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Citation: 70 Fed. Reg. 25688 2005

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### 'No. 92/Friday Mhy' 13, ,2005-/Rul6s "ari 'RgAlati'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 ofColumbia, 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 ofColumbia (theDistrict), the State ofMaryland and the Commonwealth ofVirginia. These revisions include the 1996-1999 and 1999-2005 rate-of-progress (ROP) plans, changes to the 1990base 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 invehicle miles traveled (VMT) and to demonstrate ROP and attainment ofthe 1-hour national ambient air quality standard (NAAQS) for ozone. These revisions also include the District's and Virginia's attainment plan forthe 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 ofwhich 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 theDistrict's and Virginia's -attainmentplans forthe Washington
area; and, determine that Maryland's SIP forthe Washington area contains ,adopted control measures and determine that these measures fully satisfythe emission reductions relevant
to attainment ofthe 1-hour ozone NAAQS.
DATES: EffectiveDate:This final rule is effective on June 13, 2005. ADDRESSES: EPA has established a docket forthis action under Regional Material in EDocket (RME) ID Number R03-OAR-2004-DC-0010. All documents inthe 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 notplaced on the Internet and willbe publicly available only inhard copy form. Publicly'available docket materials are available either electronically in RME or inhaid 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 ofthe State submittal are available at the District ofColumbia Department ofPublic Health, Air Quality Division, 51 N Street, NE., Washington, DC 20002; the Maryland Department ofthe Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230; and the Virginia Department ofEnvironmental Quality, 629East 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 ofproposed rulemaking (NPR) forthe District, the State ofMaryland and the Commonwealth ofVirginia (the States). The NPR proposed approval ofthe 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 inVMT as necessary to demonstrate ROP and attainment ofthe 1-hourNAAQS 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

ourJanuary 12, 2005 NPR:

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

DC

- MD' VA
Initialsubmittal 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 ofthe 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. 2Maryland's identifiers forthese SIP revision submittals are SIP revisions numbers 03-05 and 04- 01. 25688-

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Hereafter, the SIPrevisions listedin area.3 The February 2004 SIPrevisions in 1998 with later supplements. These Table 2 ofthis 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 oftwo earlier rulemaking actions, 66 FR States" February 2004 SIP revisions Appendix 

### Jofthe SIPrevision 586, January 3, 2001, and 68 FR 19106, include the post 1999-2005 ROP plans, submittals. April 17, 2003. The dates ofsubmittal 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 ofboth 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 MD 4 VA

Initial submittal dates

............ ,.......................................... April 24, 1998

.......... April 29, 1998

.......... April 29, 1998. Amendment dates

................................. ....................... . October27, 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 becalled the "pre-2001 SIP revisions" attainment plan." 5Hereafter

we refer to the collective grouping of those SIP revisions listed in Tables 1 and 3 ofthis document as the "pre-2001 SIP revisions."

Intheir February 2004 SIP revisions, each ofthe States resubmitted to EPA the attainment plan contained in its prior SIPrevisions' attainment plan along with additional elements required for a severe areaattainment 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 inthe previous SIP revisions' attainment plan.

Weproposed action onthese attainment plans in a separate NPR published in the Federal Register on February 9, 2005 (70 FR6796). Inour February 9, 2005, NPR, we also proposed approval ofthe 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 forthe Washington
area, we proposed approval contingent
upon the State submitting an approvable SIP revision forcertain'penalty fees, required by the Clean AirAct (the Act), prior to the time EPA would issue a final rule onMaryland's attainment. plan. In the alternative, we proposed to disapprove the attainment plan SIP revision submittedby the State of Maryland forthe Washington area and
to issue aprotective finding forthe

3In 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 ofthe 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 afinal action onthe Maryland's attainment plan for the Washington area ina separate final rule which is published elsewhere intoday's Federal Register. Inthat final rule, EPA is disapproving the Maryland's attainment plan forthe 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 thatrule, the protective finding will allow Maryland to use the MVEBs contained inthe disapproved SIP for transportation conformity

. . purposes pursuant to 40 CFR 93.120. In thisrule we are approving the modeling demonstration, which includes an analysis based upon photochemical grid modeling (the modeled demonstration ofattainment and adjunct weight-ofevidence (WOE) analysis), contained in the District's, Maryland's and Virginia's February 2004 SIP revisions. We also ' determine thatbased upon this modeled demonstration ofattainment 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

4Maryland's identifiers for the February 14, 2000 and March 31, 2002 submittals are SIP revisions numbers 00-01 and No. 00-02.

5Only a commitment torevise the motor vehicle emissions budgets (MVEBs) found in the March 2000 SIP revisions listed in Table 3 ofthis conformity purposes pursuant to 40 CFR 93.120.

B. RelationshiptoPastSIPRevisions and Litigation

1.Prior SIP Revisions

During 1998, the States submitted an attainment plan for theWashington area and supplemented these submittals on the dates listed in Table 3 ofthis document. These 1998 and 2000 calendar yearrevisions cumulatively constituted the attainment plan forthe Washington areawhich at the time was classified as beingin "serious" nonattainment ofthe 1-hour ozone NAAQS. In the aggregate these attainment plans consisted ofa photochemical modeling demonstration and adjunct WOE analyses that demonstrated attainment ofthe ozone NAAQS; projected emissions inventories showing that the States collectively had adopted sufficient

measures to support the demonstration ofattainment; attainment yearMVEBs; and a commitment to-conductand submit a mid-course review t6 EPA by

a date certain. As noted previously, the March 2000 SIP revisions consisted ofa 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 areawould attain the 1- hour ozone NAAQS by nolater than *November15, 2005. OnJanuary 3,2001, EPA approved the pre-2001 SIP revisions and extended the attainment date for the Washington area (then a

document were subject to theJanuary 3,2001 and April 17, 2003 finalrules.The portion ofthese SIP revisions related toMVEBs foryears after 2005 ("outyearbudgets")was not subjectto these actions. 

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serious nonattainment area) until November 15, 2005.

2. January 3, 2001 Final Rule Vacated

A petition forreview 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 ofa serious ozone nonattainment area past November 15, 1999 without reclassifying the area as severe nonattainment, could notapprove a SIP for an area with a 2005 attainment date unless theplan provides forROP reductions after 1999 and could not approve aSIP that does not include contingency measures. On July 2, 2002, the U.S. Court ofAppeals forthe District ofColumbia 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 ofAppeals found that' EPA had no authority to extend the attainment date ofa serious ozone nonattainment area without reclassifying the area as severe nonattainment, and could not approve a SIP foran area With a 2005 attainment date unless the plan provides for ROP reductions untilthe attainment date. See SierraClubv. Whitman, 294 F.3d 155, 160-163 (D.C. Cir. 2002). The Court ofAppeals also found thatEPA could
not approve the pre-2001 SIP revisions because acontingency measures plan, which is required under section 172(c)(9) ofthe Act, is one ofthe elements listed under section 172(c) as

arequirement for a revised SIP for an

area innonattainment. See Id. at 164.
3. Nonattainment Area Plan Requirements

Under section 172(c) ofthe 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 SIPfor an area in severe ozone nonattainment must include reasonably available control technology (RACT)on, and new source review (NSR) permitting of,major stationary sources ofnitrogen oxides (NOx) emissions and volatile organic compound (VOC) emissions with a potential to emit of25 tons per year (TPY)or greater; new

source permitting offset ratios of 1.3 to 1or greater; a VMT Offset SIP; aROP plan to achieve a 15 percent reduction. in VOC emissions by 1996; plans for achieving an average of a 3 percent per yearROP reductions after 1996 through the attainment date; and a SIP revision
to impose the penalty fees specified in section 185 ofthe Act.

EPA believes SierraClubv. Whitman, 294 F.3d 155, can be read to require that before we can approve the overall revised SIP forthe nonattainment area
we nfust approve all ofthe elements applicable to the area under sections 172(c)and 182 ofthe Act. In thisdocument, the overall SIP forthe nonattainment area will betermed the "attainment plan."

Under section 182 ofthe Act, a demonstration that the SIPs for a nonattainment area, asrevised, will provide forattainment ofthe 1-hourozone NAAQS by November 15, 2005 is

a separate component ofthe overall attainment plan. See42 U.S.C. 75-11a(c)(2)(A). Such a demonstration for a severe ozonenonattainment area mustbe based upon photochemical grid modeling (orsimilarly effective method) and must show that the submitted demonstration relies upon orcontains adopted control measures that fully satisfy the emission reduction requirements relevant to demonstrating attainment ofthe 1-hour ozone NAAQS by November 15, 2005. Id.

4. Washington Area Reclassified to Severe Nonattainment

.OnJanuary 24, 2003 (68FR 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 forserious areas. This actionmade the area subject to the additional requirements applicable to

severe areas under section 182(d) ofthe Act. On April 17, 2003 (68FR at 19107), EPA conditionally approved the pre2001 SIP revisions (thehistory of litigation on the April 17, 2003 conditional approval will be discussed in a laterparagraph ofthis 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 andthe April 17, 2003. conditional approval, the States ' submitted the SIPrevisions necessary to satisfy the requirements of section 182(d) ofthe Act forsevere areas and EPA's conditional approval, with the. exception ofMaryland which failed to submit a SIP revision forthe 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)Aphotochemical modeling demonstration and adjunct WOE analyses to demonstrate' attainment ofthe 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 ofattainment; (3) attainment yearMVEBs; and (4) a commitment to conduct and submit a mid-course review to EPA by a date certain.6 In theirFebruary 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 inthe 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 ofspecificity inthe States' commitment letters, that EPA should require the 1996-1999 ROPto 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 ofthe Act. On February 3, 2.004, the Court ofAppeals 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 ofAppeals denied the petition for review in all other respects. SeeSierra Clubv. EPA, 356 F.3d 296, 301-07 (D.C. Cir. 2004). OnApril 23, 2004, the Court ofAppeals 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 SIPrevisions didnotneed
to contain acommitment to revisethe MVEBs oneyear after EPA released theMOBILE6 model because theMVEBs intheseplans were developed using MOBILE6.

7On April 16, 2604, theCourt ofAppeals issued

an orderrevisingthe February 3,2004, opinion to address apetition forrehearing filed by the Sierra Club, butotherwise leavingits decision tovacate and remand theconditional approval to EPA intact. I 

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Effective as oftheApril 23, 2004 date the Court ofAppeals 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 ofthe April 17, 2003, final rule (68 FR 19107). Bythe time the three States withdrew the pre-2001 SIP revisions' attainment plan, theyhad already submittedrevised attainment plan SIP revisions with an analysis that the SIPs contained allRACM, 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 theirFebruary 2004 SIP submissions, submitted not only this

new material, butresubmitted all ofthe previously withdrawnpre-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 onboththe newly submitted and resubmitted materials, which we collectively refer to asthe February 2004 SIP revisions.

7. DistrictCourt Action

The Sierra Club filed a complaint in the United States District Court for the District ofColumbia (DistrictCourt) claiming thatbecause the Court of Appeals vacated andremanded the conditional approval ofthe pre-2001 SIP revisions' attainment demonstration and the 1996-1999 ROP plans, EPA had an unfulfilled nondiscretionary dutyto complete final action on those SIP revisions. OnApril 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), onthe state implementation plan submittals for the Washington area identified at 66 FR 586, 586 (January 3, 2001)." SierraClub

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 SIPscould [not] push back the deadlines established by Congress."

SierraClub v.EPA, No. 03-1084, 2004 WL 877850 (DCCir.Apr. 16, 2004).

8With one exception: the "outyear budgets," which were contained in theMarch 31, 2002SIP revision on which EPA hadnever proposed totake action, were not resubmitted. EPA does not dispute that withdrawal ofa SIP cannot pushback astatutory deadline establishedby 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 ofrequired SIP revision puts a state injeopardy of sanctions predicated upon a failure to submit the required SiP. However in this case, as described inthis 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 willtake action onwhat the District Court termed the "pre-2001 submissions," 9as follows:

(1) In this final rule which (a) approves all ofthe control

measures and other constituents needed
to approve Maryland's severe area attainment plan (exceptfor a Section 185 fee program), including all control

measures need to fully satisfy the emissions reductions relevant to -attainmentofthe 1-hour ozone NAAQS;

(b) approves all-ofthe control

measures and other constituents needed
to approve theDistrict'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 ofattainment and adjunct weight ofevidence 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 theirFebruary 2004 SIP revisions;

(2) Another final rule, whichis 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 SIPrevisions' attainment planbased upon Maryland's failure.to submit the required 185 fee program, andissues a protective-finding

on the SIP, based upon our determination that the SIP contains all ofthe control measures necessary to' demonstrate attainment. That protective finding will allow Maryland to use the MVEBs contained inthe disapproved SIP for transportation conformity
purposes pursuant to 40 CFR 93.120.

5The District Courtused the term "pre-2001 submissions" and "pre-2001 SIPs" which consists ofwhat in this document we call "the pre-2001 SIP revisions' attainment demonstration" and "the 1996-1999 ROP plan." II. The Relationship ofPast SIP Revisions, February2004 SIP Revisions andthe April 17, 2003 Conditional. Approval

A. The Twelve Conditions forApproval
On April 17, 2003, EPA had conditionally approved the pre-2001 SIP revisions subjectto 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 forthe failure of the Washington areato 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 tobe implemented ifthe Washington area does notattain the one-hour ozone standard by November 15, 2005;

(5) Revisethe ROP plans to demonstrate emission reductions of

ozone precursors ofan average of 3 percentper 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 peryear;

(8) Revise RACTrules 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 aSIP 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 ofvehicle trips if

. required under section 182(d)(1) ofthe Act;

(11) Submit the section 185 penalty fee SIP consisting ofthe penalty fee requirement ofAct sections 182(d)(3) and 185 formajor sources ofVOC and NOx should the area fail to attainby November 15,.2005;

(12) Update the Washington area

severe attainment demonstration to reflectrevised MOBILE6-based motor vehicle emissions budgets, including revisions to the attainment modeling/ weight ofevidence 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 (68FR 5246) proposed rule forthe April 17, 2003 ". final conditional approval, we proposed conditional approval ofthe pre-2001 SIP revisions ifthe 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)inresponse to comment which stated that EPA could not fully
approve the pre-2001 SIP revisions because the pre-2001 SIPrevisions did
not cover all ofthe 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 inthe SIP required for a serious nonattainment

area.

Conditions (4) through (11) are SIP elements required as aconsequence of the reclassification ofthe Washington

area to severe nonattainment.

