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Federal Register/VoL. 70, 'No. 92/Friday Mhy' 13, ,2005-/Rul6s "ari 'R gAlati'ois

ENVIRONMENTALPROTECTIONI

ENVIRONMENTAL. PROTECTION

AGENCY

40 CFR Part 52

[RME NO. R03-OAR-2004-DC-0009, R03-

OAR-2004-DC-0010; FRL-7910-3]

Approval and Promulgation of Air

Quality Implementation Plans; District

of Columbia, Maryland, Virginia; 1-

Hour Ozone Attainment Plans, Rate-ofProgress Plans, Contingency

Measures, Transportation Control

Measures, VMT Offset, and 1990 Base

Year Inventory

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving State

Implementation Plan (SIP) revisions

submitted by the District of Columbia

(the District), the State of Maryland and

the Commonwealth of Virginia. These

revisions include the 1996-1999 and

1999-2005 rate-of-progress (ROP) plans,

changes to the 1990 base year inventory,

a contingency measures plan, certain

transportation control measures (TCMs),

and a demonstration that each SIP

contains any necessary transportation

control measures to offset any growth in

emissions from growth in vehicle miles

traveled (VMT) and to demonstrate ROP

and attainment of the 1-hour national

ambient air quality standard (NAAQS)

for ozone. These revisions also include

the District's and Virginia's attainment

plan for the Washington, DC severe 1-

hour ozone nonattainment area (the

Washington area). The intended effect of

this action with respect to the following

SIP revisions, all of which were

submitted to satisfy the SIP

requirements of 1lhour ozone " ., .

nonattainment areas classified as severe,

is to: approve the District's, Maryland's

and Virginia's modeling demonstration,

which includes the analysis based upon

photochemical grid modeling, that the

Washington area will attain the 1-hour

ozone NAAQS; approve the District's,

Maryland's and Virginia's. post-1996

ROP plans, 1990 base year inventory

revisions, TCMs, VMT offset and

contingency measures SIP revisions;

approve the District's and Virginia's

-attainment plans for the Washington

area; and, determine that Maryland's

SIP for the Washington area contains

,adopted control measures and

determine that these measures fully

satisfy the emission reductions relevant

to attainment of the 1-hour ozone

NAAQS.

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.goy/rmepubt. Once in

the system, select "quick search," then

key in. the appropriate RME

identification numbet. 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 material s are

available either electronically in RME or

in haid copy for public inspecti6n :..

during normal business hours at the AirProtection Division, U.S Environm6ntal

Protection Agency, Region III, 1650

Arch Street, Philadelphia, Pennsylvania

19103. Copies of the State submittal are

available at the District of Columbia

Department of Public Health, Air

Quality Division, 51 N Street, NE.,

Washington, DC 20002; the Maryland

Department of the Environment, 1800

Washington Boulevard, Suite 705,

Baltimore, Maryland 21230; and the

Virginia Department of Environmental

Quality, 629 East Main Street,

Richmond, Virginia 23219.

- FOR FURTHER INFORMATION CONTACT:

Christopher Cripps, (215) 814-2179, or

by e-mail at cripps.christopher@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background,

A. Summary

On January 12, 2005 (70 FR 2085),

EPA published a notice of proposed

rulemaking (NPR) for the District, the

State of Maryland and the

Commonwealth of Virginia (the States).

The NPR proposed approval of the

1996-1999 and 1999-2005 ROP plans,

changes to the 1990 base year inventory,

a contingency measures plan, certain

TCMs, and a demonstration that each

SIP contains sufficient transportation

control measures to offset any growth in

emissions from growth in VMT as

necessary to demonstrate ROP and

attainment of the 1-hour NAAQS for

ozone.

tables 1 and 2 identify the initial

submittal dates and the dates on which

the States's submitted amendments for

these plans and measures covered by

our January 12, 2005 NPR:

TABLE 1 .- PosT 1996-1999 ROP PLANS FROM THE STATES

DC - MD' VA

Initial submittal dates ...................................................... November 10, 1997 ........... December 24, 1997 ........ December 19, 1997.

Amended submittal dates ......................................... ; ...... May 25, 1999 .................... May 20, 1999 .................... May 25, 1999.

The post 1996-1999 ROP Plan SIP

revisions also include certain TCMs,

specifically those TCMs identified in

Appendix H of the States submittals.

TABLE 2.-ATFAINMENT PLAN, 1999-2005 ROP PLANS,. CONTINGENCY MEASURES PLAN, AMENDMENTS TO THE 1990

BASE YEAR INVENTORY, AND VMT OFFSET PLANS

DC MD2 VA

Initial submittal dates ............ .................................... September 5, 2003 ............ September 2, 2003 ............ August 19, 2003.

Amended submittal dates ...................... February 25, 2004 ............. February 24, 2004 ............. February 25, 2004.

Maryland SIP revision submittals labeled as 97-

04 and 99-12.

2 Maryland's identifiers for these SIP revision

submittals are SIP revisions numbers 03-05 and 04-

01.

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Hereafter, the SIP revisions listed in area.3 The February 2004 SIP revisions in 1998 with later supplements. These

Table 2 of this document will be called additionally include certain TCMs, initial attainm6nt plans were the subject

the "February 2004 SIP revisions." The namely those TCMs identified in of two earlier rulemaking actions, 66 FR

States" February 2004 SIP revisions Appendix J of the SIP revision 586, January 3, 2001, and 68 FR 19106,

include the post 1999-2005 ROP plans, submittals. April 17, 2003. The dates of submittal

the VMT Offset SIPs, revisions to the The February 2004 SIP revisions also are shown in Table 3 which repeats the

1990 base year emissions inventory, and included the States' revised attainment information found in Table 2 of both the

the contingency measures plans for ROP plans for the Washington area. The January 3, 2001 and April 17, 2003 final

and attainment for the Washington States had initially submitted an rules.

attainment plan for the Washington area

TABLE 3.-PREVIOUS ATTAINMENT DEMONSTRATIONS SUBMISSIONS

DC MD4 VA

Initial submittal dates ............ , .......................................... April 24, 1998 .......... April 29, 1998 .......... April 29, 1998.

Amendment dates ................................. ....................... . October 27, 1998 ........ August 17, 1998 ................ August 18, 1998.

Supplemental dates ........................................................ February 16, 2000 ............. February 14, 2000 ............. February 9, 2000.

Supplemental dates ........................ -.. March 22, 2000 ................. March 31, 2000 ................. March 31, 2000.

Hereafter those revisions listed in

Table 3 will be called the "pre-2001 SIP

revisions" attainment plan." 5 Hereafter

we refer to the collective grouping of

those SIP revisions listed in Tables 1

and 3 of this document as the "pre-2001

SIP revisions."

In their February 2004 SIP revisions,

each of the States resubmitted to EPA

the attainment plan contained in its

prior SIP revisions' attainment plan

along with additional elements required

for a severe area attainment plan, such

as a post-1999 ROP plan and the VMT

offset SIPs, 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

previous SIP revisions' attainment plan.

We proposed action on these

attainment plans in a separate NPR

published in the Federal Register on

February 9, 2005 (70 FR 6796). In our

February 9, 2005, NPR, we also

proposed approval of the attainment

plan SIP revisions submitted by the

District and Virginia.

In our February 9, 2005, NPR, with

respect to the State of Maryland's

attainment plan for the Washington

area, we proposed approval contingent

upon the State submitting an approvable

SIP revision for certain'penalty fees,

required by the Clean Air Act (the Act),

prior to the time EPA would issue a

final rule on Maryland's attainment.

plan. In the alternative, we 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

3 In this document a SIP revision which

demonstrates the state's SIP contains any necessary

transportation control measures to offset any growth

in emissions from growth in VMT needed to

demonstrate ROP and attainment of the 1-hour

NAAQS for ozone is termed a "VMT offset SIP."

attainment plan which would allow the

motor vehicle emissions budgets -

(MVEBs) identified in the attainment

plan SIP to be used for demonstrating

transportation conformity purposes.

EPA has taken a final action on the

Maryland's attainment plan for the

Washington area in a separate final rule

which is published elsewhere in today's

Federal Register. In that final rule, EPA

is disapproving the Maryland's

attainment plan for the Washington area

because Maryland failed to submit the

required fee program, and, pursuant to

40 CFR 93.120(a), and issuing a

protective finding to the February 2004

SIP revisions' attainment plan. As we

explain in that rule, the protective

finding will allow Maryland to use the

MVEBs contained in the disapproved

SIP for transportation conformity . .

purposes pursuant to 40 CFR 93.120. In

this rule we are approving the modeling

demonstration, which includes an

analysis based upon photochemical grid

modeling (the modeled demonstration

of attainment and adjunct weight-ofevidence (WOE) analysis), contained in

the District's, Maryland's and Virginia's

February 2004 SIP revisions. We also '

determine that based upon this modeled

demonstration of attainment and

adjunct WOE analysis Maryland's

submitted SIP for the Washington area

contains adopted control measures that

fully satisfy the emission reduction

requirements relevant to the

Washington area attaining the 1-hour

ozone NAAQS by NQvember 15, 2005.

This determination supports issuance of

the protective finding for transportation

4 Maryland's identifiers for the February 14, 2000

and March 31, 2002 submittals are SIP revisions

numbers 00-01 and No. 00-02.

5 Only a commitment to revise the motor vehicle

emissions budgets (MVEBs) found in the March

2000 SIP revisions listed in Table 3 of this

conformity purposes pursuant to 40 CFR

93.120.

B. Relationship to Past SIP Revisions

and Litigation

1. Prior SIP Revisions

During 1998, the States submitted an

attainment plan for the Washington area

and supplemented these submittals on

the dates listed in Table 3 of this

document. These 1998 and 2000

calendar year revisions cumulatively

constituted the attainment plan for the

Washington area which at the time was

classified as being in "serious"

nonattainment of the 1-hour ozone

NAAQS. In the aggregate these

attainment plans consisted of a

photochemical modeling demonstration

and adjunct WOE analyses that

demonstrated attainment of the ozone

NAAQS; projected emissions

inventories showing that the States

collectively had adopted sufficient

measures to support the demonstration

of attainment; attainment year MVEBs;

and a commitment to -conduct and

submit a mid-course review t6 EPA by

a date certain. As noted previously, the

March 2000 SIP revisions consisted of a

commitment to revise the MVEBs oneyear after EPA released the MOBILE6

model and the outyear budgets. These

pre-2001 SIP revisions' attainment plans

were submitted to demonstrate that the

Washington area would attain the 1-

hour ozone NAAQS by no later than

*November 15, 2005. On January 3, 2001,

EPA approved the pre-2001 SIP

revisions and extended the attainment

date for the Washington area (then a

document were subject to the January 3, 2001 and

April 17, 2003 final rules. The portion of these SIP

revisions related to MVEBs for years after 2005

("outyear budgets") was not subject to these

actions.

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serious nonattainment area) until

November 15, 2005.

2. January 3, 2001 Final Rule Vacated

A petition for review challenging the

January 3, 2001 final approval was filed

by the Sierra Club. The petition alleged,

among other things, that EPA could not

lawfully extend the attainment date of a

serious ozone nonattainment area past

November 15, 1999 without

reclassifying the area as severe

nonattainment, could not approve a SIP

for an area with a 2005 attainment date

unless the plan provides for ROP

reductions after 1999 and could not

approve a SIP that does not include

contingency measures. On July 2, 2002,

the U.S. Court of Appeals for the District

of Columbia Circuit (the Court of

Appeals) issued an opinion to vacate

our rule extending the attainment date

and approving the attainment plans and

1996-1999 ROP plans. Among other

things, the Court of Appeals found that'

EPA had no authority to extend the

attainment date of a serious ozone

nonattainment area without

reclassifying the area as severe

nonattainment, and could not approve a

SIP for an area With a 2005 attainment

date unless the plan provides for ROP

reductions until the attainment date.

See Sierra Club v. Whitman, 294 F.3d

155, 160-163 (D.C. Cir. 2002). The Court

of Appeals also found that EPA could

not approve the pre-2001 SIP revisions

because a contingency measures plan,

which is required under section

172(c)(9) of the Act, is one of the

elements listed under section 172(c) as

a requirement for a revised SIP for an

area in nonattainment. See Id. at 164.

3. Nonattainment Area Plan

Requirements

Under section 172(c) of the Act, a

revised SIP for an area in nonattainment

must also include elements such as an

attainmenf demonstration and- all

reasonably available control measures

(RACM), reasonable further progress

toward attainment, an emissions

inventory, and new source permitting

programs. Under section 182(d), a

revised SIP for an area in severe ozone

nonattainment must include reasonably

available control technology (RACT) on,

and new source review (NSR)

permitting of, major stationary sources

of nitrogen oxides (NOx) emissions and

volatile organic compound (VOC)

emissions with a potential to emit of 25

tons per year (TPY) or greater; new

source permitting offset ratios of 1.3 to

1 or greater; a VMT Offset SIP; a ROP

plan to achieve a 15 percent reduction.

in VOC emissions by 1996; plans for

achieving an average of a 3 percent per

year ROP reductions after 1996 through

the attainment date; and a SIP revision

to impose the penalty fees specified in

section 185 of the Act.

EPA believes Sierra Club v. Whitman,

294 F.3d 155, can be read to require that

before we can approve the overall

revised SIP for the nonattainment area

we nfust approve all of the elements

applicable to the area under sections

172(c) and 182 of the Act. In thisdocument, the overall SIP for the

nonattainment area will be termed the

"attainment plan."

Un der section 182 of the Act, a

demonstration that the SIPs for a

nonattainment area, as revised, will

provide for attainment of the 1-hourozone NAAQS by November 15, 2005 is

a separate component of the overall

attainment plan. See 42 U.S.C.

75-11a(c)(2)(A). Such a demonstration

for a severe ozone nonattainment area

must be based upon photochemical grid

modeling (or similarly effective method)

and must show that the submitted

demonstration relies upon or contains

adopted control measures that fully

satisfy the emission reduction

requirements relevant to demonstrating

attainment of the 1-hour ozone NAAQS

by November 15, 2005. Id.

4. Washington Area Reclassified to

Severe Nonattainment

.On January 24, 2003 (68 FR 3410),

EPA reclassified the Washington area to

severe nonattainment because the area

failed to attain 1-hour ozone NAAQS by

the November 15, 1999 statutory

attainment date for serious areas. This

actionmade the area subject to the

additional requirements applicable to

severe areas under section 182(d) of the

Act. On April 17, 2003 (68 FR at 19107),

EPA conditionally approved the pre2001 SIP revisions (the history of

litigation on the April 17, 2003

conditional approval will be discussed

in a later paragraph of this document

titled "April 17, 2003 Final Rule

Vacated and Withdrawn").

5. 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, the States '

submitted the SIP revisions necessary to

satisfy the requirements of section

182(d) of the Act for severe areas and

EPA's conditional approval, with the.

exception of Maryland which failed to

submit a SIP revision for the section 185

penalty fee program. These SIP

revisions included February 2004 SIP

revisions. The February 2004 SIP

revisions contained the attainment plan

which consists of: (1) A photochemical

modeling demonstration and adjunct

WOE analyses to demonstrate'

attainment of the ozone NAAQS by no

later than November 15, 2005; (2)

projected emissions inventories

showing that tle States, including

Maryland, collectively 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.6 In their February 2004 SIP

revisions, each of the States resubmitted

to EPA the attainment plan contained in.

the State's pre-2001 SIP revisions'

attainment plan along with additional

elements required for a severe area

attainment plan, such as a 1999-2005

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' attainment plan.

6. 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 SIs 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 Act. On

February 3, 2.004, the Court of Appeals

issued an opinion to vacate our rule

conditionally approving the attainment

plans and 1996-1999 ROP plans insofar

as that Court found that our grant of

conditional approval was defectiv e. The

Court of Appeals denied the petition for

review in all other respects. See Sierra

Club v. EPA, 356 F.3d 296, 301-07 (D.C.

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. 7

5The February 2004 SIP revisions did not need

to contain a commitment to revise the MVEBs oneyear after EPA released the MOBILE6 model

because the MVEBs in these plans were developed

using MOBILE6.

7 On April 16, 2604, 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.

I

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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 RACM, post-1999

ROP plans demonstrating ROP for 2002

and 2005, 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.8 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 the newly

submitted and resubmitted materials,

which we collectively refer to as the

February 2004 SIP revisions.

7. 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 plans, 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, 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 plans]) 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."

Sierra Club v. EPA, No. 03-1084, 2004 WL 877850

(DC Cir. Apr. 16, 2004). 8 With one exception: the "outyear budgets,"

which were contained in the March 31, 2002 SIP

revision on which EPA had never proposed to take

action, were not resubmitted.

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

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," 9 as follows:

(1) In this final rule which

(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;

(2) Another final rule, which is

published elsewhere in today's Federal

Register, which disapproves 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. That protective

finding will allow Maryland to use the

MVEBs contained in the disapproved

SIP for transportation conformity

purposes pursuant to 40 CFR 93.120.

5 The District Court used the term "pre-2001

submissions" and "pre-2001 SIPs" which consists

of what in this document we call "the pre-2001 SIP

revisions' attainment demonstration" and "the

1996-1999 ROP plan."

II. The Relationship of Past SIP

Revisions, February 2004 SIP Revisions

and the April 17, 2003 Conditional.

Approval

A. The Twelve Conditions for Approval

On April 17, 2003, EPA had

conditionally approved the pre-2001 SIP

revisions subject to the following 12

conditions:

(tS) Revise the 1996-1999 portion of

the ROP plans to include a contingency

plan containing adoptedmeasures;

(2) Revise the contingency plan

containing those adopted measures

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999;

(3) Revise the ROP plans to include a

contingency plan containing adopted

measures for the post-1999 ROP plans; (4) Revise the attainment

demonstration to include a contingency

plan containing adopted measures to be

implemented if the Washington area

does not attain the one-hour ozone

standard by November 15, 2005;

(5) Revise the ROP plans to

demonstrate emission reductions of

ozone precursors of an average of 3

percent per year from November 15,

1999 to the November 15, 2005;

(6) Revise the attainment

demonstration to include a revised

RACM analysis;

(7) Revise the major stationary source

theshold to 25 tons per year;

(8) Revise RACT rules to include the

lower rihajor source applicability

threshold;

(9) Revise new source review offset

requirements to require an offset ratio of

at least 1.3 to 1.

(10) Submit a SIP revision that

identifies and adopts specific

enforceable transportation control.

strategies and transportation control

measures to offset any growth in

emissions from growth in vehicle miles

traveled or number of vehicle trips if .

required under section 182(d)(1) of the

Act;

(11) Submit the section 185 penalty

fee SIP consisting of the penalty fee

requirement of Act sections 182(d)(3)

and 185 for major sources of VOC and

NOx should the area fail to attain by

November 15,.2005;

(12) Update the Washington area

severe attainment demonstration to

reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

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In the February 3, 2003 (68 FR 5246)

proposed rule for the April 17, 2003 ".

final conditional approval, we proposed

conditional approval of the pre-2001 SIP

revisions if the State committed to

correct' condition numbers (1) through

(3), (6) and (12). EPA revised the

conditional approval to include

condition numbers (4), (5), and (7)

through (11) in response to comment

which stated that EPA could not fully

approve the pre-2001 SIP revisions

because the pre-2001 SIPrevisions did

not cover all of the required severe area

SIP components. EPA agreed with the

comment to the extent that condition

numbers (4), (5), and (7) through (11)

were applicable severe area

requirements that precluded full

approval. See 68 FR at 19121, April 17,

2003.

Conditions (1) and (2) were elements

needed to correct deficiencies in the SIP

required for a serious nonattainment

area.

Conditions (4) through (11) are SIP

elements required as a consequence of

the reclassification of the Washington

area to severe nonattainment.

Conditions (3) through (6) were

required to correct deficiencies in the

pre-2001 SIP revisions because the pre2001 SIP revisions included a

demonstration that the Washington area

would attain the 1-hour ozone standard

by November 15, 2005.

We conditioned approval on item (12)

under EPA's policy related to the

transition from our prior mobile source

emissions factor model, MOBILE5, to

the newer model, MOBILE6.

B. How the States Have Addressed the

Twelve Conditions

In this section we will discuss how

the States have addressed the twelve

conditions. EPA had already approved

many of the States' SIP revisions for the

control measures needed to support the

attainment plan, the ROP plans and the

contingency measure plan by the time

we published the NPRs on January 12,

2005 (70 FR 2085) and February 9, 2005

NPR (70 FR 6796) for the States' 1996-

1999 ROP plans and the February 2004

SIP revisions including the resubmitted

pre-2001 SIP revisions' attainment plan.

In this document we will not reiterate

the specifics of such approvals but will

provide details on the approval of

control measures which were not

approved at the time of the January 12,

2005 and February 9, 2005 NPRs.

1. Conditions 1 to 4--Contingency

Measures

At the time of the January 12, 2005

NPR for the contingency measures plan,

EPA had approved all the contingency

measures except each of the States'

architectural and- industrial

maintenance coatings rules (AIM

coatings rules), and the District's motor

vehicle refinishing, consumer products,

solvent cleaning and portable fuels

container rules.

On May 2, 2005, the Regional

Administrator signed final rules

approving the District's, Maryland's and

Virginia's AIM coatings rules. Those

final actions have been published in a

recent Federal Register or shortly will

be published in the Federal Register.

On December 23, 2004 (69 FR 76855),

December 28, 2004 (69 FR 77642),

December 29, 2004 (69 FR 77906). and

December 29, 2004 (69 FR 77903), EPA

approved, respectively, the District's

motor vehicle refinishing, consumer

products, solvent cleaning and portable

fuels container rules.

In this final rule, EPA is approving

the States's contingency measures plans

for the Washington area. These

contingency measure plans provide

sufficient contingency measures to meet

our 3 percent (relative to baseline

emissions for the Washington area)

reduction for all of the relevant years for

which the States need contingency .

measures. Our basis for determining that

the Stateg' contingency measures plans

get the required reductions is discussed

in detail in section V. "Contingency

Measures Plans" of the January 12, 2005

NPR (70 FR at 2087-2095) and in our

response to comments under sections

IIl. D. "Comment on the Contingency

Measures Plans" of this document.

EPA finds.that the actions cited in the

preceding four paragraphs fulfilled

conditions (1) through (4).

2. Condition 5-Post-1999 ROP

At the time of the January 12, 2005

NPR for the ROP plans and the February

9, 2005 NPR on the attainment

demonstration, EPA had approved all

the control measures *except each of the

States' AIM coatings rules, the District's

portable fuels container rule, the TCMs

submitted with the 1996-1999 and post1999 ROP plans and Maryland's and

Virginia's nonregulatory measures SIP

revisions.

As noted previously, EPA has

approved the States' AIM coatings rules

and the District's portable fuel

containers rule. In this action, EPA is

approving the TCMs submitted with the

1996-1999.and post-1999 ROP plans.

On May 2, 2005, the Regional

Administrator signed a final rule

approving Maryland's and Virginia's

nonregulatory measures SIP revision.

That final action has been published in

a recent Federal Register or shortly will

be published in the Federal Register.

In this final rule EPA is approving the

States' 1996-1999 and post-1999 ROP

plans. Our basis for determining that the

States' ROP plans get the required post1996 ROP reductions of 3 percent per

year (averaged over consecutive 3-year

periods) is discussed in detail in section

IV. "Post 1996-1999 and Post 1999-

2005 ROP Plans" of the January 12,

2005 NPR (70 FR at 2087-2095) and in

our response to comments under

sections III. A. "Comment on the ROP

Plans and NOx Substitution" and B.

"Comment on the Transportation

Demand Model (TDM) Used in the

Plans" of this document.

EPA finds that the actions cited in the

preceding four paragraphs fulfilled

condition (5).

