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Citation: 68 Fed. Reg. 19106 2003

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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 ofthe severe area rate-of-progress (ROP) plan and transportation control measures for the Metropolitan Washington DC ozone nonattainment area (theWashington area) submitted bythe District of Columbia's Department ofHealth (DoH), by the Maryland Department ofthe Environment (MDE) and bythe Virginia Department ofEnvironmental Quality (VADEQ). EPAis conditioning approval

on commitments submittedby DoH, MDE and VADEQ to submit adopted control measures that qualify as contingency measures to be implemented for failure ofthe Washington area to attain the one-hour

ozone standard for serious areas by November 15, 1999 and adopted contingency measures that willbe implemented should the area fail to attainby 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

arevised rate-of-progress plan that includes emission reductions ofozone precursors of at least 3percent per year from November 15, 1999 to the November 15, 2005, an updated attainment demonstration thatreflects revised MOBILE6-based motor vehicle emissions budgets, a revised analysis of reasonably available control measures (RACM) andto 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 thatmeets all oftherequirements ofa 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 shouldthe area fail to attain by 2005. EFFECTIVE DATE: This final rule is effective on May 19, 2003. ADDRESSES: Copies ofthe documents relevant to this action are available for public inspection duringnormal business hours atthe Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; District ofColumbia Department of Public Health, Air Quality Division, 51 N Street, NE., Washington, DC 20002; Maryland Department ofthe Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230; Virginia Department of Environmental Quality, 629 EastMain 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 sectionis organized to address the following questions:
I.What Action Is EPATaking Today? II.What Were the Conditions forApproval Provided in the Notice ofProposed Rulemakings for the 1996-1999 ROP Plan and Attainment Demonstration? III. What Comments Were Received on the Proposed Conditional Approvals and How Has EPAResponded to them? IV. Applicability ofRevised Motor Vehicle Emissions Budgets V. FinalAction VI. Statutory and Executive Order Reviews

I. WhatAction Is EPA Taking Today?

EPA is taking afinal 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 afinal conditional approval on the basis thatthe Washington area jurisdictions must revise and submit a

severe area SIP thatis consistent with the principle that attainment mustbe achieved as expeditiously as possible but no later than the severe ozone area attainment deadline ofNovember 15, 2005 and thatthe 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 ofthe remaining severe ozone nonattainment

area requirements. OnFebruary 3,2003 (68 FR 5246), EPAproposed to conditionally approve these SIP revisions as a severe area attainment demonstration and only the 1996-1999 portion ofthe Washington area's ROP obligation in accordance with section 110(k)(4) ofthe Clean Air Act (CAA), on the basis ofcommitments from DoH, MDE andVADEQ to remedy these certain limited inadequacies. EPAhas since determined thatthe severe ozone nonattainment requirements intheir entirety are inseparable from the overall Washington Area attainment demonstration. EPAis therefore authorized to conditionally approve the attainment demonstration as a whole based on commitments submitted on April 7 and 8, 2003, fromMaryland, the District andVirginia, respectively, to submit measures to complete the severe

area requirements torevise the previously submitted SIPs listed in Tables 1 and 2ofthis notice to be consistent with andto include all ofthe section 182(d) requirements ofa severe

ozone nonattainment area SIP. The specific commitments submitted by the Washington areajurisdictions 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 thatthe 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 ofozone precursors ofat least 3percent per year fromNovember 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 thatthe 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 ofthe 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 ofevidence demonstration and adopted control measures, as necessary, to show that the SIP continues to demonstrate attainment by November 15, 2005.

(F)Revise theWashington area severe attainment demonstration to include a contingency plan containing those

measures tobe implemented ifthe Washington area does not attain the one-hour ozone standardby November 15, 2005.

(G)Revise theWashington 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
atleast 1.3 to 1. (K) Submit as part ofthe SIP a fee requirement formajor sources ofvolatile organic compounds (VOC) andnitrogen oxides (NOx) shouldthe area fail to attainby November 15, 2005.

(L) Submit as part ofthe SIP a revision that identifies and adopts specific enforceable transportation control strategies andtransportation control measures to offset any growth in emissions from growth in vehicle miles traveled ornumber ofvehicle trips and
to attain reductions in motor vehicle emissions as necessary, in combination with other emission reduction requirements in the Washington area, to comply withthe ROP requirements for

severe areas. Measures specified in section 108(f)ofthe Clean Air Act will be considered and implemented as necessary to demonstrate attainment.

Details onEPA's analysis ofthe previously submitted SIP revisions and their adequacy with respect to the requirements ofa severe ozone nonattainment area are explained in detail in the proposal notice andwill
not be restated here.

Under the CAA, EPA isrequired to approve or disapprove a State's submission no later than 12 months after the submission is determined or deemed complete. OnNovember 13, 2002, the Sierra Club filed a complaint in the United States District Court for the District ofColumbia (District Court) against the EPA (SierraClubv. Whitman, No. 1:02CV02235(JR)) claiming, among otherthings, thatthe EPAhad not issued a final action on several SIP revisions (those listed in Tables 1 and 2ofthis document) submittedby 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 andto publish byApril 17, 2003, a final rule on these SIP revisions. Thisfinal rulemaking action complies with the Court's Order topublish afinal action onthese SIP revisions by April 17, 2003.

Tables 1 and 2identify the submittal and amendment dates for the ROP plans and attainment demonstrations for which EPA is taking final actionto conditionally approve.

TABLE 

### 1.-1996-1999 ROP PLANS

DC MD VA

Initial submittal dates

..................................... November 10, 1997

................... December 24, 1997

................... December 19, 1997. Amendment dates

......................................... M ay 25, 1999

............................. M ay 20, 1999

............................. May 25, 1999.

TABLE 2.-ATTAINMENT DEMONSTRATIONS

DC MD VA

Initial submittal dates

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

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

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

......................................... October27, 1998

....................... August 17, 1998

......................... August 18, 1998. Supplemental dates

....................................... February 16, 2000

..................... February 14, 2000 (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. WhatWere the Conditions for Approval Providedin the Notice of Proposed Rulemakings forthe 1996- 1999 ROPPlan andAttainment Demonstration?

Under section 110(k)(4) ofthe CAA, the EPA "may approve a plan revision based ona commitment ofthe State to adopt specific enforceable measures by

a date certain, but not later than 1year after the date ofapproval oftheplan revision. Any such conditional approval shallbe treated as a disapproval ifthe State fails to comply with such commitment." In the Notice ofProposed Rulemaking published onFebruary 3, 2003 (68 FR 5246), EPA proposed to conditionally approve the Washington area severe attainment demonstration and 1996-1999 portion ofthe ROP plan

onthe basis thatthe Washington area jurisdictions had committed to submit
to EPAby 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 byNovember 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 ofthe 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 revisionsto the attainment modeling/ weight ofevidence demonstration and adopted control measures, as necessary, to show that the SIP continues to demonstrate attainment byNovember 15, 2005. 

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(D) Revise theWashington area severe attainment demonstration to include a contingency plan containing those

measures tobe implemented ifthe Washington area does not attain the one-hour ozone standardby November 15, 2005.

(E) Revise theWashington 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 theProposed Conditional Approvals andHow HasEPA Responded to Them?

In EPA's Notice ofProposed Rulemaking published onFebruary 3, 2003 (68 FR 5246) EPAproposed conditional approval ofthe Washington area's severe area attainment demonstration and the 1996-1999 portion ofthe severe area ROP obligation. EPA alsoproposed disapproval in the alternative to preserve the court-ordered schedule to issue a final rule by April 17, 2003 in the event thatEPA could not issue a final conditional approval with respect to either orboth the attainment demonstration and 1996-1999 ROP plan. EPAreceived comments from the Virginia Department ofTransportation

onMarch 5, 2003 supporting EPA's proposed conditional approval. These
comments will not be addressed here. OnMarch 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 extentthat thepreviously submitted comments are germane to the
current action, EPA generally incorporates by reference its prior
responses to those comments published
at66 FR 586, January 3, 2001, and 68 FR 5246, February 3, 2003. We respond with particularity tomany ofthe previously submitted comments (1)to the extent that events occurring after publication ofEPA's prior responses require that ourprior 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. Commentsin theMarch5, 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 bythe D.C. Circuit court in SierraClubv. 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, andthat conditional approval will prevent the Washington area from attaining the ozone standard as expeditiously aspossible, prevent achievement ofPost-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; thatthe SIP components atissue were due on November 15, 1994; that the States' commitments do not identify "specific enforceable measures" to be adopted by

a date certain; thatthe commitments are to fixmajor components not minor details; that conditional approval is not allowable here because EPA has already allow the Statesto defer submission of various required SIP components for

more than one year; and finally, that all ofthe 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 ofAppeals considered in SierraClub.Conditional approval is a statutory technique that allows EPA to give alimited form of approval to SIPs that do not meet all of the standards for full approval, but where a substantive SIP also includes commitments madeby the states to remedy limited, identified deficiencies through the adoption ofspecific 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 onthe fact thatthe SIP contains mostofthe substantive components for the required plans aswell 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 courtfound thatEPA could
notfully approve them.The Court of Appeals did not address whether EPA could conditionally approve the SIPs as the issue ofconditional approval was notbefore the court and the States had
notmade appropriate commitments at the time ofthe court ruling.

With respectto the assertion thatEPA
cannot use the conditional approval mechanism to allow areas to avoid a statutory deadline, and the complaint about SIP submittal deadlines that have longpassed, EPA is dealing in this case with a SIP that was submittedby the States, reviewed by EPA and approved by EPAin January 2001 through noticeand-comment rulemaking. EPA's approval was then vacated bythe Court ofAppeals onJuly 2, 2002, afterjudicial review.Whatever the merits ofany argument about delays that occurred previously, EPAmust nowtake action

on the SIPs under court order based on the submittal before the agency. That submittal consists ofthe 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. EPAbelieves itis appropriate to conditionally approve the SIPs that the States have recently committed to revise
to satisfy deficiencies which were the basis forvacatur by the Court of Appeals. The States could not have been expected to remedy these deficiencies previously as EPA hadin fact approved the SIPs withoutnoting any such deficiencies prior to the courtruling. The States have now committed to revise the SIPs on an expeditious schedule thatis no later than one year following EPA'sfinal action. Furthermore, EPA notes thatthere is nothing in the statute that limits the use ofconditional approval to SIP revisions that are submitted bythe statutory due date. Nor does the statute link the period for conditional approval to the timeby which the SIP was due. Finally, EPAhas never before conditionally approved these SIPs norhave the States previously made commitments to submit all ofthese portions ofthe attainment demonstration within a year. Forthese reasons, EPAbelieves itis reasonable to use this tool inthis case.

The commenter further claims that a conditional approval will delay timely attainment. However, the commitments

are to submit any necessary additional

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November 2005, so all deficiencies will be cured atleast 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 ofthe 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

onthe attainment demonstration.

The commenter next claims thatEPA
cannot use the conditional approval mechanism where states have failed to submit a substantive SIP component at all, alleging thatin this case various parts ofthe attainment demonstration, such as ROP plans, contingency

measures and RACM, constitute separate SIP components. EPA had indeed argued in SierraClub, supra, that these were separate SIP requirements and for that reason the attainment demonstration should have been upheld without them. However, the Court ofAppeals agreed with the contrary argument, which was actually made by the commenter, and held that ROP plans, RACM and contingency

measures are actually parts ofthe overall Washington Area attainment demonstration and must be included within it. See SierraClubv. 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 ofadopted and SIP approved control measures that reduce local emissions down tothe allowable levels established by the photochemical grid modeling. A listofthese 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 thatthese items
to which the States have committed are
apart ofthe overall Washington area attainment demonstration rather than separate SIP components, EPA concludes thatit is authorized to conditionally approve an attainment demonstration that contains commitments to submit limited components ofthe attainment demonstration.

The commenter then argues thatthese elements ofthe attainment demonstration are so significant that the SIPs cannot be conditionally approved without them. However, the primary portions ofthe attainment demonstration are the adopted control

measures themselves coupled withthe modeling demonstration showing that implementation ofthese measures will result in attainment by therequisite 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; andthe contingency measures address

measures to be implemented in the
eventrate-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 ofthe attainment demonstration that the demonstration cannot be conditionally approved based on the States commitment to complete the additional analyses along with adoption ofany necessary additional measures in the short term. EPA addresses the
commenters specific concerns about the substance ofthese three SIP portions elsewhere in responding to comments regarding the individual elements ofthe attainment demonstration.

Further, the commenter alleges that conditional approval is inappropriate in this casebecause the States have purportedly not made commitments to adopt specific enforceable measures as required by section 110(k)(4). In contrast, EPA believes thatthe commitments submittedby the States doindeed committhe States to ultimately adopt specific enforceable

measures ifsuch measures are determined to be needed based on further analysis. The commitment letters specifically state thatthe States will submit adopted contingency

measures requisite to satisfy the contingency measure requirements for various circumstances relating to ROP and attainment. The States further commitnot onlyto conduct the various RACM and mobile modeling analyses, but alsoto revise the attainment demonstration itselfas appropriate in light ofthese analyses. EPA believes that there can be no interpretation of these commitment letters otherthan a conclusion that the Stateshave 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 ofthe demonstrations, if appropriate. Itis true that the States havenot yet identified the specific

measures that could ultimately be adopted, however it wouldbe impossible for them to do so in advance ofconducting the requisite RACM and modeling analyses.

