[Federal Register Volume 68, Number 74 (Thursday, April 17, 2003)]
[Rules and Regulations]
[Pages 19106-19133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9337]
[[Page 19105]]
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Part III
Environmental Protection Agency
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40 CFR Part 52
Approval and Promulgation of Air Quality Implementation Plans; District
of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress Plans and
One-Hour Ozone Attainment Demonstrations; Final Rule
Federal Register / Vol. 68, No. 75 / Thursday, April 17, 2003 / Rules
and Regulations
[[Page 19106]]
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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 One-Hour Ozone Attainment Demonstrations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is conditionally approving the severe ozone nonattainment
area State Implementation Plan (SIP) revision for the Metropolitan
Washington severe ozone nonattainment area. This SIP revision includes
the one-hour severe ozone attainment demonstration, the 1996-1999
portion of the severe area rate-of-progress (ROP) plan and
transportation control measures for the Metropolitan Washington DC
ozone nonattainment area (the Washington area) submitted by the
District of Columbia's Department of Health (DoH), by the Maryland
Department of the Environment (MDE) and by the Virginia Department of
Environmental Quality (VADEQ). EPA is conditioning approval on
commitments submitted by DoH, MDE and VADEQ to submit adopted control
measures that qualify as contingency measures to be implemented for
failure of the Washington area to attain the one-hour ozone standard
for serious areas by November 15, 1999 and adopted contingency measures
that will be implemented should the area fail to attain by the November
15, 2005 severe ozone attainment deadline or fail to achieve any post-
1996 three-percent year emissions reduction requirement. Approval is
also conditioned on commitments that require the Washington area
jurisdictions to submit a revised rate-of-progress plan that includes
emission reductions of ozone precursors of at least 3 percent per year
from November 15, 1999 to the November 15, 2005, an updated attainment
demonstration that reflects revised MOBILE6-based motor vehicle
emissions budgets, a revised analysis of reasonably available control
measures (RACM) and to revise the attainment demonstration as necessary
to reflect the revised budgets and RACM analysis. Approval is also
conditioned on the Washington area jurisdictions submitting a SIP
revision that meets all of the requirements of a severe area SIP
including, but not limited to lower major stationary source thresholds,
revised offset ratios, any required transportation control strategies
and a fee requirement for major sources should the area fail to attain
by 2005.
EFFECTIVE DATE: This final rule is effective on May 19, 2003.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103; District of
Columbia Department of Public Health, Air Quality Division, 51 N
Street, NE., Washington, DC 20002; Maryland Department of the
Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland
21230; Virginia Department of Environmental Quality, 629 East Main
Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or
by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in
this document refers to EPA.
This SUPPLEMENTARY INFORMATION section is organized to address the
following questions:
I. What Action Is EPA Taking Today?
II. What Were the Conditions for Approval Provided in the Notice of
Proposed Rulemakings for the 1996-1999 ROP Plan and Attainment
Demonstration?
III. What Comments Were Received on the Proposed Conditional
Approvals and How Has EPA Responded to them?
IV. Applicability of Revised Motor Vehicle Emissions Budgets
V. Final Action
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Taking Today?
EPA is taking a final action to conditionally approve the
Washington area severe ozone nonattainment SIP. This SIP revision
includes previously submitted attainment demonstration and 1996-1999
ROP plan SIPs and contingency measures that now apply to the Washington
area as a severe area ozone nonattainment area. EPA is issuing a final
conditional approval on the basis that the Washington area
jurisdictions must revise and submit a severe area SIP that is
consistent with the principle that attainment must be achieved as
expeditiously as possible but no later than the severe ozone area
attainment deadline of November 15, 2005 and that the previously
submitted attainment demonstration and ROP SIPs must include
contingency measures, RACM, motor vehicle emissions budgets that are
consistent with a severe attainment deadline and all of the remaining
severe ozone nonattainment area requirements. On February 3, 2003 (68
FR 5246), EPA proposed to conditionally approve these SIP revisions as
a severe area attainment demonstration and only the 1996-1999 portion
of the Washington area's ROP obligation in accordance with section
110(k)(4) of the Clean Air Act (CAA), on the basis of commitments from
DoH, MDE and VADEQ to remedy these certain limited inadequacies. EPA
has since determined that the severe ozone nonattainment requirements
in their entirety are inseparable from the overall Washington Area
attainment demonstration. EPA is therefore authorized to conditionally
approve the attainment demonstration as a whole based on commitments
submitted on April 7 and 8, 2003, from Maryland, the District and
Virginia, respectively, to submit measures to complete the severe area
requirements to revise the previously submitted SIPs listed in Tables 1
and 2 of this notice to be consistent with and to include all of the
section 182(d) requirements of a severe ozone nonattainment area SIP.
The specific commitments submitted by the Washington area jurisdictions
are to:
(A) Revise the 1996-1999 portion of the severe area ROP plan to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented should EPA determine
that the Washington area failed to achieve the required 9 percent rate-
of-progress reductions by November 15, 1999.
(B) Revise the severe area ROP to provide emission reductions of
ozone precursors of at least 3 percent per year from November 15, 1999
to the November 15, 2005 severe ozone attainment date.
(C) Revise the severe area ROP plan to include a contingency plan
containing those adopted measures that qualify as contingency measures
to be implemented should EPA determine that the Washington area failed
to achieve the ROP reductions required for the post-1999 period.
(D) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented for the failure of
the Washington area to attain the one-hour ozone standard for serious
areas by November 15, 1999.
(E) Update the Washington area severe attainment demonstration to
[[Page 19107]]
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
(F) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those measures to be implemented
if the Washington area does not attain the one-hour ozone standard by
November 15, 2005.
(G) Revise the Washington area severe attainment demonstration to
include a revised RACM analysis and any revisions to the attainment
demonstration including adopted control measures, as necessitated by
such analysis.
(H) Revise the major stationary source threshold to 25 tons per
year.
(I) Revise Reasonably Available Control Technology (RACT) rules to
include the lower major source applicability threshold.
(J) Revise new source review offset requirements to require an
offset ratio of at least 1.3 to 1.
(K) Submit as part of the SIP a fee requirement for major sources
of volatile organic compounds (VOC) and nitrogen oxides
(NOX) should the area fail to attain by November 15, 2005.
(L) Submit as part of the SIP a revision that identifies and adopts
specific enforceable transportation control strategies and
transportation control measures to offset any growth in emissions from
growth in vehicle miles traveled or number of vehicle trips and to
attain reductions in motor vehicle emissions as necessary, in
combination with other emission reduction requirements in the
Washington area, to comply with the ROP requirements for severe areas.
Measures specified in section 108(f) of the Clean Air Act will be
considered and implemented as necessary to demonstrate attainment.
Details on EPA's analysis of the previously submitted SIP revisions
and their adequacy with respect to the requirements of a severe ozone
nonattainment area are explained in detail in the proposal notice and
will not be restated here.
Under the CAA, EPA is required to approve or disapprove a State's
submission no later than 12 months after the submission is determined
or deemed complete. On November 13, 2002, the Sierra Club filed a
complaint in the United States District Court for the District of
Columbia (District Court) against the EPA (Sierra Club v. Whitman, No.
1:02CV02235(JR)) claiming, among other things, that the EPA had not
issued a final action on several SIP revisions (those listed in Tables
1 and 2 of this document) submitted by the District, Maryland and
Virginia for the Washington area. On December 18, 2002, the District
Court issued an order directing the EPA to publish, by February 3,
2003, a notice of proposed rulemaking on these SIP revisions and to
publish by April 17, 2003, a final rule on these SIP revisions. This
final rulemaking action complies with the Court's Order to publish a
final action on these SIP revisions by April 17, 2003.
Tables 1 and 2 identify the submittal and amendment dates for the
ROP plans and attainment demonstrations for which EPA is taking final
action to conditionally approve.
Table 1.--1996-1999 ROP Plans
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DC MD VA
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Initial submittal dates......... November 10, 1997.. December 24, 1997.. December 19, 1997.
Amendment dates................. May 25, 1999....... May 20, 1999....... May 25, 1999.
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Table 2.--Attainment Demonstrations
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DC MD VA
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Initial submittal dates......... April 24, 1998..... April 29, 1998..... April 29, 1998.
Amendment dates................. October 27, 1998... August 17, 1998.... August 18, 1998.
Supplemental dates.............. February 16, 2000.. February 14, 2000 February 9, 2000.
(MD SIP No. 00-01).
Supplemental dates.............. March 22, 2000..... March 31, 2000 (MD March 31, 2000.
SIP No. 00-02).
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II. What Were the Conditions for Approval Provided in the Notice of
Proposed Rulemakings for the 1996-1999 ROP Plan and Attainment
Demonstration?
Under section 110(k)(4) of the CAA, the EPA ``may approve a plan
revision based on a commitment of the State to adopt specific
enforceable measures by a date certain, but not later than 1 year after
the date of approval of the plan revision. Any such conditional
approval shall be treated as a disapproval if the State fails to comply
with such commitment.'' In the Notice of Proposed Rulemaking published
on February 3, 2003 (68 FR 5246), EPA proposed to conditionally approve
the Washington area severe attainment demonstration and 1996-1999
portion of the ROP plan on the basis that the Washington area
jurisdictions had committed to submit to EPA by April 17, 2004 revised
SIPs that meet the following conditions.
(A) Revise the 1996-1999 portion of the severe area ROP plan to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented should EPA determine
that the Washington area failed to achieve the required 9 percent rate-
of-progress reductions by November 15, 1999.
(B) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented for the failure of
the Washington area to attain the one-hour ozone standard for serious
areas by November 15, 1999.
(C) Update the Washington area severe attainment demonstration to
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
[[Page 19108]]
(D) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those measures to be implemented
if the Washington area does not attain the one-hour ozone standard by
November 15, 2005.
(E) Revise the Washington area severe attainment demonstration to
include a revised RACM analysis and any revisions to the attainment
demonstration adopted control measures as necessitated by such
analysis.
III. What Comments Were Received on the Proposed Conditional Approvals
and How Has EPA Responded to Them?
In EPA's Notice of Proposed Rulemaking published on February 3,
2003 (68 FR 5246) EPA proposed conditional approval of the Washington
area's severe area attainment demonstration and the 1996-1999 portion
of the severe area ROP obligation. EPA also proposed disapproval in the
alternative to preserve the court-ordered schedule to issue a final
rule by April 17, 2003 in the event that EPA could not issue a final
conditional approval with respect to either or both the attainment
demonstration and 1996-1999 ROP plan. EPA received comments from the
Virginia Department of Transportation on March 5, 2003 supporting EPA's
proposed conditional approval. These comments will not be addressed
here. On March 5, 2003 EPA also received comments from the Sierra Club.
The Sierra Club's March 5 comments specifically incorporate by
reference comments submitted by the Sierra Club and others on February
14, 2000, October 30, 2000, November 15, 2000, November 20, 2000,
September 9, 2002, and December 13, 2002.
To the extent that the previously submitted comments are germane to
the current action, EPA generally incorporates by reference its prior
responses to those comments published at 66 FR 586, January 3, 2001,
and 68 FR 5246, February 3, 2003. We respond with particularity to many
of the previously submitted comments (1) to the extent that events
occurring after publication of EPA's prior responses require that our
prior responses be updated and revised or (2) to the extent that we
feel that consolidating prior responses helps create a more
comprehensive record for the current rulemaking. The following
discussion summarizes and responds to particular comments.
A. Comments in the March 5, 2003
1. Conditional Approval
Comment: The commenter argues that EPA cannot conditionally approve
the Washington area SIPs for various reasons. First, the commenter
alleges that even EPA concedes that it cannot fully approve the SIPs
based on various defects noted by the D.C. Circuit court in Sierra Club
v. Whitman, 294 F.3d 155, 163 (D.C. Cir. 2002), therefore, EPA cannot
conditionally approve the SIPs. The commenter further alleges that
conditional approval cannot be used to circumvent or postpone statutory
deadlines, and that conditional approval will prevent the Washington
area from attaining the ozone standard as expeditiously as possible,
prevent achievement of Post-1999 ROP and prevent timely implementation
of contingency measures in the event the area fails to achieve timely
rate-of-progress or attainment. The commenter also asserts that
conditional approval cannot be used when a state has failed to submit a
relevant substantive SIP component at all; that the SIP components at
issue were due on November 15, 1994; that the States' commitments do
not identify ``specific enforceable measures'' to be adopted by a date
certain; that the commitments are to fix major components not minor
details; that conditional approval is not allowable here because EPA
has already allow the States to defer submission of various required
SIP components for more than one year; and finally, that all of the
defects the commenter has identified means any conditional approval
would violate section 110(l) of the Act.
Response: The commenter misconstrues the conditional approval
mechanism. Conditional approval under section 110(k)(4) is quite
different from full approval under section 110(k)(3) of the Act, which
the Court of Appeals considered in Sierra Club. Conditional approval is
a statutory technique that allows EPA to give a limited form of
approval to SIPs that do not meet all of the standards for full
approval, but where a substantive SIP also includes commitments made by
the states to remedy limited, identified deficiencies through the
adoption of specific enforceable measures by a date certain. 42 U.S.C.
7410(k)(4). Here, the States have committed to undertake various
analyses and ultimately adopt specific enforceable measures as
appropriate to remedy the deficiencies in the currently submitted SIP
revisions. Based on the fact that the SIP contains most of the
substantive components for the required plans as well as commitments to
correct limited deficiencies, which EPA received after the court
ruling, the statute provides for EPA to conditionally approve the SIPs
even though the court found that EPA could not fully approve them. The
Court of Appeals did not address whether EPA could conditionally
approve the SIPs as the issue of conditional approval was not before
the court and the States had not made appropriate commitments at the
time of the court ruling.
With respect to the assertion that EPA cannot use the conditional
approval mechanism to allow areas to avoid a statutory deadline, and
the complaint about SIP submittal deadlines that have long passed, EPA
is dealing in this case with a SIP that was submitted by the States,
reviewed by EPA and approved by EPA in January 2001 through notice-and-
comment rulemaking. EPA's approval was then vacated by the Court of
Appeals on July 2, 2002, after judicial review. Whatever the merits of
any argument about delays that occurred previously, EPA must now take
action on the SIPs under court order based on the submittal before the
agency. That submittal consists of the previously submitted SIP and the
recently submitted commitments by the States to conduct the appropriate
analyses and submit any necessary measures to rectify certain limited
defects in the SIPs. EPA believes it is appropriate to conditionally
approve the SIPs that the States have recently committed to revise to
satisfy deficiencies which were the basis for vacatur by the Court of
Appeals. The States could not have been expected to remedy these
deficiencies previously as EPA had in fact approved the SIPs without
noting any such deficiencies prior to the court ruling. The States have
now committed to revise the SIPs on an expeditious schedule that is no
later than one year following EPA's final action. Furthermore, EPA
notes that there is nothing in the statute that limits the use of
conditional approval to SIP revisions that are submitted by the
statutory due date. Nor does the statute link the period for
conditional approval to the time by which the SIP was due. Finally, EPA
has never before conditionally approved these SIPs nor have the States
previously made commitments to submit all of these portions of the
attainment demonstration within a year. For these reasons, EPA believes
it is reasonable to use this tool in this case.
The commenter further claims that a conditional approval will delay
timely attainment. However, the commitments are to submit any necessary
additional measures by April 2004 while the attainment date for the
area is not until
[[Page 19109]]
November 2005, so all deficiencies will be cured at least 18 months
prior to the attainment date and will therefore not delay timely
attainment because the States will need to ensure any necessary
emission controls are in place by the beginning of the 2005 ozone
season. One year should provide sufficient time to implement any
necessary controls. To the extent the commenter addresses alleged
deficiencies in the 2005 attainment date itself, these comments will be
addressed in section III.A.2. of this document responding to comments
on the attainment demonstration.
The commenter next claims that EPA cannot use the conditional
approval mechanism where states have failed to submit a substantive SIP
component at all, alleging that in this case various parts of the
attainment demonstration, such as ROP plans, contingency measures and
RACM, constitute separate SIP components. EPA had indeed argued in
Sierra Club, supra, that these were separate SIP requirements and for
that reason the attainment demonstration should have been upheld
without them. However, the Court of Appeals agreed with the contrary
argument, which was actually made by the commenter, and held that ROP
plans, RACM and contingency measures are actually parts of the overall
Washington Area attainment demonstration and must be included within
it. See Sierra Club v. Whitman, 285 F.3d at 163-64 (D.C. Cir. 2002).
The attainment demonstration includes many components in addition to
these. The attainment demonstration already demonstrates attainment no
later than November 15, 2005, based on photochemical grid modeling and
a suite of adopted and SIP approved control measures that reduce local
emissions down to the allowable levels established by the photochemical
grid modeling. A list of these control measures can be found in the
notice of proposed rulemaking for this action. See 68 FR at 5252-5253
and at 5255-5256, February 4, 2003. Given that these items to which the
States have committed are a part of the overall Washington area
attainment demonstration rather than separate SIP components, EPA
concludes that it is authorized to conditionally approve an attainment
demonstration that contains commitments to submit limited components of
the attainment demonstration.
The commenter then argues that these elements of the attainment
demonstration are so significant that the SIPs cannot be conditionally
approved without them. However, the primary portions of the attainment
demonstration are the adopted control measures themselves coupled with
the modeling demonstration showing that implementation of these
measures will result in attainment by the requisite date. The RACM
analysis merely analyzes potential additional measures to determine
whether any could advance the attainment date; the post-1999 ROP
analysis addresses interim progress prior to the attainment date; and
the contingency measures address measures to be implemented in the
event rate-of-progress or attainment is not timely achieved. Although
all of these elements are important portions of the overall attainment
demonstration SIP, EPA does not believe that any of them amount to such
a significant portion of the attainment demonstration that the
demonstration cannot be conditionally approved based on the States
commitment to complete the additional analyses along with adoption of
any necessary additional measures in the short term. EPA addresses the
commenters specific concerns about the substance of these three SIP
portions elsewhere in responding to comments regarding the individual
elements of the attainment demonstration.
Further, the commenter alleges that conditional approval is
inappropriate in this case because the States have purportedly not made
commitments to adopt specific enforceable measures as required by
section 110(k)(4). In contrast, EPA believes that the commitments
submitted by the States do indeed commit the States to ultimately adopt
specific enforceable measures if such measures are determined to be
needed based on further analysis. The commitment letters specifically
state that the States will submit adopted contingency measures
requisite to satisfy the contingency measure requirements for various
circumstances relating to ROP and attainment. The States further commit
not only to conduct the various RACM and mobile modeling analyses, but
also to revise the attainment demonstration itself as appropriate in
light of these analyses. EPA believes that there can be no
interpretation of these commitment letters other than a conclusion that
the States have committed to submit specific enforceable measures to
support the revised attainment demonstration if necessary. However,
since the States have submitted additional commitment letters for
various reasons described elsewhere in this document, the States have
clarified in those letters their intent to submit specific measures in
support of the demonstrations, if appropriate. It is true that the
States have not yet identified the specific measures that could
ultimately be adopted, however it would be impossible for them to do so
in advance of conducting the requisite RACM and modeling analyses.
The commenter argues that contingency measures should not be the
subject of a conditional approval in DC because it is likely that by
the summer of 2003 it could be determined that the DC area will fail to
attain in 2004 and the contingency measures would then be triggered.
