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Federal Register/Vol. 68, No. 75/Thursday, April 17, 2003/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[DC052-7007, MD143-3102, VA129-5065;

FRL-7484-6]

Approval and Promulgation of Air

Quality Implementation Plans; District

of Columbia, Maryland, Virginia; Post

1996 Rate-of-Progress Plans and OneHour Ozone Attainment

Demonstrations

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is conditionally

approving the severe ozone

nonattainment area State

Implementation Plan (SIP) revision for

the Metropolitan Washington severe

ozone nonattainment area. This SIP

revision includes the one-hour severe

ozone attainment demonstration, the

1996-1999 portion of the severe area

rate-of-progress (ROP) plan and

transportation control measures for the

Metropolitan Washington DC ozone

nonattainment area (the Washington

area) submitted by the District of

Columbia's Department of Health (DoH),

by the Maryland Department of the

Environment (MDE) and by the Virginia

Department of Environmental Quality

(VADEQ). EPA is conditioning approval

on commitments submitted by DoH,

MDE and VADEQ to submit adopted

control measures that qualify as

contingency measures to be

implemented for failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999 and adopted

contingency measures that will be

implemented should the area fail to

attain by the November 15, 2005 severe

ozone attainment deadline or fail to

achieve any post-1996 three-percent

year emissions reduction requirement.

Approval is also conditioned on

commitments that require the

Washington area jurisdictions to submit

a revised rate-of-progress plan that

includes emission reductions of ozone

precursors of at least 3 percent per year

from November 15, 1999 to the

November 15, 2005, an updated

attainment demonstration that reflects

revised MOBILE6-based motor vehicle

emissions budgets, a revised analysis of

reasonably available control measures

(RACM) and to revise the attainment

demonstration as necessary to reflect the

revised budgets and RACM analysis.

Approval is also conditioned on the

Washington area jurisdictions

submitting a SIP revision that meets all

of the requirements of a severe area SIP

including, but not limited to lower

major stationary source thresholds,

revised offset ratios, any required

transportation control strategies and a

fee requirement for major sources

should the area fail to attain by 2005.

EFFECTIVE DATE: This final rule is

effective on May 19, 2003.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the Air Protection

Division, U.S. Environmental Protection

Agency, Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103;

District of Columbia Department of

Public Health, Air Quality Division, 51

N Street, NE., Washington, DC 20002;

Maryland Department of the

Environment, 1800 Washington

Boulevard, Suite 705, Baltimore,

Maryland 21230; Virginia Department of

Environmental Quality, 629 East Main

Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Christopher Cripps, (215) 814-2179, or

by e-mail at

cripps.christopher.@epa.gov.

SUPPLEMENTARY INFORMATION: The use of

"we," "us," or our" in this document

refers to EPA.

This SUPPLEMENTARY INFORMATION

section is organized to address the

following questions:

I. What Action Is EPA Taking Today?

II. What Were the Conditions for Approval

Provided in the Notice of Proposed

Rulemakings for the 1996-1999 ROP

Plan and Attainment Demonstration?

III. What Comments Were Received on the

Proposed Conditional Approvals and

How Has EPA Responded to them?

IV. Applicability of Revised Motor Vehicle

Emissions Budgets

V. Final Action

VI. Statutory and Executive Order Reviews

I. What Action Is EPA Taking Today?

EPA is taking a final action to

conditionally approve the Washington

area severe ozone nonattainment SIP.

This SIP revision includes previously

submitted attainment demonstration

and 1996-1999 ROP plan SIPs and

contingency measures that now apply to

the Washington area as a severe area

ozone nonattainment area. EPA is

issuing a final conditional approval on

the basis that the Washington area

jurisdictions must revise and submit a

severe area SIP that is consistent with

the principle that attainment must be

achieved as expeditiously as possible

but no later than the severe ozone area

attainment deadline of November 15,

2005 and that the previously submitted

attainment demonstration and ROP SIPs

must include contingency measures,

RACM, motor vehicle emissions budgets

that are consistent with a severe

attainment deadline and all of the

remaining severe ozone nonattainment

area requirements. On February 3, 2003

(68 FR 5246), EPA proposed to

conditionally approve these SIP

revisions as a severe area attainment

demonstration and only the 1996-1999

portion of the Washington area's ROP

obligation in accordance with section

110(k)(4) of the Clean Air Act (CAA), on

the basis of commitments from DoH,

MDE and VADEQ to remedy these

certain limited inadequacies. EPA has

since determined that the severe ozone

nonattainment requirements in their

entirety are inseparable from the overall

Washington Area attainment

demonstration. EPA is therefore

authorized to conditionally approve the

attainment demonstration as a whole

based on commitments submitted on

April 7 and 8, 2003, from Maryland, the

District and Virginia, respectively, to

submit measures to complete the severe

area requirements to revise the

previously submitted SIPs listed in

Tables 1 and 2 of this notice to be

consistent with and to include all of the

section 182(d) requirements of a severe

ozone nonattainment area SIP. The

specific commitments submitted by the

Washington area jurisdictions are to:

(A) Revise the 1996-1999 portion of

the severe area ROP plan to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the required 9 percent rate-ofprogress reductions by November 15,

1999.

(B) Revise the severe area ROP to

provide emission reductions of ozone

precursors of at least 3 percent per year

from November 15, 1999 to the

November 15, 2005 severe ozone

attainment date.

(C) Revise the severe area ROP plan to

include a contingency plan containing

those adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the ROP reductions required for

the post-1999 period.

(D) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999.

(E) Update the Washington area

severe attainment demonstration to

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reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

(F) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

measures to be implemented if the

Washington area does not attain the

one-hour ozone standard by November

15, 2005.

(G) Revise the Washington area severe

attainment demonstration to include a

revised RACM analysis and any

revisions to the attainment

demonstration including adopted

control measures, as necessitated by

such analysis.

(H) Revise the major stationary source

threshold to 25 tons per year.

(1) Revise Reasonably Available

Control Technology (RACT) rules to

include the lower major source

applicability threshold.

(J) Revise new source review offset

requirements to require an offset ratio of

at least 1.3 to 1.

(K) Submit as part of the SIP a fee

requirement for major sources of volatile

organic compounds (VOC) and nitrogen

oxides (NOx) should the area fail to

attain by November 15, 2005.

(L) Submit as part of the SIP a

revision that identifies and adopts

specific enforceable transportation

control strategies and transportation

control measures to offset any growth in

emissions from growth in vehicle miles

traveled or number of vehicle trips and

to attain reductions in motor vehicle

emissions as necessary, in combination

with other emission reduction

requirements in the Washington area, to

comply with the ROP requirements for

severe areas. Measures specified in

section 108(f) of the Clean Air Act will

be considered and implemented as

necessary to demonstrate attainment.

Details on EPA's analysis of the

previously submitted SIP revisions and

their adequacy with respect to the

requirements of a severe ozone

nonattainment area are explained in

detail in the proposal notice and will

not be restated here.

Under the CAA, EPA is required to

approve or disapprove a State's

submission no later than 12 months

after the submission is determined or

deemed complete. On November 13,

2002, the Sierra Club filed a complaint

in the United States District Court for

the District of Columbia (District Court)

against the EPA (Sierra Club v.

Whitman, No. 1:02CV02235(JR))

claiming, among other things, that the

EPA had not issued a final action on

several SIP revisions (those listed in

Tables 1 and 2 of this document)

submitted by the District, Maryland and

Virginia for the Washington area. On

December 18, 2002, the District Court

issued an order directing the EPA to

publish, by February 3, 2003, a notice of

proposed rulemaking on these SIP

revisions and to publish by April 17,

2003, a final rule on these SIP revisions.

This final rulemaking action complies

with the Court's Order to publish a final

action on these SIP revisions by April

17, 2003.

Tables 1 and 2 identify the submittal

and amendment dates for the ROP plans

and attainment demonstrations for

which EPA is taking final action to

conditionally approve.

TABLE 1.-1996-1999 ROP PLANS

DC MD VA

Initial submittal dates ..................................... Novem ber 10, 1997 ................... Decem ber 24, 1997 ................... Decem ber 19, 1997.

Am endm ent dates ......................................... M ay 25, 1999 ............................. M ay 20, 1999 ............................. M ay 25, 1999.

TABLE 2.-ATTAINMENT DEMONSTRATIONS

DC MD VA

Initial subm ittal dates ..................................... A pril 24, 1998 ............................. A pril 29, 1998 ............................. A pril 29, 1998.

Am endm ent dates ......................................... O ctober 27, 1998 ....................... August 17, 1998 ......................... August 18, 1998.

Supplemental dates ....................................... February 16, 2000 ..................... February 14, 2000 (MD SIP No. February 9, 2000.

00-01).

Supplemental dates ....................................... March 22, 2000 .......................... March 31, 2000 (MD SIP No. March 31, 2000.

00-02).

II. What Were the Conditions for

Approval Provided in the Notice of

Proposed Rulemakings for the 1996-

1999 ROP Plan and Attainment

Demonstration?

Under section 110(k)(4) of the CAA,

the EPA "may approve a plan revision

based on a commitment of the State to

adopt specific enforceable measures by

a date certain, but not later than 1 year

after the date of approval of the plan

revision. Any such conditional approval

shall be treated as a disapproval if the

State fails to comply with such

commitment." In the Notice of Proposed

Rulemaking published on February 3,

2003 (68 FR 5246), EPA proposed to

conditionally approve the Washington

area severe attainment demonstration

and 1996-1999 portion of the ROP plan

on the basis that the Washington area

jurisdictions had committed to submit

to EPA by April 17, 2004 revised SIPs

that meet the following conditions.

(A) Revise the 1996-1999 portion of

the severe area ROP plan to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the required 9 percent rate-ofprogress reductions by November 15,

1999.

(B) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999.

(C) Update the Washington area

severe attainment demonstration to

reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

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(D) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

measures to be implemented if the

Washington area does not attain the

one-hour ozone standard by November

15, 2005.

(E) Revise the Washington area severe

attainment demonstration to include a

revised RACM analysis and any

revisions to the attainment

demonstration adopted control

measures as necessitated by such

analysis.

III. What Comments Were Received on

the Proposed Conditional Approvals

and How Has EPA Responded to Them?

In EPA's Notice of Proposed

Rulemaking published on February 3,

2003 (68 FR 5246) EPA proposed

conditional approval of the Washington

area's severe area attainment

demonstration and the 1996-1999

portion of the severe area ROP

obligation. EPA also proposed

disapproval in the alternative to

preserve the court-ordered schedule to

issue a final rule by April 17, 2003 in

the event that EPA could not issue a

final conditional approval with respect

to either or both the attainment

demonstration and 1996-1999 ROP

plan. EPA received comments from the

Virginia Department of Transportation

on March 5, 2003 supporting EPA's

proposed conditional approval. These

comments will not be addressed here.

On March 5, 2003 EPA also received

comments from the Sierra Club. The

Sierra Club's March 5 comments

specifically incorporate by reference

comments submitted by the Sierra Club

and others on February 14, 2000,

October 30, 2000, November 15, 2000,

November 20, 2000, September 9, 2002,

and December 13, 2002.

To the extent that the previously

submitted comments are germane to the

current action, EPA generally

incorporates by reference its prior

responses to those comments published

at 66 FR 586, January 3, 2001, and 68

FR 5246, February 3, 2003. We respond

with particularity to many of the

previously submitted comments (1) to

the extent that events occurring after

publication of EPA's prior responses

require that our prior responses be

updated and revised or (2) to the extent

that we feel that consolidating prior

responses helps create a more

comprehensive record for the current

rulemaking. The following discussion

summarizes and responds to particular

comments.

A. Comments in the March 5, 2003

1. Conditional Approval

Comment: The commenter argues that

EPA cannot conditionally approve the

Washington area SIPs for various

reasons. First, the commenter alleges

that even EPA concedes that it cannot

fully approve the SIPs based on various

defects noted by the D.C. Circuit court

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

155, 163 (D.C. Cir. 2002), therefore, EPA

cannot conditionally approve the SIPs.

The commenter further alleges that

conditional approval cannot be used to

circumvent or postpone statutory

deadlines, and that conditional approval

will prevent the Washington area from

attaining the ozone standard as

expeditiously as possible, prevent

achievement of Post-1999 ROP and

prevent timely implementation of

contingency measures in the event the

area fails to achieve timely rate-ofprogress or attainment. The commenter

also asserts that conditional approval

cannot be used when a state has failed

to submit a relevant substantive SIP

component at all; that the SIP

components at issue were due on

November 15, 1994; that the States'

commitments do not identify "specific

enforceable measures" to be adopted by

a date certain; that the commitments are

to fix major components not minor

details; that conditional approval is not

allowable here because EPA has already

allow the States to defer submission of

various required SIP components for

more than one year; and finally, that all

of the defects the commenter has

identified means any conditional

approval would violate section 110(1) of

the Act.

Response: The commenter

misconstrues the conditional approval

mechanism. Conditional approval under

section 110(k)(4) is quite different from

full approval under section 110(k)(3) of

the Act, which the Court of Appeals

considered in Sierra Club. Conditional

approval is a statutory technique that

allows EPA to give a limited form of

approval to SIPs that do not meet all of

the standards for full approval, but

where a substantive SIP also includes

commitments made by the states to

remedy limited, identified deficiencies

through the adoption of specific

enforceable measures by a date certain.

42 U.S.C. 7410(k)(4). Here, the States

have committed to undertake various

analyses and ultimately adopt specific

enforceable measures as appropriate to

remedy the deficiencies in the currently

submitted SIP revisions. Based on the

fact that the SIP contains most of the

substantive components for the required

plans as well as commitments to correct

limited deficiencies, which EPA

received after the court ruling, the

statute provides for EPA to

conditionally approve the SIPs even

though the court found that EPA could

not fully approve them. The Court of

Appeals did not address whether EPA

could conditionally approve the SIPs as

the issue of conditional approval was

not before the court and the States had

not made appropriate commitments at

the time of the court ruling.

With respect to the assertion that EPA

cannot use the conditional approval

mechanism to allow areas to avoid a

statutory deadline, and the complaint

about SIP submittal deadlines that have

long passed, EPA is dealing in this case

with a SIP that was submitted by the

States, reviewed by EPA and approved

by EPA in January 2001 through noticeand-comment rulemaking. EPA's

approval was then vacated by the Court

of Appeals on July 2, 2002, after judicial

review. Whatever the merits of any

argument about delays that occurred

previously, EPA must now take action

on the SIPs under court order based on

the submittal before the agency. That

submittal consists of the previously

submitted SIP and the recently

submitted commitments by the States to

conduct the appropriate analyses and

submit any necessary measures to

rectify certain limited defects in the

SIPs. EPA believes it is appropriate to

conditionally approve the SIPs that the

States have recently committed to revise

to satisfy deficiencies which were the

basis for vacatur by the Court of

Appeals. The States could not have been

expected to remedy these deficiencies

previously as EPA had in fact approved

the SIPs without noting any such

deficiencies prior to the court ruling.

The States have now committed to

revise the SIPs on an expeditious

schedule that is no later than one year

following EPA's final action.

Furthermore, EPA notes that there is

nothing in the statute that limits the use

of conditional approval to SIP revisions

that are submitted by the statutory due

date. Nor does the statute link the

period for conditional approval to the

time by which the SIP was due. Finally,

EPA has never before conditionally

approved these SIPs nor have the States

previously made commitments to

submit all of these portions of the

attainment demonstration within a year.

For these reasons, EPA believes it is

reasonable to use this tool in this case.

The commenter further claims that a

conditional approval will delay timely

attainment. However, the commitments

are to submit any necessary additional

measures by April 2004 while the

attainment date for the area is not until

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November 2005, so all deficiencies will

be cured at least 18 months prior to the

attainment date and will therefore not

delay timely attainment because the

States will need to ensure any necessary

emission controls are in place by the

beginning of the 2005 ozone season.

One year should provide sufficient time

to implement any necessary controls. To

the extent the commenter addresses

alleged deficiencies in the 2005

attainment date itself, these comments

will be addressed in section III.A.2. of

this document responding to comments

on the attainment demonstration.

The commenter next claims that EPA

cannot use the conditional approval

mechanism where states have failed to

submit a substantive SIP component at

all, alleging that in this case various

parts of the attainment demonstration,

such as ROP plans, contingency

measures and RACM, constitute

separate SIP components. EPA had

indeed argued in Sierra Club, supra,

that these were separate SIP

requirements and for that reason the

attainment demonstration should have

been upheld without them. However,

the Court of Appeals agreed with the

contrary argument, which was actually

made by the commenter, and held that

ROP plans, RACM and contingency

measures are actually parts of the

overall Washington Area attainment

demonstration and must be included

within it. See Sierra Club v. Whitman,

285 F.3d at 163-64 (D.C. Cir. 2002). The

attainment demonstration includes

many components in addition to these.

The attainment demonstration already

demonstrates attainment no later than

November 15, 2005, based on

photochemical grid modeling and a

suite of adopted and SIP approved

control measures that reduce local

emissions down to the allowable levels

established by the photochemical grid

modeling. A list of these control

measures can be found in the notice of

proposed rulemaking for this action. See

68 FR at 5252-5253 and at 5255-5256,

February 4, 2003. Given that these items

to which the States have committed are

a part of the overall Washington area

attainment demonstration rather than

separate SIP components, EPA

concludes that it is authorized to

conditionally approve an attainment

demonstration that contains

commitments to submit limited

components of the attainment

demonstration.

The commenter then argues that these

elements of the attainment

demonstration are so significant that the

SIPs cannot be conditionally approved

without them. However, the primary

portions of the attainment

demonstration are the adopted control

measures themselves coupled with the

modeling demonstration showing that

implementation of these measures will

result in attainment by the requisite

date. The RACM analysis merely

analyzes potential additional measures

to determine whether any could

advance the attainment date; the post1999 ROP analysis addresses interim

progress prior to the attainment date;

and the contingency measures address

measures to be implemented in the

event rate-of-progress or attainment is

not timely achieved. Although all of

these elements are important portions of

the overall attainment demonstration

SIP, EPA does not believe that any of

them amount to such a significant

portion of the attainment demonstration

that the demonstration cannot be

conditionally approved based on the

States commitment to complete the

additional analyses along with adoption

of any necessary additional measures in

the short term. EPA addresses the

commenters specific concerns about the

substance of these three SIP portions

elsewhere in responding to comments

regarding the individual elements of the

attainment demonstration.

Further, the commenter alleges that

conditional approval is inappropriate in

this case because the States have

purportedly not made commitments to

adopt specific enforceable measures as

required by section 110(k)(4). In

contrast, EPA believes that the

commitments submitted by the States

do indeed commit the States to

ultimately adopt specific enforceable

measures if such measures are

determined to be needed based on

further analysis. The commitment

letters specifically state that the States

will submit adopted contingency

measures requisite to satisfy the

contingency measure requirements for

various circumstances relating to ROP

and attainment. The States further

commit not only to conduct the various

RACM and mobile modeling analyses,

but also to revise the attainment

demonstration itself as appropriate in

light of these analyses. EPA believes

that there can be no interpretation of

these commitment letters other than a

conclusion that the States have

committed to submit specific

enforceable measures to support the

revised attainment demonstration if

necessary. However, since the States

have submitted additional commitment

letters for various reasons described

elsewhere in this document, the States

have clarified in those letters their

intent to submit specific measures in

support of the demonstrations, if

appropriate. It is true that the States

have not yet identified the specific

measures that could ultimately be

adopted, however it would be

impossible for them to do so in advance

of conducting the requisite RACM and

modeling analyses.

The commenter argues that

contingency measures should not be the

subject of a conditional approval in DC

because it is likely that by the summer

of 2003 it could be determined that the

DC area will fail to attain in 2004 and

the contingency measures would then

be triggered. However, contingency

measures are not required to be

implemented under the Act until an

area fails to attain by the applicable

attainment date. (CAA section

172(c)(a)). The statute does not require

implementation of contingency

measures prior to the attainment date

based on a projection that the area will

not attain when the attainment date is

reached. Given that the States have

committed to submit all necessary

contingency measures by April 2004,

any needed contingency measures

would be available for implementation

should EPA make a determination by

May 15, 2006 under section 181(b)(2) of

the Act that the area failed to attain by

November 15, 2005.