Conditions (3) through (6) were required to correct deficiencies inthe 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 policyrelated to the transition from our prior mobile source emissions factor model, MOBILE5, to the newer model, MOBILE6.

B. HowtheStatesHaveAddressedthe Twelve Conditions

In this section wewill discuss how the States have addressed the twelve conditions. EPA had already approved many ofthe States' SIPrevisions forthe control measures needed to support the attainment plan, the ROP plans and the contingency measure planby the time

we published the NPRs onJanuary 12, 2005 (70 FR 2085) and February 9, 2005 NPR (70 FR 6796) forthe States' 1996- 1999 ROP plans and the February 2004 SIP revisions including the resubmitted pre-2001 SIP revisions' attainment plan. Inthis document we willnot reiterate the specifics ofsuch approvals butwill provide details on the approval of control measures which were not approved at the time ofthe January 12, 2005 and February 9, 2005 NPRs.
1. Conditions 1to 4--Contingency Measures

At the time of the January 12, 2005 NPR forthe contingency measures plan, EPA had approved all the contingency measures except each ofthe 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 finalrules 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 (69FR 77642), December 29, 2004 (69FR 77906).and December 29, 2004 (69FR 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 forthe Washington area. These contingency measure plans provide sufficient contingency measures to meet

our 3percent (relativeto baseline emissions for the Washington area) reduction for all ofthe relevant years for which the States need contingency

. measures. Our basisfor determining that the Stateg' contingency measures plans get the required reductions is discussed in detail in section V. "Contingency Measures Plans" ofthe January 12, 2005 NPR (70 FR at 2087-2095) and in our response to comments under sections IIl. D. "Comment onthe Contingency Measures Plans" ofthis document.

EPA finds.thatthe actions cited in the preceding four paragraphs fulfilled conditions (1)through (4).

2. Condition 5-Post-1999 ROP

At the time ofthe January 12, 2005 NPR forthe ROP plans and the February 9, 2005 NPR on the attainment demonstration, EPA had approved all the control measures *excepteach ofthe 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. Inthis action, EPA is approving the TCMs submitted with the 1996-1999.and post-1999 ROP plans.

On May 2, 2005, the Regional Administrator signed afinal rule approving Maryland's and Virginia's nonregulatory measures SIP revision. That final action hasbeen published in

arecent Federal Register or shortly will be published in the Federal Register. Inthis final rule EPA is approving the States' 1996-1999 and post-1999 ROP plans. Ourbasis for determining that the States' ROP plans get the required post1996 ROP reductions of3 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" ofthe January 12, 2005 NPR (70 FR at2087-2095) and in

our response to comments under sections III. A. "Comment on the ROP Plans and NOx Substitution" and B. "Comment on theTransportation Demand Model (TDM)Used in the Plans" ofthis 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 remainto be adopted forthe Washington area. Wereceived no adverse comment on this aspect ofthe proposal and find that the States have fulfilled condition 5by adoption ofall 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 inthe Washington area for both VOC and NOx including an offset ratio of 1.3:1 and amajor source applicability definition of25 tons/year. See 69 FR 77647, December 28, 2004; 69 FR 56170, September 20, 2004; and 69 FR48150, August 9, 2004, for the District, Marylahd, and Virginia, respectively. For each ofthe three States, EPA has fully approved a SIP revision to fmplement RACT formajor

sources ofVOC and NOx with major

source size definition of25 tons/year. See 69 FR 77647, December 28, 2004; 69 FR 56170, September 20, 2004; and 69 FR 48150, August 9, 2004, forthe 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). Ourbasis 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)" ofthe January 12, 

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2005 NPR (70 FR at 2098) and in-our ' response to comments under section III. C. "Comment onthe VMT Offset SIP" ofthis document.

6. Condition 11-the Section 185 Penalty Fee SIP

On December 28, 2004 (69 FR 77639) and onDecember 29, 2004 (69 FR 77909), EPA approved the District's and Virginia's section 185 penalty fee SIP revisions, respectively, andthus, 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 ofa section 185 penalty fee SIP revision, EPA is disapproving Maryland's attainment plan with a protective findingwhich will allow the MVEBs contained inMaryland's 2004 SIP revisions to be used for transportation conformity purposes pursuant to-40 CFR93.120. 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 yearMVEBs. The final version ofthe 2005 attainment year MVEBs was contained inthe February 2004 SIP revisions identified in Table 2 ofthis document. These MVWBs are area-wide MVEBs which cover the entire Washington area.

Inthis final ruleEPA is approving the District's and Virginia's attainment plan for theWashington area, namely the attainment plans contained inthe February 2004 SIPrevisions which subsumes the resubmitted pre-2001 SIP revisions' attainment plan. We are also approving the final revision ofthe 2005 attainment yearMVEBs forthe District andVirginia 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 asection 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 awhole will attain the 1-hour ozone NAAQS by

no laterthan 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.

Forthe reasons stated inour February 9, 2005 NPR, the recently approved control measures discussed previously in this final actionand given in our ' ,' responses inthis finil action to comments received on that proposed rule, EPA believes that the States collectively have adopted enough

measures intheir SIPs to demonstrate that the area will attain the 1-hour

ozone NAAQS by.no later than November 15, 2005 with the MVEBs found inthe February 2004 SIP revisions identified inTable 2 ofthis 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 ofthe i-hour

ozone NAAQS will be attained by no laterthan November 15,.2005. EPA believes that the States, including Maryland, have satisfied condition (12) since they have demonstrated that the attainment plans have been revisedto reflect MOBILE6based MVEBS and have included the necessary revisions to the modeled demonstration of attainment and adjunct WOE analyses andhave adopted control measures showing that the SIP continues to demonstrate attainment byNovember 15, 2005.

Therefore, inthis final rule, EPA is approving the District's, Maryland's, andVirginia's modeled demonstrations ofattainment and adjunctWOE analyses andthe District's and Virginia's attainment plans. EPA is also determining that the attainment plan for Maryland contains adopted control'

measures that fully satisfythe emission reduction requirement relevant to attainment ofthe 1-hour ozone NAAQS. EPA istherefore approving the modeled demonstration ofattainment and adjunct WOE analyses contained in Maryland's February 2004 SIP revisions which includes the analysis based upon photochemical grid modeling demonstrating timely attainment ofthe 1-hour ozone standard. In addition,EPA is therefore issuing Maryland's 2004 SIP revisions' attainment plan-a protective finding whichwill allow the MVEBs contained in Maryland's 2004 SIP revisions to be used fortransportation conformity purposes pursuant to 40 CFR 93.120.

EPA concludes that once we issue our approval ofthe District's and Virginia's February 2004 SIP revisions the District andVirginia willhave cured the deficiencies we identified in theirpre2001 SIP revisions through the various SIP revisions that they have submitted since April 17, 2003. Inthe case of Maryland, EPA concludes that all ofthe deficiencies except the section 185 penalty fee SIP revision will have been cured forMaryland'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 1990base year inventory, the contingency measures plan,TCMs,

(3)the modeled demonstration of attainment whichincludes the analysis based uponphotochemical grid modeling and adjunctWOE analyses that Maryland's submitted SIP forthe Washington area contains adopted control measures that fully satisfy the emissionreduction requirements to provide for attainment ofthe 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 Planand EPA'sResponse

We received comments adverse to the proposed approval ofthe ROP, VMT offset, contingency measures, and attainment plans. A summary ofthese adverse comments, and ourresponses, follows.

A. Commenton theROPplansand NOx Substitution

Comment:We received acomment asserting that the ROP plans do not meet the requirement ofdemonstrating a nine percent reduction inVOC emissions from 1999 to 2002 and a further nine percent from 2002 to 2005 because the NOx substitution inthe ROP plans is impermissible. The comment asserts that the ROP plans do not meet section 182(c)(2)(c) ofthe Act because they do
not show that anine percent reduction inNOx emissions willresult in the

same reduction in ozone concentration

as anine percentreduction inVOC 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 onour December 1993 NOx Substitution Guidance is flawed because the plain language ofthe Actrequires proofofequivalent benefits ofNOx suibstitution. The comment also asserts that because the 1999-2005 ROP plan relies solely upon NOxreductions the plans do not meetthe requirement of section 182(c)(2)(C) because the plan does notprovide for some percentage of VOC reduction during each period. The
comment claims that the Actrequires

some non-zero percentage reduction in VOC emissions for anyROP period.

The comment asserts that theAct requires the ROP plans to have VOC reductions byNovember 15, 2002 to

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prevent a net increase inVOC 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 ofthese 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 forNOx substitution originates in section 182(c)(2)(C) ofthe Actwhich specifically allows NOx emissions reductions to be substituted forVOC reductions required under section 182(c)(2)(B) forreasonable further progress (RFP), sometimes called ROP.

EPA issued guidance to the States on, how to implement the NOx substitution provisions forthe post-1996 ROP plans inDecember 1993 (theDecember 1993 NOx Substitution Guidance). The guidance allows Statesto substitute NOx emission reductions forVOC emission reductions ifthat substitution is consistent with the demonstration of attainment in the SIP. The modeled demonstration ofattainment inthe SIP establishes the overall reductions of

. VOC and/or NOxreductions 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 iftoo many NOx reductions are substituted for VOC reductions, the modeled demonstration ofattainment may no longerbe valid. OurDecember 1993-NOx Substitution Guidance allows substitution on a percentage basis (i;.,

one percent ofNOx emissions reductions can be substituted forone percent ofVOC emissions reductions).

Results oftheApplicationofEPA's December1993NOx Substitution Guidancein the WashingtonArea.EPA believes that NOx substitution as applied to the Washington area based on

ourDecember 1993 NOx Substitution" Guidance yields ROP plans that result inreductions in ozone concentrations that are betterthan those which would have resulted from ROP plans relying upon an equal percent ofVOC reductions.

'oTechnical Support Document for Approval and Promulgation ofAir QualityImplementation Plans; District ofColumbia, Maryland, and Virgiriia; Post1996 Rate-of-Progress Plan, Contingency Measures, Transportation Control Measures, 1990 Base Year Inventory Changes, and VMT Offset SIP forthe Applying our December 1993 NOx Substitution Guidance to the Washington area we substitute one percent ofVOC ROP reductions with

one percent ofNOx reductions. One percent ofNOx represents a larger quantity ofemissions reduction than does one percent ofVOC. This is the

case because ROP reductions are computed from baseline emissions, which are defined in section 182(b)(2)(B) ofthe Clean Air Actto be "the total amount ofactual VOC orNOx 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) ofthe Act. The reduction ofbaseline 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 inthe 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) ofthe Actrequires that a set percentage ofreductions in baseline emissionsbe achieved-every threeyears 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, inthe case ofthe Washington area, the "Adjusted 1990 Base Year Inventory for 2005" for VOC is 412.1 tons per day (TPD), and,thus,

aone 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

seehow sensitive the Washington area

was to changes in VOC and to NOx emission reductions. They did not model changes inbiogenic 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 ofthis sensitivity modeling to determine that a

Metropolitan Washington, DC Nonattainment Area, January 5, 2005

11For a summary ofthe photochemical grid modeling forthe Washington arearefer to the February 9, 2005 (70 FR 6796) NPR,and, for a discussion in depth, see Technical Support. one tonreduction inNOx emissioiswithin the Washington area would result in apeak ozone concentration reduction of0.114 parts per billion (ppb) (0.114 ppb/ton ofNOx); a similar analysis forVOC emissions indicated that aone ton reduction inVOC emissions would result in apeak ozone concentration reduction of0.029 ppb (0.029 1pb/ton ofVOC reduced). The States concluded that emissions reductions of34.0 tons/day ofVOCor 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 ofVOC reductions. Therefore, substituting apercentage ofVOC 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 ofanthropogenic emissions and of 376.5 TPDbiogenic emissions for

atotal of955.2 TPD ofVOC. The 1990 base year NOx inventory (all ofwhich is anthropogenic) for the Washington

area is 869.3 TPD of NOx. Given that 39 percent (376.5/955.2) ofthe 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, aone percent reduction in NOx emissions equates to

more tons ofemission reduction than does onepercent reduction ofthe anthropogenic VOC emissions.

This is notto say VOC reductions are not beneficial towards attainmient, but rather that reductions in anthropogenic VOC emissions are not as effective on a TPD orROP percentage basis as NOx reductions. However, the States are free.
to fashion their attainment demonstrations and ROP plans to include whatever mix ofVOC and NOx reductions they choose, so long as the plans demonstrate timely attainment and timely ROP in accordance withthe requirements ofthe Clean AirAct.

The following table compares a9 percent reduction inbaseline-VOC emissions by each post-1996 milestone year to the chosen levels ofNOx substitution in the ROP plans interms

Document forApproval and Promulgation ofAir Quality Implementation Plans; District.ofColumbia, Maryland, and Virginia; Attainment Demonstration for the Metropolitan Washington, DC" Nonattainment Area, dated January 31, 2005.

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ofTPD reductions and ofozone concentration decreases resulting from

these reductions.

TABLE 4.-RESULTS OF 

### NOx SUBSTITUTION INTHE WASHINGTON AREA

Milestoneyear 1999 2002 2005

9percent reduction inVOC baseline emissions (TPD)

............................................................. 39 37.8 37.1 Ozone Concentration Change to 9 percent VOC (at 0.029 ppb/ton roundedto 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

TechnicalandPractical Reasons for

ourDecember1993NOx Substitution Guidance.The modeling performed for demonstration of attainment basically establishes the relationship between emission reductions-either ofVOC, NOx, orboth-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 .willtimely attain the NAAQS, we are making an implicit corollary conclusion that the mix of VOC and/or NOx control measures included inthe 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 ofplan adoption and the attainment date. EPA does not require modeling ofinterim 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 inthe validity ofthis guidance and in the reasoning setforth therein as it relates to NOx substitution under the post-1996 ROP plan requirements.

LegalRationale forEPA'sDecember 1993NOx SubstitutionGuidance.The comment focuses exclusively upon the phrase "result in areduction 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 ofsection 182(c)(2)(C). The comment would completely "write-out" ofthe statutory text provisions such as "in lieu ofthe demonstration required under s;ubparagraph (B), a demonstration to the satisfactionoftheAdministrator * * *" and "in accordwith such guidance[the gubstitution guidance required by section 182(c)(2)(C)] a lesser percentage ofVOCs 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., SierraClubv. 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 ofa given control strategy (i.e., any particular mix ofNOx and VOC emission reductions) to effect attainment ofthe 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 ofNOx reductions required in the demonstration ofattainment.