However, contingency measures are not required to be implemented under
the Act until an area fails to attain by the applicable attainment
date. (CAA section 172(c)(a)). The statute does not require
implementation of contingency measures prior to the attainment date
based on a projection that the area will not attain when the attainment
date is reached. Given that the States have committed to submit all
necessary contingency measures by April 2004, any needed contingency
measures would be available for implementation should EPA make a
determination by May 15, 2006 under section 181(b)(2) of the Act that
the area failed to attain by November 15, 2005.
We also disagree with the commenters' allegation in comments
previously submitted on September 9, 2002 that the motor vehicle
emissions budgets (MVEBs) in the attainment demonstration do not
reflect the potential to lower the MVEB through transportation related
control measures should the area fail to attain or to meet ROP
requirements. With respect to those contingency measures that would be
triggered by the failure to attain, the attainment year MVEB would
never account for these contingency measures because such measures
would never be triggered until after the attainment year. Should those
contingency measures be triggered, it would be appropriate at that time
for the state to revise the budgets to reflect implementation of such
measures in future years, but this cannot be done in advance of
implementation of the measures as it is unclear whether the measures
would ever in fact be implemented.
Similarly, with respect to contingency measures triggered by the
failure to meet ROP, the obligation to account for those contingency
measures is not triggered until it has been determined that the area
has failed to meet its ROP requirements. EPA is allowing the Washington
area jurisdictions to demonstrate the first required post-1999 nine
percent ROP (which was due under the statute by November 15, 2002), as
[[Page 19110]]
expeditiously as practicable, if control measures currently in the
SIPs, or already promulgated by EPA, did not achieve the required nine
percent reduction by November 15, 2002. (See 68 FR 3418). Therefore,
the date for fulfilling the first post-1999 ROP requirement lies in the
future, and the requirement to implement any needed contingency
measures for failure to meet that ROP has not been, and may not ever
be, triggered. This is true, too, for the 1999 ROP requirement. It has
not yet been determined that the Washington area did, or did not, meet
its 1999 ROP requirement and the requirement to implement contingency
measures for failure to meet the 1999 ROP requirement has not yet been
(and may not ever be) triggered. As with any contingency measures that
would be implemented for a future failure to attain, because the
obligation to implement contingency measures for failure to meet the
post-1999 ROP requirements has not arisen, the area has no obligation
to account for these measures in the attainment demonstration MVEB.
Finally, the commenter argues that all the defects it has asserted
entail that any conditional approval would violate section 110(l) of
the Act, which prohibits EPA from approving a SIP revision that would
interfere with any applicable requirement of the Act. However, EPA has
concluded that the submitted attainment demonstration, coupled with the
commitments the States have made to remedy the deficiencies in their
demonstrations, fully satisfy all of the applicable requirements of the
Act requisite to support a conditional approval.
2. Attainment Demonstration
a. RACM and Attainment as Expeditiously as Practicable.
Comment: The commenter argues that the submitted SIPs do not
provide for attainment as expeditiously as practicable, as required by
the Act, because the States have not properly analyzed whether any
additional RACMs could advance the 2005 attainment date.
Response: EPA acknowledges that the RACM analyses in the SIPs are
not sufficient, as noted by the Court of Appeals in Sierra Club, supra.
However, the attainment demonstration does provide for attainment by
2005, a date consistent with the outside statutory date for attainment
for severe ozone nonattainment areas and one that is only two years
away. EPA therefore concludes, in light of the States commitments to
conduct a RACM analysis and submit any additional measures determined
to constitute RACM within a year, that it is appropriate to
conditionally approve the attainment demonstration SIPs at this time.
Should the RACM analyses determine that there are in fact potential
RACM that could advance the attainment date, then EPA could approve an
earlier attainment demonstration including such measures. However, in
advance of completion of such RACM analyses EPA believes on the basis
of the attainment demonstration before it that the SIP does demonstrate
attainment as expeditiously as practicable. This preliminary conclusion
is neither arbitrary nor capricious given the short period of time
until the attainment date. Although no final conclusions can be reached
until the RACM analyses are completed, given the time necessary for
implementation of measures EPA believes it is unlikely that sufficient
measures could be adopted and implemented to allow the Washington area
to reach attainment by the 2004 ozone season. Specifically, the state
process for developing control requirements in the form of SIP
revisions, providing a public hearing, and adopting SIP revisions,
typically takes at least a full year. In addition, the state typically
allows a period of at least a year, often longer, for sources to
implement required controls. Even if these process were significantly
accelerated, it is highly unlikely that controls would be implemented
by the start of the 2004 ozone season.
b. Demonstration of Attainment by 2005.
Comment: We received comments declaring that the attainment
demonstration, and EPA's analysis of it, look only at ozone levels in
2005, not 2003 and 2004. The comments assert that to demonstrate
attainment by November 15, 2005, the demonstration of attainment must
show that no monitor in the nonattainment area will have an average of
more than 1.0 expected exceedance per year for the period 2003-2005 but
that the demonstration does not address the entire period. The comments
cite Sec. 50.9 of 40 CFR part 50.
Response: EPA disagrees with the comment. While EPA does agree that
Sec. 50.9 of 40 CFR part 50 establishes the form of the 1-hour ozone
standard in terms an annual average number of expected exceedances,
EPA's guidance for conducting an attainment demonstration are a
reasonable interpretation of the requirements for an attainment
demonstration required under section 182(c) of the CAA in light of the
form of the ozone NAAQS.
Air quality models do not know what year is being modeled, only the
emissions levels and the meteorology. The meteorology component would
be the same for any year because historical weather episodes are
modeled.
Under EPA's modeling guidance the States are required to model
severe episodes corresponding to those weather conditions thought to
generate high levels of ground level ozone. In contrast, all monitored
exceedances count towards a determination of whether all monitors are
actually meeting the standard under the standard set in 40 CFR 50.9 and
appendix H to 40 CFR part 50. A monitored value of 0.125 ppm counts as
one exceedance to the same extent as a value of 0.150 ppm. Modeling
demonstrating that the most severe episodes will yield few or no
exceedances will be consistent with elimination of exceedances on less
severe weather days.
As EPA stated in the technical support for this rule, the modeling
demonstration considered severe episodes: the ozone forming potential
rank is very high for one day--July 20, 1991. This is the thirteenth
most severe day out of approximately the last 50 years, one that is
likely to recur only once every 4 to 5 years on average. This type of
day is not likely to occur often enough to be a major causative factor
for nonattainment, especially since the emission controls modeled in
this plan should eliminate ozone exceedances for all but the most
meteorologically severe days.
EPA has concluded that the modeling analysis allows anthropogenic
emissions in the Washington area of 360 tons per day of VOC and 538
tons per day of NOX.
To reduce future year emissions to levels consistent with the
modeling demonstration, the attainment demonstration has to provide for
enough emission reductions net of growth to reduce emissions down to
the levels allowed by the attainment modeling demonstration. Therefore,
the attainment demonstration has to provide for emission reductions to
accomplish two purposes: first, the plan has to offset growth in
emissions due to increases in emissions-related activity to reduce
emissions to the base year levels; and, second, the plan has to produce
sufficient additional reductions beyond that needed to offset post-1990
growth to reduce emissions to the levels allowed by the attainment
modeling demonstration.
When viewed from this perspective, the Post-1996 ROP plan for the
1999 milestone (hereafter ``the 1996-1999 ROP plan'') had to achieve
reductions
[[Page 19111]]
net of growth of 128.3 tons per day of VOC and 116.2 tons per day of
NOX to make the ROP targets. The plan actually achieved
creditable reductions net of growth of 143.7 tons per day VOC and 123.0
tons per day NOX. The demonstration of ROP for the 1999
milestone year in Post-1996 plan clearly did not rely upon controls
beyond reasonably available control technology (RACT) at large
NOX sources. Even though the potential benefits of beyond-
RACT controls were calculated, the 1996-1999 ROP plan did not rely upon
those controls and did not rely upon Phase II of the RFG program which
was implemented in January 2000.
The attainment modeling considered the effects of the OTC Phase II
NOX controls. The benefits for these controls would have
been 93 tons per day in 1999. 70 tons per day of reduction were
achieved from the District's and Maryland's Phase II NOX
rules which were implemented commencing May 1, 2002.\1\ Major further
reductions will occur in 2003 from the implementation of the
NOX SIP call rules in Maryland and Virginia and beyond RACT
controls on the two major utility sources in Virginia.\2\ Thus, by
2003, the local NOX emissions would be close to the levels
required by the local area modeling.
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\1\ These controls have been approved into the SIPs. See 65 FR
78416, December 15, 2000, and 65 FR 80783, December 22, 2000.
\2\ These controls have been approved into the SIPs. See 66 FR
55099, November 1, 2001, and 66 FR 1866, January 10, 2001; and 65 FR
78100, December 14, 2000
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The Phase II RFG program is projected to yield 23.5 tons per day of
VOC reductions in 2005 versus a little less than 16 in 1999. Much of
this additional benefit would have been achieved in calendar year 2000
when the second phase of the program was implemented to achieve the
mandated additional VOC reductions over and above that required by the
first phase.
The attainment plan requires reductions net of growth of 148.5 tons
per day of VOC and 192.9 tons per day of NOX to reduce
emissions to the levels allowed by the attainment modeling
demonstration. These are 4.8 tons per day of VOC and 69.9 tons per day
of NOX lower than the reductions credited to the Post-1996
for the 1999 milestone. The creditable emissions reductions net of
growth by 2005 are 151.8 tons per day of VOC and 327.9 tons per day of
NOX. The Post-1999 reductions are mainly used to offset
growth in emissions after 1999 once the RFG and Phase II NOX
rules are in place.
The Plan's local emissions levels are very close to that required
under the local air quality modeling in 1999 once the RFG and Phase II
NOX rules are considered. Significant reductions in upwind
NOX will not commence sooner than May 31, 2004, under the
NOX SIP call and related federal requirements. EPA believes
modeling a 2003 year case would merely show continued exceedances due
to transport. For a 2004 year, EPA believes that the resources needed
to develop the necessary inventories, process them for incorporation
into the air quality model and to perform the actual air quality
modeling would not add any value. The emissions levels would be
expected to be essentially the same as for 2005 because the 2005 plan
is projected to exceed the emission reduction requirements set by the
modeling demonstration.
c. The Ozone Standard.
Comment: The commenter stated that EPA had based its proposed
approval of the attainment demonstration on the assumption that the 1-
hour ozone standard is 0.125 ppm, when the actual standard is 0.12 ppm.
Response: The level of the 1-hour ozone National Ambient Air
Quality Standard (NAAQS) is defined in 40 CFR 50.9 as 0.12 parts per
million (ppm), not 120 parts per billion (ppb) as implied by the
commenter. In other words, the 1-hour ozone NAAQS is specified as two
significant digits and the data handling approach employed to compare
ambient air quality data to the 1-hour ozone standard is to round to
two decimal places as per the regulations and guidance referenced
above.
Although the 1-hour NAAQS itself includes no discussion of specific
data handling conventions, EPA's publicly articulated position and the
approach long since universally adopted by the air quality management
community is that the interpretation of the 1-hour ozone standard
requires rounding ambient air quality data consistent with the stated
level of the standard. EPA has clearly communicated the data handling
conventions for the 1-hour ozone NAAQS in regulation and guidance
documents. In the 1990 Amendments to the CAA, Congress expressly
provided that ``[e]ach regulation, standard, rule, notice, order and
guidance promulgated or issued by the Administrator under this Act, as
in effect before the date of the enactment of the Clean Air Act
Amendments of 1990 shall remain in effect according to its terms * *
*'' Thus, under the amended CAA, Congress expressly carried forth EPA
interpretations set forth in guidance such as the guideline documents
interpreting the NAAQS.
As early as 1977, two years before EPA promulgated the 1-hour ozone
NAAQS, EPA provided in guidance that the level of the standard dictates
the number of significant figures to be used in determining whether the
standard was exceeded (see ``Guidelines for the Interpretation of Air
Quality Standards,'' OAQPS No. 1.2-008, February 1977). In addition,
the regulations governing the reporting of annual summary statistics
from ambient monitoring stations for use by EPA in determining national
air quality status clearly indicate the rounding convention to be used
for 1-hour ozone data (40 CFR part 58, appendix F). In 1979, EPA issued
additional guidance specific to ozone in which EPA provided that ``the
stated level of the standard is taken as defining the number of
significant figures to be used in comparisons with the standard. For
example, a standard level of 0.12 ppm means that measurements are to be
rounded to two decimal places (.005 rounds up), and, therefore, 0.125
ppm is the lowest concentration value in excess of the level of the
standard.'' See ``Guideline for the Interpretation of Ozone Air Quality
Standards,'' EPA-450/4-79-003, at p. 6. EPA's guidance on air quality
modeling is consistent with those Guidelines. See, e.g., Guidance on
Use of Modeled Results to Demonstrate Attainment of the Ozone NAAQS,
July 1996.
d. Modeled Demonstration of Attainment.
Comment 1: The commenter alleges that photochemical grid modeling
shows that the Washington area will not attain the ozone standard by
the November 2005 attainment date and because the ``weight of
evidence'' (WOE) analysis used by EPA to conclude that the Washington
area has demonstrated attainment by November 2005 is not authorized by
the Act or by EPA rules. The comments claim that the modeling
demonstration and WOE used in the attainment demonstration for the
Washington area do not meet requirements of section 182(c) of the CAA
and EPA's own regulations for photochemical grid modeling and other
analytical methods, that the WOE is an alternative method to
photochemical grid modeling which has not been shown to be equally
effective to the Urban Airshed Model (UAM), and that WOE is a
proscribed rollback method. Also, the commenter claims the most recent
modeling guidance is flawed because: it is allegedly a rollback
technique; because it allegedly allows the averaging across the three
highest air quality sites across a region, whereas EPA's 1991 and 1996
modeling guidance requires that attainment be demonstrated at each site
and, thus,
[[Page 19112]]
effectively lowers the total emission reduction needed to attain at the
highest site; and because of alleged flaws in the techniques for
determining the magnitude of additional emission reductions. The
commenter therefore asserts that approval of the attainment
demonstration would be arbitrary, capricious and contrary to law for
reasons set forth in comments submitted on March 5, 2003, as well as
those previously submitted to EPA on February 14, 2000. Such comments
also included EPA's treatment of over-prediction of ozone levels by the
photochemical grid model, EPA's treatment of modeled exceedances over
the standard and EPA's treatment of the photochemical grid modeling
results prediction of exceedances even over the levels allowed after a
downward adjustment under EPA's alternative test. Finally, the
commenter asserts that EPA failed to adequately explain certain
adjustments made to the photochemical grid modeling for the Washington
area.
Response 1:
WOE is consistent with the CAA and EPA regulations.
With respect to the allegation that the WOE analysis used by EPA is
not authorized by the Act or EPA rules, EPA consistently has
interpreted the CAA to allow for a weight-of-evidence analysis as an
interpretive adjunct to the photochemical grid modeling used to show
that the Washington area will attain the ozone standard in 2005. See,
e.g., 66 FR 634, January 3, 2001; 66 FR 666, January 3, 2001; 66 FR
54143, October 26, 2001; 66 FR 54577, October 29, 2001; 66 FR 54597,
October 29, 2001; 66 FR 54666, October 30, 2001; 66 FR 56903, November
13, 2001; 66 FR 56931, November 13, 2001; 66 FR 56944, November 13,
2001; 66 FR 57159, November 14, 2001; 66 FR 63921, December 11, 2001;
67 FR 5151, February 4, 2002; 67 FR 5170, February 4, 2002; 67 FR
30574, May 7, 2002; 67 FR 61786, October 2, 2002; 67 FR 72576, December
6, 2002; and 67 FR 72574, December 6, 2002. Because WOE is an adjunct
to photochemical grid modeling, not a separate analysis, the
commenter's assertion that the modeling for the Washington area is not
consistent with the CAA is a mis-statement.
As described in more detail below, the EPA allows states to
supplement their photochemical modeling results with additional
evidence designed to account for uncertainties in the photochemical
modeling databases and application in order to demonstrate attainment.
This approach is consistent with the requirement of section
182(c)(2)(A) that the attainment demonstration ``be based on
photochemical grid modeling,'' because the modeling results constitute
the principal component of EPA's analysis with supplemental information
designed to account for uncertainties in the model. This interpretation
and application of the photochemical modeling requirement of section
182(c)(2)(A) finds further justification in the broad deference
Congress granted EPA to develop appropriate methods for determining
attainment, as indicated in the last phrase of section 182(c)(2)(A).
This interpretation of the Act has been upheld by the Court of
Appeals for the Fourth Circuit, which stated ``EPA has long recognized
that there are uncertainties inherent in available models and in
estimating future emissions * * *. EPA thus allows the use of
supplemental analysis, including a ``weight of evidence'' analysis, to
demonstrate attainment in cases where the modeling shows ozone levels
exceeding the NAAQS.'' 1000 Friends of Maryland v. Browner, 265 F.3d
216, 234 (4th Cir. 2001)(internal quotation omitted).
The flexibility granted to EPA under section 182(c)(2)(A) is also
reflected in the regulations EPA promulgated for modeled attainment
demonstrations. These regulations provide, ``The adequacy of a control
strategy shall be demonstrated by means of applicable air quality
models, data bases, and other requirements specified in (40 CFR part
51, appendix W) (Guideline on Air Quality Models).'' \3\ 40 CFR
51.112(a)(1). The regulations further provide, ``Where an air quality
model specified in appendix W * * * is inappropriate, the model may be
modified or another model substituted [with approval by EPA, and after]
notice and opportunity for public comment * * *.'' Appendix W, in turn,
provides that, ``The Urban Airshed Model (UAM) is recommended for
photochemical or reactive pollutant modeling applications involving
entire urban areas,'' but further refers to EPA's modeling guidance for
data requirements and procedures for operating the model. 40 CFR part
51, appendix W, section 6.2.1.a. The modeling guidance discusses the
data requirements and operating procedures, as well as interpretation
of model results as they relate to the attainment demonstration. This
provision references guidance published in 1991; however, EPA
envisioned that the guidance would change as we gained experience with
model applications, which is why the guidance is referenced, but does
not appear, in Appendix W. With updates in 1996 and 1999, the evolution
of EPA's guidance has led us to the use of the photochemical grid
model, as well, or in conjunction, with additional analytical methods
approved by EPA.
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\3\ The August 12, 1996 version of ``Appendix W ot Part 51--
Guideline on Air Quality Models'' was the rule in effect for these
attainment demonstrations. EPA is proposing updates to this rule
which will not be in effect until the new rule is promulgated.
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EPA's interpretation of the CAA is consistent with the statute's
requirement that the attainment demonstration be ``based on
photochemical grid modeling.'' Giving the phrase ``based on'' its
ordinary meaning, the statute requires only that an attainment
demonstration ``arise from'' photochemical grid modeling, using the
modeling as a ``starting point'' or ``foundation.'' See McDaniel v.
Chevron Corp., 203 F.3d 1099, 1111 (9th Cir. 2000) (reviewing cases
interpreting the phrase ``based on''); United States v. United
Technologies. Corp., 985 F.2d 1148, 1158 (2d Cir. 1993) (``based upon''
does not mean ``solely''). EPA's weight-of-evidence analysis is
consistent with the plain meaning of the statute because photochemical
grid modeling is the starting point of the analysis; indeed, the very
purpose of the WOE analysis is to determine whether the modeling, in
light of all the evidence, demonstrates attainment.