We also disagree with the

commenters' allegation in comments

previously submitted on September 9,

2002 that the motor vehicle emissions

budgets (MVEBs) in the attainment

demonstration do not reflect the

potential to lower the MVEB through

transportation related control measures

should the area fail to attain or to meet

ROP requirements. With respect to those

contingency measures that would be

triggered by the failure to attain, the

attainment year MVEB would never

account for these contingency measures

because such measures would never be

triggered until after the attainment year.

Should those contingency measures be

triggered, it would be appropriate at that

time for the state to revise the budgets

to reflect implementation of such

measures in future years, but this cannot

be done in advance of implementation

of the measures as it is unclear whether

the measures would ever in fact be

implemented.

Similarly, with respect to contingency

measures triggered by the failure to meet

ROP, the obligation to account for those

contingency measures is not triggered

until it has been determined that the

area has failed to meet its ROP

requirements. EPA is allowing the

Washington area jurisdictions to

demonstrate the first required post-1999

nine percent ROP (which was due under

the statute by November 15, 2002), as

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expeditiously as practicable, if control

measures currently in the SIPs, or

already promulgated by EPA, did not

achieve the required nine percent

reduction by November 15, 2002. (See

68 FR 3418). Therefore, the date for

fulfilling the first post-1999 ROP

requirement lies in the future, and the

requirement to implement any needed

contingency measures for failure to meet

that ROP has not been, and may not ever

be, triggered. This is true, too, for the

1999 ROP requirement. It has not yet

been determined that the Washington

area did, or did not, meet its 1999 ROP

requirement and the requirement to

implement contingency measures for

failure to meet the 1999 ROP

requirement has not yet been (and may

not ever be) triggered. As with any

contingency measures that would be

implemented for a future failure to

attain, because the obligation to

implement contingency measures for

failure to meet the post-1999 ROP

requirements has not arisen, the area

has no obligation to account for these

measures in the attainment

demonstration MVEB.

Finally, the commenter argues that all

the defects it has asserted entail that any

conditional approval would violate

section 110(1) of the Act, which

prohibits EPA from approving a SIP

revision that would interfere with any

applicable requirement of the Act.

However, EPA has concluded that the

submitted attainment demonstration,

coupled with the commitments the

States have made to remedy the

deficiencies in their demonstrations,

fully satisfy all of the applicable

requirements of the Act requisite to

support a conditional approval.

2. Attainment Demonstration

a. RACM and Attainment as

Expeditiously as Practicable.

Comment: The commenter argues that

the submitted SIPs do not provide for

attainment as expeditiously as

practicable, as required by the Act,

because the States have not properly

analyzed whether any additional

RACMs could advance the 2005

attainment date.

Response: EPA acknowledges that the

RACM analyses in the SIPs are not

sufficient, as noted by the Court of

Appeals in Sierra Club, supra. However,

the attainment demonstration does

provide for attainment by 2005, a date

consistent with the outside statutory

date for attainment for severe ozone

nonattainment areas and one that is

only two years away. EPA therefore

concludes, in light of the States

commitments to conduct a RACM

analysis and submit any additional

measures determined to constitute

RACM within a year, that it is

appropriate to conditionally approve the

attainment demonstration SIPs at this

time. Should the RACM analyses

determine that there are in fact potential

RACM that could advance the

attainment date, then EPA could

approve an earlier attainment

demonstration including such measures.

However, in advance of completion of

such RACM analyses EPA believes on

the basis of the attainment

demonstration before it that the SIP

does demonstrate attainment as

expeditiously as practicable. This

preliminary conclusion is neither

arbitrary nor capricious given the short

period of time until the attainment date.

Although no final conclusions can be

reached until the RACM analyses are

completed, given the time necessary for

implementation of measures EPA

believes it is unlikely that sufficient

measures could be adopted and

implemented to allow the Washington

area to reach attainment by the 2004

ozone season. Specifically, the state

process for developing control

requirements in the form of SIP

revisions, providing a public hearing,

and adopting SIP revisions, typically

takes at least a full year. In addition, the

state typically allows a period of at least

a year, often longer, for sources to

implement required controls. Even if

these process were significantly

accelerated, it is highly unlikely that

controls would be implemented by the

start of the 2004 ozone season.

b. Demonstration of Attainment by

2005.

Comment: We received comments

declaring that the attainment

demonstration, and EPA's analysis of it,

look only at ozone levels in 2005, not

2003 and 2004. The comments assert

that to demonstrate attainment by

November 15, 2005, the demonstration

of attainment must show that no

monitor in the nonattainment area will

have an average of more than 1.0

expected exceedance per year for the

period 2003-2005 but that the

demonstration does not address the

entire period. The comments cite § 50.9

of 40 CFR part 50.

Response: EPA disagrees with the

comment. While EPA does agree that

§ 50.9 of 40 CFR part 50 establishes the

form of the 1-hour ozone standard in

terms an annual average number of

expected exceedances, EPA's guidance

for conducting an attainment

demonstration are a reasonable

interpretation of the requirements for an

attainment demonstration required

under section 182(c) of the CAA in light

of the form of the ozone NAAQS.

Air quality models do not know what

year is being modeled, only the

emissions levels and the meteorology.

The meteorology component would be

the same for any year because historical

weather episodes are modeled.

Under EPA's modeling guidance the

States are required to model severe

episodes corresponding to those

weather conditions thought to generate

high levels of ground level ozone. In

contrast, all monitored exceedances

count towards a determination of

whether all monitors are actually

meeting the standard under the standard

set in 40 CFR 50.9 and appendix H to

40 CFR part 50. A monitored value of

0.125 ppm counts as one exceedance to

the same extent as a value of 0.150 ppm.

Modeling demonstrating that the most

severe episodes will yield few or no

exceedances will be consistent with

elimination of exceedances on less

severe weather days.

As EPA stated in the technical

support for this rule, the modeling

demonstration considered severe

episodes: the ozone forming potential

rank is very high for one day-July 20,

1991. This is the thirteenth most severe

day out of approximately the last 50

years, one that is likely to recur only

once every 4 to 5 years on average. This

type of day is not likely to occur often

enough to be a major causative factor for

nonattainment, especially since the

emission controls modeled in this plan

should eliminate ozone exceedances for

all but the most meteorologically severe

days.

EPA has concluded that the modeling

analysis allows anthropogenic

emissions in the Washington area of 360

tons per day of VOC and 538 tons per

day of NOx.

To reduce future year emissions to

levels consistent with the modeling

demonstration, the attainment

demonstration has to provide for

enough emission reductions net of

growth to reduce emissions down to the

levels allowed by the attainment

modeling demonstration. Therefore, the

attainment demonstration has to

provide for emission reductions to

accomplish two purposes: first, the plan

has to offset growth in emissions due to

increases in emissions-related activity to

reduce emissions to the base year levels;

and, second, the plan has to produce

sufficient additional reductions beyond

that needed to offset post-1990 growth

to reduce emissions to the levels

allowed by the attainment modeling

demonstration.

When viewed from this perspective,

the Post-1996 ROP plan for the 1999

milestone (hereafter "the 1996-1999

ROP plan") had to achieve reductions

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net of growth of 128.3 tons per day of

VOC and 116.2 tons per day of NOx to

make the ROP targets. The plan actually

achieved creditable reductions net of

growth of 143.7 tons per day VOC and

123.0 tons per day NOx. The

demonstration of ROP for the 1999

milestone year in Post-1996 plan clearly

did not rely upon controls beyond

reasonably available control technology

(RACT) at large NOx sources. Even

though the potential benefits of beyondRACT controls were calculated, the

1996-1999 ROP plan did not rely upon

those controls and did not rely upon

Phase II of the RFG program which was

implemented in January 2000.

The attainment modeling considered

the effects of the OTC Phase II NOx

controls. The benefits for these controls

would have been 93 tons per day in

1999. 70 tons per day of reduction were

achieved from the District's and

Maryland's Phase II NOx rules which

were implemented commencing May 1,

2002.1 Major further reductions will

occur in 2003 from the implementation

of the NOx SIP call rules in Maryland

and Virginia and beyond RACT controls

on the two major utility sources in

Virginia.2 Thus, by 2003, the local NOx

emissions would be close to the levels

required by the local area modeling.

The Phase II RFG program is projected

to yield 23.5 tons per day of VOC

reductions in 2005 versus a little less

than 16 in 1999. Much of this additional

benefit would have been achieved in

calendar year 2000 when the second

phase of the program was implemented

to achieve the mandated additional VOC

reductions over and above that required

by the first phase.

The attainment plan requires

reductions net of growth of 148.5 tons

per day of VOC and 192.9 tons per day

of NOx to reduce emissions to the levels

allowed by the attainment modeling

demonstration. These are 4.8 tons per

day of VOC and 69.9 tons per day of

NOx lower than the reductions credited

to the Post-1996 for the 1999 milestone.

The creditable emissions reductions net

of growth by 2005 are 151.8 tons per day

of VOC and 327.9 tons per day of NOx.

The Post-1999 reductions are mainly

used to offset growth in emissions after

1999 once the RFG and Phase II NOx

rules are in place.

The Plan's local emissions levels are

very close to that required under the

local air quality modeling in 1999 once

1 These controls have been approved into the

SIPs. See 65 FR 78416, December 15, 2000, and 65

FR 80783, December 22, 2000.

2 These controls have been approved into the

SIPs. See 66 FR 55099, November 1, 2001, and 66

FR 1866, January 10, 2001; and 65 FR 78100,

December 14, 2000

the RFG and Phase II NOx rules are

considered. Significant reductions in

upwind NOx will not commence sooner

than May 31, 2004, under the NOx SIP

call and related federal requirements.

EPA believes modeling a 2003 year case

would merely show continued

exceedances due to transport. For a

2004 year, EPA believes that the

resources needed to develop the

necessary inventories, process them for

incorporation into the air quality model

and to perform the actual air quality

modeling would not add any value. The

emissions levels would be expected to

be essentially the same as for 2005

because the 2005 plan is projected to

exceed the emission reduction

requirements set by the modeling

demonstration.

c. The Ozone Standard.

Comment: The commenter stated that

EPA had based its proposed approval of

the attainment demonstration on the

assumption that the 1-hour ozone

standard is 0.125 ppm, when the actual

standard is 0.12 ppm.

Response: The level of the 1-hour

ozone National Ambient Air Quality

Standard (NAAQS) is defined in 40 CFR

50.9 as 0.12 parts per million (ppm), not

120 parts per billion (ppb) as implied by

the commenter. In other words, the 1-

hour ozone NAAQS is specified as two

significant digits and the data handling

approach employed to compare ambient

air quality data to the 1-hour ozone

standard is to round to two decimal

places as per the regulations and

guidance referenced above.

Although the 1-hour NAAQS itself

includes no discussion of specific data

handling conventions, EPA's publicly

articulated position and the approach

long since universally adopted by the

air quality management community is

that the interpretation of the 1-hour

ozone standard requires rounding

ambient air quality data consistent with

the stated level of the standard. EPA has

clearly communicated the data handling

conventions for the 1-hour ozone

NAAQS in regulation and guidance

documents. In the 1990 Amendments to

the CAA, Congress expressly provided

that "[e]ach regulation, standard, rule,

notice, order and guidance promulgated

or issued by the Administrator under

this Act, as in effect before the date of

the enactment of the Clean Air Act

Amendments of 1990 shall remain in

effect according to its terms * * *"

Thus, under the amended CAA,

Congress expressly carried forth EPA

interpretations set forth in guidance

such as the guideline documents

interpreting the NAAQS.

As early as 1977, two years before

EPA promulgated the 1-hour ozone

NAAQS, EPA provided in guidance that

the level of the standard dictates the

number of significant figures to be used

in determining whether the standard

was exceeded (see "Guidelines for the

Interpretation of Air Quality

Standards," OAQPS No. 1.2-008,

February 1977). In addition, the

regulations governing the reporting of

annual summary statistics from ambient

monitoring stations for use by EPA in

determining national air quality status

clearly indicate the rounding

convention to be used for 1-hour ozone

data (40 CFR part 58, appendix F). In

1979, EPA issued additional guidance

specific to ozone in which EPA

provided that "the stated level of the

standard is taken as defining the

number of significant figures to be used

in comparisons with the standard. For

example, a standard level of 0.12 ppm

means that measurements are to be

rounded to two decimal places (.005

rounds up), and, therefore, 0.125 ppm is

the lowest concentration value in excess

of the level of the standard." See

"Guideline for the Interpretation of

Ozone Air Quality Standards," EPA450/4-79-003, at p. 6. EPA's guidance

on air quality modeling is consistent

with those Guidelines. See, e.g.,

Guidance on Use of Modeled Results to

Demonstrate Attainment of the Ozone

NAAQS, July 1996.

d. Modeled Demonstration of

Attainment.

Comment 1: The commenter alleges

that photochemical grid modeling

shows that the Washington area will not

attain the ozone standard by the

November 2005 attainment date and

because the "weight of evidence"

(WOE) analysis used by EPA to

conclude that the Washington area has

demonstrated attainment by November

2005 is not authorized by the Act or by

EPA rules. The comments claim that the

modeling demonstration and WOE used

in the attainment demonstration for the

Washington area do not meet

requirements of section 182(c) of the

CAA and EPA's own regulations for

photochemical grid modeling and other

analytical methods, that the WOE is an

alternative method to photochemical

grid modeling which has not been

shown to be equally effective to the

Urban Airshed Model (UAM), and that

WOE is a proscribed rollback method.

Also, the commenter claims the most

recent modeling guidance is flawed

because: it is allegedly a rollback

technique; because it allegedly allows

the averaging across the three highest air

quality sites across a region, whereas

EPA's 1991 and 1996 modeling

guidance requires that attainment be

demonstrated at each site and, thus,

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effectively lowers the total emission

reduction needed to attain at the highest

site; and because of alleged flaws in the

techniques for determining the

magnitude of additional emission

reductions. The commenter therefore

asserts that approval of the attainment

demonstration would be arbitrary,

capricious and contrary to law for

reasons set forth in comments submitted

on March 5, 2003, as well as those

previously submitted to EPA on

February 14, 2000. Such comments also

included EPA's treatment of overprediction of ozone levels by the

photochemical grid model, EPA's

treatment of modeled exceedances over

the standard and EPA's treatment of the

photochemical grid modeling results

prediction of exceedances even over the

levels allowed after a downward

adjustment under EPA's alternative test.

Finally, the commenter asserts that EPA

failed to adequately explain certain

adjustments made to the photochemical

grid modeling for the Washington area.

Response 1:

WOE is consistent with the CAA and

EPA regulations.

With respect to the allegation that the

WOE analysis used by EPA is not

authorized by the Act or EPA rules, EPA

consistently has interpreted the CAA to

allow for a weight-of-evidence analysis

as an interpretive adjunct to the

photochemical grid modeling used to

show that the Washington area will

attain the ozone standard in 2005. See,

e.g., 66 FR 634, January 3, 2001; 66 FR

666, January 3, 2001; 66 FR 54143,

October 26, 2001; 66 FR 54577, October

29, 2001; 66 FR 54597, October 29,

2001; 66 FR 54666, October 30, 2001; 66

FR 56903, November 13, 2001; 66 FR

56931, November 13, 2001; 66 FR

56944, November 13, 2001; 66 FR

57159, November 14, 2001; 66 FR

63921, December 11, 2001; 67 FR 5151,

February 4, 2002; 67 FR 5170, February

4, 2002; 67 FR 30574, May 7, 2002; 67

FR 61786, October 2, 2002; 67 FR 72576,

December 6, 2002; and 67 FR 72574,

December 6, 2002. Because WOE is an

adjunct to photochemical grid

modeling, not a separate analysis, the

commenter's assertion that the modeling

for the Washington area is not

consistent with the CAA is a misstatement.

As described in more detail below,

the EPA allows states to supplement

their photochemical modeling results

with additional evidence designed to

account for uncertainties in the

photochemical modeling databases and

application in order to demonstrate

attainment. This approach is consistent

with the requirement of section

182(c)(2)(A) that the attainment

demonstration "be based on

photochemical grid modeling," because

the modeling results constitute the

principal component of EPA's analysis

with supplemental information

designed to account for uncertainties in

the model. This interpretation and

application of the photochemical

modeling requirement of section

182(c)(2)(A) finds further justification in

the broad deference Congress granted

EPA to develop appropriate methods for

determining attainment, as indicated in

the last phrase of section 182(c)(2)(A).

This interpretation of the Act has

been upheld by the Court of Appeals for

the Fourth Circuit, which stated "EPA

has long recognized that there are

uncertainties inherent in available

models and in estimating future

emissions * * *. EPA thus allows the

use of supplemental analysis, including

a "weight of evidence" analysis, to

demonstrate attainment in cases where

the modeling shows ozone levels

exceeding the NAAQS." 1000 Friends of

Marylandv. Browner, 265 F.3d 216, 234

(4th Cir. 2001)(internal quotation

omitted).

The flexibility granted to EPA under

section 182(c)(2)(A) is also reflected in

the regulations EPA promulgated for

modeled attainment demonstrations.

These regulations provide, "The

adequacy of a control strategy shall be

demonstrated by means of applicable air

quality models, data bases, and other

requirements specified in (40 CFR part

51, appendix W) (Guideline on Air

Quality Models)." 3 40 CFR 51.112(a)(1).

The regulations further provide, "Where

an air quality model specified in

appendix W * * * is inappropriate, the

model may be modified or another

model substituted [with approval by

EPA, and after] notice and opportunity

for public comment * * *." Appendix

W, in turn, provides that, "The Urban

Airshed Model (UAM) is recommended

for photochemical or reactive pollutant

modeling applications involving entire

urban areas," but further refers to EPA's

modeling guidance for data

requirements and procedures for

operating the model. 40 CFR part 51,

appendix W, section 6.2.1.a. The

modeling guidance discusses the data

requirements and operating procedures,

as well as interpretation of model

results as they relate to the attainment

demonstration. This provision

references guidance published in 1991;

however, EPA envisioned that the

3 The August 12, 1996 version of "Appendix W

ot Part 51-Guideline on Air Quality Models" was

the rule in effect for these attainment

demonstrations. EPA is proposing updates to this

rule which will not be in effect until the new rule

is promulgated.

guidance would change as we gained

experience with model applications,

which is why the guidance is

referenced, but does not appear, in

Appendix W. With updates in 1996 and

1999, the evolution of EPA's guidance

has led us to the use of the

photochemical grid model, as well, or in

conjunction, with additional analytical

methods approved by EPA.

EPA's interpretation of the CAA is

consistent with the statute's

requirement that the attainment

demonstration be "based on

photochemical grid modeling." Giving

the phrase "based on" its ordinary

meaning, the statute requires only that

an attainment demonstration "arise

from" photochemical grid modeling,

using the modeling as a "starting point"

or "foundation." See McDaniel v.

Chevron Corp., 203 F.3d 1099, 1111 (9th

Cir. 2000) (reviewing cases interpreting

the phrase "based on"); United States v.

United Technologies. Corp., 985 F.2d

1148, 1158 (2d Cir. 1993) ("based upon"

does not mean "solely"). EPA's weightof-evidence analysis is consistent with

the plain meaning of the statute because

photochemical grid modeling is the

starting point of the analysis; indeed,

the very purpose of the WOE analysis is

to determine whether the modeling, in

light of all the evidence, demonstrates

attainment.

Even if the statutory language is

ambiguous, EPA's interpretation is

reasonable under Chevron U.S.A. Inc. v.

Natural Res. Def. Council, 467 U.S. 837,

842-45 (1984). The comments

apparently are based on the premise that

the statute should be read to say an

attainment demonstration must be based

solely on photochemical grid modeling

without reliance on any analytical

adjuncts. Even if this were a plausible

reading of the statute, EPA's

interpretation is equally permissible.

