Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress Plans, One-Hour Ozone Attainment Demonstrations and Attainment Date Extension for the Metropolitan Washington D.C. Ozone Nonattainment Area

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 3, 2001 (Volume 66, Number 2)]
[Rules and Regulations]
[Page 585-632]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ja01-19]

[[Page 585]]

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Part V

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, One
Hour Ozone Attainment Demonstrations and Attainment Date Extensions for
the Metropolitan DC Ozone Non-Attainment Area; Final Rule

[[Page 586]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC-2025, MD-3064, VA-5052; FRL-6922-9]

Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress
Plans, One-Hour Ozone Attainment Demonstrations and Attainment Date
Extension for the Metropolitan Washington D.C. Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is approving the State Implementation Plans (SIPs)
consisting of the Post-1996 rate-of-progress (ROP) plans with
transportation control measures and the one-hour ozone attainment
demonstrations for the Metropolitan Washington D.C. serious
nonattainment area (the Washington area) submitted by the District of
Columbia's Department of Health (DoH), Maryland's Department of the
Environment (MDE) and by the Virginia Department of Environmental
Quality (VADEQ). EPA is also approving the request to extend the
attainment date to November 15, 2005. The Clean Air Act (CAA or the
Act) requires EPA to establish national air quality standards (NAAQS)
for certain widespread pollutants that cause or contribute to air
pollution for the purposes of the one-hour ozone NAAQS. The Post-1996
ROP plans and the one-hour ozone attainment demonstrations will result
in significant emission reductions of volatile organic compounds (VOCs)
and oxides of nitrogen (NOX) in the Washington area. The
intended effect of this action is to approve these SIP revisions as
meeting the requirements of the Act.

DATES: This final rule is effective on February 2, 2001.

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, N.E., Washington, DC 20002; Maryland Department of the
Environment, 2500 Broening Highway, Baltimore, Maryland, 21224; and the
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179 or
Janice Lewis, (215) 814-2185 at the EPA Region III office above or e-
mail Cripps.Christopher@epa.gov or Lewis.Janice@epa.gov.

SUPPLEMENTARY INFORMATION:
This SUPPLEMENTARY INFORMATION section is organized to address the
following questions:

A. What actions is EPA taking today?
B. What Previous Action Has Been Taken on These SIP Revisions?
C. What were the conditions for approval provided in the Notice of
Proposed Rulemakings for the Post-1996 ROP plans and the attainment
demonstrations?
D. What amendments to the attainment demonstration SIP did the
Washington, DC area States' make since the December 16, 1999?
E. What State enforceable commitments were needed for approval?
F. What was the scope of the July 28, 2000 Supplemental Notice of
Proposed Rulemaking?
G. What was the scope of the October 16, 2000 Supplemental Notice of
Availability?
H. When did EPA make a determination regarding the adequacy of the
Motor Vehicle Emissions Budgets for the Metropolitan Washington, DC
area?
I. What SIP elements did EPA need to take final action on before
full approval of the attainment demonstration could be granted?
J. What are the Clean Air Act measures relied on for the post-1996
and attainment demonstration SIP submission?
K. What are the conformity budgets in the post-1996 ROP plans and
the attainment demonstrations?
L. What happens to the 2005 budgets when States change their budgets
using the MOBILE6 Model?
M. What comments were received on the proposed approvals and how has
EPA responded to those?

I. Background

A. What Action Is EPA Taking Today?

EPA is approving the Post-1996 ROP plans, the one-hour attainment
demonstrations and attainment date extension submitted by DoH, MDE and
VADEQ for the Washington area. The following tables identify submittal
dates and amendment dates for the post-1996 ROP plans and the
attainment demonstrations:

Table 1.--Post-1996 ROP Plans
----------------------------------------------------------------------------------------------------------------
DC MD VA
----------------------------------------------------------------------------------------------------------------
Initial submittal dates........... November 10, 1997.... December 24, 1997... December 19, 1997.
Amendment dates................... May 25, 1999......... May 20, 1999........ May 25, 1999.
----------------------------------------------------------------------------------------------------------------

Table 2.--Attainment Demonstrations
----------------------------------------------------------------------------------------------------------------
DC MD VA
----------------------------------------------------------------------------------------------------------------
Initial submittal dates........... April 24, 1998....... April 29, 1998...... April 29, 1998.
Amendment dates................... 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...... March 31, 2000.
(MD SIP No. 00-02)..
----------------------------------------------------------------------------------------------------------------

Table 3.--Attainment Date Extension Request
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Initial submittal dates........... September 20, 1999... July 16, 1999....... September 3, 1999.
Supplemental dates................ February 16, 2000.... February 14, 2000... February 9, 2000.
----------------------------------------------------------------------------------------------------------------

[[Page 587]]

B. What Previous Action Has Been Taken on These SIP Revisions?

On September 28, 2000, and October 19, 2000, EPA published Notices
of Proposed Rulemaking on the Post-1996 plans for the Washington area
(65 FR 58243 and 65 FR 62658). On December 16, 1999 (64 FR 70460), we
proposed approval of the attainment demonstration and request for an
attainment date extension for the Metropolitan Washington, DC area.
On February 22, 2000 (65 FR 8703), EPA published a notice of
availability on guidance memoranda relating to the ten one-hour ozone
attainment demonstrations (including the Washington area) proposed for
approval or conditional approval on December 16, 1999. The guidance
memoranda are entitled: ``Guidance on Motor Vehicle Emissions Budgets
in One-Hour Ozone Attainment Demonstrations'' dated November 3, 1999,
and ``Guidance on the Reasonably Available Control Measures (RACM)
Requirement and Attainment Demonstration Submissions for Ozone
Nonattainment Areas'' dated November 30, 1999.
On July 28, 2000, EPA published a supplemental notice of proposed
rulemaking (SNPR) on the attainment demonstration (65 FR 46383). In
that supplemental notice, we clarified and expanded on two issues
relating to the motor vehicle emissions budgets in these SIPs. This
supplemental notice is discussed in the section entitled ``What was the
scope of the July 28, 2000 Supplemental Notice of Proposed
Rulemaking?'' below.
On October 16, 2000 (65 FR 61134), another notice of supplemental
proposed rulemaking was published to specifically support the proposed
attainment demonstration published on December 16, 1999 for the four
serious ozone nonattainment areas (including the Washington area).
Originally, EPA established a comment period for this supplemental
proposal ending on October 31, 2000. A notice extending the comment
period on the October 16, 2000 notice was published on November 2, 2000
(65 FR 65818). An additional notice correcting a typographical error
was published on November 9, 2000 (65 FR 67319). This supplemental
notice is discussed in the section entitled ``What was the scope of the
October 16, 2000 Supplemental Notice of Availability?'' below.
Comments received on all of the proposed notices listed in this
section relevant to the Metropolitan Washington, DC area attainment
demonstration, Post-1996 ROP plan and attainment date extension are
discussed in section I. M. below.

C. What Were the Conditions for Approval Provided in the Notice of
Proposed Rulemakings for the Post-1996 ROP Plans and the Attainment
Demonstrations?

On December 16, 1999 (64 FR 70460), we proposed approval of the
attainment demonstration and request for an attainment date extension
for the Metropolitan Washington, DC area. Our approval was contingent
upon certain actions by Maryland, Virginia and the District of Columbia
(``the District'').
These actions were:
1. The District, Maryland and Virginia each had to adopt and submit
an adequate motor vehicle emissions budget and concurrently submit a
list of potential control measures that, when implemented, would be
expected to provide sufficient additional emission reductions to ensure
nonattainment area emissions in 2005 are equal to or less than the 1999
control strategy levels contained in the attainment demonstrations
considering growth. These measures could not involve additional limits
on highway construction beyond those that could be imposed under the
submitted motor vehicle emissions budget. The states and the District
needed to submit the revised budget and list of potential measures in
time to allow EPA to determine the budgets adequate by May 31, 2000.
2. The District, Maryland and Virginia each had to adopt and submit
an enforceable commitment, or reaffirm an existing enforceable
commitment to do the following:
(a) Submit measures by July 1, 2000 for additional emission
reductions, if any, as required to ensure nonattainment area emissions
in 2005 are equal to or less than the 1999 control strategy levels.
(b) Submit a revised SIP and motor vehicle emissions budget by July
1, 2000 if additional measures affect the motor vehicle emissions
inventory.
(c) Submit a revised SIP and motor vehicle emissions budget 1 year
after the mobile sources MOBILE6 model is issued (required only if the
attainment SIPs include the benefits of EPA's Tier 2/sulfur rule).
(d) Perform a mid-course review.
3. The District, Maryland and Virginia each had to adopt and submit
a rule or rules for additional emission reductions needed, if any, to
ensure nonattainment area emissions in 2005 are equal to or less than
the 1999 control strategy levels. If any of these adopted measures
affected the motor vehicle emissions budgets, then the District,
Maryland and Virginia each needed to adopt and submit a revised SIP
that incorporated revised motor vehicle emissions budgets reflecting
such measures. These rules and revised motor vehicle emissions budgets,
if any, needed to be submitted by July 1, 2000.

D. What Amendments to the Attainment Demonstration SIP did the
Washington, D.C., Area States' Make Since December 16, 1999?

The following is a summary of such submittals which include
submittal dates of revisions, the content of these submissions and
other pertinent facts regarding these submissions:
On February 9, 14 and 16, 2000, Virginia, Maryland and the
District, respectively, submitted the ``State Implementation Plan (SIP)
Revision, Phase II Attainment Plan for the Washington DC-MD-VA
Nonattainment Area''--dated February 3, 2000. Hereafter in this notice
the phrase ``the February 3 plan document'' means the document entitled
``State Implementation Plan (SIP) Revision, Phase II Attainment Plan
for the Washington DC-MD-VA Nonattainment Area'' that was dated
February 3, 2000. These submittals contain the 2005 motor vehicle
emissions budgets that include Tier 2/sulfur benefits, commitments to a
mid-course review and a list of potential control measures (from which
a set of measures could be selected) that when implemented, would be
expected to provide sufficient additional emission reductions to ensure
nonattainment area emissions in 2005 are equal to or less than the
control strategy levels contained in the modeled demonstration of
attainment. Also, they contain a demonstration that sufficient
additional emission reductions are included to ensure nonattainment
area emissions in 2005 are equal to or less than the 1999 control
strategy levels contained in the attainment demonstrations considering
growth.
On March 22 and 31, 2000, the District, Maryland and Virginia
submitted the ``Proposed Revision to State Implementation Plan (SIP)
Revision, Phase II Attainment Plan for the Washington DC-MD-VA
Nonattainment Area, establishing the out year Mobile Emissions Budgets
for Transportation Conformity''--dated March 22, 2000. (Hereafter in
this notice the phase ``the March 22 plan document'' means the document
entitled ``Proposed Revision to State Implementation Plan (SIP)
Revision, Phase II Attainment Plan for the Washington DC-MD-VA
Nonattainment Area, establishing out year Mobile

[[Page 588]]

Emissions Budgets for Transportation Conformity'' that was dated March
22, 2000.) These submittals amended chapters 1 and 9 of the February 3
plan document. These submittals established outyear budgets and
submitted an enforceable commitment to revise the SIP and motor vehicle
emissions budget 1 year after the MOBILE6 model is issued. In today's
action EPA is acting only on the commitment found in section 9.1.1.2
entitled ``Commitment to Revise Mobile Emissions Budgets'' to revise
the motor vehicle emissions budget one-year after the MOBILE6 model is
issued. The portions of the March 22 plan document that establish
outyear budgets will be the subject of a separate rulemaking action.

E. What State Enforceable Commitments Were Needed for Approval?

Of the four enforceable commitments described in the December 16,
1999, NPR two are now moot: Numbers 2.a and 2.b described in the
section entitled ``What were the conditions for approval in our
December 16,1999 Notice of Proposed Rulemaking'' above. The first is
moot because EPA has approved the relevant rules. The Regional
Administrator has signed the final action final approving the rules for
additional reductions, and these final actions have been or shortly
will be published in the Federal Register. The second is moot because
none of these new measures affect the motor vehicle emissions budgets.
Thus the relevant criterion for approving the attainment demonstration
SIP is whether or not the States and the District have submitted SIP
revisions to fulfill the other relevant conditions for approval set
forth in the December 16, 1999 NPR.
Of the two remaining commitments regarding the mid-course review
and revision of the motor vehicle emissions budgets using the MOBILE6
model, the States and the District submitted specific enforceable
commitments in the February 3 and March 22 plan documents to meet these
conditions.

F. What Was the Scope of the July 28, 2000 Supplemental Notice of
Proposed Rulemaking?

On July 28, 2000, EPA published a supplemental notice of proposed
rulemaking (SNPR) on the attainment demonstration (65 FR 46383). In
that supplemental notice, we clarified and expanded on two issues
relating to the motor vehicle emissions budgets in these SIPs:
First, we proposed a clarification of what occurs if we finalize
conditional or full approval of any of these SIPs based on a State
commitment to revise the SIP's motor vehicle emissions budgets in the
future. Under the proposal, the motor vehicle emissions budgets in the
approved SIP will apply for transportation conformity purposes only
until the budgets are revised consistent with the commitment and we
have found the new budgets adequate. Once we have found the newly
revised budgets adequate, then they would apply instead of the previous
conditionally or fully approved budgets. Normally, revisions to
approved budgets cannot be used for conformity purposes until we
approve the revised budgets into the SIP. Therefore, we proposed to
clarify that when our approval of these 1-hour ozone attainment
demonstrations is based on a commitment to future revisions to the
budget, our approval of the budget lasts only until revisions to
satisfy those conditions are submitted and we find them adequate.
Second, we proposed that States may opt to commit to revise their
emissions budgets 1 year after the release of the MOBILE6 model, as
originally proposed on December 16, 1999. Or, States may commit to a
new option, i.e., to revise their budgets 2 years following the release
of the MOBILE6 model, provided that conformity is not determined
without adequate MOBILE6-derived SIP budgets during the second year.
This proposal did not affect the Metropolitan Washington, DC area
because the District, Maryland and Virginia have submittted an
enforceable commitment to revise the motor vehicle emissions budgets
within one year after the official release of the MOBILE6 model.
In addition, we reopened the comment period to take comment on
these two issues and to allow comment on any additional materials that
were placed in the dockets for the proposed actions close to or after
the initial comment period closed on February 14, 2000 (65 FR at 46383,
July 28, 2000). For many of the areas, additional information had been
placed in the docket close to or since the initial comment period
concluded. In general, these materials were identified as consisting of
motor vehicle emissions budgets, and revised or additional commitments
or reaffirmations submitted by the States (65 FR at 46387, July 28,
2000).
G. What Was the Scope of the October 16, 2000 Supplemental Notice
of Availability?
On October 16, 2000 EPA published a Notice of Availability and
reopening of the comment period (65 FR 61134).
This notice was in regards to an analysis to evaluate emission
levels of oxides of nitrogen ( NOX) and volatile organic
compounds (VOC) and their relationships to the application of current
and anticipated control measures expected to be implemented in four
serious one-hour ozone nonattainment areas. This analysis was done to
determine if additional reasonably available control measures (RACM)
are available after adoption of Act required measures for the following
serious ozone nonattainment areas: Greater Connecticut; Springfield,
Massachusetts; Washington, D.C.-Virginia-Maryland; and Atlanta,
Georgia. The EPA performed this analysis in response to comments that
were submitted on the proposals on these areas' one-hour ozone
attainment demonstrations. The EPA took action to propose approval (and
disapproval in the alternative) of these areas' State implementation
plans (SIPs) on December 16, 1999 (Greater Connecticut (64 FR 70332);
Springfield (64 FR 70319); Metropolitan Washington (64 FR 70460); and
Atlanta (64 FR 70478)). This information supplemented the December 16,
1999 proposals.

H. When Did EPA Make a Determination Regarding the Adequacy of the
Motor Vehicle Emissions Budgets for the Metropolitan Washington, DC
Area?

