[Federal Register Volume 69, Number 99 (Friday, May 21, 2004)]
[Rules and Regulations]
[Pages 29236-29238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11432]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD168-3110; FRL-7665-6]


Finding of Failure To Submit Required State Implementation Plan 
Revision for the Metropolitan Washington, DC Ozone Nonattainment Area; 
Maryland

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action making a finding, under the 
Clean Air Act (CAA or Act), that the State of Maryland has failed to 
submit an ozone nonattainment state implementation plan (SIP) revision 
required by the new classification for the area under EPA's final rule 
that reclassified the Metropolitan Washington, DC ozone nonattainment 
area to severe nonattainment. EPA is issuing a finding that the State 
of Maryland failed to submit a SIP revision that provides for the 
implementation of penalty fees upon major stationary sources of 
volatile organic compound and nitrogen oxide emissions in the 
Metropolitan Washington, DC severe ozone nonattainment area if the area 
fails to attain the one-hour ozone national ambient air quality 
standard. This action triggers the 18-month time clock for mandatory 
application of sanctions in Maryland and the 24-month time frame for 
EPA to promulgate a Federal implementation plan under the Act.

DATES: Effective Date: This final rule is effective on June 21, 2004.

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. Background

A. When Did EPA Reclassify the Metropolitan Washington, DC Ozone 
Nonattainment Area and What Was the Deadline for Submission?

    On January 24, 2003 (68 FR 3410), EPA promulgated a final rule 
reclassifying the Metropolitan Washington, DC ozone nonattainment area 
from serious to severe nonattainment for the 1-hour ozone national 
ambient air quality standard (NAAQS). This final rule established a 
deadline of March 1, 2004, by which the District, Maryland and Virginia 
were required to submit state implementation plan (SIP) revisions to 
their respective SIP to meet the additional requirements of severe 
ozone nonattainment areas found in section 182(d) of the CAA. These 
additional requirements were discussed in the notice of proposed 
rulemaking and the final rulemaking for the reclassification. See, 67 
FR 68805, November 13, 2002 and 68 FR 3410, January 24, 2003.
    The effect of our January 24, 2003 final rule (68 FR 3410) that 
reclassified the Metropolitan Washington, DC ozone nonattainment area 
to severe nonattainment was to set a new

[[Page 29237]]

attainment deadline for this area of November 15, 2005, and to require 
Maryland, Virginia and the District of Columbia to submit, as 
necessary, a revision or revisions to their SIPs for the Metropolitan 
Washington, D.C. ozone nonattainment area to meet the CAA's 
requirements for severe one-hour ozone nonattainment areas. Pursuant 
section 182(i), EPA set March 1, 2004 as the submittal deadline for 
Maryland, Virginia and the District of Columbia to submit these new 
planning requirements.

B. What SIP Revisions Required by the Reclassification Have Not Been 
Submitted?

    Maryland has not submitted a SIP revision to implement the penalty 
fee provisions specified by CAA section 185. Section 185 of the CAA 
requires that major stationary sources of volatile organic compound 
(VOC) and nitrogen oxide (NOX) emissions located in severe 
ozone nonattainment areas pay a fee for every ton of annual emissions 
over 80 percent of a baseline amount if the area fails to attain the 
ozone national ambient air quality standards.\1\ The fee is set at 
$5,000 per ton (adjusted annually using the same consumer price index 
(CPI) adjustment as is used for the Title V operating permit program 
fees).
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    \1\ Section 185 of the CAA only mentions major stationary 
sources of VOC emissions. However, section 182(f) requires the SIP 
for ozone nonattinment areas impose the same provisions on major 
stationary sources of NOX emissions as those imposed upon 
major stationary sources of VOC emissions unless EPA determines that 
the NOX provisions should not apply pursuant to one of 
the exceptions enumerated in section 182(f).
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    Pursuant to our January 24, 2003 reclassification final rule (68 FR 
3410), under section 182(d)(3) of the CAA, Maryland was required to 
submit a SIP revision to implement this ``section 185 fee'' provision 
in the Metropolitan Washington, DC area and has not done so.
    EPA believes that Maryland has made submittals addressing all the 
other severe area elements with the exception of the section 185 fee 
provision. EPA has determined that these submittals are complete.\2\
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    \2\ EPA believes that the District of Columbia and Virginia each 
has made submittals addressing all the other severe area elements 
including the section 185 fee provision. EPA has determined that 
these submittals are complete.
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II. What Is the Schedule of Sanctions and Other Consequences of This 
Action?

