**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 52**

\[**EPA-R03-OAR-2007-1146; FRL- \]**

**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 \[[Insert date 60 days after
publication in the Federal Register\]]{.underline} without further
notice, unless EPA receives adverse written comment by \[[Insert date 30
days after publication in the Federal Register\]]{.underline}. If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the [Federal]{.underline} [Register]{.underline}
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. [www.regulations.gov]{.underline}. 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-2007-1146**. EPA\'s policy is that all comments received
will be included in the public docket without change, and may be made
available online at [www.regulations.gov]{.underline}, 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]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous 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
[www.regulations.gov]{.underline}, 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
[www.regulations.gov]{.underline} index. Although listed in the index,
some information is not publicly available, ([i.e.,]{.underline} 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 [www.regulations.gov]{.underline} 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 (PM~2.5~ and PM~10~), carbon
monoxide (CO), and nitrogen dioxide (NO~2~). 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](../%20http://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 40CFR 93.105 for consultation
procedures. In addition, the executed MOUs provides 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 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 AProposed Rules@ section of today=s [Federal
Register]{.underline}, 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 \[[Insert date 60 days from
date of publication in the Federal Register]{.underline}\] without
further notice unless EPA receives adverse comment by \[[Insert date 30
days from date of publication in the]{.underline} [Federal
Register]{.underline}\]. If EPA receives adverse comment, EPA will
publish a timely withdrawal in the [Federal Register]{.underline}
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 (Public Law 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]{.underline}
[Register]{.underline}. A major rule cannot take effect until 60 days
after it is published in the [Federal]{.underline}
[Register]{.underline}. 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 [\[insert date 60 days from date of publication
of this document in the Federal Register]{.underline}\]. 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.

[April 15,2008]{.underline} [\\\\s\\\\]{.underline}

Dated: William T.Wisniewski,

Acting Regional Administrator,

Region III.

40 CFR Part 52 is amended as follows:

PART 52 - \[AMENDED\]

1\. The authority citation for 40 CFR part 52 continues to read as
follows:

Authority: 42 U.S.C. 7401 [et seq]{.underline}.

Subpart XX B West Virginia

In \' 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:

[\' 52.2520]{.underline} [Identification of plan]{.underline}.

> \* \* \* \* \*

(e)\* \* \*

+----------------+--------------+---------+----------+---------------+
| **Name of      | **Applicable | **State | **EPA    | **Additional  |
| non-regulatory | geographic   | su      | approval | explanation** |
| SIP revision** | area**       | bmittal | date**   |               |
|                |              | date**  |          |               |
+================+==============+=========+==========+===============+
| \* \* \* \* \* |              |         |          |               |
| \* \*          |              |         |          |               |
+----------------+--------------+---------+----------+---------------+
| State of West  | Entire State | 04/     | \        | Memoranda of  |
| Virginia       |              | 12/2007 | [[Insert | Understanding |
| Transportation |              |         | Federal  | between EPA,  |
| Conformity     |              |         | Register | FHWA, FTA,    |
| Requirements   |              |         | pub      | State of West |
|                |              |         | lication | Virginia, and |
|                |              |         | dat      | six           |
|                |              |         | e\]]{.un | Metropolitan  |
|                |              |         | derline} | Planning      |
|                |              |         |          | Organizations |
|                |              |         | [        |               |
|                |              |         | \[Insert |               |
|                |              |         | page     |               |
|                |              |         | number   |               |
|                |              |         | where    |               |
|                |              |         | the      |               |
|                |              |         | document |               |
|                |              |         | begin    |               |
|                |              |         | s]{.unde |               |
|                |              |         | rline}\] |               |
+----------------+--------------+---------+----------+---------------+