[Federal Register Volume 69, Number 73 (Thursday, April 15, 2004)]
[Rules and Regulations]
[Pages 19937-19939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8096]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC052-7007, MD143-3102, VA129-5065; FRL-7645-1]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress 
Plans and One-Hour Ozone Attainment Demonstrations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of stay.

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SUMMARY: The EPA is taking immediate final action to indefinitely stay, 
pending completion of judicial review, a conditional approval 
promulgated on April 17, 2003. On February 3, 2004, the United States 
Court of Appeals filed an opinion that vacated and remanded the April 
17, 2003 final action insofar as it granted conditional approval, and 
denied a petition for review of other parts of the April 17, 2003 final 
rule. The Petitioner filed a timely petition for rehearing on an issue 
not related to the vacatur of the conditional approval. The intended 
effect of this action is to stay any potential application of the April 
17, 2003 conditional approval until the date that the litigation 
concludes.

EFFECTIVE DATE: Effective April 15, 2004. 40 CFR 52.473, 52.1072(e) and 
52.2450(b) are stayed indefinitely.

ADDRESSES: Copies of the documents relevant to this action are 
available 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.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or 
by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. What Is the Background for This Action?

    On April 17, 2003 (68 FR 19106), EPA published a final rulemaking 
granting three conditional approvals of Metropolitan Washington, DC 
severe ozone nonattainment area (DC Area) State Implementation Plan 
(SIP) revisions submitted by the District of Columbia, the State of 
Maryland and the Commonwealth of Virginia (the States).\1\ The April 
17, 2003 final action conditionally approved those SIP revisions 
identified in Table 1 of the final rule contingent on each of the 
States submitting a revised SIP by April 17, 2004 to satisfy certain 
specifically enumerated conditions. These conditions were codified at 
40 CFR 52.473 in the case of the District of Columbia; 40 CFR 
52.1072(e) in the case of Maryland; and 40 CFR 52.2450(b) in the case 
of Virginia. See 68 FR at 19131-19133. In the final action EPA noted 
that if a State should fail to meet any condition for approval by April 
17, 2004, that State's conditional approval would be treated as a 
disapproval pursuant to CAA section 110(k). See 68 FR 19106, April 17, 
2003, as corrected by 68 FR 264958, May 16, 2003. Conversely, if the 
States were to fulfill the conditions by April 17, 2004, EPA would 
initiate rulemaking to convert the conditional approval to a full 
approval of the SIP.
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    \1\ Under Section 302(d) of the Clean Air Act the term ``State'' 
includes the District of Columbia.
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    The Sierra Club filed petitions for review of the April 17, 2003, 
final rule with the United States Courts of Appeals for the Fourth 
Circuit and District of Columbia Circuit. The cases were consolidated 
in the United States Court of Appeal for the District of Columbia 
Circuit (the Court). On February 3, 2004, the Court filed an opinion 
that vacated and remanded EPA's conditional approval action insofar as 
it granted conditional approval based on what the Court found to be 
defective commitment letters. The Court also denied the petition for 
review in all other respects. See Sierra Club v. EPA, 356 F.3d 296 
(D.C. Cir. 2004).
    On March 19, 2004, the Sierra Club filed a ``Petition for Panel 
Rehearing'' requesting the Court to reconsider one issue addressed in a 
footnote of the opinion. This issue is not related to vacatur of the 
conditional approval, and if the Court were to reverse its initial 
decision in EPA's favor, that reversal would not in any way affect the 
vacatur of the conditional approval.

II. What Is the Effect of the Petition for Rehearing?

    If no petition for rehearing had been filed, the Federal Rules of 
Appellate Procedure direct the Court to have issued its ``mandate'' by 
March 26, 2004.

[[Page 19938]]

The ``mandate'' is nothing more than ``a certified copy of the 
judgment, a copy of the court's opinion, if any, and any direction 
about costs.'' Fed. R. App. P. 41(a). The filing of the petition for 
rehearing automatically stayed the issuance of the mandate. Fed. R. 
App. P. 41(d)(1). Because the mandate has not been issued, the Court 
retains jurisdiction over this matter until the petition for rehearing 
is either (1) denied, or (2) granted and ultimately resolved on the 
merits. The vacatur of the conditional approval will not be remanded to 
EPA until such time as the Court officially relinquishes its 
jurisdiction by issuing the mandate. Until this matter is officially 
remanded to EPA, we cannot remove the conditional approval from 40 CFR 
52.473, 40 CFR 52.1072(e) and 40 CFR 52.2450(b).
    Until such time as the rulemaking is officially remanded to EPA 
pursuant to the February 3, 2004 decision and EPA removes the 
conditional approval from the States' SIPs, there is a technical 
argument that EPA could ignore the Court's February 3, 2004 decision 
and either promulgate a rulemaking to convert the conditional approval 
to a full approval if the States fulfill their commitments, or, if the 
States fail to fulfill their commitments, treat the SIP as a 
disapproval pursuant to section 110(k)(4) of the Clean Air Act.
    In light of the court's opinion vacating the conditional approval, 
which will not be disturbed by any action on the petition for 
rehearing, EPA does not believe that it should take action to either 
convert these SIPs to fully approved status, or to treat them as being 
disapproved pending issuance of the mandate. Either action by EPA would 
be inconsistent with the Court's filed opinion, which determined that 
EPA's conditional approval was not authorized by the Clean Air Act. 
Further, neither EPA nor the Petitioner have taken any action to seek 
reversal of the Court's decision vacating the conditional approval.

