[Federal Register Volume 70, Number 135 (Friday, July 15, 2005)]
[Proposed Rules]
[Pages 40946-40949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13980]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME No. R03-OAR-2004-MD-0010; FRL-7939-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Metropolitan Washington D.C. 1-Hour Ozone Attainment Plan, 
Rescinding of Earlier Rules Resulting in Removal of Sanctions and 
Federal Implementation Clocks

AGENCY: Environmental Protection Agency (EPA).

[[Page 40947]]


ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of Maryland. This SIP revision is 
Maryland's attainment plan for the Metropolitan Washington, D.C. severe 
1-hour ozone nonattainment area (the Washington area). Concurrently, 
EPA is proposing to rescind its earlier final rule which disapproved 
and granted a protective finding for Maryland's 1-hour ozone attainment 
plan for the Washington area. EPA is also proposing to rescind its 
earlier rule finding that the State of Maryland failed to submit one 
required element of a severe 1-hour ozone attainment plan, namely that 
for a penalty fee program. The intended effect of this action is to 
approve Maryland's 1-hour ozone attainment plan for the Washington area 
and to rescind earlier final rules due to changes in federal 
requirements. Upon final approval of these actions, the sanctions and 
Federal Implementation Plan (FIP) clocks, commenced by the two earlier 
rules, will be removed. These final actions are being taken under the 
Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before August 15, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2004-MD-0010 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Website: http://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-0010, David Campbell, 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-
0010. 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://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://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.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On January 24, 2003 (68 FR 3410), EPA promulgated a final rule 
reclassifying the Washington area from serious to severe nonattainment 
for the 1-hour ozone national ambient air quality standard (NAAQS). 
That final rule established a deadline of March 1, 2004, by which time 
the District of Columbia, Maryland and Virginia were required to submit 
revisions to their respective SIPs to meet the additional requirements 
of severe ozone nonattainment areas found in section 182(d) of the CAA. 
Maryland did not submit the SIP revision required by section 182(d)(3) 
of the Act to implement the penalty fee provisions specified in section 
185 of the Act. Therefore, on May 21, 2004 (69 FR 29236), EPA published 
a final rule, pursuant to section 179(a) of the CAA, finding that the 
State of Maryland had failed to submit a required SIP element, namely 
the section 185 penalty fee SIP revision for the Washington area. This 
rule commenced the 18-month and 24-month clocks for the imposition of 
the Act's section 179(a) sanctions, and the 24-month clock for the 
promulgation of a FIP for the missing SIP element.
    On May 13, 2005 (70 FR 25719), EPA published a final rule 
disapproving Maryland's 1-hour ozone attainment plan for the Washington 
area. On May 13, 2005 (70 FR 25688), EPA also published a final rule 
approving all of the other SIP elements required of a severe 1-hour 
ozone nonattainment area's attainment plan, submitted by Maryland for 
the Washington area, including but not limited to all control measures, 
needed to fully satisfy the emissions reductions relevant to attainment 
of the 1-hour National Ambient Air Quality Standard (NAAQS) for ozone. 
Thus, the only basis for EPA's disapproval of Maryland's 1-hour ozone 
attainment plan for the Washington area was the lack of the fee program 
required under section 185 of the Act. Implicit in EPA's approval of 
all elements necessary for Maryland to have an approved plan for 
attainment of the 1-hour ozone NAAQS, other than the then-legally 
required section 185 penalty fee program, is the notion that once this 
single deficiency is corrected, EPA has an obligation to fully approve 
Maryland's 1-hour attainment plan for the Washington area. See 
110(k)(3) of the Act (``the Administrator shall approve such submittal 
as a whole if it meets all the applicable requirements * * *''). EPA is 
undertaking this rulemaking in fulfillment of its statutory obligation.
    On May 26, 2005 (70 FR 30592), EPA issued a final rule which 
retained an April 30, 2004 (69 FR 23951) final rule establishing that 
once the 1-hour ozone NAAQS is revoked for an area, the section 185 
penalty fee program in SIPs will not be triggered for a failure of an 
area to attain the 1-hour ozone NAAQS by its 1-hour attainment date, 
and, that

[[Page 40948]]

