[Federal Register Volume 70, Number 220 (Wednesday, November 16, 2005)]
[Rules and Regulations]
[Pages 69440-69443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22700]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME NO. R03-OAR-2004-MD-0010; FRL-7997-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Maryland. This SIP revision is Maryland's 
attainment plan for the Metropolitan Washington, DC severe 1-hour ozone 
nonattainment area (the Washington area). EPA previously disapproved in 
part a 1-hour ozone attainment plan for the Maryland portion of the 
Washington area and issued a protective finding. This approval lifts 
the protective finding. EPA is also now determining that Maryland has 
submitted all required elements of a severe-area 1-hour ozone 
attainment demonstration and is thus stopping the sanctions and FIP 
clocks that were started through a finding that the State of Maryland 
had failed to submit one of the required elements of a severe-area 1-
hour attainment plan. The intended effect of this action is to approve 
Maryland's 1-hour ozone attainment plan for the Washington area and 
determine that Maryland now has a fully-approved 1-hour attainment plan 
and thus to turn off the sanctions and FIP clocks started based on a 
finding that one element of the plan was missing and to lift the 
protective finding that was issued when EPA disapproved Maryland's 
earlier plan in part. These final actions are being taken under the 
Clean Air Act (CAA or the Act).

DATES: This final rule is effective on December 16, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2004-MD-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: Throughout this document the terms ``we,'' 
``our,'' and ``its'' refer to the EPA.

I. Background

    On July 15, 2005 (70 FR 40946), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. The NPR proposed approval 
of Maryland's attainment plan for the Metropolitan Washington, DC 
severe 1-hour ozone nonattainment area (the Washington area). 
Concurrently, EPA proposed 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. In that July 15, 2005 
notice of proposed rulemaking, EPA also proposed 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 required under sections 182(d)(3) and 185 of the 
Act.

II. Public Comments and EPA Responses

A. Overview

    EPA received comments dated August 15, 2005 opposing our proposed 
action to approve Maryland's 1-hour ozone attainment plan for the 
Washington, DC area in the absence of an approved SIP revision for a 
section 185 penalty fee program covering the Maryland portion of the 
Washington area.

[[Page 69441]]

    One comment was that promulgation of the 8-hour ozone standard did 
not grant EPA the authority to waive the section 185 penalty fee 
program for the Washington area. In support of this comment, the 
commenter incorporates the reasons stated in portions of comment 
letters the commenter had previously submitted on EPA's proposed rules 
for implementation of the 8-hour ozone NAAQS and on EPA's proposed 
action on two issues raised in a petition for reconsideration of EPA's 
rule to implement the 8-hour ozone NAAQS. Specifically, the August 15, 
2005 comments enclosed a copy of:

    (1) ``Proposal to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard, 68 FR 32802 (June 2, 2003), EPA Docket No. OAR 
2003-0079, Comments of: Clean Air Task Force, American Lung 
Association, Conservation Law Foundation, Earthjustice, 
Environmental Defense, Natural Resources Defense Council, Southern 
Alliance For Clean Energy, Southern Environmental Law Center, and 
U.S. Public Interest Research Group,'' dated August 1, 2003, that 
was docketed as item number OAR 2003-0079-0215 in EPA Docket No. OAR 
2003-0079; and,
    (2) A March 21, 2005 comment letter regarding ``Notice of 
proposed rulemaking responding in part to reconsideration petition 
on ozone implementation rule, 70 FR 5593 (Feb. 3, 2005), docket no. 
OAR-2003-0079,'' that was docketed as item number OAR-2003-0079-0753 
in EPA Docket No. OAR-2003-0079.

    A copy of each of these items has been placed in the docket for 
this action. The commenter specifically incorporates by reference parts 
I and III of the June 2, 2003 comments (identified in the August 15, 
2005 document as being submitted to EPA on August 3, 2003); and parts 1 
and 2 of the March 21, 2005 letter).
    The second comment asserts that EPA should defer final action on 
the Maryland attainment plan for the Washington area until after the 
resolution of litigation commenced by the commenter over EPA's rules to 
implement the 8-hour ozone NAAQS which relate to revocation of the 1-
hour ozone NAAQS and waiver of the section 185 penalty fee program 
requirement.