In allowing a combination ofNOx and VOC controls orthe substitution ofNOx emissions reductions for VOC emissions reductions, section 182(c)(2)(C) ofthe
statute states that the resulting reductions "in ozone concentrations"
mustbe "at least equivalent" to that which would result fromthe 3percent VOC reductions required as a demonstration ofROP 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 whichNOX control may be substituted for [or combined with] VOC control." In particular, the Agencyhas been authorized by Congress to address in the guidance the appropriate amounts ofVOC control and NOx control needed, in combination, "in order to maximize the reduction inozone air pollution." Further, the Act explicitly provides that the guidance may permit ROP demonstrations that allow a lower percentage ofVOC emission reductions

as long as compensating NOx reductions

are achieved. Inlight ofthe 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 Agencythe discretion to select, for purposes ofdetermining "at least equivalent" reductions, apercentage 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), SierraClubv. EPA, 294 F.3d at 162-163.

As we have previously stated, when

we determine thata demonstration of attainment is approvable, we are making

an implicit corollary conclusion that the mix ofVOC and/or NOx control

measures included in the area's demonstration ofattainment is 'sufficientfortimely attainment.

As additional evidence that Congress

was concerned-with getting morethan minimal reductions in ozone concentrations through substitution, EPA notes that the ROP demonstration described in section 182(c)(2)(B) focuses

on reductions ofa specified quantity of VOC emissions peryear (similarly,the 15 percent ROP reductions required for

12Equivalent means: 'equal in value, force, amount, effect or significance," or "corresponding in effect or function;nearly equal; virtually identical." Black'sLawDictionary, Eighth Edition, 2004. (emphasis added).

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moderate ozone nonattainment areas focuses onreductions ofthat specific quantity ofVOC emissions peryear). 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 bemet (i.e.,the ozone concentrations achieved by VOC reductions of 3percent per year)in orderto ensure expeditious progress towards attainment. In this regard the HouseCommittee Report states: "NOx reductions may notbe substituted for VOCreductions ina manner that delays attainment ofthe ozone standard or that results in lesser annual reductions in

ozone concentration than provided for inthe demonstration ofattainment." H.R. Rep. No. 490, 101st Cong., 2d Sess. 239 (1990).

Additional support forEPA's view that our December 1993 NOx Substitution Guidance's focus onthe NOx and VOC reductions necessary for attainment is consistent with Congressional intent is found in section 182(g), which waives the requirement fora milestone demonstration for a milestonethat coincides with an area's attainment date for an areathat attains the standard bythat date.

EPA disagrees with the comment that EPA's "Guidance onthe Post-1996 Rateof-Progress Plan and Attainment Demonstration" (corrected version as of 2/18/94) specifies a different test, that is, amodeled 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 setforth in sections 2 and 3 ofour December 1993 NOx Substitution Guidance.

With regard tothe photochemical grid modeling. section 4.1 ofthe "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

canbe used to meet post-1996 emission reduction requirements, providedthat such reductions meet the criteria outlined in EPA'sDecember 15, 1993 NOx Substitution Guidance. The condition for meeting therateof-progress requirement isthat the sumofall creditable VOC and NOxemission reductions must equal 3percent peryear averaged over each applicable milestone period.The percent VOC reductionis determined from the VOC rate-of-progress inventoryand the percent NOx reduction is determined from the NOxrate-of-progress inventory. In addition,the overallVOC andNOx reductions mustbe-consistent with the area's modeled attainment demonstration. In other words, theNOx emission reductionscreditable toward the rate-of-progress plan cannot be greaterthan thecumulative reductions dictatedby themodeled attainment demonstration.

This portion ofthe 1994 guidance merely summarizes, and does not alter, the guidance provided inour December 1993 NOx Substitution Guidance. With regard to the photochemical grid modeling, section 2 ofour December 1993 NOx Substitution Guidance specifies that the provision for NOx substitution recognizes that a VOC-only control pathway may not bethe most effective approach for effecting attainment in all areas. Consequently, NOxreductions are placed on anear equal'footing withVOC through substitution. The December 1993 NOx Substitution Guidance establishes two conditions pursuant to both the substitution and RFP provisions inthe Act. Thefirstcondition requires that control strategies incorporating NOx emission reduction measures must demonstrate that the ozone NAAQS will be attained within timeperiods mandated bythe Act. This condition reflects the Title I provision for photochemical grid modeling demonstrations (section 182(c)). The second condition, addressed in section 3 ofthe guidance, maintains the requirement forperiodic emission reductions in order torealize 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 bothcases, the guidance refers to the photochemical grid modeling that is
necessary for themodeled demonstration ofattainment and that establishes the NOx/VOC/ozone relationship atthe attainment date. Neither our December 1993 NOx Substitution Guidance nor the "Guidance onthe Post-1996 Rate-ofProgress Plan and Attainment Demonstration" require amodeled demonstration ofequivalence foran interim period forthe reasons discussed previously.

The 1999-2005ROPPlansProvide for Any RequiredNOx and VOCReductions by 2002 ina TimelyManner.Section 182(c)(2)(C) ofthe Act states that "[the revision may contain, inlieu ofthe demonstration required under subparagraph (B), ademonstration to the satisfaction of the Administrator that the applicable implementation plan, as revised, provides forreductions ofVOCs and [NOx] (calculated according to the creditability provisions ofsubsection (b)(1)(C) and (D) ofthis section) * * * that would result in reduction in ozone concentrations equivalent tothat which would result from the amount ofVOC reductions required under subparagraph (B)." The salient provisions ofthe demonstration of "subparagraph B", that is, section 182(c)(2)(B) ofthe Act,

are: (1) The requirement to reduce baseline emissions by an average of3 percent peryear averaged over each three-year period after 1996, and (2) the reductions creditable towards ROP must meet the same creditability requirements as forthe 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 willbe less than the target .level ofemissions. 13 Because the target level is determined byreducing 1990 baseline emissions andbecause the future yearprojected inventory with all the ROP control strategies mustreflect estimated growth in emissions activities, this demonstration accounts forgrowth 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 ofsection 182(c)(2)(B) mustbe net ofgrowth. EPA's interpretation is sound when considering relevant provisions ofthe
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 ofsection 182(c)(2)(B) allows creditable VOC reductions between 1990 and 1996 that are in

excess ofthose 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 ofgrowth.

EPA believes that in section 182(c)(2)(C) Congress granted EPA even greater discretion astothe composition ofthe demonstration required by section 182(c)(2)(C). As noted previously in other portions ofthis response, section 182(c)(2)(C) allows apost-1996 ROP demonstration "in lieu of" that required under section 182(c)(2)(B). This demonstration mustbe "tothe

13 "Guidance onthe Post '96 Rate-of-Progress Plan (RPP) and Attainment Demonstration" (Corrected vergion ofFebruary 18. 1994). 

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satisfaction ofEPA," and allows that a "lesser percentage ofVOCs may be accepted" in accordance with the guidance thatthe EPAwas required to issue.

Thus, EPA was granted discretion regarding the content ofthe ROP demonstration allowable under section 182(c)(2)(C). For instance, section 182(c)(2)(C) does not use the phrase ""accountingfor growth after 1990." However, EPA's December 1993 NOx Substitution Guidance is based upon the

use ofthe future inventories used in the photochemical grid modeling to account for growth in emissions related activities, and thus reflect emissions reductions that are net ofgrowth. Furthermore, section 182(c)(2)(C) does not require that the plan providing for reductions ofVOC and NOx provide for reductions in "baseline emissions." EPA's guidance for demonstrations of ROP under section 182(c)(2)(C) reflects
many ofthe same features in our guidance implementing section 182(c)(2)(B): A ROP plan calculates target levelsby reducing 1990baseline emissions by a set percentage foreach ROP period; and, EPA chose to require that NOx substitution be net of growth.' 4EPA believes that these features are reasonable in orderto address a scenario where the demonstration ofpost-1996 ROP for an

area for one ROP milestone year, say 1999, relies amixture ofVOC and NOx control and then relies upon all VOC reductions for the subsequent 2002 milestone. EPA believes that the claim that the Actrequires some non-zero percentage ofreductions in VOC baseline emissions inROP demonstrations pursuant to section 182(c)(2)(C) orprovides, that such a percentage reduction net ofgrowth requirements.required by section 182(c)(2)(B) is not supported by the

- plain text ofthe statute. TheAct allows NOx substitution withlesser 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 ofVOC reductions. EPA's interpretation is reasonable given the broad discretion afforded by section 182(c)(2)(C) onthese 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) andAttainment Demonstration" (Corrected version ofFebruary 18, 1994). emission reductions to be consistent with those in the modeled demonstration ofattainment.

For the reasons discussed previously in thisresponse, EPA believes that the Act allows approval ofaROP Plan even when a ROP milestone is met with out any reduction inVOC baseline emissions forthe milestone year. The Act allows EPA to accept a "lesser percentage ofVOC." EPA believes that "lesser percentage" can mean, consistent withthe plain language ofthe 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 FR42880, 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 aROP planmeeting the 9 percent reduction requirement for some milestone year, say 1999, prior to the attainment date, say 2005, using only VOC reductions, would notbe required
to offset any growth inNOx emissions. EPA believes that such a ROP plan would meet the requirements ofsection 182(c)(2)(B), even ifthe areaneeded 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 SIPrevisions doin factprovide for a reduction in VOC emissions. The 1999- 2005 ROP plans in the February 2004 SIPrevisions project that controlled VOC emissions by November 15, 2002 willbe 372.3TPD. This is significantly less than both the 1990 VOC ROP Inventory of578.7 TPD and the 1990 baseline emissions, reduced by reductions from noncreditable measures (the "Adjusted 1990 Base Year Inventory for 2002"), of420.5 TPD. The 1999-2005 ROP plans inthe 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 YearInventory for 2005"), of 412.1 TPD. 15 Therefore, the 1999-2005 ROP plans do provide forVOC reductions by the 2002 and 2005 milestone'years, and, provide for anet reduction in VOC emissions by these dates. However, EPA has concluded that the States' 1999-2005 ROP plans meet section 182(c)(2) ofthe Actbecause 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 inbaseline 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 ofa 9 percent reduction in NOx emissions by 2002, EPAbelieves that there is no requirement for the plan to have a target level ofVOC emissions for the 2002 milestone year for the reasons discussed previously in this response. Therefore, EPA believes that the plan
cannotbe deficient fornot achieving any set reduction inVOC baseline emissions (netofgrowth) by November .15, 2002-no such requirement exists.

B. Commenton the Transportation DemandModel (TDM) Usedin thePlans

Comment:We received a comment asserting that the TDM used to project the mobile source emissions does not properly predict traffic volumes inthe Washington area onroadways. The
comment alleges that the inaccuracies

are significant enough thatthe 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 inemissions from growth in vehicle miles traveled or numbers of vehicle trils inthe nonattainment area.

Response:EPAdisagrees withthis 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 ofregional transportation-related emissions, which support conformity determinations,
mustbe made at a minimum using. network-based TDMs according to

"Table IX. A-1 "Demonstration ofROP" and 2002 and TableV.D-3 "2005 ROP TargetLevels" of"Technical Support Document for Approval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, Maryland, and Virginia;Post1996 Rate-of-Progress Plan, Contingency Measures, Transportation Control Measures, 1990 Base Year lnventory Changes, and VMT Offset SIP forthe Metropolitan Washington, DC Nonattainment Area," dated January 5, 2005. 

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procedures and methods that are available and inpractice, 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 arequirement that network-based travel models must bevalidated against observed counts (peak- and off-peak, if possible) for a base year that is notmore than 10 years prior to the date ofthe conformity determination. Model forecasts must be analyzed forreasonableness and compared to historical trends and other factors, and the results must be documented. 40 CFR 93.122(b)(1)(i); 62 FR43793, August 15, 1997.

Even though this regulation applies to network-based travel models used for conformity determinations, itrepresents EPA's determination as to acceptable practices and was issued through notice and comment rulemaking. The conformity regulation's adequacy provisions (40CFR 93.118(e)) require that MVEBs.in control strategy SIP revisions be the product ofinteragency 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 atthe 'timethe MVEBs are developed. This is indeed the case forthe February 2004 SIP revisions. The TDM model used for. development ofthe February 2004 SIP revisions was based upon the execution ofthe COG/TPB's Version 2.1/TP+ travel forecasting process. 16 Seepage B10 ofAppendix B to the February 2004 SIP revisions. 17

EPA believes that only one ofthe six modeling criteria of section 93.122 of the conformity rule is implicated bythe
comment. This criterion is that validation must be against observed
counts forbase year notmore than 10 years prior to conformity determination. The comment does not allege that the validation ofthe 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, onpage 15 ofthe

." COG is theMetropolitan Washington Council ofGovernments.,The TPB is the NationalCapital Region Transportation Planning Board.

