Approval and Promulgation of Air Quality Implementation Plans:

Federal Register Volume 76, Number 202 (Wednesday, October 19, 2011)

Rules and Regulations

Pages 64823-64825

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-26905

Page 64823

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52

EPA-R03-OAR-2011-0788; FRL-9480-8

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 December 19, 2011 without further notice, unless EPA receives adverse written comment by November 18, 2011. 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-2011-0788, by one of the following methods:

1. http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. E-mail: fernandez.cristina@epa.gov.

3. Mail: EPA-R03-OAR-2011-0788, Cristina Fernandez, Associate

   Director, Office of Air Program Planning, Mailcode 3AP30, U.S.

   Environmental Protection Agency, Region III, 1650 Arch Street,

   Philadelphia, Pennsylvania 19103.

4. 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- 2011-0788. 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, 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: Gregory Becoat, (215) 814-2036, or by e-mail at becoat.gregory@epa.gov.

   SUPPLEMENTARY INFORMATION:

   1. Background

      Transportation conformity is required under section 176(c) of the

      CAA 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 CAA for the following transportation related criteria pollutants: Ozone, particulate matter (PM2.5and 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).

      On October 17, 2006 (71 FR 61144), EPA promulgated a final rule that strengthened the 24-hour PM2.5NAAQS and revoked the annual PM10NAAQS. As a result of this rulemaking, EPA promulgated amendments to the transportation conformity rule in order to provide regulations for implementing conformity for the revisions to the PM2.5and PM10NAAQS and to address hot-spot analyses as a result of a remand from the Court of Appeals for the

      District of Columbia Circuit (March 24, 2010, 75 FR 14260).

   2. Summary of SIP Revision

      On June 13, 2011, the Virginia Department of Environmental Quality

      (VADEQ) submitted a revision to its SIP for Transportation Conformity purposes. The SIP revision consists of amendments to the Commonwealth

      Regulation for Transportation Conformity (9VAC5 Chapter 151). This SIP revision addresses provisions of the EPA Conformity Rule required under 40 CFR part 93. The revision amends 9VAC5-151-40, entitled ``General,'' in order to change the date of the specific version of the provisions incorporated by reference from Code of Federal Regulations (CFR) (2008) in effect July 1, 2008 to CFR (2010) in effect July 1, 2010. The SIP revision also amends 9VAC5-151-70, entitled ``Consultation,'' in order to change conformity tests and methodologies for isolated rural nonattainment and maintenance areas as required by 40 CFR 93.109(1)(2)(iii) to as required by 40 CFR 93.109(n)(2)(iii).

      EPA's review of Virginia's SIP revisions indicates that it is consistent with EPA's Conformity Rule. Virginia met the requirements under 40 CFR 51.390 to establish conformity criteria and procedures consistent with the transportation conformity regulation promulgated by

      EPA under 40 CFR part 93. In order to implement the federal transportation conformity requirements, Virginia's regulation must reflect the most recent rulemaking promulgated by EPA on March 24, 2010

      (75 FR 14260).

      Page 64824

   3. 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 Sec. 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 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 Sec. 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 Sec. 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 Sec. 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.

   4. Final Action

      EPA is approving the Virginia SIP revision for transportation conformity, which was submitted on June 13, 2011. 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 December 19, 2011 without further notice unless EPA receives adverse comment by November 18, 2011. 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.

   5. Statutory and Executive Order Reviews

1. General Requirements

   Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. 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 CAA; 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

   Page 64825

   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.

2. 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).

3. Petitions for Judicial Review

   Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 19, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking.

   This action to approve the Virginia Transportation Conformity

   Regulation may not be challenged later in proceedings to enforce its requirements. (See CAA 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.

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

   Dated: October 3, 2011.

   W.C. Early,

   Acting Regional Administrator, Region III. 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 revising the entries for Sections 5-151-40 and 5-151-70 to read as follows:

   Sec. 52.2420 Identification of plan.

   * * * * *

   (c) * * *

   EPA-Approved Virginia Regulations and Statutes

   State effective

   EPA approval

   Explanation [former SIP

   State citation

   Title/subject

   date

   date

   citation]

   * * * * * * *

   9 VAC 5, Chapter 151......

   Transportation Conformity

   * * * * * * *

   Part III..................

   Criteria and Procedures for Making Conformity Determinations

   5-151-40.................. General.........

   3/2/11 10/19/11 [Insert page number where the document begins].

   * * * * * * * 5-151-70.................. Consultation....

   3/2/11 10/19/11 [Insert

   Section D.1.f. is amended. page number where the document begins].

   * * * * * * *

   * * * * *

   FR Doc. 2011-26905 Filed 10-18-11; 8:45 am

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