

[Federal Register: November 7, 2007 (Volume 72, Number 215)]
[Proposed Rules]               
[Page 62807-62809]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07no07-24]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1009; FRL-8492-7]

 
Approval and Promulgation of Air Quality Implementation Plans; 
State of Delaware Transportation Conformity Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Delaware. This revision establishes 
the State's transportation conformity requirements. After they have 
been approved, the State regulations will govern transportation 
conformity determinations in the State of Delaware. This action is 
being taken under the Clean Air Act.

DATES: Written comments must be received on or before December 7, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-1009 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    . E-mail: febbo.carol@epa.gov.
    C. Mail: EPA-R03-OAR-2007-1009, Carol Febbo, Chief, Energy, 
Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2007-1009. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov, 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material,

[[Page 62808]]

is not placed on the Internet and will be publicly available only in 
hard copy form. Publicly available docket materials are available 
either electronically in http://www.regulations.gov or in hard copy during 

normal business hours at the Air Protection Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the State submittal are 
available at the Delaware Department of Natural Resources & 
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 
19903.

FOR FURTHER INFORMATION CONTACT: Martin Kotsch, (215) 814-3335, or by 
e-mail at kotsch.martin@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'', 
``us'', or ``our'' is used, we mean EPA.

Table of Contents

I. What Is Transportation Conformity?
II. What Is the Background for This Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews

I. What Is Transportation Conformity?

    Transportation conformity is required under section 176(c) of the 
Clean Air Act to ensure that Federally supported highway, transit 
projects, and other activities are consistent with (conform to) the 
purpose of the SIP. Conformity currently applies to areas that are 
designated nonattainment, and those redesignated to attainment after 
1990 (maintenance areas), with plans developed under section 175A of 
the Clean Air Act for the following transportation related criteria 
pollutants: ozone, particulate matter (PM2.5 and 
PM10), carbon monoxide (CO), and nitrogen dioxide 
(NO2). 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). The transportation 
conformity regulation is found in 40 CFR part 93 and provisions related 
to conformity SIPs are found in 40 CFR 51.390.

II. What Is the Background for This Action?

    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 certain provisions of section 176(c) of 
the Clean Air Act, related to transportation conformity. Prior to 
SAFETEA-LU, states were required to address all of the Federal 
conformity rule's provisions in their conformity SIPs. After SAFETEA-
LU, states' SIPs were required to contain all or portions of only the 
following three sections of the Federal rule, modified as appropriate 
to each state's circumstances: 40 CFR 93.105 (consultation procedures); 
40 CFR 93.122(a)(4)(ii) (written commitments to implement certain kinds 
of control measures); and 40 CFR 93.125(c) (written commitments to 
implement certain kinds of mitigation measures). States are no longer 
required to submit conformity SIP revisions that address the other 
sections of the Federal conformity rule.

III. What Did the State Submit and How Did We Evaluate It?

    On July 9, 2007, the Delaware Department of Natural Resources and 
Environmental Control (DNREC) submitted a revision to its State 
Implementation Plan (SIP) for Transportation Conformity purposes. The 
SIP revision consists of the State Regulation 1132, Delaware 
Transportation Conformity Regulation. This SIP revision addresses the 
three provisions of the EPA Conformity Rule required under SAFETEA-LU: 
40 CFR 93.105 (consultation procedures); 40 CFR 93.122(a)(4)(ii) 
(control measures) and, 40 CFR 93.125(c) (mitigation measures).
    We reviewed the submittal to assure consistency with the February 
14, 2006 ``Interim Guidance for Implementing the Transportation 
Conformity provisions in the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU).'' The 
guidance document can be found at http://epa.gov/otaq/stateresources/transconf/policy.htm.
 The guidance document states that each state is 

only required to address and tailor the afore-mentioned three sections 
of the Federal Conformity Rule to be included in their state conformity 
SIPs.
    EPA's review of Delaware's proposed SIP indicates that it is 
consistent with EPA's guidance in that it includes the three elements 
specified by SAFETEA-LU. Consistent with the EPA Conformity Rule at 40 
CFR 93.105 (consultation procedures), Regulation 1132(3) identifies the 
appropriate agencies, procedures and allocation of responsibilities as 
required under 40 CFR 93.105 for consultation procedures. In addition, 
Regulation 1132(3) provides for appropriate public consultation/public 
involvement consistent with 40 CFR 93.105. With respect to the 
requirements of 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), 
Regulation 1132(4) specifies that written commitments for control 
measures and mitigation measures for meeting these requirements will be 
provided as needed.

IV. What Action Is EPA Taking Today?

    EPA is proposing to approve the Delaware SIP revision for 
Transportation Conformity, which was submitted on July 9, 2007. This 
revision is being proposed under a procedure called parallel 
processing, whereby EPA proposes rulemaking action concurrently with 
the state's procedures for amending its regulations. If the proposed 
revision is changed in areas other than those identified in this 
action, EPA will evaluate those changes and may publish another notice 
of proposed rulemaking. If no changes are made, EPA will publish a 
Final Rulemaking Notice on the revisions. The final rulemaking action 
by EPA will occur only after the SIP revision has been adopted by the 
State of Delaware and submitted formally to EPA for incorporation into 
the SIP. EPA is soliciting public comments on the issues discussed in 
this document. These comments will be considered before taking final 
action.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).
    Because this rule proposes to approve pre-existing requirements 
under state law and does not impose any additional enforceable duty 
beyond that required by state law, it does not contain any unfunded 
mandate or significantly or uniquely affect small governments, as 
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4). This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or

[[Page 62809]]

more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action also 
does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This 
action merely proposes to approve a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it approves a state rule implementing a 
Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule to 
approve Delaware's transportation conformity regulation does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Volatile organic compounds.

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

    Dated: October 29, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
 [FR Doc. E7-21853 Filed 11-6-07; 8:45 am]

BILLING CODE 6560-50-P
