[Federal Register Volume 71, Number 195 (Tuesday, October 10, 2006)]
[Proposed Rules]
[Pages 59414-59425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16654]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2006-0353; FRL-8229-5]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Redesignation of the Kent and Queen Anne's 8-Hour Ozone
Nonattainment Area to Attainment and Approval of the Maintenance Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a redesignation request and a
State Implementation Plan (SIP) revision for the Kent and Queen Anne's,
MD (herein referred to as the ``Kent and Queen Anne's area'') area from
nonattainment to attainment of the 8-hour ozone National Ambient Air
Quality Standard (NAAQS). The Maryland Department of the Environment
(MDE) is requesting that Kent and Queen Anne's County, Maryland (herein
known as ``Kent and Queen Anne's area'') be redesignated as attainment
for the 8-hour ozone NAAQS. The Kent and Queen Anne's-8-hour ozone
nonattainment area is comprised of two counties (Kent and Queen Anne's
Counties, Maryland). EPA is proposing to approve the ozone
redesignation request for the Kent and Queen Anne's area. In
conjunction with its redesignation request, the MDE submitted a SIP
revision consisting of a maintenance plan for Kent and Queen Anne's
that provides for continued attainment of the 8-hour ozone NAAQS for
the next 12 years. EPA is proposing to make a determination that Kent
and Queen Anne's has attained the 8-hour ozone NAAQS based upon three
years of complete, quality-assured ambient air quality ozone monitoring
data for 2003-2005. EPA's proposed approval of the 8-hour ozone
redesignation request is based on its determination that Kent and Queen
Anne's has met the criteria for redesignation to attainment specified
in the Clean Air Act (CAA). EPA is
[[Page 59415]]
providing information on the status of its adequacy determination for
the motor vehicle emission budgets (MVEBs) that are identified in the
Kent and Queen Anne's maintenance plan for purposes of transportation
conformity, and is also proposing to approve those MVEBs. EPA is
proposing approval of the redesignation request and of the maintenance
plan revision to the Maryland SIP in accordance with the requirements
of the CAA.
DATES: Written comments must be received on or before November 9, 2006.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2006-0353 by one of the following methods:
A. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2006-0353, Makeba Morris, Chief, Air Quality
Planning Branch,
D. Mailcode 3AP21, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
E. 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-
2006-0353. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://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 http://www.regulations.gov or e-mail. The http://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 http://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
http://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 http://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 Maryland Department of
Environment, 1800 Washington Boulevard, Maryland, 21230.
FOR FURTHER INFORMATION CONTACT: Helene Drago, (215) 814-2156, or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'',
``us'', or ``our'' is used, we mean EPA.
Table of Contents
I. What Actions are EPA Proposing to Take?
II. What is the Background for These Proposed Actions?
III. What are the Criteria for Redesignation to Attainment?
IV. Why is EPA Taking These Actions?
V. What Would be the Effect of these Actions?
VI. What is EPA's Analysis of the State's Request?
VII. Are the Motor Vehicle Emissions Budgets Established and
Identified in the Kent and Queen Anne's Maintenance Plan Adequate
and Approvable?
VIII. Proposed Actions
IX. Statutory and Executive Order Reviews
I. What Actions are EPA Proposing to Take?
On May 2 and 19, 2006, MDE formally submitted a request to
redesignate Kent and Queen Anne's from nonattainment to attainment of
the 8-hour NAAQS for ozone. On May 2, 2006, Maryland submitted a
maintenance plan for Kent and Queen Anne's as a SIP revision, to ensure
continued attainment over the next 12 years. Kent and Queen Anne's is
currently designated as a marginal 8-hour ozone nonattainment area. EPA
is proposing to determine that Kent and Queen Anne's has attained the
8-hour ozone NAAQS and that it has met the requirements for
redesignation pursuant to section 107(d)(3)(E) of the CAA. EPA is,
therefore, proposing to approve the redesignation request to change the
designation of Kent and Queen Anne's from nonattainment to attainment
for the 8-hour ozone NAAQS. EPA is also proposing to approve the
maintenance plan SIP revision for Kent and Queen Anne's, such approval
being one of the CAA requirements for approval of a redesignation
request. The maintenance plan is designed to ensure continued
attainment throughout the Kent and Queen Anne's area for the next 12
years. Additionally, EPA is announcing its action on the adequacy
process for the MVEBs identified in the Kent and Queen Anne's
maintenance plan, and proposing to approve the MVEBs identified for
volatile organic compounds (VOC) and nitrogen oxides (NOX)
for transportation conformity purposes. These MVEBs are State MVEBs for
the Kent and Queen Anne's 8-hour ozone area. Concurrently, the State is
requesting that EPA approve the maintenance plan as meeting the
requirements of CAA 175A(b) with respect to the 1-hour ozone
maintenance plan update.
II. What is the Background for These Proposed Actions?
A. General
Ground-level ozone is not emitted directly by sources. Rather,
emissions of NOX and VOC react in the presence of sunlight
to form ground-level ozone. The air pollutants NOX and VOC
are referred to as precursors of ozone. The CAA establishes a process
for air quality management through the attainment and maintenance of
the NAAQS.
On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 parts per million (ppm). This new standard is more stringent
than the previous 1-hour ozone standard. EPA designated, as
nonattainment, any area violating the 8-hour ozone NAAQS based on the
air quality data for the three years of 2001-2003. These were the most
recent three years of data at the time EPA designated 8-hour areas. The
Kent and Queen Anne's area was designated as marginal 8-hour ozone
nonattainment status in a Federal Register notice signed on September
15, 2004 and published on September 22, 2004 (69 FR 56697). On October
21, 2004 (69 FR 61766), EPA approved a redesignation request and
maintanence plan for Kent and Queen Anne's for the 1-hour ozone NAAQS.
On June 15, 2005
[[Page 59416]]
(69 FR 23951, 23996), the 1-hour ozone NAAQS was revoked in the Kent
and Queen Anne's area (as well as most other areas of the country). See
40 CFR 50.9(b); 69 FR 23996 (April 30, 2004); and see 70 FR 44470
(August 3, 2005).
The CAA, Title I, Part D, contains two sets of provisions--subpart
1 and subpart 2-that address planning and control requirements for
nonattainment areas. Subpart 1 (which EPA refers to as ``basic''
nonattainment) contains general, less prescriptive requirements for
nonattainment areas for any pollutant--including ozone--governed by a
NAAQS. Subpart 2 (which EPA refers to as ``classified'' nonattainment)
provides more specific requirements for ozone nonattainment areas. Some
8-hour ozone nonattainment areas are subject only to the provisions of
subpart 1. Other areas are also subject to the provisions of subpart 2.
