[Federal Register Volume 70, Number 220 (Wednesday, November 16, 2005)]
[Rules and Regulations]
[Pages 69440-69443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22700]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[RME NO. R03-OAR-2004-MD-0010; FRL-7997-5]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Metropolitan Washington, DC 1-Hour Ozone Attainment Plan,
Lifting of Earlier Rules Resulting in Removal of Sanctions and Federal
Implementation Clocks
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Maryland. This SIP revision is Maryland's
attainment plan for the Metropolitan Washington, DC severe 1-hour ozone
nonattainment area (the Washington area). EPA previously disapproved in
part a 1-hour ozone attainment plan for the Maryland portion of the
Washington area and issued a protective finding. This approval lifts
the protective finding. EPA is also now determining that Maryland has
submitted all required elements of a severe-area 1-hour ozone
attainment demonstration and is thus stopping the sanctions and FIP
clocks that were started through a finding that the State of Maryland
had failed to submit one of the required elements of a severe-area 1-
hour attainment plan. The intended effect of this action is to approve
Maryland's 1-hour ozone attainment plan for the Washington area and
determine that Maryland now has a fully-approved 1-hour attainment plan
and thus to turn off the sanctions and FIP clocks started based on a
finding that one element of the plan was missing and to lift the
protective finding that was issued when EPA disapproved Maryland's
earlier plan in part. These final actions are being taken under the
Clean Air Act (CAA or the Act).
DATES: This final rule is effective on December 16, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID Number R03-OAR-2004-MD-0010. All documents
in the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the
appropriate RME identification number. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (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 RME or in hard copy
for public inspection 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 Maryland Department of the Environment,
1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.
FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or
by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document the terms ``we,''
``our,'' and ``its'' refer to the EPA.
I. Background
On July 15, 2005 (70 FR 40946), EPA published a notice of proposed
rulemaking (NPR) for the State of Maryland. The NPR proposed approval
of Maryland's attainment plan for the Metropolitan Washington, DC
severe 1-hour ozone nonattainment area (the Washington area).
Concurrently, EPA proposed to rescind its earlier final rule which
disapproved and granted a protective finding for Maryland's 1-hour
ozone attainment plan for the Washington area. In that July 15, 2005
notice of proposed rulemaking, EPA also proposed to rescind its earlier
rule finding that the State of Maryland failed to submit one required
element of a severe 1-hour ozone attainment plan, namely that for a
penalty fee program required under sections 182(d)(3) and 185 of the
Act.
II. Public Comments and EPA Responses
A. Overview
EPA received comments dated August 15, 2005 opposing our proposed
action to approve Maryland's 1-hour ozone attainment plan for the
Washington, DC area in the absence of an approved SIP revision for a
section 185 penalty fee program covering the Maryland portion of the
Washington area.
[[Page 69441]]
One comment was that promulgation of the 8-hour ozone standard did
not grant EPA the authority to waive the section 185 penalty fee
program for the Washington area. In support of this comment, the
commenter incorporates the reasons stated in portions of comment
letters the commenter had previously submitted on EPA's proposed rules
for implementation of the 8-hour ozone NAAQS and on EPA's proposed
action on two issues raised in a petition for reconsideration of EPA's
rule to implement the 8-hour ozone NAAQS. Specifically, the August 15,
2005 comments enclosed a copy of:
(1) ``Proposal to Implement the 8-Hour Ozone National Ambient
Air Quality Standard, 68 FR 32802 (June 2, 2003), EPA Docket No. OAR
2003-0079, Comments of: Clean Air Task Force, American Lung
Association, Conservation Law Foundation, Earthjustice,
Environmental Defense, Natural Resources Defense Council, Southern
Alliance For Clean Energy, Southern Environmental Law Center, and
U.S. Public Interest Research Group,'' dated August 1, 2003, that
was docketed as item number OAR 2003-0079-0215 in EPA Docket No. OAR
2003-0079; and,
(2) A March 21, 2005 comment letter regarding ``Notice of
proposed rulemaking responding in part to reconsideration petition
on ozone implementation rule, 70 FR 5593 (Feb. 3, 2005), docket no.
OAR-2003-0079,'' that was docketed as item number OAR-2003-0079-0753
in EPA Docket No. OAR-2003-0079.
A copy of each of these items has been placed in the docket for
this action. The commenter specifically incorporates by reference parts
I and III of the June 2, 2003 comments (identified in the August 15,
2005 document as being submitted to EPA on August 3, 2003); and parts 1
and 2 of the March 21, 2005 letter).
The second comment asserts that EPA should defer final action on
the Maryland attainment plan for the Washington area until after the
resolution of litigation commenced by the commenter over EPA's rules to
implement the 8-hour ozone NAAQS which relate to revocation of the 1-
hour ozone NAAQS and waiver of the section 185 penalty fee program
requirement.
