[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 6560-50-P