The commenter argues that contingency measures shouldnot be the subject ofa conditional approval in DC because itis likely thatbythe summer of2003 it could be determined thatthe 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 attainby the applicable attainment date. (CAA section 172(c)(a)). The statute does not require implementation ofcontingency

measures priorto the attainment date based on aprojection thatthe area will
not attain when the attainment date is reached. Given thatthe States have committed to submit all necessary contingency measures by April 2004, any needed contingency measures wouldbe available for implementation should EPAmake a determination by May 15, 2006under section 181(b)(2) of the Act thatthe area failedto attain by November 15, 2005.

We also disagree with the commenters' allegation in comments previously submitted on September 9, 2002 thatthe motor vehicle emissions budgets (MVEBs) in the attainment demonstration do not reflect the potential to lowerthe MVEB through transportation related controlmeasures should the area fail to attain or to meet ROPrequirements. With respect to those contingency measures that would be triggered by the failure to attain, the attainment year MVEB wouldnever account for these contingency measures because suchmeasures would never be triggered until after the attainment year. Should those contingency measuresbe triggered, it wouldbe appropriate at that timefor the state to revise thebudgets
to reflect implementation of such

measures infuture years, but this cannot be done in advance ofimplementation ofthe measures as it is unclear whether the measures would ever in factbe implemented.

Similarly, with respectto contingency

measures triggered by the failure tomeet ROP, the obligation to account for those contingency measures is not triggered until it has been determined thatthe

area has failed to meet its ROP requirements. EPA is allowing the Washington areajurisdictions to demonstrate the first required post-1999 ninepercent ROP (which was due under the statute byNovember 15, 2002), as 

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expeditiously as practicable, ifcontrol

measures currently in the SIPs, or already promulgated by EPA, did not achieve the required nine percent reduction byNovember 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 tomeet 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 theWashington

area did, or did not, meet its 1999 ROP requirement and the requirement to implement contingency measures for failure tomeet the 1999 ROP requirement has not yetbeen (and may not ever be) triggered. As with any contingency measures that wouldbe implemented for a future failure to attain,because the obligation to implement contingency measures for failure tomeet 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) ofthe Act, which prohibits EPA from approving a SIP revision that would interfere with any applicable requirement ofthe 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 ofthe applicable requirements ofthe Act requisite to support a conditional approval.

2.Attainment Demonstration

a. RACMandAttainment as ExpeditiouslyasPracticable. Comment:The commenter argues that the submitted SIPs donot 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, asnoted by the Court of Appeals in SierraClub, 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 onlytwo years away. EPAtherefore concludes, in light ofthe States commitments to conduct a RACM analysis and submit any additional measures determined to constitute RACM within ayear, that it is appropriate to conditionally approve the attainment demonstration SIPs atthis time. Should the RACM analyses determine thatthere are in factpotential RACM that could advance the attainment date, then EPA could
approve an earlier attainment demonstration including suchmeasures. However, in advance ofcompletion of suchRACM analyses EPAbelieves on the basis ofthe attainment demonstration before itthat the SIP does demonstrate attainment as expeditiously aspracticable. This preliminary conclusion isneither arbitrary nor capricious given the short period oftime until the attainment date. Although no final conclusions canbe reached until the RACM analyses are completed, given the time necessary for implementation ofmeasures EPA believes it is unlikely that sufficient

measures couldbe 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 atleast

ayear, often longer, for sources to implement required controls. Even if these process were significantly accelerated, itis highly unlikely that controls would be implemented bythe
start ofthe 2004 ozone season.

b. Demonstrationof Attainmentby 2005.

Comment:We received comments declaring that the attainment demonstration, andEPA's analysis ofit, look only at ozone levels in 2005, not 2003 and 2004. The comments assert that to demonstrate attainment by November 15, 2005, the demonstration ofattainment must show that no monitor in the nonattainment area will have an average ofmore 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 of40 CFR part 50.

Response:EPA disagrees with the
comment. While EPA does agree that §50.9 of40 CFR part 50 establishes the form ofthe 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 ofthe requirements for an attainment demonstration required under section 182(c) ofthe CAA in light ofthe form ofthe ozone NAAQS. Air quality models donot know what year isbeing modeled, only the emissions levels andthe meteorology. The meteorology component wouldbe 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 tothose weather conditions thought to generate highlevels ofground level ozone. In contrast, allmonitored 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. Amonitored value of 0.125 ppm counts as one exceedance to the same extent as avalue of0.150 ppm. Modeling demonstrating thatthe most

severe episodes willyield few orno exceedances willbe consistent with elimination ofexceedances on less

severe weather days.

As EPA statedin the technical support for this rule, the modeling demonstration considered severe episodes: the ozone forming potential rankis veryhigh for one day-July 20, 1991. Thisis the thirteenth most severe day out of approximately the last 50
years, one thatis likely to recur only

once every 4 to 5years on average. This type ofday is not likelyto occur often enough to be a major causative factor for nonattainment, especially since the emission controls modeled inthis plan should eliminate ozone exceedances for allbut the mostmeteorologically severe days.

EPA has concluded thatthe modeling analysis allows anthropogenic emissions in the Washington area of360
tons per day ofVOC and 538 tons per day ofNOx.

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 dueto increases in emissions-related activity to reduce emissions to the base year levels; and, second, the plan has toproduce sufficient additional reductions beyond thatneeded 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 ROPplan") had to achieve reductions 

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net ofgrowth of 128.3 tons per day of VOC and 116.2 tons per day ofNOx 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 ofROP 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 ofbeyondRACT controls were calculated, the 1996-1999 ROP plan did not rely upon those controls and did not rely upon Phase II ofthe RFG program which was implemented in January 2000.

The attainment modeling considered the effects ofthe OTC Phase II NOx controls. The benefits for these controls would have been 93 tons per day in 1999. 70 tons per day ofreduction were achieved from the District's and Maryland's Phase IINOx rules which

were implemented commencing May 1, 2002.1 Major further reductions will

occur in 2003 from the implementation ofthe NOx SIP call rules in Maryland and Virginia and beyond RACT controls

onthe two major utility sources in Virginia.2 Thus,by 2003, the local NOx emissions would be close to the levels required bythe local area modeling.

The Phase II RFGprogram is projected
to yield 23.5 tons per day ofVOC reductions in 2005 versus a little less than 16 in 1999. Much ofthis additional benefit would have been achieved in calendar year 2000 when the second phase ofthe program was implemented
to achieve the mandated additional VOC reductions over and above thatrequired by the first phase.

The attainment plan requires reductions net ofgrowth of148.5 tons per day ofVOC and 192.9 tons per day ofNOxto reduce emissions to the levels allowedby the attainment modeling demonstration. These are 4.8 tons per day ofVOC and 69.9tons per day of NOx lower than the reductions credited
to the Post-1996 for the 1999 milestone. The creditable emissions reductions net ofgrowth by 2005 are 151.8 tons per day ofVOC and 327.9 tons per day ofNOx. 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 thatrequired 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.

2These 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 dueto transport. For a 2004 year,EPA believes thatthe

resources needed to develop the necessary inventories, process them for incorporation intothe air quality model andto 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 setby the modeling demonstration.

c. The Ozone Standard. Comment:The commenter stated that EPA had based itsproposed approval of the attainment demonstration onthe assumption thatthe 1-hour ozone standard is0.125 ppm, when the actual standard is0.12 ppm.

Response:The level ofthe 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 datahandling approach employed to compare ambient air quality datato the 1-hour ozone standard isto round to two decimal places as per the regulations and guidance referenced above.

Although the 1-hour NAAQS itself includes no discussion ofspecific data handling conventions, EPA's publicly articulated position and the approach long since universally adopted bythe air quality management community is that the interpretation ofthe 1-hour

ozone standard requires rounding ambient air quality data consistent with the stated level ofthe standard. EPA has clearly communicated the datahandling conventions forthe 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

orissued by the Administrator under this Act, as in effectbefore the date of the enactment ofthe Clean Air Act Amendments of1990 shall remain in effect according to its terms * * *" Thus, under the amended CAA, Congress expressly carried forth EPA interpretations set forth in guidance such asthe 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 ofthe standard dictates the number of significant figures to be used in determining whether the standard

was exceeded (see "Guidelines for the Interpretation ofAir Quality Standards," OAQPS No. 1.2-008, February 1977). In addition, the regulations governing thereporting of annual summary statistics from ambient monitoring stations for use byEPA 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, EPAissued additional guidance specific to ozone inwhich EPA provided that "the stated level ofthe standard is taken as defining the number of significant figures to be used in comparisons with the standard. For example, a standard level of0.12 ppm
means thatmeasurements are tobe rounded to two decimal places (.005 rounds up), and, therefore, 0.125 ppm is the lowest concentration value in excess ofthe level ofthe 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 ofModeled Results to Demonstrate Attainment ofthe Ozone NAAQS, July 1996.

d.ModeledDemonstrationof Attainment. Comment 1:The commenter alleges thatphotochemical grid modeling shows thatthe Washington area willnot attain the ozone standard by the November 2005 attainment date and because the "weight ofevidence" (WOE) analysis usedby EPAto conclude thatthe Washington area has demonstrated attainment by November 2005 is not authorized by the Act orby EPArules. The comments claim that the modeling demonstration and WOE used in the attainment demonstration for the Washington area do not meet requirements ofsection 182(c) ofthe 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), andthat WOE is a proscribed rollback method. Also, the commenter claims the most recentmodeling guidance is flawed because: itis 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 ofalleged flaws in the techniques for determining the magnitude ofadditional emission reductions. The commenter therefore
asserts that approval ofthe attainment demonstration would be arbitrary, capricious and contrary to law for

reasons set forth in comments submitted

onMarch 5, 2003, as well as those previously submitted to EPA on February 14, 2000. Such comments also included EPA's treatment ofoverprediction ofozone levels bythe photochemical grid model, EPA's
treatment ofmodeled exceedances over the standard and EPA's treatment ofthe photochemical grid modeling results prediction ofexceedances 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 tothe photochemical grid modeling for the Washington area.

Response1: WOEisconsistentwith the CAA and EPA regulations.

With respect to the allegation that the WOE analysis used by EPAis not authorized by the Act orEPA 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 thatthe 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 tophotochemical 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 isconsistent with therequirement of section 182(c)(2)(A) that the attainment demonstration "be based on photochemical grid modeling," because the modeling results constitute the principal component ofEPA's analysis with supplemental information designed to account for uncertainties in the model. This interpretation and application ofthe photochemical modeling requirement of section 182(c)(2)(A) finds furtherjustification in the broad deference Congress granted EPA to develop appropriate methods for determining attainment, as indicated in the last phrase ofsection 182(c)(2)(A).

This interpretation ofthe Act has been upheld by the Court ofAppeals for the Fourth Circuit, which stated "EPA has longrecognized thatthere are uncertainties inherent in available models and in estimating future emissions * * *. EPAthus 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 Friendsof Marylandv.Browner,265 F.3d 216, 234 (4thCir. 2001)(internal quotation omitted).

The flexibility granted to EPAunder section 182(c)(2)(A) is also reflected in the regulations EPA promulgated for modeled attainment demonstrations. These regulations provide, "The adequacy ofa 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) isrecommended for photochemical orreactive pollutant modeling applications involving entire urban areas," but further refers to EPA's modeling guidance for data requirements andprocedures 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,

aswell as interpretation ofmodel results as they relate to the attainment demonstration. Thisprovision references guidance published in 1991; however, EPA envisioned that the

3TheAugust 12, 1996 version of"Appendix W
ot Part 51-Guideline on Air QualityModels" was the rule in effect for these attainment demonstrations. EPA is proposing updates to this rule which will notbe 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 ofEPA's guidance has led us to the use ofthe photochemical grid model, as well, orin conjunction, with additional analytical methods approved by EPA.

EPA's interpretation ofthe CAA is consistent with the statute's requirement thatthe attainment demonstration be "based on photochemical grid modeling." Giving the phrase "based on" its ordinary meaning, the statute requires onlythat

an attainment demonstration "arise from" photochemical grid modeling, using the modeling as a "starting point"

or "foundation." SeeMcDanielv. Chevron Corp.,203F.3d1099, 1111 (9th Cir. 2000) (reviewing cases interpreting the phrase "based on"); UnitedStatesv. UnitedTechnologies.Corp.,985 F.2d 1148, 1158 (2dCir. 1993) ("based upon" does not mean "solely"). EPA's weightof-evidence analysis is consistent with the plain meaning ofthe statute because photochemical grid modeling is the starting point ofthe analysis; indeed, the very purpose ofthe WOE analysis is
to determine whether the modeling, in lightof allthe evidence, demonstrates attainment.

