[Federal Register Volume 78, Number 14 (Tuesday, January 22, 2013)]
[Rules and Regulations]
[Pages 4333-4337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00710]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2012-0784; FRL-9770-4]
Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Requirements for Determining General Conformity of
Federal Actions to Applicable State Implementation Plans
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a revision to the
West Virginia State Implementation Plan (SIP). The SIP revision
consists of a legislative rule adopted by West Virginia to amend its
prior general conformity rule for the purpose of incorporating
revisions to Federal general conformity requirements established under
rules promulgated by
[[Page 4334]]
EPA in July of 2006 and in April of 2010. EPA is approving West
Virginia's SIP revision to amend its general conformity SIP to comply
with recent changes in Federal general conformity requirements. This
rulemaking action is in accordance with the requirements of the Clean
Air Act (CAA).
DATES: This rule is effective on March 25, 2013 without further notice,
unless EPA receives adverse written comment by February 21, 2013. 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-2012-0784 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2012-0784, Donna Mastro, Acting Associate
Director, Office of Air Program Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-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-
2012-0784. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at 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 www.regulations.gov or email. The
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 email comment
directly to EPA without going through www.regulations.gov, your email
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
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure 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 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,
West Virginia 25304.
FOR FURTHER INFORMATION CONTACT: Brian Rehn, (215) 814-2176, or by
email at [email protected].
SUPPLEMENTARY INFORMATION: The following outline is provided to aid in
locating information in this preamble.
I. General Conformity Requirements and Affect on Air Quality
II. West Virginia's General Conformity SIP Revision
III. EPA Action
IV. Statutory and Executive Order Reviews
A. General Requirements
B. Submission to Congress and the Comptroller General
C. Petitions for Judicial Review
I. General Conformity Requirements and Affect on Air Quality
The intent of the general conformity requirement is to prevent the
air quality impacts of Federal actions from causing or contributing to
a violation of a National Ambient Air Quality Standard (NAAQS) or
interfering with the purpose of a SIP. Under the CAA as amended in
1990, Congress recognized that actions taken by Federal agencies could
affect states' and local agencies' abilities to attain and maintain the
NAAQS. Section 176(c) of the CAA requires Federal agencies to assure
that their actions conform to the applicable SIP for attaining and
maintaining compliance with the NAAQS. General conformity is defined to
apply to NAAQS established pursuant to section 109 of the CAA,
including NAAQS for carbon monoxide (CO), nitrogen dioxide
(NO2), ozone, particulate matter, and sulfur dioxide
(SO2). Because certain provisions of section 176(c) of the
CAA apply only to highway and mass transit funding and approval
actions, EPA published two sets of regulations to implement section
176(c) of the CAA--one set for transportation conformity and one set
for general conformity. The Federal General Conformity Requirements
Rule was published in the November 30, 1993 edition of the Federal
Register (58 FR 63214) and codified in the Code of Federal Regulations
at 40 CFR 93.150.
EPA revised the Federal General Conformity Requirements Rule via a
final rule issued in the April 5, 2006 edition of the Federal Register
(71 FR 17003). EPA had promulgated a new NAAQS July 18, 1997 (62 FR
38652) that established a separate NAAQS for fine particulate matter
smaller than 2.5 micrometers in diameter (PM2.5). The prior
coarse particulate matter NAAQS promulgated in 1997 pertains to
particulate matter smaller than 10 micrometers in diameter
(PM10). EPA's 2006 revision to the Federal General
Conformity Requirements Rule added requirements for PM2.5
for the first time, including annual emission limits of
PM2.5 above which covered Federal actions in NAAQS
nonattainment or maintenance areas would be subject to general
conformity applicability.
On April 5, 2010, EPA revisited the Federal General Conformity
Requirements Rule to clarify the conformity process, authorize
innovative and flexible compliance approaches, remove outdated or
unnecessary requirements, reduce the paperwork burden, provide
transition tools for implementing new standards, address issues raised
by Federal agencies affected by the rules, and provide a better
explanation of conformity regulations and policies. EPA's April 2010
revised rule simplified state SIP requirements for general conformity,
eliminating duplicative general conformity provisions codified at 40
CFR part 93, Subpart B and 40 CFR part 51, Subpart W. Finally, the
April 2010 revision updated the Federal General Conformity Requirements
Rule to reflect changes to governing laws passed by Congress since
EPA's 1993 rule. The Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) passed by
Congress in 1995 contains a provision eliminating the CAA requirement
for states to adopt general conformity SIPs. As a result of
[[Page 4335]]
SAFETEA-LU, EPA's April 2010 rule eliminated the Federal regulatory
requirement for states to adopt and submit general conformity SIPs,
instead making submission of a general conformity SIP a state option.
II. West Virginia's General Conformity SIP Revision
On June 6, 2012, West Virginia submitted a formal revision to its
SIP. The SIP revision submittal consists of an amendment to West
Virginia's legislative rule (Title 45 of the Consolidated Statute of
Regulations Series 35, entitled ``Determining Conformity of General
Federal Actions to Applicable Implementation Plans'') that establishes
criteria and procedures for use by Federal agencies in determining
whether a planned Federal action conforms to the applicable SIP (also
referred to as ``general conformity.'' The purpose of the SIP revision
is to amend West Virginia's general conformity requirements through a
legislative rule adopted by West Virginia for purposes of incorporating
recent changes made to Federal general conformity requirements, which
are at 40 CFR Part 93, Subpart B (effective July 6, 2010).
