Approval and Promulgation of Air Quality Implementation Plans; Virginia; Transportation Conformity Regulations, 60194-60197 [E9-27814]
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60194
Federal Register / Vol. 74, No. 223 / Friday, November 20, 2009 / Rules and Regulations
Reasonable and direct access, via
snowmobile, to adjacent public lands
will continue to be permitted on the
designated routes through the park
identified in the following paragraphs
(g)(16)(i) through (iv). Requirements
established in this section related to air
and sound emissions, daily entry limits,
snowmobile operator age, guiding, and
licensing do not apply on these
oversnow routes. The following routes
are designated for access via
snowmobile to public lands:
(i) From the parking area at Shadow
Mountain directly along the unplowed
portion of the road to the east park
boundary.
(ii) Along the unplowed portion of the
Ditch Creek Road directly to the east
park boundary.
(iii) The Continental Divide
Snowmobile Trail (CDST) along U.S. 26/
287 from the east park boundary to a
point approximately 2 miles east of
Moran Junction. If necessary for the
proper administration of visitor use and
resource protection, the Superintendent
may extend this designated route to the
Moran Entrance Station.
(iv) The Superintendent may
designate additional routes if necessary
to provide access to other adjacent
public lands.
(17) For what purpose may I use the
routes designated in paragraph (g)(16)
of this section? You may only use those
routes designated in paragraph (g)(16) of
this section to gain direct access to
public lands adjacent to the park
boundary.
(18) May I continue to access private
property within or adjacent to the park
via snowmobile? The Superintendent
may establish reasonable and direct
snowmobile access routes to the
inholding or to private property
adjacent to park boundaries for which
other routes or means of access are not
reasonably available. Requirements
established in this section related to air
and sound emissions, snowmobile
operator age, licensing, and guiding do
not apply on these oversnow routes. The
following routes are designated for
access to private properties within or
adjacent to the park:
(i) From the Antelope Flats Road off
U.S. 26/89/191 to private lands in the
Craighead Subdivision.
(ii) The unplowed portion of the
Teton Park Road to the piece of land
commonly referred to as the ‘‘Townsend
Property.’’
(iii) From the Moose-Wilson Road to
the land commonly referred to as the
‘‘Barker Property.’’
(iv) From the Moose-Wilson Road to
the property commonly referred to as
the ‘‘Halpin Property.’’
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(v) From Highway 26/89/191 to those
lands commonly referred to as the
‘‘Meadows’’, the ‘‘Circle EW Ranch’’, the
‘‘Moulton Property’’, the ‘‘Levinson
Property’’ and the ‘‘Macmahon
Property.’’
(vi) From Cunningham Cabin pullout
on U.S. 26/89/191 near Triangle X to the
piece of land commonly referred to as
the ‘‘Lost Creek Ranch.’’
(vii) The Superintendent may
designate additional routes if necessary
to provide reasonable access to
inholdings or adjacent private property.
(viii) Maps detailing designated routes
will be available from Park
Headquarters.
(19) For what purpose may I use the
routes designated in paragraph (g)(18)
of this section? The routes designated in
paragraph (g)(18) of this section are only
to access private property within or
directly adjacent to the park boundary.
Use of these roads via snowmobile is
authorized only for the landowners and
their representatives or guests. Use of
these roads by anyone else or for any
other purpose is prohibited.
(20) Is violating any of the provisions
of this section prohibited (i) Violating
any of the terms, conditions or
requirements of paragraphs (g)(3)
through (g)(19) of this section is
prohibited.
(ii) Anyone who violates any of the
terms, conditions or requirements of
this regulation will be considered to
have committed one separate offense for
each term, condition or requirement that
they violate.
Dated: November 16, 2009.
Thomas L Strickland,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. E9–27894 Filed 11–17–09; 4:15 pm]
BILLING CODE 4310–CX–P
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.
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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. https://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 previouslylisted 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 https://
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 https://
www.regulations.gov or e-mail. The
https://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 https://
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
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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
https://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 https://
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
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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).
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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
https://epa.gov/otaq/stateresources/
transconf/policy.htm. The guidance
document states that each state is only
required to address and tailor the afore-
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60195
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
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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.
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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.);
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• 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
PART 52—[AMENDED]
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
■
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
2. In § 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:
■
Dated: November 5, 2009.
William C. Early,
Acting Regional Administrator, Region III.
52.2420
*
■
40 CFR part 52 is amended as follows:
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
State citation
(9 VAC 5)
State
effective
date
Title/subject
*
*
*
Chapter 151
Part I
5–151–10 ...........
Definitions ........................
12/31/08
Applicability ......................
12/31/08
5–151–30 ...........
Authority of Board and
DEQ.
12/31/08
Part III
General ............................
12/31/08
5–151–50 ...........
Designated provisions ......
12/31/08
5–151–60 ...........
Word or phrase substitutions.
Consultation .....................
12/31/08
*
*
*
*
*
*
*
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R05–OAR–2009–0771; FRL–8980–4]
Approval and Promulgation of Air
Quality Implementation Plans; Indiana
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: EPA is approving a request
submitted by the Indiana Department of
15:06 Nov 19, 2009
12/31/08
*
[FR Doc. E9–27814 Filed 11–19–09; 8:45 am]
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*
*
General Definitions
General Provisions
11/20/09 [Insert page number where the document
begins].
11/20/09 [Insert page number where the document
begins].
Criteria and Procedures for Making Conformity Determinations
5–151–40 ...........
5–151–70 ...........
*
*
Transportation Conformity
11/20/09 [Insert page number where the document
begins].
Part II
5–151–20 ...........
Explanation
[former SIP
citation]
EPA approval date
11/20/09 [Insert
begins].
11/20/09 [Insert
begins].
11/20/09 [Insert
begins].
11/20/09 [Insert
begins].
page number where the document
page number where the document
page number where the document
page number where the document
*
*
Environmental Management (IDEM) on
September 25, 2009, to revise the
Indiana State Implementation Plan
(SIP). The submission revises the
Indiana Administrative Code (IAC) by
amending and updating the definition of
‘‘References to the Code of Federal
Regulations,’’ to refer to the 2008
edition.
DATES: This rule is effective on January
19, 2010, unless EPA receives adverse
written comments by December 21,
2009. If EPA receives adverse
comments, EPA will publish a timely
withdrawal of the rule in the Federal
Register and inform the public that the
rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
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*
*
OAR–2009–0771 by one of the following
methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: mooney.john@epa.gov.
• Fax: (312) 692–2551.
• Mail: John Mooney, Chief, Criteria
Pollutant Section, Air Programs Branch
(AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
• Hand Delivery: John Mooney, Chief,
Criteria Pollutant Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted
during the Regional Office normal hours
of operation, and special arrangements
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]]>Agencies
[Federal Register Volume 74, Number 223 (Friday, November 20, 2009)]
[Rules and Regulations]
[Pages 60194-60197]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27814]
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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.
-----------------------------------------------------------------------
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. https://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 https://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 https://www.regulations.gov or e-mail. The https://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 https://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
https://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 https://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 https://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