The District, Maryland and Virginia submitted revisions to the
attainment plan SIP for the Metropolitan Washington, D.C. area on
February 16, 14 and 9, 2000, respectively. These revisions contained
revised motor vehicle emissions budgets for the attainment year of 2005
with a list of control measures that, when implemented, would be
expected to provide sufficient additional emission reductions to ensure
nonattainment area emissions in 2005 are equal to or less than the 1999
control strategy levels contained in the attainment demonstrations
considering growth. On January 6, 2000, December 22, 1999, and December
28, 1999, the District, Virginia and Maryland, respectively, reaffirmed
their existing enforceable commitments. The lists of measures were
identified in Tables 6-1 and 6-2 of the February 3, 2000 plan document.
On March 2, 2000, a notice was posted on EPA's website commencing
the comment period on the adequacy of the motor vehicle emissions
budgets in these February 2000 SIP revisions for the Washington DC
area. That notice also informed the public that the entire revised
attainment plan submitted by the District, Maryland and Virginia had
been posted by them electronically. EPA's March 2, 1999 website notice
also provided a link to and the address for

[[Page 589]]

the website where interested members of the public could access the
attainment plan. EPA's adequacy public comment period closed on April
3, 2000. No public comments were received pursuant to EPA's March 2,
2000 posting. We did receive comments on the adequacy of the budgets
pursuant to our December 16, 1999 NPR. The comments relevant to the
adequacy determination of these budgets were addressed in a response to
comments document portion of the technical support document prepared
for the adequacy determination. The finding that the budgets of the
revised attainment plan are adequate were made in letters, dated May
31, 2000, from EPA Region III to the Maryland Department of the
Environment, Virginia Department of Environmental Quality and the
District of Columbia Environmental Regulation Administration. In a June
8, 2000, Federal Register notice we announced that we had determined
the budgets contained in the February 2000 submissions were adequate
(65 FR 36439). These findings were effective on June 23, 2000.
These budgets included the benefits of EPA's Tier 2/sulfur rule.
The District, Maryland and Virginia have an acceptable commitment to
revise the attainment year motor vehicle emissions budgets using the
MOBILE6 model one year after the release of the MOBILE6 model.

I. What SIP Elements Did EPA Need To Take Final Action on Before Full
Approval of the Attainment Demonstration Could Be Granted?

In the NPR for the Metropolitan Washington, DC attainment
demonstration SIP published on December 16, 1999, EPA noted in Tables 3
through 6 the status of many of the control measures or part D
requirements of the Act for serious areas. Not all of these were
approved on the date of the NPR. The following provides the status of
these SIP elements:
On October 29, 1999, EPA approved Maryland's enhanced vehicle
inspection and maintenance SIP (64 FR 58340).
On October 27, 1999, EPA approved the District's Non-CTG VOC RACT
rule and rules for Stage II, surface cleaning and degreasing and
graphic arts rule (64 FR 57777).
On December 28, 1999, EPA approved Maryland's and Virginia's
national low emission vehicle (NLEV) SIPs (64 FR 72564).
On July 20, 2000, EPA approved the District's national low emission
vehicle (NLEV) SIP (65 FR 44981).
On July 19, 2000, and October 6, 2000, EPA approved Maryland's and
Virginia's, respectively, 15% VOC Reduction Plans (65 FR 44686 and 65
FR 59727, respectively).
On November 3, 1999, EPA approved Virginia's surface cleaning and
degreasing rules (64 FR 59635).
Elsewhere in today's Federal Register EPA is approving Maryland's
new source review regulation for the Metropolitan Washington, D.C.
area.
EPA is not crediting the Virginia attainment demonstration or Post-
1996 ROP plan for measures from VOC sources subject to the Non-CTG RACT
or the expanded point source regulations to 25 TPY measure requirements
unless source specific limits are approved into the SIP. One of the
source specific rules was approved on January 22, 1999 (64 FR 3425) as
well as a category specific rule covering lithographic printing
operations on March 12, 1997 (62 FR 11334). The Regional Administrator
of EPA Region III has signed a final action approving the remaining
source specific RACT rules. That action has been or will be published
shortly in the Federal Register.
Maryland has a state-wide Non-CTG RACT rule which statutorily had
to cover 50 TPY sources in the Washington area and which Maryland
lowered the applicability of the Non-CTG rule to 25 TPY. Because EPA
has not finished action on all the source specific RACT determinations
for other parts of the state, EPA has not fully approved the state-wide
Non-CTG RACT rule. However, Maryland has submitted RACT regulations for
all relevant sources located in the Washington area, and EPA has
determined that Maryland is not taking credit for any RACT reductions
from sources or categories of sources in the attainment demonstration
or Post-1996 ROP plan for which there is not a SIP-approved RACT rule.
These rules had been approved into the SIP prior to December 16, 1999.
These rules covered categories such as structural steel coating,
explosives and propellant manufacturing, bakeries, and other
categories. Further details are documented in the technical support for
this final action.
On December 14, 2000, the Regional Administrator signed a final
action approving the District's NOX RACT rule. That action
has been or will be published shortly in the Federal Register.
On December 15, 2000, the Regional Administrator signed final
actions approving Maryland's and Virginia's NOX RACT rules.
The Virginia final approval also included RACT determinations for Non-
CTG major VOC sources. These actions have been or will be published
shortly in the Federal Register.
On December 15, 2000, EPA approved into the SIP the Maryland's
NOX budget rule consistent with the OTC MOU Phase II (65 FR
78416).
On December 14, 2000, the Regional Administrator signed a final
action approving the District's beyond RACT rule for large
NOX sources. That action has been or will be published
shortly in the Federal Register.
On December 14, 2000, EPA approved into the SIP two Virginia
permits that impose a 0.15 pounds of NOX per million BTU
heat input on emissions units at two electric generating facilities in
the Washington area (65 FR 78100).
On December 14, 2000, the Regional Administrator signed a final
action approving the Maryland's NOX SIP Call state-wide
rule. That action has been or will be published shortly in the Federal
Register.

J. What Are the Clean Air Act Measures Relied on for the Post-1996 and
Attainment Demonstration SIP Submission?

Table 3.--Control Measures in the 1-Hour Ozone Post-1996 ROP and Attainment Plans for the Metropolitan
Washington Nonattainment Area
----------------------------------------------------------------------------------------------------------------
Credited in attainment
Control measure Type of measure Credited in post-1996 plan plan
----------------------------------------------------------------------------------------------------------------
Enhanced Inspection & Maintenance. Approved SIP......... Yes....................... Yes.
Federal Motor Vehicle Control Federal.............. Tier 1.................... Tier 1 and 2.
program.
NLEV.............................. Approved SIP opt-in.. Yes....................... Yes \1\.
Reformulated Gasoline (Phase 1 & State opt-in......... Phase 1................... Phase 2.
2).
Transportation Control Measures Approved SIP......... Yes....................... Yes.
(TCM).
Federal Non-road Gasoline Engine Federal.............. Yes....................... Yes.
standards.

[[Page 590]]

Federal Non-road Heavy Duty diesel Federal.............. Yes....................... Yes.
engine standards.
Railroad Locomotive Controls...... Federal.............. No........................ Yes.
NOX RACT.......................... Approved SIP......... Yes....................... Yes.
Non-CTG RACT to 50 tpy............ Approved SIP......... Yes....................... Yes.
VOC Point Source Regulations to 25 Approved SIP......... Yes....................... Yes.
tons/year \2\.
Stage II Vapor Recovery \3\ & On- Approved SIP; Federal Yes....................... Yes.
board Refueling Vapor Recovery
(ORVR).
AIM Surface Coatings.............. Federal.............. Yes....................... Yes.
Consumer & commercial products.... Federal.............. Yes....................... Yes.
Autobody refinishing.............. Federal.............. Yes....................... Yes.
Surface Cleaning/Degreasing....... Approved SIP......... Yes....................... Yes.
Open Burning Ban \2\.............. Approved SIP......... Yes....................... Yes.
Stage I Vapor Recovery \4\........ Approved SIP......... Yes....................... Yes.
Graphic Arts...................... Approved SIP......... Yes....................... Yes.
Heavy Duty Diesel Engines (On- Federal.............. No........................ Yes.
road).
Beyond RACT NOX Requirements on Approved SIP......... No........................ Yes.
Utilities.
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ To the extent NLEV not superceded by Tier 2.
\2\ Maryland and Virginia only.
\3\ Reduction credits calculated for Maryland and Virginia only. The District required implementation of Stage
II in 1985 for most sources, and claimed no reductions since 1990. (The District's Stage II regulation was
amended after 1990 to comply with the requirements for Stage II controls set forth in the 1990 amendments to
the Clean Air Act. EPA has approved the District's rule into the SIP.
\4\ Reductions only in those additional areas in Maryland and Virginia that were added to the Metropolitan
Washington D.C. area after 1990.

K. What Are the Conformity Budgets in the Post-1996 ROP Plans and the
Attainment Demonstrations?

Table 4.--Transportation Conformity Budgets for the Washington Area
------------------------------------------------------------------------
VOC (tons/ NOX (tons/
day) day)
------------------------------------------------------------------------
Post-1996 ROP Plan.......................... 128.5 196.4
One-hour Ozone Attainment Demonstration..... 101.8 161.8
------------------------------------------------------------------------

EPA has concluded that the SIP demonstrates attainment with these
budgets and contains the measures necessary to support these budgets.

L. What Happens to the 2005 Budgets When States Change Their Budgets
Using the MOBILE6 Model?

All States whose attainment demonstration includes the effects of
the Tier 2/sulfur program were required to revise and resubmit their
motor vehicle emissions budgets after EPA releases the MOBILE6 model.
On March 22, 2000, March 31, 2000, and March 31, 2000, the District,
Maryland and Virginia, respectively, submitted a commitment to revise
the 2005 motor vehicle budgets in the attainment demonstrations within
one year of EPA's release of the MOBILE6 model. If the State fails to
meet its commitment to submit revised budgets using the MOBILE6 model,
EPA could make a finding of failure to implement the SIP, which would
start a sanctions clock under Clean Air Act section 179.
As we proposed on July 28, 2000, the final 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 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.
If the revised budgets raise issues about the sufficiency of the
attainment demonstration, EPA will work with States on a case-by-case
basis. If the revised budgets show that motor vehicle emissions are
lower than the budgets we are approving today, a reassessment of the
attainment demonstration's analysis will be necessary before
reallocating the emission reductions or assigning them to the motor
vehicle emissions budget as a safety margin. In other words, the area
must assess how its original attainment demonstration is impacted by
using the MOBILE6 model vs. the MOBILE5 model before it reallocates any
apparent motor vehicle emission reductions resulting from the use of
the MOBILE6 model.

M. What Comments Were Received on the Proposed Approvals and How Has
EPA Responded to Those?

EPA received comments from the public on the Notice of Proposed
Rulemaking (NPR) published on December 16, 1999 (64 FR 70319) for the
Washington area's ozone attainment demonstration and Post-1996 ROP
plan. Comments were received from the Robert E. Yuhnke on behalf of
Environmental Defense and Natural Resources Defense Council; the
Midwest Ozone Group; and from the EarthJustice Legal Defense Fund
(EarthJustice), on behalf of the following organizations: Virginia
Chapter of the Sierra Club, Audubon Naturalist Society, Chesapeake Bay
Foundation, Environmental Defense, Coalition for Smarter Growth,
Washington Regional Network for Livable Communities, Piedmont
Environmental Council, and Southern Environmental Law Center.
EPA also received comments from the public on the supplemental
proposed rulemaking published on July 28, 2000 (65 FR 46383), in which
EPA clarified and expanded on two issues relating to the motor vehicle
emissions budgets in the attainment demonstration SIPs.

[[Page 591]]

Comments were received from Environmental Defense.
EPA received comments from the public on the supplemental proposed
rulemaking published on October 16, 2000 (65 FR 61134) to support the
proposed attainment demonstration published on December 16, 1999. In
that notice, EPA made available an analysis it had performed to
evaluate emission levels of oxides of nitrogen ( NOX) and
volatile organic compounds (VOC) and their relationships to the
application of current and anticipated control measures expected to be
implemented in four serious one-hour ozone nonattainment areas.
Comments applicable to the Metropolitan Washington, DC area
nonattainment area were received from the EarthJustice.
EPA received additional comments on the District's Post-1996 ROP
plans for the Metropolitan Washington, D.C. area from the EarthJustice
in response to the September 28, 2000 proposal (65 FR 58243) on the
Post-1996 ROP plan submitted by the District, and from the
EarthJustice, on behalf of the Maryland and Virginia Chapters of the
Sierra Club in response to the October 19, 2000 proposal (65 FR 62658)
on the Post-1996 ROP plans submitted by Maryland and Virginia.
A summary of the comments received on this action are provided in
section II ``Response to Comments''.

II. Response to Comments

The following discussion summarizes and responds to the comments
received on all of the proposed actions summarized in section I.B.
above.

A. Attainment Date Extension Policy

In these responses, EPA addresses both the comments received on
this rulemaking and those received in Docket A-98-47 on its notice
regarding ``Extension of Attainment Dates for Downwind Transport
Areas'' 64 FR 12221 (March 25, 1999), insofar as here relevant. This
includes responses to comments filed by EarthJustice and incorporated
by reference in later comments filed on proposed EPA actions on the
individual areas. General comments on the policy are considered first.
Then specific comments as applied to the area are addressed.
1. Comments Received in Response to March 1999 Notice
Comment 1: EPA does not have the legal authority to extend the
attainment deadline for serious areas until hoped-for NOX
reductions occur from upwind states in response to the NOX
SIP Call and/or section 126 actions . Such an extension is not
authorized by any provision of the statute. It is not within EPA's
discretion to extend the attainment dates for downwind areas classified
as moderate or serious. The Act does not authorize EPA to extend
attainment deadlines. Congress provided express attainment deadlines in
the Clean Air Act, and EPA is without authority to create exemptions
from them. Section 181 provides the only exception to the general rule
that areas must meet their attainment dates, and is the exclusive
remedy. Section 181(a)(5) allows a one-year extension if the state has
complied with all requirements and commitments in the applicable SIP
and had no more than one exceedance in the attainment year. In section
181(a)(5), Congress provided other authority for extending attainment
dates, but not to address effects of transport. See sections 181(a)(5).
Section 181(b)(2)(A) requires reclassification for failure to attain by
the attainment date. Section 182 requires submissions of attainment
plans by the applicable attainment date. EPA's policy violates these
express provisions. The statutory deadlines for attainment, the
requirement that SIPs adopt measures adequate to provide for attainment
by the statutory deadlines, the statutory limitation on EPA's authority
to extend attainment dates under section 181(b), and the procedures to
be followed in the event an area fails to attain by the deadline are
unequivocal and unambiguous, and compliance is required under step one
of Chevron. The extension policy is inconsistent with sections
182(b)(1)(A), 182(c)(2)(A) and 172(c)(1), which require each
nonattainment area to provide for attainment and submit SIPs providing
for attainment by the applicable deadline. There is no exemption from
these mandates for downwind areas that can attain through local
reductions, but find it difficult to do so. The EPA policy is also
inconsistent with the Phoenix reclassification action, which stated
that EPA had no flexibility to provide for attainment date extensions
in that circumstance. In section 181(i) Congress refused to give EPA
authority to extend attainment dates in light of reclassification.
Response 1: The absence of an express provision in the Clean Air
Act for an attainment date extension based on transport does not
deprive EPA of the authority to interpret the Act to permit such an
extension. Nor do the specific attainment date extension provisions in
the statute preclude EPA's interpreting the statute to allow for an
extension to account for upwind transport that has interfered with
downwind attainment. This interpretation is necessary to prevent the
thwarting of Congressional intent not to unfairly burden downwind
areas. In various parts of the statute, Congress expressed an intent to
accomplish this through provisions prohibiting transport, but these
provisions failed to achieve the Congressional goal in time to allow
the downwind areas to meet their originally prescribed attainment
dates.
The provisions of section 182 governing reclassification also do
not prohibit EPA from interpreting the Act to provide for an attainment
date extension based on transport. EPA's policy of extending attainment
dates for ozone nonattainment areas affected by transport of ozone and
ozone precursors represents a reasonable effort to avoid the
frustration of Congressional intent to which a literal application off
the reclassification provisions would lead. Where a ``literal reading
of the statute would actually frustrate the congressional intent
supporting it, [a court may uphold] an interpretation of the statute
more true to Congress's purpose.'' EDF v. EPA, 82 F.3d 451, 468 (D.C.
Cir. 1996).
In 1990, Congress established a classification scheme for ozone
nonattainment areas that provided for those areas to be classified on
the basis of the severity of their ozone problems and for areas with
more serious problems to be given more time to attain, but also
required to implement more control measures. As part of these
provisions, Congress enacted the reclassification provisions under
which ozone nonattainment areas that failed to attain the ozone
standard as of their attainment dates were to be reclassified to a
higher classification, thereby receiving an extension of their
attainment date, but also being subjected to additional control
requirements. See section 181(b)(2).
On their face, the reclassification provisions do not provide for
any exemption from the reclassification process for areas affected by
ozone transport from other States. However, EPA believes that, in light
of developments since the enactment of the 1990 Clean Air Act
Amendments, a literal application of those provisions to such areas
would frustrate broader congressional intent. In this context it is
important to recognize that, apart from the ozone reclassification
provisions, the Act contains a provision--section 110(a)(2)(D)--that
obligates upwind states to prohibit pollution--including ozone and its
precursors--from sources within the state that contribute significantly
to nonattainment and