Even if the statutory language is ambiguous, EPA's interpretation
is reasonable under Chevron U.S.A. Inc. v. Natural Res. Def. Council,
467 U.S. 837, 842-45 (1984). The comments apparently are based on the
premise that the statute should be read to say an attainment
demonstration must be based solely on photochemical grid modeling
without reliance on any analytical adjuncts. Even if this were a
plausible reading of the statute, EPA's interpretation is equally
permissible. See United Technologies, 985 F.2d at 1158. Our
interpretation adheres to the normal meaning of the statutory language
and is supported by the broad discretion that Congress granted to EPA
in section 182(c)(2)(A).
Because EPA reasonably determined that WOE analysis is based on
photochemical grid modeling, there is no merit to the alternative
statutory argument found in the comments. The comments contend that WOE
qualifies as an ``other analytical method'' under section 182(c)(2)(A),
requiring the EPA Administrator to determine that weight-of-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''
[[Page 19113]]
that would have required an effectiveness determination by the
Administrator.\4\
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\4\ For the same reasons, EPA was not required to address
whether its 1996 or 1999 Modeling Guidance is a ``substitute'' for
modeling or is an adequate model by itself.
---------------------------------------------------------------------------
Under ``Guidance on the Use Of Modeled Results to Demonstrate
Attainment of the Ozone NAAQS,'' EPA-454/B-95-007, June 1996 (hereafter
the 1996 Guidance), the modeled attainment test compares model
predicted 1-hour daily maximum ozone concentrations in all grid cells
for the attainment year to the level of the NAAQS. The results may be
interpreted through either of two modeled attainment or exceedance
tests: A deterministic test or a statistical test. Under the
deterministic test, a predicted concentration above 0.124 parts per
million (ppm) ozone indicates that the area is expected to exceed the
standard in the attainment year and a prediction at or below 0.124 ppm
indicates that the area is expected to not exceed the standard. Under
the statistical test, attainment is demonstrated when all predicted
(i.e., modeled) 1-hour ozone concentrations inside the modeling domain
are at, or below, an acceptable upper limit above the NAAQS permitted
under certain conditions (depending on the severity of the episode
modeled).
Based upon our experience with application of the models, which we
did not have in 1991, EPA issued the 1996 Guidance to update the 1991
guidance referenced in 40 CFR part 50, appendix W, to make the modeled
attainment test more closely reflect the form of the NAAQS (i.e., the
statistical test described above), and the meteorological conditions
accompanying observed exceedances. The 1996 Guidance also allows for
consideration of additional evidence to address uncertainties in the
modeling databases and application. Therefore, when modeling does not
conclusively demonstrate attainment, EPA has concluded that additional
analyses may be presented to help determine whether the area will
attain the standard. As with other predictive tools, there are inherent
uncertainties associated with air quality modeling and its results. The
inherent imprecision of the model means that it may be inappropriate to
view the specific numerical result of the model as the only determinant
of whether the SIP controls are likely to lead to attainment.
EPA's 1996 Guidance recognizes these limitations, and provides a
means for considering other evidence to help assess whether attainment
of the NAAQS is likely to be achieved. The process by which this is
done is called a weight-of-evidence or WOE determination. Under a WOE
determination, the state can rely on, and EPA will consider factors
such as other modeled output (e.g., changes in the predicted frequency
and pervasiveness of 1-hour ozone NAAQS exceedances); actual observed
air quality trends (i.e., analyses of monitored air quality data);
estimated emissions trends; and the responsiveness of the model
predictions to further controls in addition to the results of the
modeled attainment test.
In 1999, EPA issued additional guidance (hereafter, the 1999
Guidance)\5\ that makes further use of model results for base case and
future emission estimates to predict a future design value. This
guidance describes the use of an additional component of the WOE
determination, which requires, under certain circumstances, additional
emission reductions that are or will be approved into the SIP, but that
were not included in the modeling analysis, that will further reduce
the modeled design value. An area is considered to monitor attainment
if each monitor site has air quality observed ozone design values (4th
highest daily maximum ozone using the three most recent consecutive
years of data) at or below the level of the standard (which is 124
ppb). Therefore, it is appropriate for EPA, when making a determination
that a control strategy will provide for attainment, to determine
whether or not the model predicted future design value is expected to
be at or below the level of the standard.
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\5\ ``Guidance for Improving Weight of Evidence Through
Identification of Additional Emission Reductions, Not Modeled.''
U.S. Environmental Protection Agency, Office of Air Quality Planning
and Standards, Emissions, Monitoring, and Analysis Division, Air
Quality Modeling Group, Research Triangle Park, NC 27711.
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Since the form of the 1-hour ozone NAAQS allows exceedances, it did
not seem appropriate for EPA to require the test for attainment to be
``no exceedances'' in the future model predictions. The method outlined
in the 1999 Guidance uses the highest measured design value from all
sites in the nonattainment area for each of three years. The three year
``design value'' represents the air quality observed during the time
period used to predict ozone for the base emissions. This is
appropriate because the model is predicting the change in ozone from
the base period to the future attainment date. The ``design value''
calculation accounts for the fact that the NAAQS allows limited
exceedances of the ozone standard without a resulting violation. The
three yearly design values (highest across the area) are averaged to
account for annual fluctuations in meteorology.\6\ The result is an
estimate of an area's base year design value. The base year design
value is multiplied by a ratio of the peak model predicted ozone
concentrations in the attainment year (i.e., average of daily maximum
concentrations from all days modeled) to the peak model predicted ozone
concentrations in the base year (i.e., average of daily maximum
concentrations from all days modeled). The result is an attainment year
design value based on the relative change in peak model predicted ozone
concentrations from the base year to the attainment year.
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\6\ The commenter criticized the 1999 Guidance because it
allegedly allows the averaging across the three highest air quality
sites across a region, whereas EPA's earlier (1991 and 1996)
modeling guidance requires that attainment be demonstrated at each
site and, thus, effectively lowers the total emission reductions
needed to attain at the highest site. The commenter's concern is
misplaced. The 1999 Guidance uses averaging of the worst modeled air
quality value across episode days or worst design value across a
three year period. Also, the WOE determination, in turn, is intended
to be a qualitative assessment of whether additional factors
(including the additional emissions reductions not modeled), taken
as a whole, indicate that the area is more likely than not to
attain.
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The use of this analytical adjunct, however, does not mean that a
state's attainment demonstration is ``based on'' something other than
photochemical grid modeling, or that WOE is ``less effective'' than
photochemical grid modeling. To the contrary, WOE analysis is used to
assess the photochemical grid modeling results; it supplements, but
does not replace, the modeling. See 1996 Guidance at S-1 (``In a weight
of evidence determination, model results are weighed heavily''). It
follows that the WOE approach is consistent with the CAA requirement
that the attainment demonstration ``be based on photochemical grid
modeling,'' because WOE is merely an adjunct for assessing the
photochemical grid modeling. In the case of the Washington area
demonstration, photochemical grid modeling is the primary basis for the
attainment demonstration. See 1996 Guidance at S-1.
The 1999 Guidance is reasonable and is not a proportional rollback.
As stated previously, episodic photochemical grid modeling is the
primary basis for the attainment demonstration, as it was used to
define the majority of the control strategy. However, the modeling and
corroborative analyses, which form the basis of the weight of evidence
analysis, provide a preponderance of evidence to
[[Page 19114]]
support EPA's determination that attainment of the 1-hour ozone NAAQS
will be achieved in 2005. One of these WOE analyses involved the use of
a relative reduction factor (derived from the local model results) to
determine if any additional NOX and VOC emissions reductions
are needed to attain. We used the photochemical grid model in a
relative sense to determine if the response of ozone concentrations to
controls was adequate to predict a future design value below the level
of the NAAQS. Inherent in the base design value is the level and form
of the NAAQS which allows exceedances in the future.
In contrast to the claims in the adverse comments, EPA did not rely
on ``proportional'' rollback as defined in section 14.0 of 40 CFR part
51, appendix W which defines ``rollback'' as ``a simple model that
assumes that if emissions from each source affecting a given receptor
are decreased by the same percentage, ambient air quality
concentrations decrease proportionately.'' The prohibition regarding
proportional modeling in section 6.2.1.e of appendix W (i.e.,
``Proportional (rollback/forward) modeling is not an acceptable
procedure for evaluating ozone control strategies'') applies to the use
of a rollback method which is empirically/mathematically derived and
independent of model estimates or observed air quality and emissions
changes as the sole method for evaluating control strategies. A true
proportional rollback model does not rely on any photochemical grid
modeling, and it assumes, for example, that a 20 percent decrease in
NOX emissions results in a proportional (i.e., 20 percent)
decrease in ozone concentrations. In this case, EPA used a locally
derived relative reduction factor as determined by the photochemical
grid model to estimate a future design value.
Other comments on the 1999 Guidance are not germane to the
Washington area.
The comments alleged flaws in the two techniques for determining
the magnitude of additional emission reductions. With respect to
comments on these two techniques for determining the magnitude of
additional emission reductions contained in the 1999 Guidance, EPA
believes these comments do not apply in the case of EPA's analysis of
the attainment demonstration for the Washington area.
The first allegation is that these techniques allow averaging the
three highest design values across a nonattainment area whereas EPA's
modeling guidance requires that attainment be demonstrated at each
site. The alleged effect of this averaging technique is that lower air
quality concentrations are averaged against higher concentrations thus
reducing the total emission reduction needed to attain at the highest
site.
The second allegation concerns the assumption that the contribution
of VOC versus NOX emissions to ozone concentrations are the
same from site to site in contrast the UAM model which considers the
contribution of VOC versus NOX emissions varies from site to
site.
The 1999 Guidance provided a two-step method for evaluating the air
quality modeling results. The first step is an assessment of whether
attainment is demonstrated by a showing that a future year design value
will be 0.124 ppm or less. In the event that the predicted attainment
year design value is above the standard, the second step of the 1999
Guidance provides two techniques for identifying additional emission
reductions, that were not modeled, and which at a minimum provide an
estimated attainment year design value at the level of the standard.
The first technique is the use of a ``relative reduction factor (RRF)''
analysis to estimate a future design value.\7\ We used this analytical
method to demonstrate that the Washington area will attain the
standard. Attainment can be demonstrated by showing that the future
year design value will be 0.124 ppm or less. Modeling predicts the peak
ozone values in the attainment year, but it cannot predict the future
design value for that year due to the limited number of days that can
reasonably be modeled. The RRF analysis, however, provides an estimate
of future design value based on the principle that a control strategy
that reduces ozone peaks will similarly reduce design values. The RRF
analysis has two steps. First, the state derives the RRF from the
modeled reduction in ozone peaks between the base year and the
attainment year. Second, the state applies the RRF to the design value
for the base year to estimate the future design value in the attainment
year. EPA has concluded that for the Washington area the RRF analysis
demonstrates a future year design value of 119.6 ppb which is less than
124 ppb. Using the 1999 Guidance, EPA never needed to go beyond the RRF
technique to determine that the Washington area will attain the ozone
standard. Therefore, the other comments regarding the techniques for
determining the magnitude of such additional reductions are not germane
to this rulemaking and are not addressed in this document.
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\7\ 1999 Guidance at 3-4.
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EPA's treatment of over-prediction of ozone levels, of modeled
exceedances and downward adjustment of results.
As another element of EPA's WOE analysis, we evaluated the
photochemical grid modeling for the Washington area. We analyzed the
severity of the episodes modeled for the Washington area and have
concluded that these would be adequate for determining the emission
reductions needed for attainment in the Washington area. When the
emission inventory with the control strategy is modeled, peak ozone
concentration is reduced by approximately 22 ppb from the modeled peak
concentrations in the 1991 base cases. When the average modeled peak
ozone reduction from the base year modeling to the attainment year
modeling (22 ppb) is subtracted from the peak measured concentration
for July 16 (137 ppb) and July 19 (132 ppb), the resulting
concentrations are 115 ppb and 110 ppb respectively. However, when the
modeled ozone reduction is applied to the peak monitored level on July
20 (178 ppb), the resulting concentration is 156 ppb. When the day-
specific reduction of peak modeled ozone concentration from the base
year modeling to the attainment year modeling is subtracted from the
peak measured concentrations on July 16th, July 19th, and July 20th,
the result is 120 ppb, 103 ppb, and 158 ppb respectively. Both methods
(average, day-specific) resulted in two of the three days showing
values below the ozone standard indicating attainment for these days.
However, both methods resulted in values above the standard for July
20th.\8\
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\8\ The details of this analysis and the method and calculation
details by which EPA determined how much the model over-predicts
monitored ozone concentrations is explained in ``First Amendment to
Technical Support Document for Approval and Promulgation of Air
Quality Implementation Plans; District of Columbia, Maryland, and
Virginia; Post-1996 Rate-of-Progress Plan for the Metropolitan
Washington, DC Nonattainment Area'' dated April 10, 2003.
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EPA has evaluated the ozone formation potential of the July 20,
1991, episode day and determined that it is 13th most severe day out of
approximately the last 50 years with an average reoccurrence of once
every 4-5 years; this type of day is not likely to occur often enough
to be a major causative factor for nonattainment because the standard
allows up to three monitored exceedances in any three year period.
Because modeling for the Washington area showed some peak
concentrations above 124 ppb, EPA conducted the RRF analysis which is
[[Page 19115]]
discussed in prior paragraphs of this section to determine what
additional emission reductions may be needed to support ozone
attainment in the Washington area using EPA's 1999 Guidance. As stated
in previous paragraphs of this section, EPA has concluded that the
Washington area does not need any additional emission reductions beyond
those contained the attainment demonstration for the Washington area to
ensure attainment of the ozone NAAQS.
While the modeling results suggest that exceedances may still
occur, EPA's 1996 Guidance allows for consideration in the weight-of-
evidence analysis of whether the model over-predicts or under-predicts
in the base case and consideration of other evidence.
The base case model performance for both of the July 1991 episodes
show good alignment of the modeled ozone plume in comparison to
monitored ozone values (e.g., the model predicted peak concentrations
and monitored peak concentrations are generally paired in space).
Therefore, the degree to which the peak predicted values exceed the
measured values in the same general vicinity, indicates that the model
is systematically over-predicting ozone concentration, while adequately
representing the spacial distribution of ozone.
With respect to the assertion that EPA did not explain how
adjusting model results to account for model over prediction is
consistent with EPA's modeling rule, 40 CFR part 51, appendix W, the
modeling rule encourages the assessment of model uncertainty as one of
the factors affecting the model results. In EPA's view, model over
prediction is only a rough approximation of the extent of modeling
uncertainty. Consideration of model performance (specifically, a bias
to under- or over-predict ozone levels) is one way to assess modeling
uncertainty. For the Washington area, EPA explained how performance was
more closely reviewed and used as part of the WOE determination.
As a further part of the WOE analysis to corroborate the likelihood
that the Washington area will attain the 1-hour ozone standard by the
attainment date of 2005, EPA developed relative reduction factors based
on regional scale modeling performed for the NOX SIP call
supplemental notice of proposed rulemaking (NOX SIP Call
SNPR) (see 63 FR 25902, May 11, 1998; and see 63 FR 57356, October 27,
1998). These relative reduction factors were used to adjust the 1994-
1996 area design values for the Washington area. This analysis shows
all future predicted design values below the level needed for
attainment (124 ppb). To provide additional information, the EPA's
relative reduction factors were applied to the 1995-1997 and 1996-1998
Washington area design values, again resulting in all area design
values below 124 ppb. This analysis was updated (see the response to
comment 2. elsewhere in this section) to include more recent air
quality data including data through the 2002 ozone season. The result
of this updated analysis still showed all future predicted design
values below 124 ppb.\9\ A future design value analysis was performed
using relative reduction factors from the local photochemical grid
modeling results. The outcome of this analysis shows a future predicted
area-wide design value of 119.6 ppb.\10\
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\9\ Table IV C-2 to ``First Amendment to Technical Support
Document for Approval and Promulgation of Air Quality Implementation
Plans; District of Columbia, Maryland, and Virginia; Post-1996 Rate-
of-Progress Plan for the Metropolitan Washington, DC Nonattainment
Area'', dated April 10 2003.
\10\ Under the 1999 Guidance, the base design value is an
average of three years of monitored design values that represent the
modeled base case emissions. In the case of the Washington area, the
model episodes are for 1991, and, thus, the three design values used
are those that reflect the 1991 monitoring data, i.e., the design
values for 1991, 1992 and 1993. In the case of the Washington area
these three design values were 136, 136 and 137 ppb for 1991, 1992
and 1993, respectively. The relative reduction factor (RRF) was
0.88. Whether the RRF is applied to the average design value or the
highest design value has no practical effect (0.88 times 137 ppb
equals 120.6 ppb). See Attachment 5 ``Improving Weight of Evidence
Through Identification of Additional Emission Reductions Not
Modeled'' to ``Technical Support Document for the One-Hour Ozone
Attainment Demonstrations submitted by the State of Maryland,
Commonwealth of Virginia and the District of Columbia for the
Metropolitan Washington, D.C. Ozone Nonattainment Area'' dated
January 24, 2003.
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Based on the results of the local scale modeling along with the
additional WOE arguments provided in the attainment demonstration plan,
EPA believes that attainment of the 1-hour ozone standard has been
successfully demonstrated for the Washington area by the November 2005
attainment date.
Comment 2: In the March 5, 2003, letter the commenter asserted that
2002 ozone levels recorded in the Washington area show that the WOE
analysis is flawed. The comments summarize the 2002 data in terms of
nine days that the 1-hour standard was exceeded with as many as 8
different monitors recording exceedances on some of those days and
claim this number of exceedance days was higher than in any of the
preceding 10 years. The comments assert that this data, including a
peak ozone value of 0.158 ppm, refutes EPA's WOE analysis. The same
commenter cited to pertinent comments previously submitted to EPA on
February 14, 2000. In the February 14, 2000 comment letter, we received
comments asserting that EPA looks only at those ``weights'' that favor
a finding of attainment and specifically cited 1999 air quality data.
The comments assert that the data through 1999 show current violations
at 4 different monitoring sites. The comments highlight peak
concentrations at various monitors and claim even assuming a 7 ppb
reduction in ambient levels from the NOX SIP call the peak
value of 0.141 ppm recorded in 1999 would still be in violation.
Response 2:
Weight of Evidence and Air Quality Generally.
The District, Maryland and Virginia provided WOE arguments in the
attainment demonstration to further corroborate that it is likely their
attainment demonstrations contained sufficient local measures for the
Washington area to attain the 1-hour ozone standard by the statutory
date of 1999 but for transport.
In the original plan, the States and the District used EPA-
developed relative reduction factors based on regional scale modeling
performed for the NOX SIP Call SNPR. These relative
reduction factors were used to adjust the 1996 area design values which
considered air quality data for the years 1994, 1995 and 1996. The
analysis showed all area future predicted design values below the level
consistent with attainment (124 ppb). To supplement the state
submittals, we originally applied the same relative reduction factors
to the 1997 and 1998 area design values which include air quality data
through 1998. Again the results were that all future predicted area
design values were below 124 ppb.
Using the more recent air quality data, including that available
for 2002, EPA has performed these same evaluations. Once again, the
results were that all future predicted design values were below 124
ppb. The detail data and computations have been placed in the docket
for this action.
Number of Exceedence Days.
Compliance with the one-hour ozone standard is determined by
comparing the monitored annual average number of expected exceedances
of the 0.12 parts per million (ppm) with the one-hour standard. The
one-hour standard is exceeded in practice when the highest one-hour
value for any calendar day is greater than 124 ppm. The standard is set
at 0.12 ppm but due to rounding, a value of 0.124 ppm or less rounds
down to 0.12 ppm and values of 0.125 ppm or more round up to 0.13 ppm
which
[[Page 19116]]
exceeds the 0.12 ppm standard.\11\ To account for missing days
(monitors may not be operating on some days due to malfunctions,
maintenance and calibration, or power outages, etc.) when the monitor
is not functioning the procedure in appendix H of 40 CFR part 50 is
used to convert the number of actual number measured exceedances for
the year to an actual number of expected exceedances.