B. Comments Regarding Section 185 Penalty Fee Program Under the 8-Hour
Implementation Rule
Comment and Response: The commenter incorporated by reference
portions of comment letters previously submitted on EPA's proposed
rules for implementation of the 8-hour ozone NAAQS (Phase 1 Rule) and
EPA's proposed action reconsidering certain aspects of the final Phase
1 8-hour ozone NAAQS implementation rule (Reconsideration Rule). The
issues raised in these comments concern EPA's authority and policy
bases for determining that States would no longer be required to submit
SIP meeting the section 185 fee provision for purposes of the 1-hour
ozone NAAQS once that standard no longer applied (i.e., for most areas
of the country as of June 15, 2005). EPA responded to these comments in
those two rulemaking actions. EPA took final action in the Phase 1 Rule
and in the Reconsideration Rule determining that it had authority to
determine that the section 185 fee SIP is no longer required in areas
where the 1-hour standard had applied. Thus, the comments cited by the
commenter are not relevant to this rulemaking where EPA is merely
applying that final rule. However, to the extent those comments and
responses might have some relevance to the present rulemaking on the
Maryland SIP, we incorporate by reference our responses found in the
following documents:
(1) The ``Final Rule To Implement the 8-Hour requirements--Phase
1,'' 69 FR 23951, April 30, 2004, particularly 69 FR at 23984-23988.
(2) ``Implementation of the 8-Hour Ozone National Ambient Air
Quality Standard-Phase 1: Reconsideration,'' 70 FR 30592, May 26,
2005, particularly 70 FR at 30593-30595.
(3) ``Final Rule to Implement the 8-hour National Ambient Air
Quality Standard for Ozone (Phase 1) Response to Comments Document''
dated April 15, 2004, particularly pages 81 through 106 (inclusive),
and, pages 141 through 144 (inclusive).\3\
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\3\ A copy of this document is available in the docket (both
paper and electronic) for this action and previously was docketed as
items numbers OAR-2003-0079-0715 and OAR-2003-0079-0716 in EPA
Docket No. OAR-2003-0079.
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C. Comments Advocating a Delay of Final Action Until Resolution of
Pending Litigation
Comment: EPA received a comment stating that if EPA did not accept
the commenter's arguments for not approving this rule, then EPA should
at least defer its final action until the litigation challenging EPA's
rules implementing the 8-hour ozone standard is resolved, because EPA's
stated basis for rescinding the Maryland SIP disapproval and sanctions
clock relies on the national rules. This comment asserts that delay in
implementing the section 185 penalty fee requirements would
``undermine'' air quality in the Washington area and that there is no
harm in requiring Maryland to move forward in the interim with adoption
of SIP provisions to implement the section 185 penalty fee provisions.
The comment notes that the District and Virginia have already adopted
and submitted SIP revisions for the section 185 penalty fee program and
received EPA's approval of these SIP revisions.
Response: EPA disagrees that we should defer action on the Maryland
SIP until the litigation on the Phase 1 and Reconsideration Rules is
resolved and that such a deferral would not result in any harm. Such
litigation could take a year or more until the court issues a decision.
In the interim, the State would face sanctions and a FIP if it failed
to adopt and submit the section 185 fees SIP. Thus, harm could result
from the imposition of sanctions. Additionally, the State or EPA would
also be required to devote resources to developing a section 185 fees
SIP or FIP.
Section 185 Penalty Fee and Air Quality: EPA disagrees with the
commenter's assertion that approving the Maryland attainment plan
without a section 185 penalty fee provision would ``undermine the air
quality'' in the Washington area. The section 185 fee obligation is not
a control measure that results in reductions of ozone precursor
emissions. As we previously noted, in response to the comments
submitted on our rulemaking disapproving Maryland's attainment plan,
but granting a protective finding for transportation conformity
purposes, the section 185 fee program is not a control measure. See, 70
FR 25719 at 25721-25722, May 13, 2005. Section 185 of the Act simply
requires that the SIP contain a provision that major stationary sources
within a severe or extreme nonattainment area pay ``a fee to the state
as a penalty'' for failure of that area to attain the ozone NAAQS by
the area's attainment date. This penalty fee is based on the tons of
volatile organic compounds or nitrogen oxides emitted above a source-
specific trigger level during the ``attainment year.'' It first comes
due for emissions during the calendar year beginning after the
attainment date and must be paid annually until the area is
redesignated to attainment of the ozone NAAQS. 42 U.S.C. 7511d(a)-(c);
7511a(f)(1). Thus, if a severe area, with an attainment date of
November 15, 2005, fails to attain by that date, the first penalty
assessment will be assessed in calendar year 2006 for emissions that
exceed 80% of the source's 2005 baseline emissions.