B. Comments Regarding Section 185 Penalty Fee Program Under the 8-Hour 
Implementation Rule

    Comment and Response: The commenter incorporated by reference 
portions of comment letters previously submitted on EPA's proposed 
rules for implementation of the 8-hour ozone NAAQS (Phase 1 Rule) and 
EPA's proposed action reconsidering certain aspects of the final Phase 
1 8-hour ozone NAAQS implementation rule (Reconsideration Rule). The 
issues raised in these comments concern EPA's authority and policy 
bases for determining that States would no longer be required to submit 
SIP meeting the section 185 fee provision for purposes of the 1-hour 
ozone NAAQS once that standard no longer applied (i.e., for most areas 
of the country as of June 15, 2005). EPA responded to these comments in 
those two rulemaking actions. EPA took final action in the Phase 1 Rule 
and in the Reconsideration Rule determining that it had authority to 
determine that the section 185 fee SIP is no longer required in areas 
where the 1-hour standard had applied. Thus, the comments cited by the 
commenter are not relevant to this rulemaking where EPA is merely 
applying that final rule. However, to the extent those comments and 
responses might have some relevance to the present rulemaking on the 
Maryland SIP, we incorporate by reference our responses found in the 
following documents:

    (1) The ``Final Rule To Implement the 8-Hour requirements--Phase 
1,'' 69 FR 23951, April 30, 2004, particularly 69 FR at 23984-23988.
    (2) ``Implementation of the 8-Hour Ozone National Ambient Air 
Quality Standard-Phase 1: Reconsideration,'' 70 FR 30592, May 26, 
2005, particularly 70 FR at 30593-30595.
    (3) ``Final Rule to Implement the 8-hour National Ambient Air 
Quality Standard for Ozone (Phase 1) Response to Comments Document'' 
dated April 15, 2004, particularly pages 81 through 106 (inclusive), 
and, pages 141 through 144 (inclusive).\3\
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    \3\ A copy of this document is available in the docket (both 
paper and electronic) for this action and previously was docketed as 
items numbers OAR-2003-0079-0715 and OAR-2003-0079-0716 in EPA 
Docket No. OAR-2003-0079.
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C. Comments Advocating a Delay of Final Action Until Resolution of 
Pending Litigation

    Comment: EPA received a comment stating that if EPA did not accept 
the commenter's arguments for not approving this rule, then EPA should 
at least defer its final action until the litigation challenging EPA's 
rules implementing the 8-hour ozone standard is resolved, because EPA's 
stated basis for rescinding the Maryland SIP disapproval and sanctions 
clock relies on the national rules. This comment asserts that delay in 
implementing the section 185 penalty fee requirements would 
``undermine'' air quality in the Washington area and that there is no 
harm in requiring Maryland to move forward in the interim with adoption 
of SIP provisions to implement the section 185 penalty fee provisions. 
The comment notes that the District and Virginia have already adopted 
and submitted SIP revisions for the section 185 penalty fee program and 
received EPA's approval of these SIP revisions.
    Response: EPA disagrees that we should defer action on the Maryland 
SIP until the litigation on the Phase 1 and Reconsideration Rules is 
resolved and that such a deferral would not result in any harm. Such 
litigation could take a year or more until the court issues a decision. 
In the interim, the State would face sanctions and a FIP if it failed 
to adopt and submit the section 185 fees SIP. Thus, harm could result 
from the imposition of sanctions. Additionally, the State or EPA would 
also be required to devote resources to developing a section 185 fees 
SIP or FIP.
    Section 185 Penalty Fee and Air Quality: EPA disagrees with the 
commenter's assertion that approving the Maryland attainment plan 
without a section 185 penalty fee provision would ``undermine the air 
quality'' in the Washington area. The section 185 fee obligation is not 
a control measure that results in reductions of ozone precursor 
emissions. As we previously noted, in response to the comments 
submitted on our rulemaking disapproving Maryland's attainment plan, 
but granting a protective finding for transportation conformity 
purposes, the section 185 fee program is not a control measure. See, 70 
FR 25719 at 25721-25722, May 13, 2005. Section 185 of the Act simply 
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 that area to attain the ozone NAAQS by 
the area's attainment date. This penalty fee is based on the tons of 
volatile organic compounds or nitrogen oxides emitted above a source-
specific trigger level during the ``attainment year.'' It first comes 
due for emissions during the calendar year beginning after the 
attainment date and must be paid annually until the area is 
redesignated to attainment of the ozone 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 in calendar year 2006 for emissions that 
exceed 80% of the source's 2005 baseline emissions.
    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

