.
MPO.
Rocky Mount Urban Area MPO... 1997 8-hour ozone NAAQS.
Winston-Salem-Forsyth Urban 1971 CO and 1997 annual PM2.5 NAAQS.
Area MPO.
Rural (counties not covered 1997 8-hour ozone NAAQS.
by MPO, administered by
North Carolina DOT) \3\.
Great Smoky Mountains 1997-hour ozone NAAQS.
National Park (administered
by NPS).
------------------------------------------------------------------------
Aside from some minor language edits and clarifications, each
updated MOA makes changes to address federal transportation conformity
requirements. Details on EPA's analysis of each updated MOA and its
reasoning for proposing to approve them is presented in the sections
below.
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\3\ Person County is the only county subject to transportation
conformity requirements per the 1997 8-hour ozone NAAQS that does
not have an MPO responsible for it.
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A. Bi-State Charlotte Area
There are three MPOs within the North Carolina portion of the bi-
state Charlotte Area. These MPOs are:
Cabarrus-Rowan Metropolitan Planning Organization (CRMPO);
Charlotte Regional Transportation Planning Organization
(CRTPO); and
Gaston-Cleveland-Lincoln Metropolitan Planning
Organization (GCLMPO).
Several counties (or portions of counties) in the bi-state
Charlotte Area comprise the maintenance area for the CO NAAQS, as well
as the maintenance areas for the 2008 8-hour ozone NAAQS and the 1997
8-hour ozone NAAQS. Based on the 1997 and 2008 8-hour ozone NAAQS,
Cabarrus, Cleveland, Gaston, Iredell, Lincoln, Mecklenburg, Rowan, and
Union Counties in North Carolina, and a portion of York County in South
Carolina,\4\ are required to implement transportation conformity
requirements.\5\ DAQ worked with CRMPO, CRTPO, GLMPO, NC DOT, and the
other applicable transportation and air quality partners for the bi-
state Charlotte Area to develop and execute updated MOAs to address the
consultation and other applicable transportation conformity
requirements for the Area. These MOAs are provided in the docket for
this proposed rulemaking.
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\4\ Separate to North Carolina, the state of South Carolina has
established conformity procedures for York County, which makes up
the South Carolina portion of the Charlotte bi-state Area, in its
individual conformity SIP. EPA approved South Carolina's Conformity
SIP on July 28, 2009. See 74 FR 37168.
\5\ On December 16, 2015, EPA sent a letter to CRTPO informing
it that its transportation conformity obligations in Mecklenburg
County for the CO NAAQS ceased to apply after September 18, 2015,
because the 20-year maintenance period had been reached and North
Carolina did not extend the maintenance period beyond it. A copy of
this letter is provided in the docket for this proposed rulemaking.
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North Carolina's September 24, 2021, SIP revisions, through the
MOAs, update the MOA definitions, party duties section, conformity
analysis results and reporting section, and the modifications of
agreement section. The MOAs for MPOs in the bi-state Charlotte Area
were primarily updated to make minor non-substantive changes such as
minor language edits, renumbering changes throughout the MOAs, one
change in a timing provision, and the removal of one section.
Additionally, the September 24, 2021, SIP revisions include several
other changes such as definition changes, and a few new clauses.
The bulk of the changes in the September 24, 2021, SIP revisions
concern minor language edits, clarifications, the correction of a
typographical error, and the removal of an unnecessary section. For
example, one language edit changes the word ``under'' to ``pursuant
to.'' An example of clarifying edits made in the MOAs for the bi-state
Charlotte Area was to update the names and abbreviations of the
involved state and local agencies to their current names throughout the
MOAs. Additionally, the MOAs for the bi-state Charlotte Area included
updates to the format for statutes and regulations, for example
changing ``North Carolina Administrative Code (hereinafter,
`N.C.A.C.'), Subchapter 2D'' to ``North Carolina Administrative Code
(hereinafter, `NCAC'), Subchapter 2D.'' One other edit made in all the
MOAs is to clarify the timing provision for the Interagency
Consultation Conformity Determination Meeting, to be more explicit that
the meeting must take place prior to a conformity determination being
made. Previously, the description
[[Page 7907]]
of the meeting timing was unclear, so the edits require the meeting to
take place at least nine months before a conformity determination is
needed. The updates for the MOAs for the bi-state Charlotte Area also
fix a typographical error in clause 6.3.1.5 when referencing a specific
regulation provision. Lastly, the MOAs for the bi-state Charlotte Area
remove the ``Termination of Agreement'' section. Further minor, non-
substantive changes include adding the term ``MOA'' to refer to the
Memorandum of Agreement throughout the document, basic word preference
changes, grammatical changes, and necessary renumbering of sections to
incorporate the addition or removal of provisions, which are further
discussed below.