See United Technologies, 985 F.2d at

1158. Our interpretation adheres to the

normal meaning of the statutory

language and is supported by the broad

discretion that Congress granted to EPA

in section 182(c)(2)(A).

Because EPA reasonably determined

that WOE analysis is based on

photochemical grid modeling, there is

no merit to the alternative statutory

argument found in the comments. The

comments contend that WOE qualifies

as an "other analytical method" under

section 182(c)(2)(A), requiring the EPA

Administrator to determine that weightof-evidence is "at least as effective" as

photochemical grid modeling. As noted,

however, weight-of-evidence analysis is

"based on photochemical grid

modeling"; therefore, EPA did not

employ an "other analytical method"

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that would have required an

effectiveness determination by the

Administrator. 4

Under "Guidance on the Use Of

Modeled Results to Demonstrate

Attainment of the Ozone NAAQS,"

EPA-454/B-95-007, June 1996

(hereafter the 1996 Guidance), the

modeled attainment test compares

model predicted 1-hour daily maximum

ozone concentrations in all grid cells for

the attainment year to the level of the

NAAQS. The results may be interpreted

through either of two modeled

attainment or exceedance tests: A

deterministic test or a statistical test.

Under the deterministic test, a predicted

concentration above 0.124 parts per

million (ppm) ozone indicates that the

area is expected to exceed the standard

in the attainment year and a prediction

at or below 0.124 ppm indicates that the

area is expected to not exceed the

standard. Under the statistical test,

attainment is demonstrated when all

predicted (i.e., modeled) 1-hour ozone

concentrations inside the modeling

domain are at, or below, an acceptable

upper limit above the NAAQS permitted

under certain conditions (depending on

the severity of the episode modeled).

Based upon our experience with

application of the models, which we did

not have in 1991, EPA issued the 1996

Guidance to update the 1991 guidance

referenced in 40 CFR part 50, appendix

W, to make the modeled attainment test

more closely reflect the form of the

NAAQS (i.e., the statistical test

described above), and the

meteorological conditions

accompanying observed exceedances.

The 1996 Guidance also allows for

consideration of additional evidence to

address uncertainties in the modeling

databases and application. Therefore,

when modeling does not conclusively

demonstrate attainment, EPA has

concluded that additional analyses may

be presented to help determine whether

the area will attain the standard. As

with other predictive tools, there are

inherent uncertainties associated with

air quality modeling and its results. The

inherent imprecision of the model

means that it may be inappropriate to

view the specific numerical result of the

model as the only determinant of

whether the SIP controls are likely to

lead to attainment.

EPA's 1996 Guidance recognizes these

limitations, and provides a means for

considering other evidence to help

assess whether attainment of the

4 For the same reasons, EPA was not required to

address whether its 1996 or 1999 Modeling

Guidance is a "substitute" for modeling or is an

adequate model by itself.

NAAQS is likely to be achieved. The

process by which this is done is called

a weight-of-evidence or WOE

determination. Under a WOE

determination, the state can rely on, and

EPA will consider factors such as other

modeled output (e.g., changes in the

predicted frequency and pervasiveness

of 1-hour ozone NAAQS exceedances);

actual observed air quality trends (i.e.,

analyses of monitored air quality data);

estimated emissions trends; and the

responsiveness of the model predictions

to further controls in addition to the

results of the modeled attainment test.

In 1999, EPA issued additional

guidance (hereafter, the 1999

Guidance) 5 that makes further use of

model results for base case and future

emission estimates to predict a future

design value. This guidance describes

the use of an additional component of

the WOE determination, which requires,

under certain circumstances, additional

emission reductions that are or will be

approved into the SIP, but that were not

included in the modeling analysis, that

will further reduce the modeled design

value. An area is considered to monitor

attainment if each monitor site has air

quality observed ozone design values

(4th highest daily maximum ozone

using the three most recent consecutive

years of data) at or below the level of the

standard (which is 124 ppb). Therefore,

it is appropriate for EPA, when making

a determination that a control strategy

will provide for attainment, to

determine whether or not the model

predicted future design value is

expected to be at or below the level of

the standard.

Since the form of the 1-hour ozone

NAAQS allows exceedances, it did not

seem appropriate for EPA to require the

test for attainment to be "no

exceedances" in the future model

predictions. The method outlined in the

1999 Guidance uses the highest

measured design value from all sites in

the nonattainment area for each of three

years. The three year "design value"

represents the air quality observed

during the time period used to predict

ozone for the base emissions. This is

appropriate because the model is

predicting the change in ozone from the

base period to the future attainment

date. The "design value" calculation

accounts for the fact that the NAAQS

allows limited exceedances of the ozone

standard without a resulting violation.

"Guidance for Improving Weight of Evidence

Through Identification of Additional Emission

Reductions, Not Modeled." U.S. Environmental

Protection Agency, Office of Air Quality Planning

and Standards, Emissions, Monitoring, and

Analysis Division, Air Quality Modeling Group,

Research Triangle Park, NC 27711.

The three yearly design values (highest

across the area) are averaged to account

for annual fluctuations in meteorology.6

The result is an estimate of an area's

base year design value. The base year

design value is multiplied by a ratio of

the peak model predicted ozone

concentrations in the attainment year

(i.e., average of daily maximum

concentrations from all days modeled)

to the peak model predicted ozone

concentrations in the base year (i.e.,

average of daily maximum

concentrations from all days modeled).

The result is an attainment year design

value based on the relative change in

peak model predicted ozone

concentrations from the base year to the

attainment year.

The use of this analytical adjunct,

however, does not mean that a state's

attainment demonstration is "based on"

something other than photochemical

grid modeling, or that WOE is "less

effective" than photochemical grid

modeling. To the contrary, WOE

analysis is used to assess the

photochemical grid modeling results; it

supplements, but does not replace, the

modeling. See 1996 Guidance at S-1

("In a weight of evidence determination,

model results are weighed heavily"). It

follows that the WOE approach is

consistent with the CAA requirement

that the attainment demonstration "be

based on photochemical grid

modeling," because WOE is merely an

adjunct for assessing the photochemical

grid modeling. In the case of the

Washington area demonstration,

photochemical grid modeling is the

primary basis for the attainment

demonstration. See 1996 Guidance at S1.

The 1999 Guidance is reasonable and

is not a proportional rollback.

As stated previously, episodic

photochemical grid modeling is the

primary basis for the attainment

demonstration, as it was used to define

the majority of the control strategy.

However, the modeling and

corroborative analyses, which form the

basis of the weight of evidence analysis,

provide a preponderance of evidence to

6 The commenter criticized the 1999 Guidance

because it allegedly allows the averaging across the

three highest air quality sites across a region,

whereas EPA's earlier (1991 and 1996) modeling

guidance requires that attainment be demonstrated

at each site and, thus, effectively lowers the total

emission reductions needed to attain at the highest

site. The commenter's concern is misplaced. The

1999 Guidance uses averaging of the worst modeled

air quality value across episode days or worst

design value across a three year period. Also, the

WOE determination, in turn, is intended to be a

qualitative assessment of whether additional factors

(including the additional emissions reductions not

modeled), taken as a whole, indicate that the area

is more likely than not to attain.

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support EPA's determination that

attainment of the 1-hour ozone NAAQS

will be achieved in 2005. One of these

WOE analyses involved the use of a

relative reduction factor (derived from

the local model results) to determine if

any additional NOx and VOC emissions

reductions are needed to attain. We

used the photochemical grid model in a

relative sense to determine if the

response of ozone concentrations to

controls was adequate to predict a

future design value below the level of

the NAAQS. Inherent in the base design

value is the level and form of the

NAAQS which allows exceedances in

the future.

In contrast to the claims in the

adverse comments, EPA did not rely on "proportional" rollback as defined in

section 14.0 of 40 CFR part 51, appendix

W which defines "rollback" as "a

simple model that assumes that if

emissions from each source affecting a

given receptor are decreased by the

same percentage, ambient air quality

concentrations decrease

proportionately." The prohibition

regarding proportional modeling in

section 6.2.1.e of appendix W (i.e.,

"Proportional (rollback/forward)

modeling is not an acceptable procedure

for evaluating ozone control strategies")

applies to the use of a rollback method

which is empirically/mathematically

derived and independent of model

estimates or observed air quality and

emissions changes as the sole method

for evaluating control strategies. A true

proportional rollback model does not

rely on any photochemical grid

modeling, and it assumes, for example,

that a 20 percent decrease in NOx

emissions results in a proportional (i.e.,

20 percent) decrease in ozone

concentrations. In this case, EPA used a

locally derived relative reduction factor

as determined by the photochemical

grid model to estimate a future design

value.

Other comments on the 1999

Guidance are not germane to the

Washington area.

The comments alleged flaws in the

two techniques for determining the

magnitude of additional emission

reductions. With respect to comments

on these two techniques for determining

the magnitude of additional emission

reductions contained in the 1999

Guidance, EPA believes these comments

do not apply in the case of EPA's

analysis of the attainment

demonstration for the Washington area.

The first allegation is that these

techniques allow averaging the three

highest design values across a

nonattainment area whereas EPA's

modeling guidance requires that

attainment be demonstrated at each site.

The alleged effect of this averaging

technique is that lower air quality

concentrations are averaged against

higher concentrations thus reducing the

total emission reduction needed to

attain at the highest site.

The second allegation concerns the

assumption that the contribution of

VOC versus NOx emissions to ozone

concentrations are the same from site to

site in contrast the UAM model which

considers the contribution of VOC

versus NOx emissions varies from site to

site.

The 1999 Guidance provided a twostep method for evaluating the air

quality modeling results. The first step

is an assessment of whether attainment

is demonstrated by a showing that a

future year design value will be 0.124

ppm or less. In the event that the

predicted attainment year design value

is above the standard, the second step

of the 1999 Guidance provides two

techniques for identifying additional

emission reductions, that were not

modeled, and which at a minimum

provide an estimated attainment year

design value at the level of the standard.

The first technique is the use of a "relative reduction factor (RRF)"

analysis to estimate a future design

value. 7 We used this analytical method

to demonstrate that the Washington area

will attain the standard. Attainment can

be demonstrated by showing that the

future year design value will be 0.124

ppm or less. Modeling predicts the peak

ozone values in the attainment year, but

it cannot predict the future design value

for that year due to the limited number

of days that can reasonably be modeled.

The RRF analysis, however, provides an

estimate of future design value based on

the principle that a control strategy that

reduces ozone peaks will similarly

reduce design values. The RRF analysis

has two steps. First, the state derives the

RRF from the modeled reduction in

ozone peaks between the base year and

the attainment year. Second, the state

applies the RRF to the design value for

the base year to estimate the future

design value in the attainment year.

EPA has concluded that for the

Washington area the RRF analysis

demonstrates a future year design value

of 119.6 ppb which is less than 124 ppb.

Using the 1999 Guidance, EPA never

needed to go beyond the RRF technique

to determine that the Washington area

will attain the ozone standard.

Therefore, the other comments

regarding the techniques for

determining the magnitude of such

additional reductions are not germane to

71999 Guidance at 3-4.

this rulemaking and are not addressed

in this document.

EPA's treatment of over-prediction of

ozone levels, of modeled exceedances

and downward adjustment of results.

As another element of EPA's WOE

analysis, we evaluated the

photochemical grid modeling for the

Washington area. We analyzed the

severity of the episodes modeled for the

Washington area and have concluded

that these would be adequate for

determining the emission reductions

needed for attainment in the

Washington area. When the emission

inventory with the control strategy is

modeled, peak ozone concentration is

reduced by approximately 22 ppb from

the modeled peak concentrations in the

1991 base cases. When the average

modeled peak ozone reduction from the

base year modeling to the attainment

year modeling (22 ppb) is subtracted

from the peak measured concentration

for July 16 (137 ppb) and July 19 (132

ppb), the resulting concentrations are

115 ppb and 110 ppb respectively.

However, when the modeled ozone

reduction is applied to the peak

monitored level on July 20 (178 ppb),

the resulting concentration is 156 ppb.

When the day-specific reduction of peak

modeled ozone concentration from the

base year modeling to the attainment

year modeling is subtracted from the

peak measured concentrations on July

16th, July 19th, and July 20th, the result

is 120 ppb, 103 ppb, and 158 ppb

respectively. Both methods (average,

day-specific) resulted in two of the three

days showing values below the ozone

standard indicating attainment for these

days. However, both methods resulted

in values above the standard for July

2Oth.8

EPA has evaluated the ozone

formation potential of the July 20, 1991,

episode day and determined that it is

13th most severe day out of

approximately the last 50 years with an

average reoccurrence of once every 4-5

years; this type of day is not likely to

occur often enough to be a major

causative factor for nonattainment

because the standard allows up to three

monitored exceedances in any three

year period. Because modeling for the

Washington area showed some peak

concentrations above 124 ppb, EPA

conducted the RRF analysis which is

8 The details of this analysis and the method and

calculation details by which EPA determined how

much the model over-predicts monitored ozone

concentrations is explained in "First Amendment to

Technical Support Document for Approval and

Promulgation of Air Quality Implementation Plans;

District of Columbia, Maryland, and Virginia; Post1996 Rate-of-Progress Plan for the Metropolitan

Washington, DC Nonattainment Area" dated April

10, 2003.

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discussed in prior paragraphs of this

section to determine what additional

emission reductions may be needed to

support ozone attainment in the

Washington area using EPA's 1999

Guidance. As stated in previous

paragraphs of this section, EPA has

concluded that the Washington area

does not need any additional emission

reductions beyond those contained the

attainment demonstration for the

Washington area to ensure attainment of

the ozone NAAQS.

While the modeling results suggest

that exceedances may still occur, EPA's

1996 Guidance allows for consideration

in the weight-of-evidence analysis of

whether the model over-predicts or

under-predicts in the base case and

consideration of other evidence.

The base case model performance for

both of the July 1991 episodes show

good alignment of the modeled ozone

plume in comparison to monitored

ozone values (e.g., the model predicted

peak concentrations and monitored

peak concentrations are generally paired

in space). Therefore, the degree to

which the peak predicted values exceed

the measured values in the same general

vicinity, indicates that the model is

systematically over-predicting ozone

concentration, while adequately

representing the spacial distribution of

ozone.

With respect to the assertion that EPA

did not explain how adjusting model

results to account for model over

prediction is consistent with EPA's

modeling rule, 40 CFR part 51,

appendix W, the modeling rule

encourages the assessment of model

uncertainty as one of the factors

affecting the model results. In EPA's

view, model over prediction is only a

rough approximation of the extent of

modeling uncertainty. Consideration of

model performance (specifically, a bias

to under- or over-predict ozone levels)

is one way to assess modeling

uncertainty. For the Washington area,

EPA explained how performance was

more closely reviewed and used as part

of the WOE determination.

As a further part of the WOE analysis

to corroborate the likelihood that the

Washington area will attain the 1-hour

ozone standard by the attainment date

of 2005, EPA developed relative

reduction factors based on regional scale

modeling performed for the NOx SIP

call supplemental notice of proposed

rulemaking (NOx SIP Call SNPR) (see 63

FR 25902, May 11, 1998; and see 63 FR

57356, October 27, 1998). These relative

reduction factors were used to adjust the

1994-1996 area design values for the

Washington area. This analysis shows

all future predicted design values below

the level needed for attainment (124

ppb). To provide additional

information, the EPA's relative

reduction factors were applied to the

1995-1997 and 1996-1998 Washington

area design values, again resulting in all

area design values below 124 ppb. This

analysis was updated (see the response

to comment 2. elsewhere in this section)

to include more recent air quality data

including data through the 2002 ozone

season. The result of this updated

analysis still showed all future

predicted design values below 124 ppb. 9

A future design value analysis was

performed using relative reduction

factors from the local photochemical

grid modeling results. The outcome of

this analysis shows a future predicted

area-wide design value of 119.6 ppb. 10

Based on the results of the local scale

modeling along with the additional

WOE arguments provided in the

attainment demonstration plan, EPA

believes that attainment of the 1-hour

ozone standard has been successfully

demonstrated for the Washington area

by the November 2005 attainment date.

Comment 2: In the March 5, 2003,

letter the commenter asserted that 2002

ozone levels recorded in the

Washington area show that the WOE

analysis is flawed. The comments

summarize the 2002 data in terms of

nine days that the 1-hour standard was

exceeded with as many as 8 different

monitors recording exceedances on

some of those days and claim this

number of exceedance days was higher

than in any of the preceding 10 years.

The comments assert that this data,

including a peak ozone value of 0.158

ppm, refutes EPA's WOE analysis. The

same commenter cited to pertinent

comments previously submitted to EPA

9 Table IV C-2 to "First Amendment to Technical

Support Document for Approval and Promulgation

of Air Quality Implementation Plans; District of

Columbia, Maryland, and Virginia; Post-1996 Rateof-Progress Plan for the Metropolitan Washington,

DC Nonattainment Area", dated April 10 2003.

1

0 Under the 1999 Guidance, the base design

value is an average of three years of monitored

design values that represent the modeled base case

emissions. In the case of the Washington area, the

model episodes are for 1991, and, thus, the three

design values used are those that reflect the 1991

monitoring data, i.e., the design values for 1991,

1992 and 1993. In the case of the Washington area

these three design values were 136, 136 and 137

ppb for 1991, 1992 and 1993, respectively. The

relative reduction factor (RRF) was 0.88. Whether

the RRF is applied to the average design value or

the highest design value has no practical effect (0.88

times 137 ppb equals 120.6 ppb). See Attachment

5 "Improving Weight of Evidence Through

Identification of Additional Emission Reductions

Not Modeled" to "Technical Support Document for

the One-Hour Ozone Attainment Demonstrations

submitted by the State of Maryland, Commonwealth

of Virginia and the District of Columbia for the

Metropolitan Washington, D.C. Ozone

Nonattainment Area" dated January 24, 2003.

on February 14, 2000. In the February

14, 2000 comment letter, we received

comments asserting that EPA looks only

at those "weights" that favor a finding

of attainment and specifically cited

1999 air quality data. The comments

assert that the data through 1999 show

current violations at 4 different

monitoring sites. The comments

highlight peak concentrations at various

monitors and claim even assuming a 7

ppb reduction in ambient levels from

the NOx SIP call the peak value of 0.141

ppm recorded in 1999 would still be in

violation.

Response 2:

Weight of Evidence and Air Quality

Generally.

The District, Maryland and Virginia

provided WOE arguments in the

attainment demonstration to further

corroborate that it is likely their

attainment demonstrations contained

sufficient local measures for the

Washington area to attain the 1-hour

ozone standard by the statutory date of

1999 but for transport.

In the original plan, the States and the

District used EPA-developed relative

reduction factors based on regional scale

modeling performed for the NOx SIP

Call SNPR. These relative reduction

factors were used to adjust the 1996 area

design values which considered air

quality data for the years 1994, 1995 and

1996. The analysis showed all area

future predicted design values below

the level consistent with attainment

(124 ppb). To supplement the state

submittals, we originally applied the

same relative reduction factors to the

1997 and 1998 area design values which

include air quality data through 1998.

Again the results were that all future

predicted area design values were below

124 ppb.

Using the more recent air quality data,

including that available for 2002, EPA

has performed these same evaluations.

Once again, the results were that all

future predicted design values were

below 124 ppb. The detail data and

computations have been placed in the

docket for this action.

Number of Exceedence Days.

Compliance with the one-hour ozone

standard is determined by comparing

the monitored annual average number of

expected exceedances of the 0.12 parts

per million (ppm) with the one-hour

standard. The one-hour standard is

exceeded in practice when the highest

one-hour value for any calendar day is

greater than 124 ppm. The standard is

set at 0.12 ppm but due to rounding, a

value of 0.124 ppm or less rounds down

to 0.12 ppm and values of 0.125 ppm or

more round up to 0.13 ppm which

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exceeds the 0.12 ppm standard." To

account for missing days (monitors may

not be operating on some days due to

malfunctions, maintenance and

calibration, or power outages, etc.) when

the monitor is not functioning the

procedure in appendix H of 40 CFR part

50 is used to convert the number of

actual number measured exceedances

for the year to an actual number of

expected exceedances.

