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Proposed Rule

Approval and Promulgation of Air Quality Implementation Plans; Maryland; Redesignation of Kent and Queen Anne's Counties Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve a redesignation request and a State Implementation Plan (SIP) submitted by the State of Maryland. The SIP revision establishes a maintenance plan for Kent and Queen Anne's Counties that provides requirements for continued attainment of the one-hour ozone National Ambient Air Quality Standard (NAAQS) for the next 10 years.

DATES:

Written comments must be received on or before September 1, 2004.

ADDRESSES:

Submit your comments, identified by MD160-3107 by one of the following methods:

A. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

B. E-mail: morris.makeba@epa.gov.

C. Mail: Makeba Morris, 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. MD160-3107. EPA's policy is that all comments received will be included in the public docket without change, 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 regulations.gov or e-mail. The Federal 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 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 Start Printed Page 46125encryption, and be free of any defects or viruses.

Copies of the documents relevant to this action are available 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; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue, NW., Room B108, Washington, DC 20460; and Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland, 21230.

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FOR FURTHER INFORMATION CONTACT:

Rose Quinto, (215) 814-2182, or by e-mail at quinto.rose@epa.gov.

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SUPPLEMENTARY INFORMATION:

On February 9, 2004, the Maryland Department of the Environment (MDE) formally submitted a redesignation request for Kent and Queen Anne's Counties ozone nonattainment area to attainment of the one-hour NAAQS for ozone. At the same time, Maryland submitted a maintenance plan for Kent and Queen Anne's Counties as a SIP revision, to assure continued attainment over the next 10 years.

I. Background

Kent and Queen Anne's Counties were designated as marginal ozone nonattainment areas on November 6, 1991. Under section 107(d)(3)(E) of the CAA, the following five criteria must be met for an ozone nonattainment area to be redesignated to attainment:

1. The area must meet the ozone NAAQS;

2. The area must have a fully approved SIP under section 110(k);

3. The area must show improvement in air quality due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable regulations;

4. The area must have a fully approved maintenance plan under section 175A of the CAA; and

5. The area must meet all requirements applicable under section 110 and part D.

II. Summary of Maryland's Submittal

The following is a brief description of how the State of Maryland's February 9, 2004 submittal fulfills the five requirements of section 107(d)(3)(E). EPA will discuss its evaluation of the maintenance plan under its analysis of the redesignation request. A more detailed description of the state submittal and EPA's evaluation are included in a Technical Support Document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

A. Attainment of the Ozone NAAQS in Kent and Queen Anne's Counties

Section 181(b)(2)(A) of the CAA states that the EPA Administrator shall determine whether the area has achieved the standard based on the design value of that area. There is one ozone monitor that measures the air quality in Kent and Queen Anne's Counties that is located in the Millington Wildlife Management area near Massey in Kent County. The ozone monitor is a regional scale monitor for the determination of regional background concentrations of ozone. According to the Code of Federal Regulations, 40 CFR part 50, appendix H, Kent and Queen Anne's Counties have attained the ozone standard for the most recent three-year period, 2001-2003. The State of Maryland's request for redesignation for Kent and Queen Anne's Counties indicates that the data was quality assured in accordance with 40 CFR part 58. MDE uses regular precision checks, calibrations, and audits to ensure the validity of the data. MDE also uses the Aerometric Information Retrieval System (AIRS) as the permanent database to maintain its data and quality assures the data transfers and content for accuracy.

B. Fully approved SIP Under Section 110(k) of the CAA

The State of Maryland SIP submittals fall into two general categories: pre-amendment and post-amendment submittals. Pre-amendment submittals consist of SIP modifications made to meet requirements in existence prior to the enactment of the 1990 CAA amendments. These submittals are fully approved as applicable to Kent and Queen Anne's Counties. Post-amendment submittals made by MDE meet EPA criteria for approval.

The following are post-amendment requirements delineated under section 182(a) of the CAA for marginal areas and section 184(b) of the CAA for areas included in the ozone transport region (OTR) for Kent and Queen Anne's Counties:

1. A 1990 base year inventory;

2. A periodic inventory every three years after 1990 until attainment;

3. Regulations designating any 50 tons per year (tpy) volatile organic compounds (VOC) or 100 tpy for nitrogen oxides (NOX) stationary source as a major source;

4. Regulations requiring stationary sources with potential to emit above the major source threshold to undergo new source review (NSR) requirements including 1.15 to 1 offsets;

5. Regulations requiring stationary sources that emit above 25 tpy VOC or NOX to file a certified emissions statement annually;

6. Regulations requiring reasonably available control technology (RACT) on VOC and NOX sources; and

7. The inclusion of Queen Anne's County in the Enhanced Inspection and Maintenance (I/M) program because it is a part of a metropolitan statistical area greater than 200,000 population in the OTR.