Under EPA's 8-hour ozone implementation rule, signed on April 15, 2004,
an area was classified under subpart 2 based on its 8-hour ozone design
value (i.e., the 3-year average annual fourth-highest daily maximum 8-
hour average ozone concentration), if it had a 1-hour design value at
or above 0.121 ppm (the lowest 1-hour design value in the CAA for
subpart 2 requirements). All other areas are covered under subpart 1,
based upon their 8-hour design values. In 2004, the Kent and Queen
Anne's area was classifed a marginal 8-hour ozone nonattainment area
based upon air quality monitoring data from 2001-2003, and is subject
to the requirements of subpart 2.
Under 40 CFR part 50, the 8-hour ozone standard is attained when
the 3-year average of the annual fourth-highest daily maximum 8-hour
average ambient air quality ozone concentrations is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR
23857 (April 30, 2004) for further information. Ambient air quality
monitoring data for the 3-year period must meet data completeness
requirements. The data completeness requirements are met when the
average percent of days with valid ambient monitoring data is greater
than 90 percent, and no single year has less than 75 percent data
completeness as determined in Appendix I of 40 CFR part 50. The ozone
monitoring data indicates that the Kent and Queen Anne's area has a
design value of 0.082 ppm for the 3-year period of 2003-2005, using
complete, quality assured data. Therefore, the ambient ozone data for
the Kent and Queen Anne's area indicates no violations of the 8-hour
ozone standard. Final monitoring data for 2005 indicates continued
attainment of the 8-hour ozone standard in the Kent and Queen Anne's
area.
B. The Kent and Queen Anne's Area
The Kent and Queen Anne's area consists of Kent and Queen Anne's
Counties, Maryland. Prior to its designation as an 8-hour ozone
nonattainment area, the Kent and Queen Anne's area was a maintenance
area for the 1-hour ozone nonattainment NAAQS.
On May 2 and 19, 2006, the MDE requested that the Kent and Queen
Anne's area be redesignated to attainment for the 8-hour ozone
standard. The redesignation request referenced 3 years of complete,
quality-assured data for the period of 2003-2005, indicating that the
8-hour NAAQS for ozone had been achieved in Kent and Queen Anne's. The
data satisfies the CAA requirements when the 3-year average of the
annual fourth-highest daily maximum 8-hour average ozone concentration
(commonly referred to as the area's design value) is less than or equal
to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the
CAA, a nonattainment area may be redesignated if sufficient complete,
quality-assured data is available to determine that the area has
attained the standard and the area meets the other CAA redesignation
requirements set forth in section 107(d)(3)(E).
III. What are the Criteria for Redesignation to Attainment?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA,
allows for redesignation, providing that:
(1) EPA determines that the area has attained the applicable NAAQS;
(2) EPA has fully approved the applicable implementation plan for
the area under section 110(k);
(3) EPA determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable Federal air
pollutant control regulations and other permanent and enforceable
reductions;
(4) EPA has fully approved a maintenance plan for the area as
meeting the requirements of section 175A; and
(5) The State containing such area has met all requirements
applicable to the area under section 110 and Part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990, on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
``Ozone and Carbon Monoxide Design Value Calculations'',
Memorandum from Bill Laxton, June 18, 1990;
``Maintenance Plans for Redesignation of Ozone and Carbon
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief,
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John
Calcagni Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSD's) for Redesignation
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17,
1993;
``State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone and
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On
or After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993;
Memorandum from D. Kent Berry, Acting Director, Air
Quality Management Division, to Air Division Directors, Regions 1-10,
``Use of Actual Emissions in Maintenance Demonstrations for Ozone and
CO Nonattainment Areas,'' dated November 30, 1993;
``Part D New Source Review (Part D NSR) Requirements for
Areas Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz,
[[Page 59417]]
Director, Office of Air Quality Planning and Standards, May 10, 1995.
IV. Why is EPA Taking These Actions?
On May 2 and 19, 2006, the MDE requested redesignation of the Kent
and Queen Anne's area to attainment for the 8-hour ozone standard. On
May 2, 2006, the MDE submitted a maintenance plan for the Kent and
Queen Anne's area as a SIP revision, to assure continued attainment of
the 8-hour ozone NAAQS over the next 12 years, until 2018.
Concurrently, Maryland is requesting that EPA approve a revision to the
1-hour ozone maintenance plan as required under CAA 175A(b). EPA is
proposing to approve the maintenance plan to fulfill the requirement of
section 175A(b) for submission of a maintenance plan update eight years
after Kent and Queen Anne's was redesignated to attainment of the 1-
hour ozone NAAQS. EPA believes that such an update must ensure that the
maintenance plan in the SIP provides maintenance of the NAAQS for a
period of 20 years after an area is initially redesignated to
attainment. EPA can propose approval because the maintenance plan,
which demonstrates maintenance of the 8-hour ozone NAAQS through 2018,
also demonstrates maintenance of the 1-hour ozone NAAQS through 2018,
even though the latter standard is no longer in effect. Kent and Queen
Anne's was redesignated to attainment of the 1-hour ozone NAAQS on
October 21, 2004 (69 FR 61766), and, the initial 1-hour ozone
maintenance plan provided for maintenance through the end of the
maintanence period. Section 51.905(e) of the ``Final Rule To Implement
the 8-Hour Requirements--Phase 1'' April 30, 2004 (69 FR 23999)
specifies the conditions that must be satisfied before EPA may approve
a modification to a 1-hour maintenance plan which: (1) Removes the
obligation to submit a maintenance plan for the 1-hour ozone NAAQS
eight years after approval of the initial 1-hour maintenance plan and/
or (2) removes the obligation to implement contingency measures upon a
violation of the 1-hour NAAQS. EPA believes that section 51.905(e) of
the final rule allows a State to make either one or both of these
modifications to a 1-hour maintenance plan SIP once EPA approves a
maintenance plan for the 8-hour NAAQS. The maintenance plan will not
trigger the contingency plan upon a violation of the 1-hour ozone
NAAQS, but upon a violation of the 8-hour ozone NAAQS. EPA believes
that the 8-hour standard is now the proper standard which should
trigger the contingency plan now that the 1-hour NAAQS has been revoked
and now that approval of the maintenance plan would allow the State to
remove a violation of the 1-hour NAAQS obligation from the SIP. EPA has
determined that the Kent and Queen Anne's area has attained the
standard and has met the requirements for redesignation set forth in
section 107(d)(3)(E).