The MOAs also include several changes to the definitions sections
of the MOAs, including the modification of two definitions and the
addition of another. The MOAs all replaced the definition of ``Long
Range Transportation Plan (LRTP)'' with ``Metropolitan Transportation
Plan (MTP).'' \6\ The definition for MTP in the new MOAs is, ``. . .
the official multimodal transportation plan addressing no less than a
20-year planning horizon that the MPO develops, adopts, and updates
through the metropolitan transportation process.'' The definition for
MTP is nearly identical to the definition for LRTP, with the one
difference being the description as to how the plan is developed. The
LRTP definition stated that it was developed through the ``statewide
transportation planning process'' while the MTP definition states that
``the MPO develops, adopts, and updates through the metropolitan
transportation planning process.'' The MTP definition comes from 23 CFR
part 450, titled ``Planning Assistance and Standards.'' 40 CFR part 93
states that transportation conformity determinations are required for
the adoption, acceptance, approval, or support of transportation plans,
transportation improvement programs (TIPs), and their amendments,
developed pursuant to 23 CFR part 50. See 40 CFR 93.102. Since
transportation plans are developed pursuant to the requirements
outlined in 23 CFR part 450, EPA preliminarily agrees with this change.
North Carolina replaces all references to the LRTP with MTP throughout
the MOAs for the bi-state Charlotte Area. Additionally, the MOA updates
modify the definition of ``Statewide Transportation Improvement Program
(STIP).'' \7 8\ The updated definition of STIP is identical to the
definition in 23 CFR part 450. Finally, North Carolina also adds a
definition for ``Transportation Improvement Program (TIP)'' in the MOAs
for the bi-state Charlotte Area. Transportation conformity requires
that federally-supported transportation activities, such as TIPs, are
consistent with the purpose of the SIP. As transportation conformity
includes TIPs, EPA preliminarily finds the addition of this definition
to each MOA acceptable.
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\6\ Long Range Transportation Plan was defined as ``. . . the
official intermodal metropolitan transportation plan that is
developed through the metropolitan planning process for the
metropolitan planning area, developed pursuant to 23 CFR part 450.''
\7\ The previous definition in the MOA defined STIP as, ``. . .
a staged, multi-year, statewide, intermodal program of
transportation projects, which consistent with the statewide
transportation plan and planning processes.''
\8\ The MOA has updated the definition of STIP to, ``. . . a
statewide, prioritized listing/program of transportation projects
that is consistent with the long-range statewide transportation
plan, TIPs, and required for projects to be eligible for funding
pursuant to Title 23 U.S.C. and Title 49 U.S.C. chapter 53.''
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North Carolina also added several new clauses in each MOA for the
bi-state Charlotte Area. First, DAQ adds clause 2.1.6 in the ``MPO
Duties'' sub-section, under the ``Duties of the Parties'' section,
requiring that the:
MPO, NCDOT, or its designee, shall conduct project-level
conformity analysis for MPO-sponsored projects as part of the NEPA
process for FHWA/FTA projects located in the MPO boundary. The MPO
does not have to make project-level conformity determinations.
40 CFR part 93.105 and 40 CFR part 93.122(a) require the MPOs
conduct an analysis for all FHWA/FTA projects proposed in
transportation plans, TIPs, or other regionally significant projects.
