	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]  without further notice, unless EPA receives
adverse written comment by [Insert date 30 days after publication in the
Federal Register].  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.    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-2007-1146.  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, 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
e-mail.  The www.regulations.gov website 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
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
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 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  HYPERLINK "
http://epa.gov/otaq/stateresources/transconf/policy.htm"  
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 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 (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 [Insert date 60 days from date of publication in the
Federal Register] without further notice unless EPA receives adverse
comment by [Insert date 30 days from date of publication in the Federal
Register].  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 (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 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 [insert date 60 days from date of publication of
this document in the Federal Register].  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                		                                     
\\s\\                                 

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.

Subpart XX ( 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  	Identification of plan.

*	*	*	*	*	

(e)* * *

Name of non-regulatory SIP revision 	

Applicable geographic area	

State submittal date 	

EPA approval date	

Additional explanation



*     *     *     *     *     *     *



State of West Virginia Transportation Conformity Requirements	

Entire State	

04/12/2007	

[Insert Federal Register publication date]

[Insert page number where the document begins]	

Memoranda of Understanding between EPA, FHWA, FTA, State of West
Virginia, and six Metropolitan Planning Organizations

   

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