	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

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

	Approval and Promulgation of Air Quality Implementation Plans;

	State of Delaware Transportation Conformity Regulations 

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

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 [insert date 30
days from date of publication].  

ADDRESSES: Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2007-1009 by one of the following methods:

     A.   www.regulations.gov.  Follow the on-line instructions for
submitting comments.

     B.   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 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 www.regulations.gov or
e-mail.  The www.regulations.gov website 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
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
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, 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 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, state’s 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 kind 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  HYPERLINK "
http://epa.gov/otaq/stateresources/transconf/policy.htm"  
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 40CFR 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 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.

  October 29, 2007 

Dated:                                                                  
                \s\                    				

                                                                        
           Donald S. Welsh,

Regional Administrator,

Region III.

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