Approval and Promulgation of Air Quality Implementation Plans; VirginiaGeneral Conformity Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA079-5020a; FRL-5909-9]

Approval and Promulgation of Air Quality Implementation Plans;

Virginia--General Conformity Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision

submitted by the Commonwealth of Virginia. This revision consists of

Virginia's regulation for General Conformity which sets forth policy,

criteria, and procedures for demonstrating and assuring conformity of

non-transportation related federal projects to all applicable

implementation plans. The intended effect of this action is to approve

Virginia's General Conformity Rule as a SIP revision.

DATES: This action is effective December 22, 1997 unless notice is

received on or before November 20, 1997 that adverse or critical

comments will be submitted. If the effective date is delayed, timely

notice will be published in the Federal Register.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO &

Mobile Sources Section, Mailcode 3AT21, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania

19107. Copies of the documents relevant to this action are available

for public inspection during normal business hours at the Air,

Radiation, and Toxics Division, U.S. Environmental Protection Agency,

Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 19107;

the Air and Radiation Docket and Information Center, Environmental

Protection Agency, 401 M. Street, S.W., Washington, D.C. 20460; and the

Virginia Department of Environmental Quality, 629 East Main Street,

Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 566-2182, at the

EPA Region III office or via e-mail at [email protected].

While information may be requested via e-mail, comments must be

submitted in writing to the above Region III address.

SUPPLEMENTARY INFORMATION: On January 27, 1997, the Virginia Department

of Environmental Quality (DEQ) submitted a formal revision to its State

Implementation Plan (SIP) to EPA for the purpose of meeting the

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requirements of 40 CFR 51.851, State Implementation Plans, found under

40 CFR 51, subpart W, Determining Conformity of General Actions to

State and Federal Implementation Plans. Part 51, subpart W is commonly

referred to as the federal General Conformity Rule. The DEQ submittal,

which is the subject of this approval action, is Regulation 9 VAC 5

Chapter 160--Regulation for General Conformity. The Commonwealth of

Virginia adopted a rule by the State Air Pollution Control Board on

August 13, 1996 in accordance with the requirements of Sec. 10.1-1308

of the Virginia Air Pollution Control Law and 40 CFR Part 51, with an

effective date of January 1, 1997. This action to approve Virginia's

General Conformity regulation as a SIP revision is being taken under

section 110 of the Clean Air Act (CAA).

Summary of SIP Revision

Virginia Regulation 9 VAC 5 Chapter 160, Regulation for General

Conformity, establishes standards and procedures to follow when

evaluating conformity of non-transportation related federal projects to

all applicable implementation plans developed pursuant to section 110

and part D of the CAA.

At 40 CFR part 51, subpart W, EPA promulgated the federal rule for

General Conformity to implement section 176(c) of the CAA. This rule

sets forth policy, criteria, and procedures for demonstrating and

assuring conformity of federal actions to all applicable implementation

plans developed pursuant to section 110 and part D of the CAA. The rule

generally applies to federal actions except:

(1) Those required under the transportation conformity rule (40 CFR

part 93, subpart A);

(2) Actions with associated emissions below specified de minimis

levels; and

(3) Certain other actions which are exempt or presumed to conform

to applicable air quality implementation plans.

At 40 CFR 51.851, State Implementation Plans, EPA promulgated the

requirements that must be adopted by the state and submitted as a SIP

revision to implement the General Conformity provisions. The provisions

adopted by the Commonwealth of Virginia for General Conformity are

those contained in and required by the federal rule. EPA has reviewed

Virginia Regulation 9 VAC 5 Chapter 160, Regulation for General

Conformity, and has determined that it satisfies the requirements of 40

CFR 51.851. A Technical Support Document (TSD) has been prepared which

details the EPA's evaluation of Virginia Regulation 9 VAC 5 Chapter

160. Interested parties may obtain a copy of the TSD by contacting the

EPA Regional Office listed in the ADDRESSES section of this document.

EPA is approving this SIP revision without prior proposal because

the Agency views this as a noncontroversial amendment and anticipates

no adverse comments. However, in a separate document in this Federal

Register publication, EPA is proposing to approve the SIP revision

should adverse and critical comments be filed. This action will be

effective December 22, 1997 unless, by November 20, 1997, adverse or

critical comments are received. If EPA receives such comments, this

action will be withdrawn before the effective date by publishing a

subsequent document that will withdraw the final action. All public

comments received will then be addressed in a subsequent final rule

based on this action serving as a proposed rule. EPA will not institute

a second comment period on this action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received, the public is advised that this action will be

effective on December 22, 1997.

Final Action

EPA is approving the final SIP revision of Virginia Regulation 9

VAC 5 Chapter 160, Regulation for General Conformity, submitted by the

Commonwealth of Virginia on January 27, 1997, effective January 1,

1997.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any SIP. Each request for revision to the SIP shall be

considered separately in light of specific technical, economic, and

environmental factors and in relation to relevant statutory and

regulatory requirements.

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this action

from review under Executive Order 12866.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements but simply approve requirements that

the State is already imposing. Therefore, because the Federal SIP

approval does not impose any new requirements, the Administrator

certifies that it does not have a significant impact on any small

entities affected. Moreover, due to the nature of the Federal-State

relationship under the CAA, preparation of a flexibility analysis would

constitute Federal inquiry into the economic reasonableness of state

action. The CAA forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a federal mandate that may result in estimated

costs to state, local, or tribal governments in the aggregate; or to

the private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either state, local, or tribal governments in the

aggregate, or to the private sector. This Federal action approves pre-

existing requirements under state or local law, and imposes no new

requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting

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Office prior to the publication of the rule of today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action to approve revisions to the Virginia SIP must be filed

in the United States Court of Appeals for the appropriate circuit by

December 22, 1997. Filing a petition for reconsideration by the

Administrator of this 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 a rule or action. This action

pertaining to the Virginia General Conformity Rule may not be

challenged later in the proceedings to enforce its requirements. (See

section (b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Incorporation by reference, Intergovernmental relations, Nitrogen

dioxide, Ozone, Reporting and recordkeeping requirements.

Dated: September 29, 1997.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

40 CFR part 52, is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart VV--Virginia

2. Section 52.2420 is amended by adding paragraph (c)(118) to read

as follows:

Sec. 52.2420 Identification of plan.

* * * * *

(c) * * *

(118) Revision to the Virginia State Implementation Plan on January

27, 1997 by the Virginia Department of Environmental Quality:

(i) Incorporation by reference.

(A) A letter of January 27, 1997 from the Virginia of Department

Environmental Quality transmitting the General Conformity Rule.

(B) Virginia Regulation 9 VAC 5 Chapter 160--Regulation for General

Conformity, effective January 1, 1997.

(ii) Additional Material from the Virginia's January 27, 1997

submittal pertaining to Regulation 9 VAC 5 Chapter 160.

[FR Doc. 97-27846 Filed 10-20-97; 8:45 am]

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