[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Proposed Rules]
[Pages 21588-21594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10677]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0929; FRL-8901-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Attainment Demonstration for the Philadelphia-Wilmington-
Atlantic City Moderate 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove the ozone attainment 
demonstration portion of a comprehensive State Implementation Plan 
(SIP) revision submitted by the State of Maryland to meet Clean Air Act 
(CAA) requirements for attaining the 8-hour ozone national ambient air 
quality standard (NAAQS) for Cecil County, which is the Maryland 
portion of the Philadelphia-Wilmington-Atlantic City moderate 
nonattainment area (Philadelphia Area). EPA is proposing to disapprove 
Maryland's attainment demonstration of the 8-hour ozone NAAQS for the 
Philadelphia Area because EPA has determined that the photochemical 
modeling does not demonstrate attainment, and the weight of evidence 
(WOE) analysis that Maryland uses to support the attainment 
demonstration does not provide the

[[Page 21589]]

sufficient evidence that Cecil County will attain the NAAQS by the June 
2010 deadline.

DATES: Written comments must be received on or before June 8, 2009.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0929 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2008-0929, Cristina Fernandez, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. 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 Docket ID No. EPA-R03-OAR-
2008-0929. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, 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 www.regulations.gov or e-mail. 
The www.regulations.gov Web site is 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 www.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 
www.regulations.gov index. 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 www.regulations.gov 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: Maria A. Pino, (215) 814-2181, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Action Is EPA Proposing?
II. What Are the CAA Requirements for a Moderate 8-Hour Ozone 
Nonattainment Area?
    A. History and Time Frame for the State's Attainment 
Demonstration SIP
    B. CAA Requirements
III. What Was Included in Maryland's SIP Submittals?
IV. What Is EPA's Review of Maryland's Modeled Attainment 
Demonstration and Weight of Evidence Analysis for the Maryland 
Portion of the Philadelphia Area?
V. What Are the Consequences of a Disapproved SIP?
    A. What Are the CAA's Provisions for Sanctions?
    B. What Are the CAA's Federal Implementation Plan (FIP) 
Ramifications if a State Fails to Submit an Approvable Plan?
    C. What Are the Ramifications Regarding Conformity?
VI. What Is EPA's Conclusion?
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866, Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132, Federalism
    F. Executive Order 13175, Coordination With Indian Tribal 
Governments
    G. Executive Order 13045, Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211, Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. What Action Is EPA Proposing?

    EPA is proposing to disapprove the SIP revision consisting of the 
8-hour ozone attainment demonstration plan for Cecil County, which is 
the Maryland portion of the Philadelphia-Wilmington-Atlantic City 
moderate nonattainment area, submitted by the Maryland Department of 
the Environment (MDE) on June 4, 2007.
    EPA is proposing to disapprove Cecil County's 8-hour ozone 
attainment demonstration plan because EPA has determined that the 
photochemical modeling does not demonstrate attainment, and the weight 
of evidence analysis that Maryland uses to support the attainment 
demonstration does not provide the sufficient evidence that Cecil 
County will attain the NAAQS by the June 2010 deadline.
    EPA's analysis and findings are discussed in this proposed 
rulemaking and a more detailed discussion is contained in the Technical 
Support Document (TSD) for this proposal which is available on line at 
www.regulations.gov, Docket number EPA-R03-OAR-2008-0929.

II. What Are the CAA Requirements for a Moderate 8-Hour Ozone 
Nonattainment Area?

A. History and Time Frame for the State's Attainment Demonstration SIP

    In 1997, EPA revised the health-based NAAQS for ozone, setting it 
at 0.08 parts per million (ppm) averaged over an 8-hour time frame 
(``8-hour ozone standard'').\1\ EPA set the 8-hour ozone standard based 
on scientific evidence demonstrating that ozone causes adverse health 
effects at lower ozone concentrations, and over longer periods of time, 
than was understood when the pre-existing 1-hour ozone standard was 
set. EPA determined that the 8-hour standard would be more protective 
of human health, especially children and adults who are active 
outdoors, and individuals with a pre-existing respiratory disease, such 
as asthma.
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    \1\ In 2008, EPA promulgated a more stringent 8-hour standard of 
0.075 ppm. 73 FR 16436 (March 27, 2008). All references to the 8-
hour ozone standard in this rulemaking refer to the 8-hour standard 
promulgated in 1997.
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    On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to 
the 8-hour ozone standard. These actions became effective on June 15, 
2004. In addition, EPA promulgated its Phase 1 Rule for implementation 
of the 8-hour standard, which provided how areas designated 
nonattainment for the 8-hour ozone standard would be classified. April 
30,