Even ifthe 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 onthe premise that the statute should be read to say an attainment demonstration must be based solely onphotochemical gridmodeling without reliance on any analytical adjuncts. Even ifthis were aplausible reading ofthe statute, EPA's interpretation is equally permissible. See UnitedTechnologies,985 F.2d at 1158. Our interpretation adheres to the normal meaning ofthe statutory language andis supported by the broad discretion that Congress granted to EPA in section 182(c)(2)(A).

Because EPA reasonably determined thatWOE analysis isbased on photochemical grid modeling, there is

no merit to the alternative statutory argument found in the comments. The
comments contendthat 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 bythe Administrator.4

Under "Guidance on the Use Of Modeled Results toDemonstrate Attainment ofthe Ozone NAAQS," EPA-454/B-95-007, June 1996 (hereafterthe 1996 Guidance), the modeled attainment test compares model predicted 1-hour daily maximum

ozone concentrations in all grid cells for the attainment year tothe level ofthe NAAQS. The results may be interpreted through either oftwo 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 thatthe

area is expected to exceed the standard in the attainment year and a prediction
ator 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, orbelow, an acceptable
upper limit above the NAAQS permitted under certain conditions (depending on the severity ofthe episode modeled).

Based upon our experience with application ofthe 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 ofthe 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 itsresults. The inherent imprecision ofthe model

means that itmay be inappropriate to view the specific numerical result ofthe model as the only determinant of whether the SIP controls are likely to lead to attainment.

EPA's 1996 Guidance recognizes these limitations, andprovides a means for considering other evidence to help

assess whether attainment ofthe

4For the same reasons, EPA was notrequired to address whether its 1996 or 1999 Modeling Guidance is a "substitute" for modeling or is an adequate model by itself. NAAQS is likely tobe achieved. The process bywhich this is done is called

aweight-of-evidence or WOE determination. Under aWOE 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 of1-hour ozone NAAQS exceedances); actual observed air quality trends (i.e., analyses ofmonitored air quality data); estimated emissions trends; andthe responsiveness ofthe model predictions
to further controls in addition to the results ofthe modeled attainment test.

In 1999, EPA issued additional guidance (hereafter, the 1999 Guidance) 5that makes further use of model results forbase case andfuture emission estimates to predict afuture design value. This guidance describes the use ofan 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 tomonitor attainment ifeach monitor site has air quality observed ozone design values (4thhighest daily maximum ozone using the three most recent consecutive years ofdata) at orbelow the level ofthe standard (whichis 124 ppb). Therefore, it is appropriate for EPA, when making

a determination that a control strategy will provide for attainment, to determine whether ornot the model predicted future design value is expected tobe ator below the level of the standard. Since the form ofthe 1-hour ozone NAAQS allows exceedances, it did not

seem appropriate for EPA torequire the
test for attainment to be "no exceedances" inthe 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 ofthree years. The three year "design value" represents the air quality observed duringthe 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 ofthe ozone standard without a resulting violation.

"Guidance for Improving Weight ofEvidence Through Identification of AdditionalEmission Reductions, NotModeled." U.S. Environmental Protection Agency,Office ofAirQuality 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 inmeteorology.6 The result is an estimate of an area's base year design value. The base year design value is multiplied by aratio of the peak model predicted ozone concentrations in the attainment year (i.e.,average ofdaily maximum concentrations from all days modeled)
to the peakmodel predicted ozone concentrations in thebase year (i.e., average ofdaily maximum concentrations from all days modeled). The result is an attainment year design value based onthe relative change in peakmodel predicted ozone concentrations from the base year to the attainment year.

The use ofthis analytical adjunct, however, does not mean that a state's attainment demonstration is "based on" something other than photochemical grid modeling, or thatWOE 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 ofevidence determination, model results are weighed heavily"). It follows that the WOE approach is consistent with the CAA requirement thatthe attainment demonstration "be based onphotochemical grid modeling," because WOE is merely an adjunct for assessing the photochemical grid modeling. In the case ofthe Washington area demonstration, photochemical grid modeling is the primary basis for the attainment demonstration. See 1996 Guidance at S1. The 1999 Guidanceisreasonableand isnotaproportional rollback. As stated previously, episodic photochemical grid modeling is the primary basis for the attainment demonstration, as it was usedto define the majority ofthe control strategy. However, the modeling and corroborative analyses, which formthe basis ofthe weight of evidence analysis, provide a preponderance ofevidence to

6The commenter criticized the 1999 Guidance
because itallegedly allows the averaging across the three highest air quality sites across a region, whereas EPA's earlier (1991 and 1996) modeling guidancerequires that attainment be demonstrated
ateach 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 ofthe worst modeled air quality value across episode days or worst designvalue across a three year period. Also,the WOE determination, inturn, is intended to be a qualitative assessment ofwhether additional factors (includingthe additional emissions reductions not modeled), taken as a whole, indicate that the area is more likely than notto attain. 

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support EPA's determination that attainment ofthe 1-hour ozone NAAQS will be achieved in 2005. One ofthese WOE analyses involved the use ofa relative reduction factor (derived from the local model results) to determine if any additional NOx andVOC emissions reductions are needed to attain. We used the photochemical grid model in a relative sense to determine ifthe
response ofozone concentrations to controls was adequate to predict a future design value below the level of the NAAQS. Inherent in thebase design value is the level and form ofthe 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 of40 CFR part 51, appendix W which defines "rollback" as "a simple model that assumes thatif 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 ofappendix 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 ofmodel 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, andit 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, EPAused a locally derived relative reduction factor

as determined by the photochemical grid model to estimate a future design value. Othercomments on the 1999 Guidancearenotgermaneto the Washingtonarea.

The comments alleged flaws in the
two techniques for determining the magnitude ofadditional emission reductions. With respect to comments

onthese two techniques for determining the magnitude ofadditional emission reductions contained in the 1999 Guidance, EPAbelieves these comments donot apply in the case ofEPA's analysis ofthe attainment demonstration for theWashington area.

The first allegation isthat 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 ofthis averaging technique is that lower air quality concentrations are averaged against higher concentrations thus reducing the total emission reduction needed to attain atthe highest site.

The second allegation concerns the assumption thatthe 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 ofVOC

versus NOx emissions varies from siteto site.

The 1999 Guidance provided atwostep method for evaluating the air quality modeling results. The first step is an assessment ofwhether attainment is demonstrated by a showing that a future year design value will be 0.124 ppm or less. In the event thatthe predicted attainment year designvalue is above the standard, the second step ofthe 1999 Guidance provides two techniques for identifying additional emission reductions, thatwere not modeled, and which at a minimum provide an estimated attainment year design value at the level ofthe standard. The first technique is the use ofa "relative reduction factor (RRF)" analysis to estimate a future design value. 7We used this analytical method
to demonstrate that theWashington 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 tothe limited number ofdays that can reasonablybe modeled. The RRF analysis, however, provides an estimate offuture 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 of119.6 ppb which isless 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 ofsuch additional reductions are not germane to

71999 Guidance at 3-4. this rulemaking and are not addressed in this document.

EPA's treatmentofover-predictionof

ozonelevels, ofmodeledexceedances anddownwardadjustmentofresults.

As another element ofEPA's WOE analysis, we evaluated the photochemical grid modeling for the Washington area. We analyzed the severity ofthe episodes modeled for the Washington area and have concluded thatthese would be adequate for determining the emission reductions needed for attainment in the Washington area. Whenthe emission inventory with the control strategy is modeled, peak ozone concentration is reducedby 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 (22ppb) is subtracted fromthe peak measured concentration forJuly 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 thepeak monitored level onJuly 20 (178 ppb), the resulting concentration is 156 ppb. Whenthe day-specific reduction ofpeak modeled ozone concentration fromthe base year modeling to the attainment year modeling is subtracted from the peakmeasured concentrations onJuly 16th, July 19th, andJuly 20th, theresult is 120 ppb, 103 ppb, and 158 ppb respectively. Both methods (average, day-specific) resulted in two ofthe three days showing values below the ozone standard indicating attainment for these days. However, both methods resulted invalues above the standard for July 2Oth.8

EPA has evaluated the ozone formation potential ofthe July 20, 1991, episode day and determined that itis 13th most severe day out of approximately the last 50 years with an average reoccurrence ofonce every4-5 years; this type ofday is not likely to

occur often enough to be a major causative factor fornonattainment because the standard allows up to three monitored exceedances in any three year period.Because modeling for the Washington area showed somepeak concentrations above 124 ppb, EPA conducted the RRF analysis which is

8The details ofthis analysis and the method and
calculation detailsby which EPA determined how much the model over-predicts monitored ozone concentrations is explained in "First Amendment to Technical SupportDocument for Approval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, 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 ofthis sectionto 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 ofthis section, EPA has concluded that theWashington 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 ofother evidence.

The base case model performance for both ofthe July 1991 episodes show good alignment ofthe 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 thepeak 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 thatEPA 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 ofmodel uncertainty as one ofthe factors affecting the model results. In EPA's view, model over prediction is only a rough approximation ofthe 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. Forthe Washington area, EPA explained how performance was

more closely reviewed and used as part oftheWOE determination.

As a further part ofthe WOE analysis
to corroborate the likelihood thatthe Washington area will attain the 1-hour

ozone standard by the attainment date of2005, EPA developed relative reduction factors based on regional scale modeling performed for the NOx SIP call supplemental notice ofproposed rulemaking (NOx SIP Call SNPR) (see63 FR 25902, May 11, 1998; and see63 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 allfuture predicted design values below the level needed for attainment (124 ppb). To provide additional information, the EPA's relative reduction factors were appliedto 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 ofthis updated analysis still showed allfuture predicted design values below 124 ppb. 9
A future designvalue 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. 1 0 Based onthe results ofthe local scale modeling along with the additional WOE arguments provided in the attainment demonstration plan, EPA believes that attainment ofthe 1-hour

ozone standard has been successfully demonstrated forthe Washington area by the November 2005 attainment date. Comment2:In the March 5, 2003, letter the commenter asserted that 2002

ozone levels recorded in the Washington area show that theWOE analysis is flawed. The comments summarize the 2002 datain terms of nine days thatthe 1-hour standard was exceeded with as many as 8 different monitors recording exceedances on

some ofthose days and claim this number ofexceedance days was higher than in any ofthe preceding 10 years. The comments assert thatthis data, including a peak ozone value of0.158
ppm, refutes EPA's WOE analysis. The

same commenter cited topertinent
comments previously submitted toEPA

9TableIV C-2 to "First Amendment to Technical SupportDocument for Approval andPromulgation 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 ofthree years ofmonitored design values that represent the modeled base case emissions. In the case ofthe Washington area, the model episodes arefor 1991, and,thus, the three design values used are those thatreflect the 1991 monitoring data, i.e.,the design values for 1991, 1992 and 1993. In the case ofthe 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 WeightofEvidence Through Identification ofAdditional EmissionReductions Not Modeled" to "Technical Support Document for the One-Hour Ozone Attainment Demonstrations submitted by the State ofMaryland, Commonwealth of Virginia and theDistrict ofColumbia 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 thatEPA looks only
atthose "weights" that favor afinding ofattainment and specifically cited 1999 air quality data. The comments assert thatthe data through 1999 show
current violations at 4 different monitoring sites. The comments highlightpeak 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.

Response2: WeightofEvidenceandAirQuality Generally.

The District, Maryland and Virginia providedWOE arguments in the attainment demonstration to further corroborate that itis likelytheir 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 andthe Districtused 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 datathrough 1998. Againthe 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 hasperformed these same evaluations. Once again, the results were that all future predicted design values were below 124 ppb. The detail data and computations havebeen placed inthe docket for this action.

NumberofExceedenceDays. Compliance with the one-hour ozone standard is determined by comparing the monitored annual average number of expected exceedances ofthe 0.12 parts permillion (ppm)with the one-hour standard. The one-hour standard is exceeded inpractice 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 of0.124 ppm orless rounds down
to 0.12 ppm andvalues of0.125 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 of40 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 ofthe ozone NAAQS requires the use ofa 3-year period to determine the average number of exceedances per year. In its simplest form, the ozone standard requires that the average number ofexceedances over

a 3-year period, cannot be greater than 1.0. An area with fourexceedances during a 3-year period, therefore, does
not meet the ozone standard because four exceedances in 3years averages out to more than once per year. Because of the form ofthe ozone NAAQS, data are combined over multiple years but they

are not combined from different sites.

The number ofexpected exceedances for ayear is always equal to or greater than the actual number ofmeasured exceedances. The one-hour ozone standard is violated when the annual
average number ofexpected exceedances exceeds 1.0. The standard andthe 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 ofthe 1999 and 2002 and intervening years ofozone data would be to perform the expected exceedances determination using that data. Thatthe 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 ofexpected exceedances over the three year period 2000 to 2002.

