[Federal Register Volume 69, Number 246 (Thursday, December 23, 2004)]
[Proposed Rules]
[Pages 76889-76893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28090]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2004-MD-0001; R03-OAR-2004-VA-0005; FRL-7852-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland and Virginia; Non-Regulatory Voluntary Emission Reduction 
Program Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the State of Maryland and by the Commonwealth of 
Virginia. These revisions establish a number of non-regulatory measures 
for which Maryland and Virginia seek SIP credit in rate-of-progress and 
attainment planning for the Metropolitan Washington DC 1-hour ozone 
nonattainment area (the Washington area). The intended effect of this 
action is to propose approval of SIP revisions submitted by Maryland 
and Virginia which establish certain non-regulatory measures. The non-
regulatory measures include use of low-or-no-VOC content paints by 
certain state and local government agencies, auxiliary power units on 
locomotives, sale of reformulated consumer products in the Northern 
Virginia area, accelerated retirement of portable fuel containers by 
certain state and local government agencies, and renewable energy 
measures (wind-power purchases by certain local government agencies). 
This action is being taken under section 110 of the Clean Air Act (CAA 
or the Act).

DATES: Written comments must be received on or before January 24, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2004-MD-0001 and R03-OAR-2004-VA-0005 
by one of the following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: [email protected].
    D. Mail: R03-OAR-2004-MD-0001/R03-OAR-2004-VA-0005, Makeba Morris, 
Chief, Air Quality Planning Branch, 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 RME ID No. R03-OAR-2004-MD-
0001 and/or R03-OAR-2004-VA-0005. 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.docket.epa.gov/rmepub/, 
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 RME, regulations.gov or e-mail. The EPA RME and the 
Federal regulations.gov websites are 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 RME or 
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 
RME index at http://www.docket.epa.gov/rmepub/. 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 RME 
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 the Environment, 1800 
Washington Boulevard, Suite 705, Baltimore, Maryland, 21230, Baltimore, 
Maryland 21224 and the Virginia Department of Environmental Quality, 
629 East Main Street, Richmond, Virginia 23219.

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

SUPPLEMENTARY INFORMATION: On February 19, 2004 and February 25, 2004, 
respectively, the Maryland Department of the Environment (MDE) and the 
Virginia Department of Environmental Quality (VA DEQ) both submitted 
revisions to their SIPs. These SIP revisions included, among other 
things, amendments to the 1990 base year emissions inventory for the 
Metropolitan Washington DC 1-hour ozone nonattainment area (the 
Washington area), a rate-of-progress (ROP) plan for 1999 through 2005, 
an attainment demonstration, a contingency measure plan, enforceable 
commitments to conduct a mid-course review, a demonstration that the 
SIP contains sufficient transportation control measures to offset, as 
necessary, growth in vehicle miles traveled (VMT), a suite of 
transportation control measures and a suite of non-regulatory voluntary 
emission reduction measures.

[[Page 76890]]

This proposed rule pertains only to the suite of non-regulatory 
voluntary measures. The other portions of these SIP revisions are the 
subjects of will be addressed in separate rulemaking actions.

I. Background

A. What Are Non-Regulatory Voluntary Emission Reduction Program 
Measures and EPA's Voluntary Emission Reduction Program Measure 
Policies?

