[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25719-25724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9402]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME No. R03-OAR-2004-DC-0010; FRL-7910-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Metropolitan Washington DC 1-Hour Ozone Attainment 
Demonstration Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is disapproving a State Implementation Plan (SIP) revision 
submitted by the State of Maryland, and is issuing a protective finding 
for that plan pursuant to EPA's transportation conformity rule. The 
intended effect of this action is to disapprove Maryland's attainment 
plan for the Metropolitan Washington, DC severe 1-hour ozone 
nonattainment area (the Washington area) and to issue a protective 
finding which allows the motor vehicle emissions budgets identified in 
that plan to be used in future conformity determinations. This action 
allows transportation planning activities, including conformity 
analyses and determinations, to continue normally until such time as 
highway sanctions would be imposed pursuant to the Clean Air Act (the 
CAA or the Act) and EPA's order of sanctions rule.

DATES: Effective Date: This final rule is effective on June 13, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2004-DC-0010. All documents 
in the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the 
appropriate RME identification number. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 
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. Copies of the State 
submittal are available at the Maryland Department of the Environment, 
1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

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

SUPPLEMENTARY INFORMATION: In this document any reference to ``we'' and 
``our'' means EPA and EPA's, respectively.

I. Background

A. Summary

    On February 9, 2005, (70 FR 6796), EPA published a notice of 
proposed rulemaking (NPR) for the State of Maryland. In our February 9, 
2005, NPR, we proposed approval of an attainment plan SIP revision 
submitted by the State of Maryland for the Washington area contingent 
upon the State submitting an approvable SIP revision for certain 
penalty fees, required by the Act, prior to the time EPA issued a final 
rule on Maryland's attainment plan. In the alternative, EPA proposed to 
disapprove the attainment plan SIP revision submitted by the State of 
Maryland for the Washington area and to issue a protective finding for 
the attainment plan which would allow the use of the motor vehicle 
emissions budgets (the MVEBs) identified in the attainment plan SIP to 
be used for demonstrating conformity.
    In the February 9, 2005, NPR, we also proposed to approve 
attainment plan SIP revisions for the Washington area submitted by the 
Commonwealth of Virginia and the District of Columbia (the District). 
EPA has taken final action on the District's and Virginia's attainment 
plans in a separate final rule which is published elsewhere in today's 
Federal Register. In that same final rule approving the District's and 
Virginia's attainment plan for the Washington area, we determine that 
the attainment plan for Maryland contains adopted control measures that 
fully satisfy the emission reduction requirement relevant to attainment 
of the 1-hour ozone National Ambient Air Quality Standard (NAAQS).

B. Relationship to Past SIP Revisions and Litigation

1. Prior SIP Revisions
    On April 29, 1998, Maryland submitted an attainment plan for the 
Washington area and supplemented those submittals on August 17, 1998, 
February 14, 2000 and March 31, 2000. The April 29, 1998, August 17, 
1998, February 14, 2000 SIP revisions cumulatively constituted the 
attainment plan for the Washington area which, at the time, was 
classified as a serious nonattainment area for the 1-hour ozone NAAQS. 
In the aggregate, these attainment plans consisted of a photochemical 
modeling demonstration and adjunct weight of evidence analyses to 
demonstrate attainment of the ozone NAAQS, projected emissions 
inventories showing that Maryland had adopted sufficient measures to 
support the demonstration of attainment, attainment year MVEBs, and a 
commitment to conduct and submit a mid-course review to EPA by a date 
certain. The March 31, 2000 SIP revision consisted of a commitment to 
revise the mobile vehicle emissions budgets one-year after EPA released 
the MOBILE6 model and MVEBs for years after 2005 (outyear budgets). 
These attainment plans were submitted to demonstrate that the 
Washington area would attain the 1-hour ozone NAAQS by no later than 
November 15, 2005. Hereafter these revisions will be called the ``pre-
2001 SIP revisions'' attainment plan.'' These are those SIP revisions 
listed in Table 2 of a January 3, 2001 final rule (66 FR at 586) and 
those listed