3. Condition 6-RACM

For the reasons cited in our February

9, 2005 NPR, EPA believes that the

States' attainment demonstration in the

February 2004 SIP revisions.

demonstrated that no remaining RACM

remain to be adopted for the

Washington area. We received no

adverse comment on this aspect of the

proposal and find that the States have

fulfilled condition 5 by adoption of all

the measures necessary to demonstrate

attainment as expeditiously as

practicable.

4. Conditions 7 to 9-New Source

Review and RACT Thresholds

EPA has approved a SIP revision to

implement the severe area NSR

requirements in the Washington area for

both VOC and NOx including an offset

ratio of 1.3:1 and a major source

applicability definition of 25 tons/year.

See 69 FR 77647, December 28, 2004; 69

FR 56170, September 20, 2004; and 69

FR 48150, August 9, 2004, for the

District, Marylahd, and Virginia,

respectively. For each of the three

States, EPA has fully approved a SIP

revision to fmplement RACT for major

sources of VOC and NOx with major

source size definition of 25 tons/year.

See 69 FR 77647, December 28, 2004; 69

FR 56170, September 20, 2004; and 69

FR 48150, August 9, 2004, for the

District, Maryland, and Virginia,

respectively. EPA finds that the States

have fulfilled conditions (7) through (9).

5. Condition 10-VMT Offset SIP

In this final rule EPA is approving the

States' VMT Offset SIP revisions which

fulfills condition (10). Our basis for

determining that the States' VMT Offset

SIP meets the Act's requirements is

discussed in detail in section VI.

"Vehicle Miles Traveled (VMT) Offset

SIP and Transportation Control

Measures (TCMs)" of the January 12,

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2005 NPR (70 FR at 2098) and in-our '

response to comments under section III.

C. "Comment on the VMT Offset SIP"

of this document.

6. Condition 11-the Section 185

Penalty Fee SIP

On December 28, 2004 (69 FR 77639)

and on December 29, 2004 (69 FR

77909), EPA approved the District's and

Virginia's section 185 penalty fee SIP

revisions, respectively, and thus,

believes that the District and Virginia

have fulfilled condition (11). To date,

Maryland has not submitted a section

185 penalty fee SIP revision. For the

lack of a section 185 penalty fee SIP

revision, EPA is disapproving

Maryland's attainment plan with a

protective finding which will allow the

MVEBs contained in Maryland's 2004

SIP revisions to be used for

transportation conformity purposes

pursuant to-40 CFR 93.120. That

disapproval is published elsewhere in

today's Federal Register.

7. Condition 12-MOBILE6-Based

Attainment Plan Budgets

In their February 2004 SIP revisions,

the States adopted MOBILE6-based 2005

attainment year MVEBs. The final

version of the 2005 attainment year

MVEBs was contained in the February

2004 SIP revisions identified in Table 2

of this document. These MVWBs are

area-wide MVEBs which cover the

entire Washington area. In this final rule EPA is approving the

District's and Virginia's attainment plan

for the Washington area, namely the

attainment plans contained in the

February 2004 SIP revisions which

subsumes the resubmitted pre-2001 SIP

revisions' attainment plan. We are also

approving the final revision of the 2005

attainment year MVEBs for the District

and Virginia found in the February 2004

SIP revisions identified in Table 2 of

this document. EPA would have been

able to approve Maryland's attainment

plan for the Washington area had

Maryland submitted a section 185

penalty fee program. We could not

approve the District's and Virginia's

attainment plan without determining

that the three States collectively have

adopted enough measures in their SIPs

to demonstrate that the area as a whole

will attain the 1-hour ozone NAAQS by

no later than November 15, 2005. Such

a finding is necessary because this is an

interstate area and any potential

emissibrns shortfall would have to be

addressed collectively before any State's

attainment plan could be approved.

For the reasons stated in our February

9, 2005 NPR, the recently approved

control measures discussed previously

in this final actionand given in our ' ,'

responses in this finil action to

comments received on that proposed

rule, EPA believes that the States

collectively have adopted enough

measures in their SIPs to demonstrate

that the area will attain the 1-hour

ozone NAAQS by.no later than

November 15, 2005 with the MVEBs

found in the February 2004 SIP

revisions identified in Table 2 of this

document. EPA believes that Maryland,

in combination with the District and

Virginia, adopted sufficient measures

and have fully satisfied the emissions

reduction requirements necessary to

ensure that attainment of the i-hour

ozone NAAQS will be attained by no

later than November 15,. 2005. EPA

believes that the States, including

Maryland, have satisfied condition (12)

since they have demonstrated that the

attainment plans have been revised to

reflect MOBILE6based MVEBS and

have included the necessary revisions to

the modeled demonstration of

attainment and adjunct WOE analyses

and have adopted control measures

showing that the SIP continues to

demonstrate attainment by November

15, 2005.

Therefore, in this final rule, EPA is

approving the District's, Maryland's,

and Virginia's modeled demonstrations

of attainment and adjunct WOE analyses

and the District's and Virginia's

attainment plans. EPA is also

determining 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 NAAQS.

EPA is therefore approving the modeled

demonstration of attainment and

adjunct WOE analyses contained in

Maryland's February 2004 SIP revisions

which includes the analysis based upon

photochemical grid modeling

demonstrating timely attainment of the

1-hour ozone standard. In addition, EPA

is therefore issuing Maryland's 2004 SIP

revisions' attainment plan-a protective

finding which will allow the MVEBs

contained in Maryland's 2004 SIP

revisions to be used for transportation

conformity purposes pursuant to 40 CFR

93.120.

EPA concludes that once we issue our

approval of the District's and Virginia's

February 2004 SIP revisions the District

and Virginia will have cured the

deficiencies we identified in their pre2001 SIP revisions through the various

SIP revisions that they have submitted

since April 17, 2003. In the case of

Maryland, EPA concludes that all of the

deficiencies except the section 185

penalty fee SIP revision will have been

cured for Maryland's pre-2001 SIP

revisiois by the:vhfious,SIP-reiisions

submitted since April 17, 2003 once we'

issue our approval of:

(1) Maryland's 1996-1999 and 1999-

2005 ROP plans,

(2) the changes to the 1990 base year

inventory, the contingency measures

plan, TCMs,

(3) the modeled demonstration of

attainment which includes the analysis

based upon photochemical grid

modeling and adjunct WOE analyses

that Maryland's submitted SIP for the

Washington area contains adopted

control measures that fully satisfy the

emission reduction requirements to

provide for attainment of the 1-hour

ozorke NAAQS in the Washington area

by November 15, 2005.

1I. Comment Received on the ROP

plans, VMT Offset SIP and Contingency

Measures Plan and EPA's Response

We received comments adverse to the

proposed approval of the ROP, VMT

offset, contingency measures, and

attainment plans. A summary of these

adverse comments, and our responses,

follows.

A. Comment on the ROP plans and NOx

Substitution

Comment: We received a comment

asserting that the ROP plans do not meet

the requirement of demonstrating a nine

percent reduction in VOC emissions

from 1999 to 2002 and a further nine

percent from 2002 to 2005 because the

NOx substitution in the ROP plans is

impermissible. The comment asserts

that the ROP plans do not meet section

182(c)(2)(c) of the Act because they do

not show that a nine percent reduction

in NOx emissions will result in the

same reduction in ozone concentration

as a nine percent reduction in VOC

emissions. The comment claims that EPA's own guidance requires

photochemical grid modeling to show

equivalent changes in ozone

concentrations.

The comment also asserts that EPA's

reliance on our December 1993 NOx

Substitution Guidance is flawed because

the plain language of the Act requires

proof of equivalent benefits of NOx

suibstitution. The comment also asserts

that because the 1999-2005 ROP plan

relies solely upon NOx reductions the

plans do not meet the requirement of

section 182(c)(2)(C) because the plan

does not provide for some percentage of

VOC reduction during each period. The

comment claims that the Act requires

some non-zero percentage reduction in

VOC emissions for any ROP period.

The comment asserts that the Act

requires the ROP plans to have VOC

reductions by November 15, 2002 to

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prevent a net increase in VOC emissions

by the 2002 milestone date, which

would offset the progress achieved by

the nine percent NOx reductions. The

comment asserts that while the ROP

plans do provide for such reductions,

EPA cannot approve the 1999-2005

ROP plans because they do not provide

for all of these reductions by the-2002

milestone date.

Response: NOx Substitution in

General. The EPA believes States have

the opportunity to substitute NOx

reductions for required VOC reductions

under certain circumstances. The

opportunity for NOx substitution

originates in section 182(c)(2)(C) of the

Act which specifically allows NOx

emissions reductions to be substituted

for VOC reductions required under

section 182(c)(2)(B) for reasonable

further progress (RFP), sometimes called

ROP.

EPA issued guidance to the States on,

how to implement the NOx substitution

provisions for the post-1996 ROP plans

in December 1993 (the December 1993

NOx Substitution Guidance). The

guidance allows States to substitute

NOx emission reductions for VOC

emission reductions if that substitution

is consistent with the demonstration of

attainment in the SIP. The modeled

demonstration of attainment in the SIP

establishes the overall reductions of .

VOC and/or NOx reductions required.

for attainment in the attainment year.

The ROP plan is a tool to phase in

emission reductions between the time

the plan is prepared and the attainment

date. When substituting NOx for VOC in

post-1996 ROP plans, we are mindful

that if too many NOx reductions are

substituted for VOC reductions, the

modeled demonstration of attainment

may no longer be valid. Our December

1993-NOx Substitution Guidance allows

substitution on a percentage basis (i;.,

one percent of NOx emissions

reductions can be substituted for one

percent of VOC emissions reductions).

Results of the Application of EPA's

December 1993 NOx Substitution

Guidance in the Washington Area. EPA

believes that NOx substitution as

applied to the Washington area based on

our December 1993 NOx Substitution"

Guidance yields ROP plans that result

in reductions in ozone concentrations

that are better than those which would

have resulted from ROP plans relying

upon an equal percent of VOC

reductions.

'o Technical Support Document for Approval and

Promulgation of Air Quality Implementation Plans;

District of Columbia, Maryland, and Virgiriia; Post1996 Rate-of-Progress Plan, Contingency Measures,

Transportation Control Measures, 1990 Base Year

Inventory Changes, and VMT Offset SIP for the

Applying our December 1993 NOx

Substitution Guidance to the

Washington area we substitute one

percent of VOC ROP reductions with

one percent of NOx reductions. One

percent of NOx represents a larger

quantity of emissions reduction than

does one percent of VOC. This is the

case because ROP reductions are

computed from baseline emissions,

which are defined in section

182(b)(2)(B) of the Clean Air Act to be

"the total amount of actual VOC or NOx

emissions from all anthropogenic

sources in the area during the calendar

year 1990," excluding the emissions

that would be eliminated by the.

programs specified in sections

182(b)(1)(C) and (D) of the Act. The

reduction of baseline emissions by the

programs specified in sections

182(b)(1)(C) and (D) yields the adjusted

1990 base year inventory for each

milestone year (which is discussed

further in the January 5, 2005 technical

support document (TSD) 10). The

adjusted 1990 base year inventory is the

baseline from which the necessary ROP

reductions are computed. -Section

182(c)(2) of the Act requires that a set

percentage of reductions in baseline

emissions be achieved-every three years

after 1996.until the area's attainment

date. To determine the reductions in

tons required for any given ROP

milestone year, the percentage is

multiplied by the adjusted 1990 base

year inventory for that milestone year.

For example, in the case of the

Washington area, the "Adjusted 1990

Base Year Inventory for 2005" for VOC

is 412.1 tons per day (TPD), and, thus,

a one percent ROP reduction equates to

4.1 TPD. For NOx emissions the

"Adjusted 1990 Base Year Inventory for

2005" is 735.6 TPD, and, thus, a one

percent ROP reduction equates to 7.4

TPD.

The States only modeled changes in

anthropogenic (man-made) emissions to

see how sensitive the Washington area

was to changes in VOC and to NOx

emission reductions. They did not

model changes in biogenic emissions

which are VOC emissions from plants..

The air quality model responds to

changes in emission between the 1990

base year inventory and the emissions

resulting from the control strategy to be

modeled.1 1

The States used the- results of this

sensitivity modeling to determine that a

Metropolitan Washington, DC Nonattainment Area,

January 5, 2005

11 For a summary of the photochemical grid

modeling for the Washington area refer to the

February 9, 2005 (70 FR 6796) NPR, and, for a

discussion in depth, see Technical Support.

one ton reduction in NOx emissioiswithin the Washington area would

result in a peak ozone concentration

reduction of 0.114 parts per billion

(ppb) (0.114 ppb/ton of NOx); a similar

analysis for VOC emissions indicated

that a one ton reduction in VOC

emissions would result in a peak ozone

concentration reduction of 0.029 ppb

(0.029 1pb/ton of VOC reduced). The

States concluded that emissions

reductions of 34.0 tons/day of VOCor

8.8 tons/day NOx would have to be

required within the Washington area

would reduce ozone concentrations by 1

ppb. That is, NOx reductions in the

Washington area have greater ozone

reducing potential than an equivalent

amount of VOC reductions. Therefore,

substituting a percentage of VOC

reductions with an equal percentage of

NOx reductions should result in greater

ozone concentration reduction than if

the substitution were not done.

The 1990 base year VOC inventory for

the Washington area is comprised of

578.7- TPD of anthropogenic emissions

and of 376.5 TPD biogenic emissions for

a total of 955.2 TPD of VOC. The 1990

base year NOx inventory (all of which

is anthropogenic) for the Washington

area is 869.3 TPD of NOx. Given that 39

percent (376.5/955.2) of the VOC

emissions inventory is biogenic

emissions, it is not surprising that

reductions in anthropogenic VOC

emissions would show less ozone

response than an equal percentage

reduction in anthropogenic NOx

emissions. The NOx emissions are all

anthropogenic, and, a one percent

reduction in NOx emissions equates to

more tons of emission reduction than

does one percent reduction of the

anthropogenic VOC emissions.

This is not to say VOC reductions are

not beneficial towards attain mient, but

rather that reductions in anthropogenic

VOC emissions are not as effective on a

TPD or ROP percentage basis as NOx

reductions. However, the States are free.

to fashion their attainment

demonstrations and ROP plans to

include whatever mix of VOC and NOx

reductions they choose, so long as the

plans demonstrate timely attainment

and timely ROP in accordance with the

requirements of the Clean Air Act.

The following table compares a 9

percent reduction in baseline-VOC

emissions by each post-1996 milestone

year to the chosen levels of NOx

substitution in the ROP plans in terms

Document for Approval and Promulgation of Air

Quality Implementation Plans; District.of Columbia,

Maryland, and Virginia; Attainment Demonstration

for the Metropolitan Washington, DC"

Nonattainment Area, dated January 31, 2005.

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of TPD reductions and of ozone concentration decreases resulting from

these reductions.

TABLE 4.-RESULTS OF NOx SUBSTITUTION IN THE WASHINGTON AREA

Milestone year 1999 2002 2005

9 percent reduction in VOC baseline emissions (TPD) ............................................................. 39 37.8 37.1

Ozone Concentration Change to 9 percent VOC (at 0.029 ppb/ton rounded to nearest tenth) 1.1 1.1 1.1

Percent NOx reduction Substituted (percent of baseline NOx emissions) ................................. 8 9 9

Substituted NOx Reductions (TPD) ....................................................................................

62.8 68.1 66.2

Ozone Concentration Change to Substituted NOx Reductions 10.114 ppb/ton rounded to

nearest tenth) ................. : .........................................................................................

7.2 7.8 7.5

Technical and Practical Reasons for

our December 1993 NOx Substitution

Guidance. The modeling performed for

demonstration of attainment basically

establishes the relationship between

emission reductions-either of VOC,

NOx, or both-and ozone reductions.

This relationship is established for the

attainment year. As noted previously,

the modeled attainment demonstration

establishes the overall VOC and/or NOx

emission targets that are consistent with

attainment of the standard in the

attainment year. When EPA determines

that a demonstration of attainment is

approvable, i.e., it demonstrates that the

relevant area .will timely attain the

NAAQS, we are making an implicit

corollary conclusion that the mix of

VOC and/or NOx control measures

included in the area's demonstration of

attainment is sufficient for timely

attainment.

The post-1996 ROP plan requirement

is used to phase-in emission reductions

between the time of plan adoption and

the attainment date. EPA does not

require modeling of interim years for the

purpose of trying to updat!e the NOx/

VOC/ozone relationship for a number of

reasons, including the following that are

provided in our December 1993 NOx

Substitution Guidance:

a. The strong likelihood that optimum "exchange" rates vary from year to year

and across a geographic area as an area's

emissions distribution and atmospheric

chemistry change over time;

b. Uncertainty in modeling analyses,

particularly when attempting to

ascertain responses from small

percentage perturbations in emissions;

and

c. Resource limitations associated

with modeling specific control measures

during interim years before attainment

dates.

EPA continues to believe in the

validity of this guidance and in the

reasoning set forth therein as it relates

to NOx substitution under the post-1996

ROP plan requirements.

Legal Rationale for EPA's December

1993 NOx Substitution Guidance. The

comment focuses exclusively upon the

phrase "result in a reduction in ozone

concentrations at least equivalent to that

which would result from the amount of

VOC emission reductions

required* * * " to the exclusion of

remaining language of section

182(c)(2)(C). The comment would

completely "write-out" of the statutory

text provisions such as "in lieu of the

demonstration required under

s;ubparagraph (B), a demonstration to

the satisfaction of the Administrator

* * *" and "in accord with such

guidance [the gubstitution guidance

required by section 182(c)(2)(C)] a lesser

percentage of VOCs may be-accepted as

an adequate demonstration * * *"

(emphases added). In the plain text of

the statute Congress explicitly and

affirmatively granted EPA broad

discretion as to what sort of

demonstration is acceptable on this

technical and science-driven issue. See,

e.g., Sierra Club v. EPA, 294 F.3d at

162-163.

In addition, EPA still stands behind

its legal rationale underlying the

interpretation of "equivalency" that

appears in our December 1993 NOx

Substitution Guidance in section 4. In

that guidance, the basis for equivalency

is the ability of a given control strategy

(i.e., any particular mix of NOx and

VOC emission reductions) to effect

attainment of the ozone NAAQS by the

designated attainment year (December

1993 NOx Substitution Guidance, p. 2).

Further, as we previously set out, the

NOx emission reductions credited

toward ROP may be limited to the

amount of NOx reductions required in

the demonstration of attainment.

In allowing a combination of NOx and

VOC controls or the substitution of NOx

emissions reductions for VOC emissions

reductions, section 182(c)(2)(C) of the

statute states that the resulting

reductions "in ozone concentrations"

must be "at least equivalent" to that

which would result from the 3 percent

VOC reductions required as a

demonstration of ROP under section

182(c)(2)(B). 12 The second sentence of

section 182(c)(2)(C) requires EPA to

issue guidance "concerning the

conditions under which NOX control

may be substituted for [or combined

with] VOC control." In particular, the

Agency has been authorized by

Congress to address in the guidance the

appropriate amounts of VOC control

and NOx control needed, in

combination, "in order to maximize the

reduction in ozone air pollution."

Further, the Act explicitly provides that

the guidance may permit ROP

demonstrations that allow a lower

percentage of VOC emission reductions

as long as compensating NOx reductions

are achieved. In light of the language in

the Act evidencing Congressional intent

under-this subsection to maximize the

opportunity for ozone reductions, EPA

believes that section 182(c)(2)(C) confers

on the Agency the discretion to select,

for purposes of determining "at least

equivalent" reductions, a percentage of

NOx emission reductions that is

reasonably calculated to achieve the

statutorily required ozone reduction and

attainment progress goals intended by

Congress. See Chevron U.S.A., Inc. v.

NRDC, 467 U.S. 837, 842-44 (1984),

Sierra Club v. EPA, 294 F.3d at 162-163.

As we have previously stated, when

we determine that a demonstration of

attainment is approvable, we are making

an implicit corollary conclusion that the

mix of VOC and/or NOx control

measures included in the area's

demonstration of attainment is

'sufficient for timely attainment.

As additional evidence that Congress

was concerned-with getting more than

minimal reductions in ozone

concentrations through substitution,

EPA notes that the ROP demonstration

described in section 182(c)(2)(B) focuses

on reductions of a specified quantity of

VOC emissions per year (similarly, the

15 percent ROP reductions required for

12 Equivalent means: 'equal in value, force,

amount, effect or significance," or "corresponding

in effect or function; nearly equal; virtually

identical." Black's Law Dictionary, Eighth Edition,

2004. (emphasis added).

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moderate ozone nonattainment areas

focuses on reductions of that specific

quantity of VOC emissions per year). By

contrast, the alternative ROP

demonstration in section 182(c)(2)(C)

allows flexible VOC/NOx emission

reduction strategies, but only so long as

the overall quantitative reduction in

ozone concentrations is equivalent to

the amount which, for serious ozone

nonattainment areas, Congress initially

determined must be met (i.e., the ozone

concentrations achieved by VOC

reductions of 3 percent per year) in

order to ensure expeditious progress

towards attainment. In this regard the

House Committee Report states: "NOx

reductions may not be substituted for

VOC reductions in a manner that delays

attainment of the ozone standard or that

results in lesser annual reductions in

ozone concentration than provided for

in the demonstration of attainment."

H.R. Rep. No. 490, 101st Cong., 2d Sess.

239 (1990).

Additional support for EPA's view

that our December 1993 NOx

Substitution Guidance's focus on the

NOx and VOC reductions necessary for

attainment is consistent with

Congressional intent is found in section

182(g), which waives the requirement

for a milestone demonstration for a

milestone that coincides with an area's

attainment date for an area that attains

the standard by that date.

EPA disagrees with the comment that

EPA's "Guidance on the Post-1996 Rateof-Progress Plan and Attainment

Demonstration" (corrected version as of

2/18/94) specifies a different test, that

is, a modeled showing of equivalency,

than does EPA's December 15, 1993

NOx Substitution Guidance. In section

4.1 of the"Guidance on the Post-1996

Rate-of-Progress Plan and Attainment

Demonstration," EPA restated the

equivalency test set forth in sections 2

and 3 of our December 1993 NOx

Substitution Guidance.

With regard to the photochemical grid

modeling. section 4.1 of the "Guidance

on the Post-1996 Rate-of-Progress Plan

and Attainment Demonstration" reads:

Section 182(c)(2)(C) states that actual NOx

emission reductions which occur after 1990

can be used to meet post-1996 emission

reduction requirements, provided that such

reductions meet the criteria outlined in

EPA's December 15, 1993 NOx Substitution

Guidance. The condition for meeting the rateof-progress requirement is that the sum of all

creditable VOC and NOx emission reductions

must equal 3 percent per year averaged over

each applicable milestone period. The

percent VOC reduction is determined from

the VOC rate-of-progress inventory and the

percent NOx reduction is determined from

the NOx rate-of-progress inventory. In

addition, the overall VOC and NOx

reductions must be-consistent with the area's

modeled attainment demonstration. In other

words, the NOx emission reductionscreditable toward the rate-of-progress plan

cannot be greater than the cumulative

reductions dictated by the modeled

attainment demonstration.

This portion of the 1994 guidance

merely summarizes, and does not alter,

the guidance provided in our December

1993 NOx Substitution Guidance. With

regard to the photochemical grid

modeling, section 2 of our December

1993 NOx Substitution Guidance

specifies that the provision for NOx

substitution recognizes that a VOC-only

control pathway may not be the most

effective approach for effecting

attainment in all areas. Consequently,

NOx reductions are placed on a near

equal'footing with VOC through

substitution. The December 1993 NOx

Substitution Guidance establishes two

conditions pursuant to both the

substitution and RFP provisions in the

Act. The first condition requires that

control strategies incorporating NOx

emission reduction measures must

demonstrate that the ozone NAAQS will

be attained within time periods

mandated by the Act. This condition

reflects the Title I provision for

photochemical grid modeling

demonstrations (section 182(c)). The

second condition, addressed in section

3 of the guidance, maintains the

requirement for periodic emission

reductions in order to realize progress

toward attainment. Flexibility is

introduced by allowing VOC and NOx

reductions rather than VOC reductions

alone. A third condition exists in which

the periodic emission reductions must

be consistent with the modeled

demonstration of attainment.