    Many areas of the country that are designated as nonattainment are 
finding it increasingly difficult to find ways to achieve additional 
emission reductions needed to attain the National Ambient Air Quality 
Standards (NAAQS). Many areas have already applied reasonably available 
control technology (RACT) and other controls to stationary sources and 
are still not attaining the NAAQS. In some cases, areas have chosen to 
control sources well beyond RACT levels, but still cannot attain the 
standards. In some cases, areas may need or may choose to implement 
additional measures more rapidly than can be done by completing the 
full regulatory adoption process. These areas need to find additional 
innovative emission reduction approaches. One way to accomplish this is 
through voluntary emission reduction program measures. Voluntary 
emission reduction program measures are an alternative to traditional 
``command and control'' approaches, and have the potential to encourage 
new, untried and cost-effective approaches to reduce emissions.
    A voluntary emission reduction program measure is an action by a 
source that will reduce emissions of a criteria pollutant or a 
precursor to a criteria pollutant that the State could claim as an 
emission reduction in its SIP for purposes of demonstrating attainment, 
ROP towards attainment, reasonable further progress (RFP) toward 
attainment or maintenance of the NAAQS, but that is not directly 
enforceable against the source. Examples of a voluntary emission 
reduction program measure could include retail operations agreeing not 
to sell high emitting VOC products during the ozone season, or programs 
designed to educate consumers or sources about the effects of their 
actions on the environment. Under EPA's guidance, voluntary emission 
reduction program measures can be approved if the State retains 
enforceable responsibility for the reduction and meets certain other 
obligations.
    EPA has issued guidance and policy for incorporating voluntary 
emission reduction program measures into SIPs. The first such guidance 
was a October 27, 1997 memorandum from Richard D. Wilson, Acting 
Assistant Administrator for Air and Radiation, entitled ``Guidance on 
Incorporating Voluntary Mobile Source Emission Reduction Programs in 
State Implementation Plans (SIPs),'' which was reissued in section 16.4 
``Guidance on Voluntary Emission Reduction Programs'' of ``Improving 
Air Quality with Economic Incentive Programs,'' United States 
Environmental Protection Agency, Office of Air and Radiation, EPA-452/
R-01-001, January 2001. The second was a January 19, 2001 Memorandum 
from John Seitz, Director, Office of Air Quality Planning and Standards 
entitled ``Incorporating Voluntary Stationary Source Emission Reduction 
Programs Into State Implementation Plans--Final Policy,'' which was 
reissued in section 16.4 ``Guidance on Voluntary Emission Reduction 
Programs'' of ``Improving Air Quality with Economic Incentive 
Programs,'' United States Environmental Protection Agency, Office of 
Air and Radiation, EPA-452/R-01-001, January 2001.
    Additional policy and guidance was the August 5, 2004 cover 
memorandum from Brian McLean, Director, Office of Atmospheric Programs, 
and from Stephen D. Page, Director, Office of Air Quality Planning and 
Standards, entitled ``Guidance on SIP Credits for Emission Reductions 
from Electric-sector Energy Efficiency and Renewable Energy Measures'' 
that issued the August 2004 document ``Guidance on State Implementation 
Plan (SIP) Credits for Emission Reductions from Electric-sector Energy 
Efficiency and Renewable Energy Measures.''
    Voluntary emission reduction program measures cannot replace 
existing measures in the SIP and must be surplus to technology-based 
requirements of the Act, which include but which are not necessarily 
limited to, RACT, BACT, LAER, NSPS or NESHAP limits, or rules such as 
those for reducing VOC emissions promulgated pursuant to section 183 of 
the Act, or those assumed in a permit (such as offsets), or those 
needed to demonstrate conformity with the SIP pursuant to 40 CFR part 
93 and section 176 of the Act.
    EPA believes the authority for voluntary emission reduction program 
measures derives from various provisions of the Act including: sections 
110 and 172 regarding emission reductions needed to achieve attainment 
of the NAAQS; section 182 regarding economic incentive provisions; and, 
in the case of mobile source measures, section 108 regarding 
transportation control measures (TCMs).
    While the policies do not require that reduction actions be 
enforceable against individual sources, they place clear responsibility 
on a State to ensure that the emission reductions take place. State 
responsibility includes a commitment to evaluate the effectiveness of 
each measure and, in the event the voluntary emission reduction program 
measures does not achieve the projected emission reductions, to remedy 
any SIP shortfall by providing enforceable emission reductions from 
other sources or by showing that the emission reductions are not needed 
to achieve attainment, maintenance, or RFP/ROP requirements.

B. What Are Voluntary Mobile Source Emission Reduction Programs?

    Voluntary emission reduction program measures for mobile sources 
are measures that complement existing regulatory programs through 
voluntary, non-regulatory changes in local transportation activities or 
changes in-use vehicle fleet and engine fleet composition. EPA believes 
that the Act allows SIP credit for new approaches to reducing mobile 
source emissions, where supported by enforceable commitments to monitor 
and assess implementation and backfill any emissions reductions 
shortfall in a timely fashion. This flexible approach is consistent 
with section 110 of the CAA. Economic incentive provisions are also 
available in sections 182 and 108 of the Act. Credits generated through 
VMEP can be counted toward attainment and maintenance of the NAAQS. Due 
to the innovative nature of such a program, EPA will allow up to 3 
percent of the total future year emissions reductions required to 
attain the appropriate NAAQS, to be claimed under the VMEP policy.\1\
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    \1\ See the October 27, 1997 memorandum from Richard D. Wilson, 
Acting Assistant Administrator for Air and Radiation, entitled 
``Guidance on Incorporating Voluntary Mobile Source Emission 
Reduction Programs in State Implementation Plans (SIPs),'' which was 
reissued in section 16.4 ``Guidance on Voluntary Emission Reduction 
Programs'' of ``Improving Air Quality with Economic Incentive 
Programs,'' United States Environmental Protection Agency, Office of 
Air and Radiation, EPA-452/R-01-001, January 2001.
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C. What Are Voluntary Stationary Source Emission Reduction Programs?