[[Page 592]]

maintenance problems in downwind states. Congress was cognizant of the
need to control such emissions, and of the inequities between upwind
and downwind sources that could result if upwind states did not impose
emission controls on their sources that contribute to downwind air
quality problems. Congress thus sought to establish a regime that would
eliminate such inequities.
The legislative history of the 1977 Clean Air Act Amendments
regarding the enactment of section 110(a)(2)(E), the predecessor of
section 110(a)(2)(D), and section 126 (a provision that allows EPA to
directly regulate sources that significantly contribute to
nonattainment in another state) clearly demonstrates this. The Senate
Committee Report criticized the lack of effective ``interstate
abatement procedures'' and ``interstate enforcement actions'' under
existing law, which the Committee viewed as ``resulting in serious
inequities among several States, where one State may have more
stringent implementation plan requirements than in another State.''
S.Rep. No. 95-127 at 41, reprinted in 3 1977 Legis. Hist. 1416. It is
reasonable to assume that Congress, when it enacted the ozone
reclassification regime in 1990, would have expected that upwind states
would have in place implemented SIP provisions that would eliminate
significant contributions, as required by section 110(a)(2)(D), by the
time downwind areas were obligated to attain the ozone standard. If
that had happened, downwind areas that failed to attain by their
attainment dates would have failed to attain as a consequence of their
own failures to adopt necessary controls, not as a consequence of the
failure of other states to adopt and implement controls necessary to
eliminate the contribution of their own sources to the downwind area's
nonattainment problem.
Such controls were not in place, however, since, as explained in
EPA's transport policy, it in fact took many years for EPA and the
States to gain a sufficient understanding of the interstate ozone
transport problem to determine the appropriate division of control
responsibilities between the upwind and downwind States under the Clean
Air Act. It was only through the work of the Ozone Transport Assessment
Group (OTAG), which consisted of members from states, industry and
environmental groups, and EPA's subsequent NOX SIP Call,
promulgated in October, 1998, that the division of responsibilities
among the states was established. Consequently, the fruits of those
efforts--the implementation of the control measures in upwind states
that were needed to eliminate the significant contribution of sources
in those states--would not ripen until 2003 or 2004, years after the
statutory attainment dates for areas such as Springfield, MA. Moreover,
because the allocation of responsibility for transport was not made
until late 1998, the prohibitions on upwind contributions under section
110(a)(2)(D) and section 126 could not be enforced prior to the
attainment dates of areas such as Washington, DC, Greater Connecticut
and Springfield, MA. Nor could Congress intend that the upwind areas
with later attainment dates accelerate the timetables provided for
their own attainment as an indirect means of controlling transported
pollution in the absence of data on transport impacts.
To apply the reclassification provision of section 181(b) without
taking into account the timing of the identification and implementation
of the emission reductions needed to eliminate the significant
contribution of the upwind states to the downwind states would lead to
the result that the downwind states' sources are required to implement
potentially costly control measures to offset the effects of upwind
state pollution--pollution that EPA has now determined must be
prohibited under the Act and pollution that will soon be eliminated as
a result of the NOX SIP Call and by emissions reductions in
upwind states with later attainment dates. Imposing on downwind areas
the burden of controlling for pollution attributable to upwind sources
would compound the inequities that Congress was seeking to avoid with
the enactment of sections 110(a)(2)(D) and 126, thereby frustrating
Congressional intent. Moreover, such a result would be at odds with the
kind of concerns that led Congress to adopt section 179B for
international border areas--concerns that areas not be held accountable
for pollution over which they exercise no control.
Section 181(b)(2) provides that EPA should determine whether an
area attained the standard ``within six months following the applicable
attainment date (including any extension thereof).'' This reference to
extensions in section 181(b)(2) is not limited to extensions granted
under section 181(a)(5). Nor does section 181(a)(5) state that Congress
intended it to be the only source for an extension.
Moreover, section 181(a)(5) addresses only one specific type of an
extension. The fact that Congress provided an extension based on air
quality that is near attainment at the time of its deadline does not
imply that Congress precluded the Administrator from conferring
extensions based on other considerations--such as the case when air
quality is affected by downwind transport. The principle underlying
section 181(a)(5)--that areas should not be reclassified if they have
done enough to control local air pollution but are still not able to
attain--also applies in the case of downwind transport. Section
181(a)(5) shows that Congress was not unalterably opposed to extensions
of attainment dates without requiring an area to be subjected to
reclassification and the increased control burdens that go with
reclassifications. Indeed, section 181(a)(5) indicates that Congress
wanted to extend attainment dates without adding control obligations
when an area had done what was apparently sufficient to bring it into
attainment.
The United States Court of Appeals for the District of Columbia
Circuit has previously held that EPA may extend SIP submission
deadlines even without explicit statutory authorization. In Natural
Resources Defense Council, Inc. versus EPA, 22 F.3d 1125, 1135-36, the
Court upheld EPA's extension of a statutory deadline for submission of
NOX rules and a NOX exemption request under
section 182(f). Although the Court did not use the theory advanced by
EPA, the court did find that the Agency had authority under the CAA to
extend the deadline. EPA had found that additional time would be needed
for States to conduct photochemical grid modeling in order to document
the effects of NOX reductions on an area. EPA had found that
``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.'' EPA thus extended the submission deadline, provided the states
could show that modeling was not available or did not consider effects
of NOX reductions and that the states submit progress
reports on the modeling. The DC Circuit upheld EPA's extension of the
deadline and of EPA's time to review the submissions and make an
exemption determination. The Court found that ``because only a single
NOX RACT submission is required under the statute, it is
logical to infer that Congress intended data supporting exemptions to
be included in that submittal and that the EPA have the full 14-18
months to review them and to make an exemption determination.'' Even in
the absence of explicit statutory authority, the Court held that ``had
Congress foreseen the

[[Page 593]]

exemption timing problem, a matter outside the EPA's control, it would
have elected to accord the EPA the full statutory review time.'' 22
F.3d at 1136. The court ruled that ``under the circumstances here the
NOX RACT deadlines were properly extended to further the
Clean Air Act's purposes.'' Id. At 1137.''
Here, similarly, EPA's and the states' inability, until the OTAG
and NOX SIP Call process was completed, to document the
impacts of upwind areas on the attainment status of downwind areas, and
to assess and allocate responsibilities among the areas, caused a delay
in meeting the attainment deadlines. EPA believes that, had Congress
foreseen this timing problem, it would have elected to accord the
states and EPA more time to meet the attainment deadlines without
imposing reclassification requirements on downwind areas. As in the
case of the delayed photochemical grid modeling needed for the
NOX submissions at issue in NRDC versus EPA, EPA has shown
that the ability to document and analyze ozone transport was delayed.
And as with the criteria imposed on areas seeking NOX
submission extensions in NRDC, EPA has required analogous showings by
the states, limiting the extensions to those areas that document a
transport problem and that submit attainment demonstrations and adopt
local measures to address the pollution that is within local control.
As for Section 182(i), it has no bearing on the authority of the
Administrator with respect to the attainment date extensions at issue
here. Section 182(i) applies to the authority of the Administrator
after an area has been reclassified, and relates to the setting of an
attainment date for the reclassified area. It does not apply to an area
that is not being reclassified, but rather is being granted an
extension of its attainment date that effectively defers the
applicability of the reclassification provisions. Here, EPA is
authorizing an attainment date extension to relieve an area from
reclassification requirements, and thus 182(i) does not apply. The
section explicitly applies to an area that has already been
reclassified, and indicates nothing about the authority of the
Administrator to extend an area's attainment date prior to a
determination that the area must be reclassified. Nor does section
182(i) indicate Congressional intent to deny EPA authority to interpret
the Act consistently with provisions designed to prevent downwind areas
from being forced to compensate for upwind pollution.
Comment 2: The Act does not authorize EPA to extend the time for
implementation of adopted local control measures. EPA's approach allows
downwind areas to defer implementation of local measures until the
extended attainment deadline, thereby precluding any determination that
the local measures have achieved the degree of emission reduction
necessary to provide for attainment when the upwind sources are
controlled. EPA unlawfully proposes to allow attainment date extensions
for downwind areas to implement local control measures. Under sections
182(b)(l), 182(c)(2)(A), and 172(c)(1), downwind areas must provide for
attainment of the NAAQS, and EPA unlawfully seeks to lessen these
statutory obligations.
Response 2: As explained in Response 1, above, EPA's attainment
date extension policy aims to effectuate, not frustrate the intent of
Congress, by providing for an equitable allocation of responsibilities
between upwind and downwind areas. Under EPA's interpretation, when an
upwind area interferes with a downwind area's ability timely to attain
the standard, the downwind area retains the obligation to adopt all
applicable local measures, and to implement them as expeditiously as
practicable, but no later than the date by which the upwind reductions
needed for attainment will be achieved. Moreover, EPA requires that the
area submit an approvable attainment demonstration containing any
necessary, adopted local measures and showing that, assuming the
appropriate upwind emission reductions, the area will attain the 1-hour
standard no later than the final NOX SIP Call and/or the
upwind area's attainment date. Thus both the upwind and downwind areas
are held accountable for their respective shares of the emissions
reductions required to achieve attainment in the area. EPA views this
coordination of the responsibilities of the upwind and downwind areas
not as a lessening of the statutory obligations, but as a
reconciliation of them with the reality of air transport as we have
come to understand it, and with the intent of Congress that areas make
expeditious progress towards attainment without sacrificing basic
principles of fairness. The attainment date extension policy thus will
still lead to attainment as expeditiously as practicable, taking into
account the upwind contribution. Indeed, given the impact of upwind
areas' contributions and the need for upwind area emissions reductions,
requiring local contributions earlier would not accelerate attainment,
considering that EPA is requiring downwind areas to implement local
controls as expeditiously as practicable. Moreover, the difficulty of
assessing relative contributions and responsibilities of upwind and
downwind areas until the completion of the OTAG effort and the
NOX SIP Call lends support to extending attainment deadlines
in these circumstances, even without express statutory permission. See
NRDC versus EPA, discussed supra, in Response to Comment 1.
Comment 3: Reclassification alone has no immediate or mandated
regulatory consequence. A SIP revision can consist of a showing that
attainment will result from implementation of emission reductions
already required pursuant to the SIP Call. EPA's Extension Policy is
inconsistent with Clean Air Act sections 179 (c) and (d). This
provision does not require additional local control measures beyond
those previously approved implemented by the State if adequate control
measures have been adopted for upwind areas and are in the process of
being implemented.
Response 3: Reclassification does impose regulatory consequences.
Section 182(i) requires that ``each state containing an ozone
nonattainment area reclassified under section 181(b)(2) shall meet the
requirements of subsections (b) through (d) of this section as may be
applicable to the area as reclassified.'' Thus the area must meet the
more stringent requirements of a higher classification, including new
source review offsets and changes in cutoffs for permitting. The
provisions of section 181(b) apply to reclassification of ozone areas.
Sections 179 (c) and (d) do not apply to ozone areas that are
classified as marginal, moderate, or serious, which are subject to the
requirements of section 181, if EPA determines that they failed to
attain the ozone standard as of the applicable attainment date pursuant
to that section.
Comment 4: Sections 176 and 184 of the Act do not support EPA's
extension policy. Congress left no room in the statute for attainment
date extensions for downwind areas, considering instead the additional
recommended OTC control measures for upwind areas to be sufficient.
Sections 110(a)(2)(D)(i)(1) and 110(a)(2)(A) do not authorize the EPA
policy. Section 110(a)(2)(D) imposes a burden only on upwind states and
does not relieve downwind states of their obligation to attain by the
pre-set attainment dates. EPA lacks the authority to rewrite the
extension authority Congress wrote into sections 181 (a)(4) and (b)(3).
Congress was well aware of the transport problem

[[Page 594]]

and addressed it in explicit provisions, including section
110(a)(2)(D), section 110(a)(2)(A), section 184, section 176A, section
126, section 182(h), and section 181(a)(4). Thus Congress knew how to
address pollutant transport and how to draft an attainment date
extension addressed to it when it wished to do so. It also provided for
voluntary reclassification under section 181(b)(3) to be available for
downwind areas that are affected by transport. Congress dealt with
transport explicitly in sections 181(a)(4), 182(h) and 182(j)(2).
Congress knew how to exempt transport-affected areas from control
requirements if it wanted to, as it did for rural transport areas under
section 182(h). Congress limited relief for areas subject to transport
to exemption from sanctions, but did not extend this to section 110(c)
FIPs. H.R. 101-490, at 248. This shows Congress' intent to apply all of
the Act's enforcement tools except for sanctions under section 179.
Congress considered the effects of transport, but not in the
reclassification context. Congress did provide for attainment date
extensions, but not in this context.
Response 4: Having crafted provisions in the 1990 Amendments that
it believed would be adequate to address the problem of downwind
nonattainment, Congress did not expressly provide for an attainment
date extension based on transport. But the absence of such a provision
does not prevent EPA from inferring that Congress would have intended
to provide such relief should the express provisions fail to function
as envisioned. In fact, the manner in which Congress did address the
issue of transport shows that EPA's interpretation is consistent with
Congress' approach in other sections of the Act. EPA's interpretation
resolves the problem that arose when the express statutory tools failed
to function as Congress had envisioned. It also, as EPA pointed out in
its guidance, 61 FR 14441 (March 25, 1999), provide a means to
reconcile the attainment demonstrations and attainment date
requirements for downwind areas with the graduated attainment date
scheme and schedule for achieving reductions in the upwind areas.
Although Congress intended that upwind areas be responsible for
preventing interference with downwind areas' attainment dates, it also
expressly allotted more time for certain upwind areas to reduce their
emissions so as to attain the standard.
Sections 110(a)(2)(D), 126, 184 and 176, provide principles for
dealing with transport, most importantly the principle that upwind
areas be held accountable for reducing emissions that interfere with
the ability of downwind areas to attain the ozone standard. EPA
disagrees with commenters that Congress intended section 110(a)(2)(D)
and the other transport provisions to exclude the possibility of relief
for downwind areas even if no timely and adequate recourse against
transport was in fact available to them. These sections express
Congressional intent that downwind states not be saddled with
responsibility for pollution beyond their control. Their premise was
that there would be a means of redress against upwind states prior to
the downwind area's attainment date--a means that also would not be at
odds with Congress' decision to provide longer attainment periods for
upwind areas confronting onerous pollution problems. But, as EPA
pointed out in its guidance, there was in fact no practicable way to
carry out the Congressional scheme until a much more comprehensive
understanding of the complex facts of ozone transport could be
achieved.
Although Congress in the 1990 Amendments and in prior versions of
the Clean Air Act attempted to deal with the issue of transport, the
reality of the problem proved far more complicated and intractable than
expected. As explained in EPA's guidance, 64 FR 14441 (March 25, 1999),
it took many years for EPA and the states to study, analyze, and
attempt to resolve the allocation of responsibility for transported
ozone pollution. EPA's initial efforts included a policy memorandum
addressing the issue of overwhelming transport in 1994. The Ozone
Transport Assessment Group was launched in 1995. Through this
collaborative process, EPA, 37 states and industry and environmental
groups tackled the problem of allocating responsibility for transport
in its Overwhelming Transport Policy. During the period required for
this effort, the resolution of regional transport issues was held in
abeyance. It was not until late in 1998 that the conclusion of the OTAG
and SIP Call processes resulted in assignments of responsibility that
could assist in the design of SIPs and the formation and implementation
of attainment demonstrations. 63 FR 57356 (Oct 27, 1998)
(NOX SIP Call Rule). In May 1999, these efforts were
reinforced when EPA approved petition submitted under Clean Air Act
section 126 by northeast states to mandate federal controls on
utilities and other large NOX emitters in upwind States. 64
FR 28250 (May 27, 1999) (Section 126 Rule). A more detailed description
of the history of efforts to address ozone transport through the 1990's
may be found in the preambles to these rulemakings. 63 FR 57360-63, 64
FR 28253-54.
Even after the NOX SIP Call rulemaking was complete, it
was temporarily placed in doubt when the Court stayed the SIP Call rule
pending judicial review. The court has ordered NOX SIP Call
SIPS to be submitted by October 30, 2000, and to require sources to
implement controls by May 31, 2004.
Thus, although Congress in the Clean Air Act had formulated a
prohibition on transport interfering with downwind attainment, it
remained largely theoretical until EPA and the states could understand
how to identify, quantify, and analyze the transport of emissions, and
develop regulatory means to coordinate the respective responsibilities
of a multitude of upwind and downwind areas. Although Congress endowed
EPA and the states with legal tools to protect downwind areas from
interference with attainment, it did not give them the ability to use
the tools in the time frame anticipated by Congress. By the time EPA
and the states gained an understanding of regional transport sufficient
to allow enforcement of the provisions of the Act, it was too late to
help some downwind areas meet their attainment dates. Thus it is
spurious to argue that EPA and the States could have sought and
obtained meaningful relief earlier under section 126 and section 110.
The fact that upwind states are subject to the requirements of
section 110(a)(2)(D) but other countries are not provides a possible
explanation as to why Congress explicitly provided that ozone
nonattainment areas not be reclassified upwards if they would have
attained by their attainment dates ``but for emissions emanating from
outside'' the United States (section 179B(b)) but provided no such
express exemption from the reclassification provisions in the case of
domestic transport. See IV 1990 Legis. Hist. 5741-42 (remarks of Sen.
Gramm introducing the international provision and Sen. Baucus
supporting it; Senator Gramm stated: ``It is unfair to hold El Paso
accountable for pollution that is generated in a foreign country that
they have no control over. So what this amendment does it says that in
assessing whether or not the State implementation plan has been met,
and when assessing the levels of ozone * * * pollution that is being
generated across the border has to be taken into account so that our
cities and regions will be judged based on what they do. * * * [The
State, region and city] will have the opportunity to come to EPA and
say that they are in compliance in terms of their emissions, that their
failure to meet the overall