    Under section 179(a) of the CAA, if EPA has not found that the 
State has made a complete submittal within 18 months of the effective 
date of EPA's finding, pursuant to CAA section 179(a) and 40 CFR 52.31, 
the offset sanction identified in CAA section 179(b) will be applied in 
the affected area. If the State still has not made a complete 
submission six months after the offset sanction is imposed, then the 
highway funding sanction will apply in the affected areas, in 
accordance with 40 CFR 52.31. In addition, CAA section 110(c) provides 
for EPA to promulgate a Federal implementation plan (FIP) no later than 
two years after a finding under section 179(a).
    The 18-month clock will stop and the sanctions will not take effect 
if, within 18 months after the date of the finding, EPA finds that the 
State has made a complete submittal. In addition, EPA will not 
promulgate a FIP if the State makes the required SIP submittal and EPA 
takes final action to approve the submittal within two years of EPA's 
finding.
    In addition, EPA recently promulgated regulations addressing the 
transition from the 1-hour ozone NAAQS to the 8-hour ozone NAAQS.\3\ 
These regulations provide that once the 1-hour ozone NAAQS is revoked 
for an area, the section 185 fees provision for purposes of the 1-hour 
ozone NAAQS will no longer apply. Because at that time the State would 
no longer be obligated to submit a SIP revision for the section 185 
requirement for the 1-hour standard, the sanctions and FIP clocks would 
stop upon revocation of the 1-hour ozone NAAQS.
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    \3\ These regulations were published in the April 30, 2004, 
edition of the Federal Register
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III. Final Action

    In this final rule, pursuant to section 179(a) of the CAA, EPA is 
issuing to the State of Maryland a finding of failure to submit a 
required SIP element for failure to submit a SIP revision to implement 
the provisions of section 185 of the CAA in the Metropolitan 
Washington, DC severe one-hour ozone nonattainment area.
    At the same time as the signing of this document, the EPA Regional 
Administrator for Region III sent a letter to Maryland describing this 
finding in more detail. This letter and its enclosure is included in 
the docket to this rulemaking.

III. Notice-and-Comment Under the Administrative Procedures Act

    This notice is a final agency action, but is not subject to the 
notice-and-comment requirements of the APA, 5 U.S.C. 553(b). EPA 
believes that because of the limited time provided to make findings of 
failure to submit and findings of incompleteness regarding SIP 
submissions or elements of SIP submission requirements, Congress did 
not intend such findings to be subject to notice-and-comment 
rulemaking. However, to the extent such findings are subject to notice-
and-comment rulemaking, EPA invokes, consistent with past practice (for 
example, see at 65 FR at 81368, December 26, 200, or, see 61 FR at 
36294, July 10, 1996), the good cause exception pursuant to the APA, 5 
U.S.C. 553(b)(3)(B). Notice and comment are unnecessary because no 
significant judgment is involved in making a nonsubstantive finding of 
failure to submit SIP revisions or elements of SIP submissions required 
by the Clean Air Act. Furthermore, providing notice and comment would 
be impracticable because of the limited time provided under the statute 
for making such determinations. Finally, notice and comment would be 
contrary to the public interest because it would divert agency 
resources from the critical substantive review of complete SIPs. See 58 
FR 51270 (October 1, 1993) and 59 FR 39832 (August 4, 1994).

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). 
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.). The 
various CAA provisions discussed in this notice require the states to 
submit SIP revisions. This notice merely provides a finding that the 
states have not met those requirements. This notice does not, by 
itself, require any particular action by any State, local, or tribal 
government; or by the private sector and therefore is not a Federal 
mandate. This final rule will not have a significant impact on a 
substantial number of small entities because findings of failure to 
submit required SIP revisions do not by themselves create any new 
requirements. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Because this rule contains no Federal mandates

[[Page 29238]]

under the regulatory provisions of title II of the Unfunded Mandates 
Reform Act (UMRA) of 1995 (Pub. L. 104-4) for State, local, or tribal 
governments or the private sector, this rule does not contain any 
unfunded mandate or significantly or uniquely affect small governments, 
as described in the UMRA. 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 notice merely provides a finding that the State of Maryland has 
not submitted the SIP revision required by the CAA provisions discussed 
in this notice. 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.
    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. EPA believes that VCS are inapplicable to today's action 
because it does not require the public to perform activities conducive 
to the use of VCS. 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

    Under section 801(a)(1)(A) of the APA, as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), EPA 
submitted, by the effective date of this rule , 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 General 
Accounting Office. This rule is not a ``major rule'' as defined by APA 
section 804(2), as amended. As noted above, EPA is issuing this action 
as a rulemaking. There is a question as to whether this action is a 
rule of ``particular applicability,'' under section 804(3)(A) of APA as 
amended by SBREFA, and thus exempt from the congressional submission 
requirements, because this rule applies only to named States. In this 
case, EPA has decided to err on the side of submitting this rule to 
Congress, but will continue to consider this issue of the scope of the 
exemption for rules of ``particular applicability.''

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 July 20, 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 issuing a finding that the State of 
Maryland has failed to submit a SIP revision to implement the ``section 
185 fee'' provision in the Metropolitan Washington, DC area may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

    Dated: May 13, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 04-11432 Filed 5-20-04; 8:45 am]
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