    The stationary source policy covers what are commonly referred to 
as ``area'' sources which are too small and/or too numerous to be 
individually included in a stationary source emissions inventory. This 
category could include facilities that directly emit applicable

[[Page 76891]]

criteria pollutants or their precursors, such as very small printers or 
bakeries. It could also include products sold by wholesale or retail 
operations that may emit criteria pollutants or their precursors and 
individual consumers that may use products which emit criteria 
pollutants or their precursors.

D. What Are Electric-Sector Energy Efficiency and Renewable Energy 
Measures?

    Another category of voluntary emission reduction program measures 
are those electric-sector energy efficiency and renewable energy 
projects, initiatives or measures that will result in quantifiable 
reductions in emissions at existing fossil fuel-fired electric 
generating units and will improve air quality in a nonattainment area.
    Some examples of specific energy efficiency or renewable energy 
projects could include, but are not necessarily limited to supply-side 
measures, which include new and innovative initiatives to increase the 
efficiency or decrease the emissions from electricity generation, such 
as renewable energy projects like wind powered generation.

E. What Qualifies for SIP Credit?

    The basic framework for ensuring SIP credit for voluntary emission 
reduction program measures is spelled out in the various guidance 
discussed in previous paragraphs. Generally, to obtain credit for 
voluntary emission reduction program measures, a State submits a SIP 
revision that:
    (1) Identifies and describes the measure(s);
    (2) Contains projections of emission reductions attributable to the 
program, along with any relevant technical support documentation;
    (3) Commits to evaluation and reporting on program implementation 
and results; and
    (4) Commits to the timely remedy of any credit shortfall should the 
measure(s) not achieve the anticipated emission reductions.
    More specifically, the guidance suggests the following key points 
be considered for approval of credits. The credits should be 
quantifiable, surplus, enforceable, permanent, and adequately 
supported. In addition, the measure(s) must be consistent with 
attainment of the standard and with the ROP requirements and not 
interfere with other CAA requirements.

II. Summary of SIP Revisions Submitted by Maryland and Virginia

A. What Voluntary Emission Reduction Program Measures Did the States 
Submit?

    The States submitted program descriptions that projected emission 
reductions attributable to each specific measure. Those estimates are 
provided in Table 1.

                         Table 1.--List of Voluntary Emission Reduction Program Measures
----------------------------------------------------------------------------------------------------------------
                                                                                          Voluntary emission
            Measure                  State         VOC reduction     NOX reduction   reduction program  measures
                                                    (tons/day)        (tons/day)                policy
----------------------------------------------------------------------------------------------------------------
Gas Can (portable fuel          VA, MD.........  0.01............  0.00............  Stationary Source.
 containers) Replacement
 Program.
Sale of Reformulated Consumer   VA.............  3.00............  0.00............  Stationary Source.
 Products.
Low-VOC Paints Program........  VA, MD.........  0.17............  0.00............  Stationary Source.
Auxiliary Power Units on        VA.............  0.01............  0.13............  Mobile Sources.
 Locomotives.
Montgomery County Regional      MD.............  0.00............  0.05............  Renewable Energy.
 Wind Power Purchase.
Arlington County Regional Wind  VA.............  0.00............  0.005...........  Renewable Energy.
 Power Purchase.
Remote Sensing Device Program.  VA.............  No Credit.......  No Credit.......  Mobile Sources.
Alternative Fueled Vehicle      VA.............  No Credit.......  No Credit.......  Mobile Sources.
 (AFV) Purchase Program.
Diesel Bus Retrofit Program...  VA.............  No Credit.......  No Credit.......  Mobile Sources.
----------------------------------------------------------------------------------------------------------------

    A more detailed analysis of all these voluntary emission reduction 
program measures can be found in the Technical Support Document (TSD) 
for this proposed action. That TSD is included in both the hard copy 
and E-docket for this rulemaking. For each voluntary emission reduction 
program measure for which the States claimed emission reduction credit, 
the measure was found to be quantifiable. The reductions are surplus by 
not being substitutes for mandatory, required emission reductions. The 
commitment to monitor, assess and timely remedy any shortfall from 
implementation of the measures is enforceable and the State held 
accountable. The reductions will continue at least for as long as the 
time period in which they are used by this SIP demonstration, so they 
are considered permanent. Each measure is adequately supported by 
personnel and program resources for implementation. The States commit 
to evaluating each program's measures to validate estimated credits and 
to remedy any shortfall in a timely manner.

