[Federal Register Volume 73, Number 86 (Friday, May 2, 2008)]
[Rules and Regulations]
[Pages 24175-24178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9608]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2007-1146; FRL-8561-2]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia: Transportation Conformity Requirement

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 
West Virginia State Implementation Plan (SIP). The revisions establish 
State transportation conformity requirements. EPA is approving these 
revisions in accordance with the requirements of the Clean Air Act.

DATES: This rule is effective on July 1, 2008 without further notice, 
unless EPA receives adverse written comment by June 2, 2008. 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-2007-1146 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2007-1146, Carol Febbo, Chief, Energy, 
Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the 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-
2007-

[[Page 24176]]

1146. 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), disclosure of which 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 West Virginia 
Department of Environmental Protection, Division of Air Quality, 601 
57th Street, SE., Charleston, WV 25304.

FOR FURTHER INFORMATION CONTACT: Martin Kotsch, (215) 814-3335, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'', 
``us'', or ``our'' is used, we mean EPA.

I. What Is Transportation Conformity?
II. What Is the Background for This Action?
III. What Did the State Submit and How Did We Evaluate It?
IV. What Action Is EPA Taking Today?
V. Statutory and Executive Order Reviews

I. What Is Transportation Conformity?

    Transportation conformity is required under section 176(c) of the 
Clean Air Act to ensure that Federally supported highway, transit 
projects, and other activities are consistent with (conform to) the 
purpose of the approved SIP. Conformity currently applies to areas that 
are designated nonattainment, and those areas redesignated to 
attainment after 1990 (maintenance areas), with plans developed under 
section 175A of the Clean Air Act for the following transportation 
related criteria pollutants: Ozone, particulate matter 
(PM2.5 and PM10), carbon monoxide (CO), and 
nitrogen dioxide (NO2). Conformity with 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). The 
Federal transportation conformity regulations (Federal Rule) are found 
in 40 CFR part 93 and provisions related to conformity SIPs are found 
in 40 CFR 51.390.

II. What Is the Background for This Action?

    On August 10, 2005, the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised certain provisions of section 176(c) of 
the Clean Air Act, related to transportation conformity. Prior to 
SAFETEA-LU, states were required to address all of the Federal Rule's 
provisions in their conformity SIPs. After SAFETEA-LU, state's SIPs 
were required to contain all or portions of only the following three 
sections of the Federal Rule, modified as appropriate to each state's 
circumstances: 40 CFR 93.105 (consultation procedures); 40 CFR 
93.122(a)(4)(ii) (written commitments to implement certain kind of 
control measures); and 40 CFR 93.125(c) (written commitments to 
implement certain kinds of mitigation measures). Pursuant to SAFETEA-
LU, States are no longer required to submit conformity SIP revisions 
that address the other sections of the Federal conformity rule.

III. What Did the State Submit and How Did We Evaluate It?

    On April 12, 2007, the West Virginia Department of Environmental 
Protection submitted a revision to its State Implementation Plan (SIP) 
for Transportation Conformity purposes. The SIP revision consists of 
six executed Memorandums of Understanding (MOUs) which will constitute 
the State of West Virginia SIP for transportation conformity purposes. 
The six MOUs were executed among the State of West Virginia and the 
various Metropolitan Planning Organizations within the State of West 
Virginia which have responsibility for undertaking transportation 
conformity in conjunction with transportation planning activities along 
with the three Federal Agencies (EPA, Federal Highway Administration, 
and Federal Transit Administration) who are participating members in 
the conformity consultation process. These MOUs which make up the SIP 
revision address the three provisions of the EPA Conformity Rule 
required under SAFETEA-LU: 40 CFR 93.105 (consultation procedures); 40 
CFR 93.122(a)(4)(ii) (certain control measures), and 40 CFR 93.125(c) 
(mitigation measures).
    We reviewed the submittal to assure consistency with the February 
14, 2006, ``Interim Guidance for Implementing the Transportation 
Conformity provisions in the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU)''. The 
guidance document can be found at http://epa.gov/otaq/stateresources/transconf/policy.htm. The guidance document states that each state is 
only required to address and tailor the afore-mentioned three sections 
of the Federal Conformity Rule in their state conformity SIPs.
    EPA's review of West Virginia's Transportation Conformity SIP 
revision indicates that it is consistent with EPA's guidance in that it 
included the three elements specified by SAFETEA-LU and EPA's guidance. 
Consistent with the EPA Conformity Rule at 40 CFR 93.105 (consultation 
procedures), paragraph (a)(2) of each of the executed MOUs establishes 
the requirements for the appropriate agencies, procedures and 
allocation of responsibilities as required under 40 CFR 93.105 for 
consultation procedures. In addition, the executed MOUs provide for 
appropriate public consultation/public involvement consistent with 40 
CFR 93.105. With respect to 40 CFR 93.122(a)(4)(ii) and 40 CFR 
93.125(c), paragraphs (a)(3) and (a)(4) of the executed MOUs specifies

[[Page 24177]]

that written commitments for control measures and mitigation measures 
for meeting these requirements will be provided as needed.

IV. Final Action

    EPA is hereby approving the West Virginia SIP revision for 
Transportation Conformity, which was submitted on April 12, 2007. 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 July 1, 2008, without further notice 
unless EPA receives adverse comment by June 2, 2008. 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.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act 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 Clean Air Act. 
Accordingly, this action merely approves state rule 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 Clean Air Act; 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by July 1, 2008. 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 to approve the West Virginia Transportation Conformity 
SIP 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, 
Incorporation by reference, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

    Dated: April 15, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR part 52 continues to read as 
follows:

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

Subpart XX--West Virginia

0
2. In Sec.  52.2520, the table in paragraph (e) is amended by adding an 
entry for State of West Virginia Transportation Conformity Requirements 
at the end of the table to read as follows:


Sec.  52.2520   Identification of plan.

* * * * *
    (e) * * *

[[Page 24178]]



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                                                                         State
Name of non- regulatory SIP revision   Applicable geographic area   submittal date          EPA approval date                Additional explanation
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                                                                      * * * * * * *
State of West Virginia                Entire State................      04/12/2007  05/02/2008 [Insert page number     Memoranda of Understanding
 Transportation Conformity                                                           where the document begins].        between EPA, FHWA, FTA, State of
 Requirements.                                                                                                          West Virginia, and six
                                                                                                                        Metropolitan Planning
                                                                                                                        Organizations.
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[FR Doc. E8-9608 Filed 5-1-08; 8:45 am]
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