[Federal Register: December 28, 2004 (Volume 69, Number 248)]
[Rules and Regulations]
[Page 77639-77642]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de04-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R03-OAR-2004-DC-0003; FRL-7853-9]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia; Excess Volatile Organic Compound and Nitrogen
Oxides Emissions Fee Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve revisions to the
District of Columbia (District) State Implementation Plan (SIP) for
ozone. The rule requires major stationary sources of volatile organic
compounds (VOC) and nitrogen oxides (NOX) in the District,
which is part of the Metropolitan Washington DC Severe Ozone
Nonattainment Area, to pay a fee to the District if the area fails to
attain the one-hour national ambient air quality standard for ozone by
November 15, 2005. The fee must be paid beginning in 2006, and in each
calendar year thereafter, until the area is redesignated to attainment
for the pollutant ozone. The District of Columbia submitted this rule
on April 16, 2004, pursuant to the requirements of Section 110 of the
Clean Air Act.
DATES: This rule is effective on February 28, 2005, without further
notice, unless EPA receives adverse written comment by January 27,
2005. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Regional Material in
EDocket (RME) ID Number R03-OAR-2004-DC-0003 by one of the following
methods:
A. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
B. Agency Web site: http://www.docket.epa.gov/rmepub/RME, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
C. E-mail: morris.makeba@epa.gov.
D. Mail: R03-OAR-2004-DC-0003, Makeba Morris, Chief, Air Quality
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
E. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to RME ID No. R03-OAR-2004-DC-
0003. EPA's policy is that all comments received will be included in
the public docket without change, and may be made available online at
http://www.docket.epa.gov/rmepub/, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through RME, regulations.gov
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through RME or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your
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comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
RME index at http://www.docket.epa.gov/rmepub/. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in RME
or in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of material to be
incorporated by reference are available at the Air and Radiation Docket
and Information Center, U.S. Environmental Protection Agency, 1301
Constitution Avenue, NW., Room B108, Washington, DC 20460; and the
District of Columbia Department of Public Health, Air Quality Division,
51 N Street, NE., Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Catherine L. Magliocchetti, (215) 814-
2174, or by e-mail at magliocchetti.catherine@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to EPA. This supplementary information is organized
as follows.
Table of Contents
I. What Final Action Is EPA Taking?
II. Who Has To Pay These Fees?
III. How Are the Fees Calculated?
IV. Is the District of Columbia Required to Adopt an Excess Emission
Rule?
V. What Are the Exceptions to This Rule?
VI. Statutory and Executive Order Reviews
I. What Final Action Is EPA Taking?
EPA is approving a SIP revision that revises the District of
Columbia's ozone SIP. The SIP revision requires major stationary
sources of VOC and NOX in the District of Columbia, which is
part of the Metropolitan Washington DC Severe Ozone Nonattainment Area
(Area), to pay a fee to the District if the Area fails to attain the
national ambient air quality standard (NAAQS) for ozone by November 15,
2005. The fee must be paid beginning in 2006 and in each calendar year
thereafter, until the Area is redesignated to attainment for the
pollutant ozone. We are approving this rule because it is consistent
with the requirements of the Clean Air Act (Act).
EPA is publishing this rule without prior proposal because we view
this as a noncontroversial amendment and we anticipate no adverse
comment, since no comments were received during the District's
regulatory process. However, in the ``Proposed Rules'' section of
today's Federal Register, we are publishing a separate document that
will serve as the proposal to approve the SIP revision if adverse
comments are filed. This rule will be effective on February 28, 2005,
without further notice unless EPA receives adverse comment by January
27, 2005. If EPA receives adverse comment, EPA will publish a timely
withdrawal in the Federal Register informing the public that the rule
will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
II. Who Has To Pay These Fees?
This rule applies to major stationary VOC and NOX
sources located in the District of Columbia. The District of Columbia's
definition of a ``major stationary source'' is found at 20 DCMR section
199.1. In a separate action, EPA is approving this definition as part
of the District of Columbia's ozone SIP. Pertaining to the application
of this excess emissions fee for entities in the District of Columbia,
a major stationary source is defined as ``any stationary source of air
pollutants that emits, or has the potential to emit, twenty five (25)
tons per year or more of oxide of nitrogen or volatile organic
compounds * * *'' These sources are subject to this emissions fee rule.
III. How Are the Fees Calculated?
The fee is initially set at $5,000 per ton of VOC or NOX
emitted by the source during the previous calendar year in excess of
80% of the baseline amount. The fee is to be adjusted annually,
beginning in 1991, by the percentage by which the consumer price index
has been adjusted. The baseline is the lower of the source's actual or
allowable VOC or NOX emissions during calendar year 2005.
IV. Is the District of Columbia Required To Adopt an Excess Emission
Fee Rule?
Under sections 182(d)(3), (e), and 185 of the Clean Air Act (the
Act), states are required to adopt an excess emissions fee regulation
for ozone nonattainment areas classified as severe or extreme. This
regulation requires major stationary sources of VOC in the
nonattainment area to pay a fee to the state if the area fails to
attain the standard by the attainment date set forth in the Act. The
District of Columbia is classified as severe nonattainment area for
ozone. Section 182(f) of the Act requires states to apply the same
requirements to major stationary sources of oxides of nitrogen
(NOX) as are applied to major stationary sources of VOC.
V. What Are the Exceptions to this Rule?
As per section 185 of the Clean Air Act, the District of Columbia's
regulation provides for an exception of the fee during any year that is
treated as an extension year under section 181(a)(5) of the Clean Air
Act.
VI. What Administrative Requirements Must EPA Consider?
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
[[Page 77641]]
Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
standard, 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.).
VII. What Congressional Review Act Requirements Must EPA Consider?
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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
VIII. What Are the Requirements for Judicial Review of This Action?
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 February 28, 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 approval of the District of Columbia's Severe Ozone
Nonattainment Area Fee SIP revision, as required under section 185 and
182(f) of the Clean Air Act, 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, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: December 14, 2004.
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 J--District of Columbia
0
2. In Sec. 52.470, the table in paragraph (c) is amended by adding the
entry for Chapter 3, Section 307, after existing entry Section 8-
2:720(c) to read as follows:
Sec. 52.470 Identification of plan.
* * * * *
(c) * * *
EPA-Approved District of Columbia Regulations
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State
State citation Title/subject effective EPA approval date Additional explanation
date
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District of Columbia (DCMR), Title 20--Environment
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* * * * * * *
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Chapter 3 Operating Permits
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Section 307......................... Enforcement for Severe 4/01/04 12/28/04 [Insert page number Provision allowing for the District
Ozone Nonattainment Areas. where the document begins] to collect penalty fees from major
stationary sources if the
nonattainment area does not attain
the ozone standard by the statutory
attainment date.
* * * * * * *
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[FR Doc. 04-28191 Filed 12-27-04; 8:45 am]
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