B. What Limitations Apply to the Magnitude of Emissions Reductions That 
Can Be Attributable to Voluntary Emission Reduction Program Measures?

    For a variety of reasons, such as the innovation involved in 
voluntary emission reduction program measures, inexperience in 
quantifying them, and the inability to enforce these measures against 
individual sources, EPA believes that at this time it is appropriate to 
limit the amount of emission reductions allowed from voluntary emission 
reduction program measures. Initially, we set an appropriate limit for 
stationary source voluntary emission reduction program measures and for 
mobile source voluntary emission reduction program measures each at 3 
percent of needed reductions for ROP, RFP, or attainment demonstration 
purposes. (This is not 3 percent of an area's total emission inventory, 
but 3 percent of the reductions needed to achieve the air quality goal 
such as ROP or attainment.)
    The amounts of emission reductions claimed from voluntary emission 
reduction program measures in the Maryland and Virginia SIP revisions 
are far less than 3 percent of the reduction needs. For these voluntary 
emission reduction program measures, the States claim no more than 0.2 
tons per day (TPD) of NOX and 3.2 TPD for VOC reductions. To 
meet the 2002 and 2005 ROP goals, the plan documents needed reductions 
of over 170 TPD of VOC and over 250 TPD of NOX. To 
demonstrate attainment, the plan documents needed

[[Page 76892]]

reductions of well over 170 TPD of VOC and over 250 TPD of 
NOX. The reductions from voluntary emission reduction 
program measures represent less than 0.1 percent (0.2/250) of the 
needed NOX reductions and less than 2 percent (3.2/170) of 
the needed VOC reductions.

C. What Action Is EPA Proposing for the Voluntary Emission Reduction 
Program Measures?

    We propose to approve the voluntary emission reduction program 
measures listed in Table 1 of this document as revisions to the 
Maryland and Virginia SIPs. All of these measures can be expected to 
have some beneficial effect on air quality by reducing emissions. 
Additionally, for those voluntary emission reduction program measures 
for which the States quantified reductions EPA is proposing to approve 
emission reduction credit towards ROP and/or the attainment 
demonstration for the Washington area in the amounts shown in Table 2.

Table 2.--Emission Reductions Creditable From Voluntary Emission Reduction Program Measures for the Metropolitan
                                               Washington, DC Area
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                                                                                                 Implementation
               Measure                       State             VOC TPD            NOX TPD             date
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Gas Can Replacement Program
    Maryland National Capital Parks   MD................           0.0027    .................            4/2005
     & Planning Commission, Prince
     George's County.
    Montgomery County...............  ..................           0.00088   .................           12/2004
    Prince George's County..........  ..................           0.00231   .................            1/2004
                                     ---------------------
        Maryland totals.............  ..................           0.00589            0.00
-------------------------------------
    Fairfax County..................  VA................           0.00277   .................            5/2005
    City of Fairfax.................  ..................           0.00138   .................            7/2004
    City of Fairfax Contractors.....  ..................           0.00060   .................            7/2004
    Prince William County...........  ..................           0.0009    .................            5/2005
    Arlington County................  ..................           0.0021    .................            5/2005
                                     ---------------------
        Virginia totals.............  0.005657..........  .................           0.00      ................
-------------------------------------
Total Area-wide Reduction--Gas Can    ..................           0.01               0.00
 Replacement Program.
-------------------------------------
Sale of Reformulated Consumer         VA................           3.00               0.00                1/2005
 Products.
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Low-VOC Paints Program
    Prince George's County..........  MD................           0.002     .................            5/2005
    Maryland National Capital Parks   ..................           0.006     .................           12/2003
     & Planning Commission, Prince
     George's County.
    MDOT Traffic Marking Coatings...  ..................           0.149     .................           12/2003
                                     ---------------------
        Maryland totals.............  ..................           0.157              0.00
-------------------------------------
        Virginia totals--Fairfax      VA................           0.017     .................            4/2004
         County.
-------------------------------------
Total Area-wide Reduction--Low-VOC    ..................           0.174              0.00
 Paints Program.
-------------------------------------
Montgomery County Regional Wind       MD................           0.00               0.05               12/2004
 Power Purchase.
-------------------------------------
Auxiliary Power Units on Locomotives  VA................           0.01               0.13                3/2004
-------------------------------------
Arlington County Regional Wind Power  VA................           0.00               0.005               5/2005
 Purchase.
----------------------------------------------------------------------------------------------------------------