[[Page 595]]

standards is due to something that is happening in a sovereign foreign
country over which they exercise no control.'' Senator Baucus stated
that, ``It is clear that cities like El Paso in the State of Texas do
not have control of their own destiny themselves. Much of the air that
affects them is from outside, from another country, over which the
Senator said the State of Texas and EPA in this country has virtually
no control.''). Congress assumed that EPA would have control over
domestic transport under section 110(a)(2)(D), so it saw no need to
enact a domestic counterpart to section 179B. As set forth in EPA's
responses and the history of EPA and the states' efforts to understand
and control transport, Congress' assumptions were not realized.
As set forth in Response 1 above, Congress intended, through
enactment of the provisions addressing transport cited by commenters,
to prevent downwind areas from being held accountable for pollution
over which they exercise no control. Because of the complexity of the
transport problem, EPA and the states could not deploy these statutory
provisions in time to achieve attainment by their original attainment
dates. But this does not mean that Congress would have intended EPA to
construe the very provisions designed to protect downwind areas as
precluding EPA from interpreting the statute to provide the relief that
those provisions failed to furnish. Notwithstanding the absence of an
express provision for an attainment date extension based on transport,
EPA believes that, taking into account the Act read as a whole,
Congressional intent supports EPA's interpretation of an attainment
date extension in the circumstances presented here.
Commenters argue that the fact that Congress formulated various
provisions addressing certain specific types of issues concerning
transported pollution, but did not provide for an explicit attainment
date extension based on transport, should be taken as proof that
Congress meant to preclude such relief. But each of the provisions
cited by commenters--to sections 181(a)(4), 182(h) and 182(j)(2)--was
designed to address a different problem from the one EPA addresses
here, and none undermines EPA's interpretation that Congress intended
to provide relief in the situations currently confronted by downwind
areas. As shown in EPA's previous responses, Congress expressed its
intent in the transport sections to protect downwind areas from the
burdens of transported pollution, but the mechanisms it provided could
not be invoked in time.
As for the sections referenced by commenters, Section 181(a)(4)
concerns the potential for adjustment of the original classification of
an area if its design value is within a certain margin. It allows the
Administrator to consider a number of factors, including among them
transport. This provision in no way casts doubt on the Congressional
intent not to penalize downwind areas through mandatory
reclassification should they later fail to attain the standard due to
transport. Section 182(h) provides a mechanism for original
classifications of rural transport areas as marginal areas, the lowest
level of ozone nonattainment areas. Far from indicating that Congress
did not intend relief for areas that are victims of transport, this
provision reflects Congressional concern with not burdening areas with
responsibility for transport not of their making. It sheds no light on
whether Congress would have intended EPA to reclassify areas suffering
from transported pollution if they were subsequently unable to meet
their attainment dates.
Nor, as commenters suggest, would so-called ``voluntary''
reclassification under section 181(b)(3) furnish an adequate remedy for
the situation confronting areas that fail to attain due to interference
from transport. An area that felt constrained to seek ``voluntary''
reclassification would still be forced to subject itself to more
stringent requirements to control local pollution in lieu of imposing
on upwind areas the responsibility for the transport they caused.
Comment 5: The states had power to timely submit SIPs controlling
local pollution to the full extent that it was in the state's power to
require, and combine it with a request to EPA to invoke EPA's authority
to control upwind pollution, and in this way the state could have
attained by the applicable deadline. EPA's 1994 overwhelming transport
policy required transport modeling to be documented the same time as
the attainment demonstration due in 1994. There is no justification for
allowing states to request attainment date extensions based on
transport of which they were aware many years ago. An opening is
created for upwind states to argue that the NOX SIP Call
effectively accelerates their attainment dates. The OTC was to
recommend measures to bring about attainment by the deadlines ``in this
subpart.''
Response 5: As pointed out in EPA's Response 4, above, an awareness
that transport was occurring is not equivalent to an ability to
identify, analyze, and control the emissions that cause it. This
ability, which grew out of years of study and joint effort, did not
coalesce until late in 1998. Thus, downwind states were faced with the
prospect of having to shoulder responsibility for pollution not of
their making--a responsibility that Congress did not intend to impose
on them, even as they were aware of an ongoing effort, involving EPA
and thirty-seven states, to allocate responsibilities for transport
through the OTAG process. As EPA stated in its guidance on the
attainment date extension, the state of knowledge about and the ability
to document and model transport has advanced considerably since the
issuance of EPA's overwhelming transport guidance. The commenters seek
to ignore the climate of uncertainty in which states and EPA were
operating with respect to controlling transported pollution. Section
110(a)(2)(D) and 126 are not self-executing, and until the culmination
of the OTAG process, downwind areas in the OTAG region could not
determine what boundary conditions they should assume in preparing
attainment demonstrations and determining the sufficiency of local
controls to bring about attainment. Meaningful relief under these
provisions simply was not available earlier.
But even with the allocation of responsibilities now available, EPA
believes that Congress did not intend to accelerate the obligations of
upwind states so that downwind states can meet earlier attainment
dates. This would undermine the objective, firmly embodied in the
graduated attainment framework of the Clean Air Act, to allow upwind
areas with more severe pollution longer attainment deadlines . Upwind
areas with later attainment dates still find it difficult to reduce
emissions solely to control for transport without accelerating the time
frames intended by Congress. It is unrealistic to expect upwind areas
to be able to segregate out the reduction of emissions for purposes of
transport from the reduction of emissions for purposes of achieving
attainment in the upwind area.
The fact, as a commenter points out, that Congress envisioned that
the OTC-recommended measures would bring about attainment by the dates
``in this subpart'' reflects Congress'' over optimistic view that
transport would be understood and controlled in time to allow upwind
areas to be held accountable for their contributions to downwind
nonattainment. The comment underscores that Congress expected upwind
reductions to take place by the time the downwind area

[[Page 596]]

was supposed to attain--this confirms that Congress expected that
upwind pollution would be controlled prior to downwind attainment
deadlines, and that only local pollution would remain as the downwind
area's responsibility. But, as we previously stated, the time line for
analyzing and assessing transport, and the resulting ability to
implement appropriate measures to control upwind pollution, did not
keep pace with Congress's expectations. EPA is extending attainment
deadlines in order to allow upwind areas to assume responsibility for
the pollution they generate and that is transported across State
boundaries, and to fulfill the Congressional intent that downwind areas
not be saddled with this burden.
Comment 6: EPA's decision directly conflicts with NRDC v. EPA, 22
F.3d 1125 (D.C. Cir. 1994), where the Court held that EPA could not
extend a clear statutory submission deadline.
Response 6: To the contrary, EPA believes that NRDC v. EPA supports
EPA's authority to issue the attainment date extensions at issue here.
In that case the U.S. Court of Appeals for the DC Circuit upheld EPA's
extension of SIP submittal deadlines even though such extensions were
not expressly permitted by the Clean Air Act. See the discussion in
Response to Comment 1, above. The Court relied in part on the need for
additional time to undertake photochemical modeling to document the
impact of NOX reductions on individual areas, an effort that
took more time than Congress anticipated. Here, the effort to document,
model, and analyze regional ozone transport issues and assess
responsibility for relative contributions is, if anything, more complex
than the NOX exemption showings for which the Court upheld
deadline extensions in NRDC v. EPA. The Court's reasoning in NRDC v.
EPA should be fully applicable to the policy at stake here.
Comment 7: A commenter concedes that ``EPA's delay in establishing
the mandatory emission reduction targets for upwind States might
justify the delay in adoption of adequate section 110(a)(2)(D) measures
by the upwind states,'' but concludes that the delay ``cannot justify
delaying the obligation of downwind States to implement all the local
measures necessary for attainment by the statutory deadline.'' One
commenter, while acknowledging that it ``does not take issue with EPA's
objective of accommodating the delayed control contributions from
upwind areas,'' contests EPA's claim of authority to extend attainment
dates. This commenter suggests that the appropriate remedy is for EPA
to authorize states to take credit for mandated emission reductions
when preparing attainment demonstrations and determining the degree of
local controls needed to attain.
Response 7: While the commenter recognizes that there was a delay
in understanding and regulating transported pollution that ``might
justify the delay'' in upwind states adopting section 110(a)(2)(D)
measures, and agrees with EPA's objective in taking this delay into
account, the commenter's proposed solution fails to address the problem
it acknowledges. The commenter suggests allowing areas to take credit
when they prepare their attainment demonstrations--but this solution
addresses only the planning requirement, and does not assist the areas
in solving the problem of failing to meet their attainment deadline. It
is to address this issue, and to effectuate Congressional intent to
avoid penalizing downwind areas in these circumstances, that EPA has
formulated the attainment date extension. The delay in ascertaining the
amount and achieving the reality of upwind reductions--a delay conceded
by commenters--resulted in uncertainty in a downwind area's ability not
only to plan for attainment, but to realize it.
This comment also highlights the difficulties that EPA's attainment
date extension policy was designed to address: namely that the states
and EPA were (1) not able to assess relative contributions until it was
too late to implement the controls to bring about attainment; and (2)
upwind areas with longer attainment dates should not be required to
accelerate their reductions in time to help bring about attainment as
scheduled in affected downwind areas with earlier attainment dates. As
the policy explains, the determination of relative upwind and downwind
contributions and the allocation of responsibility for determining
controls did not occur in time for a number of areas to meet their
attainment deadlines.
Comment 8: EPA's approach allows emission reductions from motor
vehicles to be deferred beyond the deadlines currently required by the
Act. The policy allows deferral of conformity budgets beyond the
statutory attainment year. It is also inconsistent with statutory
requirements for reasonable further progress in section 182(c)(2)((B),
for implementation of all reasonably available control measures as
expeditiously as practicable in section 172(c)(1), and for requiring
that transportation plans and TIPs ``will not delay timely attainment
of any standard or ... other milestones in any area in section
176(c)(1).''
Response 8: EPA disagrees with the commenter that the policy allows
deferral of motor vehicle emission reductions and reasonably available
control measures beyond dates contemplated in the Act. The statute
requires SIPs to provide for attainment as expeditiously as practicable
and for reasonable further progress as necessary to provide for
attainment. The motor vehicle and RACM measures the commenter is
apparently referring to are not specific measures that the statute
requires to be implemented by a fixed date. Rather, they are whatever
motor vehicle and RACM measures are necessary to provide for attainment
and RFP by the applicable attainment date. Thus, whatever attainment
date is applicable, either by virtue of the statute or an attainment
date extension, defines the outside date by which motor vehicle and
RACM measures necessary to provide for timely attainment must be
implemented. A determination must then be made whether any additional
measures could advance that date, but the analysis is keyed to the
established attainment date. The commenter also complains about delays
in establishing budgets for conformity purposes, and requirements that
transportation activities not delay timely attainment. Again, these
issues are not relevant to establishing an appropriate attainment date.
Motor vehicle emission budgets for conformity purposes are those
budgets that are established for the attainment year. The Act does not
require that these budgets be set for any specific year, but rather
contemplates that they will be established for the attainment year.
Where EPA has properly determined that an attainment date extension
should be granted, conformity budgets are required for the extended
attainment year; they are no longer required for the superseded
attainment year. The requirement that transportation activities not
delay timely attainment is a duty imposed on transportation planning
agencies to insure that their activities will not interfere with
attainment of the standard by the applicable attainment date. This duty
is irrelevant to establishing the appropriate attainment date in the
first instance. Once an applicable attainment date is established,
transportation planners must insure that their activities will not
delay attainment by that date.
Comment 9: A commenter argues that under the terms of section
188(e), an extension of the PM attainment date may not be granted
unless the State demonstrates that the area's SIP contains ``the most
stringent measures that are included in the implementation

[[Page 597]]

plan of any State or are achieved in practice in any Sate, and can
feasibly be implemented in the area.'' Moreover, section 188(e)
provides for consideration of transboundary emissions from ``foreign
countries,'' not from U.S. sources. EPA's proposed ozone nonattainment
extension policy includes neither of these limitations.
Response 9: The provision cited by commenters applies the PM-10
standard, and is not applicable to attainment dates for ozone.
Moreover, the regulatory regimes applicable to ozone and PM-10 are
quite different, as are the types of transport issues that arise with
respect to these two different pollutants. The issues EPA and the
states confront with respect to long-range regional transport of ozone
do not apply to PM-10. Beyond that, section 188(e) embodies a standard
of `` impracticability'' as a basis for seeking an extension for a PM-
10 attainment deadline. With respect to the ozone attainment deadlines
at issue here, EPA is not granting extensions solely on the grounds of
impracticability of attaining the standard, but rather, that Congress
intended both upwind and downwind areas to have an opportunity to bear
the responsibility for their respective contributions to an area's
attainment problems.
Comment 10: EPA's effort to ``manufacture a conflict'' between the
statutory deadlines and transport provisions fails, since these
provisions must be read together so that the upwind area's ``obligation
to control pollution affecting the downwind area--be it interstate or
intrastate--falls due no later than the downwind area's attainment
date.'' EPA's argument that areas with longer attainment dates be given
additional time ignores the statutory requirement that areas attain as
expeditiously as practicable, even if that results in attainment before
section 181(a)(1)'s outer deadlines. The section 181 attainment
deadlines are ``outside limits.'' A commenter argues that Section
181(a) does not prevent upwind areas from abating pollution in downwind
areas in time to meet the downwind area's attainment date. EPA's policy
cannot be defended as necessary to reconcile 181(a) with the Act's
anti-transport provisions. Upwind areas should be able to control
pollution contributing to downwind area's nonattainment even before
reaching their own later-prescribed attainment dates.
A commenter disputes EPA's interpretation of the language in
section 110(a)(2)(D)(1) that SIP provisions prohibiting emissions which
cause transport be ``consistent with the provisions of this
subchapter.'' EPA should interpret the provisions to respect the
attainment schedules of sections 181 and 182, and address transport
separately. No reference is made to any legislative history that would
legitimize EPA's reading. An upwind area's obligation to control
transported pollution does not depend on its own timetable for
attainment. EPA's policy excuses upwind area's responsibility from
their obligations under sections 110, 176A and 184, exempting them via
granting extensions to downwind areas. The policy defers downwind
action until the upwind area attains.
EPA improperly assumes that it would not be practicable for upwind
sources to reduce emissions contributing to downwind nonattainment
prior to the time such reductions would be required to attain in the
upwind area. The presumption should be precisely the opposite: unless
the upwind state can show that such reductions are impracticable, EPA
should assume such reductions can be made at times to eliminate the
upwind state's contribution to nonattainment downwind by the downwind
area's attainment date. EPA's rule eliminates the Act's requirement
that attainment be accomplished as expeditiously as possible. Section
184 indicates Congressional intent that upwind areas make reductions if
necessary to permit downwind areas to attain by their statutory
deadlines.
Response 10: EPA disagrees with the commenter's contention that it
has ``manufactured a conflict.'' Rather, EPA believes that it
recognizes and resolves the real tension between the statutory
deadlines and the transport provisions. EPA explained this tension in
its guidance on the attainment date extension policy. See also EPA's
response to Comment 4. Congress did not intend that areas with more
severe pollution problems, and accordingly longer attainment dates, be
forced to accelerate reductions on a timetable that otherwise would not
be deemed to be required in order to meet their obligation to attain
``as expeditiously as practicable.'' Commenters want EPA to read the
requirement for upwind areas, not as containing the limitation that
their attainment deadline be ``as expeditiously as practicable''--but
instead, to require deadlines that are not practicable solely for the
purpose of obtaining downwind reductions.
In dealing with ozone, a regional pollutant, an upwind
nonattainment area cannot make reductions for transport purposes
without affecting its schedule for making reductions for attainment
purposes. Compelling the upwind area to make drastically faster
reductions is akin to asking it to go on a crash diet. But the
interplay of the statutory provisions on attainment deadlines and
transport reduction indicates that Congress intended upwind areas to
reduce transport, but not to the extent of requiring shorter schedules
for upwind attainment.
Separating out reductions for purposes of attainment and those for
the purposes of transport is more difficult than commenters depict, and
EPA believes that Congress did not intend a regimen of drastic
reductions without regard to the upwind area's attainment schedule. In
reality, an upwind area that remains in nonattainment may doubtless be
shown to continue to transport pollution to an affected downwind area.
Congress provided statutory tools to address the issue of transport
(including sections 184, 126, and 110(a)(2)(d)), and believed that they
would be used to reach an accommodation among upwind and downwind
areas--but as EPA and some commenters have recognized, this
accommodation took longer than anticipated. Congress did not, however,
intend that upwind areas be forced to apply draconian measures in order
to allow the downwind areas to meet their shorter attainment periods.
And although the attainment deadlines can be looked at as ``outside
limits,'' they in fact represent the dates at which statutory
consequences must be considered. As long as no earlier date is deemed
to be ``as expeditiously as practicable,'' there is no evidence that
Congress considered an earlier date to be acceptable for these areas,
regardless of ``practicability.'' Even if earlier deadlines would be
beneficial to downwind areas, Congress did not indicate that this
criterion should override the criterion of ``practicability'' for the
upwind area.
In administering the Clean Air Act and the NOX SIP Call,
EPA has interpreted section 110(a)(2)(d)'s significant contribution
test as requiring reductions as expeditiously as practicable without
requiring upwind areas to impose draconian measures. The United States
Court of Appeals for the District of Columbia Circuit recently upheld
EPA's use of a cost component in applying that section's significant
contribution test. Michigan v. EPA, 213 F.3d 663, 674-679 (D.C. Cir
2000). EPA decided that the states that were ``significant
contributors'' under section 110(a)(2)(D) need only reduce their
emissions by the amount achievable with ``highly cost-effective
controls.'' 63 Fed. Reg. At 57,403. ``Thus, once a state