This clause was added to meet this requirement. DAQ also adds a clause
and sub-clauses to the ``Modifications of Agreement'' section. The
clause and its corresponding sub-clauses allow NC DEQ to make
administrative amendments as necessary to preserve the accuracy and
integrity of the MOAs. The sub-clauses define what constitutes an
administrative amendment. These modifications make this section more
stringent by limiting acceptable amendments to the following:
typographical errors, legal citations to accurately account for any
reorganization of laws or regulations, and public information changes,
such as the renaming of an organization. Further, EPA preliminarily
finds these modifications acceptable as any amendments will still have
to go through the SIP process to modify the transportation conformity
SIP.
DAQ has also modified several clauses in each MOA. A clause DAQ
modifies in each MOA is 2.1.13 in the ``MPO Duties'' sub-section under
the ``Duties of the Parties'' section. This clause now requires that
the applicable MPO or MPO designee submit a request to NC DEQ or its
designee for written emissions modeling results required for conformity
determinations instead of for emission factors. Further, the change
also requires the MPO, or its designee, to provide vehicle speed,
vehicle miles travelled, and other input data necessary to generate
emissions modeling results. Emissions modeling is a more comprehensive
way to characterize emissions resulting from transportation conformity
projects than simply using emissions factors because it accounts for
more variables, such as meteorology. 40 CFR 93.105(c) requires that the
agencies subject to an MOA evaluate and choose a model for regional
emissions analyses, and 40 CFR 93.122 outlines how these models should
be designed. Other provisions referring to emissions factors previously
in the MOAs are revised to refer to emissions modeling results instead.
For example, subsection 7.1.2 in each MOA specifies that the conformity
analysis reports must include the mobile model inputs and outputs used
to develop the emissions modeling results. One last clause that is
modified in each MOA is 2.2.11, which is in the ``NCDEQ Duties'' sub-
section, also under the ``Duties of the Parties'' section. This clause
requires NC DEQ to consult and review project narratives to determine
if a conformity project is an air quality concern pursuant to 40 CFR
part 93. Previously, it only required a review of project narratives to
determine if the conformity project had any particulate matter air
quality concerns. The modification to the clause makes it more
stringent because it is now not limited to particulate matter air
quality concerns.
EPA has reviewed the procedures and updates provided in the MOAs
and has preliminarily determined that they are consistent with the CAA
and the applicable transportation conformity requirements at 40 CFR
51.390 and 40 CFR part 93. Therefore, EPA is proposing to approve the
inclusion of the updated MOAs for the CRMPO, CRTPO, and GLMPO, relating
to the bi-state Charlotte Area into the North Carolina SIP.
B. Great Smoky Mountain National Park Area
Portions of Haywood and Swain Counties comprise the Great Smoky
National Park maintenance area for the
[[Page 7908]]
1997 8-hour ozone NAAQS. As indicated above, the Great Smoky Mountain
National Park Area is required to implement transportation conformity
requirements for the 1997 8-hour ozone NAAQS as a maintenance area. As
such, DAQ worked with the National Park Service, NC DOT, and the other
applicable transportation and air quality partners for the Great Smoky
Mountain National Park Area to develop and execute an updated MOA to
address the consultation and other applicable transportation conformity
requirements for the area. This MOA is provided in the docket for this
proposed rulemaking.
The bulk of the changes in the September 24, 2021, SIP revisions
concern minor language edits, clarifications, and a correction of a
typographical error. For example, one language edit changes the word
``under'' to ``pursuant to.'' An example of clarifying edits to the
Great Smoky Mountains MOA was to update the names and abbreviations of
the involved state and local agencies to their current names throughout
the MOA. Additionally, the format for statues and regulations in the
MOA have been revised, for example changing ``49 U.S.C., 40 CFR
93.101'' to ``49 U.S.C., 40 CFR 93.101'' and changing, ``40 CFR 93.126,
.127, and .128'' to ``40 CFR 93.126, 93.127, and 93.128.'' The MOA was
also updated to fix a typographical error in clause 3.2.2.5 when
referencing a specific regulation provision. Further minor, non-
substantive changes throughout the document include basic word
preference changes, grammatical changes, and the necessary renumbering
of sections to incorporate the addition of a clause.