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\11\ While the rounding may seem to increase the standard by
four percent (.005 divided by 0.12), the standard was set to include
an ample margin of safety as required by section 109(b) of the CAA.
---------------------------------------------------------------------------
The form of the ozone NAAQS requires the use of a 3-year period to
determine the average number of exceedances per year. In its simplest
form, the ozone standard requires that the average number of
exceedances over a 3-year period, cannot be greater than 1.0. An area
with four exceedances during a 3-year period, therefore, does not meet
the ozone standard because four exceedances in 3 years averages out to
more than once per year. Because of the form of the ozone NAAQS, data
are combined over multiple years but they are not combined from
different sites.
The number of expected exceedances for a year is always equal to or
greater than the actual number of measured exceedances. The one-hour
ozone standard is violated when the annual average number of expected
exceedances exceeds 1.0. The standard and the method for converting
measured exceedances to expected exceedances is found in 40 CFR 50.9
and appendix H to 40 CFR part 50.
The proper use of the 1999 and 2002 and intervening years of ozone
data would be to perform the expected exceedances determination using
that data. That the area had ``nine exceedance days in 2002'' says only
that there were nine days in 2002 during which at least one monitor
recorded an exceedance. The proper context for the 2002 ozone data
would be to compute the average annual number of expected exceedances
over the three year period 2000 to 2002.
Therefore, EPA believes that the number of exceedance days is
irrelevant when evaluating an attainment demonstration because the
number of exceedance days has no bearing on the form of the 1-hour
ozone standard. Compliance with the standard is performed on a monitor-
by-monitor basis. The peak ozone value for 2002 (or 1999 for that
matter) is irrelevant unless placed in context with the remaining data
for 2002 as well as the data for 2000 and 2001. A monitor is in full
compliance with the standard which allows up to 3.1 expected
exceedances under 40 CFR 50.9 and appendix H to 40 CFR part 50. Under
appendix H to 40 CFR part 50, a monitor has to record at least a value
equal to or greater than 0.125 ppm in order for the number of expected
exceedances to be 1.0 or greater for determining exceedances of the
one-hour ozone standard. Whether that monitored value is 0.125 ppm or
0.158 ppm does not matter.
Seven Parts Per Billion (ppb) Adjustment to Peak Values.
The commenter stated that even if one assumes that the
NOX SIP call will deliver a 7 ppb ozone reduction in the
peak ozone values the peak ozone concentration will still be violating
the standard.\12\ As stated in the preceding paragraphs, compliance
with the standard is not determined using the peak value, but whether
the standard is exceeded more than an average of 1.0 times per year
when averaged over three years. EPA disagrees that the peak monitored
data would be the proper determinant of nonattainment using such a
method. EPA believes that to use such a method properly the commenter's
assumed adjustment of 7 ppb (0.007 ppm) would have to be subtracted
from all the monitored data readings to see if a monitor would record
more than three exceedances in any three year period.
---------------------------------------------------------------------------
\12\ The commenter submitted the 7 ppb adjustment to claim that
``[e]ven if one were to assume a 7 ppb reduction in ambient levels
from the NOX SIP call which is near the middle of the 5-
10 ppb reduction attributed to the SIP call in the TSD, the
Greenbelt monitor would still be in violation.''
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One threshold issue with such a method is whether one should assume
the same number of daily measurements in future years as in the past in
order to compute expected number of exceedances. For example, for the
new monitor at the Equestrian Center in Prince George's County,
Maryland has provided only 123 days of data for 2002. Because the
reported data covers the 123 days for the months of July through
October, one could reasonably assume the monitor will be operated over
the entire ozone season in the future. But such an assumption does not
provide any insight into just how much data capture one should assign
to the monitor in the future to compute expected number of exceedances
using appendix H to 40 CR part 50. Likewise, assumptions have to be
made concerning the number of days assumed less than the standard when
computing the number of expected exceedances.
Examination of the ozone data for any time period will show a
variation in the number of monitored exceedances at any one monitoring
site. For the 1997 to 2002 time period, the only monitors that have
recorded exceedances in every year since 1997 are the two in Prince
George's County Maryland and both monitors have shown continual
improvement since 1997. All other monitors have had years where no
exceedances have been recorded and years where one or more have been
recorded.
EPA has determined that applying an assumed 7 ppb adjustment to all
of the 1997 to 2002 data would yield no monitor, for which complete
data is available for the 1997 to 2002 time period, with more than 3
exceedances for the three year period ending in 2002. For those
monitors which have data for only one ozone season for the period
ending in 2002, EPA notes that the 7 ppb adjustment would result in
greater than 1.0 exceedances at the following two monitors: one monitor
in Fairfax County, Virginia (monitor ID 510591005-1) and one in Prince
George's County, Maryland (monitor ID 240338003-1). However, these
monitors have only one year of data. And the monitor in Prince George's
County recorded only one exceedance in 2002, but the number of expected
exceedances for 2002 is 1.7 after applying the procedures of 40 CFR
part 50, appendix H that account for missing days of data.
EPA has determined that applying a 5 ppb adjustment to all of the
1997 to 2002 data would yield only one additional monitor (that in
Arlington, Virginia) with more than 3 exceedances for the three year
period ending in 2002.
These results are presented in detail in the technical support for
this final action.\13\ As noted above, EPA believes that monitoring
data for one year is not necessarily a good indicator of future year
data. For this reason, EPA believes this one scintilla of contrary
evidence (which arises from a method that EPA neither proposed nor
endorses) does not outweigh the preponderance of evidence supporting
EPA's determination that attainment of the 1-hour ozone NAAQS will be
achieved in 2005.
---------------------------------------------------------------------------
\13\ See section IV. ``Regarding Comment on Number of Exceedance
Days and an Air Quality Adjustment of 7 ppb and Air Quality Trends''
to ``First Amendment to Technical Support Document for Approval and
Promulgation of Air Quality Implementation Plans; District of
Columbia, Maryland, and Virginia; Post-1996 Rate-of-Progress Plan
for the Metropolitan Washington, DC Nonattainment Area'', dated
April 10, 2003.
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Monitor Trends.
With regard to the 1999 data, EPA has determined that the one-hour
ozone NAAQS was violated at six monitors with three full years of data
for 1997 to
[[Page 19117]]
1999 (inclusive) and at one additional monitor with two-years of data
for 1998 and 1999, not the four monitors identified in the comments.
For the 2002 ozone season, violations were recorded at seven monitors.
One of these seven has only one full ozone season (which was 2002) and
recorded two exceedances in 2002 (with the design value being the
second highest reading which was 137 ppb). Another one of these seven
has data for the last 123 days of the ozone season (July 1, 2003,
through October 31, 2003 inclusive). This monitor recorded only one
exceedance, but due to the adjustment procedure found in 40 CFR part
50, the number of expected exceedances is increased to 1.7.
The worst monitor for 1999 had an annual average of 4.2 expected
exceedances and a design value of 0.132 ppm. By the end of the 2002
ozone season this monitor had an annual average of 1.4 expected
exceedances and a design value of 0.128 ppm.
In terms of average number of expected exceedances, one monitor had
an annual average of 2.7 expected exceedances based upon the 2002 ozone
data. For 2002, this monitor had a design value of 0.126 ppm. At the
end of the 1999 this monitor had an annual average of 1.3 expected
exceedances and a design value of 0.128 ppm.
Since 1999, for the monitors with more than one season of data, the
average number of expected exceedances at the worst monitor has dropped
from 4.2 to 2.7 and the design value has dropped from 132 ppb to 128
ppb.
Comment 3: The commenter alleges that EPA's refusal to accept UAM
results for the attainment demonstration conflicts with longstanding
Agency policy, namely, EPA's policy that which requires the use of the
UAM to demonstrate eligibility for granting waivers from the
NOX requirements under section 182(f). The commenter quotes
a portion section 2.6.1 of the NOX Supplement to the General
Preamble.\14\ Section 2.6.1 says that ``EPA has determined that, as a
technical matter, photochemical grid modeling is the only reliable tool
to justify an area-wide exemption from the NOX requirements
(or relaxation of otherwise required NOX reductions).'' See
57 FR at 55623 (November 30, 1992). The commenter notes that EPA
extended a statutory SIP submittal deadline to enable states to
complete crucial UAM modeling. The commenter concludes with an
assertion that EPA is being inconsistent by allowing attainment
demonstrations to discount UAM results while requiring adherence to UAM
before NOX waivers can be granted to limited groups of
sources.
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\14\ ``State Implementation Plans; Nitrogen Oxides Supplement to
the General Preamble for the Implementation of Title I of the Clean
Air Act Amendments of 1990,'' 57 FR 55620, November 30, 1992.
---------------------------------------------------------------------------
Response 3: EPA disagrees with the comment for several reasons. The
comments ignore the overall context in which EPA made this one
statement in section 2.6.1, and, specifically, EPA does not agree that
the use of the phrase ``photochemical grid modeling is the only
reliable tool'' has the meaning ascribed to it by the commenter when
placed in the context of the original guidance and subsequent guidance.
The comments also ignore subsequent guidance issued regarding waivers
from the NOX requirements of section 182(f) (NOX
waivers).
In section 2.6.1, of the NOX Supplement to the General
Preamble, EPA stated that EPA has determined that, as a technical
matter, photochemical grid modeling is the only reliable tool to
justify an area-wide exemption from the NOX requirements (or
relaxation of otherwise required NOX reductions). We
concluded that states must include in such demonstrations photochemical
grid modeling analyses that consider various control strategies with
and without NOX reductions. We stated that for a variety of
ozone nonattainment areas photochemical grid modeling either has not
been utilized previously or, if utilized, has not adequately considered
the effects of NOX emission reductions. We recognized that
at that time, while efforts to conduct photochemical grid modeling were
underway in many states, the time needed to establish and implement a
modeling protocol and to interpret the model results will, in a variety
of cases, extend beyond the November 15, 1992 deadline for submission
of NOX rules.
On December 16, 1993, EPA issued ``Guideline for Determining the
Applicability of Nitrogen Oxides Requirements under Section 182(f).''
In that guidance EPA expounded upon the guidance provided in the
NOX Supplement to the General Preamble. For instance, EPA
stated it would allow grid models other than UAM to be used for
regional scale modeling needed for the net ozone benefits test in
transport regions.\15\
---------------------------------------------------------------------------
\15\ See Guideline for Determining the Applicability of Nitrogen
Oxides Requirements under Section 182(f), December 16, 1993, section
7.3 .
---------------------------------------------------------------------------
Under the ``net air quality test'', EPA stated that the primary
test should be the effect the exemption would have on attainment of the
primary NAAQS for the criteria pollutants and that secondary tests, as
needed, can extend to the (qualitative or quantitative) consideration
of other air quality impacts that are explicitly recognized in the CAA.
Under this test, an area would have to make a showing that the area
under consideration clearly does not need NOX reductions to
provide for attainment to attain any NAAQS.\16\ This should be based on
a comparison of the geographic area exposed to concentrations above the
ozone NAAQS with and without NOX reductions from the sources
concerned or where UAM results are available, population exposure to
concentrations above or near the NAAQS may be used instead of the
geographic area exposure factor.
---------------------------------------------------------------------------
\16\ Id., Chapter 3.
---------------------------------------------------------------------------
Under the ``contribute to attainment test'', EPA stated that the
demonstration must show that additional NOX reductions would
not contribute to ozone attainment in the area. The guidance was to
model: (1) Substantial VOC reductions; (2) substantial NOX
reductions; and (3) both the VOC and NOX reductions. If the
attainment demonstration has not been completed, such substantial VOC
reductions need not be a level showing attainment if such reductions
are substantial.\17\ If the area-wide predicted maximum 1-hour ozone
concentration for each day modeled under scenario (1) is less than or
equal to that from scenarios (2) and (3) for the same day, then the
area would be eligible for an exemption from the section 182(f)
requirements.\18\
---------------------------------------------------------------------------
\17\ Id., Chapter 8.
\18\ Id., Chapter 4.
---------------------------------------------------------------------------
Under the ``net ozone air quality benefit test'', EPA required a
comparison of exposures to ozone concentrations resulting from: (1)
Substantial VOC reductions; (2) substantial NOX reductions;
and (3) both the VOC and NOX reductions. If the attainment
demonstration has not been completed, such substantial VOC reductions
need not be a level showing attainment if such reductions are
substantial.\19\ The geographic scope was all portions of the ozone
transport region in which impacts from NOX emissions from
the area seeking the exemption can be determined by the photochemical
grid model. Under the guidance, if the exposure to ozone concentrations
from scenario (1) is less than or equal to the exposure to ozone
concentrations from scenarios (2) and (3), then the section 182(f) net
ozone
[[Page 19118]]
benefits demonstration could be approved.\20\
---------------------------------------------------------------------------
\19\ Id., Chapter 8.
\20\ Id., Chapter 5.
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The ``contribute to attainment'' and ``net ozone benefit'' tests
described in preceding paragraphs both require an area-wide or regional
analysis. In such area-wide/regional analyses, NOX emission
reductions at a large number of sources are considered. These analyses
are appropriate to determine in a directional manner whether or not
NOX reductions are expected to be beneficial with respect to
the air quality in the area/region. These analyses may be less precise
than an attainment demonstration required under section 182(c).\21\
---------------------------------------------------------------------------
\21\ Id., Chapter 6.
---------------------------------------------------------------------------
Regarding the excess emissions reductions test, EPA believes that
the excess reductions provision requires a more precise analysis;
specifically an analysis which is based on the attainment
demonstration. That is, the excess reductions provision must be more
than a directional finding on an area-wide basis.\22\ As discussed
elsewhere in this document in responses to comment, EPA believes that
the WOE is not an alternative method or a roll-back analysis, or that
the section 182(c) requirements for the attainment demonstrations does
not exclude WOE and thus the attainment demonstration needed to support
an excess emissions waiver could include the very same WOE analyses
used in the Washington area.
---------------------------------------------------------------------------
\22\ Id., Chapter 6.
---------------------------------------------------------------------------
When EPA stated that photochemical grid modeling was the only
reliable tool we did not mean to confine modeling exclusively to just
UAM. Rather, our guidance meant to exclude trajectory based models
which lack the necessary treatment of the physical orientation of the
NOX sources, dispersion of their plumes and cannot assess
whether NOX control contributes to attainment in all parts
of a nonattainment area because they address a limited number of
trajectories.\23\
---------------------------------------------------------------------------
\23\ Id., section 7.1.
---------------------------------------------------------------------------
The General Preamble specified that NOX waivers would
need to be supported by photochemical modeling analyses. The scope of
these analyses was refined in subsequent guidance. This subsequent
guidance specified the test required under for each of the different
categories of NOX waivers set by statute. Some of the tests
needed for NOX waivers are only directional in that one need
to make comparisons in the changes in air pollutant concentrations due
to large VOC-only, NOX-only, and VOC plus NOX
reductions. Some of these comparisons relate to geographic or
population exposures to ozone levels. The excess emissions reduction
test is tied to the attainment demonstration. With the exception of the
excess emissions test, the photochemical analysis for the other tests
only has to show that changes in ozone concentrations or net air
quality benefits are greater in the absence of specified or substantial
NOX reductions than with such reductions.\24\ In all the
tests, except those tied to an area's attainment demonstration, results
from photochemical modeling one reduction scenario are compared with
modeling results from different reduction scenarios. The tests only
compare modeling results. For the tests tied to the attainment
demonstration, EPA would consider the same WOE analyses as an
attainment demonstration not related to an exemption from the section
182(f) requirements.
---------------------------------------------------------------------------
\24\ In cases where an area outside the ozone transport region
actually attained the ozone NAAQS as shown through air quality
monitoring data without the NOX reductions on major
stationary sources required by section 182(f) such areas could also
obtain a NOX waiver. For example, refer to section 4.4 of
Guideline for Determining the Applicability of Nitrogen Oxides
Requirements under Section 182(f), December 16, 1993.
---------------------------------------------------------------------------
e. Use of MOBILE6.
Comment: The commenter alleges that it is inappropriate for EPA to
conditionally approve the SIPs based on modeling conducted with EPA's
MOBILE5 motor vehicle emissions model now that the MOBILE6 model is
available for use.
Response: The MOBILE6 model was not available for use at the time
these SIPs were developed. The model is now available, and EPA guidance
issued with release of the model does indicate that any new SIP
modeling should be conducted with the new model. The Washington area
jurisdictions had already completed significant SIP modeling efforts
prior to release of MOBILE6. EPA's guidance provides that EPA may
continue to approve SIPs based on MOBILE5 under these circumstances.
See the January 18, 2002 Memorandum titled, ``Policy Guidance on the
Use of MOBILE6 for SIP Development and Transportation Conformity.'' As
noted in this January 18, 2002 Memorandum, the CAA requires that SIP
inventories and control measures be based on the most current
information available and applicable when a SIP is developed. See
section 172(c)(3) of the CAA and 40 CFR 51.112(a)(1). However, as noted
in the answer to the first question in this January 18, 2002
Memorandum, ``EPA believes that the CAA would not require states that
have already submitted SIPs or will submit SIPs shortly after MOBILE6's
release to revise these SIPs because a new motor vehicle emissions
model is now available.'' This concept was reiterated in the notice of
availability, which was published in the Federal Register on January
29, 2002 (67 FR 4254), that announced the approval and availability of
MOBILE6 for use in SIPs and conformity determinations. Use of the
MOBILE6 model for SIP development was not allowed before the January
29, 2002, notice of availability. Since the Washington area attainment
demonstration was submitted in February 2002, and the mobile source
modeling was performed prior to that date, MOBILE5 had to be used.
It should also be noted that at the time of the development of the
Washington area attainment demonstration changes were being made to the
various draft versions of the MOBILE6 model as problems were detected
in testing the drafts. Since the MOBILE6 model was not available when
the SIPs for the Washington area was developed EPA concludes that it
was appropriate to develop the SIP with the MOBILE5 model.
Furthermore, the States have committed not only to conduct further
modeling reanalyses with the MOBILE6 model, but also to revise the
attainment demonstration as necessary to demonstrate timely attainment
with the new model, including any necessary additional control
measures. EPA believes that in this case it is appropriate to
conditionally approve the SIPs.
With respect to the commenter's criticism of MOBILE5 modeling, we
believe that this modeling is not nearly so inaccurate or outdated as
the commenter suggests. MOBILE5 modeling provides the best estimate of
mobile source emissions that was available at the time the SIPs were
developed. Soon the States will be reanalyzing mobile emissions with
the improved MOBILE6 model and offsetting any additional emissions
projected with the new model as necessary to provide for attainment.