[[Page 25720]]

in Table 2 of an April 17, 2003 final rule (68 FR at 19107).\1\
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    \1\ Only the commitment to revise the MVEBs found in the March 
31, 2000 SIP revisions was subject to these final rules. The portion 
of the SIP revision related to MVEBs for years after 2005 (outyear 
budgets) was not subject to these final rules.
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    On January 24, 2003 (68 FR 3410), EPA reclassified the Washington 
area to severe because the area failed to attain the 1-hour ozone NAAQS 
by the statutory attainment date for serious areas. This action made 
the Washington area subject to the additional requirements applicable 
to severe areas under section 182(d) of the CAA. On April 17, 2003 (68 
FR at 19107), EPA conditionally approved these SIP revisions. The 
history of litigation on the April 17, 2003 conditional approval will 
be discussed in paragraph 3. of this section entitled, ``April 17, 2003 
Final Rule Vacated and Withdrawn'.
2. Recent SIP Revision Actions
    In the months that followed the January 24, 2003 reclassification 
of the Washington area to severe nonattainment and the April 17, 2003 
conditional approval, Maryland submitted the SIP revisions necessary to 
satisfy the requirements section 182(d) of the CAA for severe areas and 
EPA's conditional approval, with the exception of a SIP revision for 
the section 185 penalty fee program. These SIP revisions included 
Maryland's September 2, 2003 and February 19, 2004 submittals 
(hereafter the February 2004 SIP revisions). The February 2004 SIP 
revisions contained the attainment plan which consists of:
    (1) A photochemical modeling demonstration and adjunct weight of 
evidence analyses to demonstrate attainment of the ozone NAAQS by no 
later than November 15, 2005;
    (2) Projected emissions inventories showing that Maryland had 
adopted sufficient measures to support the demonstration of attainment;
    (3) Attainment year MVEBs; and
    (4) A commitment to conduct and submit a mid-course review to EPA 
by a date certain.\2\ The February 2004 SIP revisions resubmitted to 
EPA the attainment plan contained in the pre-2001 SIP revisions' 
serious area attainment plan along with additional elements required 
for a severe area attainment plan, such as a post-1999 rate-of-progress 
(ROP) plan, and a contingency measures plan to augment the previously 
submitted 1996-1999 ROP plan and contingency measures plan, 
respectively, as well as other SIP elements not included in the pre-
2001 SIP revisions' serious area attainment plan.
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    \2\ The February 2004 SIP revisions did not need to contain a 
commitment to revise the MVEBs one-year after EPA released the 
MOBILE6 model because the MVEBs in these plans were developed using 
MOBILE6.
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    EPA had already approved many of Maryland's SIP revisions by the 
time we published NPR's on January 12, 2005 (70 FR 2085) and February 
9, 2005 NPR (70 FR 6796) for Maryland's February 2004 SIP revisions.
    We proposed approval on Maryland's February 2004 SIP revisions in 
two separate NPR's published on January 12, 2005 (70 FR 2085) and on 
February 9, 2005 (70 FR 6796). On May 3, 2005, the Regional 
Administrator signed a final rule approving Maryland's 1996-1999 ROP 
plan and all portions of the ``February 2004 SIP revisions'' except the 
attainment plan. That final action is published elsewhere in today's 
Federal Register.
3. April 17, 2003 Final Rule Vacated and Withdrawn
    A petition for review challenging the April 17, 2003 final 
conditional approval was filed by the Sierra Club. The petition 
alleged, among other things, that EPA could not lawfully conditionally 
approve the SIPs due to a lack of specificity in the States' commitment 
letters, that EPA should require the 1996-1999 ROP to be revised to use 
the latest mobile sources emission factor model and that the 
photochemical grid modeling supporting the attainment plan did not meet 
the requirements of the CAA. On February 3, 2004, the Court of Appeals 
issued an opinion to vacate our rule conditionally approving the 
attainment plans and 1996-1999 ROP plans insofar as that the court 
found that our grant of conditional approval was defective. The Court 
of Appeals denied the petition for review in all other respects. See 
Sierra Club v. EPA, 356 F.3d 296, 301-07 (DC Cir. 2004). On April 23, 
2004, the Court of Appeals issued its mandate thereby relinquishing 
jurisdiction over the 1996-1999 ROP plans and the attainment plan SIP 
revisions, and remanding them back to EPA.\3\
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    \3\ On April 16, 2004, the Court of Appeals issued an order 
revising the February 3, 2004, opinion to address a petition for 
rehearing filed by the Sierra Club, but otherwise leaving its 
decision to vacate and remand the conditional approval to EPA 
intact. Sierra Club v. EPA, No. 03-1084, 2004 WL 877850 (DC Cir. 
Apr. 16, 2004).
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    Effective as of the April 23, 2004 date the Court of Appeals issued 
its mandate for its February 3, 2004 ruling, all three States withdrew 
their pre-2001 SIP revisions' attainment plan which had been submitted 
during 1998 and 2000, specifically the SIP revisions listed in Table 2 
of the April 17, 2003, final rule (68 FR 19107). By the time the three 
States withdrew the pre-2001 SIP revisions' attainment plan, they had 
already submitted revised attainment plan SIP revisions with an 
analysis that the SIPs contained all reasonably available control 
measures, post-1999 ROP plans demonstrating ROP for 2002 and 2005, 
vehicle miles traveled (VMT) offset plans and contingency measures 
plans that superceded the earlier submissions. The States, in their 
February 2004 SIP submissions, submitted not only this new material, 
but resubmitted all of the previously withdrawn pre-2001 SIP revisions' 
attainment plan.\4\ The newly submitted materials along with the 
resubmitted pre-2001 SIP revisions' attainment plan, form a single 
comprehensive package. EPA is taking final action today on both newly 
submitted materials, which we collectively refer to as the February 
2004 SIP revisions, as well as the resubmitted pre-2001 SIP revisions' 
attainment plan.
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    \4\ With one exception: the ``outyear budgets'' contained in the 
March 31, 2002 SIP revision and which EPA had never proposed to take 
action on, were not resubmitted.
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4. District Court Action
    The Sierra Club filed a complaint in the United States District 
Court for the District of Columbia (District Court) claiming that 
because the Court of Appeals vacated and remanded the conditional 
approval of the pre-2001 SIP revisions' attainment demonstration and 
the 1996-1999 ROP plan, EPA had an unfulfilled nondiscretionary duty to 
complete final action on those SIP revisions. On April 7, 2005, the 
District Court issued an order enjoining EPA to ``complete final 
approval and disapproval action, in accordance with 42 U.S.C. 
7410(k)(2), (3), on the state implementation plan submittals for the 
Washington area identified at 66 FR 586 (January 3, 2001).'' Sierra 
Club v. Johnson, C.A. No. 04-2163 (JR)( April 7, 2005). The District 
Court's decision took note ``that the states formally withdrew their 
pre-2001 submissions (except for the ROP plan) after the D.C. Circuit's 
Sierra Club III remand,'' Id., slip op. at 7, but disputed that ``these 
withdrawals removed EPA's duty to act,'' stating that `` `withdrawal' 
of pre-2001 SIPs could [not] push back the deadlines established by 
Congress.''
    EPA does not dispute that withdrawal of a SIP cannot push back a 
statutory deadline established by Congress. However, EPA disagrees that 
it can act on a SIP submittal formally withdrawn by a state. We note, 
however, that such