In both cases, the guidance refers to

the photochemical grid modeling that is

necessary for the modeled

demonstration of attainment and that

establishes the NOx/VOC/ozone

relationship at the attainment date.

Neither our December 1993 NOx

Substitution Guidance nor the

"Guidance on the Post-1996 Rate-ofProgress Plan and Attainment

Demonstration" require a modeled

demonstration of equivalence for an

interim period for the reasons discussed

previously.

The 1999-2005 ROP Plans Provide for

Any Required NOx and VOC Reductions

by 2002 in a Timely Manner. Section

182(c)(2)(C) of the Act states that "[the

revision may contain, in lieu of the

demonstration required under

subparagraph (B), a demonstration to

the satisfaction of the Administrator that

the applicable implementation plan, as

revised, provides for reductions of VOCs

and [NOx] (calculated according to the

creditability provisions of subsection

(b)(1)(C) and (D) of this section) * * *

that would result in reduction in ozone

concentrations equivalent to that which

would result from the amount of VOC

reductions required under subparagraph

(B)." The salient provisions of the

demonstration of "subparagraph B",

that is, section 182(c)(2)(B) of the Act,

are: (1) The requirement to reduce

baseline emissions by an average of 3

percent per year averaged over each

three-year period after 1996, and (2) the

reductions creditable towards ROP must

meet the same creditability

requirements as for the 15 percent

reduction by 1996 requirement.of

section 182(b)(1)(A).

Our post-1996 guidance implements

section 182(c)(2)(B) by requiring that the

area demonstrate that milestone year

emissions with the ROP control

strategies will be less than the target

.level of emissions. 13 Because the target

level is determined by reducing 1990

baseline emissions and because the

future year projected inventory with all

the ROP control strategies must reflect

estimated growth in emissions

activities, this demonstration accounts

for growth between 1990 and the

milestone year. Section 182(c)(2)(B)

does not contain the phrase "accounting

for growth after 1990" which is found

in section 182(b)(1)(A). Nevertheless,

EPA has inferred that the 3 percent

reduction requirement of section

182(c)(2)(B) must be net of growth.

EPA's interpretation is sound when

considering relevant provisions of the

statute as a whole because: (1) Section

182(b)(1)(A) contains a statement,

"accounting for growth after 1990," of

Congressional intent regarding ROP and

growth under section 182; and (2) the

last sentence of section 182(c)(2)(B)

allows creditable VOC reductions

between 1990 and 1996 that are in

excess of those needed to meet the 15

percent reduction by 1996 requirement

to count towards post-1996 ROP.

Reductions under section 182(b)(1)(A)

are excess only to the extent they are net

of growth.

EPA believes that in section

182(c)(2)(C) Congress granted EPA even

greater discretion as to the composition

of the demonstration required by section

182(c)(2)(C). As noted previously in

other portions of this response, section

182(c)(2)(C) allows a post-1996 ROP

demonstration "in lieu of" that required

under section 182(c)(2)(B). This

demonstration must be "to the

13 "Guidance on the Post '96 Rate-of-Progress Plan

(RPP) and Attainment Demonstration" (Corrected

vergion of February 18. 1994).

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satisfaction of EPA," and allows that a

"lesser percentage of VOCs may be

accepted" in accordance with the

guidance that the EPA was required to

issue.

Thus, EPA was granted discretion

regarding the content of the ROP

demonstration allowable under section

182(c)(2)(C). For instance, section

182(c)(2)(C) does not use the phrase ""accounting for growth after 1990."

However, EPA's December 1993 NOx

Substitution Guidance is based upon the

use of the future inventories used in the

photochemical grid modeling to account

for growth in emissions related

activities, and thus reflect emissions

reductions that are net of growth.

Furthermore, section 182(c)(2)(C) does

not require that the plan providing for

reductions of VOC and NOx provide for

reductions in "baseline emissions."

EPA's guidance for demonstrations of

ROP under section 182(c)(2)(C) reflects

many of the same features in our

guidance implementing section

182(c)(2)(B): A ROP plan calculates

target levels by reducing 1990 baseline

emissions by a set percentage for each

ROP period; and, EPA chose to require

that NOx substitution be net of

growth.' 4 EPA believes that these

features are reasonable in order to

address a scenario where the

demonstration of post-1996 ROP for an

area for one ROP milestone year, say

1999, relies a mixture of VOC and NOx

control and then relies upon all VOC

reductions for the subsequent 2002

milestone. EPA believes that the claim

that the Act requires some non-zero

percentage of reductions in VOC

baseline emissions in ROP

demonstrations pursuant to section

182(c)(2)(C) or provides, that such a

percentage reduction net of growth

requirements. required by section

182(c)(2)(B) is not supported by the -

plain text of the statute. The Act allows

NOx substitution with lesser VOC

reductions and doesn't prohibit 9

percent NOx substitution and zero

percent VOC. Therefore, we believe that

we can approve a ROP plan which

provides for 9 percent NOx reductions

and no specific level of VOC reductions.

EPA's interpretation is reasonable given

the broad discretion afforded by section

182(c)(2)(C) on these matters.

EPA's December 1993 NOx

Substitution Guidance focuses on

progress towards reducing the levels of

NOx and VOC needed for attainment. In

that guidance, EPA caps the NOx

14Section 1.1 of "Guidance on the Post '96 Rateof-Progress Plan (RPP) and Attainment

Demonstration" (Corrected version of February 18,

1994).

emission reductions to be consistent

with those in the modeled

demonstration of attainment.

For the reasons discussed previously

in this response, EPA believes that the

Act allows approval of a ROP Plan even

when a ROP milestone is met with out

any reduction in VOC baseline

emissions for the milestone year. The

Act allows EPA to accept a "lesser

percentage of VOC." EPA believes that

"lesser percentage" can mean,

consistent with the plain language of the

Act, any percentage less than the

average 3 percent per year prescribed by

section 182(c)(2)(B), including zero

percent. EPA previously has approved

ROP plans under section 182(c)(2) that

relied solely upon NOx reductions

without regard to VOC reductions. See

69 FR 42880, July 19, 2004 (proposed at

69 FR 25348, May 6, 2004) add 64 FR

13348, March 18, 1999 (proposed by 63

FR 45172, August 25, 1998).

As to the growth in VOC emissions "offsetting" the 9 percent NOx

reductions, the comment fails to realize

that a ROP planmeeting the 9 percent

reduction requirement for some

milestone year, say 1999, prior to the

attainment date, say 2005, using only

VOC reductions, would not be required

to offset any growth in NOx emissions.

EPA believes that such a ROP plan

would meet the requirements of section

182(c)(2)(B), even if the area needed

significant NOx reductions for

attainment, as long as all the reductions

were creditable and the ROP plan

otherwise met the Act and EPA's

guidance. Nothing in section

182(c)(2)(C) requires the converse-that

the ROP plan must ensure that a 9

percent NOx reduction is not "offset" by

changes in VOC emissions.

It is worthwhile to note that the 1999-

2005 ROP plans in the February 2004

SIP revisions do in factprovide for a

reduction in VOC emissions. The 1999-

2005 ROP plans in the February 2004

SIP revisions project that controlled

VOC emissions by November 15, 2002

will be 372.3TPD. This is significantly

less than both the 1990 VOC ROP

Inventory of 578.7 TPD and the 1990

baseline emissions, reduced by

reductions from noncreditable measures

(the "Adjusted 1990 Base Year

Inventory for 2002"), of 420.5 TPD. The

1999-2005 ROP plans in the February

2004 SIP revisions project that .

controlled VOC emissions by November

15, 2005 will be 331.6 TPD. This is

significantly less than the 1990 baseline

emissions, reduced by reductions from

noncreditable measures (the "Adjusted

1990 Base Year Inventory for 2005"), of

412.1 TPD. 15 Therefore, the 1999-2005

ROP plans do provide for VOC

reductions by the 2002 and 2005

milestone'years, and, provide for a net

reduction in VOC emissions by these

dates. However, EPA has concluded that

the States' 1999-2005 ROP plans meet

section 182(c)(2) of the Act because the

States' 1999-2005 ROP plans

demonstrate a 9 percent reduction in

-baseline NOx emissions by 2002 and a

further 9 percent reduction in baseline

NOx emissions by 2005 and can be

approved based upon these reductions

in baseline NOx emissions. EPA has concluded that the States'

NOx measures are sufficient to achieve

a 9 percent reduction in NOx baseline

emissions by November 15, 2002.

Because ROP is demonstrated through

the use of a 9 percent reduction in NOx

emissions by 2002, EPA believes that

there is no requirement for the plan to

have a target level of VOC emissions for

the 2002 milestone year for the reasons

discussed previously in this response.

Therefore, EPA believes that the plan

cannot be deficient for not achieving

any set reduction in VOC baseline

emissions (net of growth) by November

.15, 2002-no such requirement exists.

B. Comment on the Transportation

Demand Model (TDM) Used in the Plans

Comment: We received a comment

asserting that the TDM used to project

the mobile source emissions does not

properly predict traffic volumes in the

Washington area on roadways. The

comment alleges that the inaccuracies

are significant enough that the results

cannot form a basis for predicting future

motor vehicle emissions or the emission

cuts needed to meet ROP targets, or to

show that the SIP contains sufficient

transportation control measures to offset

any growth in emissions from growth in

vehicle miles traveled or numbers of

vehicle trils in the nonattainment area. Response: EPA disagrees with this

comment. EPA's conformity regulation

requires that for serious, severe, and

extreme ozone nonattainment areas (if

their-metropolitan planning area

contains an urbanized area population

over 200,000), the estimates of regional

transportation-related emissions, which

support conformity determinations,

must be made at a minimum using.

network-based TDMs according to

"Table IX. A-1 "Demonstration of ROP" and

2002 and Table V. D-3 "2005 ROP Target Levels"

of "Technical Support Document for Approval and

Promulgation of Air Quality Implementation Plans;

District of Columbia, Maryland, and Virginia; Post1996 Rate-of-Progress Plan, Contingency Measures,

Transportation Control Measures, 1990 Base Year

lnventory Changes, and VMT Offset SIP for the

Metropolitan Washington, DC Nonattainment

Area," dated January 5, 2005.

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procedures and methods that are

available and in practice, and which are

supported by current and available

documentation. 40 CFR 93.122(b). These

network-based travel models must at a

minimum satisfy the certain

requirements, including a requirement

that network-based travel models must

be validated against observed counts

(peak- and off-peak, if possible) for a

base year that is not more than 10 years

prior to the date of the conformity

determination. Model forecasts must be

analyzed for reasonableness and

compared to historical trends and other

factors, and the results must be

documented. 40 CFR 93.122(b)(1)(i); 62

FR 43793, August 15, 1997.

Even though this regulation applies to

network-based travel models used for

conformity determinations, it represents

EPA's determination as to acceptable

practices and was issued through notice

and comment rulemaking. The

conformity regulation's adequacy

provisions (40 CFR 93.118(e)) require

that MVEBs. in control strategy SIP

revisions be the product of interagency

consultation between air quality

planning agencies and transportation

planning agencies. Therefore, EPA

believes that it is reasonable to assume

that the transportation planning

agencies will want the MVEBs to be

developed using the same network

models currently in use at the 'time the

MVEBs are developed. This is indeed

the case for the February 2004 SIP

revisions. The TDM model used for.

development of the February 2004 SIP

revisions was based upon the execution

of the COG/TPB's Version 2.1/TP+

travel forecasting process. 16 See page B10 of Appendix B to the February 2004

SIP revisions.17

EPA believes that only one of the six

modeling criteria of section 93.122 of

the conformity rule is implicated by the

comment. This criterion is that

validation must be against observed

counts for base year not more than 10

years prior to conformity determination.

The comment does not allege that the

validation of the model was made

against data that was more than 10 years

old. Rather, the commenter alleges the

model results are not "reasonable."

EPA disagrees with this comment,

and, we specifically disagree with

certain factual allegations made therein.

For instance, on page 15 of the

." COG is the Metropolitan Washington Council

of Governments.,The TPB is the National Capital

Region Transportation Planning Board.

17 The "Version 2.1/TP+" model is also called

Version 2.1/TP+, Release C in "COG/TPB Travel

Forecasting Model Version 2.1/TP+, Release C

Calibration Report," Metropolitan Washington

Council of Governments, December 23, 2002.

supporting documentation to the

comment, the commenter claimed that

"the [Transportation Research Board

(TRB) review] committee found that 8 of

33 facility type traffic volume classes

had percent Root Mean Square Error

(RMSE) values that were unacceptable."

The TRB review committee actually

stated that "for 8 of 33 facility type

traffic volume classes, RMSE values

were marginally acceptable * * *" 18

EPA concludes that the claim that the

review committee found the model

results unacceptableis not borne out by

the factual record.

The supporting documentation for

this comment asserted that the TDMs on average underestimated traffic on the 20

highest volume freeway links by 26

percent, and on the 10 highest volume

arterials by 41 percent as demonstrated

by "the comparison of simulated to

observed traffic data for over 11,000

links grouped by traffic volume class

and facility type." The same claim was

made to the TPB during the

development of the FY 2005-2010

Transportation Improvement Program

for the Washington Metropolitan

Region. The TPB responded by

concluding that the analysis in the

comment did not support the

conclusion. Specifically the TPB stated:

(1) That the commenter did not

understand the TPB's data upon which

the conclusion was made; (2) that there

are many factors which lead to

differences between observed data and

model outputs; (3) that the RMSE for the

model declines with volume, i.e, there

is less error associated with higher

volumes; (4) that the "20 highest

freeway links'actually represent only

five roadway segments in the region

because freeway links are directionally

coded and these links are split between

interchanges resulting in four links per

these five highway segment; (5) that the

comment focuses only on a few values

at the high-end of the volumes ranges,

but draws the mistaken conclusion that

the model underestimates volumes for

the regional highway network links with

the highest "observed" volumes; (6) that

the "observed date" for the 11,000 link

segments of the regional highway

network, db not represent actual traffic

counts but rather represent factored

estimates of average daily traffic

volumes based on continuous traffic

counts taken ata very limited number

of permanent counting stations, and; (7)

e Letter from David J. Forkenbrock, Chair,

Transportation Research Board's Committee for

Review of Travel Demand.Modeling by the

Metropblitan Washington Council of Governments to Peter Shapiro, Chairman, National Capital region

Transportation Planning Board, dated, September 3,

2003.

that "observed" volumes on the "20

highest freeway links" are either

factored estimates of average daily or

are "uncounted manual" estimates.19

EPA notes that the supporting

documentation cited by the comment is

for the COG/TPB Travel Forecasting

Model, Version 2.1D Draft #50. The

TDM model actually used for

development of the February 2004 SIP

revisions actually was the COG/TPB's

Version 2.1/TP+ travel forecasting

process. See Appendix B to the

February 2004 SIP revisions, p. B-10.

Version 2.1/TP+ model was validated

using year 2000 data. See "COG/TPB

-Travel Forecasting Model Version 2.1/

TP+, Release C Calibration Report,".

Metropolitan Washington Council of

Governments, December 23, 2002, p. 9-

1. The conclusion in the validation

report was that VMT is shown to be

overestimated by about 8 percent,

screenlines estimates are high by 17

percent overall, and the RMSE is about

151 percent, but the model performs well

in other capacities (transit estimation,

restrained speeds, trip distribution

pattern. COG/TPB's Version 2.1 travel

forecasting process represented the

continuation of a multi-year models

development plan that was formulated

in FY-93 in response to the Federal

Clean Air Act Amendments of 1990 and

the Intermodal Surface Transportation

Efficiency Act (ISTEA) of 1991. Id., p.

1-1. For instance, the validation report

states that the ratio of estimated to

observed transit trips was 0.95 which'

means that overall the TDM predictions

were only 5 percent less than the

observed values. For transit trips, the

ratio was 0.93 or 7 percent less. The

overall ratio of estimated to observed

VMT for the entire model domain was

1.08 which is equivalent to the TDM

over-predicting VMT by 8 percent. For

the Washington area, the TDM over

predicted VMT by 9 percent overall.

Overall, the Version 2.1/TP+ TDM

model used for the February 2004 SIP

revisions over predicted VMT by facility

type by 13 percent. See "COG/TPB

Travel Forecasting Model Version 2.1/

TP+, Release C Calibration Report,"

Metropolitan Washington Council of

Governments, December 23, 2002, Ex.

9-1 through 9-12.

While the Version 2.1/TP+ TDM

model under-predicts VMT on some

highway segments it over predicts on

most others. EPA believes that the claim

made in the comment that the TDM

19 "FY 2005-2010 Transportation Improvement

Program for the Washington Metropolitan Region

National Capital Region," Transportation Planning

Board and the Metropolitan Washington Council of

Governments, dated November 17, 2004, pp. 260 to

262.

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systematically underestimqc ttraff.ictf,

and therefore that the SIP revisions "necessarily understate emission

reductions needed" to achieve required

rates of progress, attainment or the VMT

offset requirements is not supported by

the facts. In actuality, the model

generally overestimatedVMT, as we

have noted.,

In a letter to the TPB, the TRB noted

that in the four decades of experience

with the use of travel demand models in

transportation planning there are few

universally accepted guidelines or

standards of practice-for these models

and their application, and any

assessment of these models, their

performance, and the current state of

transportation demand modeling • -

practices relies primarily upon

professional-experience and' .

judgement.2° Given that TDMs are

constantly undergoing -refinement, and

that models can always be improved,

EPA believes We need not hold up the

approval process until a hypothetical

"best model" is eventually, if ever,

developed. For these reasons, EPA

disagrees with the -bmment. -We

conclude that the TDM model used in

the SIP revisions is acceptable and that

the SIP revisions can be approved.

C. Comment on the VMT Offset SIP

Comment: We received a comment

asserting that-the SIP revisions are

deficient because they do not contain'

sufficient TCMs to offset growthin

emissions from growth in VMT or in

trip numbers. The comment alleges that

the Act requires the SIP to offset any

growth in emissions due to growth in

VMT or in trip numbers be offset rather

than a showing that overall motor

vehicle emissions are expected to,

decline. The comment implies that the

VMT offset provisions apply to both

VOC and NOx emissions.

Response: The VMT Offset Provision

Applies Only to VOC Increases. As an

initial matter EPA believes that the VMT

offset provision applies only to

increases of VOC emissions. As

explicitly stated in the proposed

rulemaking for the General Preamble for

the Implementation of Title I of the

Clean Air Act Ainendments of 1990, 57

FR 13498 at 13521, Apr. 16, 1992,.EPA

has consistently interpreted the VMT

offset requirements of the Act, Set forth

in section 182, to apply only to VOC

emissions. See, e.g., 60 FR 38718 at

38721, July 28, 1995; 60 FR 48896 at

48898-48899, September 21, 1995. As

20 Letter from David J. Forkenbrock, to

Christopher Zimmerman, Chairman, National

Capital Region Transportation ,Panning Board,

dated, May 10, 2004.

we explain, EPA disagrees with the

commenter's assertion that the VMT

offset SIP revisions are deficient because

these revisions do not address growth ,in

NOx emissions.

Section 182(d)(1)(A) of the:Act .

provides that "any growth in emissions"

from growth in VMT must be offset. :

EPA believes that in the plain language

of the Act Congress intended that this .

offset requirement be.limited.to VOC,

emissions. First, section 182(d)(1)(A)'s,

requirement that a'State's adopted

TCMs comply with the "periodic

emissions reduction requirements" of

subsections 182(b) and (c) the Act,

indicates that the VMT offset SIP

requirement is VOC-specific, and NOx,

emissions are not required to be offset.

Section 182(c)(2)(B),.which requires.

reasonable further progress

demonstrations for serious ozone

nonattainment areas, provides that such

demonstrations will result in VOC

emissions reductions; thus, the only

"periodic emissions reduction

requirement" of section 182(c)(2)(B) is

VOC-specific. In fact, it is only in

section 182(c)(2)(C)-a provision not

referenced in section 182(d)(1)(A)-that

Congress provided States the authority

to submit demonstrations providing for

reductions of VOC and NOx emissions

in lieu of the SIP otherwise required by

section 182(c)(2)(B).

Moreover, the 15 percent periodic.

reduction requirement of section

182(b)(1)(A)(i) applies only to VOC

emissions, while only the separate "annual" reduction requirement applies

to both VOC and NOx emissions. We

believe that.Congress did not intend the

terms "periodic emissions reductions"

and "annual emissions reductions" to

be synonymous, and that the former

does not include the latter. In section

176(c)(3)(A)(iii) of the Act, Congress

required that conformity SIPs "contribute to annual emissions

reductions" consistent with section

182(b)(1) (and thus achieve NOx

emissions reductions), but did not cross

reference the 15 percent periodic

reduction requirement. Conversely,

section 182(d)(1)(A) refers to the

periodic emissions reduction

requirements of the Act,. but does not

refer to annual emissions reduction

requirements that require NOx

reductions. Consequently, we interpret

the requirement that VMT Offset SIPs

comply with periodic emissions

reduction requirements of the Act to

mean that only VOC emissions are

subject to section 182(d)(1)(A) in severe

ozone nonattainment areas. Finally, we note that where Congress

intended section 182 ozone SIP

requirements to apply to NOx as Well as

VOC emissions, it specificallyexteqndeqJ

applicability to NOx. Thus, references to

ozone or emissions in general in section

182 do not on their own implicate NOx.

For example, in section 182(a)(2)(C), the

Act requires States to issue..

preconstruction permits for new or

modified stationary sources "with

respect to ozone." Congress clearly did

not believe this reference to ozone alone

was sufficient to subject NOx emissions

to the permitting requirement, since it

was necessary to enact section 182(f)(1)

of the Act, which ' specifically extends

the permitting requirement to major

stationary sources of NOx. Since section

182(d)(1)(A) does not specifically

identify NOx emissions requirements in

addition.to the VOC emissions

requirements identified in the

provision, EPA does not believe States

are required to offset NOx emissions

from VMT growth in their section

182(d)(1)(A) SIPs. - The VMT Offset Provision in Section

182 Does Not Apply as Claimed in

Comments. EPA has consistently

explained that the purpose of the VMT

offset requirement is to maintain motor

vehicle VOC emissions beneath-a "ceiling level" established through

modeling of mandated transportationrelated controls, so that VOC emission

reductions resulting from such measures

are not cancelled out by growth in

motor vehicle emissions. See, e.g., 57 FR

13498 at 13521-13523, April 16, 1992; "

61 FR 51214, October 1, 1996; 61 FR

53624, October 15, 1996; and 66 FR

57247 at-57247-57248, November 14,

2001.

The VMT offset provision of section

182(d)(1) of the Act requires that states

submit by November 15, 1992 specific

enforceable TCMs and transportation

control strategies to offset any growth in

emissions from growth in VMT or

number of vehicle trips and to attain,

reductions in motor vehicle emissions'

sufficient, in combination with other

measures, to allow total emissions in the

sever nonattainment area to comply.

with the ROP and attainment

requirements of the Act.

As discussed in the General Preamble,

EPA believes that section 182(d)(1)(A) of

the Act requires the State to "offset any

growth in emissions" from growth in

VMT, but not, as the comment suggests,

all emissions resulting from VMT

growth. See 57 FR at 13522-13523. As we explained in response to similar

comments objecting to our application

of the General Preamble's approach

when approving other SIPs, the purpose

is to prevent.a growth in motor vehicle

emissions from canceling out the

emission reduction benefits of the

federally maindated programs in the Act.