MDE has met these requirements for Kent and Queen Anne's Counties through the development and implementation of the following regulations and technical documents that have been submitted to EPA as SIP submittals:

a. Expansion of RACT rules statewide (COMAR 26.11.19.02G);

b. Emissions certification requirements (COMAR 26.11.01.05-1);

c. New source review requirements (COMAR 26.11.17);

d. Enhanced I/M (COMAR 11.14.08—jointly adopted by MDE and Motor Vehicle Administration); and

e. The 1990 base year inventory.

EPA approved the 1990 base year inventory for Kent and Queen Anne's Counties along with inventories for other nonattainment areas on September 27, 1996 (61 FR 50715). MDE has supplied the following inventories to EPA through a combination of written and electronic documentation: the 1993, 1996, and 1999 periodic inventories. Additionally, Maryland exercised its option to voluntarily require Federal reformulated gasoline in all ozone nonattainment areas, including Kent and Queen Anne's Counties (COMAR 03.03.05.01—Comptroller of the Treasury, Motor Fuel Inspection Regulation). The State has approved the VOC and NOX RACT rules for sources in Kent and Queen Anne's Counties.

C. Permanent and Enforceable Reductions

A number of permanent and enforceable measures have caused emission reduction and lowered concentrations in Kent and Queen Anne's Counties. These reductions are from all source sectors:

1. Federal Motor Vehicle Control Program (FMVCP) Tier 1 tailpipe standards. Start Printed Page 46126

2. Maximum Reid Vapor pressure (RVP) of 7.8 psia for gasoline sold in Maryland in 1992 and beyond.

3. Federal reformulated gasoline program.

4. Study of growth in mobile source emissions using HPMS module of the PPSuites modeling software.

5. New emissions standards for non-road mobile sources: farm equipment, lawn and garden equipment and recreational boats.

6. Additional Tier 3 standards for non-road mobile sources: (1) Tiers 1, 2, and 3 compression-ignition standards for diesel engines greater than 50 horsepower; (2) Tiers 1 and 2 compression-ignition standards for diesel engines below 50 horsepower; (3) Phases 1 and 2 of the spark-ignition standards for gasoline engines less than 25 horsepower; and (4) Recreational spark-ignition marine engines controls.

7. Total emissions from area sources: (1) Tank truck unloading; (2) degreasing; (3) architectural surface coatings; and (4) commercial and consumer solvents.

8. Growth in point sources will be controlled through the new source review requirements for offsets.

D. Maintenance Plan for Kent and Queen Anne's Counties

1. Maintenance Plan Requirements

A maintenance plan is a SIP revision that provides maintenance of the relevant NAAQS in the area for at least 10 years after redesignation. A maintenance plan consists of the following requirements as outlined in section 175A of the CAA: (a) An attainment inventory, (b) a maintenance demonstration, (c) a monitoring network, (d) verification of continued attainment and (e) a contingency plan.

a. Attainment Inventory

Attainment inventory should include the emissions during the time period associated with the monitoring data showing attainment. MDE determined that the appropriate attainment inventory year is 2002. That year establishes a reasonable year within the three-year period block of 2001-2003 as a baseline and accounts for reductions attributable to implementation of the CAA requirements to date. This inventory is based on actual emissions for a typical peak ozone season days, which occur during the months of June, July and August.

b. Maintenance Demonstration

MDE's calculations of future emissions of VOCs and NOX from stationary and mobile sources demonstrate that future emissions will not exceed the level of the attainment inventory (see Tables 1 and 2). Future emissions levels must continue to remain at or below attainment levels for a period of 10 years after EPA redesignates the nonattainment to attainment. MDE's planning horizon for the maintenance plan is 2014.

Table 1.—Attainment Year and Projected VOC Emissions Inventories for the Kent and Queen Anne's Counties Nonattainment Area

Source Category2002 VOC Emissions (Tons per day)2014 Projected VOC Emissions (Tons per day)
On-road Mobile4.912.09
Non-road Mobile5.916.59
Area4.335.34
Point0.120.16
Total15.2714.18

Table 2.—Attainment Year and Projected NOX Emissions Inventories for the Kent and Queen Anne's Counties Nonattainment Area

Source Category2002 NOX Emissions (Tons per day)2014 Projected NOX Emissions (Tons per day)
On-road Mobile7.72.92
Non-road Mobile3.224.15
Area1.461.75
Point0.070.09
Total12.458.91

c. Monitoring Network

MDE will continue to operate the current air quality monitor in Millington in accordance with 40 CFR part 58.

d. Verification of Continued Attainment

Section 187(a)(5) of the CAA requires periodic inventories every three years for ozone nonattainment areas. These inventories will be statewide because Maryland is a part of the Northeast Ozone Transport Region. Maryland expects to compile a VOC and NOX inventory for Kent and Queen Anne's Counties every three years. MDE will be able to consult these inventories to make sure that the emissions levels remain at or below attainment inventory levels. In addition, MDE will compare actual inventories to projected emissions levels. If there are significant differences between actual and projected growth, then MDE will examine its projected methods. If warranted, MDE will revise its methods and again compare inventories. If these inventories, actual or projected, reveal that emissions actually exceed the attainment inventory, then MDE will consider implementing contingency measures.

