[Federal Register: May 2, 2008 (Volume 73, Number 86)]
[Rules and Regulations]
[Page 24175-24178]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02my08-18]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: febbo.carol@epa.gov.
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 kotsch.martin@epa.gov.
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]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
State
Name of non- regulatory SIP revision Applicable geographic area submittal date EPA approval date Additional explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. E8-9608 Filed 5-1-08; 8:45 am]
BILLING CODE 6560-50-P