[[Page 25721]]

a withdrawal is not without consequence, as withdrawal of required SIP 
revision puts a state in jeopardy of sanctions predicated upon a 
failure to submit the required SIP. However in this case, as described 
in this document, the States resubmitted the materials comprising their 
withdrawn pre-2001 SIP revisions' attainment plan as part of the 
February 2004 SIP submissions. EPA therefore will take action on what 
the District Court termed the ``pre-2001 submissions,'' \5\ as follows:
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    \5\ The District Court used the term ``pre-2001 submissions'' 
and ``pre-2001SIPs'' which consists of what in this document we call 
``the pre-2001 SIP revisions' attainment demonstration'' and ``the 
1996-1999 ROP plan.''
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    (1) This disapproval action covers Maryland's pre-2001 SIP 
revisions' attainment plan as resubmitted and subsumed by Maryland's 
February 2004 SIP revisions' attainment plan based upon Maryland's 
failure to submit the required 185 fee program and issues a protective 
finding on the SIP, based upon our determination that the SIP contains 
all of the control measures necessary to demonstrate attainment. This 
protective finding will allow Maryland to use the MVEBs contained in 
the disapproved SIP for transportation conformity purposes pursuant to 
40 CFR 93.120; and
    (2) Another final rule, which is published elsewhere in today's 
Federal Register, which among other things,
    (a) Approves all of the control measures and other constituents 
needed to approve Maryland's severe area attainment plan (except for a 
Section 185 fee program), including all control measures need to fully 
satisfy the emissions reductions relevant to attainment of the 1-hour 
ozone NAAQS;
    (b) Approves all of the control measures and other constituents 
needed to approve the District's and Virginia's severe area attainment 
plan;
    (c) Approves the 1996-1999 ROP plan for the District, Maryland and 
Virginia;
    (d) Approves Maryland's modeled demonstration of attainment and 
adjunct weight of evidence analyses; and
    (e) Approves the District's and Virginia's modeled demonstrations 
of attainment and adjunct weight of evidence analyses and the 
District's and Virginia's attainment plans, which include their pre-
2001 SIP revisions' attainment plan, as resubmitted and subsumed by 
their February 2004 SIP revisions.