17The "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 ofGovernments, 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 of33 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 notborne outby 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 highestvolume arterials by 41 percent as demonstrated by "the comparison ofsimulated to observed traffic data for over 11,000 links grouped bytraffic volume class and facility type." The same claim was made to theTPB during the development ofthe FY 2005-2010 Transportation Improvement Program forthe Washington Metropolitan Region. The TPB responded by concluding that the analysis inthe 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 wasmade; (2)that there

are many factors which lead to differences between observed data and model outputs; (3) that the RMSE forthe 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 afew values
at the high-end ofthe 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" forthe 11,000 link segments ofthe regional highway network, dbnot represent actual traffic
counts butrather represent factored estimatesofaverage daily traffic volumes based oncontinuous traffic
counts taken ata very limited number ofpermanent counting stations, and; (7)

eLetter fromDavid J. Forkenbrock, Chair, Transportation Research Board's Committee for Review ofTravel Demand.Modeling by the Metropblitan Washington Council ofGovernments toPeter Shapiro, Chairman, National Capital region Transportation Planning Board, dated, September 3,
2003. that "observed" volumes onthe "20 highestfreeway links" are either factored estimatesofaverage daily or

are "uncounted manual" estimates.19

EPA notes that the supporting documentation cited by the comment is forthe COG/TPB Travel Forecasting Model, Version 2.1D Draft#50. The TDM model actually used for development ofthe February 2004 SIP revisions actually was the COG/TPB's Version 2.1/TP+ travel forecasting process. SeeAppendix 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 inthe validation report was that VMT is shown to be overestimated by about 8 percent, screenlines estimates are highby 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 ofa multi-year models development plan that was formulated inFY-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 VMTby 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 modelunder-predicts VMT on some highway segments it over predicts on most others. EPA believes that the claim made inthe comment that the TDM

19

"FY 2005-2010 Transportation Improvement Program forthe Washington Metropolitan Region National Capital Region," Transportation Planning Board and theMetropolitan 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 ofprogress, attainment orthe 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 inthe four decades ofexperience with the use oftravel demand models in transportation planningthere are few universally accepted guidelines or standards ofpractice-for these models and their application, and any assessment ofthese models, their performance, and the current state of transportation demand modeling •

- practices relies primarilyupon 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, ifever, developed. Forthese reasons, EPA disagrees with the-bmment. -We conclude that the TDMmodelused 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 SIPrevisions are deficient because they do not contain' sufficient TCMs to offset growthin emissions from growth in VMT orin trip numbers. The comment alleges that the Act requires the SIP to offset any growth in emissions due to growth in VMT or in tripnumbers 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 Onlyto VOCIncreases.As an initial matter EPA believes that the VMT offsetprovision applies only to increases ofVOC emissions. As explicitly stated inthe proposed rulemaking forthe General Preamble for the Implementation ofTitle I ofthe Clean AirAct Ainendments of1990, 57 FR 13498 at 13521, Apr. 16, 1992,.EPA has consistently interpreted the VMT offset requirements ofthe Act, Setforth in section 182, to apply only to VOC emissions. See, e.g., 60 FR 38718 at 38721, July 28, 1995; 60 FR48896 at 48898-48899, September 21, 1995. As

20Letter fromDavid J.Forkenbrock, to Christopher Zimmerman, Chairman, National Capital Region Transportation ,PanningBoard, 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) ofthe:Act

. provides that "any growth in emissions" from growth in VMTmust be offset. : EPAbelieves that in the plain language ofthe 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 willresult in VOC emissions reductions; thus, the only "periodic emissions reduction requirement" ofsection 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 ofVOC and NOx emissions in lieu ofthe SIP otherwise required by section 182(c)(2)(B).

Moreover, the 15 percent periodic. reduction requirement ofsection 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) ofthe Act, Congress required that conformity SIPs "contribute to annual emissions reductions" consistent with section 182(b)(1) (andthus 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 ofthe 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 oftheAct 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 asWell as VOC emissions, it specificallyexteqndeqJ applicability toNOx. Thus, references to

ozone or emissions in general in section 182 do not ontheir 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
notbelieve thisreference to ozone alone

was sufficient to subject NOx emissions
to the permitting requirement, since it

was necessary to enact section 182(f)(1) ofthe 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 inthe provision, EPA does notbelieve States

are required to offset NOx emissions from VMT growth in their section 182(d)(1)(A) SIPs.

-

The VMT Offset Provisionin Section 182DoesNotApply as Claimedin Comments.EPA has consistently explained that the purpose ofthe VMT offset requirement is to maintainmotor vehicle VOC emissions beneath-a "ceiling level" established through modeling ofmandated 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 ofsection 182(d)(1) ofthe Actrequires that states submitby November 15, 1992 specific enforceable TCMs and transportation control strategies to offset any growth in emissions from growth in VMT or number ofvehicle 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 ofthe Act.

As discussed inthe General Preamble, EPA believes that section 182(d)(1)(A) of the Actrequires the State to "offset any growth inemissions" from growth in VMT, but not, as the comment suggests, all emissions resulting from VMT growth. See 57 FRat 13522-13523. As

we explained in response to similar
comments objecting to our application ofthe General Preamble's approach when approving other SIPs,the purpose is to prevent.a growth inmotor vehicle emissions from canceling out the emission reduction benefits ofthe federally maindated programs inthe Act. 

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See 60 FR at 48898; 60 FR at 38720- 38721. The baseline foremissions is the 1990 level ofvehicle 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 inthe ceiling line calculations used by the States in the VMT Offset SIP. Chapter 10 ofthe February 2004 SIPrevisions, shows how emissions will decline substantially anol will not begin to rise overthe ceiling established by the mandated controls. Emissionreductions are expected every yearthrough theyear 2005.

Our approach is consistent with the purposes Congress had in enacting section 182(d)(1)(A). The ceiling line level decreases -fromyearto 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 outthe benefits of
motor vehicle emission reduction

measures will not be allowed and Will trigger the required implementation of TCMs. This prevents mere preservation ofthe status quo, and ensures emissions reductions despite an increase inVMT

or number ofvehicle trips. To prevent futute growth changes from adversely impacting emissions from motor vehicles, states are required under section 182(c)(5) ofthe Act to track actual VMT and to periodically demonstrate that the actual VMT is equal to orless 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 arguablybe read to require offietting anyVMT growth, EPA believes thatthe 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 ownterms 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 ofthe Actto require that states adopt, and submit to EPA for approval into their SIPs, TCMs

ortransportation control strategies sufficient to at least offset "growth in [VMT] or numbers ofvehicle trips," but only ifthe VMT growth would result in actual emissions increases from mobile

sources. Our consistent historic interpretation ofthe language ofsection 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 ofthe statutory language to these two alternative interpretations, EPA believes it is the Agency's role,in administering the statute to take the interpretation
mostreasonable in lightof the practical implications ofsuch interpretation; and the purposes and intent ofthe statutory scheme as a whole. In the context ofthe intricate planning requirements Congress established intitle Ito bring

areas towards attainment ofthe ozone standard, and in light ofthe absence of any discussion ofthis aspect ofthe VMT Offset provision by the Congress as a whole (either infloor debate orin the Conference Report), EPA has consistently concluded that the appropriate interpretation ofsection 182(d)(1)(A) requires offsetting VMT growth only when such growth would result in actual emissions increases. 2 1

When growth inVMT and vehicle tripswould otherwise cause an upturn in emissions from motor vehicles, this upturn mustbe prevented. The emissions level at the point ofupturn becomes a ceiling on motor vehicle emissions. This requirement applies to projected emissions in the years between the submission ofthe 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 ofthat year, with VMT growth, ifallmeasures for that areain 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 offederal

measures such as new motor vehicle standards, phase II Reidvapor pressure, (RVP) controls, and reformulated gasoline, as well asthe statutorilymandated SIPrequirements. For the

reasons outlined in the February 9, 2005 NPR (70 FR 2085), EPA believes that the February 2004 SIPrevisions fulfill the. first element.

21As noted previously, EPAhas applied this interpretation since the enactment ofthe 1990 amendments to the CleanAir Actadding section 182(d)(1)(A), and in response to adverse comments submitted on other rulemaking actions. See, e.g., 60 FR48898 (final approval ofIllinois' SIP)and 60 FR 39720-39721 (final approval ofIndianh's SIP); 66 FR 57247 at 57247-57248, November 14, 2001 (final approval ofTexas SIP). ,Under !3?'s approach, the second element, which requires the VMT offset SIP to comply with the 15 percent ROP requirement ofthe Act, was due on November 15, 1993 for areas initially classified as severe nonattainment. November 15, 1993 is the sam date on which the 15pefcent ROP SIP itselfwas due under section 182(b)(1) ofthe 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 onwhich the entire 15 percent SIP was due, asthis 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 ofthe 15 percent demonstration. Indeed, EPA believes that only upon submittal ofthe broader 15 percent plan can a state have had the
necessary opportunity to coordinate its VMT strategy with its 15percent plan. In the case ofthe 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. See64 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 ofthe Act, was due onNovember 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 forthe 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 abetter program for reducing-emissions in the long term.In the case ofthe Washington

area, EPA believes the third element has22

1In the case ofthe Washington area, the post1999 portions ofthe post-1996 ROP plan required under section 182(c)(2) were in fact due onthe

same as the VMT offset SIP. See 68FR 3410, January 24, 2003., 

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been fulfilled forthe 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 ofattainment. EPA thus finds that the SIPs contain allmeasures necessary tolprovide fortimely attainment and ROP, and therefore that

no additional TCMs willbe necessary to meet those requirements.

D. Commenton the Contingency MeasuresPlans

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 bythe States, these contingency

measures do notmeet the CAA's requirement that the measures take effect without further action by the State

or EPA afterthe failure to attain. The comment also claims the contingency

measures do notmeet 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.

Response1:EPA disagrees withthe
comment that the contingency plan for the failure ofthe Washington serious

ozone nonattainment area to attain by November 15, 1999 cannot be approved. The comment does not address the factual situation forthe Washington area where the SIP did not contain a contingency measures plan consisting of fully adopted measures until the submission ofthe February 2004 SIP revisions and submission ofthe various adopted rules identified asthe contingency measures that is the contingency measures implemented in response to the failure ofthe Washington area to attain the 1-hour

ozone NAAQS by November 15, 1999.

Priorto ourJanuary 12, 2004 NPR (70 FR 2085), EPA had recognized that the SIP of each ofthe 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 1999FTA"). In the January 12, 2004 NPR (70 FR at 2087), we provided a briefhistory ofthe severe area SIP revisions by noting that EPA had previously conditionally approved the post-1996 ROP plans and those versions ofthe attainment plans submitted during 1998 and 2000, contiligent upon the States fulfilling commitments they made to submit the additional elements required ofSIPs fora severe area within:

one year. One ofthe 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 acontingency plan containing those adopted measures that qualify as contingency measures to be implemented for the failure,ofthe Washington area to attain the one-hour

ozone standard for serious areas by November 15, 1999; that is,the States hadto submit SIP revisions to add the contingency measures for 1999 FTA. 68 FR at 19106. Inthe NPR forthe April 17, 2003 final conditional approval, EPA noted that the States inthe Washington area had committed to submit to the EPA those measures that qualify as contingency measures due to the failure ofthe 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) ofthe post-1996 ROP plans and those versions ofthe attainment plans submitted during 1998 and 2000 had been vacated by the Court ofAppeals. The Court ofAppeals determined that EPA lacked the authority to approve attainment plan and ROP SIPs without contingency measures. SierraClubv. Whitman, 294 F.3d at 164. EPA had noted that the post-1996 ROP plans and those versions ofthe attainment plans submitted during 1998 and 2000 covered bythe January 3,2001 final rule "[did] not specify any specific measures
as contingency measures." 66 FRat 615-616, January 3,2001. EPA also agreed with comment that he lawn/ garden measure identified inthe 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

orthe Administrator" to mean that no further rulemaking activities, such as public hearings orlegislative review, by the State orthe EPA should be needed
to implement the contingency measures. See 57 FRat 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 mustbe fully adopted rules or measures but do not have tobe implemented unless and._ until they are triggered by a failure to eithermeet a milestone orattain the NAAQS. See section 5.6 of "Guidance

on the Post,'96 Rate-of-Progress Plan (RPP)and Attainment Demonstration" (Corrected version ofFebruary 18, i994).

. The States did nothave adopted contingency measures to implement without further action by the States on the effective date ofEPA's determination that the Washington area failed to attain by 1999. IfEPA were to

now disapprove the contingency

measures plan because the States needed to take further action after the 1999 FTA.in orderto implement the contingency measures to address the 1999 FTA, the States would have to adopt and submit SIPrevisions consisting ofa revised contingency

measures plan and adopted control
measures, and, EPAwould have to. approve those SIPrevisions in order to prevent orlift sanctions required by section 179 ofthe 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 SIPrevisions, 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 thembecAuse 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 leftin a positionwhere

no SIP revision would be able to lift sanctions because the States cannot go back intime 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 notpreclude EPA from approving them nowthat 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 nolater 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, ifEPA 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 ormeasures 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 ofpermits, 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 ofits failure. See 57 FRat 13512, April 16, 1992. EPA considers that inthe case ofa failure to attain, the State is notified ofa 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 ofthe Federal Register publication. Under section 181, such a notification

can be published no later than May 15th ofthe year following the attainment date apd still be timely under theAct. For a November 15, 1999 attainment date, the one-year period forimplementation 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 ofthe Washington
area, the States adopted and implemented by January 1,2005 allthe

measures identified inthe plan as addressing the contingency measures for

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

ofBenefits from Measures 7.4.11, 7.4.12 and 7.4.14 oftheJanuary 5,'2005 TSD.23 Arguably, the one-year period after the States were notified ofthe failure to attain ended March 24, 2004,.butas discussed previously, the States needed.
to first adopt the measures that would be used as the contingency measures for 1999.FTAbefore the measures could be implemented. The comment offers no suggestion on how the States might retroactively obtain emission reductions in 2004 (orfor 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 SierraClubv. EPA,356 F.3d 296, withrespect to the reclassification ofthe 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 Courtof 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 Clubv. Whitman,285 F.3d 63 (D.C. Cir. 2002), the Court reiterated that "'The relevant provisions ofthe 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) ofthe CAA to adjust applicable statutory deadlines, other than attainment dates, when it reclassifies an attainment area.

Similarly, EPAbelieves that it would be arbitrary and capricious to impose a retroactive obligation onthe Statesthat

can never be fulfilled, resulting in sanctions that could never be lifted. It would be especially egregious forEPA
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 theWashington area was due to their reliance on published EPA guidance24 The failure to begin

23 "Technical Support Document for Approval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, 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.

24Se&,Memorandum dated July 16, 1998, from Richard Wilson, Acting AssistantAdninistrator for implementationof contingency

measures in 2000, upon.aMarch 24, 2003 EPA finding that the area failed to attain in November 1999, cannotbe 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.

Inthis 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 inthe circumstances ofthis case itis appropriate and consistent with the statute to approve these contingency

measures that have now been implemented.

Comment2:We received a comment asserting that the contingency plan for 2005 cannotrely on measures already adopted and in place or to be inplace before the 2005 attainment andROP deadline. The comment claims that the Act requires that contingency measures must be additional measures that willbe triggered by the attainment or milestone failure, that is, the Actprovision is prospective, not retrospective. In support oftheir 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.

Response2:EPA believes that its interpretation ofthe contingency meagure provisions ofthe 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) ofthe Act direct that a state's revised SIP shall include "specific measures to be undertaken" ifan ROP orattainment milestone is missed, and that the contingency measures are "to takeeffect in any such case without further action by the State orthe Administrator." 42 U.S.C. 7502(c)(9), 7511a(c)(9) (emphasis added).

EPA has consistently stated that any rule ormeasure that meets the creditability requirements ofsection 182(b)(1)(C) and (D), that would achieve real, permanent, enforceable reductions, and that is notalready required as a part ofthe relevant ROP or attainment

Air and Radiation, "Extension ofAttainment 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 of2/18/94), section 5.6.