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See 60 FR at 48898; 60 FR at 38720-

38721. The baseline for emissions is the

1990 level of vehicle emissions and the

subsequent reductions in emission

levels required to reach attainment with

the NAAQS for 6zone. Thus, the

anticipated benefits frorfi the mandated

measures such as the Federal motor

vehicle pollution control program,

lower Reid vapor pressure, enhanced

inspection and maintenance and all

other motor vehicle emission control

programs are included in the ceiling

line calculations used by the States in

the VMT Offset SIP. Chapter 10 of the

February 2004 SIP revisions, shows how

emissions will decline substantially anol

will not begin to rise over the ceiling

established by the mandated controls.

Emission reductions are expected every

year through the year 2005.

Our approach is consistent with the

purposes Congress had in enacting

section 182(d)(1)(A). The ceiling line

level decreases -from year to year as the

state implements various control

measures, and the decreasing ceiling

line prevents an upturn in -mobile

source emissions. Dramatic increases in

VMT that could wipe out the benefits of

motor vehicle emission reduction

measures will not be allowed and Will

trigger the required implementation of

TCMs. This prevents mere preservation

of the status quo, and ensures emissions

reductions despite an increase in VMT

or number of vehicle trips. To prevent

futute growth changes from adversely

impacting emissions from motor

vehicles, states are required under

section 182(c)(5) of the Act to track

actual VMT and to periodically

demonstrate that the actual VMT is

equal to or less than the projected VMT,

with TCMs required to offset VMT that

is above the projected levels. Under the

commenter's approach to section

182(d)(1)(A), the States would have to

offset VMT growth even while vehicle

emissions are declining. Although the

statutory language could arguably be

read to require offietting any VMT

growth, EPA believes that the language

can also be reasonably and

appropriately read so that only actual

emissions increases resulting from VMT

growth need to be offset. The statute by

its own terms requires offsetting df "any

growth in emissions from growth in

[VMT]." 42 U.S.C. 7511a(d)(1). EPA has

reasonably and consistently interpreted

the VMT offset provision of the Act to

require that states adopt, and submit to

EPA for approval into their SIPs, TCMs

or transportation control strategies

sufficient to at least offset "growth in

[VMT] or numbers of vehicle trips," but

only if the VMT growth would result in

actual emissions increases from mobile

sources. Our consistent historic

interpretation of the language of section

182(d)(1)(A) is entitled to deference.

Chevron U.S.A., Inc. v. NRDC, 467 U.S.

837,842-44 (1984). See also U.S. v.

Mead, 533 U.S. 218, 227-35 (2001).

Given the susceptibility of the

statutory language to these two

alternative interpretations, EPA believes

it is the Agency's role, in administering

the statute to take the interpretation

most reasonable in light of the practical

implications of such interpretation; and

the purposes and intent of the statutory

scheme as a whole. In the context of the

intricate planning requirements

Congress established in title I to bring

areas towards attainment of the ozone

standard, and in light of the absence of

any discussion of this aspect of the VMT

Offset provision by the Congress as a

whole (either in floor debate or in the

Conference Report), EPA has

consistently concluded that the

appropriate interpretation of section

182(d)(1)(A) requires offsetting VMT

growth only when such growth would

result in actual emissions increases. 21

When growth in VMT and vehicle

trips would otherwise cause an upturn

in emissions from motor vehicles, this

upturn must be prevented. The

emissions level at the point of upturn

becomes a ceiling on motor vehicle

emissions. This requirement applies to

projected emissions in the years

between the submission of the SIP

revision and the attainment

demonstrations. The ceiling level is

defined, therefore, up to the point of

upturn, as motor vehicle emissions that

would occur in the ozone season of that

year, with VMT growth, if all measures

for that area in that year were

implemented by the Act. When this

curve begins to turn up due to growth

in VMT or vehicle trips, the ceiling

becomes a fixed value. The ceiling line

would include the effects of federal

measures such as new motor vehicle

standards, phase II Reid vapor pressure,

(RVP) controls, and reformulated

gasoline, as well asthe statutorilymandated SIP requirements. For the

reasons outlined in the February 9, 2005

NPR (70 FR 2085), EPA believes that the

February 2004 SIP revisions fulfill the.

first element.

21 As noted previously, EPA has applied this

interpretation since the enactment of the 1990

amendments to the Clean Air Act adding section

182(d)(1)(A), and in response to adverse comments

submitted on other rulemaking actions. See, e.g., 60

FR 48898 (final approval of Illinois' SIP) and 60 FR

39720-39721 (final approval of Indianh's SIP); 66

FR 57247 at 57247-57248, November 14, 2001 (final

approval of Texas SIP).

,Under !3?'s approach, the second

element, which requires the VMT offset

SIP to comply with the 15 percent ROP

requirement of the Act, was due on

November 15, 1993 for areas initially

classified as severe nonattainment.

November 15, 1993 is the sam date on

which the 15 pefcent ROP SIP itself was

due under section 182(b)(1) of the Act.

For areas initially classified as severe

nonattainment, EPA believes it was

reasonable to extend the deadline for

this VMT offset element from November

15, 1992 to the date on which the entire

15 percent SIP was due, as this allows

states to develop the comprehensive

strategy to address the 15 percent

requirement and assure that the TCMs

elements required under section

182(d)(1)(A) are consistent with the

remainder of the 15 percent

demonstration. Indeed, EPA believes

that only upon submittal of the broader

15 percent plan can a state have had the

necessary opportunity to coordinate its

VMT strategy with its 15 percent plan.

In the case of the Washington area, the

second element has been fulfilled

because the 15 percent ROP plans were

approved long before the area was

reclassified to severe nonattainment.

See 64 FR 42629, August 5, 1999; 65 FR

44686, July 19, 2000; and, 65 FR 59727,

October 6, 2000.

The third element, which requires the

VMT offset SIP to comply with the post1996 ROP and attainment requirements

of the Act, was due on November 15,

1994, the statutory deadline for those

.broader submissions. For areas initially

classified as severe nonattainment, EPA

believes it is reasonable to similarly

extend the deadline for this VMT

element to the date on which the post1996 ROP and attainment SIPs are due

for the same reason it is reasonable to

extend the deadline for the second

element. 22 First, it is arguably

impossible for a state to make the

showing required by section

182(d)(1)(A) for the third element until

the broader demonstrations have been

developed'by the State. Moreover,

allowing states to develop the

comprehensive strategy to address post1996 ROP plans and attainmeit by

providing a fuller opportunity to assure

that the TCMs elements comply with

the broader ROP plans and attainment

demonstrations, will result in a better

program for reducing- emissions in the

long term. In the case of the Washington

area, EPA believes the third element has22

1 In the case of the Washington area, the post1999 portions of the post-1996 ROP plan required

under section 182(c)(2) were in fact due on the

same as the VMT offset SIP. See 68 FR 3410,

January 24, 2003.,

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been fulfilled for the reasohl h :in

the February 9, 2005 NPR (70 FR 2085)

and this doc'ument because EPA is

approving the 1996-1999 and 1999-

2005 ROP plans and the modeled •

demonstration of attainment. EPA thus

finds that the SIPs contain all measures

necessary tolprovide for timely

attainment and ROP, and therefore that

no additional TCMs will be necessary to

meet those requirements.

D. Comment on the Contingency

Measures Plans

Comment 1: We received'a comment

asserting that EPA cahnot approve the

contingency measures which were

identified in the SIP revisions to address

the Washington area's the failure to

attain by November 15, 1999. The

comment claims that, because these

measures in the plan required further

action by the States, these contingency

measures do not meet the CAA's

requirement that the measures take

effect without further action by the State

or EPA after the failure to attain. The

comment also claims the contingency

measures do not meet EPA's own

guidance which requires contingency

measures to achieve reductions no later

than the year after the one in which the

failure is identified because these

contingency measures identified by the

SIP revision were not implemented

until 5 to 6 years after the failure to

attain.

Response 1: EPA disagrees with the

comment that the contingency plan for

the failure of the Washington serious

ozone nonattainment area to attain by

November 15, 1999 cannot be approved.

The comment does not address the

factual situation for the Washington area where the SIP did not contain a

contingency measures plan consisting of

fully adopted measures until the

submission of the February 2004 SIP

revisions and submission of the various

adopted rules identified as the

contingency measures that is the

contingency measures implemented in

response to the failure of the

Washington area to attain the 1-hour

ozone NAAQS by November 15, 1999.

Prior to our January 12, 2004 NPR (70

FR 2085), EPA had recognized that the

SIP of each of the Washington area

States did not contain contingency

measures to address the failure to attain

(FTA) the ozone NAAQS by November

15, 1999 (the "contingency.measures for

1999 FTA"). In the January 12, 2004

NPR (70 FR at 2087), we provided a

brief history of the severe area SIP

revisions by noting that EPA had

previously conditionally approved the

post-1996 ROP plans and those versions

of the attainment plans submitted

during 1998 and 2000, contiligent upon

the States fulfilling commitments they

made to submit the additional elements

required of SIPs for a severe area within:

one year. One of the conditions for

approval in the April 17, 2003 final

conditional approval (68 FR 19106) was

that the States had to revise the

Washington area severe attainment plan

to include a contingency plan

containing those adopted measures that

qualify as contingency measures to be

implemented for the failure, of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999; that is, the States

had to submit SIP revisions to add the

contingency measures for 1999 FTA. 68

FR at 19106. In the NPR for the April

17, 2003 final conditional approval,

EPA noted that the States in the

Washington area had committed to

submit to the EPA those measures that

qualify as contingency measures due to

the failure of the Washington area to

attain the ozone standard for serious

areas by November 15, 1999. 68 FR at

5248, February 3, 2003. In the February

3, 2003 NPR, EPA also recounted that

our January 3, 2001 approval (66 FR

586) of the post-1996 ROP plans and

those versions of the attainment plans

submitted during 1998 and 2000 had

been vacated by the Court of Appeals.

The Court of Appeals determined that

EPA lacked the authority to approve

attainment plan and ROP SIPs without

contingency measures. Sierra Club v.

Whitman, 294 F.3d at 164. EPA had

noted that the post-1996 ROP plans and

those versions of the attainment plans

submitted during 1998 and 2000

covered by the January 3, 2001 final rule

"[did] not specify any specific measures

as contingency measures." 66 FR at

615-616, January 3, 2001. EPA also

agreed with comment that he lawn/

garden measure identified in the

contingency plan as a contingency

measure Was insufficient. Therefore,

EPA believes that prior to submittal of

the February 2004 SIP revisions and the

SIP revisions containing the adopted

rules for the contingency'measures the

Washington area States had'not

submitted the necessary SIP revisions

for the contingency measures for 1999

FTA.

EPA has interpieted the requirement

that contingency measures must "take

effect without further action by the State

or the Administrator" to mean that no

further rulemaking activities, such as

public hearings or legislative review, by

the State or the EPA should be needed

to implement the contingency measures.

See 57 FR at 13512, April 16, 1992;-

section 9.0'of "Guidance for Growth

Factors, Projections, and Control

Strategies for the 15 Percent Rate-ofProgress Plans," (EPA-452/R-93-002,

March 1993). EPA has required that

contingency measures must be fully

adopted rules or measures but do not

have to be implemented unless and._

until they are triggered by a failure to

either meet a milestone or attain the

NAAQS. See section 5.6 of "Guidance

on the Post,'96 Rate-of-Progress Plan

(RPP) and Attainment Demonstration"

(Corrected version of February 18,

i994).

. The States did not have adopted

contingency measures to implement

without further action by the States on

the effective date of EPA's

determination that the Washington area

failed to attain by 1999. If EPA were to

now disapprove the contingency

measures plan because the States

needed to take further action after the

1999 FTA.in order to implement the

contingency measures to address the

1999 FTA, the States would have to

adopt and submit SIP revisions

consisting of a revised contingency

measures plan and adopted control

measures, and, EPA would have to.

approve those SIP revisions in order to

prevent or lift sanctions required by

section 179 of the Act. This would be

an impossibility since the relevant 1999

date has long since passed. In short, the

States and EPA would have to

undertake rulemaking actions on those

remedial SIP revisions, and those

rulemakings would suffer the sane fate

that the commenter's claim make the

measures we approve today supposedly

defective-we would have to

disapprove them becAuse they were not

unplementable prior to the States'

failure to attain in 1999. The commenter

would have EPA produce an endlessly

looping, absurd result, namely, the

States would be left in a position where

no SIP revision would be able to lift

sanctions because the States cannot go

back in time to adopt measures that

were not adopted by a deadline in the

past. The fact that the States failed to

adopt and submit these measures in a

timely fashion should not preclude EPA

from approving them now that they

have been adopted, implemented, and

submitted.

EPA further disagrees with the

comment that the contingency measures

needed to address the contingency

measures for 1999 FTA are inadequate

because these measures do not meet EPA's guidance which requires

contingency measures to -achieve

reductions no later than theyear after

the one in which the failure is

identified. Once again, the commenter

would have EPA produce at absuid

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result. Because the States cannot go

back in time to implement measures

that were not implemented by a

deadline in the past, if EPA were to

disapprove the contingency measures

for 1999 FTA for the reason advanced in

the comment, the States again would be

left in the situation where no SIP

revisions or measures could be '

approved to halt or lift sanctions. Any

further SIP revisions to address the

contingency measures for 1999 FTA

would suffer the same defect of

timeliness. Given this impossibility EPA

believes that it is appropriate and

beneficial to the environment to

belatedly get the reductions

contemplated by the 1999 FTA

contingency measures.

EPA agrees that our guidance and

policy requires contingency measures,

once triggered, to achieve reductions no

later than the year after the one in

which the failure is identified. However,

this guidance applies to contingency

measures that meet the requirement that

the measures can be "implemented

without further action" by the state or

EPA. EPA expects that certain actions,

such as notification of sources,

modification of permits, etc., would

probably be needed before a measure

could be implemented effectively'

needed to affect full implementation of

the contingency measures and expect

such actions to occur within 60 days

after EPA notifies the State of its failure.

See 57 FR at 13512, April 16, 1992. EPA

considers that in the case of a failure to

attain, the State is notified of a failure

to attain only once EPA has published

the notice in the Federal Register

pursuant to section 181(b)(2)(B) that

EPA has determined that the area has

failed to attain by the statutory

attainment date, and that such

notification is effective on the effective

date of the Federal Register publication.

Under section 181, such a notification

can be published no later than May 15th

of the year following the attainment date

apd still be timely under the Act. For a

November 15, 1999 attainment date, the

one-year period for implementation of

the contingency measures for 1999 FTA

could well have started May 15, 2000.

For the Washington area, EPA's

determination that the area had failed to

attain by the serious attainment date of

November 15, 1999 was in fact effective

March 24, 2003. 68 FR 3410, January 24,

2003. In the case of the Washington

area, the States adopted and

implemented by January 1, 2005 all the

measures identified in the plan as

addressing the contingency measures for

- 1999 FTA. See Table X. B-1 Summary

of Benefits from Measures 7.4.11, 7.4.12

and 7.4.14 of the January 5,'2005 TSD. 23

Arguably, the one-year period after the

States were notified of the failure to

attain ended March 24, 2004, .but as

discussed previously, the States needed.

to first adopt the measures that would

be used as the contingency measures for

1999.FTA before the measures could be

implemented. The comment offers no

suggestion on how the States might

retroactively obtain emission reductions

in 2004 (or for that matter 2000) for

measures that the States did not adopt

and implement until after that time.

As pointed out by the Court of

Appeals.in Sierra Club v. EPA, 356 F.3d

296, with respect to the reclassification

of the area to severe nonattainment

status due to the its failure to attain the

1-hour ozone NAAQS by November 15,

1999, this commenter "challenged

EPA's decision to extend the States'

final deadline for submitting revised

SIPs complying with the Act's

requirements for severe areas, including

post-1999 ROP plans, to March 1,

2004." 356 F.3d at 308-09.

The Court of Appeals acknowledged

that "the deadline for filing severe area

SIP components including post-1999

ROP plans had already passed long

before reclassification took place.

Indeed, the statutory deadline for such

submittals was November 15, 1994." Id.

at 309. Citing to a prior decision, -Sierra

Club v. Whitman, 285 F.3d 63 (D.C. Cir.

2002), the Court reiterated that "'The

relevant provisions of the Clean Air Act * * * contain no language suggesting

that Congress intended to give EPA the

unusual ability to implement rules

retroactively,'" in upholding EPA's

reliance on the discretion conferred by

section 182(i) of the CAA to adjust

applicable statutory deadlines, other

than attainment dates, when it

reclassifies an attainment area. Similarly, EPA believes that it would

be arbitrary and capricious to impose a

retroactive obligation on the States that

can never be fulfilled, resulting in

sanctions that could never be lifted. It

would be especially egregious for EPA

to put the States in that position since

the States' failure to submit contingency

measures or to even realize that the

November 15, 1999 attainment date

pertained to the Washington area was

due to their reliance on published EPA

guidance24 The failure to begin

23 "Technical Support Document for Approval

and Promulgation of Air Quality Implementation

Plans; District of Columbia, Maryland, and Virginia;

Post-196 Rate-of-Progress Plan, Contingency

Measures, Transportation Control Measures, 1990

Base Year Inventory Changes, and VMT Offset SIP

for the Metropolitan Washington, DC

Nonattainment Area," dated January 5, 2005. 24 Se&, Memorandum dated July 16, 1998, from

Richard Wilson, Acting Assistant Adninistrator for

implementationof contingency

measures in 2000, upon. a March 24,

2003 EPA finding that the area failed to

attain in November 1999, cannot be

cured by a state rulemaking that

occurred before March 24, 2003; there

was no such rulemaking then, it does

not exist now, and it never can be. After

March 24, 2003, the States could

complete their respective state

rulemaking processes to develop the

missing contingency measures. They

have done so, and all those measures

have been implemented. In this action EPA is acting on SIP

revisions that, with respect to the

contingency measures for 1999 FTA,

identify additional measures that the

States have implemented subsequent to

November 15, 1999 attainment date for

serious areas. EPA concludes that in the

circumstances of this case it is

appropriate and consistent with the

statute to approve these contingency

measures that have now been

implemented.

Comment 2: We received a comment

asserting that the contingency plan for

2005 cannot rely on measures already

adopted and in place or to be in place

before the 2005 attainment and ROP

deadline. The comment claims that the

Act requires that contingency measures

must be additional measures that will be

triggered by the attainment or milestone

failure, that is, the Act provision is

prospective, not retrospective. In

support of their argument, the comment

cites language, "to be undertaken in the

event the area fails," from the legislative

history for the 1990 amendments to the

Act.

Response 2: EPA believes that its

interpretation of the contingency

meagure provisions of the Act

applicable to severe nonattainment

areas is a reasonable interpretation of

the Act because reductions from these

contingency measures are continuing in

nature. Sections 172(c)(9) and 182(c)(9)

of the Act direct that a state's revised

SIP shall include "specific measures to

be undertaken" if an ROP or attainment

milestone is missed, and that the

contingency measures are "to take effect

in any such case without further action

by the State or the Administrator." 42

U.S.C. 7502(c)(9), 7511a(c)(9) (emphasis

added).

EPA has consistently stated that any

rule or measure that meets the

creditability requirements of section

182(b)(1)(C) and (D), that would achieve

real, permanent, enforceable reductions,

and that is not already required as a part

of the relevant ROP or attainment

Air and Radiation, "Extension of Attainment Dates

for Downwind Areas."

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demonstration SIP, can be adopted as a

contingency measure. See "Guidance on

the Post-1996 Rate-of-Progress Plan and

Attainment Demonstration" (corrected

version as of 2/18/94), section 5.6.

Congress, in the Act, did not define

the terms "to take effect" and "to be

undertaken." The terms "to take effect"

and "to be undertaken" could imply a

purely prospective action that excludes

the possibility of contingency measure

implementation prior to an area's failure

to meet an ROP milestone or attainment

date. If we were to read the CAA this

way, the only acceptable contingency

measure would be those that are

adopted but not implemented. Under

that reading, the states could adopt the

contingency measures but hold their

.implementation in reserve to meet the

contingency measure requirement. If we

read the Act to allow adopted and

implemented measures that continue to.

result in emissions reductions in years

subsequent to their implementation to

serve as contingency measures,

provided that those measures' emission

reductions are not needed to

demonstrate expeditious attainment

and/or ROP, the states could implement

the contingency measures early and

would achieve the environmental

benefits prior to the triggering of the

contingency requirement. Nothing in

the language of sections 172(c)(1),

172(c)(9) or 182(c)(9) prohibits this

interpretation. Implemented

contingency measures achieve

continuing emissions reductions. We

reasonably interpret the term "to take

effect" and "to be undertaken," as used

in sections 172(c)(9)and 182(c)(9) of the

Act, to allow as contingency measures,

measures implemented prior to the

failure to achieve an ROP or attainment

milestone, that will continue to achieve

emissions reductions after the plan fails,

so long as those measures are not

needed to demonstrate expeditipus

attainment and/or ROP. As noted

previously, this interpretation is a

longstanding exercise of EPA's authority

to construe a statutory scheme it is

entrusted to administer, by filling the

gap left by Congress's failure to define

the terms "to take effect" and "to be

undertaken." See generally, U.S. v.

Mead Corp., 553 U.S. at 227-35;

Chevron U.S.A, Inc. v. NRDC, 467 U.S.

837, 842-45 (1984).25 . EPA believes that allowing early

reductions to be used as contingency

measures comports with a primary

purpose of the Act-the aim of ensuring

2 5 The commenter's appeal to the legislative

history does not add to its argument, since the

quoted language reiterates, but does not elaborate,

explain or expound upon, the statutory text.

that nonattainment areas reach NAAQS

compliance in an efficient manner and

achieving additional emissions

reductions that will improve air quality.

The contingency plan allows the

Washington area to include sufficient

contingency measures to ensure that "upon implementation of such

measures, additional.emiissions

reductions of up to 3 percent of the

emissions in the adjusted base year

inventory (or such lesser percentage that

will cure the identified failure) would

be achieved in the year following the

year in which the failure has been

identified." See 57 FR at 13511, April

16, 1992.

The emissions reductions from the

measures in the Washington area

.contingency plan are not available for

any other use so long as the measures

remain in the SIP as contingency

measures. A failure to attain or failure

to demonstrate ROP will result in these

emissions reductions being applied

toward attainment or ROP (depending

on which milestone is not being met).

Even though these measures are already

implemented, the continuing reduction

credits are, in effect, set aside to be

applied in the event that attainment-or

ROP is not achieved. These credits are

immediately available, without further

.action by the States. We note that

measures that have already been

implemented clearly meet CAA section

172(c)(9) requirement that contingency

measures take effect without further

action by the State or Administrator.

EPA believes that it would be illogical

and counterproductive to penalize

nonattainment areas that are taking

extra step of implementing contingency

measures prior to a failure to achieve a

ROP or attainment milestone, to further

insure that the area will comply with

the CAA's mandate that states attain the

NAAQS as "expeditiously as

practicable." 42 U.S.C. 7502(c)(1). As

we have noted previously, "There are a

number of benefits to allowing and even

encouraging the early implemaentation of

contingency measures The chief benefit

is that their emission reductions and

thus their public health benefit are

realized early. Another is that it allows

states to build uncredited cushions into

their attainment and RFP

demonstrations, a cushion which makes

actual failures to make progress or attain

less likely." 67 FR 48718, 48731, July

25, 2002.

