[Federal Register Volume 74, Number 223 (Friday, November 20, 2009)]
[Rules and Regulations]
[Pages 60194-60197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27814]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: [email protected].
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 [email protected].
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
[[Page 60197]]
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
----------------------------------------------------------------------------------------------------------------
State
State citation (9 VAC 5) Title/subject effective EPA approval date Explanation [former
date SIP citation]
----------------------------------------------------------------------------------------------------------------
* * * * * * *
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].
----------------------------------------------------------------------------------------------------------------
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].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. E9-27814 Filed 11-19-09; 8:45 am]
BILLING CODE 6560-50-P