Congress, inthe Act, did notdefine 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 ofcontingency measure implementation prior to an area's failure
to meet an ROP milestone orattainment date. Ifwe were to read the CAA this way, the only acceptable contingency

measure would be those that are adopted but notimplemented. Under that reading, the states could adopt the contingency measures buthold their .implementation in reserve to meet the contingency measure requirement. Ifwe 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 ofthe 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 continuingemissions reductions. We reasonably interpret the term "to take effect" and "to be undertaken," as used in sections 172(c)(9)and 182(c)(9) ofthe 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 ofEPA's authority
to construe a statutory scheme it is entrusted to administer, by filling the
gap leftby Congress's failure to define the terms "to take effect" and "to be undertaken." Seegenerally,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 ofthe Act-the aim ofensuring

25The commenter's appeal to the legislative history does notadd to its argument, since the quoted language reiterates, but does not elaborate, explain orexpound 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 areato include sufficient contingency measures to ensure that "upon implementation ofsuch
measures, additional.emiissions reductions ofup to 3percent ofthe emissions in the adjusted base year inventory (orsuch 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 inthe Washington area .contingency plan are not available for any other use so long asthe measures remain inthe SIP as contingency

measures. A failure to attain orfailure
to demonstrate ROP willresult in these emissions reductions being applied toward attainment orROP (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 .actionby the States. We notethat

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 ofimplementing contingency

measures prior to a failure to achieve a ROP orattainment 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 ofbenefits to allowing and even encouraging the early implemaentation of contingency measures The chiefbenefit is that their emission reductions and thus theirpublic healthbenefit are realized early.Another is that it allows
states to build uncredited cushions into their attainment and RFP demonstrations, acushion which makes actual failures to make progress orattain less likely." 67 FR48718, 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 inthe event ofa future failure to make a ROP target orattain the NAAQS. EPAbelieves thatthe 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) infuture to be determined only upon aROP or* attainment failure. Such a revision would notinterfere with ROP or attainment because EPA believes that the reductions from the measures inthe contingency plan to address aROP failure or a failure to attain by November 15, 2005 must gobeyond 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 notbe producing emissions reductions currently as under the suknmitted SIP.

The comment alleges that ifan area fails to meet a progress orattainment 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 ifthe

areafails to attain on time, such failure would have been worse inthe absence ofthe contingency measures. Likewise, ifan area has an ROP shortfall, such shortfall would have been larger inthe absence ofthe 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 ofthe Act wasupheld 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.

Comment3:We received a comment that the Act-requires a set of contingency measures to address any failure to meet ROP requirements forthe 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 inthe 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 ofan area which qualifies for one orboth ofthe 1- 

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year attainment date extensions allowed by the Act.

Response3:EPA disigrees that section 182(c)(9) ofthe Actnecessarily adds anything substantive to the requirement ofsection 172(c)(9) other than a requirement that the contingency plan be ableto address amilestone failure pursuant to section 182(g). EPA first notes that neither sectioff 182(c)(9)

nor 172(c)(9) ofthe Act specify how many contingency measures are needed

or the magnitude of emissions reductions that -mustbe provided by these measures. The Actis 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 statewould have to adopt "double" the measures needed to satisfy the applicable emissions reduction 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 ofemissions reduction progress continues to be made ifattainment or ROP is notachieved 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 ofsuch
measures, additional emissions reductions ofup to 3percent ofthe emissions in the adjusted base year inventory 26 (orsuch lesser percentage that will curethe identified failure) would be achieved in the year following the year inwhich the failure hasbeen identified. This "additional" reduction would ensure that progress toward attainment occurs ata rate similar to that specified under .theROP requirements formoderate areas (i.e., 3 percent peryear), 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

26The adjusted base year inventory is that inventory specified by the provisions under section 182(4)(1)(B). reclassification to a higher classification, inthe case ofa moderate

or serious area, or to meet the 3percent per year requirements specified by section 181(b)(4)(A) ofthe Act for severe

areas that fail to attain. Under this approach, the State would have 1year 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 thecontingency provisions required under section [172(c)(9)] * * * the plan revision [for serious and above nonattainment areas] shall provide for the implementation ofspecific measures to be undertaken ifthe area fails to meet any applicable milestone." Section 172(c)(9) requires contingency measures for failure of an areato "make reasonable further progress, orto attain" the NAAQS. As clarified by section 182(g)(1) ofthe 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 therebe 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 notimpose any requirement fora 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 inall.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 ayear for which-the

measure produces emission reductions. Ofcourse, ifa measure is triggered for failure to meeta milestone in an early, year the area would have to submit an additional measure to be available inthe
event ofa 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 tobe -reclassifiedto the nexthigher 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 inthe 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).

Comment4:Wereceived a comment asserting that the contingency plan does notmeet EPA's guidance because the plan does not contain a commitment for timely adoption of additional measures ifthe 3percent contingency plan is not adequate to correct afailure to attain or achieve an ROP milestone.

Response4:While EPA's guidance does specify that the States to backfill a contingency measures plan after the need forthe measures'is triggered neither the statute nor the guidance contains the sort ofcommitment claimed'by the comment.

"Any implemented measures (thatare notneeded forthe rate-of-progress requirements or forthe 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 ofthe process of developing their new SIP for their new classification" Seesection 5.6 of"Guidance onthe Post '96 Rate-ofProgress Plan (RPP) and Attainment Demonstration" (Corrected version of February 18, 1994). "Within 1year of the triggering ofa contingency requiring the early implementation ofcontrol
measures, the State must submit a revision to the SIP containing whatever additional measures will be needed to backfill the SIPwith replacement

measures to cure any eventual shortfall that would occur as the result ofthe early use ofthe 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 inthe general preamble, EPA does not believe that contingency measures are required to completely fill any shortfall caused by afailure. This willbe filledby 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 regardto 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 aROP plan for a 15 percent reduction inbaseline VOC emissions. EPA has never interpreted the Act to allow NOx substitution inthe 15 percent plan for an area which is subject to subpart 2 ofpart Dto Title I ofthe Act and which is notalready covered by a 15percent 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 (waivingthe VOC reduction requirement would require "absurd results;" "We believe that absurd results will happen only rarely in those cases where application ofthe requirement in that area would thwart the intent ofCongress inenacting the relevant provisions ofthe [Act]." Absurd results would require a showing that "future VOC reductions required under subpart 2 for aparticular area would actually.cause ozone to increase

more than'a de minimisamount," and, "it would notbe sufficient forthe area to show that VOC reductions would be less beneficial than NOxreductions.") See 68 FR at 32833, June 2, 2003. Section 182(c)(2)(B) requires ROP reductions averaging 3percent per year reduction inbaseline 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 NOxreductions in accordance with EPA's guidance.

The comment claims EPA's policy and guidance requires SIPsto provide for contingency reductions inNOx where the SIP for the area relies on NOx substitution inlieu oforin addition to VOC reductions. In support ofthis position, the commenter quotes a footnote in the General Preamble, 57 FR 13498, April 16, 1992. However, EPA believes our interpretation ofthe Act set forth in later guidance allows just the opposite, namely, that the contingency

measures forboth ROP and attainment failures can provide for atleast some VOCreductions where the attainment plan relies on VOC and NOx reductions

even ifthe 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 forAir and Radiation to the Regional Division Directors, August 23, 1993.28 This later guidance provides that NOx contingency reductions canbe substitutedforVOC contingency reductions, but plainly does not preclude all ofthe contingency reductions from being achieved through VOC control.

Where aROP plan relies upon 9 percent NOxreduction to demonstrate ROP pursuant to section 182(c)(2)(C) of the Act for one ormore milestone years after 1996, EPA believes that a' milestone failure caused by a shortage of NOx reductions can be filledby VOC reductions. Under EPA's guidance for NOx substitution, the VOC contingency reductions would inessence change the plan from one relying upon 9 percent NOx reductions to aplan relying.upon

a mixture ofNOx and VOC percentage reductions. For instance, a 1percent failure would change in such a ROP plan from 9 percent NOx to 8 percent NOx and at least 1percent VOC.

EPA believes that the Washington

area attainment plans demonstrate attainment through a strategy ofVOC and NOx control. Therefore, inclusion of VOC measures in the contingency

measures plan is proper to address a failure to attain. Comment6:We received a comment alleging that all ofthe 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 ofaWOE approach inthe modeled demonstration ofattainment is incapable ofidentifying the precise level ofemission 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 ofthe April 17, 2003 finalrule (68 FR 19106) are the

same as those photochemical grid modeling runs used in the February 2004 SIPrevisions which are the subject ofthis final rule. The WOE analytical methods and/or analyses that support the modeled demonstration of attainment inthe February 2004 SIP revisions, which are the subject ofthis final rule, include the same WOE analytical methods and/or analyses that supported the modeled demonstration ofattainment whichwere the ubject of the April 17, 2003 final rule (68 FR

28

Reissued in Appendix Dto "Guidance onthe Post-1996 Rate-of-Progress Plan and Attainment Demonstration" (corrected version as of2/18/94). 19106). This issue has been litigated by the commenter and conclusively decided inEPA's favor. SeeSierraClub

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 ofthe results ofEPA's photochemical grid modeling'performed for the Tier 2final rule. See, sections VI. A. 1.and 2.of "Technical Support Document for Approval and Promulgation ofAir Quality Implementation Plans; District of Columbia, Maryland, and Virginia; Attainment Demonstration forthe Metropolitan Washington, DC Nonattainment Area," dated January 31, 2005.

As discussed elsewhere inresponse to comment, EPA believes that the States'

use ofphotochemical grid modeling with an adjunct WOE analysis demonstrates timely attainment and
meets the statutory requirements ofthe Act and constitutes a modeled demonstration ofattainment. Specifically, EPA incorporates by reference the responses to comment in section IV. A. "Comment on the Attainment Demonstration Modeling" of the preamble to this finalrule. In the TSD prepared for thb NPR forthis final rule, EPA concluded that withoutthe reductions from the contingency

measures'the SIP contained sufficient creditable measures to achieve emissions levels in the Washington area of 331 TPD ofVOC emissions and 491 TPD ofNOx emissions. 2 9
These overall emissions levels of331 TPD ofVOC and 491 TPD ofNOx are still less than the levels used in the photochemical grid modeling which assumed levels of360 TPD ofVOC emissions and ofover 500 TPD ofNOx 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

29Table IV.F-1 Relative Reductions on page A27 of "Technical Support Document for Approval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, Maryland, and Virginia; Attainment Demonstration for theMetropolitan Washington, DCNonattainment Area,'! dated January 31, 2005.

30

Table IV.F-1 Relative Reductions on page A27 of "Technical Support Document forApproval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, Maryland, and Virginia; Attainment Demonstration for the Metropolitan Washington, DC Nonattainment Area," dated January 31, 2005. 

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demonstrated withoutreliance upon the reductions from the contingency

measures and therefore the reductions from the contingency measures are surplus forthe purposes of attainment.

Comment 7: Wereceived a comment asserting that the SIP cannot rely onthe 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 missedthe 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

atime when the area was already years behind schedule in adopting adequate ROP and attainment plans. The
comment further asserts that ifthe 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 tothe extent that itraises questions about whether RFG can be used as a contingency measure after an

area is reclassified'to severe nonattainment. The RFGrequirement is required under Title II ofthe Act once

an area is reclassified to severe nonattainment. However, EPA believes that whether or not RFG is a contingency measure is nota deciding factor whether EPA approve the contingency measures plan inthis 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 acontingency measure and thus EPA is notresponding to the allegations that RFGcan notbe considered a* contingency measure in this case.
E.CommentReceivedRegardingthe TSDandEPA'sResponse

We received the following comments

on our evaluation ofthe credits from the States' AIM coatings rules which was in

our January 12, 2005 TSD prepared for the January 12, 2005 NPR.'A summary ofthese comments that we received on

our evaluation ofthe 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 ofthe

-baseline per-capita emission factor EPA

used to evaluate the States' emission reductions claims forthe States' AIM coatings rules. Specifically, these
comments took issue with the precontrol baseline value of4.5 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 forthe * Preparation ofEmission Inventories for Carbon Monoxide andPrecursors 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 of5.7 lbs/p/ °r. In summary, the comments questioned ifany of thebaseline per capita emission factors (6.7, 5.7, or 4.5 lbs/p/yr) published by EPA is based upon the bestcurrently availabile data. These comments supported EPA's use of the most recent California Air Resources Board (CARB) survey data for deriving the best estimate ofthe post-control per capita emission factor to be realized from the promulgation ofthe 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 shouldbe similar on aper 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 forVOC

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 forVOC emissions from AIM coatings forthe years 1975 through 2004. The comments note that the first significant AIM controls were not adopted inCalifornia 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 ofVOC 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 of6.3 lbs/p/yr. The commenter therefore urges EPA to evaluate the benefits from the States' AIM coatings rules using a pre-control baseline of6.3 lbs/p/yr.

We received a second set ofcomments supporting the States' analysis ofthe reduction credits from the States' AIM coatings rules but critical ofEPA's reliance upon CARB data to determine

a per capita emission factor after application ofthe States's AIM coatings rules. These comments assprt that because California has had more restrictive VOC limits forarchitectural coatings for over a decade, VOC emissions forarchitectural 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 ofcomments and analyzed the sufficiency ofthe contingency measures, ROP and attainment plans by considering the baseline emission factors and reduction calculation methodologies advocated by each set ofcomments, as well as the baseline emission factors and reduction calculation methodology contained in

our January 5, 2005 TSD that was prepared forthe January 12, 2005 (70 FR 2085) NPR. 31EPA concludes that the contingency measures, ROP and attainment plans are approvable regardless ofwhether we use the baseline emission factor and reduction calculation methodology advocated by each set ofcomments, or whether we

use the baseline emission factors and reduction calculation methodology contained in ourJanuary 5, 2005 TSJ.