III. Basis for Exception From Notice and Comment Rulemaking

    Under section 553(b)(3)(B) of the Administrative Procedures Act 
(APA), 5 U.S.C. 553(b)(3)(B), when an Agency finds good cause to exist, 
it may issue a rule without first providing notice and comment.
    The Court filed its opinion vacating the conditional approval on 
February 3, 2004. The Petitioner filed its petition for rehearing on 
March 19, 2004, staying the mandate that would have issued by March 26, 
2004, less than a month before the conditional approval compliance 
deadline of April 17, 2004. It is impractical for EPA, in less than one 
month, to do notice and comment rulemaking clarifying that it will not 
be taking an action inconsistent with the Court's February 3, 2004 
opinion. Further, EPA concludes that it would not be in the public 
interest to allow any action to proceed in conflict with the opinion of 
the court issued on February 3, 2004. Therefore, EPA believes that it 
has good cause to issue this stay without notice and comment.

IV. Basis for Issuing Stay

    Pursuant to section 705 of the APA, 5 U.S.C. 705, ``when an agency 
finds that justice so requires, it may postpone the effective date of 
actions taken by it, pending judicial review.'' Neither the Petitioner 
nor EPA have asked the Court to reverse the vacatur of the conditional 
approval. The judicial review of EPA's final rulemaking for now remains 
pending for reasons entirely unrelated to the Court's decision to 
vacate the conditional approval. EPA believes that it is in the 
interest of justice for the Agency to clarify that it intends to take 
no action inconsistent with the Court's February 3, 2004 opinion simply 
because this matter cannot be officially remanded to the Agency at the 
present time. This stay clarifies that EPA will neither treat as 
disapproved nor take an action to convert to full approval any of the 
three States' SIPs that were subject to the vacated conditional 
approval during the pendency of the petition for rehearing, regardless 
of any SIP submissions that the States may or may not make in 
compliance with the conditional approval that has been vacated by the 
Court.

V. Effective Date of Stay

    This action shall be effective on publication pursuant to section 
553(d) of the APA, 5 U.S.C. 553(d). Although APA section 553(d) 
specifies that a rulemaking ordinarily must be published 30 days prior 
to its effective date, APA section 553(d)(1) allows for an exception, 
among other reasons, if the rulemaking relieves a restriction or ``as 
otherwise provided by the agency for good cause found and published 
with the rule.'' 5 U.S.C. 553(d)(1). Staying the conditional approval, 
and hence the April 17, 2004 date for submittal of the SIP revisions 
relieves restriction imposed on the States of submitting SIP revisions, 
and relieves EPA of the statutory restriction to take action on any 
already-submitted SIP revisions, both of which could be contrary to the 
Court's holding in Sierra Club v. EPA, 356 F.3d 296 (DC Cir. 2004). EPA 
believes that it would not be appropriate for any actions to be taken 
inconsistent with a filed U.S. Court of Appeals decision even if the 
court's mandate has not issued because of a petition for rehearing on 
an unrelated matter. Further, clarifying that neither EPA nor the 
States will have to take an action on or after April 17, 2004 that 
would be inconsistent with the filed opinion of the Court is additional 
good cause as explained above with respect to good cause for taking 
action without prior proposal justifying that the stay should be 
effective on publication. See 5 U.S.C. 553(d)(3).

VI. Final Action

    EPA is staying 40 CFR 52.473, 40 CFR 52.1072(e) and 40 CFR 
52.2450(b) as follows:
    Effective April 15, 2004, 40 CFR 52.473 is stayed indefinitely. In 
a future action published in the Federal Register EPA will lift this 
stay and/or vacate the conditional approval after the issuance of the 
mandate by the U.S. Court of Appeals for the District of Columbia 
Circuit in a manner consistent with any order the Court may issue in 
Sierra Club v. EPA (No. 03-1084, DC Cir.).
    Effective April 15, 2004, 40 CFR 52.1072(e) is stayed indefinitely. 
In a future action published in the Federal Register EPA will lift this 
stay and/or vacate the conditional approval after the issuance of the 
mandate by the U.S. Court of Appeals for the District of Columbia 
Circuit in a manner consistent with any order the Court may issue in 
Sierra Club v. EPA (No. 03-1084, DC Cir.).
    Effective April 15, 2004, 40 CFR 52.2450(b) is stayed indefinitely. 
In a future action published in the Federal Register EPA will lift this 
stay and/or vacate the conditional approval after the issuance of the 
mandate by the U.S. Court of Appeals for the District of Columbia 
Circuit in a manner consistent with any order the Court may issue in 
Sierra Club v. EPA (No. 03-1084, DC Cir.).

VII. 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 stays the applicability of a currently promulgated

[[Page 19939]]

rule. 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 stays the applicability of a currently promulgated 
rule and does not impose any additional enforceable duty beyond that 
already required, 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 stays the applicability 
of a currently promulgated rule implementing a Federal standard, 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 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. However, section 808 provides that any 
rule for which the issuing agency for good cause finds (and 
incorporates the finding and a brief statement of reasons therefore in 
the rule) that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest, shall take effect at 
such time as the agency promulgating the rule determines. 5 U.S.C. 
808(2). As stated previously, the EPA has made such a good cause 
finding, including the reasons therefore, and established an effective 
date of April 15, 2004. The 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 June 14, 2004. 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 indefinitely staying the April 17, 2003 
conditional approval of the District of Columbia's, Maryland's and 
Virginia's SIP revisions for the D.C. Area 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: April 2, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 04-8096 Filed 4-14-04; 8:45 am]
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