V. What Would be the Effect of These Actions?
Approval of the redesignation request would change the designation
of Kent and Queen Anne's from nonattainment to attainment for the 8-
hour ozone NAAQS found at 40 CFR part 81. It would also incorporate
into the Maryland SIP a maintenance plan ensuring continued attainment
of the 8-hour ozone NAAQS in Kent and Queen Anne's for the next 12
years, until 2018. The maintenance plan includes contingency measures
to remedy any future violations of the 8-hour NAAQS (should they
occur), and identifies the MVEBs for NOX and VOC for
transportation conformity purposes for the years 2009 and 2018. These
MVEBs are displayed in the following table:
Table 1.--Motor Vehicle Emissions Budgets in Tons per Day (tpd)
------------------------------------------------------------------------
Year NOX VOC
------------------------------------------------------------------------
2009.................................................... 5.11 2.72
2018.................................................... 2.38 1.62
------------------------------------------------------------------------
VI. What is EPA's Analysis of the State's Request?
EPA is proposing to determine that the Kent and Queen Anne's area
has attained the 8-hour ozone standard and that all other redesignation
criteria have been met. The following is a description of how the MDE's
May 2 and 19, 2006 submittals satisfy the requirements of section
107(d)(3)(E) of the CAA.
A. The Kent and Queen Anne's Area Has Attained the 8-Hour Ozone NAAQS
EPA is proposing to determine that the Kent and Queen Anne's area
has attained the 8-hour ozone NAAQS. For ozone, an area may be
considered to be attaining the 8-hour ozone NAAQS if there are no
violations, as determined in accordance with 40 CFR 50.10 and Appendix
I of part 50, based on three complete, consecutive calendar years of
quality-assured air quality monitoring data. To attain this standard,
the 3-year average of the fourth-highest daily maximum 8-hour average
ozone concentrations measured at each monitor, within the area, over
each year must not exceed the ozone standard of 0.08 ppm. Based on the
rounding convention described in 40 CFR part 50, Appendix I, the
standard is attained if the design value is 0.084 ppm or below. The
data must be collected and quality-assured in accordance with 40 CFR
part 58, and recorded in the Air Quality Subsystem (AQS). The monitors
generally should have remained at the same location for the duration of
the monitoring period required for demonstrating attainment.
In the Kent and Queen Anne's area there is one ozone monitor,
located in Kent County, that measures air quality with respect to
ozone. As part of its redesignation request, Maryland referenced ozone
monitoring data for the years 2003-2005 for the Kent and Queen Anne's
area. This data has been quality assured and is recorded in AIRS. The
fourth high 8-hour daily maximum concentrations, along with the three-
year averages, are summarized in Table 2.
Table 2.--Kent and Queen Anne's Counties Nonattainment Area Fourth
Highest 8-hour Average Values; Millington Monitor
------------------------------------------------------------------------
Annual 4th high
Year reading (ppm)
------------------------------------------------------------------------
2003................................................. 0.086
2004................................................. 0.078
2005................................................. 0.084
------------------------------------------------------------------------
The average for the 3-year period 2003 through 2005 is 0.082 ppm.
------------------------------------------------------------------------
The air quality data for 2003-2005 show that the entire Kent and
Queen Anne's area has attained the standard with a design value of
0.082 ppm. The data collected at the Kent and Queen Anne's area
monitors satisfy the CAA requirement that the 3-year average of the
annual fourth-highest daily maximum 8-hour average ozone concentration
is less than or equal to 0.08 ppm. The MDE's request for redesignation
for Kent and Queen Anne's indicates that the data is complete and was
quality assured in accordance with 40 CFR part 58. The MDE uses AQS as
the permanent database to maintain its data and quality assures the
data transfers and content for accuracy. In addition, as discussed
below with respect to the maintenance plan, MDE has committed to
continue monitoring in accordance with 40 CFR part 58. In summary, EPA
has determined that the data referenced by Maryland and data taken from
AQS indicates that the Kent and Queen Anne's area has attained the 8-
hour ozone NAAQS.
[[Page 59418]]
B. The Kent and Queen Anne's Area Has Met All Applicable Requirements
Under Section 110 and Part D of the CAA and Has a Fully Approved SIP
Under Section 110(k) of the CAA
EPA has determined that the Kent and Queen Anne's area has met all
SIP requirements applicable for purposes of this redesignation under
section 110 of the CAA (General SIP Requirements) and that it meets all
applicable SIP requirements under Part D of Title I of the CAA, in
accordance with section 107(d)(3)(E)(v). In addition, EPA has
determined that the SIP is fully approved with respect to all
requirements applicable for purposes of redesignation in accordance
with section 107(d)(3)(E)(ii). In making these proposed determinations,
EPA ascertained what requirements are applicable to the Kent and Queen
Anne's area, and determined that the applicable portions of the SIP
meeting these requirements are fully approved under section 110(k) of
the CAA. We note that SIPs must be fully approved only with respect to
applicable requirements.
The September 4, 1992 Calcagni memorandum (``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) with respect to the timing of applicable requirements.
Under this interpretation, to qualify for redesignation, States
requesting redesignation to attainment must meet only the relevant CAA
requirements that came due prior to the submittal of a complete
redesignation request. See also Michael Shapiro memorandum, September
17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor). Applicable requirements of the CAA that come due
subsequent to the area's submittal of a complete redesignation request
remain applicable until a redesignation is approved, but are not
required as a prerequisite to redesignation. Section 175A(c) of the
CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR
at 25424, 25427 (May 12, 2003) (redesignation of St. Louis).
1. Section 110 General SIP Requirements
Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control measures, means, or techniques, provisions for the
establishment and operation of appropriate devices necessary to collect
data on ambient air quality, and programs to enforce the limitations.
The general SIP elements and requirements set forth in section
110(a)(2) include, but are not limited to, the following:
Submittal of a SIP that has been adopted by the State
after reasonable public notice and hearing;
Provisions for establishment and operation of appropriate
procedures needed to monitor ambient air quality;
Implementation of a source permit program; provisions for
the implementation of Part C requirement (Prevention of Significant
Deterioration (PSD);
Provisions for the implementation of Part D requirements
for New Source Review (NSR) permit programs;
Provisions for air pollution modeling; and
Provisions for public and local agency participation in
planning and emission control rule development.
Section 110(a)(2)(D) requires that SIPs contain certain measures to
prevent sources in a State from significantly contributing to air
quality problems in another State. To implement this provision, EPA has
required certain States to establish programs to address transport of
air pollutants in accordance with the NOX SIP Call, October
27, 1998 (63 FR 57356), amendments to the NOX SIP Call, May
14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean
Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the
section 110(a)(2)(D) requirements for a State are not linked with a
particular nonattainment area's designation and classification in that
State. EPA believes that the requirements linked with a particular
nonattainment area's designation and classifications are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a State regardless of the designation of any one particular
area in the State.