The updates to the MOA also include several other changes,
including the modification of two definitions, the addition of one
clause, and the modification of one section. First, the MOA updates
modify the definition of ``Statewide Transportation Improvement Program
(STIP).'' 9 10 The updated definition of STIP is identical
to the definition in 23 CFR part 450. The definition of
``Transportation Improvement Program (TIP)'' has also been modified in
the MOA.11 12 This definition is similar to the one for TIP
found in 23 CFR part 450. As explained in the previous section, since
transportation plans are developed pursuant to the requirements
outlined in 23 CFR part 450, EPA finds these changes acceptable. The
updates also include adding clause 4.1.2 to the ``Conformity Analysis
Results and Reporting'' Section, which states that the conformity
analysis should include, ``Mobile model inputs and outputs needed to
develop road network emissions modeling results . . .'' As all the
parties involved are required to evaluate and choose models and the
associated assumptions for these models pursuant to 40 CFR
93.105(c)(1)(i), EPA preliminarily finds the addition of this clause
requiring the conformity analysis report to include the mobile model
inputs and outputs acceptable and helpful. Finally, the ``Modifications
and Renewal of Agreement'' section has been heavily modified in the
MOA. The modifications to this section of the Greater Smoky Mountain
Area MOA are identical to the changes made in the ``Modifications of
Agreement'' section for the bi-state Charlotte MPOs. EPA finds these
changes acceptable for the same reasons described in Section II.A.
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\9\ The previous definition in the MOA defined STIP as, ``. . .
a staged, multi-year, statewide, intermodal program of
transportation projects, which consistent with the statewide
transportation plan and planning processes.''
\10\ The MOA has updated the definition of STIP to, ``. . . a
statewide, prioritized listing/program of transportation projects
that is consistent with the long-range statewide transportation
plan, TIPs, and required for projects to be eligible for funding
pursuant to Title 23 U.S.C. and Title 49 U.S.C. chapter 53.''
\11\ The previous definition in the MOA defined TIP as a
``Transportation Improvement Program developed by FHWA-EFLHD in
coordination with NPS.''
\12\ The MOA has updated the definition of TIP to, ``. . . a
prioritized listing/program of transportation projects that are
developed by FHWA-EFLHD in coordination with the NPS and required
for projects to be eligible for funding pursuant to Title 23 U.S.C.
and 49 U.S.C. chapter 53.''
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EPA has reviewed the procedures and updates provided in the MOA and
has preliminarily determined that it is consistent with the CAA and the
applicable transportation conformity requirements at 40 CFR 51.390 and
CFR part 93. Therefore, EPA is proposing to approve the inclusion of
the updated MOA for the Great Smoky Mountain Area into the North
Carolina SIP.
C. Greensboro-Winston Salem-High Point Area
There are four MPOs within the Greensboro-Winston Salem-High Point
Area. These MPOs are:
Burlington-Graham Metropolitan Planning Organization
(BGMPO);
Greensboro Urban Area Metropolitan Planning Organization
(GMPO);
High Point Urban Area Metropolitan Planning Organization
(HPMPO); and
Winston-Salem-Forsyth Urban Area Metropolitan Planning
Organization (WSFUA).
Several counties (or portions of counties) in the Greensboro-
Winston Salem-High Point Area comprise the maintenance area for the CO
NAAQS, the previous maintenance area for the 1997 PM2.5
NAAQS, and the 1997 8-hour ozone NAAQS.\13\ The Burlington-Graham MPO
is comprised of Alamance County and portions of Guilford and Orange
Counties for the 1997 8-hour ozone NAAQS and the 1997 annual
PM2.5 NAAQS maintenance areas. The Greensboro Urban MPO is
comprised of the City of Greensboro, the majority of unincorporated
Guilford County, and the towns of Oak Ridge, Pleasant Garden, Sedalia,
Stokesdale, and Summerfield for the annual 1997 PM2.5 NAAQS
maintenance areas. The High Point Urban MPO is comprised of Archdale,
Denton, High Point, Jamestown, Lexington, Thomasville, Trinity, and
Wallburg Counties, as well as portions of Davidson, Forsyth and
Randolph Counties for the CO and 1997 PM2.5 NAAQS
maintenance areas. Lastly, the Winston-Salem Urban MPO is comprised of
portions of Forsyth, Davidson, Davie and Stokes Counties for the CO
NAAQS and 1997 PM2.5 NAAQS maintenance areas. Although no
longer required, DAQ worked with the BGMPO, GMPO, HPMPO, WSFUA, NC DOT,
and the other applicable transportation and air quality partners for
the Area to develop and execute updated MOAs to address the
consultation and other applicable transportation conformity
requirements such as 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c) for
the Area.\14\ These MOAs are provided in the docket for this proposed
rulemaking.