    EPA approval of these voluntary emission reduction program measures 
for which credit is sought will obligate the States to monitor and 
remedy any shortfalls in reductions in accordance with their 
commitments to do so.
    Under applicable EPA guidance and policy, for those non-regulatory 
voluntary measures for which States request approval but claim no 
reduction credits prospectively, the States may subsequently amend 
their SIPs with revisions documenting any emission reduction credits 
actually achieved. EPA would evaluate such revisions in accordance with 
applicable statute and regulations applicable to implementation of the 
standard for which reduction credit is sought.
    For those non-regulatory voluntary measures for which the 
Commonwealth of Virginia's February 25, 2004 SIP submittal did not 
quantify or request any emission reductions (i.e., the Remote Sensing 
Device Program, the Alternative Fueled Vehicle (AFV) Purchase Program, 
and the Diesel Bus Retrofit Program), EPA is not proposing to approve 
reduction credit towards the ROP plan and attainment demonstration at 
this time. However approval of these measures into the Virginia SIP 
will still obligate the Commonwealth to monitor their effectiveness. 
The Commonwealth's commitment included a description of how 
verification that the number of vehicles to be retrofitted or to be 
purchased were actually retrofitted and purchased. A ``shortfall'' 
would then be measured not in terms of emission reductions but in terms 
of vehicles not retrofitted or not purchased, or, may be measured by 
revising the SIP to quantify the shortfall in terms of emission 
reductions.
    EPA believes approval of these measures will strengthen the SIP 
even where no credit is sought at this time. Some of these measures may 
also have other air quality benefits beyond attainment of the 1-hour 
and 8-hour

[[Page 76893]]

ozone NAAQS such as reduction of fine particulate matter. EPA is 
soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

III. Proposed Action

A. Maryland

    EPA's review of this material indicates that Maryland's February 
19, 2004 SIP submittal of non-regulatory voluntary emission reduction 
program measures for the Washington area meet the applicable 
requirements of EPA guidance and policy for approval. EPA is proposing 
to approve the following voluntary emission reduction program measures 
into the Maryland SIP: Montgomery County Regional Wind Power Purchase, 
Low-VOC Paints Program and Gas Can Replacement Program. Specifically, 
EPA is proposing to approve those measures found in section 7.6 
entitled ``Voluntary Bundle'' of the document entitled ``Plan to 
Improve Air Quality in the Washington, DC-MD-VA Region, State 
Implementation Plan (SIP) `Severe Area SIP' Demonstrating Rate of 
Progress for 2002 and 2005; Revision to 1990 Base Year Emissions; and 
Severe Area Attainment Demonstration for the Washington DC-MD-VA 
Nonattainment Area'' (dated February 19, 2004) and Appendix J to this 
plan. This February 19, 2004 document and its Appendix J were submitted 
to EPA by Maryland on February 19, 2004. EPA is also proposing to 
credit the Maryland SIP with the emission reductions for these measures 
shown in Table 2 of this document for the Washington area.

B. Virginia

    EPA's review of this material indicates that Virginia's February 
25, 2004 SIP submittal of non-regulatory voluntary emission reduction 
program measures for the Washington area meet the applicable 
requirements of EPA guidance and policy for approval. EPA is proposing 
to approve the following voluntary emission reduction program measures 
into the Virginia SIP: Low-VOC Paints Program, Sale of Reformulated 
Consumer Products, Gas Can Replacement Program, Remote Sensing Device 
Program, Arlington County Regional Wind Power Purchase, Auxiliary Power 
Units on Locomotives, Alternative Fueled Vehicle (AFV) Purchase Program 
and Diesel Bus Retrofit Program. Specifically, EPA is proposing to 
approve those measures found in section 7.6 entitled ``Voluntary 
Bundle'' of the document entitled ``Plan to Improve Air Quality in the 
Washington, DC-MD-VA Region, State Implementation Plan (SIP) `Severe 
Area SIP' Demonstrating Rate of Progress for 2002 and 2005; Revision to 
1990 Base Year Emissions; and Severe Area Attainment Demonstration for 
the Washington DC-MD-VA Nonattainment Area'' (dated February 19, 2004) 
and Appendix J to this plan. This February 19, 2004 document and its 
Appendix J were submitted to EPA by Virginia on February 25, 2004. EPA 
is also proposing to credit the Virginia SIP with the emission 
reductions shown in Table 2 of this document for the Washington area.

IV. 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. 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 approve 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 
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. 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 proposed rule to approve Maryland and Virginia voluntary emission 
reduction program measures 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 in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: December 14, 2004.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 04-28090 Filed 12-22-04; 8:45 am]
BILLING CODE 6560-50-P