[Federal Register: May 13, 2005 (Volume 70, Number 92)]
[Rules and Regulations]
[Page 25719-25724]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my05-12]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 cripps.christopher@epa.gov.
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
\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.''
---------------------------------------------------------------------------
(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.''
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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]
BILLING CODE 6560-50-P