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[Federal Register Volume 78, Number 62 (Monday, April 1, 2013)]
[Rules and Regulations]
[Pages 19421-19424]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07384]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0082; FRL-9795-6]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
State Implementation Plan (SIP) submitted by the Commonwealth of 
Virginia. This revision amends Virginia's transportation conformity 
requirements in order to be consistent with EPA's revised 
transportation conformity requirements. EPA is approving these 
revisions in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This rule is effective on May 31, 2013 without further notice, 
unless EPA receives adverse written comment by May 1, 2013. 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-2013-0082, by one of the following methods:
    A. www.regulations.gov. Follow the online instructions for 
submitting comments.
    B. Email: fernandez.cristina@epa.gov
    C. Mail: EPA-R03-OAR-2013-0082, 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-
2013-0082. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at 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 www.regulations.gov or email. The 
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 email comment 
directly to EPA without going through www.regulations.gov, your email 
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 
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 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 Commonwealth's 
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 
email 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, 
fine particulate matter (PM2.5) and coarse particulate 
matter (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 March 14, 2012 (77 FR 14979), EPA promulgated various 
administrative amendments to the Federal transportation regulation. As 
a result of this rulemaking, under 40 CFR 51.390, Virginia is required 
to submit a SIP revision that establishes conformity criteria and 
procedures consistent with the transportation conformity regulation 
promulgated in 40 CFR part 93.

II. Summary of SIP Revision

    In order to implement the Federal transportation conformity 
requirements, the Commonwealth of Virginia's regulation must reflect 
the recent revisions made to the Federal regulations. On October 1, 
2012, 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 40 CFR part 93 (2010) in effect July 1, 
2010 to 40 CFR part 93 (2012) in effect July 1, 2012. The SIP

[[Page 19422]]

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(n)(2)(iii) to those required by 40 CFR 93.109(g)(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 14, 2012 
(77 FR 14979).

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) 
are prepared independently of the assessment process; (3) demonstrate a 
clear, imminent and substantial danger to the public health or 
environment; or (4) 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.

IV. Final Action

    EPA is approving the Virginia SIP revision for transportation 
conformity, which was submitted on October 1, 2012. EPA is publishing 
this rule without prior proposal because EPA 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 May 31, 2013 without further notice unless EPA receives 
adverse comment by May 1, 2013. 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

[[Page 19423]]

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 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 May 31, 2013. 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.

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

    Dated: March 20, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. The revised text reads 
as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                                     EPA-Approved Virginia Regulations and Statutes
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                                                                State
          State citation                Title/subject      effective date             EPA approval date              Explanation [former SIP citation]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
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                                                     Chapter 151 (9 VAC 5) Transportation Conformity
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                                                                      * * * * * * *
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                                          Part III Criteria and Procedures for Making Conformity Determinations
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5-151-40..........................  General..............         8/15/12  4/1/13 [Insert page number where the    .....................................
                                                                            document begins].
 
                                                                      * * * * * * *
5-151-70..........................  Consultation.........         8/15/12  4/1/13 [Insert page number where the    Section D.1.f. is amended.
                                                                            document begins].
 
                                                                      * * * * * * *
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[FR Doc. 2013-07384 Filed 3-29-13; 8:45 am]
BILLING CODE 6560-50-P
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