The standard advocated by the

comment would allow EPA to approve

the contingency measure plan only if

the measures were scheduled for,

implementation in the event of a future

failure to make a ROP target or attain the

NAAQS. EPA believes that the States

could correct a disapproval issued

pursuant the standard advocated by the

comment by amending the contingency

measure rules themselves to replace the

current requirement for compliance by a

date certain with a requirement to

comply by some date(s) in future to be

determined only upon a ROP or*

attainment failure. Such a revision

would not interfere with ROP or

attainment because EPA believes that

the reductions from the measures in the

contingency plan to address a ROP

failure or a failure to attain by

November 15, 2005 must go beyond the

-emissions reductions needed to

demonstrate ROP and timely attainment

(i.e., they are "surplus"). Although this

result might arguably comply with the

statute as the commenter suggests, it

would actually be detrimental for air

quality as the measures would not be

producing emissions reductions

currently as under the suknmitted SIP.

The comment alleges that if an area

fails to meet a progress or attainment

deadline, the measures already in effect

are insufficient, thus warranting the

implementation of additional controls

which the comment claims should be

the contingency measures. Yet, the

comment fails to recognize that if the

area fails to attain on time, such failure

would have been worse in the absence

of the contingency measures. Likewise,

if an area has an ROP shortfall, such

shortfall would have been larger in the

absence of the contingency measures. EPA has approved many contingency

measure plans relying upon early

implementation of contingency

measures. See, e.g., 67 FR 60590,

September 26, 2002. EPA's,

interpretation that early implemented

contingency measures meet the

requirements of the Act was upheld in

Louisiana Environmental Action

Network v. EPA, 382 F.3d 575 (5th Cir.

2004), though the court found that the

particular measure at issue did not

qualify as a contingency measure for

other reasons.

Comment 3: We received a comment

that the Act-requires a set of

contingency measures to address any

failure to meet ROP requirements for the

2012-2005 period, that is separate from

those required for failure to attain. The

comment claims that the requirement

for contingency measures to address

post-1996 milestone failures is

explicitly set out in the Actas an

additional mandate in addition to the

requirement for contingency measures

to address attainment failures. The

comment further claims that the 2005

ROP deadline here could precede the

attainment date if, in the case of an area

which qualifies for one or both of the 1-

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year attainment date extensions allowed

by the Act.

Response 3: EPA disigrees that

section 182(c)(9) of the Act necessarily

adds anything substantive to the

requirement of section 172(c)(9) other

than a requirement that the contingency

plan be able to address a milestone

failure pursuant to section 182(g). EPA

first notes that neither sectioff 182(c)(9)

nor 172(c)(9) of the Act specify how

many contingency measures are needed

or the magnitude of emissions

reductions that -must be provided by

these measures. The Act is totally silent

on this issue. EPA rejected the

interpretation that the Act requires

states'to adopt sufficient contingency

measures to make up for a shortfall

resulting from the failure where none of

the-state measures produce any

expected reductions. We thus rejected

an interpretation where the state would

have to adopt "double" the measures

needed to satisfy the applicable

emissions re duction requirements

because EPA believes that this would be

an unreasonable requirement given the

difficulty many States will already have

in identifying and adopting sufficient

measures to meet ROP and othei

requirements, let alone contingency

measures. See 57 FR at 13510-13512,

April 16, 1992.

Instead, EPA believes that the

contingency measures should, at a

minimum, ensure that an appropriate

level of emissions reduction progress

continues to be made if attainment or

ROP is not achieved and additional

planning by the state is needed.

Therefore, EPA has interpreted the Act

to require states with moderate and

above ozone nonattainment areas to

include sufficient contingency measures

so that, upon implementation of such

measures, additional emissions

reductions of up to 3 percent of the

emissions in the adjusted base year

inventory 26 (or such lesser percentage

that will curethe identified failure)

would be achieved in the year following

the year in which the failure has been

identified. This "additional" reduction

would ensure that progress toward

attainment occurs at a rate similar to

that specified under .the ROP

requirements for moderate areas (i.e., 3

percent per year), and that the state

would achieve these reductions while

conducting additional control measure

development and implementation as

necessary to correct the shortfall in

emissions reductions and/or to adopt

newly required measures resulting from

26 The adjusted base year inventory is that

inventory specified by the provisions under section

182(4)(1)(B).

reclassification to a higher

classification, in the case of a moderate

or serious area, or to meet the 3 percent

per year requirements specified by

section 181(b)(4)(A) of the Act for severe

areas that fail to attain. Under this

approach, the State would have 1 year

to modify its SIP and take other

corrective action needed to ensure that

milestones are achieved and that ROP

toward attainment continues. See 57 FR

at 13510-13512, April 16, 1992.

Section 182(c)(9) provides that "[in

addition to the contingency provisions

required under section [172(c)(9)] * * *

the plan revision [for serious and above

nonattainment areas] shall provide for

the implementation of specific measures

to be undertaken if the area fails to meet

any applicable milestone." Section

172(c)(9) requires contingency measures

for failure of an area to "make

reasonable further progress, or to attain"

the NAAQS. As clarified by section

182(g)(1) of the Act, the "applicable

milestones" for serious, and above,

nonattainment areas, such as the

Washington area, which is a severe

nonattainment area, are those tied to the

ROP plan percent emission reductions.

The commenter urges EPA to interpret

sections 172(c)(9) and 182(c)(9) to

require not only that there be

contingency measures in the SIP tied to

the ROP milestones for the Washington

area, but that these contingency

measures must be different from the

measures required under 172(c)(9).

We believe, however, that 182(c)(9)

merely adds milestones for serious and

above areas that must be included as

triggers for contingency measures, and

does not impose any requirement for a

state to adopt contingency measures in

addition to those being used in the

contingency plan -equired by section

172(c)(9), provided that such measures

will generate reductions in all. the

relevant years. 27 Thus a state may

specify the same contingency measure

to be used for failure to attain the

NAAQS as for failure to meet an ROP

milestone, in a year for which-the

measure produces emission reductions.

Of course, if a measure is triggered for

failure to meet a milestone in an early,

year the area would have to submit an

additional measure to be available in the

event of a later failure to meet a

subsequent milestone or demonstrate

attainment. Since the plain language of

27We note that ifa serious or above

nonattainment area fails to meet an applicable

milestone, the contingency measures will not even

necessarily be triggered. A state may opt to be

-reclassified to the next higher classification or to

adopt an economic incentive program in lieu of

implementing the measures in its contingency plan.

42 U.S.C. 7511a(g)(3).

the statute supports this interpretation,

and nothing in the statute prohibits this

interpretation, EPA's interpretation of

how these two contingency measure

provisions relate to each other is

entitled to deference. See U.S. v. Mead

Corp., 553 U.S. 218 (2001); Chevron

U.S.A, Inc. v. NRDC, 467 U.S. 837

(1984).

Comment 4: We received a comment

asserting that the contingency plan does

not meet EPA's guidance because the

plan does not contain a commitment for

timely adoption of additional measures

if the 3 percent contingency plan is not

adequate to correct a failure to attain or

achieve an ROP milestone.

Response 4: While EPA's guidance

does specify that the States to backfill a

contingency measures plan after the

need for the measures'is triggered

neither the statute nor the guidance

contains the sort of commitment

claimed'by the comment.

"Any implemented measures (that are

not needed for the rate-of-progress

requirements or for the attainment

demonstration) would need to be

backfilled only to the extent they are

used to meet a milestone * * * The

State would be required to adopt new

contingency measures as part of the

process of developing their new SIP for

their new classification" See section 5.6

of "Guidance on the Post '96 Rate-ofProgress Plan (RPP) and Attainment

Demonstration" (Corrected version of

February 18, 1994). "Within 1 year of

the triggering of a contingency requiring

the early implementation of control

measures, the State must submit a

revision to the SIP containing whatever

additional measures will be needed to

backfill the SIP with replacement

measures to cure any eventual shortfall

that would occur as the result of the

early use of the contingency measure."

See 57 FR at 13511, April 16, 1992.

The commitment discussed.in the

General Preamble (57 FR 13498 at

13511-31512, April 16, 1992) was to an

annual tracking program-not a

commitment to backfill the plan with

new measures. As interpreted in the

general preamble, EPA does not believe

that contingency measures are required

to completely fill any shortfall caused

by a failure. This will be filled by the

revised plan required to cure the failure.

Comment 5: We received a comment

asserting that the contingency plan must

contain some NOx reductions since the

ROP and attainment plans-rely upon

NOx reductions as well as VOC

reductions.

Response 5: With regard to the need.

for NOx contingency measures, EPA

disagrees with the comment that the

contingency plan must contain NOx

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contingency measures simply because

the ROP and attainment plans rely upon

NOx reductions. As to contingency

measures to address a failure to in the

ROP plans, the Act creates a clear

command that VOC reductions

presumptively meet the ROP

requirements applicable to moderate,

serious and worse areas. Section

182(b)(1)(A) requires a ROP plan for a

15 percent reduction in baseline VOC

emissions. EPA has never interpreted

the Act to allow NOx substitution in the

15 percent plan for an area which is

subject to subpart 2 of part D to Title I

of the Act and which is not already

covered by a 15 percent ROP plan. See,

section 1.1 of "Guidance on the Post1996 Rate-of-Progress Plan and

Attainment Demonstration" (corrected

version as of 2/18/94); see; 68 FR at

32826, June 2, 2003 (waiving the VOC

reduction requirement would require

"absurd results;" "We believe that

absurd results will happen only rarely

in those cases where application of the

requirement in that area would thwart

the intent of Congress in enacting the

relevant provisions of the [Act]."

Absurd results would require a showing

that "future VOC reductions required

under subpart 2 for a particular area

would actually.cause ozone to increase

more than'a de minimis amount," and,

"it would not be sufficient for the area

to show that VOC reductions would be

less beneficial than NOx reductions.")

See 68 FR at 32833, June 2, 2003.

Section 182(c)(2)(B) requires ROP

reductions averaging 3 percent per year

reduction in baseline VOC emissions.

Section 182(c)(2)(C) authorizes EPA to

accept ROP plans containing a lesser

percentage of VOC reductions plan if

the that substitutes NOx reductions in

accordance with EPA's guidance.

The comment claims EPA's policy

and guidance requires SIPs to provide

for contingency reductions in NOx

where the SIP for the area relies on NOx

substitution in lieu of or in addition to

VOC reductions. In support of this

position, the commenter quotes a

footnote in the General Preamble, 57 FR

13498, April 16, 1992. However, EPA

believes our interpretation of the Act set

forth in later guidance allows just the

opposite, namely, that the contingency

measures for both ROP and attainment

failures can provide for at least some

VOC reductions where the attainment

plan relies on VOC and NOx reductions

even if the ROP plan relies on all NOx

reductions. See "Guidance on Issues

Related to 15 Percent Rate-of-Progress

Plans," Memorandum from Michael H.

Shapiro, Acting Assistant Administrator

for Air and Radiation to the Regional

Division Directors, August 23, 1993.28

This later guidance provides that NOx

contingency reductions can be

substituted for VOC contingency

reductions, but plainly does not

preclude all of the contingency

reductions from being achieved through

VOC control.

Where a ROP plan relies upon 9

percent NOx reduction to demonstrate

ROP pursuant to section 182(c)(2)(C) of

the Act for one or more milestone years

after 1996, EPA believes that a'

milestone failure caused by a shortage of

NOx reductions can be filled by VOC

reductions. Under EPA's guidance for

NOx substitution, the VOC contingency

reductions would in essence change the

plan from one relying upon 9 percent

NOx reductions to a plan relying.upon

a mixture of NOx and VOC percentage

reductions. For instance, a 1 percent

failure would change in such a ROP

plan from 9 percent NOx to 8 percent

NOx and at least 1 percent VOC.

EPA believes that the Washington

area attainment plans demonstrate

attainment through a strategy of VOC

and NOx control. Therefore, inclusion

of VOC measures in the contingency

measures plan is proper to address a

failure to attain.

Comment 6: We received a comment

alleging that all of the emission

reductions from the continency

measures are not "surplus" because

neither EPA nor the States have

quantified the total VOC and NOx

reductions needed to attain by

November 15, 2005. The comment

further claims that the use of a WOE

approach in the modeled demonstration

of attainment is incapable of identifying

the precise level of emission reductions

needed for attainment and thus does not

support the claim that there are "surplus" reductions in the SIP that can

be used for "contingency" purposes.

Response 6: The photochemical grid

modeling runs used in the SIP revisions

which were the subject of the April 17,

2003 final rule (68 FR 19106) are the

same as those photochemical grid

modeling runs used in the February

2004 SIP revisions which are the subject

of this final rule. The WOE analytical

methods and/or analyses that support

the modeled demonstration of

attainment in the February 2004 SIP

revisions, which are the subject of this

final rule, include the same WOE

analytical methods and/or analyses that

supported the modeled demonstration

of attainment which were the ubject of

the April 17, 2003 final rule (68 FR

28 Reissued in Appendix D to "Guidance on the

Post-1996 Rate-of-Progress Plan and Attainment

Demonstration" (corrected version as of 2/18/94).

19106). This issue has been litigated by

the commenter and conclusively

decided in EPA's favor. See Sierra Club

v. EPA, 356 F.3d at 304-307. In

addition, as noted in section IV. A. 2. of

the January 31, 2005 TSD prepared for

the February 9, 2005 NPR (70 FR 6796)

the States provided additional WOE in

the form of the results of EPA's

photochemical grid modeling'performed

for the Tier 2 final rule. See, sections VI.

A. 1. and 2. of "Technical Support

Document for Approval and

Promulgation of Air Quality

Implementation Plans; District of

Columbia, Maryland, and Virginia;

Attainment Demonstration for the

Metropolitan Washington, DC

Nonattainment Area," dated January 31,

2005.

As discussed elsewhere in response to

comment, EPA believes that the States'

use of photochemical grid modeling

with an adjunct WOE analysis

demonstrates timely attainment and

meets the statutory requirements of the

Act and constitutes a modeled

demonstration of attainment.

Specifically, EPA incorporates by

reference the responses to comment in

section IV. A. "Comment on the

Attainment Demonstration Modeling" of

the preamble to this final rule. In the

TSD prepared for thb NPR for this final

rule, EPA concluded that without the

reductions from the contingency

measures 'the SIP contained sufficient

creditable measures to achieve

emissions levels in the Washington area

of 331 TPD of VOC emissions and 491

TPD of NOx emissions. 29

These overall emissions levels of 331

TPD of VOC and 491 TPD of NOx are

still less than the levels used in the

photochemical grid modeling which

assumed levels of 360 TPD of VOC

emissions and of over 500 TPD of NOx

emissions, and are sufficient to support

the WOE demonstration.30 The WOE

demonstration builds upon the

photochemical grid modeling by

considering other photochemical grid

modeling results, and the overall change

in emissions from the 1990 base year to

the 2005 attainment year. EPA

concludes that attainment is

29 Table IV.F-1 Relative Reductions on page A27 of "Technical Support Document for Approval

and Promulgation of Air Quality Implementation

Plans; District of Columbia, Maryland, and Virginia;

Attainment Demonstration for the Metropolitan

Washington, DC Nonattainment Area,'! dated

January 31, 2005.

30 Table IV.F-1 Relative Reductions on page A27 of "Technical Support Document for Approval

and Promulgation of Air Quality Implementation

Plans; District of Columbia, Maryland, and Virginia;

Attainment Demonstration for the Metropolitan

Washington, DC Nonattainment Area," dated

January 31, 2005.

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demonstrated without reliance upon the

reductions from the contingency

measures and therefore the reductions

from the contingency measures are

surplus for the purposes of attainment.

Comment 7: We received a comment

asserting that the SIP cannot rely on the

reformulated gasoline (RFG) program as

a "contingency" measure to address the

area's failure to attain by 1999, because

the RFG program became mandated by

the Act once the Washington area

missed the 1999 attainment deadline.

The comment claims that contingency

measures are measures that must be in

addition to those mandated by the Act.

The comment also claims that RFG was

never intended as a contingency

measure and, thus, contrary to EPA's

assertion, it is hardly a "penalty" to the

nonattainment area to disallow

contingency credit for a measure that

was never intended as a contingency

measure, and that was implemented at

a time when the area was already years

behind schedule in adopting adequate

ROP and attainment plans. The

comment further asserts that if the RFG

program is a permissible contingency

measure the agency's guidance would

obligate the states to "backfill" the

measure with one year assuring

equivalent reductions and that the states

have not done so.

Response 7: EPA agrees with the.

comment to the extent that it raises

questions about whether RFG can be

used as a contingency measure after an

area is reclassified'to severe

nonattainment. The RFG requirement is

required under Title II of the Act once

an area is reclassified to severe

nonattainment. However, EPA believes

that whether or not RFG is a

contingency measure is not a deciding

factor whether EPA approve the

contingency measures plan in this case

because the plan contains other

sufficient measures to fulfill the

requirement. EPA concludes that the

contingency measures plan is

approvable even without considering

RFG to be a contingency measure and

thus EPA is not responding to the

allegations that RFG can not be

considered a* contingency measure in

this case.

E. Comment Received Regarding the

TSD and EPA 's Response

We received the following comments

on our evaluation of the credits from the

States' AIM coatings rules which was in

our January 12, 2005 TSD prepared for

the January 12, 2005 NPR.'A summary

of these comments that we received on

our evaluation of the credits from the

States' AIM coatings rules for the

Washington area and our responses

follows.

Comment: We received one set of

comments that were critical of the

- baseline per-capita emission factor EPA

used to evaluate the States' emission

reductions claims for the States' AIM

coatings rules. Specifically, these

comments took issue with the precontrol baseline value of 4.5 pounds per

person per year (lbs/p/yr) that EPA

used. These comments also took issue

with the 6.7 lbs/p/yr emission factor

which was used by the States and which

is found in "Procedures for the *

Preparation of Emission Inventories for

Carbon Monoxide and Precursors of

Ozone" (EPA-450/4-91-016), May

1991. These comments noted that EPA

has issued another document under

EPA's ongoing Emission Inventory

Improvement Program with yet another

per capita emission factor of 5.7 lbs/p/

° r. In summary, the comments

questioned if any of the baseline per

capita emission factors (6.7, 5.7, or 4.5

lbs/p/yr) published by EPA is based

upon the best currently availabile data.

These comments supported EPA's use of

the most recent California Air Resources

Board (CARB) survey data for deriving

the best estimate of the post-control per

capita emission factor to be realized

from the promulgation of the District's,

Maryland's and Virginia's rules

modeled upon the Ozone Transport

Commission's Model AIM coatings rule.

These comments advocate the position

that the CARB surveys provide the best

available data under federal data quality

criteria and asserts that the California

pre-control total emissions should be

similar on a per person basis to the rest

of the country. The commenter

examined the pre-control baseline used

by CARB and assert that the baseline per

* capita emissions factor for VOC

emissions from AIM coatings in

California before controls should be 6.3

lbs/p/yr. The commenter states that this

6.3 lbs/p/yr factor is based upon CARB's

data for VOC emissions from AIM

coatings for the years 1975 through

2004. The comments note that the first

significant AIM controls were not

adopted in California until 1984, and,

conclude that 1980 is an acceptable year

to use as a baseline year. The comments

state: California reports that in 1980,

according to its surveys, there were

148,579,090 pounds of VOC emitted

from AIM coatings; the population of

California in 1980 according to the U.S.

Census Bureau was 23,668,000 people,

and thus this yields a pre-control

baseline of 6.3 lbs/p/yr. The commenter

therefore urges EPA to evaluate the

benefits from the States' AIM coatings

rules using a pre-control baseline of 6.3

lbs/p/yr.

We received a second set of comments

supporting the States' analysis of the

reduction credits from the States' AIM

coatings rules but critical of EPA's

reliance upon CARB data to determine

a per capita emission factor after

application of the States's AIM coatings

rules. These comments assprt that

because California has had more

restrictive VOC limits for architectural

coatings for over a decade, VOC

emissions for architectural and -

industrial maintenance coatings in

California were already significantly

lower than the States' pre-rule

emissions.

Response: The States' Contingency

Measures, ROP and Attainment Plans

Are Still Approvable. EPA has

considered both set of comments and

analyzed the sufficiency of the

contingency measures, ROP and

attainment plans by considering the

baseline emission factors and reduction

calculation methodologies advocated by

each set of comments, as well as the

baseline emission factors and reduction

calculation methodology contained in

our January 5, 2005 TSD that was

prepared for the January 12, 2005 (70 FR

2085) NPR. 31 EPA concludes that the

contingency measures, ROP and

attainment plans are approvable

regardless of whether we use the

baseline emission factor and reduction

calculation methodology advocated by

each set of comments, or whether we

use the baseline emission factors and

reduction calculation methodology

contained in our January 5, 2005 TSJ.

EPA has evaluated the effect that

changing the 1990 per capita emission

factor for the AIM coatings source.

category might have on the contingency

measures implemented to address the

failure of the Washington area to attain

in 1999, the 1999-2005 ROP plans, and

the attainment demonstration plans.

EPA has determined that regardless of

which of the 1990 per capita emission

factors and reduction calculation

methodologies-be it that advocated by

the first set of comments,. or that

advocated by the second set of

comments, or that found in our

technical support for the January 12,

2005 (70 FR 2085) NPR-the States

secure sufficient VOC reductions to

meet the needs of the contingency

31 "Technical Support Document for Approval

and Promulgation of Air Quality Implementation

Plans; District of Columbia, Maryland, and Virginia;

Post-1996 Rate-of-Progress Plan, Contingency

Measures, Trans'portation Control Measures, 1990

Base Year Inventory Changes, and VMT Offset SIP

for the Metropolitan Washington, DC

Nonattainment Area," dated January 5, 2005.

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measures plan for failure to, ttfWp in

1999, the 1999-2005 ROP planus or'

attainment plans. As noted in the

January 12, 2005 NPR, the States.

computed that the reductions needed to,

address the 1999 failure to attain

contingency requirement was at least

13.0 TPD. 3

2 Of these 13.0 TPD, 11.4

would be filled by the solvent'cleaning

and portable fuels containers rules. The.

States' AIM coatings rules would thus

have to provide, at least 1.6 TPD of

reductions to ensure that the

contingency plan is approvable. EPA

has evaluated the effects that changing

the 1990 per capita emission factor and

reduction methodologies for the AIM

coatings source category might have on

the contingency plan for failure to attain

by 1999. The States ascribed 12.3 tons

per day reduction from the States! AIM

coatings rules.. EPA arrived at a value of

over 16 tonst per day using the 4.5

pounds per capita emission factor.33

EPA concludes that the States'

contingency plans are still approvable.

There is no effect on the approvability.

of the 1999-2005 ROP plans because

any change in the, 1990 per capita .

emission factor for the AIM coatings

source category or the method to

determine reduction from the States'

AIM coatings rules will only affect VOC

emission reductions. EPA proposed

approval of the 1999-2005 ROP plans

based solely upon a showing that the

plans provided for a minimum 9 percent

reduction in baseline NOx emissions by

the 2002 milestone and a further 9

percent by 2005. As discussed

elsewhere in this document in response

to comment, EPA is approving the

1999-2005 ROP plans based upon these

NOx reductions alone.

With respect to the demonstration of

attainment, EPA evaluated the overall

change in VOC emissions relative to

1990 base year emissions which would

result from using the 4.5 or the 6.3

pounds per capita emission factor. The

results were an overall relative

reduction in VOC emissions of 45

percent in 1990 VOC emissions by 2005

from all sources (point plus area plus

nonroad plus on-road). The States'

credit claims corresponded to a

projected overall 42.8 percent reduction

in 1990 VOC emissions by 2005 from all

sources (poinl.pliis area plus nonroad

32 See Table 12. Contingency Measures in the

NPR for this action (70 FR 2085 at 2096, January

12, 2005). 33 The comments advocating the 6.3 pounds per

capita emission factor did not advocate by what

percentage this value would be reduced by the 1998

Federal AIM coatings rule, EPA assumed for the

purposes of this analysis that the Federal AIM

coatings rule would result in the same post-rule per

capita emission factor.

plus on-road). 70 FR at 6803,,February

9, 2005. EPA concludes that the States'

estimate of the overall relative reduction

in VOC emissions is conservative

relative to the use of either the 4.5 or the

6.3 emission factors. EPA concludes that

using either baseline the States get at

least the reductions they claimed and"

needed to demonstrate timely

attainment, to meet the ROP

requirements, and to provide for

sufficient reduction for the contingency

plan. EPA concludes that the issues

raised in the comments do riot change'

the approvability of the attainment

plans.