The form of the ozone NAAQS

requires the use of a 3-year period to

determine the average number of

exceedances per year. In its simplest

form, the ozone standard requires that

the average number of exceedances over

a 3-year period, cannot be greater than

1.0. An area with four exceedances

during a 3-year period, therefore, does

not meet the ozone standard because

four exceedances in 3 years averages out

to more than once per year. Because of

the form of the ozone NAAQS, data are

combined over multiple years but they

are not combined from different sites.

The number of expected exceedances

for a year is always equal to or greater

than the actual number of measured

exceedances. The one-hour ozone

standard is violated when the annual

average number of expected

exceedances exceeds 1.0. The standard

and the method for converting measured

exceedances to expected exceedances is

found in 40 CFR 50.9 and appendix H

to 40 CFR part 50.

The proper use of the 1999 and 2002

and intervening years of ozone data

would be to perform the expected

exceedances determination using that

data. That the area had "nine

exceedance days in 2002" says only that

there were nine days in 2002 during

which at least one monitor recorded an

exceedance. The proper context for the

2002 ozone data would be to compute

the average annual number of expected

exceedances over the three year period

2000 to 2002.

Therefore, EPA believes that the

number of exceedance days is irrelevant

when evaluating an attainment

demonstration because the number of

exceedance days has no bearing on the

form of the 1-hour ozone standard.

Compliance with the standard is

performed on a monitor-by-monitor

basis. The peak ozone value for 2002 (or

1999 for that matter) is irrelevant unless

placed in context with the remaining

data for 2002 as well as the data for

2000 and 2001. A monitor is in full

compliance with the standard which

11 While the rounding may seem to increase the

standard by four percent (.005 divided by 0.12), the

standard was set to include an ample margin of

safety as required by section 109(b) of the CAA.

allows up to 3.1 expected exceedances

under 40 CFR 50.9 and appendix H to

40 CFR part 50. Under appendix H to 40

CFR part 50, a monitor has to record at

least a value equal to or greater than

0.125 ppm in order for the number of

expected exceedances to be 1.0 or

greater for determining exceedances of

the one-hour ozone standard. Whether

that monitored value is 0.125 ppm or

0.158 ppm does not matter.

Seven Parts Per Billion (ppb)

Adjustment to Peak Values.

The commenter stated that even if one

assumes that the NOx SIP call will

deliver a 7 ppb ozone reduction in the

peak ozone values the peak ozone

concentration will still be violating the

standard.12 As stated in the preceding

paragraphs, compliance with the

standard is not determined using the

peak value, but whether the standard is

exceeded more than an average of 1.0

times per year when averaged over three

years. EPA disagrees that the peak

monitored data would be the proper

determinant of nonattainment using

such a method. EPA believes that to use

such a method properly the

commenter's assumed adjustment of 7

ppb (0.007 ppm) would have to be

subtracted from all the monitored data

readings to see if a monitor would

record more than three exceedances in

any three year period.

One threshold issue with such a

method is whether one should assume

the same number of daily measurements

in future years as in the past in order to

compute expected number of

exceedances. For example, for the new

monitor at the Equestrian Center in

Prince George's County, Maryland has

provided only 123 days of data for 2002.

Because the reported data covers the

123 days for the months of July through

October, one could reasonably assume

the monitor will be operated over the

entire ozone season in the future. But

such an assumption does not provide

any insight into just how much data

capture one should assign to the

monitor in the future to compute

expected number of exceedances using

appendix H to 40 CR part 50. Likewise,

assumptions have to be made

concerning the number of days assumed

less than the standard when computing

the number of expected exceedances.

Examination of the ozone data for any

time period will show a variation in the

number of monitored exceedances at

12 The commenter submitted the 7 ppb

adjustment to claim that -[e]ven if one were to

assume a 7 ppb reduction in ambient levels from

the NOx SIP call which is near the middle of the

5-10 ppb reduction attributed to the SIP call in the

TSD, the Greenbelt monitor would still be in

violation."

any one monitoring site. For the 1997 to

2002 time period, the only monitors that

have recorded exceedances in every

year since 1997 are the two in Prince

George's County Maryland and both

monitors have shown continual

improvement since 1997. All other

monitors have had years where no

exceedances have been recorded and

years where one or more have been

recorded.

EPA has determined that applying an

assumed 7 ppb adjustment to all of the

1997 to 2002 data would yield no

monitor, for which complete data is

available for the 1997 to 2002 time

period, with more than 3 exceedances

for the three year period ending in 2002.

For those monitors which have data for

only one ozone season for the period

ending in 2002, EPA notes that the 7

ppb adjustment would result in greater

than 1.0 exceedances at the following

two monitors: one monitor in Fairfax

County, Virginia (monitor ID

510591005-1) and one in Prince

George's County, Maryland (monitor ID

240338003-1). However, these monitors

have only one year of data. And the

monitor in Prince George's County

recorded only one exceedance in 2002,

but the number of expected exceedances

for 2002 is 1.7 after applying the

procedures of 40 CFR part 50, appendix

H that account for missing days of data.

EPA has determined that applying a 5

ppb adjustment to all of the 1997 to

2002 data would yield only one

additional monitor (that in Arlington,

Virginia) with more than 3 exceedances

for the three year period ending in 2002.

These results are presented in detail

in the technical support for this final

action.' 3 As noted above, EPA believes

that monitoring data for one year is not

necessarily a good indicator of future

year data. For this reason, EPA believes

this one scintilla of contrary evidence

(which arises from a method that EPA

neither proposed nor endorses) does not

outweigh the preponderance of

evidence supporting EPA's

determination that attainment of the 1-

hour ozone NAAQS will be achieved in

2005.

Monitor Trends.

With regard to the 1999 data, EPA has

determined that the one-hour ozone

NAAQS was violated at six monitors

with three full years of data for 1997 to

13 See section IV. "Regarding Comment on

Number of Exceedance Days and an Air Quality

Adjustment of 7 ppb and Air Quality Trends" to

"First Amendment to Technical Support Document

for Approval and Promulgation of Air Quality

Implementation Plans; District of Columbia,

Maryland, and Virginia; Post-1996 Rate-of-Progress

Plan for the Metropolitan Washington, DC

Nonattainment Area", dated April 10, 2003.

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1999 (inclusive) and at one additional

monitor with two-years of data for 1998

and 1999, not the four monitors

identified in the comments. For the

2002 ozone season, violations were

recorded at seven monitors. One of

these seven has only one full ozone

season (which was 2002) and recorded

two exceedances in 2002 (with the

design value being the second highest

reading which was 137 ppb). Another

one of these seven has data for the last

123 days of the ozone season (July 1,

2003, through October 31, 2003

inclusive). This monitor recorded only

one exceedance, but due to the

adjustment procedure found in 40 CFR

part 50, the number of expected

exceedances is increased to 1.7.

The worst monitor for 1999 had an

annual average of 4.2 expected

exceedances and a design value of 0.132

ppm. By the end of the 2002 ozone

season this monitor had an annual

average of 1.4 expected exceedances and

a design value of 0.128 ppm.

In terms of average number of

expected exceedances, one monitor had

an annual average of 2.7 expected

exceedances based upon the 2002 ozone

data. For 2002, this monitor had a

design value of 0.126 ppm. At the end

of the 1999 this monitor had an annual

average of 1.3 expected exceedances and

a design value of 0.128 ppm.

Since 1999, for the monitors with

more than one season of data, the

average number of expected

exceedances at the worst monitor has

dropped from 4.2 to 2.7 and the design

value has dropped from 132 ppb to 128

ppb.

Comment 3: The commenter alleges

that EPA's refusal to accept UAM results

for the attainment demonstration

conflicts with longstanding Agency

policy, namely, EPA's policy that which

requires the use of the UAM to

demonstrate eligibility for granting

waivers from the NOx requirements

under section 182(f). The commenter

quotes a portion section 2.6.1 of the

NOx Supplement to the General

Preamble. 14 Section 2.6.1 says that

"EPA has determined that, as a

technical matter, photochemical grid

modeling is the only reliable tool to

justify an area-wide exemption from the

NOx requirements (or relaxation of

otherwise required NOx reductions)."

See 57 FR at 55623 (November 30,

1992). The commenter notes that EPA

extended a statutory SIP submittal

deadline to enable states to complete

14 "State Implementation Plans; Nitrogen Oxides

Supplement to the General Preamble for the

Implementation of Title I of the Clean Air Act

Amendments of 1990," 57 FR 55620, November 30,

1992.

crucial UAM modeling. The commenter

concludes with an assertion that EPA is

being inconsistent by allowing

attainment demonstrations to discount

UAM results while requiring adherence

to UAM before NOx waivers can be

granted to limited groups of sources.

Response 3: EPA disagrees with the

comment for several reasons. The

comments ignore the overall context in

which EPA made this one statement in

section 2.6.1, and, specifically, EPA

does not agree that the use of the phrase "photochemical grid modeling is the

only reliable tool" has the meaning

ascribed to it by the commenter when

placed in the context of the original

guidance and subsequent guidance. The

comments also ignore subsequent

guidance issued regarding waivers from

the NOx requirements of section 182(f)

(NOx waivers).

In section 2.6.1, of the NOx

Supplement to the General Preamble,

EPA stated that EPA has determined

that, as a technical matter,

photochemical grid modeling is the only

reliable tool to justify an area-wide

exemption from the NOx requirements

(or relaxation of otherwise required NOx

reductions). We concluded that states

must include in such demonstrations

photochemical grid modeling analyses

that consider various control strategies

with and without NOx reductions. We

stated that for a variety of ozone

nonattainment areas photochemical grid

modeling either has not been utilized

previously or, if utilized, has not

adequately considered the effects of

NOx emission reductions. We

recognized that at that time, while

efforts to conduct photochemical grid

modeling were underway in many

states, the time needed to establish and

implement a modeling protocol and to

interpret the model results will, in a

variety of cases, extend beyond the

November 15, 1992 deadline for

submission of NOx rules.

On December 16, 1993, EPA issued

"Guideline for Determining the

Applicability of Nitrogen Oxides

Requirements under Section 182(f)." In

that guidance EPA expounded upon the

guidance provided in the NOx

Supplement to the General Preamble.

For instance, EPA stated it would allow

grid models other than UAM to be used

for regional scale modeling needed for

the net ozone benefits test in transport

regions. 1 5

Under the "net air quality test", EPA

stated that the primary test should be

15 See Guideline for Determining the

Applicability of Nitrogen Oxides Requirements

under Section 182(f), December 16, 1993, section

7.3.

the effect the exemption would have on

attainment of the primary NAAQS for

the criteria pollutants and that

secondary tests, as needed, can extend

to the (qualitative or quantitative)

consideration of other air quality

impacts that are explicitly recognized in

the CAA. Under this test, an area would

have to make a showing that the area

under consideration clearly does not

need NOx reductions to provide for

attainment to attain any NAAQS.16 This

should be based on a comparison of the

geographic area exposed to

concentrations above the ozone NAAQS

with and without NOx reductions from

the sources concerned or where UAM

results are available, population

exposure to concentrations above or

near the NAAQS may be used instead of

the geographic area exposure factor.

Under the "contribute to attainment

test", EPA stated that the demonstration

must show that additional NOx

reductions would not contribute to

ozone attainment in the area. The

guidance was to model: (1) Substantial

VOC reductions; (2) substantial NOx

reductions; and (3) both the VOC and

NOx reductions. If the attainment

demonstration has not been completed,

such substantial VOC reductions need

not be a level showing attainment if

such reductions are substantial.17 If the

area-wide predicted maximum 1-hour

ozone concentration for each day

modeled under scenario (1) is less than

or equal to that from scenarios (2) and

(3) for the same day, then the area

would be eligible for an exemption from

the section 182(f) requirements.' 8

Under the "net ozone air quality

benefit test", EPA required a

comparison of exposures to ozone

concentrations resulting from: (1)

Substantial VOC reductions; (2)

substantial NOx reductions; and (3) both

the VOC and NOx reductions. If the

attainment demonstration has not been

completed, such substantial VOC

reductions need not be a level showing

attainment if such reductions are

substantial.19 The geographic scope was

all portions of the ozone transport

region in which impacts from NOx

emissions from the area seeking the

exemption can be determined by the

photochemical grid model. Under the

guidance, if the exposure to ozone

concentrations from scenario (1) is less

than or equal to the exposure to ozone

concentrations from scenarios (2) and

(3), then the section 182(f) net ozone

161d., Chapter 3.

17Id., Chapter 8.

13 Id., Chapter 4.

191d., Chapter 8.

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benefits demonstration could be

approved.20

The "contribute to attainment" and

"net ozone benefit" tests described in

preceding paragraphs both require an

area-wide or regional analysis. In such

area-wide/regional analyses, NOx

emission reductions at a large number of

sources are considered. These analyses

are appropriate to determine in a

directional manner whether or not NOx

reductions are expected to be beneficial

with respect to the air quality in the

area/region. These analyses may be less

precise than an attainment

demonstration required under section

182(C).21

Regarding the excess emissions

reductions test, EPA believes that the

excess reductions provision requires a

more precise analysis; specifically an

analysis which is based on the

attainment demonstration. That is, the

excess reductions provision must be

more than a directional finding on an

area-wide basis.22 As discussed

elsewhere in this document in

responses to comment, EPA believes

that the WOE is not an alternative

method or a roll-back analysis, or that

the section 182(c) requirements for the

attainment demonstrations does not

exclude WOE and thus the attainment

demonstration needed to support an

excess emissions waiver could include

the very same WOE analyses used in the

Washington area.

When EPA stated that photochemical

grid modeling was the only reliable tool

we did not mean to confine modeling

exclusively to just UAM. Rather, our

guidance meant to exclude trajectory

based models which lack the necessary

treatment of the physical orientation of

the NOx sources, dispersion of their

plumes and cannot assess whether NOx

control contributes to attainment in all

parts of a nonattainment area because

they address a limited number of

trajectories. 23

The General Preamble specified that

NOx waivers would need to be

supported by photochemical modeling

analyses. The scope of these analyses

was refined in subsequent guidance.

This subsequent guidance specified the

test required under for each of the

different categories of NOx waivers set

by statute. Some of the tests needed for

NOx waivers are only directional in that

one need to make comparisons in the

changes in air pollutant concentrations

due to large VOC-only, NOx-only, and

VOC plus NOx reductions. Some of

20 Id., Chapter 5. 21 Id., Chapter 6.

22 Id., Chapter 6. 23 d., section 7.1.

these comparisons relate to geographic

or population exposures to ozone levels.

The excess emissions reduction test is

tied to the attainment demonstration.

With the exception of the excess

emissions test, the photochemical

analysis for the other tests only has to

show that changes in ozone

concentrations or net air quality benefits

are greater in the absence of specified or

substantial NOx reductions than with

such reductions.24 In all the tests,

except those tied to an area's attainment

demonstration, results from

photochemical modeling one reduction

scenario are compared with modeling

results from different reduction

scenarios. The tests only compare

modeling results. For the tests tied to

the attainment demonstration, EPA

would consider the same WOE analyses

as an attainment demonstration not

related to an exemption from the section

182(f) requirements.

e. Use of MOBILE6.

Comment: The commenter alleges that

it is inappropriate for EPA to

conditionally approve the SIPs based on

modeling conducted with EPA's

MOBILE5 motor vehicle emissions

model now that the MOBILE6 model is

available for use.

Response: The MOBILE6 model was

not available for use at the time these

SIPs were developed. The model is now

available, and EPA guidance issued

with release of the model does indicate

that any new SIP modeling should be

conducted with the new model. The

Washington area jurisdictions had

already completed significant SIP

modeling efforts prior to release of

MOBILE6. EPA's guidance provides that

EPA may continue to approve SIPs

based on MOBILE5 under these

circumstances. See the January 18, 2002

Memorandum titled, "Policy Guidance

on the Use of MOBILE6 for SIP

Development and Transportation

Conformity." As noted in this January

18, 2002 Memorandum, the CAA

requires that SIP inventories and control

measures be based on the most current

information available and applicable

when a SIP is developed. See section

172(c)(3) of the CAA and 40 CFR

51.112(a)(1). However, as noted in the

answer to the first question in this

January 18, 2002 Memorandum, "EPA

believes that the CAA would not require

24 In cases where an area outside the ozone

transport region actually attained the ozone NAAQS

as shown through air quality monitoring data

without the NOx reductions on major stationary

sources required by section 182(f) such areas could

also obtain a NOx waiver. For example, refer to

section 4.4 of Guideline for Determining the

Applicability of Nitrogen Oxides Requirements

under Section 182(f), December 16, 1993.

states that have already submitted SIPs

or will submit SIPs shortly after

MOBILE6's release to revise these SIPs

because a new motor vehicle emissions

model is now available." This concept

was reiterated in the notice of

availability, which was published in the

Federal Register on January 29, 2002

(67 FR 4254), that announced the

approval and availability of MOBILE6

for use in SIPs and conformity

determinations. Use of the MOBILE6

model for SIP development was not

allowed before the January 29, 2002,

notice of availability. Since the

Washington area attainment

demonstration was submitted in

February 2002, and the mobile source

modeling was performed prior to that

date, MOBILE5 had to be used.

It should also be noted that at the time

of the development of the Washington

area attainment demonstration changes

were being made to the various draft

versions of the MOBILE6 model as

problems were detected in testing the

drafts. Since the MOBILE6 model was

not available when the SIPs for the

Washington area was developed EPA

concludes that it was appropriate to

develop the SIP with the MOBILE5

model.

Furthermore, the States have

committed not only to conduct further

modeling reanalyses with the MOBILE6

model, but also to revise the attainment

demonstration as necessary to

demonstrate timely attainment with the

new model, including any necessary

additional control measures. EPA

believes that in this case it is

appropriate to conditionally approve the

SIPs.

With respect to the commenter's

criticism of MOBILE5 modeling, we

believe that this modeling is not nearly

so inaccurate or outdated as the

commenter suggests. MOBILE5

modeling provides the best estimate of

mobile source emissions that was

available at the time the SIPs were

developed. Soon the States will be

reanalyzing mobile emissions with the

improved MOBILE6 model and

offsetting any additional emissions

projected with the new model as

necessary to provide for attainment.

The commenter further argues that

because the States had previously

committed to update the mobile

modeling with MOBILE6 by this past

January, it is arbitrary for EPA now to

accept commitments from the States to

complete this effort by April 2004.

However, the SIPs in which the States

had committed to complete these

reanalyses were vacated by the Court of

Appeals in response to litigation

initiated by the commenter, and the

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States reasonably interrupted their work

updating the modeling to consider the

court's opinion and determine the

appropriate route to developing an

approvable SIP. Now the States have

committed not only to update the

mobile modeling as they had previously

planned to do by this year, but also to

revise the attainment demonstration as

a whole, including adoption of any

necessary additional control measures

to assure timely attainment. As

indicated in their commitment letters,

the States believe that this much more

significant effort will take until April

2004. The commenter correctly points

out that the States have already done

preliminary new model runs with the

MOBILE6 model, and thus that they

might not need until April 2004 to

complete the new mobile modeling.

However, the completed mobile

modeling is only preliminary and only

includes the mobile model runs with

MOBILE6. The States have not even

completed preliminary work on revising

the attainment demonstration as a

whole, nor the adoption of any

additional control measures they might

ultimately conclude appropriate to

provide for timely attainment. All of

this additional work is necessary to

honor the recent commitments, and the

States believe it will take them until

April to complete that work.

f. Contingency Measures.

Comment: The commenter asserts that

the SIPs do not provide contingency

measures to make up for any emission

reduction shortfall, either in

achievement of ROP milestones or for

failure to attain, as required by sections

172(c)(9) and 182(c)(9) of the Clean Air

Act.