Thus, we do not believe that these requirements should be construed
to be applicable requirements for purposes of redesignation. In
addition, EPA believes that the other section 110 elements not
connected with nonattainment plan submissions and not linked with an
area's attainment status are not applicable requirements for purposes
of redesignation. Maryland will still be subject to these requirements
after the Kent and Queen Anne's area is redesignated. The section 110
and Part D requirements, which are linked with a particular area's
designation and classification, are the relevant measures to evaluate
in reviewing a redesignation request. This policy is consistent with
EPA's existing policy on applicability of conformity (i.e., for
redesignations) and oxygenated fuels requirement. See Reading,
Pennsylvania, proposed and final rulemakings 61 FR 53174-53176 (October
10, 1996), 62 FR 24826 (May 7, 1997); Cleveland-Akron-Lorain, Ohio,
final rulemaking 61 FR 20458 (May 7, 1996); and Tampa, Florida, final
rulemaking 60 FR 62748 (December 7, 1995). See also the discussion on
this issue in the Cincinnati redesignation 65 FR 37890 (June 19, 2000),
and in the Pittsburgh redesignation 66 FR 53099 (October 19, 2001).
Similarly, with respect to the NOX SIP Call rules, EPA noted
in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the
NOX SIP Call rules are not ``an `applicable requirement' for
purposes of section 110(l) because the NOX rules apply
regardless of an area's attainment or nonattainment status for the 8-
hour (or the 1-hour) NAAQS.'' 69 FR 23951, 23983 (April 30, 2004).
EPA believes that section 110 elements not linked to the area's
nonattainment status are not applicable for purposes of redesignation.
Any section 110 requirements that are linked to the Part D requirements
for 8-hour ozone nonattainment areas are not yet due, because, as we
explain later in this notice, no Part D requirements applicable for
purposes of redesignation under the 8-hour standard became due prior to
submission of the redesignation request.
Because the Maryland SIP satisfy all of the applicable general SIP
elements and requirements set forth in section 110(a)(2), EPA concludes
that Maryland has satisfied the criterion of section 107(d)(3)(E)
regarding section 110 of the Act.
2. Part D Nonattainment Area Requirements Under the 8-Hour Standard
The Kent and Queen Anne's area was designated a marginal
nonattainment area for the 8-hour ozone standard. Sections 172-176 of
the CAA, found in subpart 1 of Part D, set forth the basic
nonattainment requirements for all nonattainment areas. As discussed
previously, there are no outstanding Part D submittals under the 1-hour
standard for this area.
Section 182 of the CAA, found in subpart 2 of Part D, establishes
additional specific requirements depending on the area's nonattainment
classification. The Kent and Queen Anne's area is classified as a
subpart 2 marginal nonattainment area
[[Page 59419]]
With respect to the 8-hour standard, EPA proposes to determine that
the Maryland SIP meets all applicable SIP requirements under Part D of
the CAA, because no 8-hour ozone standard Part D requirements
applicable for purposes of redesignation became due prior to submission
of the area's redesignation request. Because the State submitted a
complete redesignation request for Kent and Queen Anne's prior to the
deadline for any submissions required under the 8-hour standard, we
have determined that the Part D requirements do not apply to Kent and
Queen Anne's for the purposes of redesignation.
In addition to the fact that Part D requirements applicable for
purposes of redesignation did not become due prior to submission of the
redesignation request, EPA believes it is reasonable to interpret the
general conformity and NSR requirements as not requiring approval prior
to redesignation.
With respect to section 176, Conformity Requirements, section
176(c) of the CAA requires States to establish criteria and procedures
to ensure that federally supported or funded projects conform to the
air quality planning goals in the applicable SIP. The requirement to
determine conformity applies to transportation plans, programs, and
projects developed, funded or approved under Title 23 U.S.C. and the
Federal Transit Act (``transportation conformity'') as well as to all
other federally supported or funded projects (``general conformity'').
State conformity revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
that the CAA required the EPA to promulgate.
EPA believes it is reasonable to interpret the conformity SIP
requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) since State conformity rules
are still required after redesignation and Federal conformity rules
apply where State rules have not been approved. See Wall v. EPA, 265 F.
3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. See
also 60 FR 62748 (Dec. 7, 1995).
EPA has also interpreted the section 184 Ozone Transport Region
requirements, including the NSR program, as not being applicable for
purposes of redesignation. The rationale for this is based on two
factors. First, the requirement to submit SIP revisions for the section
184 requirements continues to apply to areas in the OTR after
redesignation to attainment. Therefore the State remains obligated to
have NSR, as well as RACT and Vehicle Inspection and Maintenance
programs even after redesignation. Second, the section 184 control
measures are region-wide requirements and do not apply to the area by
virtue of its designation and classification. See 61 FR 53174, 53175-
53176 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997).
EPA has also determined that areas being redesignated need not
comply with the requirement that a NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
standard without Part D NSR in effect, because PSD requirements will
apply after redesignation. The rationale for this view is described in
a memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, entitled, ``Part D NSR Requirements
or Areas Requesting Redesignation to Attainment.'' Maryland has
demonstrated that the area will be able to maintain the standard
without Part D NSR in effect in Kent and Queen Anne's, and therefore,
Maryland need not have a fully approved Part D NSR program prior to
approval of the redesignation request. Maryland's SIP-approved PSD
program will become effective in Kent and Queen Anne's upon
redesignation to attainment. See rulemakings for Detroit, Michigan (60
FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, Ohio (61 FR
20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR 53665,
October 23, 2001); Grand Rapids, Michigan (61 FR 31834-31837, June 21,
1996).