[[Page 598]]

had been nominally marked a ``significant contributor,'' it could
satisfy the statute, i.e., reduce its contribution to a point where it
would not be `significant' within the meaning of section
110(a)(2)(D)(i)(I) by cutting back the amount that could be eliminated
with `highly cost-effective controls.' '' 213 F.3d at 675.
In applying section 110(a)(2)(D), the D.C. Circuit concluded that
EPA can consider not only air quality impacts, but also costs of
control. Thus EPA has been upheld in interpreting the Act in a way that
limits the upwind area's responsibility to control pollution so as to
mitigate its responsibility under section 110(a)(2)(D). The upwind area
should not have to impose draconian controls. As the Court in Michigan
v. EPA, 213 F.3d 663, 674-679 (D.C. Cir. 2000) concluded, ``there is
nothing in the text, structure, or history of section 110(a)(2)(D) that
bars EPA from considering cost in its application.'' 213 F.3d 679. The
Court's discussion makes clear that EPA, in interpreting the
responsibilities of upwind states under section 110(a)(2)(D), may
consider differences in cutback costs in determining what constitutes a
significant contribution, and that EPA's inquiry is based on balancing
a number of considerations to balance health effects and cost-
effectiveness.
EPA's policy does not excuse the upwind areas from fulfilling their
obligations under section 110. Upwind areas will be held to section 110
and RACM requirements. EPA has determined the upwind areas' section 110
obligations through the SIP call. The SIP call requires reductions by
the date EPA determined was as soon as practicable to eliminate
significant contributions to downwind areas.\1,2\ This is coupled with
the upwind area's obligation to attain as expeditiously as practicable.
It is appropriate to hold downwind areas to the upwind area's
attainment date as an outside limit until EPA acts on the upwind area's
attainment demonstration. The modeling evidence we have now shows that
upwind areas need to come into attainment for the downwind areas of
Metropolitan Washington, DC and Greater Connecticut to attain the
standard.
---------------------------------------------------------------------------

\1,2\ Because the D.C. Circuit stayed the obligation of States
to submit plans by 13 months, the court also extended by 13 months
the date by which sources must implement the necessary controls.
---------------------------------------------------------------------------

Comment 11: The section 182(j)(2) ``but for'' standard applies to
intrastate transport. An area must demonstrate that it would have
accomplished attainment but for the failure of other areas to implement
sufficient controls. The policy is vague, and fails to establish clear
standards for a showing of transport. The ``affected by transport''
standard is unclear.
Response 11: EPA is not constrained by the section 182(j)(2)
standard. This section is limited in application to single
nonattainment areas that are located in more than one state, and does
not address transport coming into an area from another, separate area.
Our determinations in the SIP call were clear, and the modeling that
resulted from the SIP call effort showed that there were significant
impacts from upwind areas on the downwind areas, no matter whether one
used as a standard the ``but for,'' ``significant contribution'' or
``affected by transport'' formulation. Congress intended that an upwind
area that significantly contributes to a downwind area's nonattainment
problem should bear responsibility for that pollution. The modeling
shows that significant contributions are made by the upwind areas to
the downwind areas seeking attainment date extensions. EPA still
believes that Congress would not have intended to impose the burden on
downwind areas for an upwind area's contribution.
Comment 12: Transport is already incorporated into each area's
section 181 design value and thus is assumed in setting the projected
attainment date. Congress understood transport resulted in elevated
design values, but did not authorize classifications to take into
account transport, and provided for reclassification by operation of
law based on air quality. In section 181(a)(1), Congress directed that
ozone nonattainment areas be placed within certain classifications
based solely on their design values, regardless of transport. Congress
understood that many areas were classified as moderate or severe at
least in part because of ozone transport, but did not grant EPA
discretion to take such transport into account when establishing
initial classifications under the Act. Why does EPA believe so strongly
that its approach is consistent with congressional intent, given
congress's refusal to consider transport in establishing the initial
classifications and in light of sections 181(b)(2) and 182(i)?
Response 12: The fact that the provisions governing the initial
classification process expressly take transport into account in a
specific way--see section 181(a)(4)--does not mean that EPA is
precluded from taking transport into account when providing for an
attainment date extension based on transport, prior to invoking the
reclassification provisions. See EPA's Response to Comment 1. By
providing for an extension of the attainment date, EPA is effectuating
Congressional intent that the transport relief provisions have a chance
to take effect before EPA has an obligation to determine whether the
area has attained for purposes of triggering the reclassification
provisions.
Comment 13: EPA has previously concluded that reclassification is
not a means of penalizing an area, but a means of providing additional
reductions that will benefit public health. EPA rejected the notion
that bump-up is a penalty when it reclassified the Phoenix, Arizona
area from moderate to serious. There, EPA said:

The classification structure of the Act is a clear statement of
Congress's belief that the later attainment deadlines afforded
higher-classified and reclassified areas require compensating
increases in the stringency of controls. The reclassification
provisions of the Clean Air Act are a reasonable mechanism to assure
continued progress toward attainment of the health-based ambient air
quality standards when areas miss their attainment deadlines and are
not punitive.

Final Rule, 62 Fed. Reg. 60001, 60003 (Nov. 6, 1997). Phoenix NFR. Why
has EPA changed its mind about the functions of reclassification?
Response 13: EPA has not changed its mind about the function of the
reclassification provision where the issue of transport is not
presented. In the context of Phoenix, a reclassification not involving
transport, EPA made the response cited by commenter, and noted that the
reclassification provision was not intended to be punitive. This view
is consistent with the position that EPA takes here, where the
circumstances are quite different from the non-transport
reclassification context. In the absence of transport, an area that
fails to attain by its attainment date, may still fairly be held
accountable for controlling local pollution, and be granted a longer
attainment deadline in return for more stringent controls. Under these
circumstances, applying the reclassification provisions is not
punitive. But in the circumstances EPA and the states confront here,
the local area is not responsible for pollution that interferes with
its ability to meet the standard. In such a case, to trigger
reclassification would impose on the area the responsibility and costs
for pollution beyond its control, and would indeed be punitive. To
avoid such a result, and to effectuate Congressional

[[Page 599]]

intent, EPA has interpreted the Act to authorize an attainment date
extension.
Comment 14: Congress directly considered and rejected EPA's
interpretation of its attainment date extension authority during the
Clean Air Act Amendments of 1990. During debate, Senator Kasten
expressed concern about the proposed legislation's provisions
concerning the ``issue of downwind ozone nonattainment.'' He noted that
pollution from Chicago affected southeastern Wisconsin, but described
``the difficulty this poses is that the Nation's most polluted urban
areas are given a much more generous timetable for meeting air-quality
standards. Chicago will have 5 more years to meet air-quality standards
than these Wisconsin counties will have.'' Senator Kasten then noted
that because of Chicago's longer attainment date, it was likely that
the Wisconsin counties ``will be found in violation of the Clean Air
Act because of actions taking place outside of their jurisdiction in an
upwind State.'' The commenter claims that Senator Kasten introduced an
amendment which provided, among other things, for an attainment date
extension for the downwind area until the upwind nonattainment area
achieved emission reductions. S. Comm. On Envt. And Pub. Works, A
Legislative History of the Clean Air Act Amendments of 1990, pp. 4954-
55 (1993). The commenter claims that ``the amendment, was, of course,
rejected.'' Thus the commenter argues that Congress, although it
addressed ozone transport in sections 176A and 184, declined to alter
the requirements of section 181, even though it was aware of the
problem that EPA seeks to solve with its attainment date extension
policy.
Response 14: There is no evidence that the amendment discussed by
Senator Kasten was ever debated, considered, or voted upon. Commenter
cites no support for the proposition that it was considered and
rejected. Thus no inferences can be drawn from the fact that the
amendment was not embodied in the statute. Moreover, even if the
amendment had been considered and rejected, it differed from and went
so far beyond the attainment date extension EPA is applying here as to
not be probative of Congressional intent with respect to EPA's current
interpretation of the Act. Among other things, it would have provided
for a new and separate Ozone Transport Region, and would have provided
for different obligations and consequences for downwind areas than what
is contained in EPA's current interpretation of the attainment date
extension policy. Legislative History at 4954-56.
Comment 15: The EPA policy is an illegal expansion of the 1994
overwhelming transport policy. Now the upwind area need not be a
nonattainment area with a later attainment date, as long as it is an
upwind area in another state that significantly contributes to
nonattainment in the downwind area. Also, the new policy would allow
attainment even later than attainment for the upwind area if the date
for the NOX SIP Call reductions is later. Where the upwind
area is in attainment or where its attainment date is earlier than the
NOX SIP Call reductions, then an extension cannot be
justified as necessary to reconcile the transport provisions with
section 181(a). There is no justification for applying the policy where
the upwind area is in attainment, or is in nonattainment but has air
quality meeting the NAAQS, or where it is in nonattainment but has an
attainment date earlier than the extension proposed.
Response 15: The policy is not an illegal expansion of the
overwhelming transport policy, but an appropriate interpretation of the
provisions of the Clean Air Act in order to fulfill Congressional
intent. EPA's current articulation of the attainment date extension
policy reflects the considerable advances in understanding and
allocating responsibility for transport that have occurred since the
formulation of the Overwhelming Transport Policy. These advances have
resulted from the work on ozone transport included in, among other
efforts, the OTAG, SIP call, and area modeling programs. EPA thus
regards the attainment date extension policy as superseding the
Overwhelming Transport Policy. See EPA's earlier responses. The policy
is not being applied here so as solely to involve upwind attainment
areas, or upwind areas with earlier attainment dates. Upwind attainment
areas with deficient SIPs have still been found to contribute
significantly to downwind nonattainment. The SIP call involves a
statewide area that may include attainment and nonattainment areas that
have been found to contribute significantly to downwind nonattainment.
Comment 16: Downwind areas should be required to implement, not
just adopt, all required measures before becoming eligible for an
extension. Modeling is imprecise and an area might be able to attain if
they implement all required measures, which should already have been
implemented prior to the original attainment date. A state could have
timely submitted all the provisions for control of local pollution as
required by sections 182(b)(1)(A)(i), 182(c)(2), and 172(c)(1)
providing for the full extent of local reductions that it was in the
state's power to require.
Response 16: In granting an attainment date extension for an area,
EPA has determined that upwind reductions are necessary to help the
area reach attainment. Thus, requiring all local reductions to be
implemented prior to the time that upwind reductions are achieved would
not accelerate attainment. Nonetheless, EPA has required that local
reductions be implemented as expeditiously as practicable. See EPA's
Guidance 61 FR 14441 (March 25, 1999).
Comment 17: EPA's allegation that local measures ``will become
superfluous once upwind areas reduce their contribution to the
pollution problem,'' 64 Fed. Reg. 14444, is mistaken. First, the
measures will produce public health benefits during the period prior to
implementation of upwind reductions, and second the Act independently
requires all areas to ``implement all reasonably available control
measures as expeditiously as practicable,'' 172(c)(1), regardless of
what reductions are expected from upwind areas. EPA should not allow
downwind areas to postpone implementing local measures until upwind
reductions are achieved. This extension is unlawful, and, because
unexplained, arbitrary and capricious.
Response 17: EPA disagrees with the commenter's characterization of
EPA's actions. EPA is in fact requiring downwind areas to implement the
local control measures required under the classification as
expeditiously as practicable, but no later than the time the upwind
reductions are achieved. See EPA's Guidance, supra. To obtain an
extension the area must have provided that it will implement all
adopted measures as expeditiously as practicable, but no later than the
date by which the upwind reductions needed for attainment will be
achieved. See also response to Comment 16, above. No measures are being
postponed as a result of the areas being granted a later attainment
deadlines. None of these areas have delayed or postponed the
effectiveness of measures because their attainment date is being
extended. The states are enforcing their attainment measures as
expeditiously as practicable. Thus EPA's interpretation is not
unexplained, arbitrary, nor capricious. As EPA has explained, it seeks
to reconcile and coordinate the

[[Page 600]]

