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[Federal Register Volume 78, Number 14 (Tuesday, January 22, 2013)]
[Rules and Regulations]
[Pages 4333-4337]
From the Federal Register Online via the Government Printing 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: mastro.donna@epa.gov.
    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 rehn.brian@epa.gov.

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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                                                  * * * * * * *
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[45 CSR] Series 35..............  Determining Conformity of General Federal Actions to Applicable Implementation
                                                             Plans (General Conformity)
----------------------------------------------------------------------------------------------------------------
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]
BILLING CODE 6560-50-P
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