EPA has evaluated the effect that changing the 1990per capita emission factor forthe AIM coatings source. category might have onthe contingency

measures implemented to address the failure ofthe Washington area to attain in 1999, the 1999-2005 ROP plans, and the attainment demonstration plans. EPAhas determined that regardless of which ofthe 1990 per capita emission factors and reduction calculation methodologies-be itthatadvocated by the first set ofcomments,.or that advocated by the second set of comments, orthat found in our technical support for the January 12, 2005 (70 FR 2085) NPR-the States

secure sufficient VOC reductions to meet the needs ofthe contingency

31"Technical Support Document for Approval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, 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. 32 Ofthese 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 ensurethat the contingency plan is approvable. EPA has evaluated the effects that changing the 1990 per capita emission factor and reduction methodologies for theAIM coatings source category might have on the contingency plan for failure to attain by 1999. The States ascribed 12.3tons perday reduction from the States!AIM coatings rules..EPA arrived at a value of

over 16 tonstper day using the 4.5 pounds percapita emission factor.33
EPA concludes that the States' contingency plans are still approvable.

There is no effect on the approvability. ofthe 1999-2005 ROP plans because any change in the,1990per capita

. emissionfactor forthe AIM coatings

source category orthe method to determine reduction from the States' AIM coatings rules will only affect VOC emission reductions. EPA proposed approval ofthe 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 inthis document inresponse 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 1990base year emissions which would result from using the 4.5 orthe 6.3 pounds per capita emission factor. The results were an overall relative reduction in VOC emissions of45 percent in 1990 VOC emissions by 2005 from all sources (pointplus 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

32SeeTable 12. Contingency Measures in the
NPR for this action (70 FR 2085 at 2096, January 12,2005).

33The 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 forthe
purposes ofthis 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 ofthe overall relative reduction inVOC emissions is conservative relative to the use ofeither the 4.5 orthe 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 inthe comments do riotchange' the approvability ofthe 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 capitabase 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 ofthis rulemaking is
to determine if any information received during the comment period would give

cause forus to reconsider our proposed approval. Regardless ofwhich ofthe baseline emission factors or methods that have been proffered by the commenters orby 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' SIPrevisions. 34 Furtherdetails ofEPA's analysis can be found inthe supplemental TSD prepared for this finalrule. 3

-

A determination ofthe 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 ofwhether those reductions are calculated as

34As noted elsewhere in this doucment, EPAis
not approving Maryland's attainment plan for the Washington area but is making a finding that " Marylana's attainment plan, in conjunction with those ofthe District andVirginia, contains control

measures that "fully satisfy the emission reduction requirements relevant to * * * attainment."

35"Supplement tothe Technical Support Document forApproval andPromulgation ofAir Quality Implementation Plans; District ofColumbia, 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 ofthe 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 ofVOC emission reductions achieved from the implementation of AIM coatings rules in agiven ozone nonattainment area. This remains an issue ofconcern 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 ofVOC emission reductions achieved from the implementation of AIM coatings rules in agiven ozone nonattainment area.

EPA'sPolicyon ChangesinInventory 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 anew 1990 percapita emission factor for the AIM source category prepared forthis 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 SIPsthat result from changes infactors and methodologies that occur after the SIP is submitted. With respect to the 15 percent plan due inNovember 1993, in section 2.4 of"Guidafice onthe Adjusted Base Year Emissions Inventory and the 1996 Target for 15 Percent Rateof-Progress Plans" (EPA-452/R-92-005) EPA stated: "Ifother 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 asto the adjusted base year inventory and the 1996 target level ofemissions." This guidance discussed the then pending transition from the MOBILE4.1 model to the MOBILE5 modelbut only. prospectively, by requiring that emissions values calculated using MOBILE4.1 would have tobe• recalculated using MOBILE5 before 25707

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submittal ofthe final ROP plans in November 1993.

Likewise withrespect to the post1996 ROP plans, EPA has advised the
states when changes in emissions factors or inmethodologies for developing emissions inventories would force revisions to the inventories or plans. Changes would be necessary if they occurred before the plan wassubmitted. "However, ifsuch 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 forpurposes of developing the 3percent rate-of-progress demonstration. If such changes occur after November 15, 1994, EPA will advise on when itwould 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 ofthe guidance, "November 15, 1994" wouldmean thi date by which the post-1996 plan was due. In thecase ofthe 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. "

Fromthe States' perspective, the baseline per capita emission factor of 4.5 pounds perperson per year (lbs/p/ yr) forthe AIM coatings source category could be seen as achange 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 inthe approval

, processes. In the case ofthe 1996-1999 ROP plans, any possible claim-that EPA required a "changed methodology" would have to accept that the "changed methodology" came to lightyears after the 1996-1999 ROP plans were submitted. For the policy reasons stated previously,EPA has notrequired the States revise their 1996-1999 ROP plans for the Washington area.

AdditionalResponseto theSecond SetofComments.EPA further believes that the second set ofcomments misstates the role CARB data played in the EPA's estimate ofthe OTCrule reduction. EPA-used data from GARB to ascertain an end point forthe OTC rule (post-OTC rule percapita 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 inthe January 12, 2005 (70 FR 2085) NPR.
IV. Comment Received on the Attainment Demonstration andEPA's Response

We received the following additional
comments adverse to the.proposed approval ofthe attainment plans. In addition to comments that are unique to the attainment plan (set forth in sections IV. A. and IV. B ofthis document), we also received anumber ofcomments identical to those submitted inrelation
to the ROP plans, VMT Offset SIPs, and contingency measure plans, to which

we responded in section III of this document. We have setforth in this section ofthis document each comment

we received relevant to the attainment demonstrations and plans and respond separately to it even ifthat 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 forthe Washington area and ourresponses follows.

A. Commenton theAttainment Demonstration Modeling
Comment:We received a comment asserting that the SIP does not demonstrate attainment asrequired.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 orthe CAA's requirement for

amodeled demonstration ofattainment, that EPA provides no evidence that the

core assumption underlying its WOE approach-i.e., that ozone willbe reduced in the sameproportion 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 ofattainment and WOE analysis is not based upon a photyykpyical grid model that represents sound science and that meets current regulations and guidance. Therefore, the comment claims EPA cannot approve the WOE determination.

Respouse:AttainmentIs DemonstratedUsingPhotochemical GridModeling,the WoeApproach SatisfiestheAct Requirements.The photochemical grid modeling runs used inthe 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 ofthis final rule. The WOE analytical methods and/or analyses that support the modeled demonstration ofattainment in the February 2004 SIPrevisions, which are the subject ofthis final rule, include the

same WOE analytical methods and/or analyses that supported the modeled demonstration ofattainment which

were the subject ofthe April 17, 2003 final rule (68 FR 19106). In addition, as noted in section IV. A. 2. ofthe January 31, 2005 TSD prepared forthe February 9, 2005 NPR (70 FR 6796)the States provided additionalWOE in the form of the results ofEPA's photochemical grid modeling performed for the Tier 2 final rule. See, sections VI. A. of "Technical Support Document for Approval and Promulgation ofAir Quality.. Implementation Plans; District of Columbia, Maryland, and Virginia; Attainment Demonstration for the Metropolitan Washington, DC Nonattainment Area," datedJanuary 31, 2005.

EPA hadreceived a comment from the

same commenter alleging the same deficiencies ofWOE for the same photochemical grid modeling runs and

some of the same adjunctWOE 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 bythe 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 notauthorized by the Act orby EPA rules. The commenter had claimed that the modeling demonstiation and WOE used in the attainment demonstration for the Washington area do notmeet requirements ofsection 182(c) ofthe -[Act] and EPA's own regulations for photochemical grid modeling and other analytical methods, that the WOE is an alternative method to photochemical gridmodeling 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 willbe 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 ofattainment or that attainment is not demonstrated using a photochemical grid model and that WOE does notdemonstrate 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" onpages 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 ofthe Act and does not constitute a "modeled demonstration of attainment," encompasses-all those issues related to WOEthat the commenter hasrestated in this rulemaking, and were briefed and litigated to conclusion in a suitbrought bythe commenter against EPA. See SierraClubv. EPA, 356 F.3d at 304-07;

see alsoInitialOpeningBrief of Petitioner SierraClub,Docket No. 03- 1084 (June 23, 2003), pp. 25-37;'Final ReplyBrief ofPetitioner SierraClub, Docket No. 03-1084 (September 22, 2003), pp. 8-19. The Court ofAppeals' decision upholding the very same photochemical grid modeling and WOE thafis atissue herein (asresubmitted by the States-and supplemented with an analysis of the effects ofthe Tier 2rule that strengthened the conclusion ofthe WOE analysis), is binding onboth 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 primarybasis for the attainment demonstration ' w ilethe [WOE] "is merely an adjiincA foi assessing the photochemical gridmodeling. * " *" [T]hat analysis was employed to ensure that the model achieved its statutory purpose: determining whether the SIPs actually "provide for attainment ofthe ozone national ambient airquality standard bythe applicable attainment date." 42 U.S.C. 7511a(c)(2)(A). And the adjustments appear well-suited-to that end, asthey do no more than correct for themodel's over-prediction ofozone levels ascompared to actual observations, andfor its reliance on a base day thatappears tobe a statistical outlier. See, SierraClubv.EPA, 356F.3d at 306.

*Resjudicata bars re-litigation not only
ofmatters determined in a previous litigation but also ones that a party could have raised. * * * Collateral estoppel further bars parties from relitigating issues oflaw or factresolved in prior cases betveen those parties.

* * * (When a court determines an issue offact or law that is actually. litigated and necessary to itsjudgment, that conclusion binds the same parties. in a subsequent action.)." Appalachian PowerCo.v. EPA, 251 F.3d 1026, 1033- 34 (D.C. Cir. 2001) (internalcitations and quotations omitted).While EPA believes that the commenter is precluded fromre-litigating the binding holding ofthe court inSierraClubv. EPA with respect to the validity ofWOE analyses, EPA reiterates that, as articulated and explained intheApril 17, 2004 final conditional approval rule
at 68 FR 19112-19115,April 17,2003, WOE in general as asupplement to photochemical gridmodeling,and Washington AreaWOE 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 allthe 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 ofWOE as an analytical adjunct to photochemical grid modeling has been successfully litigated to conclusion several times.Each time the Court ofAppealshas upheld both EPA's interpretation ofthe Act to allow supplemental analysis tophotochemical grid modeling to demonstrate attainment,and EPA's determination thateach ofthe WOE analyses at issue, including the core ofthe WOE analysis

- at issue in the conditional approval and in this current rulemaking, was valid. See 356 F.3d at 304-07; Environmental Defensev. EPA, 369F.3d 193, 203-07 (2dCir.2004); BCCAAppeal Groupv. EPA, 348F.3d 817, 203-:09 (5th Cir. 2003).Accord, 1000Friends"6f Maryland v. Browner,26'5 F.3d 216, 234 (4thCir. 2001).

TheAmendments toAppendix WDo NotPrecludeUseofUAM-IV. EPA disagrees that the use ofthe UAM-IV for photochemical grid modeling represents

areason to disapprove the attainment plan even thoughUAM-IV is no longer

on the list ofrefined 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 inAppendix A to Appendix W to 40 CFR part 51, even thoughthe Actreflects a clear preference, or, in the case ofserious and

worse areas, essentially mandates thata modeled demonstration ofattainment 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 ofalternative models which is

nowposted on the internet as opposed to being issued as Appendix B to Appendix W to 40 CFR part 51.

Nothing inthe Appendices to 40 CFR part 51 indicate thatEPAmay no longer rely on UAM-IV modeling, orthat other photochemical grid models are mandated for use in lieu ofUAM-IV. The "[slimulation ofozone formation and transport is ahighly complex and

resourceintensiveexercise.Control agencies withjurisdiction overareas 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 ofModels forMulti-source Applications" in Appendix W to40 CFR part 51 (emphases added); see also68 FR at 18457-18458, April 15, 2003.

Explicitly, the "[d]etermination of acceptability ofa model is aRegional Office responsibility. Where the Regional Administrator finds that an alternative model is more appropriate than a preferred model, that model may beused subject to the recommendations ofthis subsection. This finding will normallyresult from a determination' that (1) a preferred air quality.model is
notappropriate forthe particular application; or (2) a more appropriate model oranalytical 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.

Inthis case,the States had submitted the pre-2001 SIP revisions"attainment plan which demonstrated that the States had sufficient measures in the SIPto demonstrate that the'Washington area 257-09'

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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 ofadditional rules as RACM would have done to the attainment plan would beto strengthen the WOE that the area would timely attain oradvance the date by which the

area would attain. Ofthe 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 thatreflects 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 FRat 5253, 5258, 5260-5261, February 3, 2003. We included this condition in our April 17, .2003 (68FR 19106) finalrule 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 ofthe EPA's release ofthe 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 inthe 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

onreview. See 1000Friendsof Marylandv.Browner,265 F.3d 216 (4th Cir. 2001). EPA concludes that where MVEBs are changed the state must analyze the impacts ofsuch change on the modeled attainment demonstration,

36

See,Joint memorandum dated January 18, 2002, FromJohn S. Seitz, Director, Office ofAir Quality Planning &Standards, and Margo Tsirigotis Oge, DirectorofOffice ofTransportation and Air Quality, "Policy Guidance for theUse ofMOBILE6 in SIP Development and Transportation Conformity." but thatthe state need not rerun the entire model.

Inthis case EPA believes that disapproving the February 2004 SIP revisions based on alleged defects inthe modeling demonstration for the reason cited inthe comment would be arbitrary and capricious because inthe February •3, 2003 notice ofproposed rulemaking (68 FR 5246)EPA did notpropose to require that the States redo the photochemical grid modeling. Because,

as ofFebruary 3,2003, the changes to Appendix W to 40 CFR part 51 had not been issued, only, proposed, 37 EPA believes that it would nothave been appropriate to disapprovb the SIP revisions inthe April 17, 2003 final rule which was the final action issued pursuant to the February 3, 2003 NPR. Webelieve that it would notbe appropriate to disapprove the SIP revisions now because the States have relied on the same photochemical grid modeling analysis forthe February 2004 SIP revisions as they previously did.

Inaddition, the modeled demonstration ofattainment 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 forthe 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 forthe 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 forwhat was formerly Appendix B ofthe 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, EPAbelieves the Regional Administrator appropriately and reasonably exercised the discretion afforded byAppendix W
to allow the continued use ofthe UAMIV modeling results in thisparticular

case.

