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)

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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