[[Page 69442]]

emissions reductions. 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 emissions reductions.
    In addition, we note that it is unlikely that the section 185 
penalty fee would take effect for the Washington, DC severe 1-hour 
ozone nonattainment. The Act is clear that the section 185 penalty fees 
apply only if a severe or extreme area fails to attain the ozone NAAQS 
by the applicable attainment date. If the 1-hour ozone standard were 
still intact, and if the Washington area were to attain the 1-hour 
ozone NAAQS by its attainment date of November 15, 2005, then the 
requirement that sources pay the section 185 penalty fees would never 
be triggered. A determination that the Washington area has attained or 
not attained the standard by its attainment date must be based on air 
quality monitoring data for the 2003 through 2005 (inclusive ozone 
seasons). The form of the 1-hour ozone standard is such that to show 
attainment a monitor must have no more than an average of one expected 
exceedance over a three year period. 40 CFR 50.9. The procedure for 
determining the number of expected exceedances is set forth in Appendix 
H to 40. EPA has reviewed the available air quality data for the 
Washington area. No monitor was violating the 1-hour ozone standard in 
2003 and 2004. Additionally, we note our review of the air quality data 
for the 2005 ozone season (which has not yet been quality-assured by 
the States and for which the quality-assurance certification is not 
required until July 1, 2006), indicates there have been no reported 
exceedances of the 1-hour ozone NAAQS in the Washington area through 
September 30, 2005. Thus, it seems likely that, had the 1-hour ozone 
standard not been revoked, the Washington area would attain the 1-hour 
NAAQS by the area's 1-hour ozone attainment deadline, and that the 
section 185 fees will not apply for purposes of the 1-hour NAAQS in the 
area.
    EPA's Delay Could Result in Irreparable Harm: We disagree with the 
commenter that requiring Maryland to adopt the section 185 fees program 
will not result in irreparable harm.
    If we do not find that Maryland has fully met its obligations with 
respect to the 1-hour attainment demonstration obligation, the Maryland 
portion of the Washington area will be subject to the 2:1 offset 
sanction of 40 CFR 52.31 on December 21, 2005 pursuant to our finding 
that the State failed to submit a section 185 penalty fee program. See 
69 FR 29236 (May 21, 2004). The highway sanctions of 40 CFR 52.31 would 
commence on June 21, 2006. The briefing schedule in the South Coast Air 
Quality Management Dist v. EPA, No. 04-1200 (and consolidated cases) 
(D.C. Cir., filed 6-29-04) challenge to the 8-hour implementation rules 
currently does not call for EPA to submit its brief until January 26, 
2006, and final briefs by May 26, 2006, i.e., after the offset 
sanctions have commenced and less than a month before the highway 
sanctions will commence. Therefore, the State would either be subject 
to sanctions for some period of time, or would need to devote resources 
to adopting the section 185 fees program. Thus, the State and its 
citizens would be harmed--either from the sanctions or from the need to 
devote limited state resources to adopting the program.

III. Final Action

    EPA is approving Maryland's attainment plan for the Metropolitan 
Washington, DC severe 1-hour ozone nonattainment area. Concurrently, 
EPA is determining that Maryland has submitted all required elements of 
a severe-area 1-hour ozone attainment demonstration and is thus 
stopping the sanctions and FIP clocks that were started through a 
finding that the State of Maryland had failed to submit one of the 
required elements of a severe-area 1-hour attainment plan. See May 13, 
2005 (70 FR 25719). Additionally, since the State now has a fully 
approved 1-hour ozone attainment demonstration SIP, we are lifting the 
protective finding that was issued with our earlier disapproval of 
Maryland's 1-hour ozone attainment demonstration. See May 13, 2005 (70 
FR 25719).

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
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 Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves 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 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.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement

[[Page 69443]]

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).

C. 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 January 17, 2006. 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 approving Maryland's attainment plan for 
the Metropolitan Washington, DC severe 1-hour ozone nonattainment area 
and rescinding earlier final rules starting sanctions clocks from 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: November 8, 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. In Sec.  52.1070, the table in paragraph (e) is amended by adding 
the entry for 1-hour Ozone Attainment Plan at the end of the table to 
read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (e) * * *

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                                                                         State
Name of non-regulatory SIP  revision   Applicable geographic area   submittal date        EPA approval date               Additional explanation
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                                                                      * * * * * * *
1-hour Ozone Attainment Plan........  Washington DC 1-hour ozone          9/2/2003  11/16/05 [Insert page number
                                       nonattainment area.               2/24/2004   where the document begins].
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Sec.  52.1073  [Amended]

0
3. Section 52.1073 is amended by removing and reserving paragraphs (f) 
and (g).

[FR Doc. 05-22700 Filed 11-15-05; 8:45 am]
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