3. Kent and Queen Anne's Has a Fully Approved SIP for the Purposes of
Redesignation
EPA has fully approved the Maryland SIP for the purposes of this
redesignation. EPA may rely on prior SIP approvals in approving a
redesignation request. Calcagni Memo, p. 3; Southwestern Pennsylvania
Growth Alliance v. Browner, 144 F. 3d 984, 989-90 (6th Cir. 1998), Wall
v. EPA, 265 F.3d 426 (6th Cir. 2001), plus any additional measures it
may approve in conjunction with a redesignation action. See 68 FR 25425
(May 12, 2003) and citations therein. The Kent and Queen Anne's area
was a 1-hour maintenance area at the time of its designation as a
marginal 8-hour ozone nonattainment area on September 22, 2004. Because
Kent and Queen Anne's was a 1-hour maintenance area, all previous Part
D SIP submittal requirements were fulfilled at the time the area was
redesignated to attainment of the 1-hour ozone NAAQS (69 FR 61766,
October 21, 2004) or have been fulfilled with the submittal of the 8-
hour maintenance plan for the area. Because there are no outstanding
SIP submission requirements applicable for the purposes of
redesignation of Kent and Queen Anne's, the applicable implementation
plan satisfies all pertinent SIP requirements. As indicated previously,
EPA believes that the section 110 elements not connected with Part D
nonattainment plan submissions and not linked to the area's
nonattainment status are not applicable requirements for purposes of
redesignation. EPA also believes that no 8-hour Part D requirements
applicable for purposes of redesignation have yet become due for the
Kent and Queen Anne's area, and therefore they need not be approved
into the SIP prior to redesignation.
4. The Air Quality Improvement in the Kent and Queen Anne's Area Is Due
to Permanent and Enforceable Reductions in Emissions Resulting from
Implementation of the SIP and Applicable Federal Air Pollution Control
Regulations and Other Permanent and Enforceable Reductions
EPA believes that the State has demonstrated that the observed air
quality improvement in the Kent and Queen Anne's area is due to
permanent and enforceable reductions in emissions resulting from
implementation of the SIP, Federal measures, and other State-adopted
measures. Emissions reductions attributable to these rules in Kent and
Queen Anne's are shown in Table 3.
Table 3.--Total VOC and NOX Emissions for 2002 and 2005 (tpd)
----------------------------------------------------------------------------------------------------------------
Year Point Area * Nonroad Mobile Total
----------------------------------------------------------------------------------------------------------------
Volatile Organic Compounds (VOC)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 0.12 5.12 11.0 4.18 20.4
Year 2005................................................ 0.12 5.31 10.0 3.15 18.6
[[Page 59420]]
Diff. (02-05)............................................ 0.0 +0.19 -1.00 -1.03 -1.84
----------------------------------------------------------------------------------------------------------------
Nitrogen Oxides (NOX)
----------------------------------------------------------------------------------------------------------------
Year 2002................................................ 0.07 0.23 3.74 7.96 12.0
Year 2005................................................ 0.07 0.25 3.77 6.57 10.7
Diff. (02-05)............................................ 0.0 +0.02 +0.03 -1.39 -1.34
----------------------------------------------------------------------------------------------------------------
Between 2002 and 2005, VOC emissions were reduced by 1.84 tpd, and
NOX emissions were reduced by 1.34 tpd, due to the following
permanent and enforceable measures implemented or in the process of
being implemented in the Kent and Queen Anne's area.
Nearly all of the reductions in VOC are attributable to mobile
onroad and nonroad source emission controls and all of the reductions
in NOX are attributable to the implementation of mobile
source programs. Maryland noted a major portion of the decrease in
ozone precursors was due to the Federal Motor Vehicle Control Program.
Over a period of time, older, poorer performing on-road vehicles have
been gradually replaced with newer vehicles that must meet increasingly
stringent tailpipe standards.
Other regulations, such as the non-road diesel, 69 FR 38958 (June
29, 2004), the heavy duty engine and vehicle standards, 66 FR 5002
(January 18, 2001) and the new Tier 2 tailpipe standards for
automobiles, 65 FR 6698 (February 10, 2000), are also expected to
greatly reduce emissions throughout the country and thereby reduce
emissions impacting the Kent and Queen Anne's area monitor. The Tier 2
standards came into effect in 2004, and by 2030, EPA expects that the
new Tier 2 standards will reduce NOX emissions by about 74
percent nationally. EPA believes that permanent and enforceable
emissions reductions are the cause of the long-term improvement in
ozone levels and are the cause of the area achieving attainment of the
8-hour ozone standard.
There is very little major point source activity in the Kent and
Queen Anne's Counties area and thus point source emissions are very
low. Growth in point sources will be controlled through the offset
requirements under the PSD permitting program. Any major source that
wishes to locate in Kent or Queen Anne's Counties will need to procure
emissions offsets at a ratio of 1.15 to 1 for NOX and VOC.
In addition to emission reductions in the Kent and Queen Anne's
Counties, background concentrations of ozone in the area will decrease
as a result of the many ozone precursor reduction strategies
implemented in the Baltimore and Washington DC severe 8-hour ozone
nonattainment areas. Long range transport of NOX will also
be reduced the NOX SIP Call Rule and Clean Air Interstate
Rule.
5. Kent and Queen Anne's has a Fully Approved Maintenance Plan Pursuant
to Section 175A of the CAA
In conjunction with its request to redesignate the Kent and Queen
Anne's area to attainment status, Maryland submitted a SIP revision to
provide for maintenance of the 8-hour ozone NAAQS in Kent and Queen
Anne's for at least 12 years after redesignation. Maryland is
requesting that EPA approve this SIP revision as meeting the
requirement of CAA 175A(b) and replace the 1-hour ozone maintenance
plan update requirement.
Under 40 CFR 51.905(e), the EPA may approve a SIP revision
requesting the removal of the obligation to implement contingency
measures upon a violation of the 1-hour ozone NAAQS when the State
submits and EPA approves an attainment demonstration for the 8-hour
ozone NAAQS for an area initially designated nonattainment for the 8-
hour NAAQS or a maintenance SIP for the 8-hour NAAQS for an area
initially designated attainment for the 8-hour NAAQS. The rationale
behind 40 CFR 51.905(e) is to ensure that the Kent and Queen Anne's
area maintains the applicable ozone standard (the 8-hour standard in
areas where the 1-hour standard has been revoked). EPA believes this
rationale analogously applies to areas that were not initially
designated, but are redesignated as attainment with the 8-hour ozone
NAAQS. Therefore, EPA intends to treat redesignated areas as though
they had been initially designated attainment of the 8-hour ozone
NAAQS, and accordingly proposes to relieve the Kent and Queen Anne's
area of its maintenance plan obligations with respect to the 1-hour
standard. Once approved, the maintenance plan for the 8-hour ozone
NAAQS will ensure that the SIP for the Kent and Queen Anne's area meets
the requirements of the CAA regarding maintenance of the applicable 8-
hour ozone standard.
What is required In a maintenance plan?
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Eight years after the
redesignation, the State must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the
next 10-year period following the initial 10-year period. To address
the possibility of future NAAQS violations, the maintenance plan must
contain such contingency measures, with a schedule for implementation,
as EPA deems necessary to assure prompt correction of any future 8-hour
ozone violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni memorandum dated September 4, 1992, provides
additional guidance on the content of a maintenance plan. An ozone
maintenance plan should address the following provisions:
(a) An attainment emissions inventory;
(b) A maintenance demonstration;
(c) A monitoring network;
(d) Verification of continued attainment; and
(e) A contingency plan.