A penalty fee that is based on emissions could have some incidental
effect on emissions if sources decrease their emissions to reduce the
amount of the per ton monetary penalty. However, the penalty fee does
not ensure that any actual emissions reduction will ever occur, since
every source can pay a penalty rather than achieve actual
[[Page 69442]]
emissions reductions. The provision's plain language evinces an intent
to penalize emissions in excess of a threshold by way of a fee; it does
not have as a stated purpose the goal of emissions reductions.
In addition, we note that it is unlikely that the section 185
penalty fee would take effect for the Washington, DC severe 1-hour
ozone nonattainment. The Act is clear that the section 185 penalty fees
apply only if a severe or extreme area fails to attain the ozone NAAQS
by the applicable attainment date. If the 1-hour ozone standard were
still intact, and if the Washington area were to attain the 1-hour
ozone NAAQS by its attainment date of November 15, 2005, then the
requirement that sources pay the section 185 penalty fees would never
be triggered. A determination that the Washington area has attained or
not attained the standard by its attainment date must be based on air
quality monitoring data for the 2003 through 2005 (inclusive ozone
seasons). The form of the 1-hour ozone standard is such that to show
attainment a monitor must have no more than an average of one expected
exceedance over a three year period. 40 CFR 50.9. The procedure for
determining the number of expected exceedances is set forth in Appendix
H to 40. EPA has reviewed the available air quality data for the
Washington area. No monitor was violating the 1-hour ozone standard in
2003 and 2004. Additionally, we note our review of the air quality data
for the 2005 ozone season (which has not yet been quality-assured by
the States and for which the quality-assurance certification is not
required until July 1, 2006), indicates there have been no reported
exceedances of the 1-hour ozone NAAQS in the Washington area through
September 30, 2005. Thus, it seems likely that, had the 1-hour ozone
standard not been revoked, the Washington area would attain the 1-hour
NAAQS by the area's 1-hour ozone attainment deadline, and that the
section 185 fees will not apply for purposes of the 1-hour NAAQS in the
area.
EPA's Delay Could Result in Irreparable Harm: We disagree with the
commenter that requiring Maryland to adopt the section 185 fees program
will not result in irreparable harm.
If we do not find that Maryland has fully met its obligations with
respect to the 1-hour attainment demonstration obligation, the Maryland
portion of the Washington area will be subject to the 2:1 offset
sanction of 40 CFR 52.31 on December 21, 2005 pursuant to our finding
that the State failed to submit a section 185 penalty fee program. See
69 FR 29236 (May 21, 2004). The highway sanctions of 40 CFR 52.31 would
commence on June 21, 2006. The briefing schedule in the South Coast Air
Quality Management Dist v. EPA, No. 04-1200 (and consolidated cases)
(D.C. Cir., filed 6-29-04) challenge to the 8-hour implementation rules
currently does not call for EPA to submit its brief until January 26,
2006, and final briefs by May 26, 2006, i.e., after the offset
sanctions have commenced and less than a month before the highway
sanctions will commence. Therefore, the State would either be subject
to sanctions for some period of time, or would need to devote resources
to adopting the section 185 fees program. Thus, the State and its
citizens would be harmed--either from the sanctions or from the need to
devote limited state resources to adopting the program.
III. Final Action
EPA is approving Maryland's attainment plan for the Metropolitan
Washington, DC severe 1-hour ozone nonattainment area. Concurrently,
EPA is determining that Maryland has submitted all required elements of
a severe-area 1-hour ozone attainment demonstration and is thus
stopping the sanctions and FIP clocks that were started through a
finding that the State of Maryland had failed to submit one of the
required elements of a severe-area 1-hour attainment plan. See May 13,
2005 (70 FR 25719). Additionally, since the State now has a fully
approved 1-hour ozone attainment demonstration SIP, we are lifting the
protective finding that was issued with our earlier disapproval of
Maryland's 1-hour ozone attainment demonstration. See May 13, 2005 (70
FR 25719).
IV. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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
[[Page 69443]]
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 rule 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.
This rule 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 17, 2006. 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 approving Maryland's attainment plan for
the Metropolitan Washington, DC severe 1-hour ozone nonattainment area
and rescinding earlier final rules starting sanctions clocks from 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, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: November 8, 2005. Donald S. Welsh,
Regional Administrator,
Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart V--Maryland
0
2. In Sec. 52.1070, the table in paragraph (e) is amended by adding
the entry for 1-hour Ozone Attainment Plan at the end of the table to
read as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(e) * * *
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State
Name of non-regulatory SIP revision Applicable geographic area submittal date EPA approval date Additional explanation
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* * * * * * *
1-hour Ozone Attainment Plan........ Washington DC 1-hour ozone 9/2/2003 11/16/05 [Insert page number
nonattainment area. 2/24/2004 where the document begins].
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Sec. 52.1073 [Amended]
0
3. Section 52.1073 is amended by removing and reserving paragraphs (f)
and (g).
[FR Doc. 05-22700 Filed 11-15-05; 8:45 am]
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