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\13\ The Greensboro-Winston Salem-High Point Area was an Early
Action Compact (EAC) area for the 1997 8-hour ozone NAAQS. This area
was designated nonattainment on June 15, 2004, for the 1997 8-hour
ozone NAAQS, with a deferred effective date. The Area met all of the
EAC milestones and was ultimately never effectively designated
nonattainment for the 1997 8-hour ozone NAAQS. The area was
therefore never required to implement transportation conformity
requirements for the 1997 8-hour ozone NAAQS, but was required to
continue to implement transportation conformity requirements for the
1-hour ozone NAAQS until this requirement was removed as a result of
the area successfully meeting the EAC milestones for the 1997 8-hour
ozone NAAQS.
\14\ Transportation conformity requirements are no longer
applicable to the Davidson and Guilford Counties 1997
PM2.5 NAAQS maintenance areas.
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North Carolina's September 24, 2021, SIP revisions for the MOAs
associated with the Greensboro-Winston Salem-High Point Area, make the
same changes to these MOAs as the bi-state Charlotte MOAs. As such,
North Carolina's September 24, 2021, SIP revisions update the MOA
definitions, party
[[Page 7909]]
duties section, conformity analysis results and reporting section, and
the ``Modifications of Agreement'' section. Since the updates to the
MOAs in the Greensboro-Winston Salem-High Point Area are the same as
those to the MOAs for the bi-state Charlotte Area, EPA has
preliminarily determined that these modifications are consistent with
the CAA and the applicable transportation conformity requirements at 40
CFR 51.390 and 40 CFR part 93 for the reasons described in Section
II.A. Therefore, EPA is proposing to approve the inclusion of the
updated MOAs for the BGMPO, GMPO, HPMPO, and WSFUA, relating to the
Greensboro-Winston Salem-High Point Area, into the North Carolina SIP.
D. Hickory Area
The Hickory Area consists of one MPO, the Greater Hickory MPO,
which is comprised of Alexander, Burke, Caldwell, and Catawba Counties.
The Hickory Area is a maintenance area for the 1997 PM2.5
NAAQS. As indicated above, the Hickory Area was previously required to
implement transportation conformity requirements for the 1997
PM2.5 NAAQS as a maintenance area. Although no longer
required, DAQ worked with the Greater Hickory MPO, and other applicable
transportation and air quality partners for the Hickory Area to develop
and execute an updated MOA to address the consultation and other
applicable transportation conformity requirements such as 40 CFR
93.122(a)(4)(ii) and 40 CFR 93.125(c) for the Area. This MOA is
provided in the docket for this proposed rulemaking.
North Carolina's September 24, 2021, SIP revisions make the same
changes to the Greater Hickory MOA as those made to the MOAs for the
bi-State Charlotte Area. As such, these changes update the MOA
definitions, party duties section, conformity analysis results and
reporting section, and the Modifications of Agreement section. Since
the updates to the Greater Hickory MOA are the same as those made to
the MOAs for the bi-State Charlotte Area, EPA has preliminarily
determined that it is consistent with the CAA and the applicable
transportation conformity requirements at 40 CFR 51.390 and 40 CFR part
93 for the reasons described in Section II.A. Therefore, EPA is
proposing to approve the inclusion of the updated MOA for the Greater
Hickory MPO, relating to the Hickory Area, into the North Carolina SIP.