States are no longer obligated to include the section 185 penalty fee 
program in their SIPs for nonattainment that had been classified as 
severe or extreme under the 1-hour ozone NAAQS but are not so 
classified under the 8-hour NAAQS for ozone. That May 26, 2005 final 
rule was effective June 27, 2005.
    The 1-hour ozone NAAQS set forth in 40 CFR 50.9(a) will no longer 
apply to an area one year after the effective date of the designation 
of that area for the 8-hour ozone NAAQS pursuant to section 107 of the 
Act. (See 40 CFR 50.9(b); 69 FR at 23996, April 30, 2004.) The 
Washington area was designated nonattainment for the 8-hour ozone NAAQS 
effective June 15, 2004. (See 70 FR 23858, April 30, 2004.) The 
Washington area is not designated as extreme or severe under the 8-hour 
ozone standard. Therefore, the 1-hour ozone NAAQS set forth in 40 CFR 
50.9(a) and the requirement for a section 185 penalty fee SIP revision 
no longer apply in the Washington area after June 15, 2005.
    EPA believes that there is no legal basis to require Maryland to 
adopt and submit a SIP revision consisting of a section 185 penalty fee 
program, and have EPA approve such a SIP revision before it can approve 
Maryland's 1-hour ozone attainment plan for the Washington area. 
Because the section 185 penalty fee program is no longer a SIP element 
required for the Washington area under part D of Title I of the Act, 
EPA has no authority to subject Maryland to the sanctions established 
in section 179 of the Act due to its failure to submit the section 185 
penalty fee SIP revision. The purpose of EPA's May 21, 2004 final rule 
(69 FR 29236) was to initiate the sanctions process for the failure to 
submit the then required section 185 penalty fee SIP revision. EPA 
concludes it lacks the necessary authority, and no longer has a legal 
basis for that May 21, 2004 final rule (69 FR 29236).

II. Proposed Action

    EPA is proposing to approve Maryland's attainment plan for the 
Metropolitan Washington, DC severe 1-hour ozone nonattainment area. 
Concurrently, EPA is proposing to rescind its earlier final rule which 
disapproved and granted a protective finding for Maryland's 1-hour 
ozone attainment plan for the Washington area. EPA is also proposing to 
rescind its earlier rule finding that the State of Maryland failed to 
submit a required element of a severe 1-hour ozone attainment plan for 
a penalty fee program. As explained herein, the 1-hour ozone NAAQS no 
longer applies to the Washington area and there is no legal basis for 
EPA to require that Maryland have a section 185 penalty fee program in 
its SIP for the Washington area. Currently, the sanctions and FIP 
clocks commenced by the effective date of the May 21, 2004 (69 FR 
29236) final rule finding that Maryland failed to submit the then-
required section 185 penalty fee SIP element would mean that the 2:1 
offset sanction would be imposed in the Maryland portion of the 
Washington area in December of 2005, and the highway funding sanction 
in June of 2006. The sanctions and FIP clocks commenced by the 
effective date of the May 13, 2005 (70 FR 25719) final rule 
disapproving Maryland's 1-hour ozone attainment plan for the Washington 
area solely for its lack of the then-required section 185 penalty fee 
SIP element would mean that these mandatory sanctions would be imposed 
in the Maryland portion of the Washington area in December 2006 and 
June 2007, respectively. By proposing to rescind both its May 21, 2004 
(69 FR 29236) final rule finding that Maryland failed to submit the 
then required section 185 penalty fee SIP element, and its May 13, 2005 
(70 FR 25719) final rule disapproving Maryland's 1-hour ozone 
attainment plan for the Washington area solely for its lack of the 
then-required section 185 penalty fee SIP element, EPA is also 
proposing to remove the sanctions and FIP clocks commenced by those two 
final rules.
    Interested parties are invited to submit comments on this proposed 
action. Please note, however, that this proposed action neither re-
opens nor solicits comment upon any of EPA's final rules referenced in 
this document, or issues/comments already addressed therein.

III. 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 Fed. Reg. 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, does not impose any additional 
enforceable duty beyond that required by state law, and relieves 
sources of an additional burden potentially placed on them by the 
sanction provisions of the Act, 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 requirement, 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

[[Page 40949]]

``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's 1-hour ozone attainment 
plan for the Washington area, rescind two earlier final rules, and 
thereby remove sanctions and FIP clocks 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, Volatile organic compounds.

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

    Dated: July 8, 2005.
Richard J. Kampf,
Acting Regional Administrator, Region III.
[FR Doc. 05-13980 Filed 7-14-05; 8:45 am]
BILLING CODE 6560-50-P