The commenter further argues that because the States had previously
committed to update the mobile modeling with MOBILE6 by this past
January, it is arbitrary for EPA now to accept commitments from the
States to complete this effort by April 2004. However, the SIPs in
which the States had committed to complete these reanalyses were
vacated by the Court of Appeals in response to litigation initiated by
the commenter, and the
[[Page 19119]]
States reasonably interrupted their work updating the modeling to
consider the court's opinion and determine the appropriate route to
developing an approvable SIP. Now the States have committed not only to
update the mobile modeling as they had previously planned to do by this
year, but also to revise the attainment demonstration as a whole,
including adoption of any necessary additional control measures to
assure timely attainment. As indicated in their commitment letters, the
States believe that this much more significant effort will take until
April 2004. The commenter correctly points out that the States have
already done preliminary new model runs with the MOBILE6 model, and
thus that they might not need until April 2004 to complete the new
mobile modeling. However, the completed mobile modeling is only
preliminary and only includes the mobile model runs with MOBILE6. The
States have not even completed preliminary work on revising the
attainment demonstration as a whole, nor the adoption of any additional
control measures they might ultimately conclude appropriate to provide
for timely attainment. All of this additional work is necessary to
honor the recent commitments, and the States believe it will take them
until April to complete that work.
f. Contingency Measures.
Comment: The commenter asserts that the SIPs do not provide
contingency measures to make up for any emission reduction shortfall,
either in achievement of ROP milestones or for failure to attain, as
required by sections 172(c)(9) and 182(c)(9) of the Clean Air Act.
Response: EPA acknowledges that the SIPs do not yet contain all of
the required contingency measures, however, EPA is not fully approving
the attainment demonstration and ROP plan for the Washington area.
Rather, as discussed previously in this document, EPA is conditionally
approving these SIP revisions pursuant to section 110(k)(4) of the CAA
which specifically authorizes this action. One of the conditions for
approval is submittal of appropriate contingency measures. Section
110(k)(4) specifically allows the approval of commitments under certain
circumstances. For the reasons set forth elsewhere in this document
including those in response to other comments (including those
responses to comments that claim the severe area SIP elements are past
due and claim conditional approval is not permissible), EPA believes
that a conditional approval including conditions requiring submittal of
contingency measures is permissible in this case.
3. Comments Relating to Rate-of-Progress
a. Post-1999 Progress.
Comment: The commenter incorporates by reference previous comments
regarding ROP submitted to EPA on December 13, 2002, asserting that
section 182(c)(2)(B) of the Act mandates post-1999 ROP even for serious
areas and that the submittal deadline for this SIP was November 15,
1994. The commenter then concludes that the EPA has no authority to
extend the deadline for the submittal of the post-1999 portion of the
ROP plan for an area that is later reclassified to severe because the
statutory due date of November 15, 1994 is past. New comments by this
same commenter assert that we cannot approve the 1996-1999 plan because
the plan lacks the requisite 3 percent reduction per year (averaged
over consecutive three-year periods) ROP demonstration for years
between 1999 to the attainment date of 2005. Furthermore, the commenter
argues that the CAA required serious and above areas to submit a single
ROP plan by November 15, 1994 demonstrating a 3 percent reduction per
year (averaged over consecutive three-year periods) after November 15,
1996 until the attainment date. The commenter asserts that the Court of
Appeals has ruled in Sierra Club, supra, that EPA had no authority to
approve the SIPs for the Washington area in the absence of the ROP plan
covering the period November 15, 1999 through November 15, 2005.
Response: EPA does not agree that the post-1999 portion of the ROP
plan is past-due in a serious area once such serious area is
reclassified to severe nonattainment. EPA's exercise of discretion
under section 182(i) to adjust the submission deadline for the post-
1999 portion of the ROP plan requirements, which only became applicable
to the Washington area for the first time upon the effective date of
the area's reclassification on March 25, 2003, is not arbitrary or
capricious, and is in keeping with the terms and purpose of the
statute.
Section 182(i) states that the Administrator may adjust applicable
deadlines (other than attainment dates) to the extent such adjustment
is necessary or appropriate to assure consistency among the required
submissions of new requirements applicable to an area which has been
reclassified. Where a submission date has passed and is therefore
impossible to meet, EPA has concluded that the Administrator may
establish a later date. EPA has applied this interpretation in its
prior reclassification rulemaking actions. See Santa Barbara,
California, (62 FR 65025, December 10, 1997); Phoenix, Arizona (62 FR
60001, November 6, 1997); and Dallas-Fort Worth, Texas (63 FR 8128,
February 18, 1998).
The structure of the Clean Air Act itself reinforces this
interpretation. Under the Act, the original dates for submissions for
areas initially classified as serious, severe, and extreme areas was,
as the commenter points out, 1994. The attainment date for serious
areas is 1999. Thus, the Act does not require EPA to make a
determination of whether or not a serious area met its 1999 attainment
deadline until more than five years after the original submission date
for areas originally classified as severe. Since the original 1992,
1994 and 2000 statutory deadlines have elapsed, it is impossible for
EPA to establish any of these as the submission deadline for a newly
reclassified area.
EPA has determined that in light of the fact that the original
submission dates for severe areas have elapsed prior to the time that
we issued the reclassification for the Washington area, it is a
reasonable exercise of EPA's discretion to adjust the applicable
submission deadlines in order to ensure consistency among the new
requirements. Because it is impossible for the States to meet long-
expired deadlines, EPA must set new deadlines that will ensure
consistency of submissions for requirements that the state is only
recently being notified that it must meet. This is entirely in keeping
with the discretion that Congress accorded EPA in section 182(i), and
with EPA's prior reclassification rulemakings making appropriate
adjustments to submission deadlines. Because the States must now meet
newly imposed requirements such as post-1999 ROP and additional severe
area control requirements, EPA must set prospective submission dates,
and has authority under section 182(i) to make these dates consistent.
To interpret the Clean Air Act as the commenter suggests would give
the reclassification retroactive effect by holding the States in
default of their submission obligations before the event necessary to
trigger that obligation (reclassification) has occurred. Until EPA
reclassified the Washington area effective March 25, 2003, the States
were under no obligation to make the required submissions. To subject
them to a lapsed deadline after reclassification would be patently
unfair and contrary to the statute's intent.
[[Page 19120]]
Giving the submission deadlines retroactive effect would also be
inconsistent with the Administrative Procedure Act, 5 U.S.C. 553(d),
which requires that before a rule takes effect, persons affected will
have advance notice of its requirements. A failure to meet an
obligation, especially one accompanied by sanctions, cannot occur in
advance of the imposition of that obligation. The obligation to submit
requirements to meet the severe area classification did not exist for
the Washington area prior to the final action that reclassifies the
area. Giving retroactive effect to the old SIP submission deadlines
would also preclude EPA from exercising the discretion with respect to
setting the deadlines for these submissions that is specifically
afforded by section 182(i).
In Sierra Club v. Whitman, 130 F. Supp.2d 78 (D.D.C. 2001), aff'd,
285 F.3d 63 (D.C. Cir. 2002), a case involving the reclassification of
the St. Louis nonattainment area, the District Court refused to
interpret the reclassification provisions as authorizing relief that
would treat submission deadlines as having lapsed prior to EPA having
issued a reclassification rulemaking. The court stated that such an
interpretation ``could `create * * * an injustice at the hands of the
court itself.' '' 130 F. Supp.2d at 94. Such relief ``could throw the
[area] into extreme noncompliance.'' Id. The court refused to impose
such relief when it ``could effectively penalize the state and local
entities that are required to comply with EPA findings.'' Id. In the
St. Louis case, the Sierra Club demanded not only retroactive
reclassification, but also demanded that the district court declare
that ``the State of Missouri has failed to file a SIP revision that
comports with the requirements of section 7511a(c) by the statutory
deadline of May 15, 1998,'' id. at 87, a date that had long since
passed. The district court refused to do so, recognizing that this
would unfairly penalize the States, which are entitled to rely on EPA's
actions in anticipating the burdens that will be imposed pursuant to
the CAA. Imposition of sanctions would also have unfair adverse
consequences for emissions sources.
The Court of Appeals upheld the District Court's ruling. ``In any
event, what Sierra Club sought--to have the effective date of EPA's
court-ordered determination converted to the date the statute
envisioned, rather than the actual date of EPA's action--was a form of
relief the district court quite properly rejected.'' Sierra Club v.
Whitman, 285 F.3d 63, 68 (D.C. Cir. 2002). The Court of Appeals
continued: ``Although EPA failed to make the nonattainment
determination within the statutory time frame, Sierra Club's proposed
solution only makes the situation worse. Retroactive relief would
likely impose large costs on the States, which would face fines and
suits for not implementing air pollution prevention plans in 1997, even
though they were not on notice at the time.'' Id. See also NRDC v. EPA,
22 F.3d 1125 (D.C. Cir. 1994).
EPA acknowledges that it cannot fully approve an attainment
demonstration that has an outside attainment date of November 15, 2005,
for the Washington area in the absence of a demonstration of ROP after
1999. See Sierra Club v. Whitman, 294 F.3d 155, 163 (D.C. Cir. 2002)
(``[W]ith an attainment date in 2005, `the rate-of-progress plan for
the Washington area had to demonstrate a 9% reduction in emissions from
1996 to 1999, another 9% from 1999 to 2002, and another 9% from 2002 to
2005' ''). However, EPA believes that in the current circumstances
where the States for an area that has been recently reclassified to
severe have submitted the 1996-1999 ROP plan through the 1999 milestone
year and an attainment demonstration for 2005 in advance of the date
set forth in the final reclassification rule, EPA can issue a
conditional approval of the attainment demonstration if EPA has a
commitment from the States to submit the 1999--2005 ROP plan by April
2004. EPA believes this does not contravene the Circuit Court's rulings
and does not produce the absurd result of retroactive application of
requirements and inconsistencies with the Administrative Procedure Act,
5 U.S.C. 553(d) discussed in the preceding paragraphs. On April 7 and
8, 2003, EPA received commitments from the States to submit by April
17, 2004, all of the elements, including the post-1999 ROP plan,
required for a severe area SIP and EPA is conditionally approving the
SIP revisions listed in Tables 1 and 2 in section I of this document
based upon the conditions that the States submit all the severe area
SIP elements. These are the same elements needed to fulfill the new
severe area requirements that became applicable to the area when the
area was reclassified on March 25, 2003, (68 FR 3210, January 24,
2003).
b. ROP and MOBILE6.
Comment: The commenter asserted that because the 1996-1999 ROP plan
does not account for MOBILE6 modeling EPA cannot approve the 1996-1999
ROP plan even with respect to the 1999 milestone year. The commenter
claimed that initial MOBILE6 results are significantly higher than that
in the plan and that EPA must first evaluate the impact of the MOBILE6
results on the required level of reductions to determine if the plan
achieves that level of reduction.\25\
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\25\ The comments referenced a Meeting Notice for the February
27, 2003 Meeting Notice of the Metropolitan Washington Air Quality
Committee and provided the comments solely by reference to its URL
(http://www.mwcog.org/uploads/event-documents/WVk20030227111708.pdf).
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Response: EPA acknowledges that emissions factors, as well as
inventory calculation methodologies, are continually being improved. In
general, EPA has not required changes to submitted SIPs that result
from changes in factors and methodologies that occur after the SIP is
submitted. With respect to the 15 percent plan due in November 1993, in
section 2.4 of ``Guidance on the Adjusted Base Year Emissions Inventory
and the 1996 Target for 15 Percent Rate-of-Progress Plans'' (EPA-452/R-
92-005) EPA stated: ``If other significant changes occur in emissions
factors or methodologies before which time it is impossible for states
to make adjustments to their 15 percent calculations and associated
control strategies, then EPA may require states to make corrections to
the base year emissions inventory, as well as to the adjusted base year
inventory and the 1996 target level of emissions.'' This guidance
discussed the then pending transition from the MOBILE4.1 model to the
MOBILE5 model but only prospectively, by requiring that emissions
values calculated using MOBILE4.1 would have to be recalculated using
MOBILE5 before submittal of the final rate-of-progress plan in November
1993.
Likewise with respect to the 1996-1999 plan, EPA has advised the
states when changes in emissions factors or in methodologies for
developing emissions inventories would force revisions to the
inventories or plans. Changes would be necessary if they occurred
before the plan was submitted. ``However, if such changes occur after
November 15, 1991, but prior to November 15, 1994, a serious or above
area may be required to make corrections to the base year inventory and
attainment year projection inventory for purposes of developing the 3
percent rate-of-progress demonstration. If such changes occur after
November 15, 1994, EPA will advise on when it would be appropriate for
the states to make corrections in future supplements to this General
Preamble.'' 57 FR at 13517 (April 16, 1992).
EPA established a policy to require that certain attainment
demonstrations
[[Page 19121]]
and maintenance plans be revised using the then-forthcoming MOBILE6
model.\26\ EPA required states that relied upon benefits from the Tier
2/Sulfur final rule for attainment or maintenance to commit to revise
the applicable budgets using MOBILE6 in order for EPA to approve the
SIP. However, the 1996-1999 ROP plan for the 1999 milestone year for
the Washington area does not take credit for benefits from the Tier 2
motor vehicle standards and thus this guidance is not applicable.
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\26\ Memorandum, ``1-Hour Ozone Attainment Demonstrations and
Tier 2/Sulfur Rulemaking'' from Lydia Wegman, Office of Air Quality
Planning and Standards and Merrylin Zaw-Mon, Office of Mobile
Sources to the Air Division Directors, Regions I-VI, issued November
8, 1999.
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EPA has established policy and guidance for when SIPs must be
prepared using MOBILE6.\27\ EPA believes that the Clean Air Act would
not require states that have already submitted SIPs or will submit SIPs
shortly after MOBILE6's release to revise these SIPs simply because a
new motor vehicle emissions model is now available. EPA believes that
this is supported by existing EPA policies and case law. See, e.g.,
Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990). Of course, states can
choose to use MOBILE6 in these SIPs, for example, if it is determined
that future conformity determinations would be ensured through such a
SIP revision.
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\27\ Memorandum from John S. Seitz and Margo Tsirigotis Oge
entitled ``Policy Guidance for the Use of MOBILE6 in SIP Development
and Transportation Conformity,'' issued January 18, 2002.
---------------------------------------------------------------------------
EPA does not believe that the State's use of MOBILE5 should be an
obstacle to EPA approval for reasonable further progress, attainment,
or maintenance SIPs that do not include Tier 2 sulfur rule reductions
that have been or will soon be submitted based on MOBILE5, assuming
that such SIPs are otherwise approvable and significant SIP work has
already occurred (e.g., attainment modeling for an attainment SIP has
already been completed with MOBILE5). It would be unreasonable to
require the States to revise these SIPs with MOBILE6 since significant
work has already occurred, and EPA intends to act on these SIPs in a
timely manner. The ROP plan for 1999 was prepared and submitted well
before MOBILE6 was released. The 1996-1999 ROP plan for the 1999
milestone year was prepared using the most current model, MOBILE5b,
available at the time the SIP was prepared.
To act as the commenter suggests would be to purposelessly
contradict EPA's long established policies and guidance provided to the
states with respect to us of new models.
As explained in a previous response, EPA does not agree that the
1996-1999 ROP plan for the Washington area had to include any post-1999
reductions until after the area was reclassified to severe
nonattainment. As explained in the notice of proposed rulemaking for
that action, EPA stated that the post-1999 portion of the ROP
requirement will be developed using MOBILE6 in accordance with our
existing policy \28\ for newly developed SIPs. See 67 FR at 68611,
November 13, 2002. We did not modify this requirement in the final
action.
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\28\ Memorandum from John S. Seitz and Margo Tsirigotis Oge
entitled ``Policy Guidance for the Use of MOBILE6 in SIP Development
and Transportation Conformity,'' issued January 18, 2002.
---------------------------------------------------------------------------
Furthermore, the MOBILE6 model was not available for use at the
time these 1996-1999 ROP SIPs were developed. Also, for the same
reasons, relating to the availability of the MOBILE6 model in relation
to the date the 1996-1999 ROP was submitted, that were presented in
section III.A.2e, EPA disagrees with these comments relating to MOBILE6
and the 1996-1999 ROP plan.
4. Severe Area SIP Requirements
Comment: The commenter claims that EPA cannot approve these SIP
revisions because these revisions do not cover all of the required
severe area SIP components and that EPA must therefore disapprove these
SIP revisions.
Response: EPA agrees that we cannot fully approve these SIP
revisions. However, EPA believes that to disapprove these SIP revisions
because the States did not submit all the severe area SIP elements that
became applicable after these SIP revisions were submitted would lead
to the same absurd results and problems with retroactivity and to the
same conflicts with the Administrative Procedure Act and CAA that were
discussed previously with respect to the post-1999 rate-of-progress
requirements.
EPA is not fully approving the attainment demonstration and ROP
plan for the Washington area. Rather, as discussed previously in this
document, EPA is conditionally approving these SIP revisions pursuant
to section 110(k)(4) of the CAA which specifically authorizes this
action. Section 110(k)(4) specifically allows the approval of
commitments under certain circumstances. For the reasons set forth
elsewhere in this document including those in response to other
comments, EPA believes that a conditional approval is permissible
because EPA received commitments on April 7 and 8, 2003 from the
Washington area jurisdictions to submit by April 17, 2004 revisions to
the SIP that:
(A) Revise the 1996-1999 portion of the severe area ROP plan to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented should EPA determine
that the Washington area failed to achieve the required 9 percent rate-
of-progress reductions by November 15, 1999.
(B) Revise the severe area ROP to provide emission reductions of
ozone precursors of at least 3 percent per year from November 15, 1999
to the November 15, 2005 severe ozone attainment date.
(C) Revise the severe area ROP plan to include a contingency plan
containing those adopted measures that qualify as contingency measures
to be implemented should EPA determine that the Washington area failed
to achieve the ROP reductions required for the post-1999 period.
(D) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented for the failure of
the Washington area to attain the one-hour ozone standard for serious
areas by November 15, 1999.
(E) Update the Washington area severe attainment demonstration to
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
(F) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those measures to be implemented
if the Washington area does not attain the one-hour ozone standard by
November 15, 2005.
(G) Revise the Washington area severe attainment demonstration to
include a revised RACM analysis and any revisions to the attainment
demonstration including adopted control measures, as necessitated by
such analysis.
(H) Revise the major stationary source threshold to 25 tons per
year.
(I) Revise Reasonably Available Control Technology (RACT) rules to
include the lower major source applicability threshold.
[[Page 19122]]
(J) Revise new source review offset requirements to require an
offset ratio of at least 1.3 to 1.
(K) Submit as part of the SIP a fee requirement for major sources
of volatile organic compounds (VOC) and nitrogen oxides
(NOX) should the area fail to attain by November 15, 2005.
(L) Include as part of the SIP a revision that identifies and
adopts specific enforceable transportation control strategies and
transportation control measures to offset any growth in emissions from
growth in vehicle miles traveled or number of vehicle trips and to
attain reductions in motor vehicle emissions as necessary, in
combination with other emission reduction requirements in the
Washington area, to comply with the ROP requirements for severe areas.
Measures specified in section 108(f) of the Clean Air Act will be
considered and implemented as necessary to demonstrate attainment.
These required submittals are the same elements needed to fulfill
the new severe area requirements that became applicable to the area
when the area was reclassified on March 25, 2003, (68 FR 3210, January
24, 2003).
5. Alternative Proposal and Protective Finding
Comment: The commenter supports EPA's proposal in the alternative
to disapprove attainment demonstration SIPs for the Washington area,
but questions the proposal to issue a protective finding under EPA's
transportation conformity regulations should EPA proceed with a final
disapproval of the SIPs.
Response: EPA has concluded that a conditional approval is
appropriate in this case and therefore will not be issuing a final
disapproval nor a protective finding on the attainment demonstrations
for the Washington area. Therefore, any comments relating to the
proposed protective finding are not germane to this final action and
EPA will not be responding to any such comments in this final action.