Analysis of the Kent and Queen Anne's Area Maintenance Plan
(a) Attainment Inventory--the attainment inventory includes the
emissions during the time period associated with the monitoring data
showing attainment. MDE determined that the appropriate attainment
inventory year is 2005. That year establishes a reasonable year within
the three-year block of 2003-2005 as a baseline and accounts for
reductions
[[Page 59421]]
attributable to implementation of the CAA requirements to date. The
2005 inventory is consistent with EPA guidance, is based on actual
``typical summer day'' emissions of VOC, NOX, and Carbon
Monoxide (CO) during 2004, and consists of a list of sources and their
associated emissions. To develop the NOX and VOC base year
emissions inventories, MDE used the approaches outlined in the document
titled ``Inventory Preparation Plan/ Quality Assurance Plan for
Maryland.'' The 2005 point source data was ``grown'' using the 2002
base year inventory. MDE projected the 2002 base year inventory using
EPA's EGAS Model (version 5.0) for all inventory years. EGAS (version
5.0) generates emission growth factors by sector. The 2005 area source
data was projected using a variety of methods including the EGAS model
(version 5.0) and forecasts prepared by the Baltimore Metropolitan
Council. The nonroad inventory was developed using NONROAD model
(version 2004). The on road mobile source inventory was generated using
the HPMS module of the PPSuite software. MDE used MOBILE model (version
6.2) to assess the mobile source emission levels in the counties and
estimate the benefits gained from mobile control measures. This
estimate assumes the following emissions control programs, which are or
will be permanent and enforceable: Federal Motor Vehicle Control
Program, the 1992 Reid Vapor Pressure Program, Tier 1 and 2 controls on
new vehicles, Evaporative Emissions Control Program, Federal
Reformulated Gasoline Program, Enhanced I/M Program in Queen Anne's
County, Stage I Vapor Recovery, On Board Controls and National Low
Emissions Vehicle (NLEV) Program, Federal HDDE rule and low sulfur
fuels regulations.
(b) Maintenance Demonstration--On May 2 and 19, 2006, MDE submitted
a maintenance plan as required by section 175A of the CAA. The Kent and
Queen Anne's plan shows maintenance of the 8-hour ozone NAAQS by
demonstrating that current and future emissions of VOC and
NOX remain at or below the attainment year 2005 emissions
levels throughout Kent and Queen Anne's through the year 2018. The Kent
and Queen Anne's maintenance demonstration need not be based on
modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001); Sierra Club v.
EPA, 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100
(October 19, 2001), 68 FR 25418, 25430-32 (May 12, 2003).
Tables 4 and 5 specify the Kent and Queen Anne's VOC and
NOX emissions for 2005, 2009, and 2018. The MDE chose 2009
as an interim year in the 12-year maintenance demonstration period to
demonstrate that the VOC and NOX emissions are not projected
to increase above the 2005 attainment level during the time of the 12-
year maintenance period.
Table 4.--Total VOC Emissions for 2005-2018 (tons per day)
------------------------------------------------------------------------
2005 VOC 2009 VOC 2018 VOC
Source category emissions emissions emissions
------------------------------------------------------------------------
Mobile.............................. 3.15 2.45 1.55
Nonroad............................. 10.00 8.25 5.96
Area................................ 5.31 5.54 5.17
Point............................... 0.12 0.13 0.16
Total........................... 18.58 16.37 12.84
------------------------------------------------------------------------
2018 VOC Safety Margin: 5.74 tpd.
Table 5.--Total NOX Emissions 2005-2018 (tons per day)
------------------------------------------------------------------------
2005 NOX 2009 NOX 2018 NOX
Source category emissions emissions emissions
------------------------------------------------------------------------
Mobile.............................. 6.57 4.82 2.14
Nonroad............................. 3.77 3.66 3.03
Area................................ 0.25 0.26 0.28
Point............................... 0.07 0.07 0.08
Total........................... 10.66 8.81 5.53
------------------------------------------------------------------------
2018 NOX Safety Margin: 5.13 tpd.
Additionally, the following mobile programs are either effective or
due to become effective and will further contribute to the maintenance
demonstration of the 8-hour ozone NAAQS:
Heavy duty diesel on-road (2004/2007) and low-sulfur on-
road (2006); 66 FR 5002 (January 18, 2001); and
Non-road emissions standards (2008) and off-road diesel
fuel (2007/2010); 69 FR 39858 (June 29, 2004).
Based upon the comparison of the projected emissions and the
attainment year emissions along with the additional measures, EPA
concludes that MDE has successfully demonstrated that the 8-hour ozone
standard should be maintained in the Kent and Queen Anne's area.
(c) Monitoring Network--There is currently one monitor, the
Millington monitor, measuring ozone in the Kent and Queen Anne's area,
which is located in Kent County. Maryland will continue to operate its
current air quality monitor in accordance with 40 CFR part 58.
(d) Verification of Continued Attainment--The State of Maryland has
the legal authority to implement and enforce specified measures
necessary to attain and maintain the NAAQS. Additionally, Federal
programs such as Tier 2/Low Sulfur Gasoline Rule, 2007 On-Road Diesel
Engine Rule, and Federal Non-road Engine/Equipment Rules will continue
to be implemented on a national level. These programs help provide the
reductions necessary for the Kent and Queen Anne's area to maintain
attainment.
In addition to maintaining the key elements of its regulatory
program, Maryland requires ambient and source emissions data to track
attainment and maintenance. The MDE proposes to fully update its point,
area, and mobile emission inventories at 3-year intervals as required
by the Consolidated Emissions Reporting Rule (CERR) and Section
187(a)(5) of the CAA. MDE will compare actual inventories to projected
inventories, to determine if emission
[[Page 59422]]
levels exceed the attainment year levels. If there is an attainment
year inventory excursion, MDE will assess the need to trigger
contingency measures implementation procedures. In addition, MDE shall
also continue to operate the existing ozone monitoring station in the
area pursuant to 40 CFR part 58 throughout the maintenance period and
submit quality-assured ozone data to EPA through the AIRS system.