III. Comment Received and EPA's Response

    EPA received a comment on our February 9, 2005 NPR wherein we 
proposed to approve the Maryland February 2004 SIP revisions' 
attainment plan and, in the alternative, proposed to disapprove that 
plan in concert with the issuance of a protective finding for the 
MVEBs. Because EPA is not approving the attainment plan we are not 
responding to the comments opposing the proposed approval. A summary of 
the adverse comment that we received on our proposed action to 
disapprove Maryland's attainment plan for the Washington area in 
concert with the issuance of a protective finding, and our response, 
follows.
    Comment: We received a comment claiming that Maryland's attainment 
plan does not meet the requirement for a protective finding under EPA's 
transportation conformity rules because the section 185 penalty fee SIP 
revision is a control measure. The commenter claims that the section 
185 penalty fee provision is an emission reduction requirement because 
the fees are assessed on emissions in excess of a baseline and will 
promote emission reductions, and, is an emission reduction requirement 
relevant to the Act's requirements for severe area SIPs.
    Response: EPA disagrees that an approved section 185 penalty fee 
SIP revision is necessary to grant a protective finding. The section 
185 penalty fee program, which is the only ``control measure'' the 
commenter alleges to be missing from the attainment plan and creating a 
bar to a protective finding, is not a ``control measure'' as that term 
is used at 40 CFR 93.120(a)(3).\6\ EPA's regulation containing the 
criteria for granting a protective finding states that the relevant 
``control measures'' that must be in place (adopted or subject to a 
written commitment) in order to receive a protective finding are those 
``that fully satisfy the emissions reductions requirements relevant to 
the statutory provisions for which the implementation plan revision was 
received, such as reasonable further progress or attainment.''
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    \6\ The term ``control measures * * * that fully satisfy the 
emissions reductions requirements relevant to * * * attainment,'' is 
not defined in 40 CFR Part 93. Nor is this term, or the term 
``control measure'' itself, defined by Congress in the Act. The 
failure of Congress to define the term ``control measure'' has been 
held to create ambiguity in the Act, see Greenbaum v. EPA, 370 F.3d 
527, 536-37 (6th Cir. 2004), and EPA's interpretation as to the 
meaning of the ambiguous phrase ``control measure'' in a given 
context therefore should be afforded deference. EPA believes it is 
reasonable to interpret ``control measures * * * that fully satisfy 
the emissions reductions requirements relevant to * * * 
attainment,'' not to include the penalty fee program of Section 185 
of the Act for the reasons given in response to this comment.
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    Because we are granting a protective finding for a disapproved 
attainment plan, the comments require us to examine whether the section 
185 penalty fee provision is a control measure for purposes of 
achieving emissions reductions relevant to attainment of the 1-hour 
ozone NAAQS. We conclude it is not. The section 185 penalty fee is a 
required element of the SIP for a severe or extreme ozone nonattainment 
area. 42 U.S.C. 7511d(a). Section 185 requires that the SIP contain a 
provision that major stationary sources within a severe or extreme 
nonattainment area pay ``a fee to the state as a penalty'' for failure 
of a severe or extreme nonattainment area to attain the ozone NAAQS by 
the area's attainment date.\7\ This penalty fee, which is based on the 
tons of volatile organic compounds or nitrogen oxides emitted above a 
source-specific trigger level based on the source's emissions during 
the ``attainment year,'' first comes due for emissions during the 
``calendar year beginning after the attainment date and must be paid 
annually until the area attains the NAAQS. 42 U.S.C. 7511d(a)--(c); 
7511a(f)(1). Thus, if a severe area, with an attainment date of 
November 15, 2005, fails to attain by that date, the first penalty 
assessment will be assessed for emissions in calendar year 2006 that 
are more than 80% above the source's 2005 baseline. Thus, the penalty 
cannot first be paid until after the 2006 emissions are known, i.e., 
some time in 2007.
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    \7\ The fee program established by section 185 of the Act is 
restricted to major stationary sources and does not reach mobile 
sources. 42 U.S.C. 7511d(a). Therefore, the effects of section 185 
does not affect the mobile source emissions and hence cannot affect 
the MVEBs.
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    A penalty fee that is based on emissions could have some incidental 
effect on emissions if sources decrease their emissions to reduce the 
amount of the per ton monetary penalty. However, the penalty fee does 
not ensure that any actual emissions reduction will ever occur, since 
every source can pay a penalty rather than achieve actual emissions 
reductions. The section 185 fee has the purpose of extracting a 
monetary penalty for emissions above a threshold level in relation to a 
source-specific baseline. It does not mandate that emissions ever be 
reduced. The section 185 penalty fee is not a control measure as meant 
by 40 CFR 93.120 because it does not ``satisfy * * * emissions 
reductions requirements relevant to * * * attainment.'' The provision's 
plain language evinces an intent to penalize emissions in excess of a 
threshold by way of a fee; it does not have as a stated purpose the 
goal of