B. Comments Made on the Proposed Reclassification
On March 5, 2003, we received a comment letter submitted by the
Sierra Club incorporating by reference their comments submitted on
December 13, 2002, relating to the proposed reclassification of the
Washington area to severe nonattainment (67 FR 68805, November 13,
2002). To the extent that these comments are germane to the current
action we incorporate by reference our responses to the comments on
these issues found in our final rule published January 24, 2003 (see 68
FR at 3412-3421) as supplemented by the response to comment found in
this final rule.
C. Comments Made Regarding Adequacy of Motor Vehicle Emissions Budgets
On March 5, 2003, we received a comment letter submitted by the
Sierra Club incorporating by reference their comments submitted on
September 9, 2002, and on February 14, 2000, that related to the
adequacy of the motor vehicle emissions budgets in the 1996-1999 ROP
plan and the attainment demonstration.
Comment: We received a number of comments about the process and
substance of EPA's review of the adequacy of motor vehicle emissions
budgets for transportation conformity purposes. We also received
comments asserting that EPA should not find the budgets adequate
because EPA is plainly obligated to disapprove the attainment SIP
because: (1) The budgets are based on a 2005 attainment date, rather
than the area's then current attainment date of 1999; (2) the budgets
do not necessarily reflect all RACM; (3) there are no budgets
corresponding to the post-1999 rate-of-progress requirement; (4) the
SIP lacks contingency measures; (5) the budgets do not reflect the
potential that the budgets will be further tightened as a result of
severe area SIP requirements; (6) the attainment demonstration is
flawed due to the use of the weight of evidence approach; and (7) the
budgets were developed using the MOBILE5 model.
Response: In the notice of proposed rulemaking EPA proposed to
conditionally approve the attainment demonstration and ROP SIP
revisions and did not propose to find the budgets adequate. EPA is
conditionally approving the motor vehicle emissions budgets rather than
making an adequacy determination. Therefore, comments relating to
adequacy of budgets are not germane to this rulemaking. To the extent
comments are germane to conditional approval of the SIPs, EPA addresses
them elsewhere in this notice in response to comments on various
aspects of the plans.
D. Comments Relating to Supplemental Information To Support Proposed
Approvals of One-Hour Ozone Attainment Demonstrations for Serious Ozone
Nonattainment Areas
On March 5, 2003, we received a comment letter submitted by the
Sierra Club incorporating by reference their comments submitted on
November 15, 2000, relating to EPA's proposed ``Supplemental
Information to Support Proposed Approvals of One-Hour Ozone Attainment
Demonstrations for Serious Ozone Nonattainment Areas'' (65 FR 61134,
October 16, 2000) relating to RACM requirements.
These comments are not germane to this action because EPA is not
relying upon the supplemental information to show that the RACM
requirement has been fulfilled.
E. Prior Comments on the Approvability of the Attainment and Rate-of-
Progress Plans
On March 5, 2003, we received a comment letter submitted by the
Sierra Club incorporating by reference their comments submitted on
February 14, 2000, October 30, 2000, and November 20, 2000 relating to
the approval of the attainment demonstration and ROP plans.
1. Comments Relating to Extension of the Attainment Date to November
15, 2005
We received comments objecting to EPA's attainment date extension
policy (a memorandum ``Extension of Attainment Dates for Downwind
Transport Areas'' issued July 16, 1998), and to application of the
extension policy to the Washington area. These comments are not germane
to this action because EPA is not applying the extension policy to the
area but rather has extended the attainment date to November 15, 2005,
by reclassifying the area to severe nonattainment (see 68 FR 3410,
January 24, 2003).
2. Motor Vehicle Emissions Inventory
Comment: We received comments stating that the motor vehicle
emissions inventory is not current, particularly with respect to the
fleet mix.\29\ The comments stated that the fleet mix does not
accurately reflect the growing proportion of sport utility vehicles and
gasoline trucks, which pollute more than conventional cars. In the
February 14, 2000 comment letter, we received comments asserting that
EPA looks only at those ``weights'' that favor a finding of attainment
and specifically identified the changing fleet mix. We also received
comments asserting that the Maryland and Virginia attainment and 1996-
1999 ROP plans are flawed because they assume a fleet mix that does not
accurately reflect the growing proportion of sport utility vehicles and
gasoline trucks. The comments cite data from the Maryland Department of
the
[[Page 19123]]
Environment for 1996 and 1999. The comments further assert that EPA and
the States have not followed a consistent practice in updating SIP
modeling to account for changes in vehicle fleets. The comments also
assert that EPA cannot rationally approve SIPs that are based on such
materially inaccurate assumptions; that continued use of out-dated
assumptions is inconsistent with the duty imposed by Clean Air Act
section 182(a)(3) to triennially update the emission inventory; and
that if the motor vehicle inventory has not been updated to prepare the
current SIP submission, it should be disapproved.
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\29\ These comments were contained in the February 14, 2000,
October 30, 2000, and November 20, 2000, letters.
---------------------------------------------------------------------------
Response: All of the SIPs on which we are taking final action are
based on the most recent vehicle registration data available at the
time the SIP was prepared. The SIPs use the same vehicle fleet
characteristics that were used in the most recent periodic inventory
update at the time the SIP was prepared. The Metropolitan Washington,
DC Ozone Nonattainment Area SIP is based on vehicle registration data
from 1996, which was the most recently available data at the time the
SIP was prepared and submitted. Clearly the 1999 data could not have
been used in motor vehicle emissions projections prepared in the fall
of 1998 as documented in Appendix D of the SIP. EPA requires the most
recent available data to be used, but we do not require it to be
updated on a specific schedule. Therefore, different SIPs base their
fleet mix on different years of data. Our guidance does not suggest
that SIPs should be disapproved on this basis. Further, EPA does not
require states to go back and re-analyze SIP submissions if new data
becomes available shortly before EPA takes final action on the SIP.
Nevertheless, we do expect that revisions to these SIPs that will be
submitted using MOBILE6 (as required in those cases where the SIP is
relying on emissions reductions from the Tier 2 standards) will use
updated vehicle registration data appropriate for use with MOBILE6,
whether it is updated local data or the updated national default data
that will be part of MOBILE6. EPA is requiring the Washington area
States to revise the attainment budgets using MOBILE6 pursuant to the
commitments for conditional approval submitted by the States. The
revised budgets must include the most recently available fleet
information at the time the budgets are revised.
In addition, we incorporate by reference our responses to comments
on these issues found in section II.H (see 66 FR at 614) and in
response 20 of section X. (see 66 FR at 630 ) of our final rule
published January 3, 2001.
3. Credit for National Measures
Comment 1: We received comments stating that states should not be
given credit for measures that are not fully implemented. For example,
the States are being given full credit for Federal coating, refinishing
and consumer product rules that have allegedly been delayed or
weakened.
Response 1: On September 11, 1998, EPA promulgated three major
regulations to reduce VOC emissions from covering three major
categories of consumer and commercial products. The first rule covers
61 categories of architectural and industrial maintenance (AIM)
coatings. The second rule covers 24 consumer product categories such as
air fresheners, automotive windshield washer fluid, ``household''
adhesives, cleaners and polishes, hair care products, cleanser,
underarm aerosol antiperspirants, insecticides and charcoal lighting
fluids. The third rule covers seven categories of automobile
refinishing (autobody refinishing) coatings and coating components;
automobile refinishing is the process of coating automobiles or parts
thereof, including partial body collision repairs, that is subsequent
to the original coating applied at an automobile original equipment
manufacturing plant.
Architectural and Industrial Maintenance (AIM) Coatings
On March 22, 1995 EPA issued a memorandum \30\ that provided that
states could claim a 20 percent reduction in VOC emissions from the AIM
coatings category in ROP and attainment plans based on the anticipated
promulgation of a national AIM coatings rule. In developing the
attainment and ROP SIPs for their nonattainment areas, states relied on
this memorandum to estimate emission reductions from the anticipated
national AIM rule. EPA promulgated the final AIM rule in September
1998, codified at 40 CFR part 59, subpart D. In the preamble to EPA's
final AIM coatings regulation, EPA estimated that the regulation will
result in a 20 percent reduction of nationwide VOC emissions from AIM
coatings categories (63 FR 48855, September 11, 1998). The estimated
VOC reductions from the final AIM rule resulted in the same level as
those estimated in the March 1995 EPA policy memorandum. In accordance
with EPA's final regulation, States have correctly assumed a 20 percent
reduction from AIM coatings source categories in its attainment and ROP
plans. The basis for the 20 percent reductions achieved by the final
rule is documented in the rulemaking docket for the AIM coatings final
rule in a memorandum ``VOC Emissions Reductions from the Final National
Architectural Coatings Rule'' from Chris Sarsony, ERG, to Linda
Herring, U.S. EPA, dated July 27, 1998 (docket A-92-18, item number IV-
B-2).
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\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.
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In accordance with EPA's final regulation, the States have assumed
a 20 percent reduction from AIM coatings source categories in their
attainment and ROP plans. AIM coatings manufacturers were required to
be in compliance with the final regulation within one year of
promulgation, except for certain pesticide formulations which were
given an additional year to comply. Thus all manufacturers were
required to comply, at the latest, by September 2000. Industry
confirmed in comments on the proposed AIM rule that 12 months between
the issuance of the final rule and the compliance deadline would be
sufficient to ``use up existing label stock'' and ``adjust
inventories'' to conform to the rule (63 FR 48848, September 11, 1998).
In addition, EPA determined that, after the compliance date, the volume
of nonconforming products would be very low (less than one percent) and
would be withdrawn from retail shelves anyway. Therefore, EPA believes
that compliant coatings were in use by the Fall of 1999 with full
reductions to be achieved by September 2000 and that it was appropriate
for the States to take credit for a 20 percent emission reduction in
their SIPs.
Autobody Refinish Coatings Rule
Consistent with a November 27, 1994 EPA policy,\31\ many states
claimed a 37 percent reduction from this source category based on a
proposed rule. However, EPA's final rule, ``National Volatile Organic
Compound Emission Standards for Automobile Refinish Coatings,''
published on September 11, 1998 (63 FR 48806), did not regulate lacquer
topcoats and will result in a smaller emission reduction of around 33
percent overall nationwide. The 37 percent emission reduction from
EPA's
[[Page 19124]]
proposed rule was an estimate of the total nationwide emission
reduction. Since this number is an overall national average, the actual
reduction achieved in any particular area could vary depending on the
level of control which already existed in the area. For example, in
California the reduction from the national rule is zero because
California's rules are more stringent than the national rule. In the
proposed rule, the estimated percentage reduction for areas that were
unregulated before the national rule was about 40 percent. However as a
result of the lacquer topcoat exemption added between proposal and
final rule, the reduction is now estimated to be 36 percent for
previously unregulated areas. Thus, most previously unregulated areas
will need to make up the approximately 1 percent difference between the
37 percent estimate of reductions assumed by states, following EPA
guidance based on the proposal, and the 36 percent reduction actually
achieved by the final rule for previously unregulated areas.
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\31\ ``Credit for the 15 Percent Rate-of-Progress Plans for
Reductions from the Architectural and Industrial Maintenance (AIM)
Coating Rule and the Autobody Refinishing Rule,'' November 29, 1994,
John S. Seitz, Director OAQPS, to Air Division Directors, Regions
I--X.
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Both the District and Virginia claimed 35.7 percent credit in their
attainment and ROP plans while Maryland claimed 45 percent. EPA's final
estimate of the reduction potential of the final rule was spelled out
in a September 19, 1996 memorandum entitled ``Emissions Calculations
for the Automobile Refinish Coatings Final Rule'' from Mark Morris to
Docket No. A-95-18. Since the District and Virginia did not claim more
than the reduction provided in the final rule, there is no shortfall in
the reductions claimed for this category.
Regarding the basis for approving Maryland's 45 percent reductions
from the autobody refinishing rule, we incorporate by reference our
responses to the comments on this issue found in response 18 of section
II.X of our final rule published January 3, 2001 (see 66 FR at 629).
Consumer Products Rule
Consistent with a June 22, 1995 EPA guidance,\32\ the states
claimed a 20 percent reduction from this source category based on EPA's
proposed rule. The final rule, ``National Volatile Organic Compound
Emission Standards for Consumer Products,'' (63 FR 48819, September 11,
1998), has resulted in a 20 percent reduction after the December 10,
1998 compliance date. Moreover, these reductions largely occurred by
the Fall of 1999. In the consumer products rule, EPA determined, and
the consumer products industry concurred, that a significant proportion
of subject products have been reformulated in response to state
regulations and in anticipation of the final rule (63 FR 48819). That
is, industry reformulated the products covered by the consumer products
rule in advance of the final rule. Therefore, EPA believes that
complying products in accordance with the rule were in use by the Fall
of 1999. It was appropriate for the states to take credit for a 20
percent emission reduction for the consumer products rule in their
SIPs.
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\32\ ``Regulatory Schedule for Consumer and Commercial Products
under section 183(e) of the Clean Air Act,'' June 22, 1995, John S.
Seitz, Director OAQPS, to Air Division Directors, Regions I-X.
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We also incorporate by reference our responses to the comments on
these issues found in section II.J. See 66 FR at 614, and responses 10
to 15 of section II.X of our final rule published January 3, 2001, see
66 FR at 626-628 as supplemented by the response to comment found in
this final rule.
Comment 2: We received comments asserting that because the final
national rules for autobody refinishing, surface coatings and consumer
products allow for exemptions or variances, EPA cannot grant any
emission reduction credit at all because the Clean Air Act does not
allow EPA to credit state or national measures with emission reductions
when emission limits are subject to waiver at any time. The comments
further assert that because the tonnage exceptions and exceedance fee
provisions or variance provisions in the rules are not limited to a
specific tonnage figure at all the rules place no cap on the use of
these provisions and thus assert in the absence of such caps, EPA
cannot rationally or lawfully grant emission reduction credit for these
rules.
Response 2: We incorporate by reference our responses to the
comments on these issues found in section II.J. See 66 FR at 614 and
response 10 of section II.X of our final rule published January 3,
2001, see 66 FR at 626, as supplemented by the response to comment
found in this final rule.
Comment 3: We received comments asserting that the proposed
rulemakings used estimates from the proposed rather than the final
rulemakings for autobody refinishing, consumer products, and
architectural and industrial maintenance coatings as a basis for
approving the States' reduction claims. The comments allege that the
final rules for autobody refinishing, consumer products, and
architectural and industrial maintenance coatings are weaker in a
number of respects than the proposed rules for autobody refinishing,
consumer products, and architectural and industrial maintenance
coatings.
Response 3: As stated in response to a prior comment, while it is
true that the states in many cases estimated the benefits based upon
the proposed rules in some of their SIP revisions, these estimates are
fully in line with the benefits that have accrued from the final rules.
We incorporate by reference our responses to the comments on these
issues found in section II.J. See 66 FR at 614 and response 11 of
section II.X of our final rule published January 3, 2001, see 66 FR at
626, as supplemented by the response to comment found in this final
rule.
Comment 4: We received comments asserting that for the
architectural and industrial maintenance (AIM) coatings rule, the
limits on a number of coatings were changed between the proposal and
final rule either directly, or by establishing new subcategories with
higher VOC limits. The comments assert that the effects of these
changes and other changes is not documented precisely how those changes
justify the claimed emission reduction credit. The comments further
state that EPA does not show how the effects of these were reflected in
the final percentage reduction estimate EPA is allowing states to claim
from the rule.
Response 4: We incorporate by reference our responses to the
comments on these issues found in response 12 of section II.X of our
final rule published January 3, 2001. See 66 FR at 627, supplemented as
follows:
The basis for the 20 percent reductions achieved by the final rule
is documented in the rulemaking docket for the AIM coatings final rule
in a memorandum ``VOC Emissions Reductions from the Final National
Architectural Coatings Rule'' from Chris Sarsony, ERG, to Linda
Herring, U.S. EPA, dated July 27, 1998 (docket A-92-18, item number IV-
B-2).
Comment 5: We received comments asserting that the estimate of
emission reductions from the autobody refinishing rule does not account
for establishment of a separate category for multi-colored topcoats in
the final rule--a category that has weaker limits than would have
applied to the same topcoats under the proposed rule. The comments
further assert that EPA has no data on the usage of multi-colored
topcoats--data that is required in order to rationally estimate the
expected emission reductions from the rule.
Response 5: We incorporate by reference our responses to the
comments on these issues found in section II.J. See 66 FR at 614 and
response 13 of section II.X of our final rule published January 3,
2001, see 66
[[Page 19125]]
FR at 627 as supplemented by the response to comment found in this
final rule.
Regarding the basis for approving Maryland's 45 percent reductions
from the autobody refinishing rule, we incorporate by reference our
responses to the comments on this issue found in response 18 of section
II.X of our final rule published January 3, 2001. See 66 FR at 629.
Comment 6: We received comments that assert there is insufficient
basis for granting full credit for the AIM rule as of November 15, 1999
because EPA has failed to offer any facts or analyses showing that only
compliant products were in use as of November 15, 1999, and the late
implementation deadline of September 12, 1999 virtually assures that
this was not the case.
Response 6: We incorporate by reference our responses to the
comments on this issue found in section II.J. See 66 FR at 614, and
response 14 of section II.X of our final rule published January 3,
2001, see 66 FR at 627, as supplemented by the response to comment
found in this final rule.
For the reasons explained in our prior response to comment (66 FR
at 614, 627), EPA still believes that with these reductions the area
has achieved the 9 percent ROP as expeditiously as practicable and that
there is no other reasonable emissions control strategy that would
allow the area to achieve the 9 percent ROP for the 1999 milestone any
sooner.
4. Enforcement of Control Programs
Comment: The attainment demonstrations do not clearly set out
programs for enforcement of the various control strategies relied on
for emission reduction credit. We also received comments that assert
that the 1996-1999 ROP plan and the attainment plan fail to include a
program to provide for the enforcement of the adopted control measures.
as required by section 110(a)(2)(C) of the CAA. The comments also
assert that these plans must contain a legally enforceable SIP
commitment to enforce the various control strategies relied upon for
emission reduction credit. The comments assert that EPA review of state
enforcement programs in connection with federal grantmaking does not
satisfy EPA's duty to ensure that the SIP itself contains the legally
required enforcement and funding commitments.
Response: We incorporate by reference our responses to the comments
on theses issues found in section II.K. See 66 FR at 615 and response
21 of section II.X of our final rule published January 3, 2001, see 66
FR at 630.
5. Reliance on Commitments and State Rules Not Yet Adopted
Comment: We received comments that disagreed with the EPA's
proposal to approve attainment demonstrations and rate-of-progress
plans for the Washington ozone nonattainment area because not all of
the emissions reductions credited in the demonstrations or plans are
supported by legally enforceable limitations adopted and approved by
the States and approved by the EPA as part of the SIP. Commenters also
objected to accepting enforceable state commitments to adopt emission
reduction control measures in the future in lieu of current adopted
measures.
Response: When viewed in the context that this comment was made,
this comment is not germane to the proposed action. This comment was
made in response to a December 16, 1999, notice of proposed rulemaking
(64 FR 70460) for the SIP revisions listed in Tables 1 and 2 of this
document. That December 16, 1999, proposed rule contained a proposal to
approve attainment demonstrations that contained an enforceable
commitment to adopt additional measures to support the WOE that the
area will attain.\33\ EPA identified the areas where we had concluded
that the WOE needed such supporting reductions but the Washington area
was not such an area. See 64 FR at 70466, December 16, 1999. EPA has
concluded that the WOE for the Washington area needs no additional
reductions to support the WOE demonstration and is not approving such
an enforceable commitment for the Washington area.