[[Page 21590]]

2004 (69 FR 23951). Among those nonattainment areas is the Philadelphia 
Area. The Philadelphia Area includes three counties in Delaware, five 
counties in eastern Pennsylvania, one county in Maryland, and eight 
counties in southern New Jersey. The Maryland portion of the 
Philadelphia Area consists of Cecil County. EPA's Phase 2 8-hour ozone 
implementation rule, published on November 29, 2005 (70 FR 71612) 
specifies that states must submit attainment demonstrations for their 
nonattainment areas to the EPA by no later than three years from the 
effective date of designation, that is, by June 15, 2007. See, 40 CFR 
51.908(a).

B. CAA Requirements

    Pursuant to Phase 1 of the 8-hour ozone implementation rule, 
published on April 30, 2004 (69 FR 23951), an area was classified under 
subpart 2 of Title I of the CAA based on its 8-hour design value if it 
had a 1-hour design value at or above 0.121 ppm. Based on this 
criterion, the Philadelphia Area was classified under subpart 2 as a 
moderate nonattainment area. On November 29, 2005 (70 FR 71612), EPA 
published Phase 2 of the 8-hour ozone implementation rule in which it 
addresses the control obligations that apply to areas classified under 
subpart 2. Among other things, the Phase 1 and 2 rules outline the SIP 
requirements and deadlines for various requirements in areas designated 
as moderate nonattainment.

III. What Was Included in Maryland's SIP Submittals?

    On June 4, 2007, Maryland submitted a comprehensive 8-hour ozone 
SIP for Cecil County. The SIP submittal included an attainment 
demonstration plan, a reasonable further progress (RFP) plan, 
reasonably available control measures analysis, contingency measures, 
on-road motor vehicle emission budgets, and the 2002 base year 
emissions inventory. These SIP revisions were subject to notice and 
comment by the public. The State did not receive any comments on the 
proposed SIP revisions. Only the attainment demonstration 
sections of this SIP submittal are the subject in this rulemaking. The 
other sections of this SIP submittal will be addressed in a separate 
rulemaking.

IV. What Is EPA's Review of Maryland's Modeled Attainment Demonstration 
and Weight of Evidence Analysis for the Maryland Portion of the 
Philadelphia Area?