responsibilities of upwind and downwind areas to work together to
achieve attainment. However, as discussed elsewhere, EPA has applied
the section 172(c)(1) RACM requirement to these areas.
Comment 18: EPA is excusing downwind areas from the requirement
that nonattainment SIPs must provide for attainment of the NAAQS as
provided in sections 182(b)(1)(A)(i), 182(c)(2)(A), 172(c)(1), and is
also excusing them from the requirement that they implement all
reasonably available control measures as expeditiously as practicable,
regardless of the reductions required for attainment. EPA's attempt to
lessen these obligations is unlawful and, because unexplained,
arbitrary and capricious.
Response 18: EPA is not excusing downwind areas from the
requirement that they submit SIPs providing for attainment. Nor is EPA
excusing downwind areas from the RACM requirement. EPA's interpretation
does not exclude what is necessary for attainment; rather, a measure is
RACM if it is needed for attainment. EPA is enforcing this requirement,
but allowing the downwind state to take into account the control
contribution of upwind areas that Congress envisioned, and that the
commenters themselves acknowledge is embodied in Clean Air Act
provisions, in determining the applicable attainment date. EPA is also
requiring that the states implement reasonable control measures as
expeditiously as practicable. See EPA's Responses to other comments.
Comment 19: EPA's policy cannot be defended as a reconciliation of
section 181(a) with the Act's anti-transport provisions. Under a proper
interpretation of the Act, (1) upwind states' SIPs would ensure that
the upwind areas' pollution contributing to NAAQS violations in
downwind areas would be controlled, no later than the downwind areas'
attainment date, (2) upwind areas would attain locally as expeditiously
as practicable but no later than the date prescribed by section
181(a)(1) for the upwind area, and (3) downwind areas would attain
locally ``as expeditiously as practicable but not later than the
applicable date prescribed in section 181(a)(1). This reading gives
effect to all of the relevant statutory provisions.
Response 19: The commenter concedes that under a proper
interpretation of the Act, upwind states' SIPs would ensure that upwind
areas' pollution contributing to violations in downwind areas would be
controlled, prior to the downwind area's attainment date. But in the
circumstances actually confronting EPA and the states, as EPA has
explained in prior responses, it was not possible, given the state of
knowledge of regional ozone transport, to control upwind transport
prior to the original downwind attainment dates set forth in section
181(a)(1). Thus, in order to allow the upwind areas to fulfill their
responsibility under the Act and to avoid imposing on the downwind area
a burden Congress did not intend, EPA proposed interpreting the Act to
adjust the downwind attainment deadlines, the very interpretation that
the commenter rejects as unnecessary. By adjusting the attainment date
to allow the upwind and downwind areas to carry out the statutory
allocation of responsibility that is acknowledged by the commenter, EPA
indeed is reconciling the Act and rendering a proper interpretation.
Comment 20: No extension should be granted unless the area is as
small as possible. The basis for transport should not be OTAG modeling,
since better data is available.
Response 20: The boundaries for serious nonattainment areas were
established by operation of law (CAA section 107(d)(4)). The modeling
done by OTAG and by EPA in the SIP call and the local modeling done in
connection with the attainment demonstrations represents the best
available modeling.
2. Comments Received on 12/16/99 Proposals
Comment 1: The SIP submittals for Springfield, Greater Connecticut
and Metropolitan D.C. do not contain substantive additional measures to
reduce the state's ground level ozone problem. EPA cannot approve the
attainment submittal because, among other reasons, it does not provide
for attainment ``as expeditiously as practicable,'' as required by
Section 181(a) of the CAA. Both the attainment submittal and the
proposed rule simply assert that the states, acting alone, cannot
achieve attainment, either in 1999 or 2007. Neither the state nor EPA
explores the question of what can the state can do, with the help of
specified upwind emission reductions, to achieve attainment as
expeditiously as practicable. There is no showing that the State could
not achieve attainment in 2003 through a combination of local and state
measures and the NOX SIP Call; we only know that the
NOX SIP Call is not likely to produce attainment by 2003
without additional local reductions. The SIPs do not meet the
requirements of the CAA to provide for attainment as expeditiously as
practicable and/or no later than November 15, 1999. States have made no
attempt to provide for attainment as soon as possible. Because they do
not meet the CAAs requirements for timely attainment, EPA must
disapprove them.
Response 1: Congress did not intend for the states to be
responsible for achieving attainment, acting alone, when upwind areas
are transporting pollution that contributes to their nonattainment
problem. EPA has determined that, under the attainment date extension,
the states will attain the standard as expeditiously as practicable.
The basis for this determination, and EPA's findings that the area is
affected by transport from upwind areas, is discussed extensively in
section II.A.1. EPA has determined that even with the attainment date
extension, no reasonably available control measures would advance the
attainment date. See other Responses to Comments in sections II. A and
II. E.
Comment 2: The state's SIP does not contain adequate contingency
measures as required by Section 172(c)(9) of the CAA. Such measures are
especially important in a case such as this, where a substantial
portion of the emission reductions relied on are assumed to occur well
into the future, and well beyond the statutory attainment date.
Response 2: Although no measures have been specifically designated
as contingency measures, EPA has found that measures that could
reasonably constitute appropriate contingency measures are already
contained in the SIP or exist in promulgated Federal regulations. See
discussion of contingency measures in section II. L below.
Comment 3: Even assuming the Transport Guidance is consistent with
the Act, the states' attainment submittals do not meet the requirements
and/or preconditions necessary to secure adequate emissions reductions
from in-state sources. For example, CT and MA could secure further
NOX reductions from power plants and other stationary
sources through implementation of RACT on additional stationary
sources. The States could secure additional reductions through a diesel
inspection and maintenance program.
Response 3: EPA believes that a diesel I/M program may have some
potential for emission reductions. At this time, however, there is
insufficient information available about the program to determine
whether I/M would be economically or technologically feasible. Also,
the test protocols are not sufficiently developed to enable EPA to
determine the magnitude of reductions possible, and thus whether the

[[Page 601]]

program's emission reductions would advance the attainment date. In its
other Responses to Comments, EPA has explained and supported its
conclusions that the states have adopted and will implement as
expeditiously as practicable the measures necessary to secure adequate
emissions reductions from in-state sources. No additional RACM is
required for these areas.
Comment 4: The States have failed to timely pursue administrative
avenues for states to seek redress for transport problems: through a
section 126 petition and a section 110 SIP call. CT and MA did not file
section 126 petitions until the summer of 1997. Even if EPA's transport
Guidance were lawful, it should not be applied except as a matter of
last resort--the downwind area must have identified and committed to
all necessary local measures and exhausted its administrative remedies
in a timely fashion to secure all necessary upwind reductions. The
States have failed to do that and have waited too long. They want to
wait until upwind reductions bring them into attainment without making
any additional emission reductions of their own. This is not in keeping
with the attainment provisions and schedules in the CAA.
Response 4: EPA disagrees with the commenter that the States have
waited too long to seek relief. As set forth in detail in section II.
A.1, the States and EPA have worked for years to solve the transport
problem, and were unable to obtain adequate redress for transported
pollution until the culmination of the OTAG effort. EPA finds that the
States were not dilatory in their efforts to pursue relief from
transported pollution; relief was not available until regional
transport could be analyzed and responsibility for remediation
appropriately apportioned. These effort took years, and was more
prolonged than Congress, EPA, or the states had anticipated. See EPA's
discussion of the history of the efforts to address transport in
section II. A.1. The States have not failed to pursue any remedies as
they became meaningful and available. Nor does EPA agree that its
attainment date extension allows the States to wait for upwind
reductions without making local emission reductions. EPA's policy is
predicated upon an equitable allocation of responsibility between
upwind and downwind areas, and explicitly requires the downwind areas
to adopt and implement local controls as expeditiously as practicable.
Comment 5: The states have failed to implement all available
control measures and have not demonstrated that attainment is
impracticable due to pollutant transport. The states have failed to
meet the requirement of EPA's transport policy that the states adopt
all local measures required under the area's current classification.
Among other things, the Washington, DC area states have failed to adopt
NOX RACT programs that meet all applicable requirements of
the Act and EPA guidance.
Response 5: EPA disagrees with the commenter's contention that the
states being granted attainment date extensions have not satisfied the
criterion of adopting required local measures. EPA finds that the
states have fulfilled their responsibility with respect to having
adopted required local measures. With respect to contingency measures,
EPA has determined that measures that can be reasonably construed to
function as contingency measures are already contained in the areas'
SIPs. See further discussion of the contingency measure requirement in
other Responses to Comments. With respect to Washington, DC and
Massachusetts, the areas have adopted and EPA has found approvable all
other local measures that are required under their current
classification, including NOX RACT. EPA has further found
that the states have or will implement required local measures as
expeditiously as practicable. With respect to Connecticut, the state
has adopted and EPA has approved all measures required under its
current classification except with respect to certain aspects of its
new source review (NSR) program. Connecticut's nonattainment area NSR
program is the one Clean Air Act measure required under the state's
classification that EPA has not yet approved as meeting all the
requirements of the Act. Nevertheless, EPA has determined that
Connecticut's NSR program substantially addresses the Act's
requirements and provides a sufficient basis for EPA to apply its
attainment date extension policy. The Connecticut NSR program imposes
all the Act's requirements on new and modified sources of air pollution
for those sources covered by the state's program, including the lowest
achievable emissions rate technology standard and emissions offsets
consistent with the classification under the Act of the state's two
ozone nonattainment areas. In addition, the state's NSR program
captures the correct universe of new sources covered by the Act's
requirements. The reason Connecticut's program does fully meet all the
Act's requirements is that the state's formula for capturing modified
sources of air pollution in the program differs from the federal
requirements in one respect. EPA's federal NSR regulations generally
require that modifications be measured by comparing the actual
emissions of the existing facility with the potential emissions of the
modified facility. Connecticut's regulations compare the potential
emissions of the existing facility with the potential emissions of the
modified facility. On the other hand, Connecticut's program is more
rigorous than EPA's regulations in measuring a modification in so far
as the state's program does not allow for ``netting'' at a source to
avoid being treated as a modification. Federal regulations would allow
an increase in emissions at an existing source to be balanced against
contemporaneous emissions decreases elsewhere at the source to avoid
NSR, while Connecticut's NSR program does not. On balance, EPA has
concluded that the state's NSR program substantially addresses this
Clean Air Act requirement for the purposes of granting an attainment
date extension under EPA's policy.
EPA thus concludes that substantial compliance with the NSR program
and approval of all remaining required measures constitutes substantial
compliance with the criterion that the state adopt all measures
required under Connecticut's current classification. EPA has further
found that it will implement these measures as expeditiously as
practicable. Thus, EPA believes that the states have fulfilled their
responsibility to satisfy the requirements of their current
classification, and that, under these circumstances, Congress would not
have intended them to be reclassified for failure to attain.
The sufficiency of the Washington, DC area States' NOX
RACT rules is discussed extensively in responses to other comments
elsewhere in this notice.
Comment 6: The states have not shown that they have committed to
implement all local measures necessary to secure adequate emissions
reductions from in-state sources. They have not shown that a
combination of local reductions and upwind reductions will achieve
attainment by their extended dates.
Response 6: EPA has found that the states have demonstrated
attainment through a combination of upwind and local measures. See
other EPA responses and discussion of the attainment demonstration.
Secondly, although the states theoretically could always secure more
reductions through additional local measures, Congress did not intend
that the downwind states compensate for the upwind states failure to
control

[[Page 602]]

transported pollution. Having met the RACM requirements and controlled
for local pollutants, the downwind area should not be required to
secure additional emissions reductions in order to offset emissions
from upwind sources. As EPA has discussed elsewhere in its responses,
the States have committed to implement all measures necessary to secure
adequate emissions from in-state sources.
Comment 7: The DC Circuit stated in American Trucking Ass'n v EPA,
175 F.3d 1027 (D.C. Cir. 1999) that EPA ``is precluded from enforcing a
revised primary ozone NAAQS other than in accordance with the
classifications, attainment dates, and control measures set out in
Subpart 2.'' This means that EPA cannot ignore the attainment dates in
Subpart 2.
Response 7: The opinion cited concerns EPA's authority to implement
a revised 0.08 ppm 8-hour standard not the standard at issue here--the
one-hour 0.12 ppm NAAQS. Regarding EPA's belief that the provisions in
Subpart 2 of the Act govern implementation of the one-hour standard,
EPA is not ignoring the attainment dates in Subpart 2. EPA is
interpreting the provisions of Subpart 2 to allow EPA to extend the
attainment deadlines in accordance with Congressional intent and using
means set forth in the provisions of Subpart 2. Thus EPA is properly
implementing the one-hour standard.
Comment 8: Each serious area plan on its face shows that the
control measures described therein will not by themselves produce
attainment at any point, and clearly not by l999. EPA's reliance on SIP
call reductions is particularly unjustified in the DC Area, given that
Virginia is challenging EPA's authority to require those very
reductions. EPA cannot grant credit for SIP call reductions when the
SIP call has been judicially stayed.
Response 8: As EPA has explained elsewhere in its responses,
Congress did not intend for a downwind area that is affected by
transport to be responsible for pollution generated outside its
borders. The stay of the SIP call has been vacated and the SIP call has
been upheld. The court lifted its stay and states are 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.
Comment 9: The SIPs fail to provide for attainment as expeditiously
as practicable even though this is a serious area where a specific
attainment deadline has passed. Furthermore, the States have not even
evaluated the possibility of attaining sooner than their extended
attainment dates. The SIPs must be disapproved by EPA since they do not
meet the CAA's basic requirements for timely attainment nor do they
consider the possibility of providing for earlier attainment even if
the attainment date extension were permissible.
Response 9: EPA shows in its other Responses, the SIPs provide for
attainment as expeditiously as practicable, and the States have shown
that they qualify for an attainment date extension due to transport.
EPA evaluated the reductions required for attainment from both the
upwind and downwind areas, and determined that the attainment dates
were as expeditious as practicable. See also Responses 11 and 12 below.
Comment 10: This not a situation where the states have adopted all
available measures and still show nonattainment due solely to
transport. The states have refused to even identify the levels of VOC
and NOX emissions that would be consistent with attainment
in the absence of NOX reductions that would be required by
the NOX SIP Call. Nor do the plans state the level of
emission reductions that would be needed to produce attainment in the
absence of upwind reductions. EPA cannot rationally find that
transported NOX renders attainment impracticable in the
serious areas, when the states have neither quantified the reductions
needed locally to attain in the absence of transport reductions, nor
shown that such reductions are unachievable through adoption of
additional state and local control measures.
Response 10: EPA in its Responses has provided an extensive
analysis of the role of transport in downwind nonattainment for the
serious areas. In the NOX SIP Call, EPA concluded that ``EPA
believes that available modeling analyses demonstrate that upwind
reductions are necessary to help downwind areas come into attainment.''
63 FR 57404 (October 27, 1998). These downwind areas included the areas
being granted attainment date extensions here. The DC Circuit upheld
EPA's conclusion in Michigan versus EPA, 213 F.3d 663 (D.C. Cir. 2000).
The SIP call and the modeling done by the states support the conclusion
that the affected areas cannot attain without upwind reductions.
Congress intended that upwind areas be responsible for pollution that
interferes with downwind nonattainment, while at the same time
requiring that downwind areas be accountable for locally generated
emissions. The Clean Air Act reflects Congressional intent that
downwind areas not be compelled to compensate for lack of upwind
controls through the adoption of additional state and local control
measures, as commenter suggests. EPA disagrees with commenter's
suggestion that the downwind areas must show that no further local
reductions are achievable before relying on upwind areas to shoulder
responsibility for the pollution they generate. EPA finds that a
reading of the Clean Air Act shows that Congress did not intend for
downwind areas to be forced to impose additional local controls to
offset significant pollution contributions from upwind areas, before
seeking relief.
Comment 11: EPA has not demonstrated that Metropolitan Washington,
DC would attain but for transport. To the contrary, episode-specific
data shows that the second highest ozone exceedance recorded last
summer occurred on a day on which air parcels originated in Northern
Virginia. The EPA has offered no rational basis for granting a longer
transport-related extension to the Metropolitan Washington, DC area
than to Massachusetts.
Response 11: Strong evidence indicates that the Washington, DC
nonattainment area is impacted by transport from outside the area and
cannot attain without upwind reductions. Sensitivity modeling which
applies additional local controls to the Baltimore nonattainment area
indicates reducing levels of ozone and its precursors in the Baltimore
nonattainment area reduces ozone levels in the Washington, DC
nonattainment area. A more focused analysis of days when exceedances
occur in the Washington, DC nonattainment area shows that under
stagnant meteorological conditions the Washington, DC and Baltimore
areas ultimately share the same air mass and mixing occurs throughout
the CMSA as is evidenced by the strong correlation between high ozone
concentrations in each of these areas (less than 40 miles apart) during
stagnation events. Because air can be transported from Baltimore to
Washington, DC within 24 hours and a portion of the DC exceedances
occur on days when winds are from the north, including Baltimore, high
ozone in Baltimore has the potential to cause exceedances in
Washington, DC.
NOX SIP Call and local attainment modeling for the
Washington, DC and Baltimore nonattainment areas show that the
Washington, DC nonattainment area will need controls not only local to
the Washington, DC nonattainment area

[[Page 603]]

but from upwind areas, especially Baltimore, MD. Local modeling for
1999 relies heavily on the NOX SIP Call reductions and the
local controls in the Baltimore area, some of which will not be
implemented until 2005 (i.e, 2005 boundary conditions were used that
reflect the NOX SIP Call reductions in addition to the
Baltimore area SIP controls). It has been clearly demonstrated that,
until the Baltimore area implements local controls and comes into
attainment, high ozone and precursor emissions from the Baltimore
nonattainment area have the potential to cause exceedances in the
Washington, DC nonattainment area.
Comment 12: EPA has not shown that the attainment date extension
for Connecticut is justified due to transport.
Response 12: There is strong evidence to support the premise that
the Greater Connecticut nonattainment area is impacted by transport
from outside the state, especially New York; and cannot attain without
upwind reductions. Sensitivity modeling which removes all emissions
from Connecticut indicate transported levels of ozone and its
precursors alone generate exceedances in the state of Connecticut. A
more focused analysis of days when exceedances occur in Connecticut
shows that the majority of these days occur when winds are coming from
the Southwest and thus carry NOX and ozone from the New York
City metropolitan area and points further west and south.
NOX SIP Call and local attainment modeling for the New York
and Greater Connecticut nonattainment areas show that the Greater
Connecticut nonattainment area will need controls not only local to the
Greater Connecticut nonattainment area but from upwind States,
especially New York. Local modeling for 2007 relies heavily on the
NOX SIP Call reductions (upwind and within the modeling
domain) as well as controls being implemented in the New York
nonattainment area. It has been clearly demonstrated that, until the
New York nonattainment area implements local controls and comes into
attainment, high ozone and precursor emissions from the New York
nonattainment area have the potential to cause exceedances in the
Greater Connecticut nonattainment area.
Comment 13: The Plan fails to demonstrate emission reductions of 3
percent per year over each three year period after 1999 until
attainment. Assuming a 2005 attainment date, the plan must provide for
a nine percent reduction in VOC and/or NOX remissions by
2002 and another 9 percent between 2002 and 2005. The states have not
attempted to demonstrate compliance with these requirements, and EPA
has not proposed to find that they have been met. EPA has no authority
to waive the statutory mandate for three per cent annual reductions.
Emission reductions in upwind states do not waive the statutory
requirement for 3 percent annual emission reductions within the
downwind nonattainment area.
Response 13: EPA's guidance did not interpret the period of time
after granting the attainment date extension based on transport as
requiring additional rate of progress increments from the downwind
area, since we determined that the reason the area had not attained was
due to upwind transport. Therefore it would be unreasonable to lock the
downwind area into fixed progress requirement reductions from local
sources, when the combination of local reductions with upwind area
source emission reductions is what will bring the area into attainment.
In any event, to the extent that it should be determined otherwise, and
that any ROP required should be imposed on the downwind area, this
requirement would not attach until EPA grants the attainment date
extension and provides the area with a later attainment date. Since the
requirement was not previously due, fulfilling the requirement, if any
is deemed to exist, is not a condition of receiving the attainment date
extension.
Comment 14: EPA has no legal authority to extend the one-hour
attainment date. Such extension is unlawful and unwise. Under the
explicit provisions of Section 181(a)(1) of the Act, the states are
required to attain the one-hour ozone standard as expeditiously as
practicable, but no later than November 15, 1999. EPA cannot create
exemptions from this requirement.
Response 14: EPA has responded extensively to issues pertaining to
the legality of the attainment date extension in its March 1999
responses, above.