Therefore, EPA believes thatthe number ofexceedance days is irrelevant when evaluating an attainment demonstration because the number of exceedance days has no bearing onthe form ofthe 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 thatmatter) is irrelevant unless placed in context with theremaining data for 2002 as well as the data for 2000 and 2001. Amonitor is in full compliance with the standard which

11

Whiletheroundingmay seemtoincrease the standard by four percent (.005 divided by 0.12), the standard was set to include an ample margin of safety asrequired by section 109(b) ofthe CAA. allows up to 3.1 expected exceedances under 40 CFR 50.9 and appendix H to 40 CFR part 50. Under appendix Hto 40 CFR part 50, a monitor has to record at least a value equal to orgreater than 0.125 ppm in order for the number of expected exceedances tobe 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 PartsPerBillion (ppb) Adjustment toPeakValues.

The commenter stated that evenifone

assumes that the NOx SIP call will deliver a 7ppb ozone reduction in the peak ozone values the peak ozone concentration will still be violating the standard.12 As stated in thepreceding paragraphs, compliance with the standard isnot 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 thatthe peak monitored data would be theproper determinant ofnonattainment using such amethod. EPAbelieves that to use such amethod properly the commenter's assumed adjustment of7 ppb (0.007 ppm)would have to be subtracted from all the monitored data readings to see ifa 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 ofdaily measurements in future years as in thepast 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 ofdata for 2002. Because the reported data covers the 123 days for the months ofJuly through October, one couldreasonably assume the monitor will be operated over the entire ozone season in the future. But such an assumption does not provide
any insight intojusthow much data capture one should assign to the monitor in the future to compute expected number ofexceedances using appendix Hto 40 CR part 50. Likewise, assumptions have tobe made concerning the number ofdays assumed less than the standard when computing the number ofexpected exceedances.

Examination ofthe ozone data for any time period will show avariation in the number ofmonitored exceedances at

12The commenter submitted the 7ppb adjustment to claim that -[e]ven ifonewere to

assume a 7ppb reduction inambient levels from the NOx SIPcall which is near the middle ofthe 5-10 ppb reduction attributed to the SIP callin the TSD, the Greenbelt monitor would stillbein violation." any one monitoring site. For the 1997 to 2002 time period, the onlymonitors that haverecorded 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 havebeen recorded and years where one or more havebeen recorded.

EPA has determined that applying an assumed 7ppb adjustment to all ofthe 1997 to 2002 data would yield no monitor, forwhich complete datais available for the 1997 to 2002 time period, with more than 3exceedances for the three year period ending in 2002. Forthose monitors which have datafor only one ozone season for the period ending in 2002, EPAnotes that the 7 ppb adjustment would result ingreater than 1.0 exceedances atthe following
two monitors: one monitorin Fairfax County, Virginia (monitorID 510591005-1) and one inPrince George's County, Maryland (monitorID 240338003-1). However, these monitors have only one year ofdata. And the monitor in Prince George's County recorded only one exceedance in 2002, but the number ofexpected exceedances for 2002 is 1.7 after applying the procedures of40 CFR part 50, appendix Hthat account for missing days ofdata.

EPA has determined that applying a 5 ppb adjustment to all ofthe 1997 to 2002 data would yield only one additional monitor (that inArlington, Virginia)with more than 3exceedances for the three year period ending in 2002.

These results are presented in detail in the technical support for this final action.' 3Asnoted above, EPA believes thatmonitoring data for one year isnot necessarily a good indicator offuture year data. Forthis reason, EPA believes this one scintilla ofcontrary evidence (whicharises from a method thatEPA neither proposed nor endorses) does not outweigh the preponderance of evidence supporting EPA's determination that attainment ofthe 1- hour ozone NAAQS willbe achieved in 2005.

MonitorTrends. With regard to the 1999 data, EPAhas determined thatthe one-hour ozone NAAQS was violated at six monitors with three full years ofdata for 1997 to

13 See section IV. "Regarding Comment on Number ofExceedance Days and anAir Quality Adjustment of 7ppb and Air Quality Trends" to "First Amendment to Technical Support Document forApproval and Promulgation ofAir Quality Implementation Plans; District ofColumbia, 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 ofdata for 1998 and 1999, not the four monitors identified in the comments. For the 2002 ozone season, violations were recorded at sevenmonitors. One of these sevenhas only one full ozone

season (which was 2002) and recorded
two exceedances in 2002 (withthe designvalue being the second highest reading which was 137 ppb). Another

one ofthese seven has data for the last 123 days ofthe ozone season (July 1, 2003, through October 31, 2003 inclusive). This monitor recorded only

one exceedance, but dueto the adjustment procedure found in 40 CFR part 50, the number ofexpected exceedances is increased to 1.7.

The worstmonitor for 1999 had an annual average of4.2 expected exceedances and a designvalue of0.132
ppm. By the end ofthe 2002 ozone

season this monitor had an annual average of 1.4 expected exceedances and

a designvalue of0.128 ppm.

In terms of average number of expected exceedances, one monitor had

an annual average of2.7 expected exceedances based upon the 2002 ozone data. For 2002, this monitor had a designvalue of0.126 ppm. At the end ofthe 1999 this monitor had an annual average of 1.3 expected exceedances and

a designvalue of0.128 ppm.

Since 1999, for the monitors with

more than one season ofdata, the average number ofexpected exceedances atthe worst monitor has dropped from 4.2 to 2.7 and the design value has dropped from 132 ppb to 128 ppb. Comment3: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 ofthe UAM to demonstrate eligibility for granting waivers from the NOx requirements under section 182(f). The commenter quotes a portion section 2.6.1 ofthe NOx Supplement tothe 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 NOxreductions)." 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 ofTitle I ofthe Clean Air Act Amendments of 1990," 57 FR 55620, November 30, 1992. crucial UAM modeling. The commenter concludes with an assertion that EPAis being inconsistent by allowing attainment demonstrations to discount UAM results while requiring adherence
to UAM before NOx waivers can be granted to limited groups ofsources.

Response3:EPA disagrees with the
comment for several reasons. The
comments ignore the overall context in which EPAmade this one statement in section 2.6.1, and, specifically, EPA does not agree thatthe use ofthephrase "photochemical grid modeling isthe onlyreliable tool" has the meaning ascribed to itby the commenter when placed in the context ofthe original guidance and subsequent guidance. The comments alsoignore subsequent guidance issued regarding waivers from the NOxrequirements ofsection 182(f) (NOxwaivers).

In section 2.6.1, ofthe NOx Supplement to the General Preamble, EPA stated thatEPA has determined that, as atechnical matter, photochemical grid modeling isthe only reliable tool to justify an area-wide exemption from the NOx requirements (orrelaxation ofotherwise required NOx reductions). We concluded that states must include in such demonstrations photochemical grid modeling analyses that consider various control strategies with and without NOxreductions. We statedthat for avariety ofozone nonattainment areas photochemical grid modeling either has not been utilized previously or, ifutilized, has not adequately considered the effects of NOx emission reductions. We recognized that atthat time, while efforts to conductphotochemical grid modeling were underway in many states, the time needed to establish and implement a modeling protocol andto interpret the model results will, in a variety ofcases, extend beyond the November 15, 1992 deadline for submission ofNOx rules.

OnDecember 16, 1993, EPAissued "Guideline for Determining the Applicability ofNitrogen 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 itwould allow grid models other than UAM tobe used for regional scale modeling needed for the net ozone benefits test in transport regions. 1 5

Under the "net air quality test", EPA statedthat the primary test shouldbe

15See Guideline forDetermining the Applicability ofNitrogen Oxides Requirements under Section 182(f), December 16, 1993, section 7.3. the effect the exemption would have on attainment ofthe primary NAAQS for the criteria pollutants and that secondary tests, as needed, can extend
to the (qualitative or quantitative) consideration ofother air quality impacts that are explicitly recognized in the CAA. Under this test, an area would haveto make a showing thatthe area under consideration clearly does not need NOx reductions to provide for attainment to attain any NAAQS.16 This shouldbe based on a comparison ofthe 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 maybe usedinstead of the geographic area exposure factor.

Under the "contribute to attainment test", EPA statedthat the demonstration
must show that additional NOx reductions would not contribute to

ozone attainment in the area. The guidance was tomodel: (1) Substantial VOCreductions; (2) substantial NOx reductions; and (3)both the VOC and NOxreductions. Ifthe attainment demonstration has notbeen completed, such substantial VOC reductions need
notbe alevel showing attainment if suchreductions are substantial.1 7 Ifthe 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 wouldbe eligible for an exemption from the section 182(f) requirements.' 8

Under the "net ozone air quality benefit test", EPArequired a comparison ofexposures to ozone concentrations resulting from: (1) Substantial VOCreductions; (2) substantial NOxreductions; and (3)both the VOC and NOx reductions. Ifthe attainment demonstration has notbeen completed, such substantial VOC reductions need not be a level showing attainment ifsuch reductions are substantial.19The geographic scope was all portions ofthe ozone transport region in which impacts fromNOx emissions from the area seeking the exemption can be determined bythe photochemical grid model. Under the guidance, ifthe 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.
13Id., Chapter 4. 191d.,Chapter 8. 

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benefits demonstration couldbe approved.20

The "contribute to attainment" and "net ozone benefit" tests described in preceding paragraphs both require an area-wide orregional analysis. In such area-wide/regional analyses, NOx emission reductions ata large number of

sources are considered. These analyses

are appropriate to determine in a directional manner whether or not NOx reductions are expected tobe beneficial with respect tothe air quality inthe 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 thatthe

excess reductions provision requires a

more precise analysis; specifically an analysis which isbased 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, EPAbelieves 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 thatphotochemical grid modeling was the only reliable tool

we did not mean to confine modeling exclusively tojust UAM. Rather, our guidance meant to exclude trajectory based models which lack the necessary treatment ofthephysical orientation of the NOx sources, dispersion oftheir plumes and cannot assess whether NOx control contributes to attainment in all parts ofa nonattainment area because they address a limited number of trajectories. 23

The General Preamble specified that NOx waivers would need tobe supported byphotochemical modeling analyses. The scope ofthese analyses

was refined in subsequent guidance. This subsequent guidance specified the
test required under for each of the different categories ofNOx waivers set by statute. Some ofthe tests needed for NOx waivers are only directional in that

one need to make comparisons in the changes in air pollutant concentrations dueto large VOC-only, NOx-only, and VOC plus NOxreductions. Some of

20Id., Chapter 5. 2 1Id., Chapter 6.

22Id., Chapter 6.
2 3 d., section 7.1. these comparisons relate to geographic

orpopulation exposures to ozone levels. The excess emissions reduction test is tied to the attainment demonstration. With the exception ofthe 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 ofspecified or substantial NOxreductions than with suchreductions.24 In all the tests, except those tied to an area's attainment demonstration, resultsfrom photochemical modeling one reduction scenario are compared withmodeling 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. UseofMOBILE6. 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 nowthat the MOBILE6 model is available for use.

Response:The MOBILE6 model was not available for use atthe time these SIPs were developed. The model is now available, andEPA guidance issued with release ofthe model does indicate that any new SIP modeling should be conducted with the new model. The Washington areajurisdictions had already completed significant SIP modeling efforts prior to release of MOBILE6. EPA's guidance provides that EPA may continue to approve SIPs based onMOBILE5 under these circumstances. Seethe January 18, 2002 Memorandum titled, "Policy Guidance

onthe Use ofMOBILE6 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 onthe most current information available and applicable when a SIP is developed. See section 172(c)(3) ofthe CAA and 40 CFR 51.112(a)(1). However, asnoted in the

answer to the first question in this January 18, 2002 Memorandum, "EPA believes that the CAA would not require

24In cases where anarea outside the ozone transport region actually attained the ozone NAAQS

as shown through air quality monitoring data without the NOxreductions on major stationary

sources required by section 182(f) such areas could also obtain a NOx waiver.For example, refer to section 4.4 ofGuideline for Determining the Applicability ofNitrogen 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 motorvehicle emissions model is now available." This concept

was reiterated in the notice of availability, which was published in the Federal Register onJanuary 29, 2002 (67 FR 4254), that announced the approval and availability ofMOBILE6 for use in SIPs and conformity determinations. Use ofthe MOBILE6 model for SIP development was not allowed before the January 29, 2002, notice ofavailability. Since the Washington area attainment demonstration was submitted in February 2002, and the mobile source modeling was performed prior to that date, MOBILE5 had tobe used.

It should also be noted that atthe time ofthe development ofthe Washington

area attainment demonstration changes

were being made to the various draft versions ofthe 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 thatin this case itis appropriate to conditionally approve the SIPs.

With respectto the commenter's criticism ofMOBILE5 modeling, we believe thatthis modeling is not nearly

so inaccurate or outdated asthe
commenter suggests. MOBILE5 modeling provides the best estimate of mobile source emissions that was available at the time the SIPs were developed. Soon the Stateswill 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, itis arbitrary for EPAnow to accept commitments from the States to complete this effort by April 2004. However, the SIPs inwhich the States had committed to complete these reanalyses were vacated by the Court of Appeals in response to litigation initiated by the commenter, andthe 

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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 thisyear, but also to revise the attainment demonstration as

awhole, including adoption ofany necessary additional control measures to assure timely attainment. As indicated in their commitment letters, the Statesbelieve thatthis much more significant effort will take until April 2004. The commenter correctly points
outthat the States have already done preliminary new model runs with the MOBILE6 model, andthus thatthey 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 onrevising 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 ofROP milestones or for failure to attain, as required by sections 172(c)(9) and 182(c)(9) ofthe Clean Air Act.