[[Page 25722]]

emissions reductions.\8\ Further, even if the section 185 penalty fee 
achieved incidental emissions reductions, those reductions plainly are 
not ``relevant to attainment,'' since the first year the reductions 
could be achieved would come only after the area has failed to reach 
attainment, in the year after the attainment deadline.\9\ We reasonably 
interpret the language in 40 CFR 93.120(a)(3) referring to ``control 
measures * * * that fully satisfy the emissions reductions requirements 
relevant to * * * attainment,'' to mean control measures that are 
intended to achieve emissions reductions prior to the statutory 
attainment deadline.\10\
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    \8\ We note that ``control measures'' may include ``economic 
incentives such as fees,'' for some purposes of the Act. See 42 
U.S.C. 7410(a)(2)(A). However, the particular fee program prescribed 
by section 185 of the Act is not among the ``control measures that 
fully satisfy * * * emissions reductions requirements relevant to * 
* * attainment,'' as we explain, since it is not triggered until 
after a serious or extreme nonattainment area has failed to timely 
attain the NAAQS.
    \9\ The section 185 penalty fee program actually provides a 
disincentive for sources to foster the achievement of attainment by 
ratcheting down emissions in the calendar year containing the 
attainment deadline, since the threshold above which emissions 
trigger the fee is calculated from a baseline determined from 
emissions occurring over the course of the statutory attainment 
year. If a source knew or reasonably suspected that the severe or 
extreme area in which it is located would not timely attain, it 
would have an incentive to increase its emissions during the 
attainment deadline year to the highest level allowed by law in 
order to raise its baseline and corresponding penalty trigger 
threshold. This perverse incentive is yet another reason that the 
section 185 penalty fee program is not an emissions reduction 
measure relevant to attainment.
    \10\ In another action published in today's Federal Register, 
among other things, we approve the attainment plans for the 
Washington area submitted by Virginia and the District of Columbia. 
Neither took credit for emissions reductions based on a section 185 
fee program, yet both demonstrate that the Washington area will 
timely attain the 1-hour ozone NAAQS. In that same Federal Register 
notice we also determine that the Maryland attainment plan that we 
are disapproving with a protective finding in this notice contains 
control measures to fully satisfy the emissions reduction 
requirements relevant to attainment of the 1-hour ozone NAAQS. Thus, 
even if the section 185 program actually could achieve emissions 
reduction prior to the attainment deadline, it would not be as an 
emissions control measure under 40 CFR 93.120, since the attainment 
plans submitted by the District, Maryland and Virginia demonstrate 
timely attainment of the NAAQS without resort to a section 185 
penalty fee program.
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IV. Disapproval With Protective Finding