(e) The Maintenance Plan's Contingency Measures--The contingency
plan provisions are designed to promptly correct a violation of the
NAAQS that occurs after redesignation. Section 175A of the Act requires
that a maintenance plan include such contingency measures as EPA deems
necessary to ensure that the State will promptly correct a violation of
the NAAQS that occurs after redesignation. The maintenance plan should
identify the events that would ``trigger'' the adoption and
implementation of a contingency measure(s), the contingency measure(s)
that would be adopted and implemented, and the schedule indicating the
time frame by which the State would adopt and implement the measure(s).
The ability of the Kent and Queen Anne's area to stay in compliance
with the 8-hour ozone standard after redesignation depends upon VOC and
NOX emissions in the area remaining at or below 2005 levels.
The State's maintenance plan projects VOC and NOX emissions
to decrease and stay below 2005 levels through the year 2018. The
State's maintenance plan outlines the procedures for the adoption and
implementation of contingency measures to further reduce emissions
should a violation occur. They are as follows:
After the 4th exceedance of the 8-hour ozone NAAQS (0.08ppm) occurs
within any given calendar year, the MDE will consider that fourth
exceedance and any subsequent exceedance as the trigger by which an
immediate recalculation of the design value for the Millington Monitor
would be required. If the recalculated design value is shown to be
above the 8-hour NAAQS (0.08ppm) then Maryland would initiate the
following schedule:
(1) Within 2 weeks of the ``trigger''--MDE will notify Kent and
Queen Anne's Counties and other stakeholders of the violations and will
schedule an initial work group meeting concerning contingency measures.
(2) Within 6 weeks of the ``trigger''--MDE will convene a
stakeholder group to evaluate the selection and implementation of the
contingency measures. The stakeholder group will be composed of
interested State and local government agencies; business, environmental
and health representatives; citizens and other interested parties
(3) Within 12 weeks of the ``trigger''--A public meeting will be
held on the proposed contingency measures
(4) Within 18 weeks of the ``trigger''--MDE/ Stakeholders will meet
to consider public comments and finalize a list of planned contingency
measures
(5) After the list of planning of measures is finalized as
identified above in step 4 it will take approximately 12 months from
that date to go through any required rulemaking processes.
(6) Within 24 months of the ``trigger''--Agreed-upon contingency
measures will be implemented in the impacted counties
The following measures may be considered contingency measures:
Industrial Commercial Institutional (ICI) Boiler RACT.
Commuter/traffic measures such as Potential expansion of
park and ride lots, expanded transit services, enhance opportunities
for telecommuting/flexible hours/ compressed work schedules.
Expand Air Quality Action Day activities such as put off
any painting until later; don't use aerosol consumer products; avoid
mowing lawns with gasoline-powered mowers; start charcoal with an
electric or chimney-type fire starter instead of lighter fluid; take
public transportation; try telecommuting.
Clean Air Partners public education outreach.
Expansion of E-government services at State and county
level.
Bicycle and pedestrian enhancements such as additional
trails and bike lanes.
Emissions testing for truck transport.
Land use/transportation policies.
Promote non-motorized transport.
Promote tree planting standards that favor trees with low
VOC biogenic emissions.
Promote energy saving plan for county government.
Gas can and lawnmower replacement.
The maintenance plan adequately addresses the five basic components
of a maintenance plan: attainment inventory, maintenance demonstration,
monitoring network, verification of continued attainment, and a
contingency plan. EPA believes that the maintenance plan SIP revision
submitted by Maryland for Kent and Queen Anne's meets the requirements
of section 175A of the Act.
VII. Are the Motor Vehicle Emissions Budgets Established and Identified
in the Kent and Queen Anne's Maintenance Plan Adequate and Approvable?
A. What Are the Motor Vehicle Emissions Budgets (MVEBs)?
Under the CAA, States are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (i.e., RFP SIPs and attainment demonstration
SIPs) and maintenance plans identify and establish MVEBs for certain
criteria pollutants and/or their precursors to address pollution from
on-road mobile sources. In the maintenance plan the MVEBs are termed
``on-road mobile source emissions budgets.'' Pursuant to 40 CFR part 93
and 51.112, MVEBs must be established in an ozone maintenance plan. A
MVEB is the portion of the total allowable emissions that is allocated
to highway and transit vehicle use and emissions. A MVEB serves as a
ceiling on emissions from an area's planned transportation system. The
MVEB concept is further explained in the preamble to the November 24,
1993, transportation conformity rule (58 FR 62188). The preamble also
describes how to establish and revise the MVEBs in control strategy
SIPs and maintenance plans.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the State's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
or reasonable progress towards the national ambient air quality
standards. If a transportation plan does not ``conform,'' most new
projects that would expand the capacity of roadways cannot go forward.
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and
procedures for demonstrating and assuring conformity of such
transportation activities to a SIP.
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB budget
contained therein ``adequate'' for use in determining transportation
conformity. After EPA affirmatively finds the submitted MVEB is
adequate for transportation conformity purposes, that MVEB can be used
by State and Federal agencies in determining whether proposed
transportation projects ``conform'' to the State implementation plan as
required by section 176(c) of the
[[Page 59423]]
CAA. EPA's substantive criteria for determining ``adequacy'' of a MVEB
are set out in 40 CFR 93.118(e)(4).
EPA's process for determining ``adequacy'' consists of three basic
steps: public notification of a SIP submission, a public comment
period, and EPA's adequacy finding. This process for determining the
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14,
1999 guidance, ``Conformity Guidance on Implementation of March 2,
1999, Conformity Court Decision.'' This guidance was finalized in the
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards and Miscellaneous
Revisions for Existing Areas; Transportation Conformity Rule
Amendments--Response to Court Decision and Additional Rule Change'' on
July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in
making its adequacy determinations.
The MVEBs for Kent and Queen Anne's are listed in Table 1 of this
document for the 2009, and 2018 years and are the projected emissions
for the on-road mobile sources plus any portion of the safety margin
allocated to the MVEBs (safety margin allocation for 2009 and 2018
only). These emission budgets, when approved by EPA, must be used for
transportation conformity determinations.
B. What Is a Safety Margin?
A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. The attainment level of
emissions is the level of emissions during one of the years in which
the area met the NAAQS. The following example is for the 2018 safety
margin: Kent and Queen Anne's first attained the 8-hour ozone NAAQS
during the 2003 to 2005 time period. The State used 2005 as the year to
determine attainment levels of emissions for the Kent and Queen Anne's
area. The total emissions from point, area, mobile on-road, and mobile
non-road sources in 2005 equaled 18.58 tpd of VOC and 10.66 tpd of
NOX. The MDE projected emissions out to the year 2018 and
projected a total of 12.84 tpd of VOC and 5.53 tpd of NOX
from all sources in Kent and Queen Anne's. The safety margin for 2018
would be the difference between these amounts, or 5.74 tpd of VOC and
5.13 tpd of NOX. The emissions up to the level of the
attainment year including the safety margins are projected to maintain
the area's air quality consistent with the 8-hour ozone NAAQS. The
safety margin is the extra emissions reduction below the attainment
levels that can be allocated for emissions by various sources as long
as the total emission levels are maintained at or below the attainment
levels. Table 6 shows the safety margins for the 2009 and 2018 years.