Response: EPA acknowledges that the

SIPs do not yet contain all of the

required contingency measures,

however, EPA is not fully approving the

attainment demonstration and ROP plan

for the Washington area. Rather, as

discussed previously in this document,

EPA is conditionally approving these

SIP revisions pursuant to section

110(k)(4) of the CAA which specifically

authorizes this action. One of the

conditions for approval is submittal of

appropriate contingency measures.

Section 110(k)(4) specifically allows the

approval of commitments under certain

circumstances. For the reasons set forth

elsewhere in this document including

those in response to other comments

(including those responses to comments

that claim the severe area SIP elements

are past due and claim conditional

approval is not permissible), EPA

believes that a conditional approval

including conditions requiring

submittal of contingency measures is

permissible in this case.

3. Comments Relating to Rate-ofProgress

a. Post-1999 Progress.

Comment: The commenter

incorporates by reference previous

comments regarding ROP submitted to

EPA on December 13, 2002, asserting

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

mandates post-1999 ROP even for

serious areas and that the submittal

deadline for this SIP was November 15,

1994. The commenter then concludes

that the EPA has no authority to extend

the deadline for the submittal of the

post-1999 portion of the ROP plan for an

area that is later reclassified to severe

because the statutory due date of

November 15, 1994 is past. New

comments by this same commenter

assert that we cannot approve the 1996-

1999 plan because the plan lacks the

requisite 3 percent reduction per year

(averaged over consecutive three-year

periods) ROP demonstration for years

between 1999 to the attainment date of

2005. Furthermore, the commenter

argues that the CAA required serious

and above areas to submit a single ROP

plan by November 15, 1994

demonstrating a 3 percent reduction per

year (averaged over consecutive threeyear periods) after November 15, 1996

until the attainment date. The

commenter asserts that the Court of

Appeals has ruled in Sierra Club, supra,

that EPA had no authority to approve

the SIPs for the Washington area in the

absence of the ROP plan covering the

period November 15, 1999 through

November 15, 2005.

Response: EPA does not agree that the

post-1999 portion of the ROP plan is

past-due in a serious area once such

serious area is reclassified to severe

nonattainment. EPA's exercise of

discretion under section 182(i) to adjust

the submission deadline for the post1999 portion of the ROP plan

requirements, which only became

applicable to the Washington area for

the first time upon the effective date of

the area's reclassification on March 25,

2003, is not arbitrary or capricious, and

is in keeping with the terms and

purpose of the statute.

Section 182(i) states that the

Administrator may adjust applicable

deadlines (other than attainment dates)

to the extent such adjustment is

necessary or appropriate to assure

consistency among the required

submissions of new requirements

applicable to an area which has been

reclassified. Where a submission date

has passed and is therefore impossible

to meet, EPA has concluded that the

Administrator may establish a later date.

EPA has applied this interpretation in

its prior reclassification rulemaking

actions. See Santa Barbara, California,

(62 FR 65025, December 10, 1997);

Phoenix, Arizona (62 FR 60001,

November 6, 1997); and Dallas-Fort

Worth, Texas (63 FR 8128, February 18,

1998).

The structure of the Clean Air Act

itself reinforces this interpretation.

Under the Act, the original dates for

submissions for areas initially classified

as serious, severe, and extreme areas

was, as the commenter points out, 1994.

The attainment date for serious areas is

1999. Thus, the Act does not require

EPA to make a determination of whether

or not a serious area met its 1999

attainment deadline until more than five

years after the original submission date

for areas originally classified as severe.

Since the original 1992, 1994 and 2000

statutory deadlines have elapsed, it is

impossible for EPA to establish any of

these as the submission deadline for a

newly reclassified area.

EPA has determined that in light of

the fact that the original submission

dates for severe areas have elapsed prior

to the time that we issued the

reclassification for the Washington area,

it is a reasonable exercise of EPA's

discretion to adjust the applicable

submission deadlines in order to ensure

consistency among the new

requirements. Because it is impossible

for the States to meet long-expired

deadlines, EPA must set new deadlines

that will ensure consistency of

submissions for requirements that the

state is only recently being notified that

it must meet. This is entirely in keeping

with the discretion that Congress

accorded EPA in section 182(i), and

with EPA's prior reclassification

rulemakings making appropriate

adjustments to submission deadlines.

Because the States must now meet

newly imposed requirements such as

post-1999 ROP and additional severe

area control requirements, EPA must set

prospective submission dates, and has

authority under section 182(i) to make

these dates consistent.

To interpret the Clean Air Act as the

commenter suggests would give the

reclassification retroactive effect by

holding the States in default of their

submission obligations before the event

necessary to trigger that obligation

(reclassification) has occurred. Until

EPA reclassified the Washington area

effective March 25, 2003, the States

were under no obligation to make the

required submissions. To subject them

to a lapsed deadline after

reclassification would be patently unfair

and contrary to the statute's intent.

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Giving the submission deadlines

retroactive effect would also be

inconsistent with the Administrative

Procedure Act, 5 U.S.C. 553(d), which

requires that before a rule takes effect,

persons affected will have advance

notice of its requirements. A failure to

meet an obligation, especially one

accompanied by sanctions, cannot occur

in advance of the imposition of that

obligation. The obligation to submit

requirements to meet the severe area

classification did not exist for the

Washington area prior to the final action

that reclassifies the area. Giving

retroactive effect to the old SIP

submission deadlines would also

preclude EPA from exercising the

discretion with respect to setting the

deadlines for these submissions that is

specifically afforded by section 182(i).

In Sierra Club v. Whitman, 130 F.

Supp.2d 78 (D.D.C. 2001), aff'd, 285

F.3d 63 (D.C. Cir. 2002), a case

involving the reclassification of the St.

Louis nonattainment area, the District

Court refused to interpret the

reclassification provisions as

authorizing relief that would treat

submission deadlines as having lapsed

prior to EPA having issued a

reclassification rulemaking. The court

stated that such an interpretation "could

'create * * * an injustice at the hands

of the court itself.'" 130 F. Supp.2d at

94. Such relief "could throw the [area]

into extreme noncompliance." Id. The

court refused to impose such relief

when it "could effectively penalize the

state and local entities that are required

to comply with EPA findings." Id. In the

St. Louis case, the Sierra Club

demanded not only retroactive

reclassification, but also demanded that

the district court declare that "the State

of Missouri has failed to file a SIP

revision that comports with the

requirements of section 7511a(c) by the

statutory deadline of May 15, 1998," id.

at 87, a date that had long since passed.

The district court refused to do so,

recognizing that this would unfairly

penalize the States, which are entitled

to rely on EPA's actions in anticipating

the burdens that will be imposed

pursuant to the CAA. Imposition of

sanctions would also have unfair

adverse consequences for emissions

sources.

The Court of Appeals upheld the

District Court's ruling. "In any event,

what Sierra Club sought-to have the

effective date of EPA's court-ordered

determination converted to the date the

statute envisioned, rather than the

actual date of EPA's action-was a form

of relief the district court quite properly

rejected." Sierra Club v. Whitman, 285

F.3d 63, 68 (D.C. Cir. 2002). The Court

of Appeals continued: "Although EPA

failed to make the nonattainment

determination within the statutory time

frame, Sierra Club's proposed solution

only makes the situation worse.

Retroactive relief would likely impose

large costs on the States, which would

face fines and suits for not

implementing air pollution prevention

plans in 1997, even though they were

not on notice at the time." Id. See also

NRDCv. EPA, 22 F.3d 1125 (D.C. Cir.

1994).

EPA acknowledges that it cannot fully

approve an attainment demonstration

that has an outside attainment date of

November 15, 2005, for the Washington

area in the absence of a demonstration

of ROP after 1999. See Sierra Club v.

Whitman, 294 F.3d 155, 163 (D.C. Cir.

2002) ("[W]ith an attainment date in

2005, 'the rate-of-progress plan for the

Washington area had to demonstrate a

9% reduction in emissions from 1996 to

1999, another 9% from 1999 to 2002,

and another 9% from 2002 to 2005' ").

However, EPA believes that in the

current circumstances where the States

for an area that has been recently

reclassified to severe have submitted the

1996-1999 ROP plan through the 1999

milestone year and an attainment

demonstration for 2005 in advance of

the date set forth in the final

reclassification rule, EPA can issue a

conditional approval of the attainment

demonstration if EPA has a commitment

from the States to submit the 1999-

2005 ROP plan by April 2004. EPA

believes this does not contravene the

Circuit Court's rulings and does not

produce the absurd result of retroactive

application of requirements and

inconsistencies with the Administrative

Procedure Act, 5 U.S.C. 553(d)

discussed in the preceding paragraphs.

On April 7 and 8, 2003, EPA received

commitments from the States to submit

by April 17, 2004, all of the elements,

including the post-1999 ROP plan,

required for a severe area SIP and EPA

is conditionally approving the SIP

revisions listed in Tables 1 and 2 in

section I of this document based upon

the conditions that the States submit all

the severe area SIP elements. These are

the same elements needed to fulfill the

new severe area requirements that

became applicable to the area when the

area was reclassified on March 25, 2003,

(68 FR 3210, January 24, 2003).

b. POP and MOBILE6.

Comment: The commenter asserted

that because the 1996-1999 ROP plan

does not account for MOBILE6

modeling EPA cannot approve the

1996-1999 ROP plan even with respect

to the 1999 milestone year. The

commenter claimed that initial

MOBILE6 results are significantly

higher than that in the plan and that

EPA must first evaluate the impact of

the MOBILE6 results on the required

level of reductions to determine if the

plan achieves that level of reduction.25

Response: EPA acknowledges that

emissions factors, as well as inventory

calculation methodologies, are

continually being improved. In general,

EPA has not required changes to

submitted SIPs that result from changes

in factors and methodologies that occur

after the SIP is submitted. With respect

to the 15 percent plan due in November

1993, in section 2.4 of "Guidance on the

Adjusted Base Year Emissions Inventory

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

EPA stated: "If other significant changes

occur in emissions factors or

methodologies before which time it is

impossible for states to make

adjustments to their 15 percent

calculations and associated control

strategies, then EPA may require states

to make corrections to the base year

emissions inventory, as well as to the

adjusted base year inventory and the

1996 target level of emissions." This

guidance discussed the then pending

transition from the MOBILE4.1 model to

the MOBILE5 model but only

prospectively, by requiring that

emissions values calculated using

MOBILE4.1 would have to be

recalculated using MOBILE5 before

submittal of the final rate-of-progress

plan in November 1993.

Likewise with respect to the 1996-

1999 plan, EPA has advised the states

when changes in emissions factors or in

methodologies for developing emissions

inventories would force revisions to the

inventories or plans. Changes would be

necessary if they occurred before the

plan was submitted. "However, if such

changes occur after November 15, 1991,

but prior to November 15, 1994, a

serious or above area may be required to

make corrections to the base year

inventory and attainment year

projection inventory for purposes of

developing the 3 percent rate-ofprogress demonstration. If such changes

occur after November 15, 1994, EPA

will advise on when it would be

appropriate for the states to make

corrections in future supplements to

this General Preamble." 57 FR at 13517

(April 16, 1992).

EPA established a policy to require

that certain attainment demonstrations

25 The comments referenced a Meeting Notice for

the February 27, 2003 Meeting Notice of the

Metropolitan Washington Air Quality Committee

and provided the comments solely by reference to

its URL (http://www.mwcog.orgluploadsleventdocumentslWVk2003O227111708.pdfl.

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and maintenance plans be revised using

the then-forthcoming MOBILE6

model.26 EPA required states that relied

upon benefits from the Tier 2/Sulfur

final rule for attainment or maintenance

to commit to revise the applicable

budgets using MOBILE6 in order for

EPA to approve the SIP. However, the

1996-1999 ROP plan for the 1999

milestone year for the Washington area

does not take credit for benefits from the

Tier 2 motor vehicle standards and thus

this guidance is not applicable.

EPA has established policy and

guidance for when SIPs must be

prepared using MOBILE6.27 EPA

believes that the Clean Air Act would

not require states that have already

submitted SIPs or will submit SIPs

shortly after MOBILE6's release to revise

these SIPs simply because a new motor

vehicle emissions model is now

available. EPA believes that this is

supported by existing EPA policies and

case law. See, e.g., Delaneyv. EPA, 898

F.2d 687 (9th Cir. 1990). Of course,

states can choose to use MOBILE6 in

these SIPs, for example, if it is

determined that future conformity

determinations would be ensured

through such a SIP revision.

EPA does not believe that the State's

use of MOBILE5 should be an obstacle

to EPA approval for reasonable further

progress, attainment, or maintenance

SIPs that do not include Tier 2 sulfur

rule reductions that have been or will

soon be submitted based on MOBILE5,

assuming that such SIPs are otherwise

approvable and significant SIP work has

already occurred (e.g., attainment

modeling for an attainment SIP has

already been completed with

MOBILE5). It would be unreasonable to

require the States to revise these SIPs

with MOBILE6 since significant work

has already occurred, and EPA intends

to act on these SIPs in a timely manner.

The ROP plan for 1999 was prepared

and submitted well before MOBILE6

was released. The 1996-1999 ROP plan

for the 1999 milestone year was

prepared using the most current model,

MOBILE5b, available at the time the SIP

was prepared.

To act as the commenter suggests

would be to purposelessly contradict

EPA's long established policies and

26 Memorandum, "1-Hour Ozone Attainment

Demonstrations and Tier 2/Sulfur Rulemaking"

from Lydia Wegman, Office of Air Quality Planning

and Standards and Merrylin Zaw-Mon, Office of

Mobile Sources to the Air Division Directors,

Regions I-VI, issued November 8, 1999.

27 Memorandum from John S. Seitz and Margo

Tsirigotis Oge entitled "Policy Guidance for the Use

of MOBILE6 in SIP Development and

Transportation Conformity," issued January 18,

2002.

guidance provided to the states with

respect to us of new models.

As explained in a previous response,

EPA does not agree that the 1996-1999

ROP plan for the Washington area had

to include any post-1999 reductions

until after the area was reclassified to

severe nonattainment. As explained in

the notice of proposed rulemaking for

that action, EPA stated that the post1999 portion of the ROP requirement

will be developed using MOBILE6 in

accordance with our existing policy 28

for newly developed SIPs. See 67 FR at

68611, November 13, 2002. We did not

modify this requirement in the final

action.

Furthermore, the MOBILE6 model

was not available for use at the time

these 1996-1999 ROP SIPs were

developed. Also, for the same reasons,

relating to the availability of the

MOBILE6 model in relation to the date

the 1996-1999 ROP was submitted, that

were presented in section III.A.2e, EPA

disagrees with these comments relating

to MOBILE6 and the 1996-1999 ROP

plan.

4. Severe Area SIP Requirements

Comment: The commenter claims that

EPA cannot approve these SIP revisions

because these revisions do not cover all

of the required severe area SIP

components and that EPA must

therefore disapprove these SIP

revisions.

Response: EPA agrees that we cannot

fully approve these SIP revisions.

However, EPA believes that to

disapprove these SIP revisions because

the States did not submit all the severe

area SIP elements that became

applicable after these SIP revisions were

submitted would lead to the same

absurd results and problems with

retroactivity and to the same conflicts

with the Administrative Procedure Act

and CAA that were discussed

previously with respect to the post-1999

rate-of-progress requirements.

EPA is not fully approving the

attainment demonstration and ROP plan

for the Washington area. Rather, as

discussed previously in this document,

EPA is conditionally approving these

SIP revisions pursuant to section

110(k)(4) of the CAA which specifically

authorizes this action. Section 110(k)(4)

specifically allows the approval of

commitments under certain

circumstances. For the reasons set forth

elsewhere in this document including

those in response to other comments,

28 Memorandum from John S. Seitz and Margo

Tsirigotis Oge entitled "Policy Guidance for the Use

of MOBILE6 in SIP Development and

Transportation Conformity," issued January 18,

2002.

EPA believes that a conditional

approval is permissible because EPA

received commitments on April 7 and 8,

2003 from the Washington area

jurisdictions to submit by April 17, 2004

revisions to the SIP that:

(A) Revise the 1996-1999 portion of

the severe area ROP plan to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the required 9 percent rate-ofprogress reductions by November 15,

1999.

(B) Revise the severe area ROP to

provide emission reductions of ozone

precursors of at least 3 percent per year

from November 15, 1999 to the

November 15, 2005 severe ozone

attainment date.

(C) Revise the severe area ROP plan to

include a contingency plan containing

those adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the ROP reductions required for

the post-1999 period.

(D) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999.

(E) Update the Washington area

severe attainment demonstration to

reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

(F) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

measures to be implemented if the

Washington area does not attain the

one-hour ozone standard by November

15, 2005.

(G) Revise the Washington area severe

attainment demonstration to include a

revised RACM analysis and any

revisions to the attainment

demonstration including adopted

control measures, as necessitated by

such analysis.

(H) Revise the major stationary source

threshold to 25 tons per year.

(I) Revise Reasonably Available

Control Technology (RACT) rules to

include the lower major source

applicability threshold.

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(J) Revise new source review offset

requirements to require an offset ratio of

at least 1.3 to 1.

(K) Submit as part of the SIP a fee

requirement for major sources of volatile

organic compounds (VOC) and nitrogen

oxides (NOx) should the area fail to

attain by November 15, 2005.

(L) Include as part of the SIP a

revision that identifies and adopts

specific enforceable transportation

control strategies and transportation

control measures to offset any growth in

emissions from growth in vehicle miles

traveled or number of vehicle trips and

to attain reductions in motor vehicle

emissions as necessary, in combination

with other emission reduction

requirements in the Washington area, to

comply with the ROP requirements for

severe areas. Measures specified in

section 108(f) of the Clean Air Act will

be considered and implemented as

necessary to demonstrate attainment.

These required submittals are the

same elements needed to fulfill the new

severe area requirements that became

applicable to the area when the area was

reclassified on March 25, 2003, (68 FR

3210, January 24, 2003).

5. Alternative Proposal and Protective

Finding

Comment: The commenter supports

EPA's proposal in the alternative to

disapprove attainment demonstration

SIPs for the Washington area, but

questions the proposal to issue a

protective finding under EPA's

transportation conformity regulations

should EPA proceed with a final

disapproval of the SIPs.

Response: EPA has concluded that a

conditional approval is appropriate in

this case and therefore will not be

issuing a final disapproval nor a

protective finding on the attainment

demonstrations for the Washington area.

Therefore, any comments relating to the

proposed protective finding are not

germane to this final action and EPA

will not be responding to any such

comments in this final action.

B. Comments Made on the Proposed

Reclassification

On March 5, 2003, we received a

comment letter submitted by the Sierra

Club incorporating by reference their

comments submitted on December 13,

2002, relating to the proposed

reclassification of the Washington area

to severe nonattainment (67 FR 68805,

November 13, 2002). To the extent that

these comments are germane to the

current action we incorporate by

reference our responses to the

comments on these issues found in our

final rule published January 24, 2003

(see 68 FR at 3412-3421) as

supplemented by the response to

comment found in this final rule.

C. Comments Made Regarding

Adequacy of Motor Vehicle Emissions

Budgets

On March 5, 2003, we received a

comment letter submitted by the Sierra

Club incorporating by reference their

comments submitted on September 9,

2002, and on February 14, 2000, that

related to the adequacy of the motor

vehicle emissions budgets in the 1996-

1999 ROP plan and the attainment

demonstration.

Comment: We received a number of

comments about the process and

substance of EPA's review of the

adequacy of motor vehicle emissions

budgets for transportation conformity

purposes. We also received comments

asserting that EPA should not find the

budgets adequate because EPA is

plainly obligated to disapprove the

attainment SIP because: (1) The budgets

are based on a 2005 attainment date,

rather than the area's then current

attainment date of 1999; (2) the budgets

do not necessarily reflect all RACM; (3)

there are no budgets corresponding to

the post-1999 rate-of-progress

requirement; (4) the SIP lacks

contingency measures; (5) the budgets

do not reflect the potential that the

budgets will be further tightened as a

result of severe area SIP requirements;

(6) the attainment demonstration is

flawed due to the use of the weight of

evidence approach; and (7) the budgets

were developed using the MOBILE5

model.