    In this final rule, EPA is disapproving the attainment plan of 
Maryland's February 2004 SIP revisions (and therefore the pre-2001 SIP 
revisions' attainment plan subsumed therein) for the reasons cited in 
the February 9, 2005 NPR. As noted previously, on May 3, 2005, the 
Regional Administrator signed a final rule which approves Maryland's 
February 2004 SIP revisions except the overall attainment plan, and 
which approves the 1996-1999 ROP plan. That other final rule, which the 
Regional Administrator signed on May 3, 2005, also approves the 
District of Columbia's and the Commonwealth of Virginia's attainment 
plans for the Washington area and approves the 2005 area-wide MVEBs in 
those attainment plans. That other final action determines that the 
District's, Maryland's and Virginia's SIPs contain enough emission 
reduction measures to achieve the specific purpose of demonstrating 
attainment with the 1-hour ozone NAAQS and approves the 2005 area-wide 
MVEBs into the District's, and Virginia's SIPs. That other final action 
is published elsewhere in today's Federal Register, and, along with 
this action cumulatively constitutes a final action on what the 
District Court defined as the pre-2001 submissions, as well as the 
February 2004 SIP revisions.
    Pursuant to 40 CFR 93.120(a)(1) and (2), EPA is issuing a 
protective finding with respect to the attainment plan contained 
Maryland's February 2004 SIP revisions submission and the resubmitted 
pre-2001 SIP revisions' attainment plan subsumed therein, but the 
applicable budgets are those identified in Maryland's February 19, 2004 
SIP revisions.

V. Consequences That May Result From Disapproval of a Required SIP 
Element

    EPA has promulgated a rule (40 CFR 52.31), commonly called the 
``order of sanctions rule,'' that provides that the offset sanction 
shall apply in an area 18 months after the effective date of a 
disapproval of a mandatory Part D SIP requirement. That same rule 
provides that if the SIP deficiency has still not been remedied by the 
state and approved by EPA, the highway sanction shall apply in that 
area 6 months following application of the offset sanction. Under this 
rule, sanctions will apply automatically in the sequence prescribed in 
all instances in which sanctions are required following a disapproval, 
except when EPA determines through a separate rulemaking to change the 
sanction sequence for one or more specific circumstances.
    When EPA disapproves a SIP submission for a nonattainment area 
based on its failure to meet one or more plan elements required by the 
CAA, the sanctions clocks actually start on the date the final Federal 
Register actions are effective. Under EPA's order of sanctions rule, 40 
CFR 52.31:
    (1) If, within 18 months of the effective date found in the DATES 
section of this final rule, EPA has not issued a final approval for nor 
issued an interim final determination pursuant to 40 CFR 52.31 for 
Maryland's attainment plan for the Washington area, the offset sanction 
will be imposed pursuant to 40 CFR 52.31(e)(1); and
    (2) If, within 24 months of the effective date found in the DATES 
section of this final rule, EPA has not issued a final approval for nor 
issued an interim final determination pursuant to 40 CFR 52.31 for 
Maryland's attainment plan for the Washington area, the highway 
sanction will be imposed pursuant to 40 CFR 52.31(e)(2);
    Pursuant to 40 CFR 120(a)(1) this disapproval will cause the 
conformity status of the transportation plan and TIP to lapse on the 
date that highway sanctions are imposed, and, no new transportation 
plan, TIP, or project may be found to conform until another control 
strategy implementation plan revision fulfilling the same CAA 
requirements is submitted and conformity to this submission is 
determined.
    Furthermore, section 110(c)(1) of the CAA requires EPA to 
promulgate a Federal Implementation Plan (FIP) any time within two 
years after an EPA disapproval of a SIP revision unless the State 
corrects the deficiency and EPA approves the plan or SIP revision 
before EPA promulgates such FIP.

VI. Protective Finding

    When disapproving a control strategy SIP revision such as an 
attainment plan, EPA may make a protective finding pursuant to section 
93.120(a) of the transportation conformity rule, 40 CFR part 93, when 
as here, EPA finds that the submitted SIP contains adopted control 
measures that fully satisfy the emission reduction requirements 
relevant to the statutory provision for which the SIP was submitted. 
See 69 FR at 40048, July 1, 2004, citing 69 FR at 38984-38985, June 30, 
2003. If EPA disapproves a plan but gives a protective finding, the 
MVEBs in the disapproved plan can still be used to demonstrate 
conformity (62 FR at 43796, August, 15, 1997). There will be no adverse 
conformity consequences unless highway sanctions are imposed, as is the 
case with respect to all other SIP planning failures. Highway sanctions 
would be imposed two years following EPA's disapproval if the SIP 
deficiency had not been remedied. The conformity of the plan and TIP 
would lapse once highway sanctions were imposed.