Response:EPA acknowledges that the SIPs do not yet contain all ofthe required contingency measures, however, EPAis 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) ofthe CAAwhich specifically authorizes this action. One ofthe conditions for approval is submittal of appropriate contingency measures. Section 110(k)(4) specifically allows the approval ofcommitments under certain circumstances. For the reasons set forth elsewhere in this document including those in response to other comments (includingthose 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-1999Progress. Comment: The commenter incorporates by reference previous
comments regarding ROP submitted to EPA on December 13, 2002, asserting that section 182(c)(2)(B) ofthe Act mandates post-1999 ROP evenfor serious areas and thatthe 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 ofthe post-1999 portion ofthe ROP plan for an
area thatis later reclassified to severe because the statutory due date of November 15, 1994 ispast. New
comments by this same commenter assertthat we cannot approve the 1996- 1999 plan because the plan lacks the requisite 3percent 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 3percent 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 SierraClub,supra, that EPAhad no authority to approve the SIPs for the Washington area in the absence ofthe ROP plan covering the period November 15, 1999 through November 15, 2005.

Response:EPA does not agree that the post-1999 portion ofthe ROP plan is past-due in a serious area once such serious area isreclassified to severe nonattainment. EPA's exercise of discretion under section 182(i) to adjust the submission deadline for the post1999 portion ofthe ROP plan requirements, which onlybecame applicable tothe 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 ofthe statute. Section 182(i) states thatthe Administrator may adjust applicable deadlines (other than attainment dates)
to the extent such adjustment is necessary or appropriate to assure consistency amongthe required submissions ofnew requirements applicable to an area which has been reclassified. Where a submission date has passed andis therefore impossible
to meet, EPAhas concluded thatthe Administrator may establish a later date. EPAhas applied this interpretation in itsprior reclassification rulemaking actions. SeeSanta 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 ofthe Clean Air Act itselfreinforces 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 EPAto make a determination ofwhether

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, itis impossible for EPAto establish any of these as the submission deadline for a newlyreclassified area.

EPA has determined thatin light of the fact that the original submission dates for severe areas have elapsed prior
to the timethat we issuedthe reclassification for the Washington area, itis a reasonable exercise ofEPA's discretion to adjust the applicable submission deadlines in order to ensure consistency amongthe 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 thatthe
state is onlyrecently being notified that itmust 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 newlyimposed 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 oftheir submission obligations before the event necessary to trigger that obligation (reclassification) has occurred. Until EPAreclassified the Washington area effective March 25, 2003, the States

were under no obligation tomake the required submissions. To subject them
to a lapsed deadline after reclassification wouldbe patently unfair and contrary to the statute's intent. 

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Giving the submission deadlines retroactive effect would alsobe inconsistent with the Administrative Procedure Act, 5U.S.C. 553(d), which requires that before a rule takes effect,
persons affected will have advance notice ofitsrequirements. Afailure to meet an obligation, especially one accompanied by sanctions, cannot occur in advance ofthe imposition ofthat obligation. The obligation to submit requirements to meet the severe area classification did not exist for the Washington area prior tothe final action that reclassifies the area. Giving retroactive effect tothe 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 SierraClubv. 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 ofthe St. Louis nonattainment area, the District Court refused tointerpret the reclassification provisions as authorizing reliefthat would treat submission deadlines ashaving lapsed prior to EPAhaving issued a reclassification rulemaking. The court statedthat such an interpretation "could 'create * * * an injustice at the hands ofthe courtitself.'" 130 F. Supp.2d at 94. Such relief "could throw the [area] into extreme noncompliance." Id.The
courtrefused to impose such relief when it "could effectively penalize the
state and local entities that are required
to comply with EPAfindings." Id. In the St. Louis case, the Sierra Club demanded not onlyretroactive reclassification, but also demanded that the district court declare that "the State ofMissouri has failed to file a SIP revision that comports withthe requirements of section 7511a(c) by the statutory deadline ofMay 15, 1998," id.
at 87, a date that had long since passed. The district court refused to do so, recognizing thatthis would unfairly penalize the States, which are entitled
to rely on EPA's actions in anticipating the burdens that will be imposed pursuant tothe CAA. Imposition of sanctions would also have unfair adverse consequences for emissions

sources.

The Court ofAppeals upheld the District Court's ruling. "In any event, what Sierra Club sought-to have the effective date ofEPA's court-ordered determination converted tothe date the
statute envisioned, rather than the actual date ofEPA's action-was a form ofreliefthe district court quite properly rejected." SierraClubv. Whitman, 285 F.3d 63, 68 (D.C. Cir. 2002). The Court ofAppeals continued: "Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution onlymakes the situation worse. Retroactive reliefwould likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, eventhough theywere not onnotice atthe 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 ofa demonstration ofROP after 1999. See SierraClubv. 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 thatin the
current circumstances where the States for an area that hasbeen 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 canissue a conditional approval ofthe attainment demonstration ifEPA has a commitment from the States to submitthe 1999- 2005 ROP plan byApril 2004. EPA believes this does not contravene the Circuit Court's rulings and does not produce the absurd result ofretroactive application ofrequirements and inconsistencies with the Administrative Procedure Act, 5U.S.C. 553(d) discussed in the preceding paragraphs. OnApril 7 and 8, 2003, EPA received commitments fromthe States to submit by April 17, 2004, allofthe elements, including the post-1999 ROP plan, required for a severe area SIP andEPA is conditionally approving the SIP revisions listed in Tables 1 and 2in sectionI ofthis 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. POPandMOBILE6. 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 thatin the plan andthat EPAmust first evaluate the impact of the MOBILE6 results on therequired level ofreductions to determine ifthe plan achieves that level ofreduction.25

Response:EPA acknowledges that emissions factors, aswell as inventory calculation methodologies, are continually being improved. Ingeneral, EPAhas notrequired changes to submitted SIPs thatresult from changes in factors andmethodologies 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 YearEmissions 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 itis impossible for states to make adjustments to their 15 percent calculations and associated control strategies, then EPA mayrequire states to make corrections to the base year emissions inventory, as well asto the adjusted base year inventory and the 1996 target level ofemissions." This guidance discussed the then pending transition from the MOBILE4.1 model to the MOBILE5 model but only prospectively, by requiring that emissions values calculated using MOBILE4.1 would have to be recalculated using MOBILE5 before submittal ofthe final rate-of-progress planin 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 ifthey occurred before the planwas submitted. "However, ifsuch changes occur after November 15, 1991, but prior to November 15, 1994, a serious or above area may be required to make corrections to the base year inventory and attainment year projection inventory for purposes of developing the 3percent rate-ofprogress demonstration. Ifsuch changes

occur after November 15, 1994, EPA will advise on when itwould be appropriate for the states to make corrections in future supplements to this General Preamble." 57 FR at 13517 (April 16, 1992).

EPA established a policy to require that certain attainment demonstrations

25The comments referenced a Meeting Notice for
the February 27, 2003 MeetingNotice of the Metropolitan Washington AirQuality Committee and provided the comments solelyby reference to itsURL (http://www.mwcog.orgluploadsleventdocumentslWVk2003O227111708.pdfl. 

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and maintenance plans be revised using the then-forthcoming MOBILE6 model.26 EPA required states thatrelied
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 forbenefits from the Tier 2motor 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 thathave already submitted SIPs or will submit SIPs shortly after MOBILE6's release to revise these SIPs simplybecause a new motor vehicle emissions model is now available. EPA believes thatthis is supported byexisting EPA policies and

case law. See, e.g., Delaneyv.EPA, 898 F.2d 687 (9th Cir. 1990). Ofcourse, states can choose to use MOBILE6 in these SIPs, for example, ifitis determined that future conformity determinations would be ensured through such a SIP revision.

EPA does not believe that the State's

use ofMOBILE5 should be an obstacle
to EPA approval for reasonable further progress, attainment, or maintenance SIPs that do not include Tier 2 sulfur rule reductions thathave been or will

soonbe submitted based onMOBILE5, 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). Itwould be unreasonable to require the States to revise these SIPs with MOBILE6 since significant work has already occurred, andEPA intends
to act onthese SIPs in atimely 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 atthe time the SIP

was prepared.

To act as the commenter suggests would be to purposelessly contradict EPA's long established policies and

26Memorandum, "1-Hour Ozone Attainment
Demonstrations and Tier 2/Sulfur Rulemaking" from Lydia Wegman, Office ofAirQuality Planning and Standards and Merrylin Zaw-Mon, Office of Mobile Sources to the AirDivision Directors, Regions I-VI, issued November 8, 1999.

27Memorandum from John S. Seitz and Margo Tsirigotis Oge entitled "Policy Guidance for the Use of MOBILE6 in SIPDevelopment and Transportation Conformity," issued January 18, 2002. guidance provided to the states with respect to us ofnew models.

As explained in aprevious 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 ofproposed rulemaking for that action, EPA stated thatthe post1999 portion ofthe ROP requirement will be developed using MOBILE6 in accordance with our existingpolicy 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 ofthe MOBILE6 model in relation to the date the 1996-1999 ROP was submitted, that

were presented in section III.A.2e, EPA disagrees withthese 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 donot cover all oftherequired severe area SIP components andthat EPAmust therefore disapprove these SIP revisions.

Response:EPA agrees thatwe cannot fully approve these SIP revisions. However, EPA believes thatto disapprove these SIP revisions because the States did not submit allthe severe
area SIP elements thatbecame applicable after these SIP revisions were submitted would lead to the same absurd results and problems with retroactivity andto the same conflicts with the Administrative Procedure Act and CAA that were discussed previously withrespect 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 isconditionally approving these SIP revisions pursuant to section 110(k)(4) ofthe CAAwhich 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,

28Memorandum from John S. Seitz and Margo Tsirigotis Ogeentitled "Policy Guidance for the Use of MOBILE6 in SIPDevelopment and Transportation Conformity," issued January 18, 2002. EPAbelieves that a conditional approval is permissible because EPA received commitments on April 7 and 8, 2003 from the Washington area jurisdictions to submitby April 17, 2004 revisionsto 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 thatthe 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 ofozone precursors ofat least 3percent per year fromNovember 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 thatthe 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 ofthe 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 revisionsto the attainment modeling/ weight ofevidence demonstration and adopted control measures, as necessary, to show that the SIP continues to demonstrate attainment byNovember 15, 2005.

(F) Revise the Washington area severe attainment demonstration to include a contingency plan containing those

measures to be implemented ifthe Washington area does not attain the one-hour ozone standard byNovember 15, 2005.

(G) Revise the Washington area severe attainment demonstration to include a revised RACM analysis and any revisionsto the attainment demonstration including adopted control measures, as necessitated by such analysis.

(H) Revise the major stationary source threshold to 25 tons peryear.

(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 ofthe SIP a fee requirement for major sources ofvolatile organic compounds (VOC) and nitrogen oxides (NOx) should the area fail to attain by November 15, 2005.

(L)Include as part ofthe SIP a revision that identifies and adopts specific enforceable transportation control strategies andtransportation control measures to offset any growth in emissions from growth in vehicle miles traveled ornumber ofvehicle 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) ofthe 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 thatbecame applicable tothe 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 theWashington area, but questions the proposal to issue a protective finding under EPA's transportation conformity regulations shouldEPA proceed with a final disapproval ofthe SIPs.

Response:EPA has concluded that a conditional approval is appropriate in this case andtherefore will notbe issuing afinal 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. CommentsMade on theProposed Reclassification

On March 5, 2003, we received a comment letter submitted by the Sierra Club incorporating byreference their
comments submitted on December 13, 2002, relating to the proposed reclassification ofthe Washington area to severe nonattainment (67FR 68805, November 13, 2002). To the extent that these comments are germane to the
current action we incorporate by reference ourresponses to the
comments on these issues found in our final rule publishedJanuary 24, 2003 (see68 FR at 3412-3421) as supplemented bythe response to comment foundin this final rule.

C. CommentsMadeRegarding Adequacy of MotorVehicleEmissions Budgets

On March 5, 2003, we received a comment letter submittedby the Sierra Club incorporating byreference their
comments submitted on September 9, 2002, and onFebruary 14, 2000, that related to the adequacy ofthe motor vehicle emissions budgets in the 1996- 1999 ROP plan and the attainment demonstration.

Comment:We received a number of
comments about theprocess and substance ofEPA's review ofthe adequacy ofmotor 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 ona 2005 attainment date, rather than the area's then current attainment date of1999; (2)the budgets donot necessarily reflect allRACM; (3) there are no budgets corresponding to the post-1999 rate-of-progress requirement; (4) the SIP lacks contingency measures; (5)the budgets donot reflect the potential thatthe budgets will be further tightened as a result ofsevere area SIP requirements; (6) the attainment demonstration is flawed due to the use ofthe weight of evidence approach; and (7)thebudgets

were developed using the MOBILE5 model.

