Federal Register / Vol. 76, No. 202 / Wednesday, October 19, 2011 / Rules and Regulations 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: 

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–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. 

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–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: 

I. 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 (PM2.5 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). 

On October 17, 2006 (71 FR 61144), 

EPA promulgated a final rule that 

strengthened the 24-hour PM2.5 NAAQS 

and revoked the annual PM10 NAAQS. 

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 PM2.5

and PM10 NAAQS and to address hotspot analyses as a result of a remand 

from the Court of Appeals for the 

District of Columbia Circuit (March 24, 

2010, 75 FR 14260). 

II. 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). 


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64824 Federal Register / Vol. 76, No. 202 / Wednesday, October 19, 2011 / Rules and Regulations 

III. 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 

§ 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. 

IV. 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. 

V. Statutory and Executive Order 

Reviews 

A. 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 


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Federal Register / Vol. 76, No. 202 / Wednesday, October 19, 2011 / Rules and Regulations 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. 

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 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] 

■ 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 revising the entries 

for Sections 5–151–40 and 5–151–70 to 

read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject State effective 

date EPA approval date Explanation [former SIP 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 page number where the document 

begins].

Section D.1.f. is amended. 

* * * * * * * 

* * * * * 

[FR Doc. 2011–26905 Filed 10–18–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2011–0017; EPA–R05– 

OAR–2011–0106; FRL–9480–6] 

Approval and Promulgation of Air 

Quality Implementation Plans, Ohio 

and Indiana; Redesignation of the Ohio 

and Indiana Portions CincinnatiHamilton Area to Attainment of the 

1997 Annual Standard for Fine 

Particulate Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving, under the 

Clean Air Act (CAA), Ohio’s and 

Indiana’s requests to redesignate their 

respective portions of the CincinnatiHamilton nonattainment area (for Ohio: 

Butler, Clermont, Hamilton, and Warren 

Counties, Ohio; for IN: a portion of 

Dearborn County) to attainment for the 

1997 annual National Ambient Air 

Quality Standard (NAAQS or standard) 

for fine particulate matter (PM2.5). The 

Ohio Environmental Protection Agency 

(Ohio EPA) submitted its request on 

December 9, 2010, and the Indiana 


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