The SIP revision submittal includes a revision of West Virginia's
1995 legislative rule under Title 45, Series 35 of the Code of State
Rules (45CSR35). The revised State rule 45CSR35, now titled
``Determining Conformity of General Federal Actions to Applicable
Implementation Plans (General Conformity)'' with a State effective date
of June 1, 2012, has been updated to incorporate by reference the most
recent Federal general conformity rules at 40 CFR part 93, Subpart B
that were effective June 1, 2011.
West Virginia's legislative rule has also been updated to slightly
revise several definitions, including ``Applicable implementation
plan'' and ``Applicable SIP.'' Several terms no longer used in 45CSR35
were deleted, including ``Director,'' ``Division of Environmental
Protection,'' ``State Governor,'' ``State and Local Air Agencies,'' and
``State Agency.'' Definitions were added for the terms ``Clean Air
Act'' and ``Secretary.'' The legislative rule amending 45CSR35 also
adds requirements that require a Federal agency to make a determination
that a Federal action conforms to the applicable SIP before the action
is taken. In the event an action would result in emissions that
originate in more than one nonattainment or maintenance area,
conformity must be evaluated for each area separately. Finally, a
conformity determination under 40 CFR Part 93, Subpart B does not
exempt the action from any other requirements of the applicable SIP,
the CAA, or the National Environmental Policy Act (NEPA).
A prior version of West Virginia's general conformity rule
(45CSR35), which became State effective May 1, 1995, was approved by
EPA as part of the West Virginia SIP via a final rule published on
September 5, 1995 (60 FR 46029). West Virginia's June 6, 2012 SIP
revision submittal, which is the subject of this rulemaking action,
supersedes the prior approved West Virginia general conformity SIP.
III. EPA Action
EPA has reviewed West Virginia's June 6, 2012 SIP revision
submittal and found this revision to be in compliance with section
176(c) of the CAA and with the related requirements of the Federal
General Conformity Requirements Rule, codified at 40 CFR Part 93,
Subpart B. West Virginia's SIP revision serves to reduce the impact of
Federal actions (not otherwise subject to transportation conformity,
which is addressed under a separate provision in the West Virginia
SIP), and will prevent subject Federal actions from causing or
contributing to a new violation of a NAAQS, interfering with attainment
or maintenance of a NAAQS, or otherwise interfering with the West
Virginia SIP.
West Virginia's June 6, 2012 SIP revision meets the requirements
set forth in section 110 of the CAA with respect to adoption and
submission of SIP revisions. The approval of West Virginia's general
conformity SIP revision will strengthen the West Virginia SIP and will
assist the state in complying with Federal NAAQS.
Therefore, EPA is approving West Virginia's revision to its general
conformity SIP to comply with the most recent Federal General
Conformity Requirements Rule. EPA is publishing this rule without prior
proposal because it constitutes a noncontroversial amendment and EPA
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 March 25,
2013 without further notice unless EPA receives adverse comment by
February 21, 2013. 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 rulemaking action. Any
parties interested in commenting must do so at this time. Please note
that if EPA receives adverse comment on an amendment, paragraph, or
section of this rule and if that provision may be severed from the
remainder of the rule, EPA may adopt as final those provisions of the
rule that are not the subject of an adverse comment.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 CAA. Accordingly, this
action merely approves state law 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 CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using
[[Page 4336]]
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 to approve West Virginia's general conformity rule must
be filed in the United States Court of Appeals for the appropriate
circuit by March 25, 2013. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
action 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. Parties with
objections to this direct final rule are encouraged to file a comment
in response to the parallel notice of proposed rulemaking for this
action published in the proposed rules section of today's Federal
Register, rather than file an immediate petition for judicial review of
this direct final rule, so that EPA can withdraw this direct final rule
and address the comment in the proposed rulemaking. This action to
approve West Virginia's general conformity SIP revision 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, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 19, 2012.
W.C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for 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 (c) is amended by revising
the heading of 45 CSR Series 35 and by:
0
a. Revising the entries for 45-35-1 through 45-35-4; and
0
b. Adding a new entry in numerical order for 45-35-5.
The revised and added text reads as follows:
Sec. 52.2520 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Regulations in the West Virginia SIP
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Additional
State citation Title/subject State EPA approval date explanation/ citation
effective date at 40 CFR 52.2565
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[45 CSR] Series 35.............. Determining Conformity of General Federal Actions to Applicable Implementation
Plans (General Conformity)
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Section 45-35-1................. General............ 6/1/12 1/22/13 [Insert .....................
page number where
the document
begins].
Section 45-35-2................. Definitions........ 6/1/12 1/22/13 [Insert .....................
page number where
the document
begins].
Section 45-35-3................. Requirements....... 6/1/12 1/22/13 [Insert .....................
page number where
the document
begins].
Section 45-35-4................. Adoption of 6/1/12 1/22/13 [Insert .....................
Requirements. page number where
the document
begins].
Section 45-35-5................. Inconsistency 6/1/12 1/22/13 [Insert .....................
Between Rules. page number where
the document
begins].
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[FR Doc. 2013-00710 Filed 1-18-13; 8:45 am]
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