Response:Inthe notice ofproposed rulemaking EPAproposed to conditionally approve the attainment demonstration and ROP SIP revisions and did not propose to find the budgets adequate. EPA isconditionally approving the motor vehicle emissions budgets rather than making an adequacy determination. Therefore, comments relating to adequacy ofbudgets are not germane to this rulemaking. To the
extent comments are germane to conditional approval ofthe SIPs, EPA addresses them elsewhere in this notice in response to comments on various aspects ofthe plans.

D. CommentsRelatingto Supplemental Information To SupportProposed ApprovalsofOne-HourOzone AttainmentDemonstrations forSerious OzoneNonattainment Areas

On March 5, 2003, we received a comment letter submittedby the Sierra Club incorporating byreference their
comments submitted onNovember 15, 2000, relating to EPA's proposed "Supplemental Information to Support Proposed Approvals ofOne-Hour Ozone Attainment Demonstrations for Serious Ozone Nonattainment Areas" (65 FR 61134, October 16, 2000) relating to RACM requirements.

These comments are notgermane to this actionbecause EPA isnot relying
upon the supplemental information to show that the RACM requirement has been fulfilled.

E.Prior Comments on theApprovability oftheAttainmentandRate-of-Progress Plans

On March 5, 2003, we received a comment letter submittedby the Sierra Clubincorporating byreference their
comments submitted on February 14, 2000, October 30, 2000, andNovember 20, 2000 relating to the approval ofthe 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 (amemorandum "Extension of Attainment Dates for Downwind Transport Areas" issuedJuly 16, 1998), and to application ofthe extension policy to the Washington area. These
comments are notgermane tothis 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 (see68 FR 3410, January 24, 2003).

2.Motor Vehicle Emissions Inventory

Comment:Wereceived comments stating thatthe motor vehicle emissions inventory is not current, particularly with respect to the fleet mix.29 The
comments stated thatthe fleet mix does
not accurately reflect the growing proportion ofsport utility vehicles and gasoline trucks, which pollute more than conventional cars. In the February 14, 2000 comment letter, we received
comments asserting thatEPA looks only
atthose "weights" that favor afinding ofattainment and specifically identified the changing fleet mix. We alsoreceived
comments asserting thatthe Maryland and Virginia attainment and 1996-1999 ROPplans are flawed because they

assume afleet mix that does not accurately reflect the growing proportion ofsport utility vehicles and gasoline trucks. The comments cite data fromthe Maryland Department ofthe

29These 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 ofout-dated assumptions is inconsistent with the duty imposedby Clean Air Act section 182(a)(3) to triennially update the emission inventory; and that ifthe motorvehicle inventory has not been updated to prepare the current SIP submission, it shouldbe disapproved.

Response:All ofthe SIPs on which

we are taking final action are based on the mostrecent vehicle registration data available at the time the SIP was prepared. The SIPs use the same vehicle fleet characteristics that were used in the mostrecent periodic inventory update atthe time the SIP was prepared. The Metropolitan Washington, DC Ozone Nonattainment Area SIP isbased

onvehicle registration data from 1996, which was the mostrecently available data atthe 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 ofthe SIP. EPA requires the
most recent available data to be used, but we do not require itto be updated

on a specific schedule. Therefore, different SIPsbase their fleet mixon different years ofdata. Our guidance does not suggest that SIPs should be disapproved onthis basis. Further, EPA does not require states to goback and re-analyze SIP submissions ifnew data becomes available shortly before EPA takes final action on the SIP. Nevertheless, we do expect that revisions to these SIPs that willbe submittedusing MOBILE6 (as required in those cases where the SIP isrelying

on emissions reductions from the Tier 2 standards) will use updated vehicle registration data appropriate for use with MOBILE6, whether itis updated local data or the updated national default data that will be part of MOBILE6. EPAis requiring the Washington area States to revise the attainment budgets using MOBILE6 pursuant tothe commitments for conditional approval submitted by the States. The revised budgets must include the mostrecently available fleet information at the time the budgets are revised.

In addition, we incorporate by reference ourresponses to comments on these issues found in section II.H (see66 FR at614) and in response 20 of section X. (see66 FR at 630 ) ofour final rule published January 3, 2001.

3.Credit for National Measures

Comment 1:We received comments statingthat states shouldnot 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 orweakened.

Response 1:On September 11, 1998, EPA promulgated three major regulations to reduce VOC emissions from coveringthree major categories of

consumer and commercial products. The first rule covers 61 categories of architectural andindustrial 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 ofcoating 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
OnMarch 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 onthe anticipated promulgation of anational AIM coatings rule. In developing the attainment andROP 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 ofnationwide 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 inthe 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 andROP 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 (docketA-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 ROPplans. AIM coatings manufacturers were required to be in compliance with the final regulation within one year ofpromulgation, except for certainpesticide formulations which

were given an additional year to comply. Thus all manufacturers were required to comply, atthe latest, by September 2000. Industry confirmed in
comments onthe 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 (lessthan one percent) andwould be withdrawn fromretail shelves anyway. Therefore, EPA believes that compliant coatings were in use by the Fall of 1999 with fullreductions to be achieved by September 2000 and thatit

was appropriate for the States totake credit for a 20 percent emission reduction in their SIPs. Autobody Refinish Coatings Rule

Consistent with a November 27, 1994 EPApolicy,3l many states claimed a 37 percent reduction from this source category based on aproposed rule. However, EPA'sfinal rule, "National Volatile Organic Compound Emission Standards forAutomobile Refinish Coatings," published on September 11, 1998 (63 FR48806), did not regulate lacquer topcoats andwill result in a smaller emission reduction ofaround 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 AutobodyRefinishing 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 ofthe 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 ofcontrol which already existed in the area. Forexample, 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 40percent. However as a result ofthe 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 tomake up the approximately 1 percent difference between the 37 percent estimate ofreductions assumed by states, following EPA guidance based

onthe proposal, and the 36 percent reduction actually achievedby 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 ofthe reduction potential ofthe 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 sectionII.X ofour final rule published January 3, 2001 (see66 FR at629).

Consumer Products Rule

Consistent with aJune 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), hasresulted 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) ofthe Clean Air Act," June 22, 1995, John S. Seitz, Director OAQPS, to AirDivision 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 ofthe final rule (63 FR 48819). That is, industry reformulated the products covered bythe consumer products rule in advance ofthe final rule. Therefore, EPAbelieves that complying products in accordance with the rule were in use by the Fall of1999. It was appropriate for the states totake 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, andresponses 10 to 15 of section II.X of our final rule published January 3, 2001, see66 FR at 626-628 as supplemented bythe response to comment foundin this final rule.

Comment2: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 allbecause the Clean Air Act does not allow EPAto credit state or national

measures with emission reductions when emission limits are subject to waiver at any time. The comments further assertthat because the tonnage exceptions and exceedance fee provisions orvariance provisions in the rules arenot limited to a specific tonnage figure at all therules place no cap onthe use ofthese provisions and thus assert in the absence of such caps, EPA cannot rationally or lawfully grant emission reduction credit for these rules.

Response2:We incorporate by reference ourresponses to the
comments onthese issues found in sectionII.J. See 66 FR at614 and
response 10 of sectionII.X ofour final rule published January 3, 2001, see 66 FR at626, as supplemented bythe response to comment found in this final rule. Comment3:We received comments asserting that theproposed rulemakings used estimates from the proposed rather than the final rulemakings for autobody refinishing, consumer products, and architectural andindustrial maintenance coatings as abasis for approving the States' reduction claims. The comments allege that the final rules for autobodyrefinishing, consumer products, and architectural and industrial maintenance coatings are weaker in anumber ofrespects than the proposed rules for autobody refinishing,

consumer products, and architectural and industrial maintenance coatings. Response3:As statedin response to

a prior comment, while itis true thatthe
states in many cases estimated the benefits based upon the proposed rules in some oftheir SIP revisions, these estimates are fullyin line with the benefits thathave 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 ofsection II.X of

our final rulepublished January 3, 2001,

see66 FR at 626, as supplemented by the response to comment found inthis final rule.

Comment4:We received comments asserting that for the architectural and industrial maintenance (AIM) coatings rule, the limits on a number ofcoatings

were changed between the proposal and final rule either directly, orby establishing new subcategories with higher VOClimits. The comments assert thatthe effects ofthese 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 ofthese were reflected in the final percentage reduction estimate EPAis allowing
states to claim from therule.

Response4:We incorporate by reference our responses to the
comments onthese issues found in
response 12 of sectionII.X ofour final rule publishedJanuary 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" fromChris Sarsony, ERG, to Linda Herring, U.S. EPA, dated July 27, 1998 (docketA-92- 18, item number IV-B-2).

Comment5:We received comments asserting that the estimate ofemission reductions from the autobody refinishing rule does not account for establishment ofa separate category for multi-colored topcoats inthe final rule-a category thathas weaker limits thanwould have applied to the same topcoats underthe proposed rule. The
comments further assert thatEPA has no data onthe usage ofmulti-colored topcoats-data thatis required in order
to rationally estimate the expected emission reductions from the rule.

Response5:We incorporate by reference our responses to the
comments onthese issues found in section II.J. See66 FR at 614 and response 13 of sectionII.X ofour final rule publishedJanuary 3, 2001, see66 

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FR at627 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 sectionII.X ofour final rule published January 3, 2001. See66 FR at629. Comment6:We received comments that assert there is insufficient basis for granting full credit for the AIM rule as ofNovember 15, 1999 because EPA has failed to offer any facts or analyses showing that onlycompliant products

were in use as ofNovember 15, 1999, andthe late implementation deadline of September 12, 1999 virtually assures that this was not the case.

Response6:We incorporate by reference ourresponses to the
comments on this issue found in section II.J. See 66 FR at 614, and response 14 ofsection II.X ofour final rule published January 3, 2001, see 66 FR at 627, as supplemented bythe 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 andthat 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 ofControl Programs

Comment:The attainment demonstrations do not clearly set out programs for enforcement ofthe various control strategies relied on for emission reduction credit. We also received
comments that assert thatthe 1996- 1999 ROP plan and the attainment plan fail to include a program to provide for the enforcement ofthe adopted control

measures. as required by section 110(a)(2)(C) ofthe CAA. The comments also assertthat these plans must contain

alegally enforceable SIP commitment to enforce the various control strategies relied upon for emission reduction credit. The comments assert thatEPA review ofstate enforcement programs in connection with federal grantmaking does not satisfy EPA's duty to ensure that the SIP itselfcontains the legally required enforcement and funding commitments.

Response:We incorporate by reference ourresponses to the
comments on theses issues found in sectionII.K. See66 FR at 615 and
response 21 of sectionII.X ofour final rule published January 3, 2001, see 66 FR at630.

5.Reliance on Commitments and State Rules NotYet Adopted

Comment:We received comments that disagreed with the EPA's proposal
to approve attainment demonstrations andrate-of-progress plans for the Washington ozone nonattainment area because not all ofthe emissions reductions credited in the demonstrations or plans are supported by legally enforceable limitations adopted and approved bythe States and approved bythe EPA as part ofthe SIP. Commenters also objected to accepting enforceable state commitments to adopt emission reduction controlmeasures in the future in lieu ofcurrent adopted

measures.

Response:Whenviewed 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 ofproposed rulemaking (64 FR 70460) for the SIP revisions listed in Tables 1 and 2ofthis 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 thatthe area will attain.33 EPA identified the areas where we had concluded that theWOE 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 theWOE for the Washington area needs no additional reductions to support the WOE demonstration and isnot approving such an enforceable commitment for the Washington area.

Further, EPA is not fully approving the attainment demonstration andROP plan for the Washington area. Rather, as discussed previously in this document, EPA isconditionally approving these SIP revisions pursuant to section 110(k)(4) ofthe CAAwhich 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 ofAdditional Emission Reductions, Not Modeled." U.S. Environmental Protection Agency, Office ofAir Quality Planning and Standards, Emissions, Monitoring, andAnalysis 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:Wereceived comments that assert the 9 percent ROP demonstration assumes that a 1percent reduction in NOx emissions is equivalent in ozone reducingbenefit to

a 1percent reduction in VOC emissions. The commenter asserts that EPA'sNOx 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 atleast equivalent to that which would result from a 3percent annual cut in VOC emissions. The commenter claims that such a demonstration requires photochemical grid modeling showing equivalency and thatEPA's own guidance (Guidanceon thePost-1996 Rate-of-Progress PlanandAttainment Demonstration(corrected version as of 2/18/94)) requires such modeling. The States cannot use a 1percent NOx for 1percent VOC substitution without proving that a 1percent NOx cut will in factprovide ozone reductions at least equivalent to thatresulting 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 NOxreductions to offset 1ton ofVOC reductions. The commenter does
not disavow other comments thatthe States must provethe validity oftheir
NOxsubstitution ratios as discussed in the summary ofthe comments in the preceding paragraph butrather claim the 9 percent demonstration fails to use the ratio of1.6 to 1required by the more recentEPA guidance.