Furthermore, the law is well established that resjudicata bars relitigation not only as to allmatters actually determined inprior litigation,

37The final rule amending Appendix W was signed onApril 2, 2003, nearly.two months after the proposed conditional approval. but also aJ6 allmatters thatmighthave beendetermined.See, e.g., Appalachian Power,supra,at 1033-34; Natural ResourcesDefenseCouncil,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 approvalbased 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 notraise'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 thatthe modeling demonstration and WOE used inthe modeled demonstration ofattainment forthe Washington area did notmeet requirements ofsection 182(c) ofthe 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 overEPA's conditional approval. Nevertheless, and without waiving its contention that res judicata and/or collateral estoppel bar litigation ofthe 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 ofthe UAM-IV modeling results in thisparticular case, (2) EPA's guidance is reasonable and is not a

18The fact that EPA hadnot finalized its proposed removal ofUAM-IV as an approved model was nobar to raising this issue in the litigation over theCotiditional Approval. Section 307(d)(7)(B) ofthe Act specifically allows, ifcertain conditions are met, for comment on arule after the
comment period was closed if "it wa impracticable
toraise such objection within suchtime or ifthe grounds for such objection arose after the period for public comments (butwithin the time specified for judicialreview. * * * " Although EPA's proposal clearly demonstrated itsintention to remove the UAM-IV as apreferred model three years prior to the opening ofthe comment period on the Conditional Approval, EPA's final.action onthe UAM-IV occurredjust 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 ofthe Act
atthe time ofthe conditional approval. Had the Court ofAppeals not vacated and remanded the condi ipnal approval for reasons entirely unrelated
to theWOE analysis issue, the commenter would
not have beenafforded opportunity to attempt add
to therecord 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. CommentOn theMVEBs

Comment:We received a comment that EPA cannot approve the MVEBs in the attainment plan SIPbecause the NOx budgets are 70tons per dayhigher than those in the previous attainment SIP budget forthe sameyear. 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 Actand did not include allreasonably 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 amajor 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 ofproposed 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 adoptedmeasures 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 fora 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 Actwas specifically upheld. SierraClubv.EPA, 356 F.3d at 304-307.

The conditional approval was predicated in partupon 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 ofthe 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 ofvehicle 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 ofthe 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 ofproposed rulemakings, and in conjunction with response to comments elsewhere inthis 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 ornumbers ofvehicle 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 ofthe MVEBs. MVEBs exist in the context ofthe attainment plan and do not in and ofthemselves determine whether an area will attain the NAAQS. MVEBs merely are the
amount of motor vehicle emissions allowed by a control strategy SIPwhich consists of,among other things the estimated further reductions from adopted rules affecting all source categories including stationary and area

sources inthe States' SIPs or promulgated by EPA. A change in the MVEBs higher or lower cannot, in a vacuum, lead to aconclusion as to whether an area is still on track to attain the NAAQS. Rather, the MVEBs mustbe considered in context, as follows:

EPA first addressed the sufficiency of the attainment plan in our firstround 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] motorvehicle emissions budget is the estimate ofmotorvehicle emissions in the attainmentyear that when considered with emissions from all othersources is consistent with attainment. The attainment demonstrations for the Washington area contain levelsofmodeled emissions thatEPA concludes demonstrate attainment once transport from upwind areas is addressed. The basis for this conclusion willnot be altered ifthe Washington area States can demonstrate that the level ofnonattainment

area emissions in 2005 is equal to orless than the 1999 control strategy levels contained in the attainment demonstrations considering growth. 64FR 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 ofemissions assumed in the photochemical grid modeling. In the TSD for the December 16, 1999 NPR

we noted'that the photochemical grid modeling performed forthe areahad assumed local emissions levels of360 TPD ofVOC emissions and over 500 TPD ofNOx emissions.4 0 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 OzoneAttainment Demonstrations submitted bythe State ofMaryland, Commonwealth of Virginia and theDistrict ofColumbia for the Metropolitan Washington, DC Ozone Nonattainment Area (DC039-2019, VA090-5036, MD073-3045)," dated November 30, 1999. See also, "Technical Support Document forApproval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, Maryland, and Virginia; Post1996 Rate-of-Progress Plan, Contingency Measures, Transportation Control Measures, 1990Base Year Inventory Changes, and VMT Offset SIP forthe Metropolitan Washington, DC Nonattainment Area," dated January 5, 2005. 

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the December 16, 1999 NPR. OnJanuary 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 of356.7 TPD of
VOC emissions and 403 TPD ofNOx emissions. 42The pre-2001 SIP revisions' attainment plan contained MVEBs of 101.8 TPD ofVOC emissions and 161.8 "TPDofNOx 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 ofthe 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 byNovember 15, 2005. In the TSD prepared forthis finalrule, 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 ofVOC and 491 TPD ofNOx.43Even though the February 2004 SIP revisions contained the higher, 234.7 TPD ofNOx MVEBs (and lower motor vehicle VOC emissions budgets of97.4 TPD) than the pre-2001 SIP revisions' attainment plan (101.8 TPD forVOC and 161.8 TPD for NOx), the overall emissions levels from all sources of331 TPD ofVOC and 491 TPD ofNOx are still less than the levels used in the photochemical grid modeling. Because the overall VOC and NOx emissions are less thanboth the 360 TPD ofVOC and over 500 TPD of NOxused in the photochemical grid modeling, EPA concludes that the 70
tonincrease inthe NOx MVEB will not adversely impact the Washington area's

4 1That rule was vacated bythe Court ofAppeals for redsons unrelated to the adequacy ofthe modeled demonstration ofattainment. See Sierra Clubv. Whitman,.294 F.3d at 163.

4 2Table II-Summary ofCreditable Measures in "Supplement toTechnical Support Document for the One-Hour Ozone Attainment Demonstrations, Attainment Date Extension and Post-1996 Rate-ofProgress Plans submitted bythe State ofMaryland, Commonwealth ofVirginia and the District of Columbia forthe 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.

43

Table IV. F-1 Relative Reductions on page A27 of "Technical Support Document for Approval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, 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 acomment 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, EPAbelieves that the bothWOE analysis and the photochemical grid model upon which the States relied meets the requirements ofthe Act, and EPA's regulations and guidance. Therefore, EPA believes that the MVEBs consistent withthe attainment modeling would notbe defective based upon any alleged defects inthe modeling.

Comment:We received a comment asserting that the photo-chemical modeling runs forthe modeled demonstration ofattainment assumed
motor vehicle NOx emissions of 161.8
tons per day instehd ofthe motor vehicle NOx emissions budgets of234.7
tons perday 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 inthe photochemical grid modeling runs the States should have

rerun the photochemical grid model with the MOBILE6 values. The
comment contends that the demonstration ofattainsffent is flawed because the demonstration assumes that 2005 ozone levels willbe no different

even though NOx emissions willbe

more than 72 tons per day higher than assumed inthe photochemical grid modeling runs and thatbecause this conclusion ofno increase in 2005 ozone levels is based not on photochemical grid modeling,but on the conclusion that ozone levels in 2005 willbe determined notby actual 2005 emission levels but by the relative reduction in emissions between thebaseline and 2005. The comment claims that this assumption is invalid because ozone levels do notrespond 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 orless."

Response:EPA disagrees with the
comment because the comment assume that inthis case the overall emissions levels inthe Washington area in 2005 will be higher than those-assumed inthe photochemical grid modeling forthe attainment year because the MVEB for NOx willbe higher.

, We have noted previously that the photochemical grid modeling performed forthe area had assumed local emissions levels of 360TPD ofVOC emissions and over 500.TPD ofNOx emissions in the attainment year. In the TSD prepared for the February 9, 2005 NPR (whichis the notice ofproposed 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 of331 TPD ofVOC and 491 TPD 

### ofNOx. 44 Even thoughthe February 2004 SIPrevisions contained the higher 234.7 TPDNOx, MVEB (and

a lower VOC MVEB of97.4 TPD) than thepre-2001 SIP revisions' attainment plan (101.8 TPD forVOC and .161.8TPD forNOx), the overall emissions levels of 331 TPD ofVOC and 491 TPD of NOx

are still less than the levels assumed in the photochemical grid modeling. Therefore inthe attainment year, notwithstanding an increase inmobile

source NOx emissions, there is a decrease in overall emissions inthe 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 overthe level used in the photochemical grid modeling, as longas the "relative increase overbaseline 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 inthe photochemical grid modeling used in the demonstration of attainment. That is, the February 2004 SIP revisions achieve emissions levels less thanthat assumed inthe photochemical grid modeling forthe attainment year and a greater relative emissions reduction between the 1990 baseline and 2005 attainment year. The

44Table IV. F-1 Relative Reductions on page A27 of "Technical Support Document for Approval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, Maryland, and Virginia; Attainment Demonstration-for theMetropolitan Washington, DC Nonattainment Area," dated January 31, 2005. 

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photochemical grid modeling forthe 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 forthis

area indicates that ozone concentration does respond directionally to a reduction in ozone precursors (a decrease in the ozone precursors VOC and NOx willresult ina 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 inthe photochemical grid modeling forthe attainment year, along with a showing of agreater relative emissions reduction, only adds
to the WOE that attainment is demonstrated.

EPA also believes that an upward revision ofthe 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, ifan ozone attainment plan relied onchanges in emissions from the base yearto 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 ofthe ozone NAAQS showing that the relative emissionreductions between the base
year and the attainment are the same or greater using MOBILE6 than theywere using MOBILE5, and that projected emissions levels forthe attainment year

are lower than those assumed in the modeling demonstration. The Washington area attainment plan relies
upon the use ofthe photochemical modeling results in a relative manner, and, the attainment plan shows agreater 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 ofOffice ofTransportation and Air Quality, "Policy Guidance forthe Use of MOBILE6 in SIP Development and Transportation Conformity." EPA.has reasonably interpreted the Actnotto require new photochemical grid modeling for every revision ofa SIP. While section 182(c)(2)(A) requires demonstrations ofattainment forserious and above areas be based upon photochemical grid modeling (or something equivalent), the Act only establishes a time frame for the initial submittal ofthe attainment demonstration and does notexplicitly 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 ofthe ozone NAAQS. See 1000FriendsofMaryland

v. Browner,265 F.3d 216 (4thCir. 2001) ("Nothing in [section 182(c)(2)(A)] prohibits the use ofpreviously performed modeling ifthat modeling

can show that the plan as revised will allow the area to reach attainment").

Comment:We received a comment asserting thatphotochemical grid modeling runs and WOE analysis relied

onbyEPA in its 2001 approval ofthe 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 thephotochemical grid modeling runs showed continued nonattainment even with motor vehicle emissions at that level and therefore EPA cannot findthat
motor vehicle NOxemissions more than 72 tons per day higher than those assumed inthe photochemical grid modeling runs are consistent with timely attainment. *

Response:As discussed elsewhere in this document in section IV. A. "Comment onthe Attainment Demonstration Modeling," EPA disagrees that thephotochemical 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 SierraClubv. EPA, 356 F.3d at 304-307. As noted in our response to-previous comments on the MVEBs, 'EPAhas concluded that the MVEBs mustbe analyzed in the context ofthe entire SIP, and inthat 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. Commenton theROPPlansandNOx Substitution

Comment:We received acomment asserting the ROP plans do not meet the requirements to demonstrate anine percent reduction in VOC emissions from 1999 to 2002 and a further nine percent from 2002 to 2005 because the NOx substitution inthe ROP plans is impermissible. The comment asserts that the plan does not meet section 182(c)(2)(c) ofthe Actbecause the plan does not show that anine percent reduction inNOx emissions will result in the same reduction in ozone concentration as a nine percent reduction inVOC emissions. The
comment asserts that EPA's reliance on

ourDecember 1993 NOx Substitution Guidance is flawed because the plain language ofthe Actrequires proofof actual equivalent benefits 6fNOx substitution.

The comment also asserts that because the ROP plans for each ofthe 1999 to 2005 periods rely solely upon NOx reductions the plans do not meet the requirement ofsection 182(c)(2)(C) because the plan does notprovide for

some percentage ofVOC reduction during each period. The comment claims that the Act requires some nonzero percentage reduction in VOC emissions forany 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 forall ofthese reductions by the 2002 milestone date.

Response:EPA disagrees with the
comment and incorporates byreference the response found in section III. A. "Comment on the ROP plans and NOx Substitution" ofthisdocument.

D. Commenton the Transportation DemandModel (TDM) Usedin thePlans
Comment:We received a comment assertingthat the TDM used to project the mobile source emissions does not properly predict-traffic volumes in the Washington area onroadways. The
comment alleges that the inaccuracies

are significant enough that the results
cannot form abasis for predicting future
motor vehicle emissions orthe emission
cuts needed to demonstrate attainment ofthe 1-hour ozone NAAQS by

- November 15, 2005.

Response:EPA disagrees with the
comment and incorpordtes byreference the response found in section III. B. "Comment on the Transportation Demand Model (TDM)Used inthe plans" ofthe this document.

E. Commenton the VMT Offset SIP
Comment:We received acomment 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) orin trip numbers. The comment alleges that the Actrequires that the SIP offset any growth in emissions due to growth inVMT or in trip numbers not a showing that overall
motor vehicle emissions are expected tc decline.

Response:EPA disagrees with the
comment and incorporates byreference the response found in section III. C. "Comment on the VMT Offset SIP" of this document. , F. Commenton the Contingency MeasuresPlans

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 actionby the States, these contingency measures do
not meet the CAA's requirement that th,

measures take effect without further action by the State orEPA 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" ofthis document.

Comment2: Wereceived a comment asserting that the contingency plan for 2005 cannot rely on measures already adopted and inplace 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 willb triggered by the attainment or mileston failure, that is, the Act provision is prospective, notretrospective.

Response2:EPA disagrees with the
comment and incorporates byreference the response to the comment labeled "comment 2" found in section III. D. "Comment on the Contingency Measures Plans" ofthis document.

Comment3:We received acomment 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 inthe 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,inthe case ofan area which qualifies forone or both ofthe 1- year attainment date extensions allowed by the Act.

Response3: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.

Comment4:We received acomment

s asserting that the contingency plan does
notmeet EPA's guidance because the plan does not contain a commitment for timely adoption ofadditional measures ifthe 3percent contingency plan is not adequate to correct a failure to attain or achieve an ROP milestone.

Response4: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" ofthis document.

Comment5: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 byreference the response to the comment labeled

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

"Comment on the Contingency Measures Plans" of this document.

Comment6:We received acomment alleging that all*ofthe 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 ofa WOE approach inthe modeled demonstration ofattainment is-incapable ofidentifying the precise level ofemission reductions needed for attainment and thus does not support the aclaim that there are "surplus" reductions in the SIP that can be used for "contingency" purposes.