e. Contingency Measures

According to the CAA, states that wish to redesignate nonattainment areas to attainment must include in their submittal to EPA, contingency measures which will automatically take effect should violations of the NAAQS occur in the former nonattainment area. Contingency plan measures to be considered for implementation for Kent Start Printed Page 46127and Queen Anne's Counties include three VOC model rules as additional measures that are currently adopted in Maryland. The rules are part of a Memorandum of Understanding (MOU) and resolutions signed on March 28, 2001 by the states participating in the Ozone Transport Commission (OTC). The rules have the potential to reduce emissions from consumer products, portable fuel containers, and Architectural and Industrial Maintenance (AIM) coatings.

2. Requirement for Continued Maintenance

Section 175A(b) of the CAA will also require Kent and Queen Anne's Counties to submit a revision of the SIP eight years after the original redesignation request is approved to provide for maintenance of the NAAQS for an additional 10 years following the first 10-year period.

E. Section 110 and Part D Requirements

1. Section 110 Requirements

Section 110(a)(2) of the CAA contains general requirements for nonattainment plans. Most of the provisions of this section are the same as those contained in the pre-amended CAA. The State of Maryland has fulfilled all pre-amendment CAA requirements pertaining to Kent and Queen Anne's Counties and the two nonattainment areas of Baltimore and Washington.

2. Part D Requirements

Under part D, an area's classification determines the requirements to which it is subject. Kent and Queen Anne's Counties was classified as marginal ozone nonattainment.

Part D subpart 2, entitled “Additional Provisions for Ozone Nonattainment Areas,” requires that marginal nonattinment areas, which have design values between 120-140 ppb, achieve attainment by November 23, 1993. However, a one-year extension of the deadline can be granted under certain conditions (section 181(a)(5)). Kent and Queen Anne's Counties attained the standards by the fall of 1994.

Section 182(a)(1) under part D requires the development of a “comprehensive, accurate, and current inventory of actual emissions from all sources, and a permit program for new and modified major stationary sources.” MDE submitted its 1990 base year emissions inventory on September 30, 1993 for Kent and Queen Anne's Counties and was approved by EPA on September 27, 1996 (61 FR 50715). The last inventory update was the 1999 periodic inventory. In addition, MDE has a fully implemented new source review program on February 12, 2001 (66 FR 9766).

Conformity Process

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirements to determine conformity applies to transportation plans, programs and projects developed, funded or approved. Section 176 further provides that state conformity revisions must be consistent with the Federal conformity regulations that the CAA required EPA to promulgate. Although Federal conformity rule changes are still pending, EPA believes that it is reasonable to interpret conformity requirements as not applying for purposes of evaluating a redesignation request under section 107(d) so that EPA may approve an ozone redesignation request notwithstanding the lack of a fully approved conformity SIP. The rationale for this is based on a combination of two factors. First, Federal conformity rules require performance of conformity analyses even in the absence of Federally approved states rules. Second, conformity provisions of the CAA continue to apply after redesignation because areas are subject to a maintenance plan which requires compliance with mobile budgets. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and must implement conformity under Federal rules if state rules are not approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request.

Kent and Queen Anne's Counties are not members of any metropolitan planning organization (MPO). Currently, the Maryland Department of Transportation (MDOT) acts on behalf of the counties to include projects in the two counties in the State Transportation Improvement Program (STIP). Under 40 CFR 51.448 as part of the SIP process, this maintenance plan will establish an emission budget to be used for transportation conformity purposes. This motor vehicle emissions budget (MVEB) establishes a cap on emissions that cannot be exceeded by predicted highway and transit vehicle emissions. For the period from 2002 until 2014, the MVEB for Kent and Queen Anne's Counties combined is 4.91 tpd VOC and 2.92 tpd NOX. Some projects may help to reduce mobile source ozone precursor emissions by leading to fewer vehicle trips in Kent and Queen Anne's Counties. These types of projects include increased commuter bus service and additional park and ride lot spaces.

III. Proposed Action

EPA is proposing to approve the State of Maryland's February 9, 2004 request for Kent and Queen's Counties ozone nonattainment area to attainment of the one-hour NAAQS for ozone because the requirements for approval have been satisfied. EPA is also proposing to approve the associated maintenance plan for this area submitted by Maryland, as required under section 175A of the CAA, as a revision to the Maryland SIP, which was submitted on February 9, 2004. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under state law 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 (Pup. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or Start Printed Page 46128on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order.

This rule proposing to approve the redesignation of Kent and Queen Anne's Counties ozone nonattainment area to attainment and to approve the associated maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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List of Subjects

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

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Dated: July 26, 2004.

Thomas C. Voltaggio,

Acting Regional Administrator, Region III.

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[FR Doc. 04-17499 Filed 7-30-04; 8:45 am]

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