Additionally, the commenter asserts that substitutions should not be allowed because the plan does not demonstrate timely attainment.

Response:Weincorporate by reference our responses to the
comments onthese issues found in section II.M.ofour final rule published January 3, 2001, see66 FR at 616-619,

as supplemented by the response to comment found in this final rule:

EPA still disagrees with the assertion thatthe attainment plan does not demonstrate attainment. The TSD and other documents inthe docket support the conclusion thatthe area will attain,

as do our responses to other comments elsewhere in this notice.

In our January 3, 2001, final rule (66 FR 586), EPAplaced 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 thatthe Washington area portion ofthe 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 ofthe model sensitivity analyses found in the attainment demonstration which shows that the Washington area portion ofthe Baltimore-Washington modeling domain benefits more from NOx reductions than VOC reductions. Acopy of"RACM Analysis for Four Serious Areas Designated Nonattainment for 1- hr Ozone NAAQS" U.S. Environmental Protection Agency; Office ofAir Quality Planning and Standards, Research Triangle Park, NC 27711, cited in the
response to comments portion ofthe January 3, 2001 final rule can be obtained bycontacting the regional office listed under the ADDRESSES section ofthis 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 notbeen fully approved by EPA as part ofthe SIP. Specifically, the comments identified NOx RACTrules 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 ourresponses 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 sectionII.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 ofcontrol measures in the Washington area. 34With the exception ofthe transportation control measures found in the ROP plan, for which we

34See pages 22 through 35 of "Technical Support Document for the One-Hour Ozone Attainment Demonstrations submitted by the State ofMaryland, Commonwealth ofVirginia 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 onFebruary 3, 2003, allthe other measures credited towards the 1999 ROP requirement arein 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" ofthe notice ofproposed rulemaking for this action. See 68 FR at 5252, February 3, 2003.

Likewise, with the exception ofany remaining RACM, ifany, and ofthe transportation control measures specified in the attainment demonstration plan, allthe 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 3ofthe notice ofproposed 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 RACTrule was approved on December 26, 2000 (65 FR 81369), Maryland's onFebruary 8, 2001 (66 FR 9522), and Virginia's onJanuary 2, 2001 (66 FR 8).

The District's rule for beyond RACT control onlarge stationary sources of NOx was approved on December 22, 2000 (65 FR 80783) and an additional rule onNovember 1, 2001 (66 FR 55099), Maryland's rules were approved

onDecember 15, 2000 (65 FR 78416) andJanuary 10, 2001 (66 FR 1866), and Virginia's on December 14, 2000 (65 FR 78100).

The technical support documents for this action lists thebasis for the reduction credits from Virginia's nonCTG RACT rule.35
Comment2:We received comments asserting that EPA's reliance on SIP call reductions isparticularly unjustified in the D.C. Area, given that Virginia is challenging EPA's authority to require those veryreductions and thatEPA
cannot grant credit for SIP call reductions when the SIP call hasbeen judicially stayed.

Response2:We incorporate by reference ourresponses to the
comments onthese issues found in

35 See page 31 of "Technical Support Document for the One-Hour Ozone Attainment Demonstrations submitted by the State ofMaryland, Commonwealth ofVirginia andthe District of Columbia forthe Metropolitan Washington, D.C. Ozone Nonattainment Area (DC052-7005, MD143- 3096, VA152-5062)", datedJanuary 24, 2003. response 8 of sectionII.A.2 ofour final rule publishedJanuary 3, 2001, see66 FR at 602, supplemented as follows: The stay ofthe 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 ifthey fail, EPA must promulgate a Federal plan. EPA is fully justified in itsreliance 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 andRateof-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 thathave not been fully approved by EPA as part ofthe SIP.

Response 1:We incorporate by reference our responses to the
comments onthis issue found in
response 1of section 11.0 ofour final rule publishedJanuary 3, 2001, see66 FR at 619, supplemented by our response elsewhere inthis document to other comments under the heading of "NOx and VOC Reduction Credits."

Comment2:We received comments stating thatthere are significant disparities between the projections of 1999 regional emissions foundin the
mostrecent 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.

Response2:We incorporate by reference our responses to the
comments onthis issue found in
response 2of section 11.0 ofour final rule publishedJanuary 3, 2001, see66 FR at 619.

9. Modeling Assumptions

Comment 1:We received comments asserting that the transportation model does not incorporate adequate assumptions about the effects ofland development and new road projections

on the growth ofvehicle travel and citing to an EPA letter from Judith Katz, Director, Air Protection Division, EPA Region IIIto James Cheatham, Divisional Administrator, Federal Highway Administration, dated August 27, 1998, in which the commenters assert thatEPA stated thatthe plans did
notinclude any information onthe rate ofland 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 thatEPA has known about this issue since 1998.

Response1:We incorporate by reference ourresponses to the
comments on this issue found in
response 1ofsection I.P ofour final rule published January 3, 2001, see 66 FR at619-620. Comment2: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).

Response2:For two reasons EPA disagrees withthe comment thatthis is

areason to determine thatthebudgets

are not approvable. First, the comments cite peak temperatures for aparticular

ozone season. This is at odds with EPA's guidance. EPA guidance on projecting allfuture mobile source emissions inventories requires the States to use the temperatures representative ofa "typical ozone

season day". See section 3.3.5.2 of Procedures forEmissionInventory PreparationVolume IV:MobileSources, EPA-450/4-81-026d (Revised), 1992, which also sets theprocedure for determining the temperature for the base year and all subsequent projection inventories. EPAhas updated this guidance for use with the MOBILE6 emissions factor model,but the updated guidance still requires the use ofthe typical ozone season day. 36The typical

ozone season day conditions are those used when determining the typical daily emissions for the baseyear emissions inventory. The same typical ozone

season day is also used when setting target levels ofemissions in ROP plans and allfuture year projection inventories in ROP plans and the budgets for attainment demonstrations.

EPAbelieves thatthe ambient temperature iskey to estimating emission rates for highwayvehicles with MOBILE6. 37Temperature inputs

were a key input tothe MOBILE5 mobile source emission factor model as

36See "Technical Guidance on the Use of
MOBILE6 forEmission Inventory Preparation," U.S. Environmental Protection Agency, Office ofAir and Radiation, Office ofTransportation and AirQuality, January 2002.

37

Id. well.38 For this reason mobile source emission factors produced byEPA approved mobile source emission factor models are temperature dependant. Second, ifEPA were to require SIPs
to be revised periodically on thebasis ofmore recent temperatures, EPA would have to allow revisions and conformity determinations incorporating more recent datathat reflect alower temperature profile, andhence lower mobile source emissions, as well as requiring revisions toincorporate more recent datawhich includes higher temperatures.

EPA believes itis reasonable to use the same typical ozone season day temperatures used to develop thebase 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 ofthe 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 thatfull approval ofthe Washington area SIP to meet the severe area requirements is precluded in the absence ofRACT 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 byApril 17, 2004 is permissible.

11. List ofControl Measures

Comment 1:We received comments claiming thatthe States have failed to submitlists ofpotential control

measures by December 31, 1999 as required byEPA's December 16, 1999 notice ofproposed rulemaking. The
comments assertthat the States submitted commitments to adopt additional controlmeasures ifneeded, but did not provide lists from which those measures would be chosen and further state thatbecause the States have failed to meet acondition thatEPA itself
set as aprerequisite for plan approval EPA must disapprove the Washington

area SIP.

Response 1:The list ofcontrol

measures to which these comments refer has tobe viewed in context ofthe entire

38See Chapter 2, User's Guide to MOBILE5 (Mobile Source Emission Factor Model) EPA-AATEB-94-01, September 1996. December 16, 1999 notice ofproposed rulemaking (64 FR 70460). The proposed rulemaking was published at

a timewhen the attainment plan contained no motor vehicle emissions budget for 2005. The list ofpotential

measures was to have been those potential measures needed to allow an adequacy finding underthe transportation conformity rule onthe 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 notbelieve alist ofpotential control measures is necessary here because EPA is conditionally approving the SIPs based upon the States committing to complete allnecessary modeling and RACM analyses and to adopt and submitby 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 ofsection II.S ofour final rule published January 3, 2001, see66 FR at 620-621, as supplemented by the response to
comment found in this final rule.

12. Phase II NOxLimits Are RACM

Comment:Wereceived a comment asserting that the Phase II NOx limits agreed to by OTC are also clearly RACM.

Response:As a factual matter, with respect tothe OTC MOU Phase II NOx limits in the Washington nonattainment

area, Maryland and the Districthave adopted programs to implement the Phase II NOx reduction in the OTC memorandum ofunderstanding. 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 imposedbeyond RACT requirements on two large point sources ofNOx in the Virginia portion ofthe Washington area,

see65 FR 78100 (December 14, 2000). These permits impose limits of0.15 pounds ofNOxper million BTU heat input on these two sources. Such limits
gobeyond the OTC Phase II limits. EPA acknowledges the States mustidentify which RACM have already been adopted and adopt any which, ifany, still remains as the States have committed to do so by April 2004. RACM is discussed in response to other
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13. Additional Comments onthe Rateof-Progress Plan

Comment1: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.

Response1:The comment is moot because EPA is concurrently approving the District's, Maryland's and Virginia's submittals ofthe 1996-1999 ROP plan for the Washington area in one final action published in the Federal Register. Comment2:We received comments asserting that modeling does not show that a 1percent reduction in NOx emissions provides the same ozone reduction benefit as a 1percent reduction in VOC emissions, and that these results address post-1999 conditions-not 1996-99 conditions, andthat one cannot reliably extrapolate back from the modeled results tothe 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

canbe substituted for VOC. These
comments also note these model results themselves show that NOxreductions sometimes actually lead to an increase in the number ofcells exceeding the

ozone standard.

Response2:We incorporate by reference ourresponses to the
comments on this issue found in
response 2ofsection II.X ofour final rule published January 3, 2001 (see66 FR at622-623). Comment3:We received comments asserting that although the ROP plan citesvarious rules and programs that have been adoptedto reduce emissions, it does not demonstrate that actual compliance with the rules and implementation ofnecessary programs will be achievedby 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 byEPA until after November 15, 1999, thus theprograms were not federally enforceable during the 1996- 99 ROP period. Finally, the commenters suggest that certain programs may not have achieved the level ofreductions for which credit was taken in the ROP plan.

Response3:We incorporate by reference ourresponses to the
comments onthese issues found in
response 3of sectionII.X ofour final rule published January 3, 2001, see 66 FR at623. Comment4:We received comments asserting that thereductions 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 assertthat emission reductions are creditable toward the ROP requirement onlyto the extent that they have actually occurred by the November 15, 1999 milestone date. The
comments state thatifthe ROP plan does not get sufficient creditable reductions then the plan cannot be approved.

Response4:We incorporate by reference ourresponses to the
comments onthese issues found in
response 4 of sectionII.X ofour final rule published January 3, 2001, see 66 FR at623-624. Comment5:We received comments asserting that EPA should not credit reductions from the District's NOx RACT rule because: (1)EPAhas notyet approved the District's NOx RACT rule and, therefore, itwill not become federally enforceable until long after 11/ 15/99; and (2)the District has not shown actual implementation ofNOx RACT before 11/15/99 by major NOx

sources within the District.

Response5:We incorporate by reference ourresponses to the
comments onthese issues found in
response 5of sectionII.X ofour final rule published January 3, 2001, see 66 FR at624. Further, the District's NOx RACT rule was approved on December 26, 2000 (65 FR 81369).

Comment6:We received comments asserting that the NOx RACTrules include inadequate emission control requirements for various source categories. With respect to Maryland and Virginia NOx RACTrules, 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.

Response6:We incorporate by reference ourresponses to the
comments onthese issues found in
response 6 of sectionII.X ofour final rule publishedJanuary 3, 2001, see66 FR at 624.

Comment7:We received comments asserting that EPA cannot credit reductions because the Districthas not implemented itsNOx RACT rules. Specifically, the comments state that the District's proposed Title V permit for the Blue PlainsWastewater Treatment Plant contains no NOx RACT requirements (either as federal or stateonlyrequirements), even though the Districthas identified the plant as a major NOx source.

Response 7:We incorporate by reference our responses to the
comments onthis issue found in
response 7of sectionII.X ofour final rule publishedJanuary 3, 2001, see66 FR at 624-625.

Comment8:We received comments asserting that EPA should not credit reductions from Maryland's or Virginia's NOx RACT rules for the following reasons: (1)EPAhas not yet

even approved these NOx RACT rules; (2)even ifthe rules are approved prior
to final action on the ROP plan,the approvals will notbecome federally enforceable until long after 11/15/99; and (3)Maryland and Virginia havenot shown actual implementation ofall RACT requirements before 11/15/99.