    Section 110(a)(2)(K) of the Clean Air Act requires states to 
prepare air quality modeling to show how they will meet ambient air 
quality standards. EPA determined that states must use photochemical 
grid modeling, or any other analytical method determined by the 
Administrator to be at least as effective, to demonstrate attainment of 
the ozone health-based standard in areas classified as `moderate' or 
above, and to do so by the required attainment date. See, 40 CFR 
51.908(c). EPA specified how areas would be classified with regard to 
the 8-hour ozone standard set by EPA in 1997. See, 40 CFR 51.903. EPA 
followed these procedures and the Philadelphia Area was classified by 
EPA as being in moderate nonattainment of the 8-hour ozone NAAQS. See, 
69 FR 23858 (April 30, 2004). The attainment date is June 2010 for 
moderate areas; therefore, states must achieve emission reductions by 
the ozone season of 2009 in order for ozone concentrations to be 
reduced, and attainment achieved during the last complete ozone season 
before the 2010 deadline.
    As more fully described in the TSD, the basic photochemical grid 
modeling used by Maryland in the Cecil County SIP meets EPA's 
guidelines, and when used with the methods recommended in EPA's 
modeling guidance, is acceptable to EPA. EPA's photochemical modeling 
guidance is found at Guidance on the Use of Models and Other Analyses 
for Demonstrating Attainment of Air Quality Goals for Ozone, 
PM2.5, and Regional Haze, EPA-454/B-07-002, April 2007. 
Using EPA's methods, the photochemical grid model, containing the 
modeled emission reduction strategies prepared by Maryland and the 
Ozone Transport Commission states, predicts that the 2009 ozone design 
value in the Philadelphia Area would be 91 parts per billion (ppb). 
Thus, the photochemical model predicts the Philadelphia Area will not 
reach the 84 ppb concentration level needed to show attainment of the 
ozone standard by the 2009 ozone season.
    EPA's photochemical modeling guidance is divided into two parts. 
One part describes how to use a photochemical grid model for ozone to 
assess whether an area will come into attainment of the air quality 
standard. The second part of EPA's photochemical modeling guidance 
strongly recommends states complement the photochemical air quality 
modeling with additional analyses (WOE analyses) in situations where 
modeling predicts the Philadelphia Area to be close to (within several 
parts per billion of) the ozone standard. A WOE analysis is any set of 
alternative methods or analyses that, when considered together, and in 
combination with the modeling analysis, supports the conclusion that 
the NAAQS has been attained, even in instances when the modeling 
results alone do not predict attainment. EPA notes in Section 2.3 of 
its guidance that if the concentration predicted by the photochemical 
model is 88 ppb or higher, it is ``far less likely that the more 
qualitative arguments made in a weight of evidence determination can be 
sufficiently convincing to conclude that the NAAQS will be attained.''
    In the Philadelphia Area, the photochemical model predicts a 2009 
ozone design value of 91 ppb which exceeds the modeling guidance 
threshold of 88 ppb. As stated above, EPA's photochemical modeling 
guidance indicates that it is difficult to make a convincing argument 
to show that ozone will be less than 84 ppb when model predicted 
concentrations are greater than 88 ppb. Thus the evidence needed to 
demonstrate that the Philadelphia Area will actually attain the ozone 
standard should be ``sufficiently convincing'' if EPA is to approve 
Maryland's attainment demonstration for Cecil County.
    As discussed at length in the TSD at pages 7 through 18, Maryland 
provided a WOE analysis that EPA has determined falls short of the goal 
of convincing us that the Philadelphia Area will attain the ozone NAAQS 
despite the modeling results to the contrary.
    Maryland's WOE approach is essentially two-pronged. The first prong 
attempts to persuade that the photochemical grid model overestimates 
the future ozone concentrations for the Philadelphia Area. The second 
prong is an argument that there are additional emission reduction 
strategies that were not incorporated into the modeling, and which will 
reduce ozone in the Philadelphia Area, although many of these 
reductions are (a) voluntary and (b) are not yet implementable. As set 
forth in the TSD, EPA is not persuaded by either prong of Maryland's 
WOE either alone or in combination.
    With respect to the first prong, the modeling and air quality 
studies cited by Maryland do not support an argument that the 
photochemical grid model used by Maryland over-predicts ozone 
concentrations in 2009. Air quality data through 2007 are far above the 
level needed for attainment. As shown in Table 3 of the TSD, the 2007 
monitored design values in the Philadelphia Area range from 88 to 93 
ppb, with the design value at the Fairhill monitor in Cecil County, MD 
at 93 ppb. Additionally, the present air quality (2007 design value 93 
ppb, 2008 preliminary design value 92 ppb) also

[[Page 21591]]