After considering the comments

received during the public comment

period, EPA's analysis indicates that the

reduction claiis in the February 2004

SIP revisions are supported using the

alterna'tive per capita base line emission

factors in the record in that the States'

reduction claims are less than the other,

methods. EPA is neither approving nor

disapproving the States' method nor

promoting an alternative method. EPA's

analysis in support of this rulemaking is

to determine if any information received

during the comment period would give

cause for us to reconsider our proposed

approval. Regardless of which of the

baseline emission factors or methods

that have been proffered by the

commenters or by EPA is used to

calculate VOC emission reductions for

tlre States,' AIM coatings rules, we have

determined that the States' ROP,

attainment and contingency measures

plans for the Washington area

demonstrate ROP, provide sufficient

VOC reductions to satisfy the need for

implemented contingency measures set

by EPA's guidance and demonstrate

attainmenit. Therefore, EPA is approving

the States' SIP revisions. 34 Furtherdetails of EPA's analysis can be found

in the supplemental TSD prepared for

this final rule. 3 -

A determination of the best baseline

from which to estimate the reductions

from the States' AIM rules is-not

essential for this final rule because, as stated earlier, regardless of whether

those reductions are calculated as

34 As noted elsewhere in this doucment, EPA is

not approving Maryland's attainment plan for the

Washington area but is making a finding that "

Marylana's attainment plan, in conjunction with

those of the District and Virginia, contains control

measures that "fully satisfy the emission reduction

requirements relevant to * * * attainment."

35 "Supplement to the Technical Support

Document for Approval and Promulgation of Air

Quality Implementation Plans; District of Columbia,

Maryland, Virginia; 1-Hour Ozone Attainment

Plans, Rate-of-Progress Plans, Contingnecy

Measures, Transportation Control Measures, VMT

Offset, and 1990 Base Year Inventory," dated May

3, 2005.

proposed by EPA or as advocated by

either of the commenters, the States'

ROP, attainment and contingency

measures plans demonstrate ROP,

provide sufficient VOC reductions to

satisfy the need for implemented

contingency measures, and demonstrate

attainment.

However, EPA recognizes the need to

resolve conclusively how to determine

the amount of VOC emission reductions

achieved from the implementation of

AIM coatings rules in a given ozone

nonattainment area. This remains an

issue of concern to the states, the

regulated sector, and other interested

parties. Therefore, EPA intends to

conduct a separate process to solicit

further comment, information and

recommendations from all interested

parties as to how to determine the

amount of VOC emission reductions

achieved from the implementation of

AIM coatings rules in a given ozone

nonattainment area.

EPA's Policy on Changes in Inventory

Methods. EPA is clarifying its proposal

in the NPR (70 FR 2085) that EPA was

not proposing that the District,

Maryland and Virginia change the ROP

plans to reflect a new 1990 per capita

emission factor for the AIM source

category prepared for this action, but

rather intended to verify that the ROP

plans were adequate without using the

reduction methodology upon which the

States relied. '

EPA acknowledges that emissions

factors, as well as inventory. calculation

methodologies, are continually being

improved. In general, EPA has not

required changes to submitted SIPs that

result from changes in factors and

methodologies that occur after the SIP is

submitted. With respect to the 15

percent plan due in November 1993, in

section 2.4 of "Guidafice on the

Adjusted Base Year Emissions Inventory

and the 1996 Target for 15 Percent Rateof-Progress Plans" (EPA-452/R-92-005)

EPA stated: "If other significant changes

occur in emissions factors or

methodologies before which time it is

impossible for states to make

adjustments to their 15 percent

calculations and associated control

strategies, then EPA may require states

to make corrections to the base year

emissions inventory, as well as to the

adjusted base year inventory and the

1996 target level of emissions." This

guidance discussed the then pending

transition from the MOBILE4.1 model to

the MOBILE5 model but only.

prospectively, by requiring that

emissions values calculated using

MOBILE4.1 would have to be•

recalculated using MOBILE5 before

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submittal of the final ROP plans in

November 1993.

Likewise with respect to the post1996 ROP plans, EPA has advised the

states when changes in emissions

factors or in methodologies for

developing emissions inventories would

force revisions to the inventories or

plans. Changes would be necessary if

they occurred before the plan wassubmitted. "However, if such changes occur after November 15, 1991, but prior

to November 15, 1994, a serious or

above area may be required to make

corrections to the base year inventory

and attainment year projection

inventory for purposes of developing

the 3 percent rate-of-progress

demonstration. If such changes occur

after November 15, 1994, EPA will

advise on when it would be appropriate

for the states to make corrections in

future supplements to-this General

Preamble." 57 FR at 13517 (April 16,

1992). In the context of the guidance,

"November 15, 1994" would mean thi

date by which the post-1996 plan was due. In the case of the Washington area,

the 1996-1999 ROP plans were due on

November 15, 1994 because the area

was serious nonattainment area, and the

1999-2005 ROP plans were due by

March 1, 2004, which was the date

established in our final rule

reclassifying the Washington area to

severe nonattainment. See 68 FR 3410 at

3422, January 24, 2003. " From the States' perspective, the

baseline per capita emission factor of

4.5 pounds per person per year (lbs/p/

yr) for the AIM coatings source category

could be seen as a change in factors and

methodologies which occurred after the

SIP is submitted. As for the 1996-1999

ROP plans, EPA notes that the plan was

projected to have a surplus of 14 tons

per day in VOC emission reductions.

Nor did EPA propose that the States do

so in the NPR (70 FR 2085) prepared for

this action. Indeed, to require the States

to revise completed plans every time a

new emission factor or changed

methodology is announced would lead

to significant costs and potentially

endless delays in the approval ,

processes. In the case of the 1996-1999

ROP plans, any possible claim-that EPA

required a "changed methodology"

would have to accept that the "changed

methodology" came to light years after

the 1996-1999 ROP plans were

submitted. For the policy reasons stated

previously, EPA has not required the

States revise their 1996-1999 ROP plans

for the Washington area. Additional Response to the Second

Set of Comments. EPA further believes

that the second set of comments

misstates the role CARB data played in

the EPA's estimate of the OTC rule

reduction. EPA-used data from GARB to

ascertain an end point for the OTC rule

(post-OTC rule per capita emission

factor) not a 1990 baseline factor. EPA

did so in order to evaluate the States'

reduction claims using methods other

than those used by the States for the

reasons stated in the January 12, 2005

(70 FR 2085) NPR.

IV. Comment Received on the

Attainment Demonstration and EPA's

Response

We received the following additional

comments adverse to the.proposed

approval of the attainment plans. In

addition to comments that are unique to

the attainment plan (set forth in sections

IV. A. and IV. B of this document), we also received a number of comments

identical to those submitted in relation

to the ROP plans, VMT Offset SIPs, and

contingency measure plans, to which

we responded in section III of this

document. We have set forth in this

section of this document each comment

we received relevant to the attainment

demonstrations and plans and respond

separately to it even if that comment is

identical to a comment to which we

responded in section III. A summary of

these additional adverse comments that we received on our proposed action to.

approve the attainment plans for the

Washington area and our responses

follows.

A. Comment on the Attainment

Demonstration Modeling

Comment: We received a comment

asserting that the SIP does not

demonstrate attainment as required.by

the Act. The comment alleges that

attainment is not demonstrated using

photochemical grid modeling, or other

analytical tool which EPA has

determined to be at least as effective,

that the WOE approach does not satisfy

the CAA's requirement to assure

attainment as expeditiously as

practicable or the CAA's requirement for

a modeled demonstration of attainment,

that EPA provides no evidence that the

core assumption underlying its WOE

approach-i.e., that ozone will be

reduced in the same proportion as

emissions-is valid. The comment

alleges that such an assumption

conflicts with EPA's own repeated

findings that the relationship between

ozone formation and precursor

emissions is nonlinear, and cannot be

accurately predicted by means other

than photochemical grid models. The

comment also asserts that the

photochemical grid model used in the

modeled demonstration of attainment

and WOE analysis is not based upon a

pho tyykpyical grid model that

represents sound science and that meets

current regulations and guidance.

Therefore, the comment claims EPA

cannot approve the WOE determination.

Respouse: Attainment Is

Demonstrated Using Photochemical

Grid Modeling, the Woe Approach

Satisfies the Act Requirements. The

photochemical grid modeling runs used

in the pre2001 SIP revisions'

attainment plan are the same as those

photochemical grid modeling runs used

in the February 2004 SIP revisions

which are the subject of this final rule.

The WOE analytical methods and/or

analyses that support the modeled

demonstration of attainment in the

February 2004 SIP revisions, which are

the subject of this final rule, include the

same WOE analytical methods and/or

analyses that supported the modeled

demonstration of attainment which

were the subject of the April 17, 2003

final rule (68 FR 19106). In addition, as

noted in section IV. A. 2. of the January

31, 2005 TSD prepared for the February

9, 2005 NPR (70 FR 6796) the States

provided additional WOE in the form of

the results of EPA's photochemical grid

modeling performed for the Tier 2 final

rule. See, sections VI. A. of "Technical

Support Document for Approval and

Promulgation of Air Quality..

Implementation Plans; District of

Columbia, Maryland, and Virginia;

Attainment Demonstration for the

Metropolitan Washington, DC

Nonattainment Area," dated January 31,

2005.

EPA had received a comment from the

same commenter alleging the same

deficiencies of WOE for the same

photochemical grid modeling runs and

some of the same adjunct WOE analyses

when EPA conditionally approved the

pre-2001 SIP revisions' attainment plan.

Specifically the commenter had alleged

that photochemical grid modeling

shows that the Washington area will not

attain the ozone standard by the

November 2005 attainment date and

becausb the WOE analysis used by EPA

to conclude that the Washington area

has demonstrated attainment by

November 2005 is not authorized by the

Act or by EPA rules. The commenter

had claimed that the modeling

demonstiation and WOE used in the

attainment demonstration for the

Washington area do not meet

requirements of section 182(c) of the

-[Act] and EPA's own regulations for

photochemical grid modeling and other

analytical methods, that the WOE is an

alternative method to photochemical

grid modeling which has not been

shown to be equally effective to the

Urban Airshed Model (UAM), and that

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WOE is a proscribed rollba&lR4 &'.

See 68 FR 19106 at 19111/3, April 17,

2003.

The claim in the'comment from the

same commenter' receive'd during the

public comment period for this

rulemaking "that ozoie will be reduced'

in the same proportion as emissions"

merely restates the claim that the WOE

approach relies upon "'proportional'

rollback. Likewise, the'domnient on this

rulemaking assert that the modeled

demonstration of attainment does not

meet the CAA's requirement for a modeled demonstration of attainment or

that attainment is not demonstrated

using a photochemical grid model and

that WOE does not demonstrate timely

attainment simply'restate, with less

specificity, comment made by the same

commenter on our April 17, 2003 final

rule, 68 FR 19106. See 68 FR 5246,

February 3, 2003.

EPA provided responses to these'

comments in our April 17, 2003 final

rule (68 FR 19106) and incorporates our

responses in the April 17, 2604 final

rule by reference, particularly those in

response to "comment 1" on pages

19111 to 19112 of the April 17, 2003

final rule. See 68 FR 19112-19115,

April 17, 2003.

Furthermore, this commenter's

assertions that EPA's use of

photochemical grid modeling with an

adjunct WOE analysis does not

demonstrate ,timely attainment, violates

statutory requirements of the Act and

does not constitute a "modeled

demonstration of attainment,"

encompasses-all those issues related to

WOE that the commenter has restated in

this rulemaking, and were briefed and

litigated to conclusion in a suit brought

by the commenter against EPA. See

Sierra Club v. EPA, 356 F.3d at 304-07;

see also Initial Opening Brief of

Petitioner Sierra Club, Docket No. 03-

1084 (June 23, 2003), pp. 25-37;'Final

Reply Brief of Petitioner Sierra Club,

Docket No. 03-1084 (September 22,

2003), pp. 8-19. The Court of Appeals'

decision upholding the very same

photochemical grid modeling and WOE

thaf is at issue herein (as resubmitted by

the States- and supplemented with an

analysis of the effects of the Tier 2 rule

that strengthened the conclusion of the

WOE analysis), is binding on both EPA

and the commenter. After extensively

analyzing the record, the Court of

Appeals resolved- the commenter's

claims in EPA's favor with respect to the

Urban Airshed Model-IV (UAM-IV) and

the WOE analysis, stating:

"[Plhotochemical 'modeling [using the

UAM-IV] is the primary b asis for the

attainment demonstration ' w ile the [WOE]

"is merely an adjiincA foi assessing the

photochemical grid modeling. * " * " [T]hat

analysis was employed to ensure that the

model achieved its statutory purpose:

determining whether the SIPs actually "provide for attainment of the ozone national

ambient air quality standard by the

applicable attainment date." 42 U.S.C.

7511a(c)(2)(A). And the adjustments appear

well-suited-to that end, as they do no more than correct for the model's over-prediction

of ozone levels as compared to actual

observations, and for its reliance on a base

day that appears to be a statistical outlier.

See, Sierra Club v. EPA, 356 F.3d at 306.

*Res judicata bars re-litigation not only

of matters determined in a previous

litigation but also ones that a party

could have raised. * * * Collateral

estoppel further bars parties from relitigating issues of law or fact resolved

in prior cases betveen those parties.

* * * (When a court determines an

issue of fact or law that is actually.

litigated and necessary to its judgment,

that conclusion binds the same parties.

in a subsequent action.)." Appalachian

Power Co. v. EPA, 251 F.3d 1026, 1033-

34 (D.C. Cir. 2001) (internal citations

and quotations omitted). While EPA

believes that the commenter is

precluded from re-litigating the binding

holding of the court in Sierra Club v.

EPA with respect to the validity of WOE

analyses, EPA reiterates that, as

articulated and explained in the April

17, 2004 final conditional approval rule

at 68 FR 19112-19115, April 17, 2003,

WOE in general as a supplement to

photochemical grid modeling, and

Washington Area WOE analysis in

particular (as upheld by the Court of

Appeals), is avalid tool for

demonstrating attainment with the

NAAQS. The Washington Area WOE

analysis demonstrates that "the

Washington Area will timely attain the

1-hour ozone NAAQS for all the reasons

previously explained in the April 17,

2004 final conditioial approval.

EPA continues to'believe-that the

commenter is wrong on the law, as

EPA's use of WOE as an analytical

adjunct to photochemical grid modeling

has been successfully litigated to

conclusion several times. Each time the

Court of Appeals has upheld both EPA's

interpretation of the Act to allow

supplemental analysis to photochemical

grid modeling to demonstrate

attainment, and EPA's determination

that each of the WOE analyses at issue,

including the core of the WOE analysis -

at issue in the conditional approval and

in this current rulemaking, was valid.

See 356 F.3d at 304-07; Environmental

Defense v. EPA, 369 F.3d 193, 203-07

(2d Cir. 2004); BCCA Appeal Group v.

EPA, 348 F.3d 817, 203-:09 (5th Cir.

2003). Accord, 1000 Friends "6f

Maryland v. Browner, 26'5 F.3d 216, 234

(4th Cir. 2001).

The Amendments to Appendix W Do

Not Preclude Use of UAM-IV. EPA

disagrees that the use of the UAM-IV for

photochemical grid modeling represents

a reason to disapprove the attainment

plan even though UAM-IV is no longer

on the list of refined models that are

preferred or recommended for use in

regulatory applications. EPA notes that

no other photochemical grid models for

modeling urban areas are on the

preferred list found in Appendix A to

Appendix W to 40 CFR part 51, even

though the Act reflects a clear

preference, or, in the case of serious and

worse areas, essentially mandates that a

modeled demonstration of attainment be

based on photochemical grid modeling.

42 U.S.C. 7511a(c)(2)(A); (j)(1)(B). All

photochemical grid models for

modeling ozone in urban areas are on

EPA's list of alternative models which is

now posted on the internet as opposed

to being issued as Appendix B to

Appendix W to 40 CFR part 51.

Nothing in the Appendices to 40 CFR

part 51 indicate that EPA may no longer

rely on UAM-IV modeling, or that other

photochemical grid models are

mandated for use in lieu of UAM-IV.

The "[slimulation of ozone formation

and transport is a highly complex and

resource intensive exercise. Control

agencies with jurisdiction over areas

with ozone problems are encouraged to

use photochemical grid models, such as

the Models-3/Community Multi-scale

Air Quality (CMAQ) modeling system

* * * to evaluate the relationship

between precursor species and ozone."

See section 6.2.12a. "Choice of Models

for Multi-source Applications" in

Appendix W to 40 CFR part 51

(emphases added); see also 68 FR at

18457-18458, April 15, 2003.

Explicitly, the "[d]etermination of

acceptability of a model is a Regional

Office responsibility. Where the

Regional Administrator finds that an

alternative model is more appropriate

than a preferred model, that model may

be used subject to the recommendations

of this subsection. This finding will

normally result from a determination'

that (1) a preferred air quality.model is

not appropriate for the particular

application; or (2) a more appropriate

model or analytical procedure is

available and applicable. (emphasis

added). See sectidn 3.2.2 in Appendix

W to 40 CFR part 51. See 68 FR at

18452, April 15, 2003.

In this case, the States had submitted

the pre-2001 SIP revisions" attainment

plan which demonstrated that the States

had sufficient measures in the SIP to

demonstrate that the 'Washington area

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* would attain the 1-hour ozone NAAQS

no later then November 15, 2005. EPA

acknowledged that the SIP could not be

fully approved at that time because the

States had not demonstrated that all

RACM had been adopted-and the plan

lacked certain other elements which we

initially identified in our February 3,

2003 proposed conditional approval.

See 68 FR 5246, February 3, 2003. All

that adoption of additional rules as

RACM would have done to the

attainment plan would be to strengthen

the WOE that the area would timely

attain or advance the date by which the

area would attain. Of the other elements

noted as needing revision under the

conditional approval, the only one

which could possibly have implicated

the modeling demonstration was a

proposed condition that required the

States to commit to revise and submit to

-the EPA by April 17, 2004, an updated

attainment plan SIP that reflects revised

MOBILE6-based MVtBs, including

revisions to the attainment modeling

and/or WOE demonstration, as "

necessary, to demonstrate that the SIP

continues to demonstrate attainment by

November 15, 2005. See 68 FR at 5253,

5258, 5260-5261, February 3, 2003. We

included this condition in our April 17,

.2003 (68 FR 19106) final rule

conditionally approving the pre-2001

SIP revisions' attainment plan.

The States readily agreed to this

condition because, in their pre-2001 SIP

revisions' attainment plan, the States

had included a commitment to revise

the 2005 attainment MVEBs within oneyear of the EPA's release of the

MOBILE6 model. See 66 FR at 631-632

(regulatory text for 40 CFR 52.476(c),

52.1076(g) and 52.2428(d)), January 3,

2001. By the time we issued the April

17, 2003 conditional approval EPA had

released the MOBILE6 model and its

implementing guidance. That guidance

does not mandate redoing the entire

modeling demonstration due to a

change in the MVEBs. 36 EPA reasonably

believes that the Act does not mandate

a revision to the photochemical grid

modeling due to a change in the MVEBs,

and, this interpretation has been upheld

on review. See 1000 Friends of

Maryland v. Browner, 265 F.3d 216 (4th

Cir. 2001). EPA concludes that where

MVEBs are changed the state must

analyze the impacts of such change on

the modeled attainment demonstration,

36 See, Joint memorandum dated January 18,

2002, From John S. Seitz, Director, Office of Air

Quality Planning & Standards, and Margo Tsirigotis

Oge, Directorof Office of Transportation and Air

Quality, "Policy Guidance for the Use of MOBILE6

in SIP Development and Transportation

Conformity."

but that the state need not rerun the

entire model.

In this case EPA believes that

disapproving the February 2004 SIP

revisions based on alleged defects in the

modeling demonstration for the reason

cited in the comment would be arbitrary

and capricious because in the February •3, 2003 notice of proposed rulemaking

(68 FR 5246) EPA did not propose to

require that the States redo the

photochemical grid modeling. Because,

as of February 3, 2003, the changes to

Appendix W to 40 CFR part 51 had not

been issued, only, proposed, 37 EPA

believes that it would not have been

appropriate to disapprovb the SIP

revisions in the April 17, 2003 final rule

which was the final action issued

pursuant to the February 3, 2003 NPR.

We believe that it would not be

appropriate to disapprove the SIP

revisions now because the States have

relied on the same photochemical grid

modeling analysis for the February 2004

SIP revisions as they previously did.

In addition, the modeled

demonstration of attainment does not

depend solely upon the UAM-IV

modeling results. The WOE contained

in the February 2004 SIP revisions

relied upon EPA's modeling conducted

for the NOx SIP call and the Tier 2

rulemaking. These modeling rules relied

upon photochemical grid modeling that

used the UAM-V and/or the CAM,

models. See, 63 FR 57356 at 57381,

October 27, 1998; "Technical Support

Document for the Tier 2/Gasoline Sulfur

Ozone Modeling Analyses," EPA420-R99-031, December 1999. The UAM-V

and the CAM, models are among those

listed on the replacement for what was

formerly Appendix B of the Guideline

on Air Quality Models (Appendix W to

40 CFR Part 51). "The mofels listed in

this section are: ADAM, ADMS,

AFTOX, ASPEN, CAM, CMAQ,

DEGADIS, HGSYSTEM, HOTMAC,

'HYROAD, OZIPR, OBODM, Panache,

PLUVUEII, REMSAD, SCIPUFF, SDM,

SLAB, UAM-V." (See http://

www.epa.gov/scramOOl/

tt22.htm#altmod, last checked April 6,

2005). For these reasons, EPA believes

the Regional Administrator

appropriately and reasonably exercised

the discretion afforded by Appendix W

to allow the continued use of the UAMIV modeling results in this particular

case. Furthermore, the law is well

established that res judicata bars relitigation not only as to all matters

actually determined in prior litigation,

37 The final rule amending Appendix W was

signed on April 2, 2003, nearly.two months after the

proposed conditional approval.

but also aJ6 all matters that might have

been determined. See, e.g., Appalachian

Power, supra, at 1033-34; Natural

Resources Defense Council, Inc. v.

Thomas, 838 F.2d 1224, 1235 (D.C. Cir.

1988). EPA proposed to remove UAMIV as obsolete on April 21, 2001. 65 FR

21506. EPA proposed theconditional

approval based on WOE. See 68 FR

5246, February 3, 2003. As noted

previously, EPA took final action to

remove UAM-IV as obsolete on April

15, 2003, 68 FR 18440, two days before

final action on the conditional approval,

April 17, 2003. See 68 FR at 19121. The

commenter did not raise' the issue that

UAM-IV was no longer a preferred

model listed'in Appendix A of

Appendix W to 40 CFR 51 in its

comments on the conditional approval,

and in the subsequent litigation over

that EPA action, although it could have,

although the commenter had raised the

general issue that the modeling

demonstration and WOE used in the

modeled demonstration of attainment

for the Washington area did not meet

requirements of section 182(c) of the Act

and EPA's own regulations for

photochemical grid modeling and other

analytical methods. 38 See 68

FR at 19111, April 17, 2003. Res

judicata would bar raising the UAM-IV

claim now as it could have been

litigated in the suit over EPA's

conditional approval. Nevertheless, and

without waiving its contention that res

judicata and/or collateral estoppel bar

litigation of the UAM-IV claim, for the

reasons stated previously in this

response, EPA believes: (1) The

Regional Administrator appropriately

and reasonably exercised the discretion

afforded by Appendix W to allow the

continued use of the UAM-IV modeling

results in this particular case, (2) EPA's

guidance is reasonable and is not a

18 The fact that EPA had not finalized its

proposed removal of UAM-IV as an approved

model was no bar to raising this issue in the

litigation over the Cotiditional Approval. Section

307(d)(7)(B) of the Act specifically allows, if certain

conditions are met, for comment on a rule after the

comment period was closed if "it wa impracticable

to raise such objection within such time or if the

grounds for such objection arose after the period for

public comments (but within the time specified for

judicial review. * * * " Although EPA's proposal

clearly demonstrated its intention to remove the

UAM-IV as a preferred model three years prior to

the opening of the comment period on the

Conditional Approval, EPA's final.action on the

UAM-IV occurred just two days prior to the

Conditional Approval, thereby arising within the

time period specified by Section 307(d)(7)(B).