---------------------------------------------------------------------------
\33\ See ``Guidance for Improving Weight of Evidence Through
Identification of Additional Emission Reductions, Not Modeled.''
U.S. Environmental Protection Agency, Office of Air Quality Planning
and Standards, Emissions, Monitoring, and Analysis Division, Air
Quality Modeling Group, Research Triangle Park, NC 27711.
---------------------------------------------------------------------------
Further, EPA is not fully approving the attainment demonstration
and ROP plan for the Washington area. Rather, as discussed previously
in this document, EPA is conditionally approving these SIP revisions
pursuant to section 110(k)(4) of the CAA which specifically authorizes
this action. Section 110(k)(4) specifically allows the approval of
commitments under certain circumstances. For the reasons set forth
elsewhere in this document including those in response to other
comments, EPA believes that a conditional approval is permissible.
Therefore, EPA believes this comment is not germane to this action.
6. Rate-of-Progress--NOX Substitution
Comment: We received comments that assert the 9 percent ROP
demonstration assumes that a 1 percent reduction in NOX
emissions is equivalent in ozone reducing benefit to a 1 percent
reduction in VOC emissions. The commenter asserts that EPA's
NOX Substitution Guidance (December 1993) is flawed under
section 182(c)(2)(C) of the Clean Air Act because it allows
NOX substitution without a demonstration that such
substitution will in fact provide ozone reductions at least equivalent
to that which would result from a 3 percent annual cut in VOC
emissions. The commenter claims that such a demonstration requires
photochemical grid modeling showing equivalency and that EPA's own
guidance (Guidance on the Post-1996 Rate-of-Progress Plan and
Attainment Demonstration (corrected version as of 2/18/94)) requires
such modeling. The States cannot use a 1 percent NOX for 1
percent VOC substitution without proving that a 1 percent
NOX cut will in fact provide ozone reductions at least
equivalent to that resulting from a 1 percent VOC cut.
The commenter further asserts that more recent EPA guidance dated
January 10, 2000 for NOX substitution in out-year conformity
budgets requires 1.6 tons in NOX reductions to offset 1 ton
of VOC reductions. The commenter does not disavow other comments that
the States must prove the validity of their NOX substitution
ratios as discussed in the summary of the comments in the preceding
paragraph but rather claim the 9 percent demonstration fails to use the
ratio of 1.6 to 1 required by the more recent EPA guidance.
Additionally, the commenter asserts that substitutions should not
be allowed because the plan does not demonstrate timely attainment.
Response: We incorporate by reference our responses to the comments
on these issues found in section II.M. of our final rule published
January 3, 2001, see 66 FR at 616-619, as supplemented by the response
to comment found in this final rule:
EPA still disagrees with the assertion that the attainment plan
does not demonstrate attainment. The TSD and other documents in the
docket support the conclusion that the area will attain, as do our
responses to other comments elsewhere in this notice.
In our January 3, 2001, final rule (66 FR 586), EPA placed a
document titled ``RACM Analysis for Four Serious Areas Designated
Nonattainment for 1-hr
[[Page 19126]]
Ozone NAAQS'' in the docket to support our conclusion that all RACM
have been adopted for the Washington area as well as the model
sensitivity analyses found in the attainment demonstration which shows
that the Washington area portion of the Baltimore-Washington modeling
domain benefits more from NOX reductions than VOC
reductions. For this final rule, EPA has placed Attachment 4 (``Model
Sensitivity Study for Metropolitan Washington Area'') of ``RACM
Analysis for Four Serious Areas Designated Nonattainment for 1-hr Ozone
NAAQS'' in the docket solely for the technical analysis of the model
sensitivity analyses found in the attainment demonstration which shows
that the Washington area portion of the Baltimore-Washington modeling
domain benefits more from NOX reductions than VOC
reductions. A copy of ``RACM Analysis for Four Serious Areas Designated
Nonattainment for 1-hr Ozone NAAQS'' U.S. Environmental Protection
Agency; Office of Air Quality Planning and Standards, Research Triangle
Park, NC 27711, cited in the response to comments portion of the
January 3, 2001 final rule can be obtained by contacting the regional
office listed under the ADDRESSES section of this document.
7. NOX and VOC Reduction Credits
Comment 1: We received comments that both the attainment and ROP
demonstrations are flawed because they rely on emission reductions from
control measures that have not been fully approved by EPA as part of
the SIP. Specifically, the comments identified NOX RACT
rules for all three Washington area States, NOX reductions
claimed for the beyond RACT NOX control rules and Virginia's
generic non-CTG VOC RACT rule.
Response 1: We incorporate by reference our responses to the
comments on these issues found in sections II.N and R, see 66 FR at 619
and 66 FR at 620, and responses 3, 4, 8 of section II.X, see 66 FR at
623-625, of our final rule published January 3, 2001 as supplemented in
this document:
The technical support documents for this action lists the current
approval status of control measures in the Washington area.\34\ With
the exception of the transportation control measures found in the ROP
plan, for which we proposed approval on February 3, 2003, all the other
measures credited towards the 1999 ROP requirement are in the approved
SIP or are rules promulgated by the EPA. These measures were specified
under the column labeled ``Credited in 1996-1999 ROP plan'' in Table 3
``Control Measures in the 1-hour Ozone 1996-1999 ROP Plan and
Attainment Plans for the Metropolitan Washington Nonattainment Area''
of the notice of proposed rulemaking for this action. See 68 FR at
5252, February 3, 2003.
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\34\ See pages 22 through 35 of ``Technical Support Document for
the One-Hour Ozone Attainment Demonstrations submitted by the State
of Maryland, Commonwealth of Virginia and the District of Columbia
for the Metropolitan Washington, D.C. Ozone Nonattainment Area
(DC052-7005, MD143-3096, VA152-5062)'', dated January 24, 2003.
---------------------------------------------------------------------------
Likewise, with the exception of any remaining RACM, if any, and of
the transportation control measures specified in the attainment
demonstration plan, all the other measures credited towards the
attainment plan requirement are in the approved SIP or are rules
promulgated by the EPA. These measures were specified under the column
labeled ``Credited in attainment plan'' in Table 3 of the notice of
proposed rulemaking for this action. The States have committed to
timely submit any additional RACM, and we are taking final action to
approve the TCMs in this notice.
The District's NOX RACT rule was approved on December
26, 2000 (65 FR 81369), Maryland's on February 8, 2001 (66 FR 9522),
and Virginia's on January 2, 2001 (66 FR 8).
The District's rule for beyond RACT control on large stationary
sources of NOX was approved on December 22, 2000 (65 FR
80783) and an additional rule on November 1, 2001 (66 FR 55099),
Maryland's rules were approved on December 15, 2000 (65 FR 78416) and
January 10, 2001 (66 FR 1866), and Virginia's on December 14, 2000 (65
FR 78100).
The technical support documents for this action lists the basis for
the reduction credits from Virginia's non-CTG RACT rule.\35\
---------------------------------------------------------------------------
\35\ See page 31 of ``Technical Support Document for the One-
Hour Ozone Attainment Demonstrations submitted by the State of
Maryland, Commonwealth of Virginia and the District of Columbia for
the Metropolitan Washington, D.C. Ozone Nonattainment Area (DC052-
7005, MD143-3096, VA152-5062)'', dated January 24, 2003.
---------------------------------------------------------------------------
Comment 2: We received comments asserting that EPA's reliance on
SIP call reductions is particularly unjustified in the D.C. Area, given
that Virginia is challenging EPA's authority to require those very
reductions and that EPA cannot grant credit for SIP call reductions
when the SIP call has been judicially stayed.
Response 2: We incorporate by reference our responses to the
comments on these issues found in response 8 of section II.A.2 of our
final rule published January 3, 2001, see 66 FR at 602, supplemented as
follows: The stay of the SIP call has been vacated and the SIP call has
been upheld. The court lifted its stay and States are now required to
submit SIPs fully addressing the SIP call and if they fail, EPA must
promulgate a Federal plan. EPA is fully justified in its reliance on
SIP call reductions and in granting credit for them in the areas'
attainment demonstrations. See 67 FR 21867 (May 1, 2000).
8. Attainment Demonstration and Rate-of-Progress Control Measures Not
In SIP
Comment 1: We received comments asserting that both the attainment
demonstration and rate-of-progress plan for the Washington area rely on
emission reductions from control measures that have not been fully
approved by EPA as part of the SIP.
Response 1: We incorporate by reference our responses to the
comments on this issue found in response 1 of section II.O of our final
rule published January 3, 2001, see 66 FR at 619, supplemented by our
response elsewhere in this document to other comments under the heading
of ``NOX and VOC Reduction Credits.''
Comment 2: We received comments stating that there are significant
disparities between the projections of 1999 regional emissions found in
the most recent 9 percent ROP plan for the Washington area and the
EPA's Technical Support Document for the attainment demonstrations. The
commenter claims that lower emissions in the TSD for the December 16,
1999 NPR, should not be used unless EPA provides an adequate technical
basis.
Response 2: We incorporate by reference our responses to the
comments on this issue found in response 2 of section II.O of our final
rule published January 3, 2001, see 66 FR at 619.
9. Modeling Assumptions
Comment 1: We received comments asserting that the transportation
model does not incorporate adequate assumptions about the effects of
land development and new road projections on the growth of vehicle
travel and citing to an EPA letter from Judith Katz, Director, Air
Protection Division, EPA Region III to James Cheatham, Divisional
Administrator, Federal Highway Administration, dated August 27, 1998,
in which the commenters assert that EPA stated that the plans did not
include any information on the rate of land development in the
Washington Region and the effect this development
[[Page 19127]]
will have on the transportation system. The comments discuss the
transportation model's land use assumptions, and imply that the
Metropolitan Planning Organization (the Metropolitan Washington Council
of Governments, MWCOG) (hereafter, ``the MPO'') has not included the
effects of land use in the model and that EPA has known about this
issue since 1998.
Response 1: We incorporate by reference our responses to the
comments on this issue found in response 1 of section II.P of our final
rule published January 3, 2001, see 66 FR at 619-620.
Comment 2: We have received comments saying that the temperature
assumed in the mobile source modeling inputs was 93 degrees
(Fahrenheit), yet the maximum recorded temperatures for those days
during which peak ozone values in the 1999 ozone season were recorded
were higher (96 to 98 degrees).
Response 2: For two reasons EPA disagrees with the comment that
this is a reason to determine that the budgets are not approvable.
First, the comments cite peak temperatures for a particular ozone
season. This is at odds with EPA's guidance. EPA guidance on projecting
all future mobile source emissions inventories requires the States to
use the temperatures representative of a ``typical ozone season day''.
See section 3.3.5.2 of Procedures for Emission Inventory Preparation
Volume IV: Mobile Sources, EPA-450/4-81-026d (Revised), 1992, which
also sets the procedure for determining the temperature for the base
year and all subsequent projection inventories. EPA has updated this
guidance for use with the MOBILE6 emissions factor model, but the
updated guidance still requires the use of the typical ozone season
day.\36\ The typical ozone season day conditions are those used when
determining the typical daily emissions for the base year emissions
inventory. The same typical ozone season day is also used when setting
target levels of emissions in ROP plans and all future year projection
inventories in ROP plans and the budgets for attainment demonstrations.
---------------------------------------------------------------------------
\36\ See ``Technical Guidance on the Use of MOBILE6 for Emission
Inventory Preparation,'' U.S. Environmental Protection Agency,
Office of Air and Radiation, Office of Transportation and Air
Quality, January 2002.
---------------------------------------------------------------------------
EPA believes that the ambient temperature is key to estimating
emission rates for highway vehicles with MOBILE6.\37\ Temperature
inputs were a key input to the MOBILE5 mobile source emission factor
model as well.\38\ For this reason mobile source emission factors
produced by EPA approved mobile source emission factor models are
temperature dependant.
---------------------------------------------------------------------------
\37\ Id.
\38\ See Chapter 2, User's Guide to MOBILE5 (Mobile Source
Emission Factor Model) EPA-AA-TEB-94-01, September 1996.
---------------------------------------------------------------------------
Second, if EPA were to require SIPs to be revised periodically on
the basis of more recent temperatures, EPA would have to allow
revisions and conformity determinations incorporating more recent data
that reflect a lower temperature profile, and hence lower mobile source
emissions, as well as requiring revisions to incorporate more recent
data which includes higher temperatures.
EPA believes it is reasonable to use the same typical ozone season
day temperatures used to develop the base year inventory rather than
trying to predict actual future year temperatures when projecting
future emissions because these projections are made in advance when
actual temperatures cannot be known.
10. NOX RACT Size Cutoff
Comment: We received a comment asserting that all of the States
should extend NOX RACT to 25 ton per year sources. In
addition, the SIP must require Virginia to extend VOC RACT to 25 ton
per year sources, like Maryland.
Response: EPA agrees that full approval of the Washington area SIP
to meet the severe area requirements is precluded in the absence of
RACT regulations incorporating the severe area RACT thresholds mandated
by the CAA in section 182(d). However, as explained in previous
responses, EPA believes conditional approval based upon a commitment to
submit these regulations by April 17, 2004 is permissible.
11. List of Control Measures
Comment 1: We received comments claiming that the States have
failed to submit lists of potential control measures by December 31,
1999 as required by EPA's December 16, 1999 notice of proposed
rulemaking. The comments assert that the States submitted commitments
to adopt additional control measures if needed, but did not provide
lists from which those measures would be chosen and further state that
because the States have failed to meet a condition that EPA itself set
as a prerequisite for plan approval EPA must disapprove the Washington
area SIP.
Response 1: The list of control measures to which these comments
refer has to be viewed in context of the entire December 16, 1999
notice of proposed rulemaking (64 FR 70460). The proposed rulemaking
was published at a time when the attainment plan contained no motor
vehicle emissions budget for 2005. The list of potential measures was
to have been those potential measures needed to allow an adequacy
finding under the transportation conformity rule on the requisite 2005
budgets in the event the attainment plan was not supported by fully
adopted measures. EPA is now conditionally approving the motor vehicle
emissions budgets rather than making an adequacy determination. EPA
does not believe a list of potential control measures is necessary here
because EPA is conditionally approving the SIPs based upon the States
committing to complete all necessary modeling and RACM analyses and to
adopt and submit by April 2004 any additional measures necessary to
demonstrate attainment.
We also incorporate by reference our responses to the comments on
these issues found in response 1 of section II.S of our final rule
published January 3, 2001, see 66 FR at 620-621, as supplemented by the
response to comment found in this final rule.
12. Phase II NOX Limits Are RACM
Comment: We received a comment asserting that the Phase II
NOX limits agreed to by OTC are also clearly RACM.
Response: As a factual matter, with respect to the OTC MOU Phase II
NOX limits in the Washington nonattainment area, Maryland
and the District have adopted programs to implement the Phase II
NOX reduction in the OTC memorandum of understanding. EPA
has approved these programs into Maryland's and the District's SIPs.
Virginia was not a signatory to the OTC MOU. However, in permits
approved into the Virginia SIP, Virginia has imposed beyond RACT
requirements on two large point sources of NOX in the
Virginia portion of the Washington area, see 65 FR 78100 (December 14,
2000). These permits impose limits of 0.15 pounds of NOX per
million BTU heat input on these two sources. Such limits go beyond the
OTC Phase II limits. EPA acknowledges the States must identify which
RACM have already been adopted and adopt any which, if any, still
remains as the States have committed to do so by April 2004. RACM is
discussed in response to other comments.
[[Page 19128]]
13. Additional Comments on the Rate-of-Progress Plan
Comment 1: We received comments asserting that EPA cannot act on
the District's, Maryland's and Virginia's 1996-1999 ROP plan in
isolation because the 1996-1999 ROP plan for the Washington area was
developed using a regional approach. EPA cannot know whether these
requirements are met unless it acts on all three plans simultaneously.
Response 1: The comment is moot because EPA is concurrently
approving the District's, Maryland's and Virginia's submittals of the
1996-1999 ROP plan for the Washington area in one final action
published in the Federal Register.
Comment 2: We received comments asserting that modeling does not
show that a 1 percent reduction in NOX emissions provides
the same ozone reduction benefit as a 1 percent reduction in VOC
emissions, and that these results address post-1999 conditions--not
1996-99 conditions, and that one cannot reliably extrapolate back from
the modeled results to the reductions at issue in the 9 percent plan.
The comments also assert there must be photochemical grid modeling of
the actual substitution being proposed to determine the extent to which
NOX can be substituted for VOC. These comments also note
these model results themselves show that NOX reductions
sometimes actually lead to an increase in the number of cells exceeding
the ozone standard.
Response 2: We incorporate by reference our responses to the
comments on this issue found in response 2 of section II.X of our final
rule published January 3, 2001 (see 66 FR at 622-623).
Comment 3: We received comments asserting that although the ROP
plan cites various rules and programs that have been adopted to reduce
emissions, it does not demonstrate that actual compliance with the
rules and implementation of necessary programs will be achieved by the
deadline or that claimed emission reductions will be fully realized by
that date. We received comments asserting that EPA can only credit the
ROP plan with reductions actually achieved by November 15, 1999. We
also received general comments that the ROP plan cannot be approved
because programs on which the area relies for ROP credit were not
approved by EPA until after November 15, 1999, thus the programs were
not federally enforceable during the 1996-99 ROP period. Finally, the
commenters suggest that certain programs may not have achieved the
level of reductions for which credit was taken in the ROP plan.
Response 3: We incorporate by reference our responses to the
comments on these issues found in response 3 of section II.X of our
final rule published January 3, 2001, see 66 FR at 623.
Comment 4: We received comments asserting that the reductions from
the National Low Emission Vehicle (NLEV) program are not creditable
because the District did not submit a SIP revision for the NLEV program
and because the NLEV SIPs for Maryland and Virginia were not approved
until after the November 15, 1999 milestone date. The comments also
assert that emission reductions are creditable toward the ROP
requirement only to the extent that they have actually occurred by the
November 15, 1999 milestone date. The comments state that if the ROP
plan does not get sufficient creditable reductions then the plan cannot
be approved.
Response 4: We incorporate by reference our responses to the
comments on these issues found in response 4 of section II.X of our
final rule published January 3, 2001, see 66 FR at 623-624.
Comment 5: We received comments asserting that EPA should not
credit reductions from the District's NOX RACT rule because:
(1) EPA has not yet approved the District's NOX RACT rule
and, therefore, it will not become federally enforceable until long
after 11/15/99; and (2) the District has not shown actual
implementation of NOX RACT before 11/15/99 by major
NOX sources within the District.
Response 5: We incorporate by reference our responses to the
comments on these issues found in response 5 of section II.X of our
final rule published January 3, 2001, see 66 FR at 624. Further, the
District's NOX RACT rule was approved on December 26, 2000
(65 FR 81369).
Comment 6: We received comments asserting that the NOX
RACT rules include inadequate emission control requirements for various
source categories. With respect to Maryland and Virginia NOX
RACT rules, the commenter referenced comments submitted in response to
EPA's proposed rulemaking actions on those SIPs. With respect to the
District's NOX RACT rule, the commenter says the District
proposed to amend its rule to eliminate deficiencies precluding EPA
approval.
Response 6: We incorporate by reference our responses to the
comments on these issues found in response 6 of section II.X of our
final rule published January 3, 2001, see 66 FR at 624.
Comment 7: We received comments asserting that EPA cannot credit
reductions because the District has not implemented its NOX
RACT rules. Specifically, the comments state that the District's
proposed Title V permit for the Blue Plains Wastewater Treatment Plant
contains no NOX RACT requirements (either as federal or
state-only requirements), even though the District has identified the
plant as a major NOX source.