does not support the hypothesis presented in Maryland WOE analysis that 
the models are incorrect. Present air quality concentrations should be 
closer to the standard since the Philadelphia Area is only two years 
away from its attainment deadline.
    The WOE analysis presented in the Maryland SIP revision for the 
Philadelphia Area includes the following:
     An analysis of ambient air monitoring measurements and 
trends;
     An analysis of the regional nature of ozone transport;
     An analysis of model sensitivity to emission changes; and
     An analysis of the potential benefits of alternative 
control strategies (e.g., an aggressive telecommuting strategy).
    The basic premise of most all of the WOE arguments in the Maryland 
SIP revision for the Philadelphia Area is that the Community Multi-
scale Air Quality Model version 4.4 (CMAQ), when applied according to 
EPA guidance, under-predicts the reduction in ozone that can be 
expected from the emission control strategies contained in the SIP.
    For example, the Maryland SIP revision cites a study of the 2003 
Northeast Blackout (Marufu et al., 2004) that suggests the model under-
predicts the amount of ozone reduction that actually occurred during 
the electrical blackout. During the blackout, measured ozone was lower 
than expected because some power plants and some other major sources of 
ozone-forming compounds were shut down. There are at least two ways to 
determine what ozone concentrations would have been if the major 
sources of ozone-forming compounds operated on that day. One way is to 
model the changes with the power plants operating, and with the power 
plants not operating and comparing the results. The other is by 
comparing the blackout day with a past high ozone day with similar 
weather and wind patterns, when the power plants operated. The research 
cited by Maryland compared the blackout episode with days in the past 
with ostensibly similar meteorology, when the sources were operating. 
However, EPA concludes that the past episode when the power plants 
operated is not similar enough to the blackout day to draw a valid 
comparison. The comparison day had winds coming from areas that were 
not the ones most affected by the blackout, so the comparison is not 
convincing. There may be other days that were more similar to the 
meteorological patterns on the blackout day, but the fact remains that 
no two days are the same. The emissions precursors, ozone, and 
meteorological patterns on the day of and the days preceding the 
blackout will never occur the same way twice.
    Maryland cited the work of other researchers (Hu et al., 2006) who 
ran a photochemical grid model on the blackout day with and without the 
blacked-out emissions. Based on this work and the work cited above 
(Marufu et al., 2004) Maryland observed the modeled change in ozone was 
smaller than the change in ozone measured between the comparison day 
and the blackout day. As a result, Maryland then concluded that the 
model did not reduce ozone as much between the blackout and non-
blackout emissions. Thus, this may be a sign that the model is not 
responsive enough to emission reductions. However, the differences 
between the modeled change and the change between monitored days may be 
because a sufficiently similar day was not found to determine how much 
ozone was really reduced on the blackout day. Another point is that 
these studies did not look at the effect of the blackout on air quality 
in the urban nonattainment areas like those featured in this notice. 
There is no comparison using modeling of these blackout days and 
similar days with the goal of determining the effect of blacked out 
sources on ozone in the northeast corridor's urban areas or other 
studies that would have attempted to explain and perhaps quantify the 
extent of the transport issue in the states' application of the 
photochemical grid model.
    After careful review of these studies, EPA has determined that 
there are significant uncertainties in the Maryland SIP revision 
technical analysis and therefore does not accept Maryland's conclusion 
that the modeling system under-predicts changes in ozone as emissions 
change. Arguments in Maryland SIP revision that the model may not give 
full credit for emission reductions are supported by limited modeling 
work. Maryland has not tested their hypothesis with their own modeling. 
EPA believes any additional ozone reduction, beyond what is predicted 
by the photochemical modeling, is likely to be far less than the 5 to 7 
ppb claimed in the Maryland SIP revision. Therefore, EPA believes that 
Maryland's adjustment to the photochemical grid modeling results is not 
supported by the information provided.
    With respect to the second prong and putative reductions from 
voluntary measures, EPA does not believe these are likely to reduce 
ozone enough to reach the standard by 2010. Furthermore, Maryland has 
not committed to implement the voluntary measures by the 2009 ozone 
season. Consequently, EPA cannot attribute much in the way of reduction 
to these measures. This issue is discussed further in the TSD, in the 
section entitled ``Benefits of Alternative/Voluntary Control 
Strategies.''
    The overarching reason why EPA is not persuaded that the WOE 
results are robust enough to predict that the Philadelphia Area will 
attain the standard is that the information and calculations provided 
in the Maryland SIP revision selectively emphasize methods or data that 
support the claim that the nonattainment areas could attain the 
standard by the deadline, while ignoring equally legitimate methods 
that would tend to support the modeling results that do not predict 
attainment. The ``sufficiently convincing'' WOE analysis our guidance 
suggests is needed when an area's design value is above 88 ppb, should 
not be based on a one-sided consideration of only those alternatives 
that tend to show that and area will attain the ozone standard. To be 
``sufficiently convincing,'' the WOE should evaluate other reasonable 
variations on EPA's methods that reinforce the modeling results that 
predict the Philadelphia Area will not attain the ozone standard by 
2010. Although Maryland has provided a WOE analysis it supports its 
case of attainment in 2010, EPA's evaluation, as set forth at length in 
the TSD, concludes that the WOE does not demonstrate that the proposed 
adjustments to the photochemical grid model's attainment year forecast 
will give a more accurate answer than the calculations based on EPA's 
recommendations in Sections 2.3 and 7.2 of its modeling guidance.
    In general, EPA's conclusions concerning the modeled attainment 
demonstration and WOE analysis provided in the Maryland SIP revision 
for Cecil County can be summarized from the TSD as follows:
     The modeling used in the Philadelphia Area applies an 
appropriate photochemical grid model and follows EPA's guidance 
methods, but does not predict attainment in June 2010.
     Regardless of the issues raised by Maryland regarding the 
performance of EPA's recommended air quality models, the air quality 
measured during 2007 exceeded the ozone standard by a significant 
margin. Even a linear comparison of the percentage of additional 
emission reductions planned by the state with the needed improvement in 
air quality between 2007 and 2009 indicates it is unlikely