B. Attainment Demonstrations--Weight of Evidence

Comment: The weight of evidence approach does not demonstrate
attainment or meet CAA requirements for a modeled attainment
demonstration. Commenters added several criticisms of various technical
aspects of the weight of evidence approach, including certain specific
applications of the approach to particular attainment demonstrations.
These comments are discussed in the following response.
Response: Under section 182(c)(2) and (d) of the CAA, serious and
severe ozone nonattainment areas were required to submit by November
15, 1994, demonstrations of how they would attain the 1-hour standard.
Section 182(c)(2)(A) provides that ``[t]his attainment demonstration
must be based on photochemical grid modeling or any other analytical
method determined by the Administrator, in the Administrator's
discretion, to be at least as effective.'' 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, 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).
The flexibility granted to EPA under section 182(c)(2)(A) is
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). However, 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 51
App. W section 6.2.1.a. The modeling guidance discusses the data
requirements and operating procedures, as well as interpretation of
model

[[Page 604]]

results as they relate to the attainment demonstration. This provision
references guidance published in 1991, but EPA envisioned 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 use both the photochemical grid model, and additional analytical
methods approved by EPA.
---------------------------------------------------------------------------

\3\ The August 12, 1996 version of ``Appendix W to 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.
---------------------------------------------------------------------------

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).\4\
---------------------------------------------------------------------------

\4\ Guidance on the Use Of Modeled Results to Demonstrate
Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

In 1996, EPA issued guidance; \5\ to update the 1991 guidance
referenced in 40 CFR 50 App. W, to make the modeled attainment test
more closely reflect the form of the NAAQS (i.e., the statistical test
described above), to consider the area's ozone design value and the
meteorological conditions accompanying observed exceedances, and to
allow consideration of other evidence to address uncertainties in the
modeling databases and application. When the 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. The EPA's
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 (WOE) determination. Under a WOE
determination, the state can rely on, and EPA will consider in addition
to the results of the modeled attainment test, other factors such as
other modeled output (e.g., changes in the predicted frequency and
pervasiveness of 1-hour ozone NAAQS exceedances, and predicted change
in the ozone design value); 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.
---------------------------------------------------------------------------

\5\ Ibid.
---------------------------------------------------------------------------

In 1999, EPA issued additional guidance \6\ 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. Therefore, it is appropriate for EPA, when making a
determination that a control strategy will provide for attainment, to
determine whether or not the model predicted future design value is
expected to be at or below the level of the standard. Since the form of
the 1-hour 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 EPA's 1999 guidance
uses the highest measured design value from all sites in the
nonattainment area for each of three years. \7\ 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 three yearly design values (highest across
the area) are averaged to account for annual fluctuations in
meteorology. 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. Modeling results also show that emission control
strategies designed to reduce areas of peak ozone concentrations
generally result in similar ozone reductions in all core areas of the
modeling domain, thereby providing some assurance of attainment at all
monitors.
---------------------------------------------------------------------------

\6\ ``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. November
1999. Web site: http://www.epa.gov/ttn/scram.
\7\ A commenter criticized the 1999 guidance as flawed on
grounds that it allows the averaging of 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. This
has the effect of allowing lower air quality concentrations to be
averaged against higher concentrations thus reducing the total
emission reduction needed to attain at the higher site. The
commenter's concern is misplaced. EPA relies on this averaging only
for purposes of determining one component, i.e.--the amount of
additional emission reductions not modeled--of the WOE
determination. 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.
---------------------------------------------------------------------------

In the event that the attainment year design value is above the
standard, the 1999 guidance provides a method for identifying
additional emission reductions, not modeled, which at a minimum provide
an estimated attainment year design value at the level of the standard.
This step uses a locally derived factor which assumes a linear
relationship between ozone and the precursors. Although a commenter
criticized this technique for estimating ambient improvement because it
does not incorporate complete modeling of the additional emissions
reductions, the regulations do not mandate nor does EPA guidance
suggest that States must model all control measures being implemented.
Moreover, a component of this technique--the estimation of future
design value, should be considered a model predicted estimate.
Therefore, results from this technique are an extension of
``photochemical grid'' modeling and are consistent with Section
182(c)(2)(A). Also, a commenter believes EPA has not provided
sufficient opportunity to evaluate the calculations

[[Page 605]]

used to estimate additional emission reductions. EPA provided a full
60-day period for comment on all aspects of the proposed rule. EPA has
received several comments on the technical aspects of the approach and
the results of its application, as discussed above and in the responses
to the individual SIP's.
Commenter states, application of the method of attainment analysis
in the December 16, 1999 guidance will yield a lower control estimate
than if we relied entirely on reducing maximum predictions in every
grid cell to less than or equal to 124 ppb on every modeled day.
However, this approach may overestimate needed controls (e.g., the form
of the standard allows up to 3 exceedances in 3 years in every grid
cell; and if the model over predicts observed concentrations, predicted
controls may also be overestimated, etc.). In recognition of this EPA
has considered other evidence to make these determinations, as
described above through the weight of evidence determination.
When reviewing a SIP, the EPA must make a reasonable determination
that the control measures adopted more likely than not will lead to
attainment. Under the WOE determination, EPA has made these
determinations based on all of the information presented by the States
and available to EPA. The information considered includes model results
for the majority of the control measures. Though all measures were not
modeled, EPA reviewed the model's response to changes in emissions as
well as observed air quality changes to evaluate the impact of a few
additional measures, not modeled. EPA's decision was further
strengthened by each State's commitment to check progress towards
attainment in 2003 and to adopt additional measures, if the anticipated
progress is not being made.
A commenter further criticized EPA's technique for estimating the
ambient impact of additional emissions reductions not modeled on
grounds that EPA employed a rollback modeling technique that, according
to the commenter, is precluded under EPA regulations. The commenter
explained that 40 CFR 51 App. W section 6.2.1.e. provides,
``Proportional (rollback/forward) modeling is not an acceptable
procedure for evaluating ozone control strategies.'' Section 14.0 of
appendix W 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.'' Under this approach if 20% improvement in ozone is
needed for the area to reach attainment, it is assumed a 20% reduction
in VOC would be required. There was no approach for identifying
NOX reductions. The ``proportional rollback'' approach is a
purely empirically/mathematically derived relationship, and is not what
EPA did. The prohibition in Appendix W 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. For the demonstrations
under proposal, EPA used a locally derived (as determined by the model
and/or observed changes in air quality) ratio of change in emissions to
change in ozone to estimate additional emission reductions to achieve
an additional increment of ambient improvement in ozone. This did
assume a linear relationship between the precursors and ozone for a
small amount of ozone improvement. EPA has generally relied on
photochemical modeling to evaluate the attainment demonstrations and
their control strategies, and has used locally derived adjustment
factors as a component to estimate the extent to which additional
emissions reductions--not the core control strategies--would reduce
ozone levels and thereby strengthen the weight of evidence test. This
limited use of adjustment factors is more technically sound than the
unacceptable use of proportional rollback. The limited use of
adjustment factors is more practical in light of the uncertainty in the
modeling; the resources and time required to perform additional
modeling; and the requirement that areas perform a progress check by
the end of 2003.
Contrary to concerns expressed by a commenter, EPA did not err by
modifying the modeling requirements without first proposing to do so.
Section 3.0 of appendix W states, ``It should not be construed that the
preferred models identified here are the only models available for
relating emissions to air quality.'' Section 3.2.2 of Appendix W
further provides that the ``determination of acceptability of a model
is a Regional Office responsibility. Where the Regional Administrator
finds that an alternative model is more appropriate than a preferred
model, that model may be used subject to the recommendations in
appendix W. This finding will normally result from a determination that
(1) a preferred air quality model is not appropriate for the particular
application; or (2) a more appropriate model or analytical procedure is
available and is applicable.'' Therefore, EPA does have the discretion
to identify a more appropriate analytical procedure without undergoing
rulemaking on updates to Appendix W. Also, as discussed above, by
reference to the modeling guidance, Appendix W was designed to allow
changes in the predictive tools and data bases without undergoing
additional rulemaking. In any event, the EPA is taking comment during
the SIP rulemaking process on the application of its guidance.
A commenter also expressed concern that EPA applied unacceptably
broad discretion in fashioning and applying the WOE determinations. EPA
disagrees. The WOE determinations are made on a case-by-case basis. EPA
has approved attainment demonstrations based on WOE determinations,
generally with a requirement for additional reductions not modeled,
only when the photochemical modeling provides a basis for believing
that the SIP controls will achieve substantial ozone reductions, if not
attainment levels. The fact that the WOE factors are incremental and
differ between demonstrations, leads EPA to conclude these
determinations may be made on a case-by-case basis, without hard-and-
fast guidelines. Moreover, EPA believes that the WOE approach is
bounded by the strength of the various factors that may be applied. The
commenter added, as an example, EPA's application of the WOE approach
to the Washington, DC attainment demonstration where modeling showing
an ozone level (as adjusted) of 142 ppb was compared to the acceptable
upper limit of 137 ppb. The commenter observed that EPA adjusted the
modeled prediction on average by a factor of 19% to account for model
over prediction, and stated that such an adjustment was not
appropriate. In EPA's view, the 19% over prediction that underlies the
142 ppb level is only a rough approximation of the extent of modeling
uncertainty. In EPA's view, consideration of model performance
(specifically, a bias to under- or over-predict ozone levels) is one
way to assess modeling uncertainty. To further address uncertainty, EPA
applied the 1999 guidance to estimate the future design, in the same
manner as applied to all of the other attainment demonstrations
received. Both the assessment of model performance and the estimated
future design value were used in the WOE determination.\8\
---------------------------------------------------------------------------

\8\ Observing that for the attainment demonstration for the
Washington, D.C. area, EPA reduced modeled ozone values by 19% to
account for model overprediction, a commenter criticized this
technique as lacking technical justification. EPA guidance
recommends assessment of model performance (both over- and under-
prediction) as one of the factors affecting the model results. In
general performance measures that fall within EPA recommended ranges
are considered as an indication that the model is performing
acceptably. For the Washington, D.C. area, EPA explained how
performance was more closely reviewed and used as part of the WOE.
The technique is described in ``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,''
November 30, 1999. The modeled peak ozone results generally
correlated (in geographic proximity) with the monitored peak ozone
emissions (and the modeled plume generally correlated (in geographic
proximity) with the observed ozone plume), except that the peak
modeled ozone levels averaged approximately 19-20% higher than the
peak monitored levels. Modeling uncertainties (including, for
example, the non-linearity of the modeling) lead EPA to conclude
that adjusting each modeled peak by the 19% average over-prediction
was at least as sensible as adjusting each modeled peak by an amount
that corresponds to that modeled peak's relationship to the
monitored ozone value in the same vicinity.

---------------------------------------------------------------------------

[[Page 606]]

The commenter also complained that EPA has applied the WOE
determinations to adjust modeling results only when those results
indicate nonattainment, and not when they indicate attainment. WOE is
not used to adjust model results. WOE is additional analysis that is
reviewed when there is reason to question the attainment demonstration.
For the current demonstrations under proposal, EPA's decision to
approve the demonstrations relied not only on the modeling, but other
WOE, as well. For example, EPA considered current air quality, model
performance (over- as well as under-prediction), number of episode
days, model predicted future design values, and results from the
regional modeling for the NOX SIP Call, where applicable.
For a given attainment demonstration any one of these elements could
have indicated the area may not attain. But collectively the
information supported EPA's decision. EPA has applied WOE
determinations to all of the current demonstrations under proposal,
although except for the Chicago and Milwaukee attainment
demonstrations, the modeling results submitted do not pass the
recommended ``modeled attainment test.'' Reference the individual
proposals for how WOE was applied in each case. These determinations
were made based on EPA's best understanding of the problem and relied
on a qualitative assessment as well as quantitative assessments of the
available information. In some cases, EPA believed the demonstration of
attainment was not conclusive, and in these cases EPA made the
determination that additional emission reductions were needed to
strengthen the demonstration.
The commenter further criticized EPA's application of the WOE
determination on grounds that EPA ignores evidence indicating that
continued nonattainment is likely, such as, according to the commenter,
monitoring data indicate that ozone levels in many cities during 1999
continue to exceed the NAAQS by margins as wide or wider than those
predicted by the UAM model. EPA did consider the monitoring data along
with other information in these determinations. When reviewing the
monitoring data, EPA considered other factors. For example, high
monitoring values may have occurred for many reasons including,
fluctuations due to changes in meteorology and lack of emission
reductions. The 1999 monitor values do not reflect several control
programs, both local and the regional which are scheduled for
implementation in the next several years. And the 1999 meteorology in
the Northeast was such that July 1999 was one of the warmest (ranked
9th) ever experienced since 1895.\9\ In addition to the heat, the
middle and southern portions of the Northeast were also drier than
average during this month. This information supports EPA's belief that
the high exceedances observed in 1999 are not likely to reoccur
frequent enough to cause a violation, once the controls adopted in
these SIP's are implemented. There is little evidence to support the
statement that ozone levels in many cities during 1999 continue to
exceed the NAAQS by margins as wide or wider than those predicted by
the UAM. Since areas did not model 1999 ozone levels using 1999
meteorology and 1999 emissions which reflect reductions anticipated by
control measures, that are or will be approved into the SIP, there is
no way to determine how the UAM predictions for 1999 compare to the
1999 air quality. Therefore, we cannot determine whether or not the
monitor values exceed the NAAQS by a wider margin than the UAM
predictions for 1999. In summary, there is little evidence to support
the conclusion that high exceedances in 1999 will continue to occur
after adopted control measures are implemented.
---------------------------------------------------------------------------

\9\ http://www.ncdc.noaa.gov/ol/climate/research/1999/
perspectives.html and ``Regional Haze and Visibility in the
Northeast U.S.''; NESCAUM at http://www.nescaum.org/pdf/
pubslist.pdf.
---------------------------------------------------------------------------

In addition, the commenter argued that in applying the WOE
determinations, EPA ignored factors showing that the SIPs under-predict
future emissions, and the commenter included as examples certain mobile
source emissions sub-inventories. EPA did not ignore possible under-
prediction in mobile emissions. EPA is presently evaluating mobile
source emissions data as part of an effort to update the computer model
for estimating mobile source emissions. EPA is considering various
changes to the model, and is not prepared to conclude at this time that
the net effect of all these various changes would be to increase or
decrease emissions estimates. For attainment demonstration SIPs that
rely on the Tier 2/Sulfur program for attainment or otherwise (i.e.,
reflect these programs in their motor vehicle emissions budgets),
States have committed to revise their motor vehicle emissions budgets
after the MOBILE6 model is released. EPA will work with States on a
case-by-case basis if the new emission estimates raise issues about the
sufficiency of the attainment demonstration. Corrections, if needed,
will be made in time for the progress check in 2003 and if the analysis
indicates additional measures are needed, EPA will take the appropriate
action.