[[Page 25723]]

    On May 3, 2005, the Regional Administrator signed a final rule 
approving the District of Columbia's and the Commonwealth of Virginia's 
attainment plans for the Washington area and approving the 2005 area-
wide MVEBs in these attainment plans. This other final action 
determines that the District's, Maryland's and Virginia's SIPs contain 
enough emission reduction measures to achieve the specific purpose of 
demonstrating attainment with the 1-hour ozone NAAQS and approves the 
2005 area-wide MVEBs into the District's and Virginia's SIPs. 
Maryland's February 19, 2004 SIP revision includes the following MVEBs 
of 97.4 tons per day of volatile organic compound (VOC) emissions and 
234.7 tons per day of nitrogen oxide (NOX) emissions for the 
2005 attainment year. These MVEBs are area-wide MVEBs covering the 
entire Washington area and are the MVEBs that will apply pursuant to 
the protective finding.

VII. Final Action

    EPA is disapproving the Maryland's attainment plan for the 
Washington area, and, pursuant to 40 CFR 93.120(a), issuing a 
protective finding to Maryland's February 2004 SIP revisions' 
attainment plan. This disapproval applies to Maryland's February 2004 
SIP revisions' attainment plan for the Washington area and to the pre-
2001 SIP revisions' attainment plan which were resubmitted and subsumed 
by the February 2004 SIP revisions' attainment plan. In another final 
rule, which is published elsewhere in today's Federal Register, EPA is 
approving all of the control measures and other constituents needed to 
approve Maryland's severe area attainment plan (except for a section 
185 fee program), including all control measures need to fully satisfy 
the emissions reductions relevant to attainment of the 1-hour ozone 
NAAQS. That final rule also approves Maryland's 1996-1999 ROP plan for 
the Washington area.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *'' 44 U.S.C. 3502(3)(A). Because this final rule does 
not impose an information collection burden, the Paperwork Reduction 
Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This rule will not have a significant impact on a 
substantial number of small entities because SIP approvals and 
disapprovals under section 110 and part D of the Clean Air Act do not 
create any new requirements but simply approve or disapprove 
requirements that the States are already imposing.
    Furthermore, as explained in this action, the submission does not 
meet the requirements of the Clean Air Act and EPA cannot approve the 
submission. The final disapproval will not affect any existing State 
requirements applicable to small entities in the Washington area. 
Federal disapproval of a State submittal does not affect its State 
enforceability. Therefore, because the Federal SIP disapproval does not 
create any new requirements nor impact a substantial number of small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Moreover, 
due to the nature of the Federal-State relationship under the Clean Air 
Act, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The Clean Air 
Act forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(Unfunded Mandates Act ), signed into law on March 22, 1995, EPA must 
prepare a budgetary impact statement to accompany any proposed or final 
rule that includes a Federal mandate that may result in estimated costs 
to State, local, or tribal governments in the aggregate; or to the 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule. EPA has determined that the 
disapproval action does not include a Federal mandate that may result 
in estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector. This 
Federal action determines that pre-existing requirements under State or 
local law should not be approved as part of the federally-approved SIP. 
It imposes no new requirements. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, result 
from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation. This rule will 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

[[Page 25724]]

Executive Order 13132, because it merely disapproves a state rule 
implementing a federal requirement, and does not alter the relationship 
or the distribution of power and responsibilities established in the 
Clean Air Act. Thus, the requirements of section 6 of the Executive 
Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, 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. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This rule is not subject to 
Executive Order 13045 because it does not involve decisions intended to 
mitigate environmental health or safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    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 this action. 
Today's action does not require the public to perform activities 
conducive to the use of VCS.

J. Congressional Review Act

    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

K. 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 12, 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 action to disapprove Maryland's 1-hour ozone 
attainment plan for the Washington area and to issue a protective 
finding 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: May 3, 2005.
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 V--Maryland

0
2. Section 52.1073 is revised by adding paragraph (g) to read as 
follows:


Sec.  52.1073  Approval status.

* * * * *
    (g) EPA is disapproving the Maryland September 2, 2003 and February 
19, 2004 SIP revision submittals' 1-hour ozone attainment plan for the 
Metropolitan Washington DC area. Pursuant to 40 CFR 93.120(a) EPA is 
issuing a protective finding to the Maryland September 2, 2003 and 
February 19, 2004 SIP revision submittals' 1-hour ozone attainment plan 
which identifies the following 2005 attainment year MVEBs: 97.4 tons 
per day of VOC emissions and 234.7 tons per day of NOX 
emissions.

[FR Doc. 05-9402 Filed 5-12-05; 8:45 am]
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