[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Rules and Regulations]
[Pages 77639-77642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28191]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R03-OAR-2004-DC-0003; FRL-7853-9]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Excess Volatile Organic Compound and Nitrogen 
Oxides Emissions Fee Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
District of Columbia (District) State Implementation Plan (SIP) for 
ozone. The rule requires major stationary sources of volatile organic 
compounds (VOC) and nitrogen oxides (NOX) in the District, 
which is part of the Metropolitan Washington DC Severe Ozone 
Nonattainment Area, to pay a fee to the District if the area fails to 
attain the one-hour national ambient air quality standard for ozone by 
November 15, 2005. The fee must be paid beginning in 2006, and in each 
calendar year thereafter, until the area is redesignated to attainment 
for the pollutant ozone. The District of Columbia submitted this rule 
on April 16, 2004, pursuant to the requirements of Section 110 of the 
Clean Air Act.

DATES: This rule is effective on February 28, 2005, without further 
notice, unless EPA receives adverse written comment by January 27, 
2005. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2004-DC-0003 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-DC-0003, 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-DC-
0003. 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 Web sites 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

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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 material to be 
incorporated by reference are available at the Air and Radiation Docket 
and Information Center, U.S. Environmental Protection Agency, 1301 
Constitution Avenue, NW., Room B108, Washington, DC 20460; and the 
District of Columbia Department of Public Health, Air Quality Division, 
51 N Street, NE., Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, (215) 814-
2174, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to EPA. This supplementary information is organized 
as follows.

Table of Contents

I. What Final Action Is EPA Taking?
II. Who Has To Pay These Fees?
III. How Are the Fees Calculated?
IV. Is the District of Columbia Required to Adopt an Excess Emission 
Rule?
V. What Are the Exceptions to This Rule?
VI. Statutory and Executive Order Reviews

I. What Final Action Is EPA Taking?

    EPA is approving a SIP revision that revises the District of 
Columbia's ozone SIP. The SIP revision requires major stationary 
sources of VOC and NOX in the District of Columbia, which is 
part of the Metropolitan Washington DC Severe Ozone Nonattainment Area 
(Area), to pay a fee to the District if the Area fails to attain the 
national ambient air quality standard (NAAQS) for ozone by November 15, 
2005. The fee must be paid beginning in 2006 and in each calendar year 
thereafter, until the Area is redesignated to attainment for the 
pollutant ozone. We are approving this rule because it is consistent 
with the requirements of the Clean Air Act (Act).
    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial amendment and we anticipate no adverse 
comment, since no comments were received during the District's 
regulatory process. However, in the ``Proposed Rules'' section of 
today's Federal Register, we are publishing a separate document that 
will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective on February 28, 2005, 
without further notice unless EPA receives adverse comment by January 
27, 2005. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

II. Who Has To Pay These Fees?

    This rule applies to major stationary VOC and NOX 
sources located in the District of Columbia. The District of Columbia's 
definition of a ``major stationary source'' is found at 20 DCMR section 
199.1. In a separate action, EPA is approving this definition as part 
of the District of Columbia's ozone SIP. Pertaining to the application 
of this excess emissions fee for entities in the District of Columbia, 
a major stationary source is defined as ``any stationary source of air 
pollutants that emits, or has the potential to emit, twenty five (25) 
tons per year or more of oxide of nitrogen or volatile organic 
compounds * * *'' These sources are subject to this emissions fee rule.

III. How Are the Fees Calculated?

    The fee is initially set at $5,000 per ton of VOC or NOX 
emitted by the source during the previous calendar year in excess of 
80% of the baseline amount. The fee is to be adjusted annually, 
beginning in 1991, by the percentage by which the consumer price index 
has been adjusted. The baseline is the lower of the source's actual or 
allowable VOC or NOX emissions during calendar year 2005.

IV. Is the District of Columbia Required To Adopt an Excess Emission 
Fee Rule?

    Under sections 182(d)(3), (e), and 185 of the Clean Air Act (the 
Act), states are required to adopt an excess emissions fee regulation 
for ozone nonattainment areas classified as severe or extreme. This 
regulation requires major stationary sources of VOC in the 
nonattainment area to pay a fee to the state if the area fails to 
attain the standard by the attainment date set forth in the Act. The 
District of Columbia is classified as severe nonattainment area for 
ozone. Section 182(f) of the Act requires states to apply the same 
requirements to major stationary sources of oxides of nitrogen 
(NOX) as are applied to major stationary sources of VOC.

V. What Are the Exceptions to this Rule?

    As per section 185 of the Clean Air Act, the District of Columbia's 
regulation provides for an exception of the fee during any year that is 
treated as an extension year under section 181(a)(5) of the Clean Air 
Act.

VI. What Administrative Requirements Must EPA Consider?

    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 approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
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 approves 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 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

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Executive Order 13132 (64 FR 43255, August 10, 1999).
    This action merely approves 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.
    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.).

VII. What Congressional Review Act Requirements Must EPA Consider?

    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).

VIII. What Are the Requirements for Judicial Review of This Action?

    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 February 28, 2005. 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 approval of the District of Columbia's Severe Ozone 
Nonattainment Area Fee SIP revision, as required under section 185 and 
182(f) of the Clean Air Act, 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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: December 14, 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

0
2. In Sec.  52.470, the table in paragraph (c) is amended by adding the 
entry for Chapter 3, Section 307, after existing entry Section 8-
2:720(c) to read as follows:


Sec.  52.470  Identification of plan.

* * * * *
    (c) * * *

                                                      EPA-Approved District of Columbia Regulations
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                                                                      State
           State citation                    Title/subject          effective           EPA approval date                  Additional explanation
                                                                       date
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                                                   District of Columbia (DCMR), Title 20--Environment
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                                                                      * * * * * * *
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                                                               Chapter 3 Operating Permits
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Section 307.........................  Enforcement for Severe           4/01/04  12/28/04 [Insert page number       Provision allowing for the District
                                       Ozone Nonattainment Areas.                where the document begins]         to collect penalty fees from major
                                                                                                                    stationary sources if the
                                                                                                                    nonattainment area does not attain
                                                                                                                    the ozone standard by the statutory
                                                                                                                    attainment date.
 
                                                                      * * * * * * *
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[FR Doc. 04-28191 Filed 12-27-04; 8:45 am]
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