Response: In the notice of proposed

rulemaking EPA proposed to

conditionally approve the attainment

demonstration and ROP SIP revisions

and did not propose to find the budgets

adequate. EPA is conditionally

approving the motor vehicle emissions

budgets rather than making an adequacy

determination. Therefore, comments

relating to adequacy of budgets are not

germane to this rulemaking. To the

extent comments are germane to

conditional approval of the SIPs, EPA

addresses them elsewhere in this notice

in response to comments on various

aspects of the plans.

D. Comments Relating to Supplemental

Information To Support Proposed

Approvals of One-Hour Ozone

Attainment Demonstrations for Serious

Ozone Nonattainment Areas

On March 5, 2003, we received a

comment letter submitted by the Sierra

Club incorporating by reference their

comments submitted on November 15,

2000, relating to EPA's proposed

"Supplemental Information to Support

Proposed Approvals of One-Hour Ozone

Attainment Demonstrations for Serious

Ozone Nonattainment Areas" (65 FR

61134, October 16, 2000) relating to

RACM requirements.

These comments are not germane to

this action because EPA is not relying

upon the supplemental information to

show that the RACM requirement has

been fulfilled.

E. Prior Comments on the Approvability

of the Attainment and Rate-of-Progress

Plans

On March 5, 2003, we received a

comment letter submitted by the Sierra

Club incorporating by reference their

comments submitted on February 14,

2000, October 30, 2000, and November

20, 2000 relating to the approval of the

attainment demonstration and ROP

plans.

1. Comments Relating to Extension of

the Attainment Date to November 15,

2005

We received comments objecting to

EPA's attainment date extension policy

(a memorandum "Extension of

Attainment Dates for Downwind

Transport Areas" issued July 16, 1998),

and to application of the extension

policy to the Washington area. These

comments are not germane to this action

because EPA is not applying the

extension policy to the area but rather

has extended the attainment date to

November 15, 2005, by reclassifying the

area to severe nonattainment (see 68 FR

3410, January 24, 2003).

2. Motor Vehicle Emissions Inventory

Comment: We received comments

stating that the motor vehicle emissions

inventory is not current, particularly

with respect to the fleet mix.29 The

comments stated that the fleet mix does

not accurately reflect the growing

proportion of sport utility vehicles and

gasoline trucks, which pollute more

than conventional cars. In the February

14, 2000 comment letter, we received

comments asserting that EPA looks only

at those "weights" that favor a finding

of attainment and specifically identified

the changing fleet mix. We also received

comments asserting that the Maryland

and Virginia attainment and 1996-1999

ROP plans are flawed because they

assume a fleet mix that does not

accurately reflect the growing

proportion of sport utility vehicles and

gasoline trucks. The comments cite data

from the Maryland Department of the

29 These comments were contained in the

February 14, 2000, October 30, 2000, and November

20, 2000, letters.

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Environment for 1996 and 1999. The

comments further assert that EPA and

the States have not followed a

consistent practice in updating SIP

modeling to account for changes in

vehicle fleets. The comments also assert

that EPA cannot rationally approve SIPs

that are based on such materially

inaccurate assumptions; that continued

use of out-dated assumptions is

inconsistent with the duty imposed by

Clean Air Act section 182(a)(3) to

triennially update the emission

inventory; and that if the motor vehicle

inventory has not been updated to

prepare the current SIP submission, it

should be disapproved.

Response: All of the SIPs on which

we are taking final action are based on

the most recent vehicle registration data

available at the time the SIP was

prepared. The SIPs use the same vehicle

fleet characteristics that were used in

the most recent periodic inventory

update at the time the SIP was prepared.

The Metropolitan Washington, DC

Ozone Nonattainment Area SIP is based

on vehicle registration data from 1996,

which was the most recently available

data at the time the SIP was prepared

and submitted. Clearly the 1999 data

could not have been used in motor

vehicle emissions projections prepared

in the fall of 1998 as documented in

Appendix D of the SIP. EPA requires the

most recent available data to be used,

but we do not require it to be updated

on a specific schedule. Therefore,

different SIPs base their fleet mix on

different years of data. Our guidance

does not suggest that SIPs should be

disapproved on this basis. Further, EPA

does not require states to go back and

re-analyze SIP submissions if new data

becomes available shortly before EPA

takes final action on the SIP.

Nevertheless, we do expect that

revisions to these SIPs that will be

submitted using MOBILE6 (as required

in those cases where the SIP is relying

on emissions reductions from the Tier 2

standards) will use updated vehicle

registration data appropriate for use

with MOBILE6, whether it is updated

local data or the updated national

default data that will be part of

MOBILE6. EPA is requiring the

Washington area States to revise the

attainment budgets using MOBILE6

pursuant to the commitments for

conditional approval submitted by the

States. The revised budgets must

include the most recently available fleet

information at the time the budgets are

revised.

In addition, we incorporate by

reference our responses to comments on

these issues found in section II.H (see 66

FR at 614) and in response 20 of section

X. (see 66 FR at 630 ) of our final rule

published January 3, 2001.

3. Credit for National Measures

Comment 1: We received comments

stating that states should not be given

credit for measures that are not fully

implemented. For example, the States

are being given full credit for Federal

coating, refinishing and consumer

product rules that have allegedly been

delayed or weakened.

Response 1: On September 11, 1998,

EPA promulgated three major

regulations to reduce VOC emissions

from covering three major categories of

consumer and commercial products.

The first rule covers 61 categories of

architectural and industrial

maintenance (AIM) coatings. The

second rule covers 24 consumer product

categories such as air fresheners,

automotive windshield washer fluid,

"household" adhesives, cleaners and

polishes, hair care products, cleanser,

underarm aerosol antiperspirants,

insecticides and charcoal lighting fluids.

The third rule covers seven categories of

automobile refinishing (autobody

refinishing) coatings and coating

components; automobile refinishing is

the process of coating automobiles or

parts thereof, including partial body

collision repairs, that is subsequent to

the original coating applied at an

automobile original equipment

manufacturing plant.

Architectural and Industrial

Maintenance (AIM) Coatings

On March 22, 1995 EPA issued a

memorandum 30 that provided that

states could claim a 20 percent

reduction in VOC emissions from the

AIM coatings category in ROP and

attainment plans based on the

anticipated promulgation of a national

AIM coatings rule. In developing the

attainment and ROP SIPs for their

nonattainment areas, states relied on

this memorandum to estimate emission

reductions from the anticipated national

AIM rule. EPA promulgated the final

AIM rule in September 1998, codified at

40 CFR part 59, subpart D. In the

preamble to EPA's final AIM coatings

regulation, EPA estimated that the

regulation will result in a 20 percent

reduction of nationwide VOC emissions

from AIM coatings categories (63 FR

48855, September 11, 1998). The

estimated VOC reductions from the final

AIM rule resulted in the same level as

30 "Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rules,"

March 22, 1995, from John S. Seitz, Director, Office

of air Quality Planning and Standards to Air

Division Directors, Regions I-X.

those estimated in the March 1995 EPA

policy memorandum. In accordance

with EPA's final regulation, States have

correctly assumed a 20 percent

reduction from AIM coatings source

categories in its attainment and ROP

plans. The basis for the 20 percent

reductions achieved by the final rule is

documented in the rulemaking docket

for the AIM coatings final rule in a

memorandum "VOC Emissions

Reductions from the Final National

Architectural Coatings Rule" from Chris

Sarsony, ERG, to Linda Herring, U.S.

EPA, dated July 27, 1998 (docket A-92-

18, item number IV-B-2).

In accordance with EPA's final

regulation, the States have assumed a 20

percent reduction from AIM coatings

source categories in their attainment

and ROP plans. AIM coatings

manufacturers were required to be in

compliance with the final regulation

within one year of promulgation, except

for certain pesticide formulations which

were given an additional year to

comply. Thus all manufacturers were

required to comply, at the latest, by

September 2000. Industry confirmed in

comments on the proposed AIM rule

that 12 months between the issuance of

the final rule and the compliance

deadline would be sufficient to "use up

existing label stock" and "adjust

inventories" to conform to the rule (63

FR 48848, September 11, 1998). In

addition, EPA determined that, after the

compliance date, the volume of

nonconforming products would be very

low (less than one percent) and would

be withdrawn from retail shelves

anyway. Therefore, EPA believes that

compliant coatings were in use by the

Fall of 1999 with full reductions to be

achieved by September 2000 and that it

was appropriate for the States to take

credit for a 20 percent emission

reduction in their SIPs.

Autobody Refinish Coatings Rule

Consistent with a November 27, 1994

EPA policy,3l many states claimed a 37

percent reduction from this source

category based on a proposed rule.

However, EPA's final rule, "National

Volatile Organic Compound Emission

Standards for Automobile Refinish

Coatings," published on September 11,

1998 (63 FR 48806), did not regulate

lacquer topcoats and will result in a

smaller emission reduction of around 33

percent overall nationwide. The 37

percent emission reduction from EPA's

31 "Credit for the 15 Percent Rate-of-Progress

Plans for Reductions from the Architectural and

Industrial Maintenance (AIM) Coating Rule and the

Autobody Refinishing Rule," November 29, 1994,

John S. Seitz, Director OAQPS, to Air Division

Directors, Regions I-X.

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proposed rule was an estimate of the

total nationwide emission reduction.

Since this number is an overall national

average, the actual reduction achieved

in any particular area could vary

depending on the level of control which

already existed in the area. For example,

in California the reduction from the

national rule is zero because California's

rules are more stringent than the

national rule. In the proposed rule, the

estimated percentage reduction for areas

that were unregulated before the

national rule was about 40 percent.

However as a result of the lacquer

topcoat exemption added between

proposal and final rule, the reduction is

now estimated to be 36 percent for

previously unregulated areas. Thus,

most previously unregulated areas will

need to make up the approximately 1

percent difference between the 37

percent estimate of reductions assumed

by states, following EPA guidance based

on the proposal, and the 36 percent

reduction actually achieved by the final

rule for previously unregulated areas.

Both the District and Virginia claimed

35.7 percent credit in their attainment

and ROP plans while Maryland claimed

45 percent. EPA's final estimate of the

reduction potential of the final rule was

spelled out in a September 19, 1996

memorandum entitled "Emissions

Calculations for the Automobile

Refinish Coatings Final Rule" from

Mark Morris to Docket No. A-95-18.

Since the District and Virginia did not

claim more than the reduction provided

in the final rule, there is no shortfall in

the reductions claimed for this category.

Regarding the basis for approving

Maryland's 45 percent reductions from

the autobody refinishing rule, we

incorporate by reference our responses

to the comments on this issue found in

response 18 of section II.X of our final

rule published January 3, 2001 (see 66

FR at 629).

Consumer Products Rule

Consistent with a June 22, 1995 EPA

guidance,32 the states claimed a 20

percent reduction from this source

category based on EPA's proposed rule.

The final rule, "National Volatile

Organic Compound Emission Standards

for Consumer Products," (63 FR 48819,

September 11, 1998), has resulted in a

20 percent reduction after the December

10, 1998 compliance date. Moreover,

these reductions largely occurred by the

Fall of 1999. In the consumer products

rule, EPA determined, and the

32 "Regulatory Schedule for Consumer and

Commercial Products under section 183(e) of the

Clean Air Act," June 22, 1995, John S. Seitz,

Director OAQPS, to Air Division Directors, Regions

I-X.

consumer products industry concurred,

that a significant proportion of subject

products have been reformulated in

response to state regulations and in

anticipation of the final rule (63 FR

48819). That is, industry reformulated

the products covered by the consumer

products rule in advance of the final

rule. Therefore, EPA believes that

complying products in accordance with

the rule were in use by the Fall of 1999.

It was appropriate for the states to take

credit for a 20 percent emission

reduction for the consumer products

rule in their SIPs.

We also incorporate by reference our

responses to the comments on these

issues found in section II.J. See 66 FR

at 614, and responses 10 to 15 of section

II.X of our final rule published January

3, 2001, see 66 FR at 626-628 as

supplemented by the response to

comment found in this final rule.

Comment 2: We received comments

asserting that because the final national

rules for autobody refinishing, surface

coatings and consumer products allow

for exemptions or variances, EPA cannot

grant any emission reduction credit at

all because the Clean Air Act does not

allow EPA to credit state or national

measures with emission reductions

when emission limits are subject to

waiver at any time. The comments

further assert that because the tonnage

exceptions and exceedance fee

provisions or variance provisions in the

rules are not limited to a specific

tonnage figure at all the rules place no

cap on the use of these provisions and

thus assert in the absence of such caps,

EPA cannot rationally or lawfully grant

emission reduction credit for these

rules.

Response 2: We incorporate by

reference our responses to the

comments on these issues found in

section II.J. See 66 FR at 614 and

response 10 of section II.X of our final

rule published January 3, 2001, see 66

FR at 626, as supplemented by the

response to comment found in this final

rule.

Comment 3: We received comments

asserting that the proposed rulemakings

used estimates from the proposed rather

than the final rulemakings for autobody

refinishing, consumer products, and

architectural and industrial

maintenance coatings as a basis for

approving the States' reduction claims.

The comments allege that the final rules

for autobody refinishing, consumer

products, and architectural and

industrial maintenance coatings are

weaker in a number of respects than the

proposed rules for autobody refinishing,

consumer products, and architectural

and industrial maintenance coatings.

Response 3: As stated in response to

a prior comment, while it is true that the

states in many cases estimated the

benefits based upon the proposed rules

in some of their SIP revisions, these

estimates are fully in line with the

benefits that have accrued from the final

rules.

We incorporate by reference our

responses to the comments on these

issues found in section II.J. See 66 FR

at 614 and response 11 of section II.X of

our final rule published January 3, 2001,

see 66 FR at 626, as supplemented by

the response to comment found in this

final rule.

Comment 4: We received comments

asserting that for the architectural and

industrial maintenance (AIM) coatings

rule, the limits on a number of coatings

were changed between the proposal and

final rule either directly, or by

establishing new subcategories with

higher VOC limits. The comments assert

that the effects of these changes and

other changes is not documented

precisely how those changes justify the

claimed emission reduction credit. The

comments further state that EPA does

not show how the effects of these were

reflected in the final percentage

reduction estimate EPA is allowing

states to claim from the rule.

Response 4: We incorporate by

reference our responses to the

comments on these issues found in

response 12 of section II.X of our final

rule published January 3, 2001. See 66

FR at 627, supplemented as follows:

The basis for the 20 percent

reductions achieved by the final rule is

documented in the rulemaking docket

for the AIM coatings final rule in a

memorandum "VOC Emissions

Reductions from the Final National

Architectural Coatings Rule" from Chris

Sarsony, ERG, to Linda Herring, U.S.

EPA, dated July 27, 1998 (docket A-92-

18, item number IV-B-2).

Comment 5: We received comments

asserting that the estimate of emission

reductions from the autobody

refinishing rule does not account for

establishment of a separate category for

multi-colored topcoats in the final

rule-a category that has weaker limits

than would have applied to the same

topcoats under the proposed rule. The

comments further assert that EPA has no

data on the usage of multi-colored

topcoats-data that is required in order

to rationally estimate the expected

emission reductions from the rule.

Response 5: We incorporate by

reference our responses to the

comments on these issues found in

section II.J. See 66 FR at 614 and

response 13 of section II.X of our final

rule published January 3, 2001, see 66

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FR at 627 as supplemented by the

response to comment found in this final

rule.

Regarding the basis for approving

Maryland's 45 percent reductions from

the autobody refinishing rule, we

incorporate by reference our responses

to the comments on this issue found in

response 18 of section II.X of our final

rule published January 3, 2001. See 66

FR at 629.

Comment 6: We received comments

that assert there is insufficient basis for

granting full credit for the AIM rule as

of November 15, 1999 because EPA has

failed to offer any facts or analyses

showing that only compliant products

were in use as of November 15, 1999,

and the late implementation deadline of

September 12, 1999 virtually assures

that this was not the case.

Response 6: We incorporate by

reference our responses to the

comments on this issue found in section

II.J. See 66 FR at 614, and response 14

of section II.X of our final rule

published January 3, 2001, see 66 FR at

627, as supplemented by the response to

comment found in this final rule.

For the reasons explained in our prior

response to comment (66 FR at 614,

627), EPA still believes that with these

reductions the area has achieved the 9

percent ROP as expeditiously as

practicable and that there is no other

reasonable emissions control strategy

that would allow the area to achieve the

9 percent ROP for the 1999 milestone

any sooner.

4. Enforcement of Control Programs

Comment: The attainment

demonstrations do not clearly set out

programs for enforcement of the various

control strategies relied on for emission

reduction credit. We also received

comments that assert that the 1996-

1999 ROP plan and the attainment plan

fail to include a program to provide for

the enforcement of the adopted control

measures. as required by section

110(a)(2)(C) of the CAA. The comments

also assert that these plans must contain

a legally enforceable SIP commitment to

enforce the various control strategies

relied upon for emission reduction

credit. The comments assert that EPA

review of state enforcement programs in

connection with federal grantmaking

does not satisfy EPA's duty to ensure

that the SIP itself contains the legally

required enforcement and funding

commitments.

Response: We incorporate by

reference our responses to the

comments on theses issues found in

section II.K. See 66 FR at 615 and

response 21 of section II.X of our final

rule published January 3, 2001, see 66

FR at 630.

5. Reliance on Commitments and State

Rules Not Yet Adopted

Comment: We received comments

that disagreed with the EPA's proposal

to approve attainment demonstrations

and rate-of-progress plans for the

Washington ozone nonattainment area

because not all of the emissions

reductions credited in the

demonstrations or plans are supported

by legally enforceable limitations

adopted and approved by the States and

approved by the EPA as part of the SIP.

Commenters also objected to accepting

enforceable state commitments to adopt

emission reduction control measures in

the future in lieu of current adopted

measures.

Response: When viewed in the

context that this comment was made,

this comment is not germane to the

proposed action. This comment was

made in response to a December 16,

1999, notice of proposed rulemaking (64

FR 70460) for the SIP revisions listed in

Tables 1 and 2 of this document. That

December 16, 1999, proposed rule

contained a proposal to approve

attainment demonstrations that

contained an enforceable commitment

to adopt additional measures to support

the WOE that the area will attain.33 EPA

identified the areas where we had

concluded that the WOE needed such

supporting reductions but the

Washington area was not such an area.

See 64 FR at 70466, December 16, 1999.

EPA has concluded that the WOE for the

Washington area needs no additional

reductions to support the WOE

demonstration and is not approving

such an enforceable commitment for the

Washington area.

Further, EPA is not fully approving

the attainment demonstration and ROP

plan for the Washington area. Rather, as

discussed previously in this document,

EPA is conditionally approving these

SIP revisions pursuant to section

110(k)(4) of the CAA which specifically

authorizes this action. Section 110(k)(4)

specifically allows the approval of

commitments under certain

circumstances. For the reasons set forth

elsewhere in this document including

those in response to other comments,

EPA believes that a conditional

approval is permissible. Therefore, EPA

33 See "Guidance for Improving Weight of

Evidence Through Identification of Additional

Emission Reductions, Not Modeled." U.S.

Environmental Protection Agency, Office of Air

Quality Planning and Standards, Emissions,

Monitoring, and Analysis Division, Air Quality

Modeling Group, Research Triangle Park, NC 27711.

believes this comment is not germane to

this action.

6. Rate-of-Progress-NOx Substitution

Comment: We received comments

that assert the 9 percent ROP

demonstration assumes that a 1 percent

reduction in NOx emissions is

equivalent in ozone reducing benefit to

a 1 percent reduction in VOC emissions.