[[Page 21592]]

that air quality will improve enough to meet the ozone standard by 
2010. Preliminary data from the 2008 ozone season also does not support 
demonstration of attainment by 2010.
     When comparing the measured ozone concentrations in 2007 
and (preliminary) 2008 data to concentrations predicted for 2009, using 
EPA's recommended application of the photochemical grid modeling, the 
photochemical grid model does not exhibit the magnitude of inaccuracies 
suggested in the Maryland SIP revision.
     In order to insure attainment, Maryland suggested that 
there are additional measures that can achieve emission reductions 
which were not included in the original photochemical modeling 
analysis. However, the amount of potential air quality benefit from 
these measures is difficult to estimate with any degree of certainty. 
Based on EPA's evaluation of the potential ozone benefits these 
additional measures may provide for the Philadelphia Area, attainment 
of the ozone standard in 2010 cannot be achieved through the adoption 
of these measures.
     The Philadelphia Area modeling greatly relied on research 
which evaluated the impact of a widespread power blackout to develop an 
alternative approach to estimating anticipated air quality improvements 
from upwind power plants. While EPA believes that this approach 
provides some insight into the transport of ozone precursors, a 
critical review of all the research available to EPA leads EPA to 
disagree with Maryland's premise that the 2009 modeled design values 
should be adjusted downward for alleged model under-predictions of 
ozone concentration reductions from emission reductions.
    A detailed discussion of the EPA's evaluation of the modeled 
attainment demonstration and WOE analysis contained in Maryland SIP 
revision for Cecil County is located in the TSD entitled, Technical 
Support Document For the Modeling and Weight of Evidence (WOE) Portions 
of the Document Entitled ``Cecil County, Maryland 8-Hour Ozone State 
Implementation Plan and Base Year Inventory SIP Revision: 07-05 June 
15, 2007.''
    EPA has carefully evaluated the information provided by Maryland 
and other information it deems relevant to help predict what the air 
quality is likely to be by the 2009 ozone season. After careful 
consideration of all the relevant information, EPA finds that there is 
not sufficiently convincing evidence that the Philadelphia Area will 
attain the 8-hour ozone NAAQS in 2010. The Maryland SIP revision for 
Cecil County does not satisfy the Clean Air Act requirement that State 
Implementation Plans provide for attainment of the NAAQS by the 
applicable attainment date of June 2010.

V. What Are the Consequences of a Disapproved SIP?

    This section explains the consequences of a disapproval of a SIP 
under the CAA. The CAA provides for the imposition of sanctions and the 
promulgation of a Federal Implementation Plan if states fail to submit 
a plan that corrects any deficiencies identified by EPA in its 
disapproval.

A. What Are the CAA Provisions for Sanctions?

    If EPA disapproves a required SIP or component of a SIP for an area 
designated nonattainment, such as the Attainment Demonstration SIP, 
section 179(a) provides for the imposition of sanctions unless the 
deficiency is corrected within 18 months of the final rulemaking of 
disapproval. The first sanction would apply 18 months after EPA 
disapproves the SIP if a State fails to make the required submittal 
which EPA proposes to fully or conditionally approve within that time. 
Under EPA's sanctions regulations, 40 CFR 52.31, the first sanction 
would be 2:1 offsets for sources subject to the new source review 
requirements under section 173 of the CAA. If the State has still 
failed to submit a SIP for which EPA proposes full or conditional 
approval 6 months after the first sanction is imposed, the second 
sanction will apply. The second sanction is a limitation on the receipt 
of Federal highway funds.

