[Federal Register Volume 69, Number 139 (Wednesday, July 21, 2004)]
[Rules and Regulations]
[Pages 43520-43522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16569]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC-2025, MD-3064, VA-5052; DC052-7007, MD143-3102, VA129-5065; FRC-
7790-5]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Maryland; Virginia; Technical Amendment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; technical amendment.

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SUMMARY: EPA is taking final action to remove codification of certain 
State Implementation Plan (SIP) approvals vacated by United States 
Court of Appeals for the District of Columbia Circuit and remanded to 
EPA. EPA is also concurrently vacating an indefinite stay, which EPA 
had issued pending completion of judicial review, of a conditional 
approval promulgated on April 17, 2003. These revisions relate to the 
1-hour ozone attainment demonstration and the 1996-1999 rate-of-
progress (ROP) plans for the Metropolitan Washington DC ozone 
nonattainment area (the Washington area) submitted by the District of 
Columbia's Department of Health (DoH), by the Maryland Department of 
the Environment (MDE) and by the Virginia Department of Environmental 
Quality (VADEQ), including enforceable commitments submitted by the 
District of Columbia, Virginia and Maryland as part of the 1-hour 
attainment demonstration. EPA is correcting the codification of the 
approval of these revisions in accordance with the requirements of the 
Clean Air Act.

DATES: This rule is effective on August 20, 2004.
    In addition, EPA is vacating the stay on 40 CFR 52.473, 52.1072(e) 
and 52.2450(b), effective August 20, 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. What Previous Action Had Been Taken on These SIP Revisions?

A. January 3, 2001 Approval

    On January 3, 2001 (66 FR 586), the EPA approved the 1996-1999 ROP 
plans, an attainment date extension and the attainment demonstrations 
for the Washington, DC area. On July 2, 2002, the United States Courts 
of Appeals for the District of Columbia Circuit (the Circuit Court) 
vacated our January 3, 2001, approval of the attainment demonstration, 
1996-1999 ROP plan and extension of the attainment date. See Sierra 
Club v. Whitman, 294 F.3d 155, 163 (D.C. Cir. 2002).

B. April 17, 2003 Conditional Approval

    In response to the Circuit Court's July 2002 ruling, on January 24, 
2003, the EPA published a final action (68 FR 3410) determining that 
the Washington area failed to attain the serious ozone nonattainment 
deadline of November 15, 1999, and reclassified the Washington area to 
severe ozone nonattainment by operation of law.
    On February 3, 2003, the EPA published a notice of proposed 
rulemaking (68 FR 5246) regarding the SIP revisions covered by the 
vacated January 3, 2001, final rule. On April 17, 2003 (68 FR 19106), 
EPA conditionally approved these same SIP revisions. On February 3, 
2004, the Circuit Court issued an opinion to vacate our conditional 
approval of the attainment demonstration, and ROP plan. See Sierra Club 
v. EPA, 356 F.3d at 302-04 (D.C. Cir. 2004).
    On March 19, 2004, the Sierra Club filed a ``Petition for Panel 
Rehearing'' requesting the Circuit Court to reconsider one issue 
addressed in a footnote of the opinion. This issue was

[[Page 43521]]

not related to vacatur of the conditional approval.
    On April 15, 2004 (69 FR 19937), EPA indefinitely stayed, pending 
completion of judicial review, a conditional approval promulgated on 
April 17, 2003 in response to the March 19, 2004, petition for 
rehearing. In the preamble to that rule, EPA stated that EPA would lift 
the stay and/or vacate the conditional approval after the issuance of 
the mandate by the Circuit Court in a manner consistent with any order 
the Court may issue in Sierra Club v. EPA. See 69 FR at 19138, April 
15, 2004.
    On April 16, 2004, Circuit Court issued an order slightly revising 
the February 3, 2004, opinion to address the petition for rehearing and 
leaving its decision to vacate and remand the conditional approval to 
EPA intact. On April 23, 2004, the Circuit Court issued its mandate 
thereby relinquishing jurisdiction over this matter and remanding it to 
EPA.

