Title of Regulation: 9VAC5-150. Regulation for Transportation Conformity (Rev. G11) (repealing 9VAC5-150-10 through 9VAC5-150-450).

Statutory Authority: § 10.1-1308 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: May 23, 2012.

Effective Date: June 7, 2012.

Agency Contact: Gary E. Graham, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4103, FAX (804) 698-4510, or email gary.graham@deq.virginia.gov.

Basis: Section 10.1-1308 of the Virginia Air Pollution Control Law authorizes the State Air Pollution Control Board to promulgate regulations abating, controlling, and prohibiting air pollution to protect public health and welfare.

Section 176 of the federal Clean Air Act requires that transportation plans, programs, and projects that are funded or approved under Title 23 of the U.S. Code or the Federal Transit Act conform with state or federal air quality implementation plans.

40 CFR Part 51 Subpart T establishes the criteria and procedures governing the determination of conformity for all federally funded transportation plans, programs, and projects in nonattainment and maintenance areas for states with a federally approved SIP that establishes conformity criteria and procedures consistent with the transportation conformity regulation promulgated by EPA.

40 CFR Part 93 Subpart A establishes the criteria and procedures governing the determination of conformity for all federally funded transportation plans, programs, and projects in nonattainment and maintenance areas for states without an federally approved SIP revision that establishes conformity criteria and procedures consistent with the transportation conformity regulation promulgated by EPA.

Purpose: The purpose of a transportation conformity regulation is to establish criteria and procedures for the transportation planning organization to determine whether federally funded transportation plans, programs, and projects are in conformance with state plans for attaining and maintaining the health-based ambient air quality standards in the Northern Virginia, Richmond, and Hampton Roads areas. A transportation conformity regulation ensures that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.

9VAC5-150 was adopted on August 31, 1996, to meet the requirements of § 176 of the Clean Air Act and 40 CFR Part 51 Subpart T. However, EPA never approved this chapter, so all transportation conformity determinations continued to be made in accordance with the federal requirements of 40 CFR Part 93, Subpart A. In the absence of federal approval of Chapter 150, the board adopted a new Regulation for Transportation Conformity, Chapter 151 on March 26, 2007, which incorporated the requirements of 40 CFR Part 93, Subpart A. The new Chapter 151 became effective on May 31, 2007, and was approved by EPA on November 20, 2009 (74 FR 60194).

The requirements of 9VAC5-150 and 9VAC5-151 differ in many respects. Only 9VAC5-151 meets all of the federal statutory and regulatory requirements for transportation conformity and is therefore essential to protect the health and welfare of the public. In order for the state regulations to be administratively correct and for 9VAC5-151 to effectively and efficiently protect public health and welfare, 9VAC5-150 must be repealed.

Rationale for Using Fast-Track Process: 9VAC5-150 cannot be used for transportation conformity determinations because it lacks federal approval. There is an effective regulation for transportation conformity in 9VAC5-151 that has been federally approved. There is a very limited stakeholder group that is affected by transportation conformity regulations and the transportation conformity determination process under 9VAC5-151 has federal and state-specific stakeholder consultation provisions within the regulation. Therefore, no objections to the repeal of 9VAC5-150 are anticipated and the fast-track process is appropriate.

Substance: 9VAC5-150, Regulation for Transportation Conformity, is repealed in its entirety. The provisions of 9VAC5-151, Regulation for Transportation Conformity, are not affected by this action.

Issues: The primary advantage to the public is the removal of unusable and conflicting regulatory requirements, which improves the public's ability to understand and comply with regulatory requirements. There are no disadvantages to the public.

The primary advantage to the department is the removal of regulations that are no longer necessary. There are no disadvantages to the department.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The department proposes to repeal 9VAC5-150, Regulation for Transportation Conformity, in its entirety because a new Regulation for Transportation Conformity (9VAC5-151) has been adopted and supersedes this regulation.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Since 9VAC5-150 is superseded by 9VAC5-151, repealing the former will have no impact beyond reducing potential confusion amongst the public.

Businesses and Entities Affected. The proposed repealing of this regulation will not affect businesses or other entities.

Localities Particularly Affected. The proposed repealing of this regulation will not disproportionately affect particular localities.

Projected Impact on Employment. The proposed repealing of this regulation will not affect employment.

Effects on the Use and Value of Private Property. The proposed repealing of this regulation will not affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed repealing of this regulation will not affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed repealing of this regulation will not produce an adverse impact on small businesses.

Real Estate Development Costs. The proposed repealing of this regulation will not affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

This action repeals in its entirety 9VAC5-150, Regulation for Transportation Conformity, because a new regulation for transportation conformity (9VAC5-151) is in effect and is the only regulation that meets all state and federal statutory and regulatory requirements.