Approval and Promulgation of Air Quality Implementation Plans; West Virginia: Approval of PM-10 Implementation Plan for the Follansbee Area

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WV035-6006; FRL-5649-5]

Approval and Promulgation of Air Quality Implementation Plans;

West Virginia: Approval of PM-10 Implementation Plan for the Follansbee

Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

submitted by the State of West Virginia. The intended effect of this

action is to approve corrections to the moderate area SIP for the

Follansbee PM-10 nonattainment area. These revisions were submitted to

address plan deficiencies that were identified by EPA in a final

limited disapproval of particulate matter plans published in the

Federal Register on July 25, 1994. EPA is approving these revisions and

terminating the potential for sanctions that resulted from the

deficiencies identified in the rulemaking of July 25, 1994. This action

is being taken under section 110 of the Clean Air Act.

EFFECTIVE DATE: This final rule is effective on December 16, 1996.

ADDRESSES: 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; and the West Virginia Department of Environmental Protection,

Office of Air Quality, 1558 Washington Street, East, Charleston, West

Virginia, 25311.

FOR FURTHER INFORMATION CONTACT: Thomas A. Casey, (215) 566-2194, at

the EPA Region III address above (Mailcode 3AT22) or via e-mail at

[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

On November 15, 1991, West Virginia submitted a moderate area PM-10

SIP to EPA for the purpose of meeting Clean Air Act (Act) requirements

as they pertained to he Follansbee, West Virginia PM-10 nonattainment

area. On July 25, 1994, EPA took simultaneous limited approval and

limited disapproval actions on the 1991 submittal (59 FR 37696). EPA

approved the submittal for reasonably available control measures

(RACM), including reasonably available control technology (RACT);

incorporating the enforceable provisions of the submittal into Federal

regulations; and for meeting other requirements of the Act. EPA

disapproved the 1991 submittal because it did not demonstrate that the

plan was sufficient to attain national ambient air quality standards

(NAAQS) for PM-10 and for meeting Act requirements regarding emissions

inventories. See the July 25, 1994 Federal Register document for more

detail.

On November 22, 1995, West Virginia submitted to EPA additions to

its 1991 attainment demonstration and emissions inventory for the

purpose of correcting the deficiencies in the 1991 SIP submittal. On

February 5, 1996, EPA proposed approval (61 FR 4246) of the 1995

revisions and, on that same day, published (61 FR 4216) an interim

final determination indicating that EPA was suspending the application

of sanctions that could have resulted from the EPA's 1994 disapproval

of the 1991 submittal. Today's final action terminates the sanctions

and FIP clocks commenced on July 24, 1994.

Public Comment: EPA received no comments regarding the February 5,

1995 proposal and interim final determination.

II. Final Action

EPA is approving West Virginia's November 22, 1995 submittal as a

revision to the West Virginia SIP.

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.

III. Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 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 a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

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

Clean Air Act 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 Clean Air Act forbids EPA to base

its actions concerning SIPs on such grounds. Union Electric Co. v.

USEPA, 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,

[[Page 58482]]

local, or tribal governments in the aggregate; or to 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 proposed/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 Federal 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 Office prior to publication of the rule in 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 Clean Air Act, petitions for

judicial review of this approval of West Virginia's Follansbee PM-10

SIP must be filed in the United States Court of Appeals for the

appropriate circuit by January 14, 1997. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule approval 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, Intergovernmental

relations, Particulate matter.

Dated: October 31, 1996.

Stanley L. Laskowski,

Acting Regional Administrator, Region III.

Chapter I, title 40, of the Code of Federal Regulations 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 52.2522 is amended by adding paragraph (g) to read as

follows:

Sec. 52.2522 Approval status.

* * * * *

(g) The Administrator approves West Virginia's November 22, 1995

SIP submittal for the Follansbee, West Virginia PM-10 nonattainment

area as fulfilling the section 189(a)(1)(B) requirement for a

demonstration that the plan is sufficient to attain the PM-10 NAAQS.

[FR Doc. 96-29193 Filed 11-14-96; 8:45 am]

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