The commenter asserts that EPA's NOx

Substitution Guidance (December 1993)

is flawed under section 182(c)(2)(C) of

the Clean Air Act because it allows NOx

substitution without a demonstration

that such substitution will in fact

provide ozone reductions at least

equivalent to that which would result

from a 3 percent annual cut in VOC

emissions. The commenter claims that

such a demonstration requires

photochemical grid modeling showing

equivalency and that EPA's own

guidance (Guidance on the Post-1996

Rate-of-Progress Plan and Attainment

Demonstration (corrected version as of

2/18/94)) requires such modeling. The

States cannot use a 1 percent NOx for

1 percent VOC substitution without

proving that a 1 percent NOx cut will

in fact provide ozone reductions at least

equivalent to that resulting from a 1

percent VOC cut.

The commenter further asserts that

more recent EPA guidance dated

January 10, 2000 for NOx substitution in

out-year conformity budgets requires 1.6

tons in NOx reductions to offset 1 ton

of VOC reductions. The commenter does

not disavow other comments that the

States must prove the validity of their

NOx substitution ratios as discussed in

the summary of the comments in the

preceding paragraph but rather claim

the 9 percent demonstration fails to use

the ratio of 1.6 to 1 required by the more

recent EPA guidance.

Additionally, the commenter asserts

that substitutions should not be allowed

because the plan does not demonstrate

timely attainment.

Response: We incorporate by

reference our responses to the

comments on these issues found in

section II.M. of our final rule published

January 3, 2001, see 66 FR at 616-619,

as supplemented by the response to

comment found in this final rule:

EPA still disagrees with the assertion

that the attainment plan does not

demonstrate attainment. The TSD and

other documents in the docket support

the conclusion that the area will attain,

as do our responses to other comments

elsewhere in this notice.

In our January 3, 2001, final rule (66

FR 586), EPA placed a document titled

"RACM Analysis for Four Serious Areas

Designated Nonattainment for 1-hr

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Ozone NAAQS" in the docket to

support our conclusion that all RACM

have been adopted for the Washington

area as well as the model sensitivity

analyses found in the attainment

demonstration which shows that the

Washington area portion of the

Baltimore-Washington modeling

domain benefits more from NOx

reductions than VOC reductions. For

this final rule, EPA has placed

Attachment 4 ("Model Sensitivity Study

for Metropolitan Washington Area") of

"RACM Analysis for Four Serious Areas

Designated Nonattainment for 1-hr

Ozone NAAQS" in the docket solely for

the technical analysis of the model

sensitivity analyses found in the

attainment demonstration which shows

that the Washington area portion of the

Baltimore-Washington modeling

domain benefits more from NOx

reductions than VOC reductions. A copy

of "RACM Analysis for Four Serious

Areas Designated Nonattainment for 1-

hr Ozone NAAQS" U.S. Environmental

Protection Agency; Office of Air Quality

Planning and Standards, Research

Triangle Park, NC 27711, cited in the

response to comments portion of the

January 3, 2001 final rule can be

obtained by contacting the regional

office listed under the ADDRESSES

section of this document.

7. NOx and VOC Reduction Credits

Comment 1: We received comments

that both the attainment and ROP

demonstrations are flawed because they

rely on emission reductions from

control measures that have not been

fully approved by EPA as part of the

SIP. Specifically, the comments

identified NOx RACT rules for all three

Washington area States, NOx reductions

claimed for the beyond RACT NOx

control rules and Virginia's generic nonCTG VOC RACT rule.

Response 1: We incorporate by

reference our responses to the

comments on these issues found in

sections I.N and R, see 66 FR at 619 and

66 FR at 620, and responses 3, 4, 8 of

section II.X, see 66 FR at 623-625, of

our final rule published January 3, 2001

as supplemented in this document:

The technical support documents for

this action lists the current approval

status of control measures in the

Washington area. 34 With the exception

of the transportation control measures

found in the ROP plan, for which we

34 See pages 22 through 35 of "Technical Support

Document for the One-Hour Ozone Attainment

Demonstrations submitted by the State of Maryland,

Commonwealth of Virginia and the District of

Columbia for the Metropolitan Washington, D.C.

Ozone Nonattainment Area (DC052-7005, MD143-

3096, VA152-5062)", dated January 24, 2003.

proposed approval on February 3, 2003,

all the other measures credited towards

the 1999 ROP requirement are in the

approved SIP or are rules promulgated

by the EPA. These measures were

specified under the column labeled

"Credited in 1996-1999 ROP plan" in

Table 3 "Control Measures in the 1-hour

Ozone 1996-1999 ROP Plan and

Attainment Plans for the Metropolitan

Washington Nonattainment Area" of the

notice of proposed rulemaking for this

action. See 68 FR at 5252, February 3,

2003.

Likewise, with the exception of any

remaining RACM, if any, and of the

transportation control measures

specified in the attainment

demonstration plan, all the other

measures credited towards the

attainment plan requirement are in the

approved SIP or are rules promulgated

by the EPA. These measures were

specified under the column labeled

"Credited in attainment plan" in Table

3 of the notice of proposed rulemaking

for this action. The States have

committed to timely submit any

additional RACM, and we are taking

final action to approve the TCMs in this

notice.

The District's NOx RACT rule was

approved on December 26, 2000 (65 FR

81369), Maryland's on February 8, 2001

(66 FR 9522), and Virginia's on January

2, 2001 (66 FR 8).

The District's rule for beyond RACT

control on large stationary sources of

NOx was approved on December 22,

2000 (65 FR 80783) and an additional

rule on November 1, 2001 (66 FR

55099), Maryland's rules were approved

on December 15, 2000 (65 FR 78416)

and January 10, 2001 (66 FR 1866), and

Virginia's on December 14, 2000 (65 FR

78100).

The technical support documents for

this action lists the basis for the

reduction credits from Virginia's nonCTG RACT rule. 35

Comment 2: We received comments

asserting that EPA's reliance on SIP call

reductions is particularly unjustified in

the D.C. Area, given that Virginia is

challenging EPA's authority to require

those very reductions and that EPA

cannot grant credit for SIP call

reductions when the SIP call has been

judicially stayed.

Response 2: We incorporate by

reference our responses to the

comments on these issues found in

35 See page 31 of "Technical Support Document

for the One-Hour Ozone Attainment

Demonstrations submitted by the State of Maryland,

Commonwealth of Virginia and the District of

Columbia for the Metropolitan Washington, D.C.

Ozone Nonattainment Area (DC052-7005, MD143-

3096, VA152-5062)", dated January 24, 2003.

response 8 of section II.A.2 of our final

rule published January 3, 2001, see 66

FR at 602, supplemented as follows: The

stay of the SIP call has been vacated and

the SIP call has been upheld. The court

lifted its stay and States are now

required to submit SIPs fully addressing

the SIP call and if they fail, EPA must

promulgate a Federal plan. EPA is fully

justified in its reliance on SIP call

reductions and in granting credit for

them in the areas' attainment

demonstrations. See 67 FR 21867 (May

1, 2000).

8. Attainment Demonstration and Rateof-Progress Control Measures Not In SIP

Comment 1: We received comments

asserting that both the attainment

demonstration and rate-of-progress plan

for the Washington area rely on

emission reductions from control

measures that have not been fully

approved by EPA as part of the SIP.

Response 1: We incorporate by

reference our responses to the

comments on this issue found in

response 1 of section 11.0 of our final

rule published January 3, 2001, see 66

FR at 619, supplemented by our

response elsewhere in this document to

other comments under the heading of

"NOx and VOC Reduction Credits."

Comment 2: We received comments

stating that there are significant

disparities between the projections of

1999 regional emissions found in the

most recent 9 percent ROP plan for the

Washington area and the EPA's

Technical Support Document for the

attainment demonstrations. The

commenter claims that lower emissions

in the TSD for the December 16, 1999

NPR, should not be used unless EPA

provides an adequate technical basis.

Response 2: We incorporate by

reference our responses to the

comments on this issue found in

response 2 of section 11.0 of our final

rule published January 3, 2001, see 66

FR at 619.

9. Modeling Assumptions

Comment 1: We received comments

asserting that the transportation model

does not incorporate adequate

assumptions about the effects of land

development and new road projections

on the growth of vehicle travel and

citing to an EPA letter from Judith Katz,

Director, Air Protection Division, EPA

Region III to James Cheatham,

Divisional Administrator, Federal

Highway Administration, dated August

27, 1998, in which the commenters

assert that EPA stated that the plans did

not include any information on the rate

of land development in the Washington

Region and the effect this development

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will have on the transportation system.

The comments discuss the

transportation model's land use

assumptions, and imply that the

Metropolitan Planning Organization (the

Metropolitan Washington Council of

Governments, MWCOG) (hereafter, "the

MPO") has not included the effects of

land use in the model and that EPA has

known about this issue since 1998.

Response 1: We incorporate by

reference our responses to the

comments on this issue found in

response 1 of section I.P of our final

rule published January 3, 2001, see 66

FR at 619-620.

Comment 2: We have received

comments saying that the temperature

assumed in the mobile source modeling

inputs was 93 degrees (Fahrenheit), yet

the maximum recorded temperatures for

those days during which peak ozone

values in the 1999 ozone season were

recorded were higher (96 to 98 degrees).

Response 2: For two reasons EPA

disagrees with the comment that this is

a reason to determine that the budgets

are not approvable. First, the comments

cite peak temperatures for a particular

ozone season. This is at odds with

EPA's guidance. EPA guidance on

projecting all future mobile source

emissions inventories requires the

States to use the temperatures

representative of a "typical ozone

season day". See section 3.3.5.2 of

Procedures for Emission Inventory

Preparation Volume IV: Mobile Sources,

EPA-450/4-81-026d (Revised), 1992,

which also sets the procedure for

determining the temperature for the

base year and all subsequent projection

inventories. EPA has updated this

guidance for use with the MOBILE6

emissions factor model, but the updated

guidance still requires the use of the

typical ozone season day. 36 The typical

ozone season day conditions are those

used when determining the typical daily

emissions for the base year emissions

inventory. The same typical ozone

season day is also used when setting

target levels of emissions in ROP plans

and all future year projection

inventories in ROP plans and the

budgets for attainment demonstrations.

EPA believes that the ambient

temperature is key to estimating

emission rates for highway vehicles

with MOBILE6. 37 Temperature inputs

were a key input to the MOBILE5

mobile source emission factor model as

36 See "Technical Guidance on the Use of

MOBILE6 for Emission Inventory Preparation," U.S.

Environmental Protection Agency, Office of Air and

Radiation, Office of Transportation and Air Quality,

January 2002.

37 Id.

well.38 For this reason mobile source

emission factors produced by EPA

approved mobile source emission factor

models are temperature dependant.

Second, if EPA were to require SIPs

to be revised periodically on the basis

of more recent temperatures, EPA would

have to allow revisions and conformity

determinations incorporating more

recent data that reflect a lower

temperature profile, and hence lower

mobile source emissions, as well as

requiring revisions to incorporate more

recent data which includes higher

temperatures.

EPA believes it is reasonable to use

the same typical ozone season day

temperatures used to develop the base

year inventory rather than trying to

predict actual future year temperatures

when projecting future emissions

because these projections are made in

advance when actual temperatures

cannot be known.

10. NOx RACT Size Cutoff

Comment: We received a comment

asserting that all of the States should

extend NOx RACT to 25 ton per year

sources. In addition, the SIP must

require Virginia to extend VOC RACT to

25 ton per year sources, like Maryland.

Response: EPA agrees that full

approval of the Washington area SIP to

meet the severe area requirements is

precluded in the absence of RACT

regulations incorporating the severe area

RACT thresholds mandated by the CAA

in section 182(d). However, as

explained in previous responses, EPA

believes conditional approval based

upon a commitment to submit these

regulations by April 17, 2004 is

permissible.

11. List of Control Measures

Comment 1: We received comments

claiming that the States have failed to

submit lists of potential control

measures by December 31, 1999 as

required by EPA's December 16, 1999

notice of proposed rulemaking. The

comments assert that the States

submitted commitments to adopt

additional control measures if needed,

but did not provide lists from which

those measures would be chosen and

further state that because the States have

failed to meet a condition that EPA itself

set as a prerequisite for plan approval

EPA must disapprove the Washington

area SIP.

Response 1: The list of control

measures to which these comments refer

has to be viewed in context of the entire

38 See Chapter 2, User's Guide to MOBILE5

(Mobile Source Emission Factor Model) EPA-AATEB-94-01, September 1996.

December 16, 1999 notice of proposed

rulemaking (64 FR 70460). The

proposed rulemaking was published at

a time when the attainment plan

contained no motor vehicle emissions

budget for 2005. The list of potential

measures was to have been those

potential measures needed to allow an

adequacy finding under the

transportation conformity rule on the

requisite 2005 budgets in the event the

attainment plan was not supported by

fully adopted measures. EPA is now

conditionally approving the motor

vehicle emissions budgets rather than

making an adequacy determination.

EPA does not believe a list of potential

control measures is necessary here

because EPA is conditionally approving

the SIPs based upon the States

committing to complete all necessary

modeling and RACM analyses and to

adopt and submit by April 2004 any

additional measures necessary to

demonstrate attainment.

We also incorporate by reference our

responses to the comments on these

issues found in response 1 of section

II.S of our final rule published January

3, 2001, see 66 FR at 620-621, as

supplemented by the response to

comment found in this final rule.

12. Phase II NOx Limits Are RACM

Comment: We received a comment

asserting that the Phase II NOx limits

agreed to by OTC are also clearly

RACM.

Response: As a factual matter, with

respect to the OTC MOU Phase II NOx

limits in the Washington nonattainment

area, Maryland and the District have

adopted programs to implement the

Phase II NOx reduction in the OTC

memorandum of understanding. EPA

has approved these programs into

Maryland's and the District's SIPs.

Virginia was not a signatory to the OTC

MOU. However, in permits approved

into the Virginia SIP, Virginia has

imposed beyond RACT requirements on

two large point sources of NOx in the

Virginia portion of the Washington area,

see 65 FR 78100 (December 14, 2000).

These permits impose limits of 0.15

pounds of NOx per million BTU heat

input on these two sources. Such limits

go beyond the OTC Phase II limits. EPA

acknowledges the States must identify

which RACM have already been

adopted and adopt any which, if any,

still remains as the States have

committed to do so by April 2004.

RACM is discussed in response to other

comments.

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13. Additional Comments on the Rateof-Progress Plan

Comment 1: We received comments

asserting that EPA cannot act on the

District's, Maryland's and Virginia's

1996-1999 ROP plan in isolation

because the 1996-1999 ROP plan for the

Washington area was developed using a

regional approach. EPA cannot know

whether these requirements are met

unless it acts on all three plans

simultaneously.

Response 1: The comment is moot

because EPA is concurrently approving

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

submittals of the 1996-1999 ROP plan

for the Washington area in one final

action published in the Federal

Register.

Comment 2: We received comments

asserting that modeling does not show

that a 1 percent reduction in NOx

emissions provides the same ozone

reduction benefit as a 1 percent

reduction in VOC emissions, and that

these results address post-1999

conditions-not 1996-99 conditions,

and that one cannot reliably extrapolate

back from the modeled results to the

reductions at issue in the 9 percent

plan. The comments also assert there

must be photochemical grid modeling of

the actual substitution being proposed

to determine the extent to which NOx

can be substituted for VOC. These

comments also note these model results

themselves show that NOx reductions

sometimes actually lead to an increase

in the number of cells exceeding the

ozone standard.

Response 2: We incorporate by

reference our responses to the

comments on this issue found in

response 2 of section II.X of our final

rule published January 3, 2001 (see 66

FR at 622-623).

Comment 3: We received comments

asserting that although the ROP plan

cites various rules and programs that

have been adopted to reduce emissions,

it does not demonstrate that actual

compliance with the rules and

implementation of necessary programs

will be achieved by the deadline or that

claimed emission reductions will be

fully realized by that date. We received

comments asserting that EPA can only

credit the ROP plan with reductions

actually achieved by November 15,

1999. We also received general

comments that the ROP plan cannot be

approved because programs on which

the area relies for ROP credit were not

approved by EPA until after November

15, 1999, thus the programs were not

federally enforceable during the 1996-

99 ROP period. Finally, the commenters

suggest that certain programs may not

have achieved the level of reductions for

which credit was taken in the ROP plan.

Response 3: We incorporate by

reference our responses to the

comments on these issues found in

response 3 of section II.X of our final

rule published January 3, 2001, see 66

FR at 623.

Comment 4: We received comments

asserting that the reductions from the

National Low Emission Vehicle (NLEV)

program are not creditable because the

District did not submit a SIP revision for

the NLEV program and because the

NLEV SIPs for Maryland and Virginia

were not approved until after the

November 15, 1999 milestone date. The

comments also assert that emission

reductions are creditable toward the

ROP requirement only to the extent that

they have actually occurred by the

November 15, 1999 milestone date. The

comments state that if the ROP plan

does not get sufficient creditable

reductions then the plan cannot be

approved.

Response 4: We incorporate by

reference our responses to the

comments on these issues found in

response 4 of section II.X of our final

rule published January 3, 2001, see 66

FR at 623-624.

Comment 5: We received comments

asserting that EPA should not credit

reductions from the District's NOx

RACT rule because: (1) EPA has not yet

approved the District's NOx RACT rule

and, therefore, it will not become

federally enforceable until long after 11/

15/99; and (2) the District has not

shown actual implementation of NOx

RACT before 11/15/99 by major NOx

sources within the District.

Response 5: We incorporate by

reference our responses to the

comments on these issues found in

response 5 of section II.X of our final

rule published January 3, 2001, see 66

FR at 624. Further, the District's NOx

RACT rule was approved on December

26, 2000 (65 FR 81369).

Comment 6: We received comments

asserting that the NOx RACT rules

include inadequate emission control

requirements for various source

categories. With respect to Maryland

and Virginia NOx RACT rules, the

commenter referenced comments

submitted in response to EPA's

proposed rulemaking actions on those

SIPs. With respect to the District's NOx

RACT rule, the commenter says the

District proposed to amend its rule to

eliminate deficiencies precluding EPA

approval.

Response 6: We incorporate by

reference our responses to the

comments on these issues found in

response 6 of section II.X of our final

rule published January 3, 2001, see 66

FR at 624.

Comment 7: We received comments

asserting that EPA cannot credit

reductions because the District has not

implemented its NOx RACT rules.

Specifically, the comments state that the

District's proposed Title V permit for

the Blue Plains Wastewater Treatment

Plant contains no NOx RACT

requirements (either as federal or stateonly requirements), even though the

District has identified the plant as a

major NOx source.

Response 7: We incorporate by

reference our responses to the

comments on this issue found in

response 7 of section II.X of our final

rule published January 3, 2001, see 66

FR at 624-625.

Comment 8: We received comments

asserting that EPA should not credit

reductions from Maryland's or

Virginia's NOx RACT rules for the

following reasons: (1) EPA has not yet

even approved these NOx RACT rules;

(2) even if the rules are approved prior

to final action on the ROP plan, the

approvals will not become federally

enforceable until long after 11/15/99;

and (3) Maryland and Virginia have not

shown actual implementation of all

RACT requirements before 11/15/99.

Response 8: We incorporate by

reference our responses to the

comments on these issues found in

response 8 of section II.X of our final

rule published January 3, 2001, see 66

FR at 625, supplemented as follows:

EPA fully approved Maryland's and

Virginia's NOx RACT rules on February

8, 2001 (66 FR 9522), and on January 2,

2001 (66 FR 8), respectively.

Comment 9: We received comments

asserting that EPA can only credit those

reductions that the District actually

achieved as a result of enhanced vehicle

inspection between April 1999 and

November 15, 1999. The comments state

that only a fraction of the fleet was

tested between the April 1999

commencement of the enhanced I/M

program and November 15, 1999.

Other comments likewise questioned

whether full emission reductions

credited from the Maryland and Virginia

I/M programs actually occurred by 11/

15/99. The latter comments assert that

States must demonstrate full

implementation including enhanced

testing of the entire fleet. These

comments also questioned whether the

full emission reductions were credited

to the enhanced I/M programs in

Maryland and Virginia given that final

SIP approval did not occur until late

1999.