Response 7: We incorporate by reference our responses to the
comments on this issue found in response 7 of section II.X of our final
rule published January 3, 2001, see 66 FR at 624-625.
Comment 8: We received comments asserting that EPA should not
credit reductions from Maryland's or Virginia's NOX RACT
rules for the following reasons: (1) EPA has not yet even approved
these NOX RACT rules; (2) even if the rules are approved
prior to final action on the ROP plan, the approvals will not become
federally enforceable until long after 11/15/99; and (3) Maryland and
Virginia have not shown actual implementation of all RACT requirements
before 11/15/99.
Response 8: We incorporate by reference our responses to the
comments on these issues found in response 8 of section II.X of our
final rule published January 3, 2001, see 66 FR at 625, supplemented as
follows: EPA fully approved Maryland's and Virginia's NOX
RACT rules on February 8, 2001 (66 FR 9522), and on January 2, 2001 (66
FR 8), respectively.
Comment 9: We received comments asserting that EPA can only credit
those reductions that the District actually achieved as a result of
enhanced vehicle inspection between April 1999 and November 15, 1999.
The comments state that only a fraction of the fleet was tested between
the April 1999 commencement of the enhanced I/M program and November
15, 1999.
Other comments likewise questioned whether full emission reductions
credited from the Maryland and Virginia I/M programs actually occurred
by 11/15/99. The latter comments assert that States must demonstrate
full implementation including enhanced testing of the entire fleet.
These comments also questioned whether the full emission reductions
were credited to the enhanced I/M programs in Maryland and Virginia
given that final SIP approval did not occur until late 1999.
All comments state if the ROP plan does not get sufficient
creditable
[[Page 19129]]
reductions by November 15, 1999, then the plan cannot be approved.
Response 9: We incorporate by reference our responses to the
comments on these issues found in response 9 of section II.X of our
final rule published January 3, 2001, see 66 FR at 625-626.
Comment 10: We received comments claiming that one EPA analysis
indicates some reductions from the AIM rule could be deferred to as
late as 2002. The comments cite a Memorandum dated May 30, 2000 from
Paul T. Wentworth, EPA, to Administrative Record on the Adequacy
findings for the Motor Vehicle Emissions Budgets in the Revised Phase
II Ozone Attainment Plans for the Metropolitan Washington D.C. Ozone
Nonattainment Area.
Response 10: We incorporate by reference our responses to the
comments on this issue found in response 15 of section II.X of our
final rule published January 3, 2001, see 66 FR at 628, supplemented as
follows: For the reasons discussed in responses to other comments, EPA
believes the AIM reductions have already occurred. EPA believes that
these reductions were achieved as expeditiously as practicable and that
no other reasonable emissions control strategy would have allowed the
States or EPA to achieve these reductions sooner.
Comment 11: We have received comments saying that the
transportation model does not incorporate adequate assumptions about
the effects of land development and new road projections on the growth
of vehicle travel. In support, the comments cite an EPA letter from
Judith Katz, Director, Air Protection Division, EPA Region III to James
Cheatham, Divisional Administrator, Federal Highway Administration
dated August 27, 1998, in which the commenters assert that EPA stated
that the plans did not include any information on the rate of land
development in the Washington Region and the effect of this development
will have on the transportation system. The comments concern the land
use assumptions in the transportation model and allege that the
Metropolitan Planning Organization (the Metropolitan Washington Council
of Governments, MWCOG) (hereafter, ``the MPO'') has not included the
effects of land use in the model and that EPA has known about this
issue since 1998.
Response 11: We incorporate by reference our responses to the
comments on this issue found in response 16 of section II.X of our
final rule published January 3, 2001, see 66 FR at 628.
Comment 12: We received comments asserting that EPA cannot credit
the 1996-1999 ROP plan submitted by Virginia and Maryland with
reductions from measures credited in the 15 percent plan and cannot
count emission reductions to both the 15 percent and 9 percent
reduction requirements. That is, according to the comments, reductions
from some measures are allegedly being counted towards both the 15
percent and 9 percent reduction requirements.
Response 12: We incorporate by reference our responses to the
comments on this issue found in response 17 of section II.X of our
final rule published January 3, 2001, see 66 FR at 628-629,
supplemented as follows:
The same reasoning that allows reductions from measures in the 15
percent plan to count towards achieving the 1999 target level for the
1999 milestone applies to counting such reductions towards achievement
of the 2002 target level of emissions.
The last sentence of section 182(c)(2)(B) specifically allows
reductions that exceed those needed to achieve the 15 percent amount
for the 15 percent plan to count towards the post-1996 ROP
requirements.
Comment 13: We received comments asserting that EPA must document
its reasons for accepting Maryland's and Virginia's emission reduction
claims. The comments cite the example of the reductions from Maryland's
and Virginia's open burning program and the 45 percent reduction
claimed by Maryland for the Maryland rules applicable to autobody
refinishing. The comments state that the States assume an 80 percent
compliance with the open burning regulations without documenting the
basis for this assertion. The comments claim that the 80 percent
compliance assertion is void in the absence of plans or commitments
needed for local enforcement.
Response 13: We incorporate by reference our responses to the
comments on these issues found in response 18 of section II.X of our
final rule published January 3, 2001, see 66 FR at 629.
Comment 14: We received comments claiming that open burning
emissions were not in the 1990 base year emissions inventory for
Maryland and Virginia. The comments assert that EPA cannot credit
reductions from emissions that were not included in the 1990 base year
emissions inventory.
Response 14: We incorporate by reference our responses to the
comments on these issues found in response 19 of section II.X of our
final rule published January 3, 2001, see 66 FR at 629.
IV. Applicability of Revised Motor Vehicle Emissions Budgets
This final action to conditionally approve the severe ozone
nonattainment SIP for the Washington area includes conditional approval
of SIP revisions submitted on February 9, 14 and 16, 2000 by Virginia,
Maryland and the District, establishing the 2005 motor vehicle
emissions budgets. These conditionally approved motor vehicle emissions
budgets will apply for conformity purposes only until the revised motor
vehicle emissions budgets required by this final action have been
submitted and we have found the budgets to be adequate for conformity
purposes.
Because the attainment demonstration includes the effects of the
Tier 2/sulfur program, EPA is requiring the States to revise and
resubmit their motor vehicle emissions budgets after EPA releases the
MOBILE6 model. EPA is conditioning approval upon the States revising
the Washington area severe attainment demonstration to reflect revised
MOBILE6-based motor vehicle emissions budgets, including revisions to
the attainment modeling/weight of evidence demonstration, as necessary,
to show that the SIP continues to demonstrate attainment by November
15, 2005.
As we proposed on February 4, 2003, the final conditional approval
action we are taking today on the 2005 attainment budgets will be
effective for conformity purposes only until revised motor vehicle
emissions budgets are submitted and we have found them adequate. In
other words, the budgets we are approving today as part of the
attainment demonstration will apply for conformity purposes only until
there are new, adequate budgets consistent with the States' commitments
to revise the budgets. The revised budgets will apply for conformity
purposes as soon as we find them adequate.
We are limiting the duration of our approval in this manner because
we are only conditionally approving the attainment demonstrations and
their budgets because the States have committed to revise them.
Therefore, once we have confirmed that the revised budgets are
adequate, they will be more appropriate than the budgets we are
approving for conformity purposes now.
V. Final Action
EPA is conditionally approving the SIP revisions and amendments
identified in Tables 1 and 2 as the severe ozone nonattainment area SIP
for
[[Page 19130]]
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-
of-progress reductions by November 15, 1999.
(B) Revise the severe area ROP to provide emission reductions of
ozone precursors of at least 3 percent per year from November 15, 1999
to the November 15, 2005 severe ozone attainment date.
(C) Revise the severe area ROP plan to include a contingency plan
containing those adopted measures that qualify as contingency measures
to be implemented should EPA determine that the Washington area failed
to achieve the ROP reductions required for the post-1999 period.
(D) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented for the failure of
the Washington area to attain the one-hour ozone standard for serious
areas by November 15, 1999.
(E) Update the Washington area severe attainment demonstration to
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
(F) Revise the Washington area severe attainment demonstration to
include a contingency plan containing those measures to be implemented
if the Washington area does not attain the one-hour ozone standard by
November 15, 2005.
(G) Revise the Washington area severe attainment demonstration to
include a revised RACM analysis and any revisions to the attainment
demonstration including adopted control measures, as necessitated by
such analysis.
(H) Revise the major stationary source threshold to 25 tons per
year.
(I) Revise Reasonably Available Control Technology (RACT) rules to
include the lower major source applicability threshold.
(J) Revise new source review offset requirements to require an
offset ratio of at least 1.3 to 1.
(K) Submit as part of the SIP a fee requirement for major sources
of volatile organic compounds (VOC) and nitrogen oxides
(NOX) should the area fail to attain by November 15, 2005.
(L) Submit as part of the SIP a revision that identifies and adopts
specific enforceable transportation control strategies and
transportation control measures to offset any growth in emissions from
growth in vehicle miles traveled or number of vehicle trips and to
attain reductions in motor vehicle emissions as necessary, in
combination with other emission reduction requirements in the
Washington area, to comply with the ROP requirements for severe areas.
Measures specified in section 108(f) of the Clean Air Act will be
considered and implemented as necessary to demonstrate attainment.
VI. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of
[[Page 19131]]
this action must be filed in the United States Court of Appeals for the
appropriate circuit by June 16, 2003. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action to conditionally approve the severe ozone nonattainment
area SIP revisions for the Metropolitan Washington severe ozone
nonattainment area may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: April 10, 2003.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart J--District of Columbia
0
2. Section 52.473 is added to read as follows:
Sec. 52.473 Conditional approval.
The District of Columbia's severe ozone nonattainment area SIP for
the Metropolitan Washington area, which includes the 1996-1999 portion
of the rate-of-progress plan submitted on November 3, 1997, and May 25,
1999 and the transportation control measures in Appendix H of the May
25, 1999 submittal, and the severe ozone attainment demonstration
submitted on April 24, 1998, October 27, 1998, February 16, 2000 and
section 9.1.1.2 of the March 22, 2000 submittal, is conditionally
approved contingent on the District submitting a revised SIP by April
17, 2004 that satisfies certain conditions. This conditional approval
also establishes motor vehicle emissions budgets for 2005 of 101.8 tons
per day of volatile organic compounds (VOC) and 161.8 tons per day of
nitrogen oxides (NOX) to be used in transportation
conformity in the Metropolitan Washington, DC serious ozone
nonattainment area until revised budgets based upon the MOBILE6 model
are submitted and found adequate. The District must submit a revised
SIP by April 17, 2004 that satisfies the following conditions.
(1) Revises the 1996-1999 portion of the severe area ROP plan to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented should EPA determine
that the Washington area failed to achieve the required 9 percent rate-
of-progress reductions by November 15, 1999.
(2) Revises the 1999-2005 portion of the severe area rate-of-
progress plan to provide MOBILE6-based mobile source emission budgets
and adopted measures sufficient to achieve emission reductions of ozone
precursors of at least 3 percent per year from November 15, 1999 to the
November 15, 2005 severe ozone attainment date.
(3) Revises the severe area ROP plan to include a contingency plan
containing those adopted measures that qualify as contingency measures
to be implemented should EPA determine that the Washington area failed
to achieve the ROP reductions required for the post-1999 period.
(4) Revises the Washington area severe attainment demonstration to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented for the failure of
the Washington area to attain the one-hour ozone standard for serious
areas by November 15, 1999.
(5) Revises the Washington area severe attainment demonstration to
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
(6) Revises the Washington area severe attainment demonstration to
include a contingency plan containing those measures to be implemented
if the Washington area does not attain the one-hour ozone standard by
November 15, 2005.
(7) Revises the Washington area severe attainment demonstration to
include a revised RACM analysis and any revisions to the attainment
demonstration including adopted control measures, as necessitated by
such analysis.
(8) Revises the major stationary source threshold to 25 tons per
year.
(9) Revises Reasonably Available Control Technology (RACT) rules to
include the lower major source applicability threshold.
(10) Revises new source review offset requirement to require an
offset ratio of at least 1.3 to 1.
(11) Includes a fee requirement for major sources of volatile
organic compounds (VOC) and nitrogen oxides (NOX) should the
area fail to attain by November 15, 2005.
(12) Includes a revision that identifies and adopts specific
enforceable transportation control strategies and transportation
control measures to offset any growth in emissions from growth in
vehicle miles traveled or number of vehicle trips and to attain
reductions in motor vehicle emissions as necessary, in combination with
other emission reduction requirements in the Washington area, to comply
with the rate-of-progress requirements for severe areas. Measures
specified in section 108(f) of the Clean Air Act will be considered and
implemented as necessary to demonstrate attainment.
Subpart V--Maryland
0
2. Section 52.1072 is amended by adding paragraph (e) to read as
follows:
Sec. 52.1072 Conditional approval.
* * * * *
(e) Maryland's severe ozone nonattainment area SIP for the
Metropolitan Washington area, which includes the 1996-1999 portion of
the rate-of-progress plan submitted on December 24, 1997 and May 20,
1999 and the transportation control measures in Appendix H of the May
25, 1999 submittal, and the severe ozone attainment demonstration
submitted on April 29, 1998, August 17, 1998, February 14, 2000 and
section 9.1.1.2 of the March 22, 2000 submittal and the transportation
control measures in Appendix J of the February 9, 2000 submittal, is
conditionally approved contingent on Maryland submitting a revised SIP
by April 17, 2004 that satisfies certain conditions. This conditional
approval also establishes motor vehicle emissions budgets for 2005 of
101.8 tons per day of volatile organic compounds (VOC) and 161.8 tons
per day of nitrogen oxides (NOX) to be used in
transportation conformity in the Metropolitan Washington, DC serious
ozone nonattainment area until revised budgets based upon the MOBILE6
model are submitted and found adequate. Maryland must submit a revised
SIP by April 17, 2004 that satisfies the following conditions.
(1) Revises the 1996-1999 portion of the severe area ROP plan to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be
[[Page 19132]]
implemented should EPA determine that the Washington area failed to
achieve the required 9 percent rate-of-progress reductions by November
15, 1999.
(2) Revises the 1999-2005 portion of the severe area rate-of-
progress plan to provide MOBILE6-based mobile source emission budgets
and adopted measures sufficient to achieve emission reductions of ozone
precursors of at least 3 percent per year from November 15, 1999 to the
November 15, 2005 severe ozone attainment date.
(3) Revises the severe area ROP plan to include a contingency plan
containing those adopted measures that qualify as contingency measures
to be implemented should EPA determine that the Washington area failed
to achieve the ROP reductions required for the post-1999 period.
(4) Revises the Washington area severe attainment demonstration to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented for the failure of
the Washington area to attain the one-hour ozone standard for serious
areas by November 15, 1999.
(5) Revises the Washington area severe attainment demonstration to
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
(6) Revises the Washington area severe attainment demonstration to
include a contingency plan containing those measures to be implemented
if the Washington area does not attain the one-hour ozone standard by
November 15, 2005.
(7) Revises the Washington area severe attainment demonstration to
include a revised RACM analysis and any revisions to the attainment
demonstration including adopted control measures, as necessitated by
such analysis.
(8) Revises the major stationary source threshold to 25 tons per
year.
(9) Revises Reasonably Available Control Technology (RACT) rules to
include the lower major source applicability threshold.
(10) Revises new source review offset requirement to require an
offset ratio of at least 1.3 to 1.
(11) Includes a fee requirement for major sources of volatile
organic compounds (VOC) and nitrogen oxides (NOX) should the
area fail to attain by November 15, 2005.
(12) Includes a revision that identifies and adopts specific
enforceable transportation control strategies and transportation
control measures to offset any growth in emissions from growth in
vehicle miles traveled or number of vehicle trips and to attain
reductions in motor vehicle emissions as necessary, in combination with
other emission reduction requirements in the Washington area, to comply
with the rate-of-progress requirements for severe areas. Measures
specified in section 108(f) of the Clean Air Act will be considered and
implemented as necessary to demonstrate attainment.
Subpart VV--Virginia
0
2. Section 52.2450 is amended by adding paragraph (b) to read as
follows:
Sec. 52.2450 Conditional approval.
* * * * *
(b) Virginia's severe ozone nonattainment area SIP for the
Metropolitan Washington area, which includes the 1996-1999 portion of
the rate-of-progress plan submitted on December 19, 1997 and May 25,
1999 and the transportation control measures in Appendix H of the May
25, 1999 submittal, and the severe ozone attainment demonstration
submitted on April 29, 1998, August 18, 1998, February 9, 2000, and
section 9.1.1.2 of the March 22, 2000 submittal and the transportation
control measures in Appendix J of the February 9, 2000 submittal, is
conditionally approved contingent on Virginia submitting a revised SIP
by April 17, 2004 that satisfies certain conditions. This conditional
approval also establishes motor vehicle emissions budgets for 2005 of
101.8 tons per day of volatile organic compounds (VOC) and 161.8 tons
per day of nitrogen oxides (NOX) to be used in
transportation conformity in the Metropolitan Washington, DC serious
ozone nonattainment area until revised budgets based upon the MOBILE6
model are submitted and found adequate. Virginia must submit a revised
SIP by April 17, 2004 that satisfies the following conditions.
(1) Revises the 1996-1999 portion of the severe area ROP plan to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented should EPA determine
that the Washington area failed to achieve the required 9 percent rate-
of-progress reductions by November 15, 1999.
(2) Revises the 1999-2005 portion of the severe area rate-of-
progress plan to provide MOBILE6-based mobile source emission budgets
and adopted measures sufficient to achieve emission reductions of ozone
precursors of at least 3 percent per year from November 15, 1999 to the
November 15, 2005 severe ozone attainment date.
(3) Revises the severe area ROP plan to include a contingency plan
containing those adopted measures that qualify as contingency measures
to be implemented should EPA determine that the Washington area failed
to achieve the ROP reductions required for the post-1999 period.
(4) Revises the Washington area severe attainment demonstration to
include a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented for the failure of
the Washington area to attain the one-hour ozone standard for serious
areas by November 15, 1999.
(5) Revises the Washington area severe attainment demonstration to
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
(6) Revises the Washington area severe attainment demonstration to
include a contingency plan containing those measures to be implemented
if the Washington area does not attain the one-hour ozone standard by
November 15, 2005.
(7) Revises the Washington area severe attainment demonstration to
include a revised RACM analysis and any revisions to the attainment
demonstration including adopted control measures, as necessitated by
such analysis.
(8) Revises the major stationary source threshold to 25 tons per
year.
(9) Revises Reasonably Available Control Technology (RACT) rules to
include the lower major source applicability threshold.
(10) Revises new source review offset requirement to require an
offset ratio of at least 1.3 to 1.
(11) Includes a fee requirement for major sources of volatile
organic compounds (VOC) and nitrogen oxides (NOX) should the
area fail to attain by November 15, 2005.
(12) Includes a revision that identifies and adopts specific
enforceable transportation control strategies and transportation
control measures to offset any growth in emissions from growth in
vehicle miles traveled or number of vehicle trips and to attain
reductions in motor vehicle emissions as necessary, in
[[Page 19133]]
combination with other emission reduction requirements in the
Washington area, to comply with the rate-of-progress requirements for
severe areas. Measures specified in section 108(f) of the Clean Air Act
will be considered and implemented as necessary to demonstrate
attainment.
[FR Doc. 03-9337 Filed 4-16-03; 8:45 am]
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