
[Federal Register: November 20, 2009 (Volume 74, Number 223)]
[Rules and Regulations]               
[Page 60194-60197]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20no09-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0674; FRL-8983-1]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
State Implementation Plan (SIP) submitted by the Commonwealth of 
Virginia. This revision establishes Virginia's transportation 
conformity requirements. After they have been approved, the 
Commonwealth's regulations will govern transportation conformity 
determinations in the Commonwealth of Virginia. EPA is approving these 
revisions in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This rule is effective on January 19, 2010 without further 
notice, unless EPA receives adverse written comment by December 21, 
2009. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2009-0674 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2009-0674, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, 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-
2009-0674. 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

[[Page 60195]]

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, 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 Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

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. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia
V. What Action Is EPA Taking Today?
VI. 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 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 Virginia Department of Environmental Quality 
(VADEQ) submitted a revision to its SIP for Transportation Conformity 
purposes. The SIP revision consists of the State Regulation for 
Transportation Conformity (9 VAC 5 Chapter 151). 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 Virginia'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 9 VAC 5 Chapter 151-70 
identifies the appropriate agencies, procedures and allocation of 
responsibilities as required under 40 CFR 93.105 for consultation 
procedures. In addition, Regulation 9 VAC 5 Chapter 151-50 and 
Regulation 9 VAC 5 Chapter 151-60 provide 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 9 VAC 5 Chapter 151-50 also specifies that 
written commitments for control measures and mitigation measures for 
meeting these requirements will be provided as needed.

IV. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Section 
10.1-1198, provides a privilege that protects from disclosure documents 
and information about the content of those documents that are the 
product of a voluntary environmental assessment. The Privilege Law does 
not extend to documents or information (1) That are generated or 
developed before the commencement of a voluntary environmental 
assessment; (2) that are prepared independently of the assessment 
process; (3) that demonstrate a clear, imminent and substantial danger 
to the public health or

[[Page 60196]]

environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege Law, Va. Code Section 10.1-1198, precludes granting a 
privilege to documents and information ``required by law,'' including 
documents and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts * * *.'' The opinion 
concludes that ``[r]egarding 10.1-1198, therefore, documents or other 
information needed for civil or criminal enforcement under one of these 
programs could not be privileged because such documents and information 
are essential to pursuing enforcement in a manner required by Federal 
law to maintain program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Section 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

V. What Action Is EPA Taking Today?

    EPA is approving the Virginia SIP revision for Transportation 
Conformity, which was submitted on July 9, 2007. EPA is publishing this 
rule without prior proposal because the Agency views this as a 
noncontroversial amendment and anticipates no adverse comment. However, 
in the Proposed Rules section of today's Federal Register, EPA is 
publishing a separate document that will serve as the proposal to 
approve the SIP revision if adverse comments are filed. This rule will 
be effective on January 19, 2010 without further notice unless EPA 
receives adverse comment by December 21, 2009. If EPA receives adverse 
comment, EPA will publish a timely withdrawal in the Federal Register 
informing the public that the rule will not take effect. EPA will 
address all public comments in a subsequent final rule based on the 
proposed rule. EPA will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

VI. Statutory and Executive Order Reviews

A. General Requirements

    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, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this 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 action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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 Clean Air Act; and
     Does 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).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 19, 2010. Filing a

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petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action to approve the Virginia Transportation 
Conformity Regulation may not be challenged later in proceedings to 
enforce its requirements. (See, section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: November 5, 2009.
William C. Early,
Acting Regional Administrator, Region III.


0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR part 52 continues to read as 
follows:

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

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by adding an 
entry for Chapter 151 after the existing Chapter 140 to read as 
follows:


52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                      State
 State citation  (9 VAC 5)      Title/subject       effective        EPA approval date      Explanation  [former
                                                       date                                     SIP citation]
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                                                  * * * * * * *
                                      Chapter 151 Transportation Conformity
----------------------------------------------------------------------------------------------------------------
                                           Part I General Definitions
----------------------------------------------------------------------------------------------------------------
5-151-10..................  Definitions..........     12/31/08  11/20/09 [Insert page       ....................
                                                                 number where the document
                                                                 begins].
----------------------------------------------------------------------------------------------------------------
                                           Part II General Provisions
----------------------------------------------------------------------------------------------------------------
5-151-20..................  Applicability........     12/31/08  11/20/09 [Insert page       ....................
                                                                 number where the document
                                                                 begins].
5-151-30..................  Authority of Board        12/31/08  11/20/09 [Insert page       ....................
                             and DEQ.                            number where the document
                                                                 begins].
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                      Part III Criteria and Procedures for Making Conformity Determinations
----------------------------------------------------------------------------------------------------------------
5-151-40..................  General..............     12/31/08  11/20/09 [Insert page       ....................
                                                                 number where the document
                                                                 begins].
5-151-50..................  Designated provisions     12/31/08  11/20/09 [Insert page       ....................
                                                                 number where the document
                                                                 begins].
5-151-60..................  Word or phrase            12/31/08  11/20/09 [Insert page       ....................
                             substitutions.                      number where the document
                                                                 begins].
5-151-70..................  Consultation.........     12/31/08  11/20/09 [Insert page       ....................
                                                                 number where the document
                                                                 begins].

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[FR Doc. E9-27814 Filed 11-19-09; 8:45 am]

BILLING CODE 6560-50-P