II. What Action Is EPA Taking Today?

A. Actions Regarding the January 3, 2001, Final Rule (66 FR 586)

    EPA is vacating the January 3, 2001 final rule (66 FR 586) by 
amending 40 CFR part 52 to remove codification of certain plan 
approvals that the United States Court of Appeals for the District of 
Columbia Circuit vacated and remanded to EPA. The intended effect of 
this action would be to remove and reserve the following in 40 CFR part 
52:
    (1) In subpart J--District of Columbia: Sec.  52.475 
``Extensions,'' and paragraphs (b) and (c) in Sec.  52.476 ``Control 
strategy and rate-of-progress plan: ozone;''
    (2) In subpart V--Maryland: paragraph (a) in Sec.  52.1078 
``Extensions,'' and paragraphs (e ) and (g) in Sec.  52.1076 ``Control 
strategy plans for attainment and rate-of-progress: Ozone;'' and,
    (3) In subpart VV,--Virginia: Sec.  52.2429 ``Extensions,'' and 
paragraphs (c) and (d) in Sec.  52.2428 ``Control Strategy: Carbon 
monoxide and ozone.''

B. Actions Regarding the April 17, 2003, Final Rule (68 FR 19106)

    EPA is vacating the April 17, 2003 final rule (68 FR 19106) by 
amending 40 CFR part 52 to remove codification of certain plan 
approvals for which the United States Court of Appeals for the District 
of Columbia Circuit vacated our final action. The intended effect of 
this action would be to: remove and reserve in 40 CFR part 52:
    (1) Remove and reserve Sec.  52.473 ``Conditional approval'' in 40 
CFR part 52, subpart J;
    (2) Remove and reserve paragraph (e) in Sec.  52.1072 ``Conditional 
approval'' in 40 CFR part 52, subpart V; and,
    (3) Remove and reserve paragraph (b) in Sec.  52.2450 ``Conditional 
approval'' in 40 CFR part 52, subpart VV.

C. Stay of the Conditional Approval

    Because EPA is vacating the actions which EPA stayed on April 15, 
2004 (69 FR 19937), the need for the stay has become moot. Concurrently 
with vacating the April 17, 2003 final rule, EPA is vacating this April 
15, 2004 final rule that imposed the stay on 40 CFR 52.473, 40 CFR 
52.1072(e) and 40 CFR 52.2450(b). Because EPA is vacating the 
underlying rules--40 CFR 52.473, 40 CFR 52.1072(e) and 40 CFR 
52.2450(b)--that were stayed indefinitely on April 15, 2004, EPA must 
vacate the April 15, 2004 stay rather than lift this stay.

III. Final Action

A. District of Columbia

    EPA is amending 40 CFR part 52 to remove the codification of 
certain plan approvals that the United States Court of Appeals for the 
District of Columbia Circuit vacated and remanded to EPA. EPA is 
removing and reserving the following sections or paragraphs in 40 CFR 
part 52, subpart J:
    (1) Sec.  52.475 Extensions;
    (2) Paragraphs (b) and (c) in Sec.  52.476 Control strategy and 
rate-of-progress plan: ozone; and,
    (3) Sec.  52.473 Conditional Approval;

B. State of Maryland

    EPA is amending 40 CFR part 52 to remove the codification of 
certain plan approvals that the United States Court of Appeals for the 
District of Columbia Circuit vacated and remanded to EPA. EPA is 
removing and reserving the following paragraphs in 40 CFR part 52, 
subpart V:
    (1) Paragraph (a) in Sec.  52.1078 Extensions;
    (2) Paragraphs (e) and (g) in Sec.  52.1076 Control strategy plans 
for attainment and rate-of-progress: Ozone; and,
    (3) Paragraph (e) in Sec.  52.1073 Approval Status.