B. What Are the CAA's FIP Ramifications if a State Fails To Submit an 
Approvable Plan?

    In addition to sanctions, if EPA finds that a State failed to 
submit the required SIP revision or disapproves the required SIP 
revision, or a portion thereof, EPA must promulgate a FIP no later than 
2 years from the date of the finding if the deficiency has not been 
corrected within that time period.

C. What Are the Ramifications Regarding Conformity?

    One consequence of EPA's disapproval of a control strategy SIP is a 
conformity freeze whereby affected Metropolitan Planning Organizations 
(MPOs) cannot make new conformity determinations on long range 
transportation plans and transportation improvement programs (TIPs). If 
we finalize the disapproval of the attainment demonstration SIP, a 
conformity freeze will be in place as of the effective date of the 
disapproval without a protective finding of the budget. See, 40 CFR 
93.120(a)(2). This means that no transportation plan, TIP, or project 
not in the first four years of the currently conforming transportation 
plan and TIP or that meet the requirements of 40 CFR 93.104(f) during a 
12-month lapse grace period \2\ may be found to conform until another 
attainment demonstration SIP is submitted and the motor vehicle 
emissions budgets are found adequate or the attainment demonstration is 
approved. In addition, if the highway funding sanction is implemented, 
the conformity status of the transportation plan and TIP will lapse on 
the date of implementation of the highway sanctions. During a 
conformity lapse, only projects that are exempt from transportation 
conformity (e.g., road resurfacing, safety projects, reconstruction of 
bridges without adding travel lanes, bicycle and pedestrian facilities, 
etc.), transportation control measures that are in the approved SIP and 
project phases that were approved prior to the start of the lapse can 
proceed during the lapse. No new project-level approvals or conformity 
determinations can be made and no new transportation plan or TIP may be 
found to conform until another attainment demonstration SIP is 
submitted and the motor vehicle emissions budget is found adequate.
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    \2\ Additional information on the implementation of the lapse 
grace period can be found in the final transportation conformity 
rule published on January 24, 2008, (73 FR 4423-4425).
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VI. What Is EPA's Conclusion?

    EPA is proposing to disapprove the 8-hour ozone attainment 
demonstration plan for Cecil County, which is the Maryland portion of 
the Philadelphia Area submitted by MDE on June 4, 2007, because 
Maryland's attainment demonstration (modeling results and WOE) for 
Cecil County does not demonstrate with sufficiently convincing evidence 
that the Philadelphia Area will attain the NAAQS by the June 2010 
deadline. EPA is deferring action at this time on other SIP elements 
submitted by Maryland that are related to the attainment demonstration, 
specifically, the RFP plan, reasonably available control measures 
analysis, contingency measures, on-road motor vehicle emission budgets, 
and the 2002 base year emissions inventory, which will be addressed in 
separate rulemakings. EPA

[[Page 21593]]

is soliciting public comments on the issues discussed in this document. 
These comments will be considered before taking final action.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and 
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection burdens but simply disapproves certain State 
requirements for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

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. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector.'' EPA has determined that the proposed 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 action proposes to 
disapprove pre-existing requirements under State or local law, and 
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

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), 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.''
    This action does not have federalism implications. It 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 Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it because it is not an economically significant 
regulatory action based on health or safety risks subject to Executive 
Order 13045 (62 FR 19885, April 23, 1997). This proposed SIP 
disapproval under section 110 and subchapter I, part D of the Clean Air 
Act will not in-and-of itself create any new regulations but simply 
disapproves certain State requirements for inclusion into the SIP.

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

    This action is not subject to Executive Order 13211 (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(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide

[[Page 21594]]

Congress, through the Office of Management and Budget explanations when 
the Agency decides not to use available and applicable voluntary 
consensus standards.
    EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the Clean Air Act. Accordingly, this action merely proposes to 
disapprove certain State requirements for inclusion into the SIP under 
section 110 and subchapter I, part D of the Clean Air Act and will not 
in-and-of itself create any new requirements. Accordingly, it does not 
provide EPA with the discretionary authority to address, as 
appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898.
    In addition, this proposed rule pertaining to the Cecil County 8-
hour ozone attainment demonstration plan does not have tribal 
implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the SIP is not approved to apply in Indian 
country located in the state, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Nitrogen dioxide, Ozone, Incorporation by reference, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: April 28, 2009.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. E9-10677 Filed 5-7-09; 8:45 am]
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