Response8:We incorporate by reference our responses to the
comments onthese issues found in
response 8 of sectionII.X ofour final rule publishedJanuary 3, 2001, see66 FR at 625, supplemented as follows: EPAfully approved Maryland's and Virginia's NOx RACT rules on February 8, 2001 (66 FR 9522), and onJanuary 2,
2001 (66 FR 8), respectively.

Comment9:We received comments asserting that EPA can only credit those reductions thatthe District actually achieved as a result ofenhanced vehicle inspection between April 1999 and November 15, 1999. The comments state that only a fraction ofthe fleet was testedbetween the April 1999
commencement ofthe enhanced I/M program and November 15, 1999.

Other comments likewise questioned whether full emission reductions credited from the Maryland and Virginia I/Mprograms actually occurred by 11/ 15/99. The latter comments assertthat States must demonstrate full implementation including enhanced testing ofthe 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 ifthe ROP plan does not get sufficient creditable 

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reductions by November 15, 1999, then the plan cannot be approved.

Response9:We incorporate by reference ourresponses to the
comments on these issues found in
response 9 ofsection II.X ofour final rule published January 3, 2001, see 66 FR at625-626. Comment10:We received comments claiming that one EPA analysis indicates some reductions from the AIM rule couldbe 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.

Response10:We incorporate by reference ourresponses to the
comments on this issue found in
response 15 of sectionII.X ofour final rule published January 3, 2001, see 66 FR at628, supplemented as follows: For the reasons discussed in responses to other comments, EPAbelieves the AIM reductions have already occurred. EPA believes that these reductions were achieved as expeditiously as practicable andthat no other reasonable emissions control strategy would have allowed the States or EPA to achieve these reductions sooner. Comment11:We have received
comments saying that the transportation model does not incorporate adequate assumptions about the effects ofland development and new road projections

onthe growth ofvehicle travel. In support,the comments cite an EPA letter from Judith Katz, Director, Air Protection Division, EPA Region IIIto James Cheatham, Divisional Administrator, Federal Highway Administration dated August 27, 1998, in which the commenters assert that EPA stated thatthe plans did not include any information onthe rate of land development in theWashington Region andthe effect ofthis 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 thatEPA has known about this issue since 1998.

Response11:We incorporate by reference ourresponses to the
comments on this issue found in
response 16 of sectionII.X ofour final rule published January 3, 2001, see 66 FR at628. Comment 12:We received comments asserting that EPA cannot credit the 1996-1999 ROP plan submitted by Virginia andMaryland with reductions from measures credited in the 15 percent plan and cannot count emission reductions toboth the 15 percent and 9 percent reduction requirements. Thatis, 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 ourresponses to the
comments onthis issue found in
response 17 of sectionII.X ofour final rule published January 3, 2001, see 66 FR at628-629, supplemented as follows:

The same reasoning that allows reductions from measures in the 15 percent plan to counttowards achieving the 1999 target level for the 1999 milestone applies to counting such reductions towards achievement ofthe 2002 target level ofemissions.

The last sentence ofsection 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 EPAmust document its

reasons for accepting Maryland's and Virginia's emission reduction claims. The comments cite the example ofthe reductions from Maryland's and Virginia's open burning program and the 45 percent reduction claimed by Maryland for the Maryland rules applicable to autobodyrefinishing. The
comments state thatthe 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 ofplans or commitments needed for local enforcement.

Response 13:We incorporate by reference ourresponses to the
comments onthese issues found in
response 18 of sectionII.X ofour final rule published January 3, 2001, see 66 FR at629. Comment 14:We received comments claiming that openburning emissions

were not in the 1990 base year emissions inventory for Maryland and Virginia. The comments assertthat EPA
cannot credit reductions from emissions that were not included in the 1990base year emissions inventory.

Response 14:We incorporate by reference ourresponses to the
comments onthese issues found in
response 19 of sectionII.X ofour final rule publishedJanuary 3, 2001, see66 FR at 629.

IV.Applicability ofRevised Motor Vehicle Emissions Budgets

This final action to conditionally
approve the severe ozone nonattainment SIP for the Washington area includes conditional approval ofSIP revisions submitted onFebruary 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 tobe adequate for conformity
purposes.

Because the attainment demonstration includes the effects ofthe Tier 2/sulfur program, EPA isrequiring the States to revise andresubmit theirmotor vehicle emissions budgets after EPA releases the MOBILE6 model. EPAis 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 byNovember 15, 2005.

As we proposed on February 4, 2003, the final conditional approval actionwe

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 aspart ofthe 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 ofour approval in this mannerbecause 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 2as 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 ofozone precursors of at least 3percent 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 thatqualify 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 theWashington area severe attainment demonstration to include a contingency plan containing those adopted measures that qualify as contingency measures to be implemented for the failure ofthe Washington area to attain the one-hour

ozone standard for serious areas by November 15, 1999. (E) Update the Washington area

severe attainment demonstration to reflect revised MOBILE6-based motor vehicle emissions budgets, including revisions to the attainment modeling/ weight ofevidence demonstration and adopted control measures, as necessary, to show that the SIP continues to demonstrate attainment by November 15, 2005.

(F)Revise theWashington area severe attainment demonstration to include a contingency plan containing those

measures tobe implemented ifthe Washington area does not attain the one-hour ozone standardby November 15, 2005.

(G)Revise theWashington 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 offsetratio of
atleast 1.3 to 1.

(K) Submit as part ofthe SIP a fee requirement formajor sources ofvolatile organic compounds (VOC) andnitrogen oxides (NOx) shouldthe area fail to attainby November 15, 2005.

(L) Submit as part ofthe SIP a revision that identifies and adopts specific enforceable transportation control strategies andtransportation control measures to offset any growth in emissions from growth in vehicle miles traveled ornumber ofvehicle trips and
to attain reductions in motor vehicle emissions as necessary, in combination with other emission reduction requirements in the Washington area, to comply withthe ROP requirements for

severe areas. Measures specified in section 108(f) ofthe Clean Air Act will be considered and implemented as necessary to demonstrate attainment.
VI. Statutory and Executive Order
Reviews

A. GeneralRequirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is
not a "significant regulatory action" and therefore isnot subject toreview bythe Office ofManagement and Budget. For this reason, this action is also not subject to Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, orUse" (66 FR 28355, May 22, 2001). This actionmerely approves state law asmeeting Federal requirements andimposes no additional requirements beyond those imposed by
state law. Accordingly, the Administrator certifies thatthis rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5U.S.C. 601 etseq.). 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 oruniquely 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 onthe distribution ofpower 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 onthe distribution ofpower and responsibilities among the various levels ofgovernment, 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 alterthe relationship or the distribution ofpower and responsibilities established inthe Clean Air Act. This rule also isnot subject to Executive Order 13045 "Protection ofChildren from Environmental HealthRisks and Safety Risks" (62FR 19885, April 23, 1997), because itis 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 ofa prior existing requirement for the State touse voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. Itwould thus be inconsistent with applicable law for EPA, when itreviews a SIP submission,
to use VCS in place ofa SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note)do not apply. This rule does
notimpose an information collection burden under the provisions ofthe Paperwork Reduction Act of1995 (44 U.S.C. 3501 etseq.).

B. Submission to Congressandthe ComptrollerGeneral

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides thatbefore a rule may take effect, the agency promulgating the rule must submit a rulereport, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPAwill submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. This ruleis not a "major rule" as defined by 5U.S.C. 804(2).
C. Petitions for JudicialReview
Under section 307(b)(1) ofthe Clean AirAct, petitions forjudicial review of 

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this action must be filed in the United States Court ofAppeals for the appropriate circuit by June 16, 2003. Filing a petition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthisrule for the
purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action to conditionally approve the severe ozone nonattainment area SIP revisions for the Metropolitan Washington severe ozone nonattainment area may notbe challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects in 40 CFRPart52

Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

Dated: April 10, 2003. Thomas C.Voltaggio, ActingRegional Administrator, RegionIlL

* 40 CFRpart 52is 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-Districtof Columbia

* 2.Section 52.473 is added toread as follows:
§52.473 Conditionalapproval.

The District ofColumbia's severe

ozone nonattainment area SIP for the Metropolitan Washington area, which includes the 1996-1999 portion ofthe rate-of-progress plan submitted on November 3, 1997, andMay 25, 1999 andthe transportation control measures in Appendix H ofthe May 25, 1999 submittal, andthe 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 motorvehicle emissions budgets for 2005 of 101.8 tons per day ofvolatile organic compounds (VOC) and 161.8 tons per day ofnitrogen 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 byNovember 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 ofozone precursors ofat least 3percent peryear 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 tobe 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 thatqualify as contingency measures to be implemented for the failure ofthe Washington area to attain the one-hour

ozone standard for serious areas by November 15, 1999. (5)Revises the Washington area

severe attainment demonstration to reflect revised MOBILE6-based motor vehicle emissions budgets, including revisions to the attainment modeling/ weight ofevidence demonstration and adopted control measures, as necessary, to show that the SIP continues to demonstrate attainment byNovember 15, 2005.

(6) Revises the Washington area

severe attainment demonstration to include a contingency plan containing those measures tobe implemented ifthe Washington area does not attain the one-hour ozone standard byNovember 15, 2005.

(7)Revises the Washington area

severe attainment demonstration to include arevised RACM analysis and
any revisions tothe 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
atleast 1.3 to 1.

(11) Includes a fee requirement for major sources ofvolatile organic compounds (VOC) and nitrogen oxides (NOx)should the area fail to attainby November 15, 2005.

(12) Includes a revision thatidentifies 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 andto attain reductions in
motorvehicle emissions asnecessary, 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) ofthe Clean Air Act will be considered and implemented as necessary to demonstrate attainment.
Subpart V-Maryland

* 2. Section 52.1072 is amendedby adding paragraph (e) to read asfollows:
§52.1072 Conditionalapproval.

* * * * *

(e) Maryland's severe ozone nonattainment area SIP for the Metropolitan Washington area, which includes the 1996-1999 portion ofthe rate-of-progress plan submitted on December 24, 1997 andMay 20, 1999 and the transportation control measures in Appendix H ofthe 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

### Jofthe February 9, 2000 submittal, isconditionally approved contingent on Maryland submitting a revised SIP by April 17, 2004 that satisfies certain conditions. This conditional approval also establishes
motorvehicle emissions budgets for 2005 of 101.8 tons per day ofvolatile organic compounds (VOC) and 161.8
tons per day ofnitrogen oxides (NOx) to be usedin 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 emissionbudgets and adopted measures sufficient to achieve emission reductions ofozone precursors ofat least 3percent peryear 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 tobe 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 thatqualify as contingency measures to be implemented for the failure ofthe Washington area to attain the one-hour

ozone standard for serious areas by November 15, 1999. (5)Revises the Washington area

severe attainment demonstration to reflect revised MOBILE6-based motor vehicle emissions budgets, including revisions to the attainment modeling/ weight ofevidence demonstration and adopted control measures, as necessary, to show that the SIP continues to demonstrate attainment by November 15, 2005.

(6) Revises the Washington area

severe attainment demonstration to include a contingency plan containing those measures tobe implemented ifthe Washington area does not attain the one-hour ozone standardby November 15, 2005.

(7)Revises the Washington area

severe attainment demonstration to include a revised RACM analysis and any revisions tothe 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
atleast 1.3 to 1.

(11) Includes a fee requirement for major sources ofvolatile organic compounds (VOC) and nitrogen oxides (NOx)should the area fail to attain by November 15, 2005. (12) Includes a revision thatidentifies 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 andto 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) ofthe Clean Air Act will be considered and implemented as necessary to demonstrate attainment.
Subpart VV-Virginia

* 2.Section 52.2450 is amendedby addingparagraph (b)toread as follows:
§52.2450 Conditionalapproval.

(b)Virginia's severe ozone nonattainment area SIP for the Metropolitan Washington area, which includes the 1996-1999 portion ofthe rate-of-progress plan submitted on December 19, 1997 andMay 25, 1999 andthe transportation control measures in Appendix H ofthe May 25, 1999 submittal, andthe 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 

### Jofthe 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 ofvolatile organic compounds (VOC) and 161.8
tons per day ofnitrogen 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 byNovember 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 ofat least 3percent 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 tobe implemented should EPA determine thatthe 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 ofthe 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 revisionsto the attainment modeling/ weight ofevidence demonstration and adopted control measures, as necessary, to show that the SIP continues to demonstrate attainment byNovember 15, 2005.

(6) Revises the Washington area

severe attainment demonstration to include a contingency plan containing those measures to be implemented ifthe Washington area does not attain the one-hour ozone standard byNovember 15, 2005.

(7)Revises the Washington area

severe attainment demonstration to include arevised 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 peryear.

(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
atleast 1.3 to 1.

(11) Includes a fee requirement for major sources ofvolatile organic compounds (VOC) and nitrogen oxides (NOx)should the area fail to attainby November 15, 2005.

(12) Includes a revision thatidentifies 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 andto attain reductions in
motorvehicle emissions asnecessary, 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) ofthe 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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