C. Commonwealth of Virginia

    EPA is amending 40 CFR part 52 to remove the codification of 
certain plan approvals that the United States Court of Appeals for the 
District of Columbia Circuit vacated and remanded to EPA. EPA is 
removing and reserving the following sections or paragraphs in 40 CFR 
part 52, subpart VV:
    (1) Sec.  52.2429 Extensions;
    (2) Paragraphs (c) and (d) in Sec.  52.2428 Control Strategy: 
Carbon monoxide and ozone; and,
    (3) Paragraph (b) in Sec.  52.2450 Conditional Approval.

D. Vacating of the Stay on 40 CFR 52.473, 40 CFR 52.1072(e) and 40 CFR 
52.2450(b)

    Because EPA is vacating 40 CFR 52.473, 40 CFR 52.1072(e) and 40 CFR 
52.2450(b) EPA is vacating the stay, which was promulgated on April 15, 
2004 on 40 CFR 52.473, 40 CFR 52.1072(e) and 40 CFR 52.2450(b).

IV. Basis for Exception From Notice and Comment Rulemaking

    Section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. We have determined that 
there is good cause for making today's rule final without prior 
proposal and opportunity for comment because we are merely correcting 
those portions of 40 CFR part 52 that were stricken when the Circuit 
Court vacated our January 3, 2001 approvals and our April 17, 2003 
conditional approvals and mooted the need to continue the April 15, 
2004 stay of the April 17, 2003 conditional approvals. EPA believes 
that notice and comment procedures would serve no purpose because this 
action is a nondiscretionary ministerial action necessitated by the 
Circuit Court orders vacating the January 3, 2001 approvals and our 
April 17, 2003 conditional approvals and by the subsequent mooting the 
need to continue the April 15, 2004 stay of the April 17, 2003 
conditional approvals. We find that this constitutes good cause under 5 
U.S.C. 553(b)(3)(B).

V. 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 
is taken pursuant to a decision of the United States Court of Appeals 
for the District of Columbia Circuit and merely reflects the Circuit 
Court's action in vacating EPA's rules approving pre-existing state 
requirements. The vacated final rules merely approved state law as 
meeting Federal requirements and imposed no

[[Page 43522]]

additional requirements beyond those imposed by state law. The Circuit 
Court's action does not change or negate the pre-existing state 
requirements, impose any new requirements on sources, including small 
entities, nor impose any additional enforceable duty beyond that 
previously required and it does not contain any unfunded mandate or 
significantly or uniquely affect small governments. Under these 
circumstances, correcting the approval status in 40 CFR part 532 of 
these State implementation plans does not impose any new requirements 
on sources, including small entities. 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 merely implements the 
Circuit Court's order vacating EPA's approvals and conditional 
approvals, it does not impose any additional enforceable duty beyond 
that previously required and 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).
    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 merely reflects the Circuit Court's decision, 
removing EPA's approval or conditional approval, it does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4). This rule also does not have tribal implications 
because it will not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes, as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action also 
does not have Federalism implications because it does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This 
rule merely implements the Circuit Court's orders vacating EPA's 
approvals and conditional approvals of a state 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.
    This technical correction action does not involve technical 
standards; 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.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this 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).

B. 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 September 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 to vacate certain approvals of SIP 
revisions submitted by the District of Columbia, Maryland and Virginia 
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: July 13, 2004.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart J--District of Columbia


Sec.  52.475  [Removed]

0
2. Section 52.475 is removed and reserved.


Sec.  52.476  [Amended]

0
3. Section 52.476 is amended by removing and reserving paragraphs (b) 
and (c).

Subpart V--Maryland


Sec.  52.1076  [Amended]

0
4. Section 52.1076 is amended by removing and reserving paragraphs (e) 
and (g).


Sec.  52.1078  [Amended]

0
5. Section 52.1078 is amended by removing and reserving paragraph (a).

Subpart VV--Virginia


Sec.  52.2428  [Amended]

0
6. Section 52.2428 is amended by removing and reserving paragraphs (c) 
and (d).


Sec.  52.2429  [Removed]

0
7. Section 52.2429 is removed and reserved.

[FR Doc. 04-16569 Filed 7-20-04; 8:45 am]
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