E. Raleigh-Durham-Chapel Hill Area
There are two MPOs within the Raleigh, Durham, Chapel Hill Area.
These MPOs are:
Durham-Chapel Hill-Carrboro MPO; and
North Carolina Capital Area MPO.
Several counties (or portions of counties) in the Raleigh-Durham-
Chapel Hill Area comprise a maintenance area for the CO NAAQS and a
maintenance area for the 1997 8-hour ozone NAAQS. The Durham-Chapel
Hill-Carrboro MPO consists of Durham County; the portion of Orange
County that contains the towns of Chapel Hill, Carrboro, and
Hillsborough; and Northeast Chatham County. The North Carolina Capital
Area MPO consists of Franklin, Granville, Harnett, Johnston, and Wake
Counties. Durham, Franklin, Granville, Orange, Johnston, Person,\15\
and Wake Counties, in their entireties, and a portion of Chatham County
in the Raleigh-Durham-Chapel Hill Area were included in the maintenance
area for the 1997 8-hour ozone NAAQS, and thus, are required to
implement transportation conformity requirements.\16\
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\15\ NC DOT administers transportation conformity requirements
for Person County in accordance with the MOA for rural areas. See
Section II.G, below.
\16\ The end of the second maintenance plan has been reached for
CO for Durham and Wake Counties, so transportation conformity is no
longer required in relation to the CO NAAQS for the Raleigh-Durham-
Chapel Hill Area.
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DAQ worked with the Durham-Chapel Hill-Carrboro MPO, the North
Carolina Capital Area MPO, NC DOT, and the other applicable
transportation and air quality partners for the Area to develop and
execute updated MOAs to address the consultation and other applicable
transportation conformity SIP requirements such as 40 CFR
93.122(a)(4)(ii) and 40 CFR 93.125(c) for the Area. These MOAs are
provided in the docket for this proposed rulemaking.
North Carolina's September 24, 2021, SIP revisions make the same
changes to the Raleigh-Durham-Chapel Hill Area MOAs as the bi-State
Charlotte MOAs. As such, North Carolina's September 24, 2021, SIP
revisions update the MOA definitions, party duties section, conformity
analysis results and reporting section, and the Modifications of
Agreement section. Since the updates to the MOAs in the Raleigh-Durham-
Chapel Hill Area are the same as those to the MOAs in the bi-State
Charlotte Area, EPA has preliminarily determined that these are
consistent with the CAA and the applicable transportation conformity
requirements at 40 CFR 51.390 and 40 CFR part 93 for the reasons
described in Section II.A. Therefore, EPA is proposing to approve the
inclusion of the updated MOAs for the Durham-Chapel Hill-Cabarrus MPO
and North Carolina Capital Area MPO, relating to the Raleigh-Durham-
Chapel Hill Area, into the North Carolina SIP.
F. Rocky Mount Area
There is one MPO in the Rocky Mount Area, the Rocky Mount Urban
Area MPO, which is comprised of the City of Rocky Mount, the towns of
Nashville and Sharpsburg, and portions of Edgecombe and Nash Counties.
Edgecombe and Nash Counties are in maintenance for the 1997 8-hour
ozone NAAQS. DAQ worked with the Rocky Mount Urban Area MPO and other
applicable transportation and air quality partners for the Rocky Mount
Area to develop and execute an updated MOA to address the consultation
and other applicable transportation conformity SIP requirements for the
Area. This MOA is provided in the docket for this proposed rulemaking.
North Carolina's September 24, 2021, SIP revisions make the same
changes to the Rocky Mount Area MOA as those made to the MOAs for the
bi-state Charlotte Area with the exception of the definition for
TIP.\17\ As such, these changes update the MOA definitions, party
duties section, conformity analysis results and reporting section, and
the Modifications of Agreement section. Since the updates to the Rocky
Mount MOA are the same as those to the MOAs in the bi-state Charlotte
Area,\18\ EPA has preliminarily determined that it is consistent with
the CAA and the applicable transportation conformity requirements at 40
CFR 51.390 and 40 CFR part 93 for the reasons described in Section
II.A. Therefore, EPA is proposing to approve the inclusion of the
updated MOA for the Rocky Mount Area into the North Carolina SIP.