Importantly, the commenter did not invoke this

adminitrative reconsideration provision of the Act

at the time of the conditional approval. Had the

Court of Appeals not vacated and remanded the

condi ipnal approval for reasons entirely unrelated

to the WOE analysis issue, the commenter would

not have been afforded opportunity to attempt add

to the record on WOE.

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proportional rollback, (3) WOE and the

photochemical grid modeling used to

demonstrate attainment is consistent

with the Act and EPA regulations.

B. Comment On the MVEBs

Comment: We received a comment

that EPA cannot approve the MVEBs in

the attainment plan SIP because the

NOx budgets are 70 tons per day higher

than those in the previous attainment

SIP budget for the same year. The

comment claims that the MVEBs in the

previous attainment plan were

inadequate because that SIP did not

demonstrate attainment with

photochemical grid modeling as

required by the Act and did not include

all reasonably available transportation

control measures. The comment asserts

that because the MVEBs in the previous.

attainment plan were inadequate EPA

cannot approve the NOx MVEBs that are 70 tons per day higher and that EPA

does not demonstrate, with

photochemical grid modeling as

required by the Act, how it can assure

attainment in 2005 with such a major

increase in allowable motor vehicle

emissions.

Response: EPA disagrees with the

comment that the MVEBs in the SIP

revisions are inadequate. EPA had

proposed to conditionally approve the

previous attainment plan and in the

alternative to disapprove the attainment

plan with a protective.finding that

would allow the MVEBs to be used for

transportation conformity purposes. Our

proposed protective finding was based

upon our conclusion that the pre-2001

SIP revisions' attainment plan, which were the subject to the February 3, 2003

notice of proposed rulemaking, had

demonstrated that the Washington area

will attain the 1-hour ozone NAAQS no

later than November 15, 2005, by

providing enough reductions with

adopted measures to demonstrate

attainment. See 68 FR at 5259, February

3, 2003. Our final conditional approval

was granted on the basis that the pre2001 SIP revisions' attainment plan did

demonstrate attainment with

photochemical grid modeling as

required by the Act. We granted a conditional, rather than a full approval

solely on the basis that the pre-2001 SIP

revisions' attainment plan lacked some

adopted measures required by an

attainment plan for a severe ozone

nonattainment area. See 68 FR 19106

(April 17, 2003). While the conditiofial

approval itself was vacated, our

determination that the modeled

demonstration of attainment in the pre2001 SIP revisions' attainment plan

demonstrated attainment with

photochemical grid modeling as

-required by the Act was specifically

upheld. Sierra Club v. EPA, 356 F.3d at

304-307.

The conditional approval was

predicated in part upon the States

revising and submitting to theEPA by

April 17, 2004, SIP revisions

constituting an update to the attainment

plan incorporating MOBILE6-based

MVEBs. Further, the States would need

to include in the submittal revisions to

thp attainment modeling and/or WOE

demonstration, as necessary, to show

that the SIP would continue to

demonstrate attainment by November

15, 2005. See 68 FR at 5258, February

3, 2003.

EPA acknowledged at the time of the

conditional approval the possibility that

the MVEBs in the pre-2001 SIP

revisions' attainment plan might not

have included all RACM or all adopted

transportation control strategies and

TCMs to offset increases in emissions

resulting from growth in VMT or

numbers of vehicle trips and to obtain

reductions in motor vehicle emissions

as necessary (in combination with other

emission redhction requirements) to

comply with the CAA's ROP milestones

and attainment demonstration

requirements. We had conditioned

approval of the pre-2001 SIP revisions'

attainment plan upon the States

adopting any remaining RACM and any

required TCMs. See 68 FR at 19106-

19107, 19129-19130 (April 17,.2004).

For the reasons outlined in our

notices of proposed rulemakings, and in

conjunction with response to comments

elsewhere in this document, EPA has

concluded that the SIP revisions now

before us demonstrate that all RACM

has been adopted and that the SIP

contains all necessary transportation

control strategies and TCMs to offset

increases in emissions resulting from

growth in VMT or numbers of vehicle

trips and to obtain reductions in motor

vehicle emissions as necessary (in

combination with other emission

reduction requirements) to demonstrate

attainment and ROP.

EPA disagrees that the "70" ton per

day increase from the mobile sector is

the only relevant criterion for analyzing

the impact of the MVEBs. MVEBs exist

in the context of the attainment plan

and do not in and of themselves

determine whether an area will attain

the NAAQS. MVEBs merely are the

amount of motor vehicle emissions

allowed by a control strategy SIP which

consists of, among other things the

estimated further reductions from

adopted rules affecting all source

categories including stationary and area

sources in the States' SIPs or

promulgated by EPA. A change in the

MVEBs higher or lower cannot, in a

vacuum, lead to a conclusion as to

whether an area is still on track to attain

the NAAQS. Rather, the MVEBs must be

considered in context, as follows:

EPA first addressed the sufficiency of

the attainment plan in our first round of

rulemaking on the pre-2001 SIP

revisions' attainment plan. See 68 FR at

5249 (February 3, 2003) (citing 64 FR

70460 (December 16, 1999); 66 FR 586

(January 3, 2001).

. In the December 16, 1999 NPR we -

noted that the "1998 SIP revisions" did

not contain adequate MVEBs. 39 In the

December 16, 1999 (64 FR 70460), NPR, we also stated that:

[A] motor vehicle emissions budget is the

estimate of motor vehicle emissions in the

attainment year that when considered with

emissions from all other sources is consistent

with attainment. The attainment

demonstrations for the Washington area contain levels of modeled emissions that EPA

concludes demonstrate attainment once transport from upwind areas is addressed.

The basis for this conclusion will not be

altered if the Washington area States can demonstrate that the level of nonattainment area emissions in 2005 is equal to or less than

the 1999 control strategy levels contained in

the attainment demonstrations considering

growth. 64 FR at 70473.

In other words, we required the States

to revise the MVEBs and to demonstrate

that the SIP contained enough measures

that when considered with the revised

2005 MVEBs, the overall emissions

levels in 2005, taking into account

growth through 2005, were less than or

equal to the levels of emissions assumed

in the photochemical grid modeling. In

the TSD for the December 16, 1999 NPR

we noted'that the photochemical grid

modeling performed for the area had

assumed local emissions levels of 360

TPD of VOC emissions and over 500

TPD of NOx emissions. 40 These were

the local emissions levels the 1998 SIP

revisions projected the Washington area

would have by 1999. The pre-2001SIP

revisions' attainment plans were

submitted to fulfill these and other

prerequisites for approval proposed in

39The "1998 SIP revisions" are those submittals

listed in Table 3 of this document which were

submitted during calendar year 1998. 40 "Technical Support Document for the OneHour Ozone Attainment Demonstrations submitted

by the State of Maryland, Commonwealth of

Virginia and the District of Columbia for the

Metropolitan Washington, DC Ozone

Nonattainment Area (DC039-2019, VA090-5036,

MD073-3045)," dated November 30, 1999. See also, "Technical Support Document for Approval and

Promulgation of Air Quality Implementation Plans;

District of Columbia, Maryland, and Virginia; Post1996 Rate-of-Progress Plan, Contingency Measures,

Transportation Control Measures, 1990 Base Year

Inventory Changes, and VMT Offset SIP for the

Metropolitan Washington, DC Nonattainment

Area," dated January 5, 2005.

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the December 16, 1999 NPR. On January

3, 2001, we approved the pre-2001 SIP

revisions' attainment plans.41 In the

TSD for that rulemaking, we concluded

that the creditable measures upon

which the pre-2001 SIP revisions'

attainment plan relied were projected to

achieve emissions levels of 356.7 TPD of

VOC emissions and 403 TPD of NOx

emissions. 42 The pre-2001 SIP revisions'

attainment plan contained MVEBs of

101.8 TPD of VOC emissions and 161.8

"TPD of NOx emissions. See 66 FR at

590, January 3, 2001. The pre-2001 SIP

revisions' attainment plans were later

conditionally approved on April 17,

2004, 68 FR 19106, one condition of the

approval being that the States revise the

budgets using the MOBILE6 model and

revise, as necessary, the attainment

modeling and/or WOE demonstration to

show that the SIP continues to

demonstrate attainment by November

15, 2005. In the TSD prepared for this

final rule, EPA concluded.that even

with the higher MVEBs the SIP

contained sufficient creditable measures

applying to all source categories to

achieve overall emissions levels in the

Washington area of 331 TPD of VOC and

491 TPD of NOx.4 3 Even though the

February 2004 SIP revisions contained

the higher, 234.7 TPD of NOx MVEBs

(and lower motor vehicle VOC

emissions budgets of 97.4 TPD) than the

pre-2001 SIP revisions' attainment plan

(101.8 TPD for VOC and 161.8 TPD for

NOx), the overall emissions levels from

all sources of 331 TPD of VOC and 491

TPD of NOx are still less than the levels

used in the photochemical grid

modeling. Because the overall VOC and

NOx emissions are less than both the

360 TPD of VOC and over 500 TPD of

NOx used in the photochemical grid

modeling, EPA concludes that the 70

ton increase in the NOx MVEB will not

adversely impact the Washington area's

4 1 That rule was vacated by the Court of Appeals

for redsons unrelated to the adequacy of the

modeled demonstration of attainment. See Sierra

Club v. Whitman,.294 F.3d at 163.

4

2 Table II-Summary of Creditable Measures in

"Supplement to Technical Support Document for

the One-Hour Ozone Attainment Demonstrations,

Attainment Date Extension and Post-1996 Rate-ofProgress Plans submitted by the State of Maryland,

Commonwealth of Virginia and the District of

Columbia for the Metropolitan Washington, DC

Ozone Nonattainment Area and Commitment to

Revise Motor Vehicle Budgets for the Metropolitan

Washington, DC Ozone Nonattainment Area (DC2025, VA-5052, MD-3064)," dated December 15,

2000.

4

3 Table IV. F-1 Relative Reductions on page A27 of "Technical Support Document for Approval

and Promulgation of Air Quality Implementation

Plans; District of Columbia, Maryland, and Virginia;

Attainment Demonstration for the Metropolitan

Washington, DC Nonattainment Area," dated

January 31, 2005.

ability to timely attain the one-hour

ozone NAAQS.

Comment: We received a comment

claiming that EPA cannot approve the

MVEBs in the attainment plan because

the attainmest plan is based on a

"flawed WOE analysis" and relies on an

outdated photochemical model and thus

the modeled demonstration of

attainment does not accurately identify

the mobile source budgets required to

ensure timely attainment. -

Response: EPA disagrees with the

comment. As explained elsewhere in

the response to comments portion of

this document, EPA believes that the

both WOE analysis and the

photochemical grid model upon which

the States relied meets the requirements

of the Act, and EPA's regulations and

guidance. Therefore, EPA believes that

the MVEBs consistent with the

attainment modeling would not be

defective based upon any alleged

defects in the modeling.

Comment: We received a comment

asserting that the photo-chemical

modeling runs for the modeled

demonstration of attainment assumed

motor vehicle NOx emissions of 161.8

tons per day instehd of the motor

vehicle NOx emissions budgets of 234.7

tons per day in the attainment plan. The

comment states that because EPA has

found that emissions projections

determined using MOBILE6 are more

accurate than th6 MOBILE5 values

relied on in the photochemical grid

modeling runs the States should have

rerun the photochemical grid model

with the MOBILE6 values. The

comment contends that the

demonstration of attainsffent is flawed

because the demonstration assumes that

2005 ozone levels will be no different

even though NOx emissions will be

more than 72 tons per day higher than

assumed in the photochemical grid

modeling runs and that because this

conclusion of no increase in 2005 ozone

levels is based not on photochemical

grid modeling, but on the conclusion

that ozone levels in 2005 will be

determined not by actual 2005 emission

levels but by the relative reduction in

emissions between the baseline and

2005. The comment claims that this

assumption is invalid because ozone

levels do not respond in linear fashion

to emission changes and claim that EPA

does not demonstrate, with

photochemical-grid modeling as

required by the Act, how it can assure

attainment in 2005 with such a major

increase in allowable motor vehicle

emissions. The comment further alleges

that this approach would allow any

absolute increase in projected 2005

emissions over the level used in the

photochemical grid modeling, as long as

the "relative increase over baseline

emissions is the same or less."

Response: EPA disagrees with the

comment because the comment assume

that in this case the overall emissions

levels in the Washington area in 2005

will be higher than those-assumed in the

photochemical grid modeling for the

attainment year because the MVEB for

NOx will be higher.

, We have noted previously that the

photochemical grid modeling performed

for the area had assumed local

emissions levels of 360 TPD of VOC

emissions and over 500.TPD of NOx

emissions in the attainment year. In the

TSD prepared for the February 9, 2005

NPR (which is the notice of proposed

iulemaking published for this final

rule), EPA concluded that even with the

higher MVEBs the SIP would contain

sufficient creditable measures

applicable to all source categories to

achieve emissions levels in the

Washington area of 331 TPD of VOC and

491 TPD of NOx. 4 4 Even though the

February 2004 SIP revisions contained

the higher 234.7 TPD NOx, MVEB (and

a lower VOC MVEB of 97.4 TPD) than

the pre-2001 SIP revisions' attainment

plan (101.8 TPD for VOC and .161.8 TPD

for NOx), the overall emissions levels of

331 TPD of VOC and 491 TPD of NOx

are still less than the levels assumed in

the photochemical grid modeling.

Therefore in the attainment year,

notwithstanding an increase in mobile

source NOx emissions, there is a

decrease in overall emissions in the

attainment year, not an increase as.

implied by the commenter.

The comment that EPA's policy

would allow any absolute increase in

projected 2005 emissions over the level

used in the photochemical grid

modeling, as long as the "relative

increase over baseline emissions is the

same or less," is irrelevant because as

discussed in the preceding paragraph

the overall emissions levels for the

Washington area in 2005 are projected

to be less than the overall levels

assumed in the photochemical grid

modeling used in the demonstration of

attainment. That is, the February 2004

SIP revisions achieve emissions levels

less than that assumed in the

photochemical grid modeling for the

attainment year and a greater relative

emissions reduction between the 1990

baseline and 2005 attainment year. The

44 Table IV. F-1 Relative Reductions on page A27 of "Technical Support Document for Approval

and Promulgation of Air Quality Implementation

Plans; District of Columbia, Maryland, and Virginia;

Attainment Demonstration-for the Metropolitan

Washington, DC Nonattainment Area," dated

January 31, 2005.

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photochemical grid modeling for the

Washington area shows that VOC and

NOx reductions, along or in

combination, that go beyond those

assumed in the attainment year will

result in additional reduction in ozone

concentrations. While ozone may not

respond linearly to reductions, the

photochemical grid modeling for this

area indicates that ozone concentration

does respond directionally to a

reduction in ozone precursors (a

decrease in the ozone precursors VOC

and NOx will result in a decrease, not

an increase in ozone concentration,

albeit not necessarily a proportional

decrease). Therefore the demonstration

that this SIP will reshlt in emissions

levels of ozone precursors at levels less

than that assumed in the photochemical

grid modeling for the attainment year,

along with a showing of a greater

relative emissions reduction, only adds

to the WOE that attainment is

demonstrated.

EPA also believes that an upward

revision of the MVEBs, which is more

than offset by other emissions

reductions from other source categories,

does not mandate a n6w photochemical

grid modeling demonstration. EPA

believes that, if an ozone attainment

plan relied on changes in emissions

from the base year to an attainment or

maintenance year inventory to estimate

via photochemical grid modeling the

relative changes in monitored ozone

levels, that the attainment plan SIP

revision with revised MVEBs continues

to demonstrate attainment of the ozone

NAAQS showing that the relative

emission reductions between the base

year and the attainment are the same or

greater using MOBILE6 than they were

using MOBILE5, and that projected

emissions levels for the attainment year

are lower than those assumed in the

modeling demonstration. The

Washington area attainment plan relies

upon the use of the photochemical

modeling results in a relative manner,

and, the attainment plan shows a greater

relative emission reduction with the

MOBILE6-based base year and

attainment year MVEBs. See, Joint

Memorandum dated January 18, 2002,

From John S. Seitz, Director, Office of

Air Quality Planning & Standards, and

Margo Tsirigotis Oge, Director of Office

of Transportation and Air Quality,

"Policy Guidance for the Use of

MOBILE6 in SIP Development and

Transportation Conformity." EPA.has

reasonably interpreted the Act not to

require new photochemical grid

modeling for every revision of a SIP.

While section 182(c)(2)(A) requires

demonstrations of attainment for serious

and above areas be based upon

photochemical grid modeling (or

something equivalent), the Act only

establishes a time frame for the initial

submittal of the attainment

demonstration and does not explicitly

require new modeling in connection

with every SIP revision. The Act simply

requires that the demonstration of

attainment be based-upon

photochemical grid modeling and

demonstrate attainment of the ozone

NAAQS. See 1000 Friends of Maryland

v. Browner, 265 F.3d 216 (4th Cir. 2001)

("Nothing in [section 182(c)(2)(A)]

prohibits the use of previously

performed modeling if that modeling

can show that the plan as revised will

allow the area to reach attainment").

Comment: We received a comment

asserting that photochemical grid

modeling runs and WOE analysis relied

on by EPA in its 2001 approval of the

attainment plan assumed that motor

vehicle NOx emissions would be 161.8

tons per day and that neither EPA nor

the States ever proclaimed that were any

surplus emission reductions under that

scenario. The comment contends that

the photochemical grid modeling runs

showed continued nonattainment even

with motor vehicle emissions at that

level and therefore EPA cannot find that

motor vehicle NOxemissions more than

72 tons per day higher than those

assumed in the photochemical grid

modeling runs are consistent with

timely attainment. *

Response: As discussed elsewhere in

this document in section IV. A.

"Comment on the Attainment

Demonstration Modeling," EPA

disagrees that the photochemical grid

modeling runs showo'd continued

nonattainment even with motor vehicle

NOx emissions at 161.8 TPD. This issue

has previously been litigated by the

commenter and conclusively decided in

EPA's favor. See Sierra Club v. EPA, 356

F.3d at 304-307. As noted in our

response to-previous comments on the

MVEBs, 'EPA has concluded that the

MVEBs must be analyzed in the context

of the entire SIP, and in that context

EPA even with the higher MVEBs the

SIP contains sufficient creditable

measures applicable to all source

categories to achieve overall emissions

levels consistent with attainment in a

demonstration based on the submitted

photochemical grid modeling.

C. Comment on the ROP Plans and NOx

Substitution

Comment: We received a comment

asserting the ROP plans do not meet the

requirements to demonstrate a nine

percent reduction in VOC emissions

from 1999 to 2002 and a further nine

percent from 2002 to 2005 because the

NOx substitution in the ROP plans is

impermissible. The comment asserts

that the plan does not meet section

182(c)(2)(c) of the Act because the plan

does not show that a nine percent

reduction in NOx emissions will result

in the same reduction in ozone

concentration as a nine percent

reduction in VOC emissions. The

comment asserts that EPA's reliance on

our December 1993 NOx Substitution

Guidance is flawed because the plain

language of the Act requires proof of

actual equivalent benefits 6f NOx

substitution.

The comment also asserts that

because the ROP plans for each of the

1999 to 2005 periods rely solely upon

NOx reductions the plans do not meet

the requirement of section 182(c)(2)(C)

because the plan does not provide for

some percentage of VOC reduction

during each period. The comment

claims that the Act requires some nonzero percentage reduction in VOC

emissions for any ROP period. Finally,

the comment asserts that the Act

requires the ROP plan to have VOC

reductions by November 15, 2002 to

prevent a net increase in VOC emissions

by the 2002 milestone date, which

would offset the progress achieved by

the nine percent NOx reductions. The

comment notes that the plan provides

for such reductions but asserts that EPA

cannot approve the R(OP plans because

the plan does not provide for all of these

reductions by the 2002 milestone date.

Response: EPA disagrees with the

comment and incorporates by reference

the response found in section III. A.

"Comment on the ROP plans and NOx

Substitution" of thisdocument.

D. Comment on the Transportation

Demand Model (TDM) Used in the Plans

Comment: We received a comment

asserting that the TDM used to project

the mobile source emissions does not

properly predict-traffic volumes in the

Washington area on roadways. The

comment alleges that the inaccuracies

are significant enough that the results

cannot form a basis for predicting future

motor vehicle emissions or the emission

cuts needed to demonstrate attainment

of the 1-hour ozone NAAQS by -

November 15, 2005.

Response: EPA disagrees with the

comment and incorpordtes by reference

the response found in section III. B.

"Comment on the Transportation

Demand Model (TDM) Used in the

plans" of the this document.

E. Comment on the VMT Offset SIP

Comment: We received a comment

asserting that the SIP revisions are

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deficient because they do not contain

sufficient transportation control

measures (TCMs) to offset growth in

emissions from growth in vehicle miles

traveled (VMT) or in trip numbers. The

comment alleges that the Act requires

that the SIP offset any growth in

emissions due to growth in VMT or in

trip numbers not a showing that overall

motor vehicle emissions are expected tc

decline.

Response: EPA disagrees with the

comment and incorporates by reference

the response found in section III. C.

"Comment on the VMT Offset SIP" of

this document. ,

F. Comment on the Contingency

Measures Plans

Comment 1: We received a comment

asserting that EPA cannot approve the

contingency measures which were

identified in the SIP revisions to addres

the Washington area's failure to attain

by November 15, 1999. The comment

claims that, because these measures in

the plan required further action by the

States, these contingency measures do

not meet the CAA's requirement that th,

measures take effect without further

action by the State or EPA after the

failure to attain. The comment also

claims the contingency measures do nol

meet EPA's own guidance which

requires contingency measures to

achieve reductions no later than the

year after the one in Which the failure

is identified because these contingency

measures identified by the SIP revision

were not implemented until 5 to 6 year

after the failure to attain.

Response 1: EPA disagrees with.the

comment-and incorporates by reference

the response to the comment labeled "comment 1" found in section III. D.

"Comment on the Contingency

Measures Plans" of this document.

Comment 2: We received a comment

asserting that the contingency plan for

2005 cannot rely on measures already

adopted and in place or to be in place

before the 2005 attainment and ROP

deadline. The comment claims that the

Act requires that contingency measures

must be additional measures that will b

triggered by the attainment or mileston

failure, that is, the Act provision is

prospective, not retrospective.

Response 2: EPA disagrees with the

comment and incorporates by reference

the response to the comment labeled

"comment 2" found in section III. D.

"Comment on the Contingency

Measures Plans" of this document.

Comment 3: We received a comment

that the Act requires a set of

contfngency measures to address any

failure to meet ROP requirements for th

2002-2005 period, that is separate from

those required for failure to attain. The

comment claims that the requirement

for contingency measures to address

post-1996 milestone failures is

explicitly set out in the Act as an

additional mandate in addition to the

requirement for contingency measures

to address 'attainment failures. The

comment further claims that the 2005

ROP deadline here could precede the

attainment date if, in the case of an area

which qualifies for one or both of the 1-

year attainment date extensions allowed

by the Act.

