[Federal Register Volume 60, Number 171 (Tuesday, September 5, 1995)]
[Rules and Regulations]
[Pages 46029-46030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-21881]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[WV31-1-7063a; FRL-5278-9]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia, 45CSR35, Requirements for Determining Conformity of 
General Federal Actions to Applicable Air Quality Implementation Plans 
(General Conformity)

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 State of West Virginia. The rule sets forth policy, 
criteria, and procedures for demonstrating and assuring conformity of 
such activities to all applicable implementation plans developed 
pursuant to Section 110 and Part D of the Clean Air Act (CAA). The 
intended effect of this action is to approve the SIP revision of West 
Virginia General Conformity Rule. This action is being taken under 
section 110 of the CAA.

DATES: This final rule is effective November 6, 1995 unless notice is 
received on or before October 5, 1995 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 Marcia L. Spink, Associate 
Director, Air Programs, Mailcode 3AT00, 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, U.S. Environmental 
Protection Agency, 401 M Street, SW, Washington, DC 20460; and the West 
Virginia Department of Environmental Protection, Office of Air Quality, 
1558 Washington Street, East, Charleston, West Virginia, 25311.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 597-3164, at the 
EPA Region III address above.

SUPPLEMENTARY INFORMATION: On November 23, 1994, the State of West 
Virginia submitted a formal revision to its State Implementation Plan 
(SIP) to EPA for the purpose of meeting the requirements of 40 CFR 
51.851, General Conformity. West Virginia had adopted an emergency rule 
(45CSR35) that adopts the provisions of federal General Conformity Rule 
(40 CFR Part 93, Subpart B), which was effective on November 16, 1994. 
The exact same version of 45CSR35, the General Conformity Rule, was 
submitted to the West Virginia legislature for permanent authorization. 
On May 16, 1995, the State of West Virginia submitted the final SIP 
revision of 45CSR35 to EPA, promulgated as final legislative rule in 
accordance to West Virginia law, that became effective on May 1, 1995. 
(Note: The Transportation Conformity Rule submitted on May 16, 1995 is 
the subject of a separate rulemaking action.)

Summary of SIP Revision

    West Virginia's rule 45CSR35, Requirements for Determining 
Conformity of General Federal Actions to Applicable Air Quality 
Implementation Plans (General Conformity), adopts the requirements of 
40 CFR Part 93, Subpart B, Determining Conformity of General Federal 
Actions to State or Federal Implementation Plans by incorporating these 
federal regulations by reference. The federal rule was promulgated by 
EPA to implement Section 176(c) of the CAA, as amended (42 U.S.C. 7401 
et seq.) which requires that all federal actions conform to applicable 
air quality implementation plans. This rule only applies to areas 
designated nonattainment or maintenance areas under the CAA, as 
amended.
    This rule sets forth policy, criteria, and procedures for 
demonstrating and assuring conformity of such activities 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.
    Some examples of federal actions requiring conformity determination 
include: Airport Construction/Modification grants; Leasing of Federal 
Land; Granting a Permit; Construction of Federal Office Buildings; 
Private Construction on Federal Land; Prescribed Burning; Reuse of 
Military Bases; and Water Treatment Plants.
    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 elsewhere in this 
Federal Register, EPA is proposing to approve the SIP revision should 
adverse or critical comments be filed. This action will be effective 
November 6, 1995 unless, by 30 days of October 5, 1995 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. 

[[Page 46030]]
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 November 6, 1995.

Final Action

    EPA is approving the final SIP revision of 45CSR35, submitted by 
the State of West Virginia on May 16, 1995, which was effective on May 
1, 1995.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    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).
    Under sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22, 
1995, EPA must undertake various actions in association with proposed 
or final rules that include a Federal mandate that may result in 
estimated costs of $100 million or more to the private sector, or to 
State, local, or tribal governments in the aggregate.
    Through submission of this state implementation plan or plan 
revision, the State and any affected local or tribal governments have 
elected to adopt the program provided for under section 176 of the 
Clean Air Act. These rules may bind State, local and tribal governments 
to perform certain actions and also require the private sector to 
perform certain duties. The rules being approved by this action will 
impose no new requirements; such sources are already subject to these 
regulations under State law. Accordingly, no additional costs to State, 
local, or tribal governments, or to the private sector, result from 
this action. EPA has also determined that this action does not include 
a mandate that may result in estimated costs of $100 million or more to 
State, local, or tribal governments in the aggregate or to the private 
sector.
    This action has been classified as a Table 2 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by 
an October 4, 1993 memorandum from Michael H. Shapiro, Acting Assistant 
Administrator for Air and Radiation. The OMB has exempted this 
regulatory action from E.O. 12866 review.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action to approve West Virginia's General Conformity Rule must 
be filed in the United States Court of Appeals for the appropriate 
circuit by November 6, 1995. Filing a 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 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, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

    Dated: June 19, 1995.
Stanley L. Laskowski,
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 XX--West Virginia

    2. Section 52.2520 is amended by adding paragraph (c)(37) to read 
as follows:


Sec. 52.2520  Identification of Plan.

* * * * *
    (c) * * *
    (37) Revisions to the West Virginia State Implementation Plan 
submitted on May 16, 1995 by the West Virginia Division of 
Environmental Protection:
    (i) Incorporation by reference.
    (A) Letter of May 16, 1995 from West Virginia Division of 
Environmental Protection, transmitting the General Conformity Rule.
    (B) Title 45, Legislative Rule, Series 35 (45CSR35), Requirements 
for Determining Conformity of General Federal Actions to Applicable Air 
Quality Implementation Plans (General Conformity), effective May 1, 
1995.
    (ii) Additional material.
    (A) Remainder of May 16, 1995 State submittal pertaining to 45CSR35 
referenced in paragraph (c)(37) of this section.

[FR Doc. 95-21881 Filed 9-1-95; 8:45 am]
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