.Response6: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" ofthis document. Comment 7:We received a comment asserting thatthe SIP cannot rely onthe 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 thatRFG 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 ata time whenthe area
was already years behind schedule in adopting adequate ROP and attainment plans. The comment further asserts that ifthe RFG program is a permissible contingency measure the agency's guidance would obligate the states to "backfill" the measure with oneyear 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" ofthis document.

G.Commenton Protective Finding
We also received comment adverse to issuing a protective finding in concert with adisapproval ofthe 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 inthe finalrule disapproving Maryland's attainment plan with a protective findingthat is published elsewhere in today's Federal Register.

V. OtherMatters

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 ofproofforparties 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 ofenvironmental laws when a regulated entity discovers such violations pursuant to avoluntary 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 ofthose documents that are the product ofa voluntary environmental
assessment. The Privilege Law does not extend to documents orinformation (13 that are generated or developed before the commencement ofa voluntary environmental assessment; (2) that are prepared independently ofthe
assessment process; (3)that demonstrate

aclear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

OnJanuary 12, 1998, the Comnionwealth ofVirginia Office ofthe 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 ofthese
programs could notbe privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization orapproval."

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 ofan environmental statute, regulation, permit, oradministrative order is granted immunity from administrative orcivil penalty. The Attorney General's January 12, 1998 opinion statesthat the quoted language renders this statute inapplicable to enforcement ofany Federally authorized
programs, since "no immunity could be afforded from administrative, civil,or criminal penalties because granting such immunity would notbe consistent with Federal law, which is one ofthe criteria forimmunity."

Therefore, EPA has determined that Virginia's Privilege and Immunity
statutes willnot 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 -itsauthority 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 ofany state enforcement effort. Inaddition; citizen enforcement under section 304 ofthe Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

VI. Final Actions

A. TheDistrictofColumbia-1996-1999 ROPPlan

EPA is approving as a revision to the District's SIP the District ofColumbia's 1996-1999 ROP plan SIPrevision 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 perday ofVOC and 196.4 tons per day of NOx established and identified in the Post 1996-1999 ROP plan.

B. TheDistrict ofColumbia-1990Base YearInventoryRevisions

EPA is approving as arevision to the District's SIP the revision to the 1990 Base Year Emissions Inventory submitted by the District ofColumbia "

on September 5, 2003 as supplemented

onFebruary 25, 2004.

C. TheDistrictofColumbia-Post1999- 2005Rate-of-Progress PlanandTCMs

EPA is approving as a revision to the District's SIPthe District ofColumbia's post 1999-2005 ROP plan SIP revision for theWashington areawhich was submitted onSeptember 5, 2003 as supplemented on February 25, 2004 and the TCMs inAppendix 

### Jof the February 25, 2004 submittal. EPA is approving the 2002 MVEBs of 125.2 tons per day for VOC and 290.3 tons perday ofNOx and the 2005 MVEBs of97.4 tons per day for VOC and 234.7 tons perday of NOx established and identified inthe Post 1999-2005 ROP Plan.

D. TheDistrictofColumbia-VMT Offset SIP

EPA is approving as arevision to the District's SIP the District ofColumbia VMT Offset SIP revision forthe Washington area which was submitted

on September 5, 2003, as supplemented

on February 25, 2004. E. TheDistrictofColumbiaContingency MeasurePlan

EPA is approving as arevision to the District's SIP the District ofColumbia's contingency measure plan SIP revision forthe Washington area which was submitted on September 5, 2003, as supplemented on February 25, 2004.

F. TheDistrictofColumbiaAttainmentDemonstration andPlan

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 ofwhich were submitted on September 5, 2003 as supplemented on February 25, 2004. EPA is approving the 2005 MVEBs of97.4 tons per day for VOC and 234.7 tons per day ofNOx established and identified in the attainment plan.

G. Maryland-Post 1996-1999Rate-ofProgress PlanandTCMs

EPA is approving as a-revisionto the State ofMaryland's SIPMaryland'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 inAppendix H ofthe May 20, 1999 submittal. EPA is approving the 1999 MVEBs of 128.5 tons per day of VOC and 196.4 tons per day ofNOx established and identified inthe Post 1996-1999 ROP plan.

H. Maryland-1990Base YearInventory Revisions

EPA is approving as a revision to the State ofMaryland's SIP the revision to the 1990 Base YearEmissions Inventory submitted by Maryland on September 2, 2003 as supplemented on February 24, 2004.

L Maryland-Post 1999-2005Rate-ofProgress PlanandTCMs

EPA is approving as a revision to the State ofMaryland's SIPMaryland's post 1999-2005 ROP plan SIPrevision for the Washington area which was submitted on September 2, 2003 as supplemented on February 24, 2004 and the TCMs inAppendix 

### J ofthe February 24, 2004 submittal. EPA is approving the 2002 MVEBs of 125.2 tons per day for VOC and 290.3 tons per day ofNOx and the 2005 MVEBs of97.4 tons per day for VOC and 234.7 tons per day of NOx established and identified inthe Post 1999-2005 ROP Plan. 

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### '2005/'R les and Regut, ibfs



## I. Maryland-VMTOffse SIP".

EPA is approving as a revision to the State ofMaryland's SIP Maryland's VMT Offset SIPrevision for the Washington area which was submitted

on September 2,2003 as supplemented

on February 24, 2004

K.Maryland-Contingency Measure Plan

.EPAis approving as ajevision to the State ofMaryland's SIP Maryland' " contingency measure plan SIP revision. forthe Washington area which was submitted on September 3, 2003, as supplemented on February 24, 2004.

L. Maryland-Modeled Demonstration of

AttainmentandDeterminationThat Maryland'sSubmittedSIPContains Measures ThatFullySatisfythe EmissionReductionRequirements RelevanttoAttainment

EPA is approving as arevision to the State ofMaryland's SIP the modeled demonstration ofattainment 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 ofthe 1-hour

ozone NAAQS in the Washington area by November 15, 2005.

.. I

M. Virginia-Post1996-1999Rate-ofProgress PlanandTCMs
EPA is approving as a revision to the Commonwealth ofVirginia's SIP Virginia's post 1996-1999 ROP plan SIP revision forthe Washington area-which

was submitted on December 29, 1997, as supplemented on May 25, 1999, and the TCMs inAppendix H ofthe May 25,

- 1999 submittal. EPA is approving the... 1999 MVEBs of 128.5 tons per day of VOC and 196.4 tons per day ofNOx established and identified inthe Post 1996-1999 ROP plan.

N. Virginia-1 990Base YearInventory Revisions

EPAis approving as a revision to the Commonwealth ofVirginia'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--Post1999-2005Rate-ofProgress PlanandTCMs
EPA is approving as a revision to the Commonwealth ofVirginia'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 ofthe February 25, 2004 submittal. EPA is approving the 2002 MVEBs of 125.2 tons per day for VOC and 290:3 tons per day ofNOx and the 2005 MVEBs of97.4 tonsper. day for VOC and 234.7 tons per day Qf NOx established and identified in the. Post 1999-2005 ROP Plan.

P. Virginia-VMTOffset SIP

EPA is approving as a revision to the Commonwealth ofVirginia's SIP Virginia's.VMT Offset SIP revision for the Washington areawhich was submitted on August 19, 2003, as supplemented on February 25, 2004. 

### Q. Virginia-Contingency MeasurePlan'
EPA is approving as a revision to the Commonwealth ofVirginia'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 andPlan

EPA is approving as a revision to the Commonwealth ofVirginia's SIP the modeled demonstration ofattainment 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 forthe Washington area both ofwhich were submitted on August 19, 2003 as supplemented on February 25, 2004. EPA is approving the 2005 MVEBs of 97.4 tons per day forVOC and 234.7
tons perday ofNOx established and identified in the attainment plan.

VII. Statutory andExecutive Order Reviews

A. GeneralRequirements

-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 bythe Office ofManagement 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 meetingFederal requirements and imposes no additional requirements beyond those imposed by
statelaw. Accordingly, the

. Administrator certifies that this rule will not have a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.). Because this rule approves pre-exist6g requirements under state'law and does not impose any additional enforceable duty beyond thatrequired by state law, it does not contain any unfunded mandate or significantly oruniquely 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
nothave a substantial direct effect on

one ormore Indian tribes, on the relationship between the Federal Government and Indian tribes, or onthe distribution ofpower and responsibilities between the Federal Government and Indian tribes, as specified b' Executive Order 13175 (65 FR67249, 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, oron the distribution ofpower and ' responsibilities among the various levels ofgovernment, as specified in Executive Order 13132 (64 FR43255, .August 10, 1999). This action merely. approves a staterule implementing a Federal requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean AirAct. This rule also is not subject to Executive Order 13045 "Protection ofChildren 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. Inthis context, in the absence ofa prior existing requirement forthe State to use voluntary consensus standards (VCS),EPA has no authority
to disapprove a SIPsubmission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus; the requirements ofsection'12(d) ofthe'' National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do notapply. This rule does
not impose an information collection burden under the provisions ofthe Paperwork Reduction Act of 1995 (44 U.S.C. 3501 etseq.).

B. Submissionto Congressandthe ComptrollerGeneral

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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thatbefore a rule may take effect,the agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA-will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. This rule is not a "major rule" as definedby 5U.S.C. 804(2).

C.Petitions forJudicial Review Under section 307(b)(1) ofthe Clean Air Act, petitions for judicial review of this action must be filed in the United States Court ofAppeals forthe appropriate circuitbyJuly 12, 2005. Filing a petition for reconsideration by the Administrator ofthis final rule does not affect the finality ofthis rule forthe purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed,and shall not postpone the effectiveness of such rule oraction. This actionto 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 forthe Washington area contains adopted control measures that fully satisfythe 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 ofSubjects 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, RegionIII.
0 40 CFR prt 52 is amendedas follows:

PART 52-[AMENDED]

0 1.Theauthority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart J-DlstrictofColumbia

* 2.In § 52.470, theiable in paragraph (e) is amended by adding at theend ofthe 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 AppendixJ, VMT Offset SIP, Contingency Measure Plan and 1-hourOzone Modeled Demonstration ofAttainment and Attainment Plan to read as follows:
§52.470 Identificationof 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 vehicleemissions

plan SIP. nonattainment. 5/25/1999 [Insert page number where budgets of 128.5tons per thedocument 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 pagenumber where the document begins]. 1999-2005 Rate-of-Progress Washington 1-hourozone 9/5/2003, 5/13/05

................................... Only the TCMs inAppendix 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) inAppen- 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 OffsetSIP 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 97.4tons per Attainment Plan. the document begins]. day (tpy)for VOC and 234.7 tpy of NOx.

Subpart V-Maryland

s 3.In §52.1070, thetable inparagraph (e) is amended by adding at the end of the table, the entries for 1996-1999 Rateof-Progress Plan andTransportation Control Measures (TCMs) in Appendix H, 1990 Base-Year Inventory Revisions, Post 1999-2005 Rate-of-Progress Plan andTransportation Control Measures (TCMs) in AppendixJ,VMT Offset SIP, Contingency Measure Plan and Modeled Demonstration ofAttainment to read as follows:
§52.1070 Identificationof 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 subnittal 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 perday (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
-thedocument begins].

, ... -

m4. Section 52.1073 isrevised 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)

EPAis issuing a determination that n 5. In § 52.2420, the table in paragraph Attainment and Attainment -Planto read: Maryland's submitted SIP for the (e) is amended by adding atthe 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 ofthe 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 BaseYear 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 document 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..

Onlythe TCMs inAppendix 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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### Federal Register/Vol. 70, No. 92 /Friday, May-13, 2005/Rules and Regulations

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 numberwhere 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]
Approvaland 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 bythe State ofMaryland, and is issuinga protective finding forthat plan pursuantto EPA's transportation conformity rule. The intended effect of this action is to disapprove Maryland's attainment plan forthe Metropolitan Washington, DC severe .1-hourozone nonattainment area (the Washington area) andto 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 suchtime as highway sanctions would be imposed pursuant to the Clean AirAct (theCAA or the Act)and EPA's order ofsanctions rule. DATES: Effective Date:This final rule is effective onJune 13, 2005. ADDRESSES: EPA has established a docketfor 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 athttp:// www.docket.epa.gov/rmepub/. Once in the system, select "quick search," then key inthe 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 copyform. Publicly available docket materials are available eitherelectronically in RME or in hard copy for public inspection during normal business hours'at the Air Protection Division, U.S. Environmental Protection Agency, RegionIII, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies ofthe State submittal are available atthe 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 anotice of proposed rulemaking (NPR) forthe State of Maryland. In our February 9, 2005, NPR,

we proposed approval ofan attainment plan SIP revision submittedbythe State. ofMaryland forthe Washington area contingent upon the State submitting an approvable SIP revision forcertain penalty fees, required by the Act, prior to the time EPA-issued afinal rule on Maryland's attainment plan. In the alternative, EPA proposed to disapprove the attainment plan SIP revision submitted bythe State of Maryland for the Washington area and to issue a protective finding forthe attainment

- plan whichwould allowthe use ofthe motor v6hicle emissions budgets (the MVEBs) identified in the attainment plan SIPto be used for demonstrating conformity.

Inthe February 9, 2005, NPR, we also proposed to approve attainment plan SIP revisions for the Washington area submitted bythe Commonwealth of Virginia andthe District ofColumbia (the District). EPA has takenfinal action

onthe District's and Virginia's attainment plans in aseparate 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 forthe Washington area, we determine that the attainment plan for Maryland contains adopted control measures that fullysatisfy the emission reduction requirement relevant to attainment ofthe 1-hour

ozone National Ambient Air Quality Standard (NAAQS).

B. RelationshiptoPastSIPRevisions andLitigation
1.Prior SIP Revisions

On April 29, 1998, Maryland submitted an attainment plan forthe Washington area and supplemeriied those submittals onAugust 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 classifiedas aserious nonattainment area for the 1-hour ozone NAAQS. In the aggregate, these attainment plans consisted ofa photochemical modeling demoristration and adjunct weight ofevidence analyses to demonstrate attainment ofthe ozone NAAQS, projected emissions inventories showing that Maryland had adopted sufficient measures to support the demonstration ofattainment, 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 ofa commitment to revise the mobile vehicle emissions budgets one-year after EPA released the MOBILE6 model and MVEBs foryears after 2005 (outyear budgets). These attainment plans were submitted to demonstrate that the Washington area would attainthe 1-hour ozone NAAQS by 'nolater 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 2ofaJanuary 3, 2001 final rule (66 FR at586) and those listed 

### 25719

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