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\17\ The Rocky Mount Area MOA uses a slightly different
definition for TIP than the bi-state Charlotte Area MOAs. It defines
it as, ``. . . a staged, multi-year, intermodal program of
transportation projects covering a metropolitan planning area which
is consistent with the MTP and was developed pursuant to 23 CFR,
Part 450.'' Outside of this difference, the rest of the revisions
are the same as the MOAs for the MPOs in the bi-State Charlotte
Area. As transportation conformity requires that federally-supported
transportation activities, such as TIPs, are consistent with the
purposes of the SIP pursuant to 23 CFR, Part 450, this definition is
acceptable.
\18\ See id.
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G. Rural Area
NC DOT is the responsible party for interagency consultation and
compliance with transportation conformity requirements if no MPO exists
in an area that is subject to 40 CFR part 93. Currently, Person County
is subject to transportation conformity per the 1997 8-hour ozone NAAQS
and does not have an MPO responsible for it. Therefore, NC DOT
administers
[[Page 7910]]
transportation conformity requirements for this area in accordance with
the MOA for rural areas. DAQ worked with NC DOT and other applicable
transportation and air quality partners for the area to develop and
execute an updated MOA to address the consultation and other applicable
transportation conformity SIP requirements such as 40 CFR
93.122(a)(4)(ii) and 40 CFR 93.125(c). This MOA is provided in the
docket for this proposed rulemaking.
North Carolina's September 24, 2021, SIP revisions for the Rural
Area MOA make many of the same changes as the bi-State Charlotte MOAs
and the Great Smoky Mountain Area MOA. With respect to ``Duties of the
Parties'' section, the Interagency Consultation Conformity
Determination Meeting timing clarification, a typographical error in
clause 6.3.1.5, the removal of the ``Termination of Agreement''
section, and the Modifications of Agreement section, the Rural Area MOA
makes the same changes as those made in the bi-state Charlotte MOAs.
With respect to the definitions for ``Transportation Improvement
Program (TIP)'' and ``Statewide Transportation Improvement Program
(STIP)'', the Rural Area MOA makes the same changes as the Great Smoky
Mountain National Park Area MOA. EPA finds these changes acceptable of
the same reasons outlined in Sections II.A and II.B. Further minor,
non-substantive changes throughout the document include basic word
preference changes, grammatical changes, and the necessary renumbering
of sections to incorporate the addition of a clause.
EPA has reviewed the procedures and updates provided in the MOA and
has preliminarily determined that it is consistent with the CAA and the
applicable transportation conformity requirements at 40 CFR 51.390 and
40 CFR part 93. Therefore, EPA is proposing to approve the inclusion of
the updated MOA for the Rural Area into the North Carolina SIP.
III. Proposed Actions
For the reasons discussed above, EPA is proposing to approve North
Carolina's September 24, 2021, SIP revisions. Specifically, EPA is
proposing to approve the replacement of Transportation Conformity MOAs
for the Burlington-Graham MPO, Cabarrus-Rowan MPO, Charlotte Regional
Transportation Planning Organization, Durham-Chapel Hill-Carrboro MPO,
Gaston-Cleveland-Lincoln MPO, Greater Hickory MPO, Greensboro Urban
Area MPO, High Point Urban Area MPO, North Carolina Capital Area MPO,
Rocky Mount Urban Area MPO, the Great Smoky Mountains National Park
(NPS), and Rural Area (NC DOT). EPA is proposing to find that these
actions are consistent with section 110 and 176 of the CAA and will not
interfere with any applicable requirement concerning attainment and
reasonable further progress or any other applicable requirement of the
CAA.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided they meet the criteria of the CAA. These actions merely
propose to approve state law as meeting Federal requirements and do not
impose additional requirements beyond those imposed by state law. For
that reason, these proposed actions:
Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having significant economic impacts
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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; and
Do not provide 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 revisions are not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the proposed rules do not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor
will they impose substantial direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 31, 2023.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2023-02488 Filed 2-6-23; 8:45 am]
BILLING CODE 6560-50-P