All comments state if the ROP plan

does not get sufficient creditable

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reductions by November 15, 1999, then

the plan cannot be approved.

Response 9: We incorporate by

reference our responses to the

comments on these issues found in

response 9 of section II.X of our final

rule published January 3, 2001, see 66

FR at 625-626.

Comment 10: We received comments

claiming that one EPA analysis

indicates some reductions from the AIM

rule could be deferred to as late as 2002.

The comments cite a Memorandum

dated May 30, 2000 from Paul T.

Wentworth, EPA, to Administrative

Record on the Adequacy findings for the

Motor Vehicle Emissions Budgets in the

Revised Phase II Ozone Attainment

Plans for the Metropolitan Washington

D.C. Ozone Nonattainment Area.

Response 10: We incorporate by

reference our responses to the

comments on this issue found in

response 15 of section II.X of our final

rule published January 3, 2001, see 66

FR at 628, supplemented as follows: For

the reasons discussed in responses to

other comments, EPA believes the AIM

reductions have already occurred. EPA

believes that these reductions were

achieved as expeditiously as practicable

and that no other reasonable emissions

control strategy would have allowed the

States or EPA to achieve these

reductions sooner.

Comment 11: We have received

comments saying that the transportation

model does not incorporate adequate

assumptions about the effects of land

development and new road projections

on the growth of vehicle travel. In

support, the comments cite an EPA

letter from Judith Katz, Director, Air

Protection Division, EPA Region III to

James Cheatham, Divisional

Administrator, Federal Highway

Administration dated August 27, 1998,

in which the commenters assert that

EPA stated that the plans did not

include any information on the rate of

land development in the Washington

Region and the effect of this

development will have on the

transportation system. The comments

concern the land use assumptions in the

transportation model and allege that the

Metropolitan Planning Organization (the

Metropolitan Washington Council of

Governments, MWCOG) (hereafter, "the

MPO") has not included the effects of

land use in the model and that EPA has

known about this issue since 1998.

Response 11: We incorporate by

reference our responses to the

comments on this issue found in

response 16 of section II.X of our final

rule published January 3, 2001, see 66

FR at 628.

Comment 12: We received comments

asserting that EPA cannot credit the

1996-1999 ROP plan submitted by

Virginia and Maryland with reductions

from measures credited in the 15

percent plan and cannot count emission

reductions to both the 15 percent and 9

percent reduction requirements. That is,

according to the comments, reductions

from some measures are allegedly being

counted towards both the 15 percent

and 9 percent reduction requirements.

Response 12: We incorporate by

reference our responses to the

comments on this issue found in

response 17 of section II.X of our final

rule published January 3, 2001, see 66

FR at 628-629, supplemented as follows:

The same reasoning that allows

reductions from measures in the 15

percent plan to count towards achieving

the 1999 target level for the 1999

milestone applies to counting such

reductions towards achievement of the

2002 target level of emissions.

The last sentence of section

182(c)(2)(B) specifically allows

reductions that exceed those needed to

achieve the 15 percent amount for the

15 percent plan to count towards the

post-1996 ROP requirements.

Comment 13: We received comments

asserting that EPA must document its

reasons for accepting Maryland's and

Virginia's emission reduction claims.

The comments cite the example of the

reductions from Maryland's and

Virginia's open burning program and

the 45 percent reduction claimed by

Maryland for the Maryland rules

applicable to autobody refinishing. The

comments state that the States assume

an 80 percent compliance with the open

burning regulations without

documenting the basis for this assertion.

The comments claim that the 80 percent

compliance assertion is void in the

absence of plans or commitments

needed for local enforcement.

Response 13: We incorporate by

reference our responses to the

comments on these issues found in

response 18 of section II.X of our final

rule published January 3, 2001, see 66

FR at 629.

Comment 14: We received comments

claiming that open burning emissions

were not in the 1990 base year

emissions inventory for Maryland and

Virginia. The comments assert that EPA

cannot credit reductions from emissions

that were not included in the 1990 base

year emissions inventory.

Response 14: We incorporate by

reference our responses to the

comments on these issues found in

response 19 of section II.X of our final

rule published January 3, 2001, see 66

FR at 629.

IV. Applicability of Revised Motor

Vehicle Emissions Budgets

This final action to conditionally

approve the severe ozone nonattainment

SIP for the Washington area includes

conditional approval of SIP revisions

submitted on February 9, 14 and 16,

2000 by Virginia, Maryland and the

District, establishing the 2005 motor

vehicle emissions budgets. These

conditionally approved motor vehicle

emissions budgets will apply for

conformity purposes only until the

revised motor vehicle emissions budgets

required by this final action have been

submitted and we have found the

budgets to be adequate for conformity

purposes.

Because the attainment demonstration

includes the effects of the Tier 2/sulfur

program, EPA is requiring the States to

revise and resubmit their motor vehicle

emissions budgets after EPA releases the

MOBILE6 model. EPA is conditioning

approval upon the States revising the

Washington area severe attainment

demonstration to reflect revised

MOBILE6-based motor vehicle

emissions budgets, including revisions

to the attainment modeling/weight of

evidence demonstration, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

As we proposed on February 4, 2003,

the final conditional approval action we

are taking today on the 2005 attainment

budgets will be effective for conformity

purposes only until revised motor

vehicle emissions budgets are submitted

and we have found them adequate. In

other words, the budgets we are

approving today as part of the

attainment demonstration will apply for

conformity purposes only until there are

new, adequate budgets consistent with

the States' commitments to revise the

budgets. The revised budgets will apply

for conformity purposes as soon as we

find them adequate.

We are limiting the duration of our

approval in this manner because we are

only conditionally approving the

attainment demonstrations and their

budgets because the States have

committed to revise them. Therefore,

once we have confirmed that the revised

budgets are adequate, they will be more

appropriate than the budgets we are

approving for conformity purposes now.

V. Final Action

EPA is conditionally approving the

SIP revisions and amendments

identified in Tables 1 and 2 as the

severe ozone nonattainment area SIP for

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the Washington area contingent on the

Washington area jurisdictions satisfying

the following conditions. Should the

Washington area jurisdictions fail to

fulfill these conditions by May 19, 2003,

this conditional approval will convert to

a disapproval pursuant to CAA section

110(k).

(A) Revise the 1996-1999 portion of

the severe area ROP plan to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the required 9 percent rate-ofprogress reductions by November 15,

1999.

(B) Revise the severe area ROP to

provide emission reductions of ozone

precursors of at least 3 percent per year

from November 15, 1999 to the

November 15, 2005 severe ozone

attainment date.

(C) Revise the severe area ROP plan to

include a contingency plan containing

those adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the ROP reductions required for

the post-1999 period.

(D) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999.

(E) Update the Washington area

severe attainment demonstration to

reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

(F) Revise the Washington area severe

attainment demonstration to include a

contingency plan containing those

measures to be implemented if the

Washington area does not attain the

one-hour ozone standard by November

15, 2005.

(G) Revise the Washington area severe

attainment demonstration to include a

revised RACM analysis and any

revisions to the attainment

demonstration including adopted

control measures, as necessitated by

such analysis.

(H) Revise the major stationary source

threshold to 25 tons per year.

(I) Revise Reasonably Available

Control Technology (RACT) rules to

include the lower major source

applicability threshold.

(J) Revise new source review offset

requirements to require an offset ratio of

at least 1.3 to 1.

(K) Submit as part of the SIP a fee

requirement for major sources of volatile

organic compounds (VOC) and nitrogen

oxides (NOx) should the area fail to

attain by November 15, 2005.

(L) Submit as part of the SIP a

revision that identifies and adopts

specific enforceable transportation

control strategies and transportation

control measures to offset any growth in

emissions from growth in vehicle miles

traveled or number of vehicle trips and

to attain reductions in motor vehicle

emissions as necessary, in combination

with other emission reduction

requirements in the Washington area, to

comply with the ROP requirements for

severe areas. Measures specified in

section 108(f) of the Clean Air Act will

be considered and implemented as

necessary to demonstrate attainment.

VI. Statutory and Executive Order

Reviews

A. General Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a "significant regulatory action" and

therefore is not subject to review by the

Office of Management and Budget. For

this reason, this action is also not

subject to Executive Order 13211,

"Actions Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use" (66 FR 28355, May

22, 2001). This action merely approves

state law as meeting Federal

requirements and imposes no additional

requirements beyond those imposed by

state law. Accordingly, the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). Because this

rule approves pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Pub. L. 104-4). This rule also does not

have tribal implications because it will

not have a substantial direct effect on

one or more Indian tribes, on the

relationship between the Federal

Government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

Government and Indian tribes, as

specified by Executive Order 13175 (65

FR 67249, November 9, 2000). This

action also does not have Federalism

implications because it does not have

substantial direct effects on the states,

on the relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This action merely

approves a state rule implementing a

Federal standard, and does not alter the

relationship or the distribution of power

and responsibilities established in the

Clean Air Act. This rule also is not

subject to Executive Order 13045

"Protection of Children from

Environmental Health Risks and Safety

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

because it is not economically

significant.

In reviewing SIP submissions, EPA's

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

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

272 note) do not apply. This rule does

not impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

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

B. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

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

804(2).

C. Petitions for Judicial Review

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

Air Act, petitions for judicial review of

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this action must be filed in the United

States Court of Appeals for the

appropriate circuit by June 16, 2003.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action to

conditionally approve the severe ozone

nonattainment area SIP revisions for the

Metropolitan Washington severe ozone

nonattainment area may not be

challenged later in proceedings to

enforce its requirements. (See section

307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen dioxide, Ozone,

Volatile organic compounds.

Dated: April 10, 2003.

Thomas C. Voltaggio,

Acting Regional Administrator, Region IlL

* 40 CFR part 52 is amended as follows:

PART 52-[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

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

Subpart J-District of Columbia

* 2. Section 52.473 is added to read as

follows:

§52.473 Conditional approval.

The District of Columbia's severe

ozone nonattainment area SIP for the

Metropolitan Washington area, which

includes the 1996-1999 portion of the

rate-of-progress plan submitted on

November 3, 1997, and May 25, 1999

and the transportation control measures

in Appendix H of the May 25, 1999

submittal, and the severe ozone

attainment demonstration submitted on

April 24, 1998, October 27, 1998,

February 16, 2000 and section 9.1.1.2 of

the March 22, 2000 submittal, is

conditionally approved contingent on

the District submitting a revised SIP by

April 17, 2004 that satisfies certain

conditions. This conditional approval

also establishes motor vehicle emissions

budgets for 2005 of 101.8 tons per day

of volatile organic compounds (VOC)

and 161.8 tons per day of nitrogen

oxides (NOx) to be used in

transportation conformity in the

Metropolitan Washington, DC serious

ozone nonattainment area until revised

budgets based upon the MOBILE6

model are submitted and found

adequate. The District must submit a

revised SIP by April 17, 2004 that

satisfies the following conditions.

(1) Revises the 1996-1999 portion of

the severe area ROP plan to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the required 9 percent rate-ofprogress reductions by November 15,

1999.

(2) Revises the 1999-2005 portion of

the severe area rate-of-progress plan to

provide MOBILE6-based mobile source

emission budgets and adopted measures

sufficient to achieve emission

reductions of ozone precursors of at

least 3 percent per year from November

15, 1999 to the November 15, 2005

severe ozone attainment date.

(3) Revises the severe area ROP plan

to include a contingency plan

containing those adopted measures that

qualify as contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the ROP reductions required for

the post-1999 period.

(4) Revises the Washington area

severe attainment demonstration to

include a contingency plan containing

those adopted measures that qualify as

contingency measures to be

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999.

(5) Revises the Washington area

severe attainment demonstration to

reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

(6) Revises the Washington area

severe attainment demonstration to

include a contingency plan containing

those measures to be implemented if the

Washington area does not attain the

one-hour ozone standard by November

15, 2005.

(7) Revises the Washington area

severe attainment demonstration to

include a revised RACM analysis and

any revisions to the attainment

demonstration including adopted

control measures, as necessitated by

such analysis.

(8) Revises the major stationary source

threshold to 25 tons per year.

(9) Revises Reasonably Available

Control Technology (RACT) rules to

include the lower major source

applicability threshold.

(10) Revises new source review offset

requirement to require an offset ratio of

at least 1.3 to 1.

(11) Includes a fee requirement for

major sources of volatile organic

compounds (VOC) and nitrogen oxides

(NOx) should the area fail to attain by

November 15, 2005.

(12) Includes a revision that identifies

and adopts specific enforceable

transportation control strategies and

transportation control measures to offset

any growth in emissions from growth in

vehicle miles traveled or number of

vehicle trips and to attain reductions in

motor vehicle emissions as necessary, in

combination with other emission

reduction requirements in the

Washington area, to comply with the

rate-of-progress requirements for severe

areas. Measures specified in section

108(f) of the Clean Air Act will be

considered and implemented as

necessary to demonstrate attainment.

Subpart V-Maryland

* 2. Section 52.1072 is amended by

adding paragraph (e) to read as follows:

§52.1072 Conditional approval. * * * * *

(e) Maryland's severe ozone

nonattainment area SIP for the

Metropolitan Washington area, which

includes the 1996-1999 portion of the

rate-of-progress plan submitted on

December 24, 1997 and May 20, 1999

and the transportation control measures

in Appendix H of the May 25, 1999

submittal, and the severe ozone

attainment demonstration submitted on

April 29, 1998, August 17, 1998,

February 14, 2000 and section 9.1.1.2 of

the March 22, 2000 submittal and the

transportation control measures in

Appendix J of the February 9, 2000

submittal, is conditionally approved

contingent on Maryland submitting a

revised SIP by April 17, 2004 that

satisfies certain conditions. This

conditional approval also establishes

motor vehicle emissions budgets for

2005 of 101.8 tons per day of volatile

organic compounds (VOC) and 161.8

tons per day of nitrogen oxides (NOx) to

be used in transportation conformity in

the Metropolitan Washington, DC

serious ozone nonattainment area until

revised budgets based upon the

MOBILE6 model are submitted and

found adequate. Maryland must submit

a revised SIP by April 17, 2004 that

satisfies the following conditions.

(1) Revises the 1996-1999 portion of

the severe area ROP plan to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

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implemented should EPA determine

that the Washington area failed to

achieve the required 9 percent rate-ofprogress reductions by November 15,

1999.

(2) Revises the 1999-2005 portion of

the severe area rate-of-progress plan to

provide MOBILE6-based mobile source

emission budgets and adopted measures

sufficient to achieve emission

reductions of ozone precursors of at

least 3 percent per year from November

15, 1999 to the November 15, 2005

severe ozone attainment date.

(3) Revises the severe area ROP plan

to include a contingency plan

containing those adopted measures that

qualify as contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the ROP reductions required for

the post-1999 period.

(4) Revises the Washington area

severe attainment demonstration to

include a contingency plan containing

those adopted measures that qualify as

contingency measures to be

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999.

(5) Revises the Washington area

severe attainment demonstration to

reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

(6) Revises the Washington area

severe attainment demonstration to

include a contingency plan containing

those measures to be implemented if the

Washington area does not attain the

one-hour ozone standard by November

15, 2005.

(7) Revises the Washington area

severe attainment demonstration to

include a revised RACM analysis and

any revisions to the attainment

demonstration including adopted

control measures, as necessitated by

such analysis.

(8) Revises the major stationary source

threshold to 25 tons per year.

(9) Revises Reasonably Available

Control Technology (RACT) rules to

include the lower major source

applicability threshold.

(10) Revises new source review offset

requirement to require an offset ratio of

at least 1.3 to 1.

(11) Includes a fee requirement for

major sources of volatile organic

compounds (VOC) and nitrogen oxides

(NOx) should the area fail to attain by

November 15, 2005.

(12) Includes a revision that identifies

and adopts specific enforceable

transportation control strategies and

transportation control measures to offset

any growth in emissions from growth in

vehicle miles traveled or number of

vehicle trips and to attain reductions in

motor vehicle emissions as necessary, in

combination with other emission

reduction requirements in the

Washington area, to comply with the

rate-of-progress requirements for severe

areas. Measures specified in section

108(f) of the Clean Air Act will be

considered and implemented as

necessary to demonstrate attainment.

Subpart VV-Virginia

* 2. Section 52.2450 is amended by

adding paragraph (b) to read as follows:

§52.2450 Conditional approval.

(b) Virginia's severe ozone

nonattainment area SIP for the

Metropolitan Washington area, which

includes the 1996-1999 portion of the

rate-of-progress plan submitted on

December 19, 1997 and May 25, 1999

and the transportation control measures

in Appendix H of the May 25, 1999

submittal, and the severe ozone

attainment demonstration submitted on

April 29, 1998, August 18, 1998,

February 9, 2000, and section 9.1.1.2 of

the March 22, 2000 submittal and the

transportation control measures in

Appendix J of the February 9, 2000

submittal, is conditionally approved

contingent on Virginia submitting a

revised SIP by April 17, 2004 that

satisfies certain conditions. This

conditional approval also establishes

motor vehicle emissions budgets for

2005 of 101.8 tons per day of volatile

organic compounds (VOC) and 161.8

tons per day of nitrogen oxides (NOx) to

be used in transportation conformity in

the Metropolitan Washington, DC

serious ozone nonattainment area until

revised budgets based upon the

MOBILE6 model are submitted and

found adequate. Virginia must submit a

revised SIP by April 17, 2004 that

satisfies the following conditions.

(1) Revises the 1996-1999 portion of

the severe area ROP plan to include a

contingency plan containing those

adopted measures that qualify as

contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the required 9 percent rate-ofprogress reductions by November 15,

1999.

(2) Revises the 1999-2005 portion of

the severe area rate-of-progress plan to

provide MOBILE6-based mobile source

emission budgets and adopted measures

sufficient to achieve emission

reductions of ozone precursors of at

least 3 percent per year from November

15, 1999 to the November 15, 2005

severe ozone attainment date.

(3) Revises the severe area ROP plan

to include a contingency plan

containing those adopted measures that

qualify as contingency measures to be

implemented should EPA determine

that the Washington area failed to

achieve the ROP reductions required for

the post-1999 period.

(4) Revises the Washington area

severe attainment demonstration to

include a contingency plan containing

those adopted measures that qualify as

contingency measures to be

implemented for the failure of the

Washington area to attain the one-hour

ozone standard for serious areas by

November 15, 1999.

(5) Revises the Washington area

severe attainment demonstration to

reflect revised MOBILE6-based motor

vehicle emissions budgets, including

revisions to the attainment modeling/

weight of evidence demonstration and

adopted control measures, as necessary,

to show that the SIP continues to

demonstrate attainment by November

15, 2005.

(6) Revises the Washington area

severe attainment demonstration to

include a contingency plan containing

those measures to be implemented if the

Washington area does not attain the

one-hour ozone standard by November

15, 2005.

(7) Revises the Washington area

severe attainment demonstration to

include a revised RACM analysis and

any revisions to the attainment

demonstration including adopted

control measures, as necessitated by

such analysis.

(8) Revises the major stationary source

threshold to 25 tons per year.

(9) Revises Reasonably Available

Control Technology (RACT) rules to

include the lower major source

applicability threshold.

(10) Revises new source review offset

requirement to require an offset ratio of

at least 1.3 to 1.

(11) Includes a fee requirement for

major sources of volatile organic

compounds (VOC) and nitrogen oxides

(NOx) should the area fail to attain by

November 15, 2005.

(12) Includes a revision that identifies

and adopts specific enforceable

transportation control strategies and

transportation control measures to offset

any growth in emissions from growth in

vehicle miles traveled or number of

vehicle trips and to attain reductions in

motor vehicle emissions as necessary, in

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combination with other emission

reduction requirements in the

Washington area, to comply with the

rate-of-progress requirements for severe

areas. Measures specified in section

108(f) of the Clean Air Act will be

considered and implemented as

necessary to demonstrate attainment.

[FR Doc. 03-9337 Filed 4-16-03; 8:45 am]

BILLING CODE 6560-50-P

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