Response 3: EPA disagrees with the

comment and incorporates by reference

the response to the comment labeled

"comment 3'' found in section III. D.

'Comment on the Contingency

Measures Plans" of this document.

Comment 4: We received a comment

s asserting that the contingency plan does

not meet EPA's guidance because the

plan does not contain a commitment for

timely adoption of additional measures

if the 3 percent contingency plan is not

adequate to correct a failure to attain or

achieve an ROP milestone.

Response 4: EPA disagrees with the

comment and incorporates by reference

the response to the comment labeled

"comment 4" found in section III. D.

"Comment on the Contingency

Measures Plans" of this document.

Comment 5: We received a comment

asserting that the contingency plan must

contain some NOx reductions since the

ROP and attainment plans rely upon

NOx reductions as well as VOC

reductions.

Response 5: EPA disagrees with the

comment and incorporates by reference

the response to the comment labeled

- "comment 5" found in section III. D.

"Comment on the Contingency

Measures Plans" of this document.

Comment 6: We received a comment

alleging that all*of the emission

reductions from the continency

measures are not "surplus" because

neither EPA nor the States have .

quantified the total VOC and NOx

reductions needed to attain by

e November 15, 2005. The comment

further claims that the-use of a WOE

approach in the modeled demonstration

of attainment is-incapable of identifying

the precise level of emission reductions

needed for attainment and thus does not

support the a claim that there are "surplus" reductions in the SIP that can

be used for "contingency" purposes.

.Response 6: EPA disagrees with the

comment and incorporates by reference

the response to the comment labeled

"comment 6" found in section III. D.

e "Comment on the Contingency

Measures Plans" of this document.

Comment 7: We received a comment

asserting that the SIP cannot rely on the

reformulated gasoline program (RFG

- program) as a "contingency" measure to

address the area's failure to attain by

1999, because the RFG program became

mandated by the Act once the

Washfington area missed the 1999

attainment deadline. The comment

claims that contingency measures are

measures in addition to those mandated

by the Act. The comment also claims

that RFG was never intended as a

contingency measure and, thus, contrary

to EPA's assertion, it is hardly a "penalty" to the nonattainment area to

disallow contingency credit for a

measure that was never intended as a

contingency measure, and that was

implemented at a time when the area

was already years behind schedule in

adopting adequate ROP and attainment

plans. The comment further asserts that

if the RFG program is a permissible

contingency measure the agency's

guidance would obligate the states to

"backfill" the measure with one year

assuring equivalent reductions and that

the states have not done so.

Response 7: EPA incorporates by

reference the response to the comment

labeled "comment 7" found in section

III. D. "Comment on the Contingency

Measures Plans" of this document.

G. Comment on Protective Finding

We also received comment adverse to

issuing a protective finding in concert

with a disapproval of the Maryland

attainment plan. Because we are not

issuing a protective finding in this final

rule, we do not address this comment in

this document. Our response to these

comment adverse to issuing a protective

finding are addressed in the final rule

disapproving Maryland's attainment

plan with a protective finding that is

published elsewhere in today's Federal

Register.

V. Other Matters

In 1995, Virginia. adopted legislation

that provides, subject to certain

conditions, for an environmental

assessment (audit) "privilege" for

voluntary compliance evaluations

* performed by a regulated entity. The

legislation further addresses the relative

burden of proof for parties either

asserting the privilege or seeking

disclosure of documents for which the

privilege is claimed. Virginia's

legislation also provides, subject to

certain conditions, for a penalty waiver

for violations of environmental laws

when a regulated entity discovers such

violations pursuant to a voluntary

compliance evaluation and voluntarily

discloses such violations to the

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Commonwealth and takes prompt and

appropriate measures to remedy the

violations. Virginia's Voluntary

Environmental Assessment Privilege

Law, Va. Code Sec. 10.1-1198, provides

a privilege that protects from disclosure

documents and information about the

content of those documents that are the

product of a voluntary environmental

assessment. The Privilege Law does not

extend to documents or information (13

that are generated or developed before

the commencement of a voluntary

environmental assessment; (2) that are

prepared independently of the

assessment process; (3) that demonstrate

a clear, imminent and substantial

danger to the public health or

environment; or (4) that are required by

law.

On January 12, 1998, the

Comnionwealth of Virginia Office of the

Attorney General provided a legal

opinion that states that the Privilege

law, Va. Code Sec. 10.1-1198, precludes

granting a privilege to documents and

information "required by law,"

including documents and information

"required by Federal law to maintain

program delegation, authorization or

approval," since Virginia must "enforce

Federally authorized environmental

programs in a manner that is no less

stringent than their Federal

counterparts. * * * " The opinion

concludes that "[riegarding [section]

10.1-1198, therefore, documents or

other information needed for civil or

criminal enforcement under one of these

programs could not be privileged

because such documents and

information are essential to pursuing

enforcement in a manner required by

Federal law to maintain program

delegation, authorization or approval."

Virginia's Immunity law, Va. Code

Sec. 10.1-1199, provides that "[t]o the

extent consistent with requirements

imposed by Federal law," any person

making a voluntary disclosure of

information to a state agency regarding

a violation of an environmental statute,

regulation, permit, or administrative

order is granted immunity from

administrative or civil penalty. The

Attorney General's January 12, 1998

opinion states that the quoted language

renders this statute inapplicable to

enforcement of any Federally authorized

programs, since "no immunity could be

afforded from administrative, civil, or

criminal penalties because granting

such immunity would not be consistent

with Federal law, which is one of the

criteria for immunity."

Therefore, EPA has determined that

Virginia's Privilege and Immunity

statutes will not preclude the

Commonwealth from enforcing its

program consistent with the Federal

requirements. In any event, because

EPA has also determined that a state

audit privilege and immunity law can

affect only state enforcement and cannot

have any impact on Federal.

enforcement authorities, EPA may at

any time invoke -its authority under the

Clean Air Act, including, for example,

sections 113, 167, 205, 211 or 213, to

enforce the requirements or prohibitions

of the state plan, independently of any

state enforcement effort. In addition;

citizen enforcement under section 304

of the Clean Air Act is likewise

unaffected by this, or any, state audit

privilege or immunity law.

VI. Final Actions

A. The District of Columbia-1 996-1999

ROP Plan

EPA is approving as a revision to the

District's SIP the District of Columbia's

1996-1999 ROP plan SIP revision for

the Washington area which was

submitted on November 3, 1997, as

supplemented on May 25, 1999. EPA is

approving the 1999 MVEBs of 128.5

tons per day of VOC and 196.4 tons per

day of NOx established and identified in

the Post 1996-1999 ROP plan.

B. The District of Columbia-1 990 Base

Year Inventory Revisions

EPA is approving as a revision to the

District's SIP the revision to the 1990

Base Year Emissions Inventory

submitted by the District of Columbia "

on September 5, 2003 as supplemented

on February 25, 2004.

C. The District of Columbia-Post 1999-

2005 Rate-of-Progress Plan and TCMs

EPA is approving as a revision to the

District's SIP the District of Columbia's

post 1999-2005 ROP plan SIP revision

for the Washington area which was

submitted onSeptember 5, 2003 as

supplemented on February 25, 2004 and

the TCMs in Appendix J of the February

25, 2004 submittal. EPA is approving

the 2002 MVEBs of 125.2 tons per day

for VOC and 290.3 tons per day of NOx

and the 2005 MVEBs of 97.4 tons per

day for VOC and 234.7 tons per day of

NOx established and identified in the

Post 1999-2005 ROP Plan.

D. The District of Columbia-VMT

Offset SIP

EPA is approving as a revision to the

District's SIP the District of Columbia

VMT Offset SIP revision for the

Washington area which was submitted

on September 5, 2003, as supplemented

on February 25, 2004.

E. The District of ColumbiaContingency Measure Plan

EPA is approving as a revision to the

District's SIP the District of Columbia's

contingency measure plan SIP revision

for the Washington area which was

submitted on September 5, 2003, as

supplemented on February 25, 2004.

F. The District of ColumbiaAttainment Demonstration and Plan

EPA is approving as a revision to the

District's SIP the modeled

demonstration of attainment and

adjunct WOE analyses that the

Washington area will attain the 1-hour

ozone NAAQS by November 15, 2005

and the District's 1-hour ozone

attainment plan for the Washington area

both of which were submitted on

September 5, 2003 as supplemented on

February 25, 2004. EPA is approving the

2005 MVEBs of 97.4 tons per day for

VOC and 234.7 tons per day of NOx

established and identified in the

attainment plan.

G. Maryland-Post 1996-1999 Rate-ofProgress Plan and TCMs

EPA is approving as a -revision to the

State of Maryland's SIP Maryland's post

1996-1999 ROP plan SIP revision for

the Washington area which was

submitted on December 24, 1997, as

supplemented on May 20, 1999, and the

TCMs in Appendix H of the May 20,

1999 submittal. EPA is approving the

1999 MVEBs of 128.5 tons per day of

VOC and 196.4 tons per day of NOx

established and identified in the Post

1996-1999 ROP plan.

H. Maryland-1990 Base Year Inventory

Revisions

EPA is approving as a revision to the

State of Maryland's SIP the revision to

the 1990 Base Year Emissions Inventory

submitted by Maryland on September 2,

2003 as supplemented on February 24,

2004.

L Maryland-Post 1999-2005 Rate-ofProgress Plan and TCMs

EPA is approving as a revision to the

State of Maryland's SIP Maryland's post

1999-2005 ROP plan SIP revision for

the Washington area which was

submitted on September 2, 2003 as

supplemented on February 24, 2004 and

the TCMs in Appendix J of the February

24, 2004 submittal. EPA is approving

the 2002 MVEBs of 125.2 tons per day

for VOC and 290.3 tons per day of NOx

and the 2005 MVEBs of 97.4 tons per

day for VOC and 234.7 tons per day of

NOx established and identified in the

Post 1999-2005 ROP Plan.

25715

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25716 Federal RgisterVoE. V2,/Nr. ,May 12XFiday 13, '2005 /'R les and Regut, ibfs

I. Maryland-VMT Offse SIP".

EPA is approving as a revision to the

State of Maryland's SIP Maryland's

VMT Offset SIP revision for the

Washington area which was submitted

on September 2, 2003 as supplemented

on February 24, 2004

K. Maryland-Contingency Measure

Plan

. EPA is approving as a jevision to the

State of Maryland's SIP Maryland' "

contingency measure plan SIP revision.

for the Washington area which was

submitted on September 3, 2003, as

supplemented on February 24, 2004.

L. Maryland-Modeled Demonstration

of Attainment and Determination That

Maryland's Submitted SIP Contains

Measures That Fully Satisfy the

Emission Reduction Requirements

Relevant to Attainment

EPA is approving as a revision to the

State of Maryland's SIP the modeled

demonstration of attainment and

adjunct WOE analyses that the .

Washington area will attain the 1-hour

ozone NAAQSby November 15, 2005,

which was submitted on September 2,

2003 as supplemented on February 24,

.2004. EPA is issuing a determination

that Maryland's submitted SIP for the

Washington area contains adopted

control measures that fully satisfy the

emission reduction requirements

relevant to attainment of the 1-hour

ozone NAAQS in the Washington area

by November 15, 2005. ..I

M. Virginia-Post 1996-1999 Rate-ofProgress Plan and TCMs

EPA is approving as a revision to the

Commonwealth of Virginia's SIP

Virginia's post 1996-1999 ROP plan SIP

revision for the Washington area-which

was submitted on December 29, 1997, as

supplemented on May 25, 1999, and the

TCMs in Appendix H of the May 25, -

1999 submittal. EPA is approving the...

1999 MVEBs of 128.5 tons per day of

VOC and 196.4 tons per day of NOx

established and identified in the Post

1996-1999 ROP plan.

N. Virginia-1 990 Base Year Inventory

Revisions

EPA is approving as a revision to the

Commonwealth of Virginia's SIP

Virginia's revision to the 1990 Base Year

Emissions Inventory which was

submitted on August 19, 2*003 as'.

supplemented on February 25, 2004.

0. Virginia--Post 1999-2005 Rate-ofProgress Plan and TCMs

EPA is approving as a revision to the

Commonwealth of Virginia's SIP

Virginia's post 1999-2005 ROP plan SIP

revision for tih, Washigton arda whicl

was submitted on August 19, 2003 as

supplemented on February 25, 2004 and

the TCMs in Appendix J of the February

25, 2004 submittal. EPA is approving

the 2002 MVEBs of 125.2 tons per day

for VOC and 290:3 tons per day of NOx

and the 2005 MVEBs of 97.4 tons per.

day for VOC and 234.7 tons per day Qf

NOx established and identified in the.

Post 1999-2005 ROP Plan.

P. Virginia-VMT Offset SIP

EPA is approving as a revision to the

Commonwealth of Virginia's SIP

Virginia's. VMT Offset SIP revision for

the Washington area which was

submitted on August 19, 2003, as

supplemented on February 25, 2004.

Q. Virginia-Contingency Measure Plan'

EPA is approving as a revision to the

Commonwealth of Virginia's SIP

Virginia's contingency measure plan SIP

revision for the Washington area which

was submitted on August 19, 2003, as

supplemented on February 25, 2004.

R. Virginia-Attainment Demonstration

and Plan

EPA is approving as a revision to the

Commonwealth of Virginia's SIP the

modeled demonstration of attainment

and adjunct WOE analyses that the

Washington area will attain the 1-hour

ozoneNAAQS by Novemnber 15, 2005

and Virginia's SIP Virginia's 1-hour

ozone attainmentplan for the

Washington area both of which were

submitted on August 19, 2003 as

supplemented on February 25, 2004.

EPA is approving the 2005 MVEBs of

97.4 tons per day for VOC and 234.7

tons per day of NOx established and

identified in the attainment plan.

VII. Statutory and Executive Order

Reviews

A. General Requirements

-Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355, May

22, 2001). This actionmerely 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-exist6g 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 i '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 b' Executive Order 13175 (65

FR 67249, November 9, 2000). This

action also does not have Federalism

implications because it does not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and '

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

.August 10, 1999). This action merely.

approves a state rule implementing a

Federal requirement, and does not alter

the relationship or the distribution of

power and responsibilities established

in the Clean Air Act. This rule also is

not subject to Executive Order 13045

"Protection of Children from

Environmental Health Risks and Safety

Risks" (62 FR 19885, April 23, 1997),

because it is not economically ...significant.

.In reviewing SIP submissions, EPA's

role is to approve state choicos,

provided that they nieet. the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus; the

requirements of section' 12(d) of the''

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

B. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

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that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA-will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a "major rule" as defined by 5 U.S.C.

804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by 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

approve the District's and Virginia's

base year inventory revision, ROP, VMT

Offset, contingency measure and

attainment plans, MVEBs and TCMs,

Maryland's base year inventory revision,

TCMs, and ROP, VMT Offset and

contingency measure plan, and

Maryland's modeled demonstration of

attainment and demonstration that its

submitted SIP for the Washington area

contains adopted control measures that

fully satisfy the emis~ions reductions

requirements relevant to attainment of

the 1-hour ozone NAAQS 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 prt 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-Dlstrict of Columbia

* 2. In § 52.470, the iable in paragraph (e)

is amended by adding at the end of the

table, the entries for 1996-1999 Rate-ofProgress Plan, 1990 Base Year Inventory

Revisions, Post 1999-2005 Rate-ofProgress Plan and Transportation

Control Measures (TCMs) in Appendix J,

VMT Offset SIP, Contingency Measure

Plan and 1-hour Ozone Modeled

Demonstration of Attainment and

Attainment Plan to read as follows:

§ 52.470 Identification of plan. * .* * * *

(e) * * *

Name of-non-regulatory SIP Applicable geographic or non- State submittal EPA approval date Additional explanation revision attainment area date

1996-1999. Rate-of-Progress Washington 1-hour ozone 11/3/1997, 5/13/05 ................. 1999 motor vehicle emissions

plan SIP. nonattainment. 5/25/1999 [Insert page number where budgets of 128.5 tons per

the document begins], day (tpy) of VOC and 196.4

tpy of NOx.

1990 Base Year inventory Re- Washington 1-hour ozone 9/5/2003, 5/13/05 ...................................

visions,. nonattainment area. 2/25/2004 (Insert page number where

the document begins].

1999-2005 Rate-of-Progress Washington 1-hour ozone 9/5/2003, 5/13/05 ................................... Only the TCMs in Appendix J

Plan SIP Revision and the nonattainment area. 2/25/2004 [Insert page number where of the 2/25/2004 revision,

Transportation Control the document begins]. 2002 motor vehicle emisMeasures (TCMs) in Appen- sions budgets (MVEBs) of

dix J. 125.2 tons per day (tpy) for

VOC and 290.3 tpy of NOx,

and, 2005 MvEBs of 97.4

tpy for VOC and 234.7 tpy

of NOx.

VMT Offset SIP Revision ........ Washington 1-hour ozone 9/5/2003, 5/13/05 ................................... nonattainment area. 2/25/2004 [Insert page number where

the document begins].

Contingency Measure Plan .... Washington 1-hour ozone 9/5/2003, 5/13/05 ...................................

nonattainment area. 2/25/2004 [Insert page number where

the document begins].

1-hour Ozone Modeled Dem- Washington 1-hour ozone 9/5/2003, 5/13/05 ................. 2005 motor vehicle emissions

onstration of Attainment and nonattainment area. 2/25/2004 [Insert page number where budgets of 97.4 tons per

Attainment Plan. the document begins]. day (tpy) for VOC and

234.7 tpy of NOx.

Subpart V-Maryland

s 3. In § 52.1070, the table in paragraph

(e) is amended by adding at the end of

the table, the entries for 1996-1999 Rateof-Progress Plan and Transportation

Control Measures (TCMs) in Appendix

H, 1990 Base-Year Inventory Revisions,

Post 1999-2005 Rate-of-Progress Plan

and Transportation Control Measures

(TCMs) in Appendix J, VMT Offset SIP,

Contingency Measure Plan and Modeled

Demonstration of Attainment to read as

follows:

§52.1070 Identification of plan. * * * * *

(e)* * *

25717

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Federal Register/Vol 70, ,No. 92/.Fyiday,,May 1:3,. 2005 qRues and.egu i9ns

Name of non-regulatory SIP Applicable geographic or non- State subn ittal

revision attainment are'a .date EPAiapptoval date' !I Additionalexplanation 

1996-1999 Rate-of-Progress Washington DC 1-ihour ozone 12/20/1997, 5/13/05 ..... Only the TCMs in Appendix H

Plan SIP and the Transpor- nonattainment area. . 5/20/1999 [Insert page number where ... of the 5/20/1999 revision, tation Control Measures . the document begins]. 1999 motor vehicle emis-

(TCMs) in Appendix H. sions budgets of 128.5 tons

per day (tpy) of VOC and

196.4 tpy of NOx.

1990 Base Year Inventory Washington DC 1-hour ozone 9/2/2003, 5/13/05 ................... Revisions. nonattainment area. 2/24/2004 [Insert page number where

the document begins]. 1999-2005 Rate-of-Progress Washington DC 1-hour ozone ' 9/2/2003, 5/13/05 ............................ Only the TCMs in Appendix J

Plan SIP Revision and the nonattainment area. 2/24/2004 [Insert page number where of the 2/24/2004 revision,

Transportation Control the document begins]. 2002 motor vehicle emisMeasures (TCMs) in Ap- sions budgets (MVEBs) of

pendix J. 125.2 tons per day (tpy) for

VOC and 290.3 tpy of NOx, and, 2005 MVEBs of 97.4

tpy for VOC and'234.7 tpy

" .-" " . of.NOk.. ...... . -. VMT Offset SIP Revision ....... Washington DC 1-hour ozone. . 9/2/2003,. 5/13/05 ....... . .................

nonattainment area. 2/24/2004 [Insert page number where

the document begins].. -

Contingency Measure Plan .... Washington, DC Area ............ 9/2/2003, 5/13/05 .. ............. I ............

2/24/2004 [Insert page number where .

the document begins]. 1-hour Ozone Modeled Dem- Washington DC 1-hour ozone 9/2/2003, 5/13/05 1 ................................. onstration of Attainment. nonattainment area. 2/24/2004 [Ihsert page number where ' 1 3

-the document begins]. , ... -

m 4. Section 52.1073 is revised by adding ozone NAAQS in the Washington area"- 1999-2005 Rate-of-Progress Plan and

paragraph (fl to read as follows: by November 15, 2005. Transportation Control Measures (TCMs)

in Appendix J, VMT Offset SIP, -§ 52.1073 Appioval status. Subpart VV-Virginia Contingency Measure Plan and 1-hour

Ozone- Modeled Demonstration of (f) EPA is issuing a determination that n 5. In § 52.2420, the table in paragraph Attainment and Attainment -Plan to read:

Maryland's submitted SIP for the (e) is amended by adding at the end of as follows:

Washington area contains adopted the table, the entries for 1996-1999 ROP

control measures that fully satisfy the Plan and Transportation. Control § 52.2420 Identification of plan.

emission reduction requirements .Measures (TCMs) in Appendix H, 1990. * * . , * *

relevant to attainment of the 1-hour Base Year Inventory Revisions, Post (e)* *

Name of non-regulatory SIP Applicable geographic or non- State submittal EPA approval date -. . Additional explanation revision attainment area date

1996-1999 Rate-of-Progress

Plan SIP and the Transportation Control Measures

(TCMs) in Appendix H.

Washington 1-hour ozone

nonattainment area.

1990 Base Year Inventory Re- Washington 1-hour ozone

visions. ionattainment area.

1999-2005 Rate-of-Progress

Plan SIP Revision and the

Transportation Control

Measures (TCMs) in Appendix J.

VMT Offset SIP Revision ........

Washington 1-hour ozone

nonattainment area.

Washington 1-hour ozone

nonattainment area.

12/29/2003,

5/25/1999

5/13/05 ...............

[Insert page number where

the document begins].

8/19/2003, 5/13/05 ...................................

2/25/2004 [Insert page number where

the docu ment begins].

8/19/2003, 5/13/05 ........

2/25/2004 [Insert page number where

the document begins].

8/19/2003, 5/13/05 ......... .................... 2/25/2004 .[Insert page number where

the document begins].

. : • , .,~ '. , . , , ,

Only the TCMs in Appendix H

of the 5/25/1999 revision,

1999 motor Vehicle emis-

* sions budgets of 128.5 tons

per day (tpy) of VOC and

196.4 tpy of NOx..

Only the TCMs in Appendix J

of the 2/25/2004 the revision, 2002 motor vehicle

emissions budgets

(MVEBs) of 125.2 tons per

day (tpy) for VOC and

290.3 tpy of NOx, and,

2005 MVEBs of 97.4 tpy for

VOC and 234.7 tpy of NOx.

25718.

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Name of non-regulatory SIP Applicable geographic or non- State submittal

revision attainment area date EPA approval date Additional explanation

Contingency Measure Plan .... Washington 1-hour ozone 8/19/2003, 5/13/05 ........................

nonattainment area. 2/25/2004 [Insert page number where

the document begins].

1-hour Ozone Modeled Dem- Washington 1-hour ozone 8/19/2003, 5/13/05 ................................... 2005 motor vehicle emissions

onstration of Attainment and nonattainment area. 2/25/2004 [Insert page number where budgets of 97.4 tons per

Attainment Plan. the document begins]. day (tpy) for VOC and

234.7 tpy of NOx.

[FR Doc. 05-9401 Filed 5-12-05; 8:45 am]

BILUNG CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[RME No. R03-OAR-2004-DC-0010; FRL7910-4]

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

RO3-OAR-2004-DC-010. 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 v6hicle 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 supplemeriied

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 demoristration

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

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