Table 6.--2009 and 2018 Safety Margins for Kent and Queen Anne's
------------------------------------------------------------------------
VOC Emissions NOX Emissions
Inventory year (tpd) (tpd)
------------------------------------------------------------------------
2005 Attainment................... 18.58 10.66
2009 Interim...................... 16.37 8.81
2009 Safety Margin................ 2.21 1.85
2004 Attainment................... 18.58 10.66
2018 Final........................ 12.84 5.53
2018 Safety Margin................ 5.74 5.13
------------------------------------------------------------------------
Table 7.--2009 and 2018 Final MVEBs for Kent and Queen Anne's
------------------------------------------------------------------------
VOC Emissions NOX Emissions
Inventory year (tpd) (tpd)
------------------------------------------------------------------------
2009 projected on-road mobile 2.45 4.82
source projected emissions.......
2009 Safety Margin Allocated to 0.27 0.29
MVEBs............................
2009 MVEBs........................ 2.72 5.11
2018 projected on-road mobile 1.55 2.14
source projected emissions.......
2018 Safety Margin Allocated to 0.07 0.24
MVEBs............................
2018 MVEBs........................ 1.62 2.38
------------------------------------------------------------------------
The MDE allocated 0.29 tpd NOX and 0.27 tpd VOC to the
2009 interim VOC projected on-road mobile source emissions projection
and the 2009 interim NOX projected on-road mobile source
emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs
the MDE allocated 0.24 tpd NOX and 0.07 tpd VOC from the
2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the
mobile source budgets these portions of the safety margins are no
longer available, and may no longer be allocated to any other source
category. Table 7 shows the final 2009 and 2018 MVEBS for the Kent and
Queen Anne's area.
C. Why Are the MVEBs Approvable?
The 2009 and 2018 MVEBs for Kent and Queen Anne's are approvable
because the MVEBs for NOX and VOC, including the allocated
safety margins, continue to maintain the total emissions at or below
the attainment year inventory levels as required by the transportation
conformity regulations.
D. What Is the Adequacy and Approval Process for the MVEBs in the Kent
and Queen Anne's Maintenance Plan?
The MVEBs for the Kent and Queen Anne's area maintenance plan are
being posted to EPA's conformity Web site concurrent with this
proposal. The public comment period will end at the same time as the
public comment period for this proposed rule. In this case, EPA is
concurrently processing the action on the maintenance plan and the
adequacy process for the MVEBs contained therein. In this proposed
rule, EPA is proposing to find the MVEBs adequate and also proposing to
approve the MVEBs as part of the maintenance plan. The MVEBs cannot be
used for transportation conformity until the maintenance plan update
and associated MVEBs are approved in a final Federal Register notice,
or EPA otherwise finds the budgets adequate in a separate action
following the comment period.
[[Page 59424]]
If EPA receives adverse written comments with respect to the
proposed approval of the Kent and Queen Anne's area MVEBs, or any other
aspect of our proposed approval of this updated maintenance plan, we
will respond to the comments on the MVEBs in our final action or
proceed with the adequacy process as a separate action. Our action on
the Kent and Queen Anne's MVEBs will also be announced on EPA's
conformity Web site: http://www.epa.gov/otaq/stateresources/index.html
(once there, click on ``Transportation Conformity'', then look for
``Adequacy Review of SIP Submissions'').
VIII. Proposed Actions
EPA is proposing to determine that the Kent and Queen Anne's area
has attained the 8-hour ozone NAAQS. EPA is also proposing to approve
the redesignation of the Kent and Queen Anne's area from nonattainment
to attainment for the 8-hour ozone NAAQS. EPA has evaluated Maryland's
redesignation request and determined that it meets the redesignation
criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes
that the redesignation request and monitoring data demonstrate that the
Kent and Queen Anne's area has attained the 8-hour ozone standard. The
final approval of this redesignation request would change the
designation of Kent and Queen Anne's from nonattainment to attainment
for the 8-hour ozone standard. EPA is also proposing to approve the
associated maintenance plan for the Kent and Queen Anne's area,
submitted on May 2 and 19, 2006, as a revision to the Maryland SIP. EPA
is proposing to approve the maintenance plan for the Kent and Queen
Anne's area because it meets the requirements of section 175A as
described previously in this notice. EPA is also proposing to approve
the MVEBs submitted by the Maryland for Kent and Queen Anne's area in
conjunction with its redesignation request. EPA is soliciting public
comments on the issues discussed in this document. These comments will
be considered before taking final action.
IX. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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 proposes to approve State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. Redesignation of an area to attainment under
section 107(d)(3)(e) of the Clean Air Act does not impose any new
requirements on small entities. Redesignation is an action that affects
the status of a geographical area and does not impose any new
regulatory requirements on sources. Redesignation of an area to
attainment under section 107(d)(3)(E) of the Clean Air Act does not
impose any new requirements on small entities. Redesignation is an
action that affects the status of a geographical area and does not
impose any new regulatory requirements on sources. Accordingly, the
Administrator certifies that this proposed 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 proposes to approve 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 proposed
rule also does 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), nor will it 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),
because it merely proposes to affect the status of a geographical area,
does not impose any new requirements on sources, or allow the State to
avoid adopting or implementing other requirements, and does not alter
the relationship or the distribution of power and responsibilities
established in the Clean Air Act. This proposed rule also is not
subject to Executive Order 13045 (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. Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources. 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. As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
proposed rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule proposing to approve the redesignation of the Kent and Queen
Anne's area to attainment for the 8-hour ozone NAAQS, the associated
maintenance plan, and the MVEBs identified in the maintenance plan,
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
This rule proposing to approve the redesignation of Kent and Queen
Anne's to attainment for the 8-hour ozone NAAQS, the associated
maintenance plan, and the MVEBs identified in the maintenance plan,
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.
40 CFR Part 81
Air pollution control, National Parks, Wilderness Areas.
Authority: 42 U.S.C. 7401 et seq.
[[Page 59425]]
Dated: September 28, 2006.
William T. Wisniewski,
Acting, Regional Administrator, Region III.
[FR Doc. E6-16654 Filed 10-6-06; 8:45 am]
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