C. Reliance on NOX SIP Call and Tier 2 Modeling

Comment: Given the uncertainty surrounding the NOX SIP
Call at the time of EPA's proposals on the attainment demonstrations,
there is no basis for the conclusion reached by EPA that states should
assume implementation of the NOX SIP Call, or rely on it as
a part of their demonstrations. The commenter references modeling data
which demonstrates that the benefits of imposing NOX SIP
Call controls are limited to areas near the sources controlled.
The commenter adds that there are errors in the emissions used for
the NOX SIP Call Supplemental Notice (SNPR). The commenter
believes that because of inaccurate inventories the modeling analyses,
estimates of air quality based on that modeling, and estimates of EPA's
Tier II tailpipe emissions reduction program not modeled in the
demonstrations, are also flawed.
Response: In Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), the
court upheld the NOX SIP Call on most issues, although a
subsequent order of the court delays the implementation date to no
later than May 31, 2004. EPA is moving forward to implement those
portions of the rule that have been upheld, ensuring that most--if not
all--of the emission reductions from the NOX SIP Call
assumed by the States in their 1-hour

[[Page 607]]

ozone NAAQS attainment demonstrations will occur. EPA's modeling to
determine the region-wide impacts of the NOX SIP Call
clearly shows that regional transport of ozone and its precursors is
impacting nonattainment areas several states away, and this analysis
was upheld by the court. Therefore, it is appropriate for States to
assume implementation of the NOX SIP Call.
The EPA considered many factors when making these determinations.
No single piece of information was determinant. It is important to
recognize that the regional modeling for the Tier II rule was not used
in the 1-hour attainment demonstrations and that the SNPR modeling was
only one of several factors considered. EPA's decision was based on a
qualitative assessment of the information presented. Information
reviewed included results of the modeled attainment test, along with
other supplemental information such as other modeled outputs (e.g.,
changes in the predicted frequency and pervasiveness of 1-hour ozone
NAAQS exceedances and predicted changes in the ozone design value);
actual observed air quality trends (i.e. analyses of monitored air
quality data); estimated emissions trends; base year model performance;
SNPR derived future design values; the responsiveness of the model
predictions to further controls; and for some of the demonstrations
estimates of additional emission reductions. EPA recognizes that any
and all of this information has some degree of uncertainty, including
the SNPR modeling. EPA recognizes that these uncertainties should be
considered when making these determinations and that is why EPA
considered other factors. EPA's weight of evidence determinations are
not affected by error in any one piece of the information.

D. Impact of the NOX SIP Call on Attainment of the 1-Hour
NAAQS

Comment: One commenter states that Massachusetts's NOX
emissions interfere with attainment in downwind areas of New Hampshire
and Maine and that Connecticut's NOX emissions interfere
with attainment in downwind areas of Massachusetts, New Hampshire and
Maine. Therefore, the commenter states that significant additional
NOX reductions are needed for these areas to attain the 1-
hour ozone NAAQS. The commenter also remarked that neither
Massachusetts nor Connecticut has committed to adequate emission
control strategies.
Response: In the final rule for the NOX SIP Call (63 FR
57394, October 27, 1998), EPA indicated that Massachusetts contains
sources that contribute significantly to 1-hour nonattainment in Maine
and New Hampshire, and that Connecticut contains sources that
contribute significantly to 1-hour nonattainment in Massachusetts,
Maine and New Hampshire. The NOX SIP Call rule specified the
emissions that Connecticut and Massachusetts were required to regulate
to address their significant contribution to nonattainment in these
downwind States. Massachusetts submitted a rule meeting the
NOX SIP Call on November 19, 1999, and EPA proposed approval
of this rule on July 12, 2000 (65 FR 42907). Similarly, Connecticut
submitted a rule in response to the NOX SIP Call on October
1, 1999, and EPA proposed approval on July 12, 2000 (65 FR 42900). On
October 20, 2000, the Regional Administrator signed notices fully
approving these rules, and publication is expected soon. These rules
have addressed Massachusetts's and Connecticut's contribution to ozone
nonattainment in downwind areas. In addition, recent air quality
monitoring data for 1998-2000, which have been quality assured,
indicate that the Portland, ME, and Portsmouth-Dover-Rochester, NH,
ozone nonattainment areas no longer violate the 1-hour ozone NAAQS.

E. RACM (Including Transportation Control Measures)

1. Comments on December 16, 1999 Proposal
Comment: Several commenters have stated that there is no evidence
in several states that they have adopted reasonably available control
measures (RACM) or that the SIPs have provided for attainment as
expeditiously as practicable. Specifically, the lack of Transportation
Control Measures (TCMs) was cited in several comments, but potential
stationary source controls were also covered. One commenter stated that
mobile source emission budgets in the plans are by definition
inadequate because the SIPs do not demonstrate timely attainment or
contain the emissions reductions required for all RACM. That commenter
claims that EPA may not find adequate a motor vehicle emission budget
(MVEB) that is derived from a SIP that is inadequate for the purpose
for which it is submitted. The commenter alleges that none of the MVEBs
submitted by the states that EPA is considering for adequacy is
consistent with either the level of emissions achieved by
implementation of all RACM; nor are they derived from SIPs that provide
for attainment. Some commenters stated that for measures that are not
adopted into the SIP, the State must provide a justification for why
they were determined to not be RACM.
Response: The EPA reviewed the SIP submittals for the four serious
areas (Greater Connecticut, Western Massachusetts (Springfield);
Metropolitan Washington, D.C.; and Atlanta, Georgia \10\) and
determined that they did not include sufficient documentation
concerning available RACM measures. Therefore, EPA reviewed numerous
potential RACM measures. As part of this review, EPA developed an
analysis, which has been placed in the dockets for the SIPs for the
serious areas to help address this issue: ``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; and Office of
Transportation and Air Quality, Ann Arbor, MI 48105. October 12, 2000.
An electronic version of EPA's RACM analysis cited above can be
downloaded at www.epa.gov/ttn/rto under ``What's New.'' The EPA
published a notice of availability of this material on October 16, 2000
(65 FR 61134) and provided initially a 15 day public comment period on
the material. The EPA extended the public comment period on this
supplemental material for an additional 15 days in a notice published
November 2, 2000 (65 FR 65818) and corrected on November 9, 2000 (65 FR
67319).
---------------------------------------------------------------------------

\10\ These responses to comments will not address Atlanta; that
will be addressed in the future when EPA takes final rulemaking
action on the Atlanta SIP.
---------------------------------------------------------------------------

Section 172(c)(1) of the Act requires SIPs to contain RACM and
provides for areas to attain as expeditiously as practicable. EPA has
previously provided guidance interpreting the requirements of
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its
interpretation that potentially available measures that would not
advance the attainment date for an area would not be considered RACM.
EPA also indicated in that guidance that states should consider all
potentially available measures to determine whether they were
reasonably available for implementation in the area, and whether they
would advance the attainment date. Further, states should indicate in
their SIP submittals whether measures considered were reasonably
available or not, and if measures are reasonably available they must be
adopted as RACM. Finally, EPA indicated that

[[Page 608]]

states could reject measures as not being RACM because they would not
advance the attainment date, would cause substantial widespread and
long-term adverse impacts, or would be economically or technologically
infeasible. The EPA also issued a recent memorandum re-confirming the
principles in the earlier guidance, entitled, ``Guidance on the
Reasonably Available Control Measures (RACM) Requirement and Attainment
Demonstration Submissions for Ozone Nonattainment Areas.'' John S.
Seitz, Director, Office of Air Quality Planning and Standards. November
30, 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
The EPA's RACM analysis cited above evaluated emission levels of
oxides of nitrogen ( NOX) and volatile organic compounds
(VOC) and their relationship to the application of current and
anticipated control measures expected to be implemented in four serious
one-hour ozone nonattainment areas. This analysis was done to determine
if additional RACM are available after adoption of Clean Air Act (Act)
required measures for the four serious ozone nonattainment areas. The
analysis supplemented the December 16, 1999 proposals to approve the 1-
hour O3 NAAQS attainment demonstrations in these areas.
Based on this analysis and other information discussed below, EPA
concluded that additional emission control measures would not advance
the attainment date and therefore do not constitute RACM in three
nonattainment areas: Greater Connecticut; Springfield, Massachusetts;
and Metropolitan Washington. The EPA therefore concludes that the SIPs
for these areas meet the requirement for adopting RACM.
In addition to control measures already implemented locally, each
of the three areas relies in large part on reductions from outside the
nonattainment areas from EPA's NOX SIP Call rule or section
126 rule (65 Fed. Reg. 2674, January 18, 2000) to reach attainment. In
the NOX SIP Call, 63 Fed. Reg. 57356, EPA concluded that
reductions from various upwind states were necessary to provide for
timely attainment in nonattainment areas in various downwind states,
including all four of the nonattainment areas that were the subject of
this analysis. The NOX SIP Call therefore established
requirements for control of sources of significant emissions in all
upwind states. However, these reductions were not slated for full
implementation until May 2003. Further, the United States Court of
Appeals for the District of Columbia Circuit recently ordered that EPA
could not require SIPs to provide for full implementation of the
NOX SIP Call prior to May 2004. Michigan, et al., v. EPA,
D.C. Cir. No. 98-1497, Order of Aug. 30, 2000.\11\
---------------------------------------------------------------------------

\11\ Several States (DE, PA, CT, MA, RI, MD, NY, NJ) have
submitted plans providing for reductions by 2003. EPA has fully
approved three of these plans (CT, MA, RI).
---------------------------------------------------------------------------

The attainment demonstrations for these three serious areas
indicate that the ozone benefit expected to be achieved from regional
NOX reductions (such as the NOX SIP Call) are
substantial. (See the individual attainment demonstrations in the
docket for each of these areas.)
EPA had proposed to approve an attainment date extension beyond the
original attainment date specified in the Clean Air Act (November 1999)
for each of the three serious areas: to 2007 for Greater Connecticut;
to 2003 for Western Massachusetts; and to 2005 for Metropolitan
Washington. The rationale for such extensions is discussed in detail
extensions elsewhere in these responses to comments. Briefly, however,
the extensions are being given mainly due to the fact that these areas
will have to rely on emission reductions from upwind areas. Some of
those upwind reductions will be provided under the NOX SIP
Call rule with compliance in 2004, and from the section 126 rule, with
compliance in 2003. Additional reductions from other nonattainment
areas are relied on by Greater Connecticut and the Metropolitan
Washington, DC areas.
For Greater Connecticut--Greater Connecticut must rely on
reductions from the New York City nonattainment area to reach
attainment. The New York nonattainment area--classified severe--has a
statutory attainment date of as late as 2007. The SIP submitted for New
York City, which EPA has proposed to approve, establishes a 2007
attainment date. It is unlikely that all the emission reductions
necessary to reduce sufficiently upwind emissions to bring Greater
Connecticut into attainment will be obtained until the attainment year
for New York City and the best available evidence indicates that date
will be 2007. EPA's zero out modeling analyses conducted in support of
EPA's NOX SIP Call show that even eliminating all of
Connecticut's emissions does not help Connecticut attain prior to the
time New York City reaches attainment, since the effects of transport
are so significant. (See 64 FR 70343.) Therefore, EPA concludes that
additional emission reductions within Connecticut would not advance the
attainment date for the Greater Connecticut area, and thus that no
additional measures are considered RACM.
For Metropolitan Washington--There is strong evidence to support
the premise that the Washington, DC nonattainment area is impacted by
transport from outside the modeled Washington-Baltimore area and cannot
attain without upwind reductions. The response to comments on the issue
of attainment date extensions for the Metropolitan Washington DC area
provides a detailed discussion of the role of transport from within the
modeling area and we do not repeat that information here. See section
II. A. Based on that information, it has been clearly demonstrated
that, until the Baltimore nonattainment area implements local controls
and comes into attainment, there is the potential for high ozone and
precursor emissions from the Baltimore nonattainment area to cause
exceedances in the Washington, D.C. nonattainment area.
Based on the above, the Metropolitan Washington, DC area must rely
on reductions from outside the nonattainment area to reach attainment.
The Baltimore nonattainment area--classified severe--has a statutory
attainment date of as late as 2005. The SIP submitted for Baltimore,
which EPA has proposed to approve, establishes a 2005 attainment date.
It is unlikely that all the emission reductions necessary to reduce
sufficiently upwind emissions to bring Metropolitan Washington into
attainment will be obtained until the attainment year for Baltimore,
and the best available evidence indicates that date will be 2005.
Therefore, EPA concludes that additional emission reductions within the
Metropolitan Washington, D.C. area would not advance the attainment
date for the area, and thus that no additional measures are considered
RACM.
For Western Massachusetts and Metropolitan Washington:
1. Many of the measures designed to achieve emissions reductions
from within these nonattainment areas--in particular, the regional
NOX reductions--will also not be fully implemented until
just prior to each area's respective attainment date. One could argue
that the local measures needed for attainment in these two areas could
be implemented earlier and advance attainment. Additional reductions
beyond those already provided for in the SIPs for these two areas could
potentially be implemented in the interim period prior to the
reductions from these upwind controls; however, they would only be
needed for

[[Page 609]]

an interim period of time, after which the State could actually replace
them if the State submits a new attainment demonstration showing they
were no longer necessary. The interim implementation of such measures
could likely result in cases where sources would have to install
controls, and then would be relieved of such responsibility, which
could be disruptive. Thus, EPA believes this situation--where the local
controls would only marginally advance attainment--supports a finding
that the additional controls would not be considered RACM.
2. Also, the development of rules for sources in the Western
Massachusetts and Metropolitan Washington nonattainment areas for which
little control information may exist--especially a large number of very
different source categories of small sources--will likely take much
longer than development of rules for source categories for which
control information exists or that comprise a smaller number of larger
sources. The longer the time frame for development of rules by the
State would decrease the possibility that the emission reductions from
the rules would advance the attainment date earlier than would be
achieved from the larger amount of reductions expected from upwind
controls, such as the NOX SIP Call rule and the section 126
rule.
For all three areas--One could also argue that the measures needed
in the upwind area that is affecting the area in question could be
implemented earlier and therefore could result in earlier attainment.
The EPA recognizes that it has not taken final rulemaking on the severe
areas that affect the three serious areas in question (New York for the
Greater Connecticut and Western Massachusetts nonattainment areas, and
Baltimore for the Metropolitan Washington nonattainment area). However,
since EPA must take rulemaking action on the three serious areas at
this time, and because it does not have information to the contrary at
this point, EPA must presume the attainment dates submitted by the
States and for which EPA proposed approval on December 16, 1999, and
therefore presume that emission controls for those severe areas will be
implemented as expeditiously as practicable on a schedule to achieve
those reductions. Because EPA proposed to approve the attainment dates
for the severe areas in question, it is reasonable to assume that the
severe areas cannot implement their measures to achieve attainment any
more expeditiously.
Thus, EPA believes that implementation of additional measures in
the three nonattainment areas will not advance the attainment date,
prior to the time of full implementation of the SIP call and/or the
section 126 rule and, for Greater Connecticut and Metropolitan
Washington, prior to implementation by the upwind area of all local
measures needed to attain by the area's attainment date.
Therefore, EPA concludes, based on the available documentation,
that the reductions from additional control measures will not advance
attainment, and thus none of these potential measures analyzed can be
considered RACM for purposes of section 172(c)(1) for these three areas
for their 1-hour ozone standard attainment demonstration.
Although EPA does not believe that section 172(c)(1) requires
implementation of additional measures for these three serious areas,
this conclusion is not necessarily valid for other areas. For 1-hour
ozone nonattainment areas classified as severe, for instance, some of
which are the ``upwind'' areas referred to in the above responses for
serious areas, such measures may in fact be RACM, and the States in
which such areas are located have a responsibility to perform an
analysis of whether additional measures are RACM. EPA is about to issue
additional guidance concerning the RACM requirement for the severe
areas. In addition, if in the future EPA moves forward to implement
another ozone standard, this RACM analysis would not control what is
RACM for these or any other areas for that other ozone standard.
Also, EPA has long advocated that States consider the kinds of
control measures that the commenters have suggested, and EPA has indeed
provided guidance on those measures. See, e.g., http://www.epa.gov/
otaq/transp.htm. In order to demonstrate that they will attain the 1-
hour ozone NAAQS as expeditiously as practicable, some areas may need
to consider and adopt a number of measures--including the kind that EPA
itself evaluated in the RACM analysis for the three serious areas--that
even collectively do not result in many emission reductions.
Furthermore, EPA encourages areas to implement technically available
and economically feasible measures to achieve emissions reductions in
the short term--even if such measures do not advance the attainment
date--since such measures will likely improve air quality. Also, over
time, emission control measures that may not be RACM now for an area
may ultimately become feasible for the same area due to advances in
control technology or more cost-effective implementation techniques.
Thus, areas should continue to assess the state of control technology
as they make progress toward attainment and consider new control
technologies that may in fact result in more expeditious improvement in
air quality.
Discussion of other factors related to RACM, such as economic and
technological feasibility, are discussed below in responses to comments
on EPA's RACM analysis.
Elsewhere in this response to comments, EPA addresses the issue of
whether the attainment dates are as expeditious as practicable and that
discussion is not repeated here.
EPA previously responded to comments concerning the adequacy of
MVEBs when EPA took final action determining the budgets adequate and
does not address those issues again here. The responses are found at
http://www.epa.gov/oms/transp/conform/pastsips.htm .
Comments on the supplemental material were received from several
commenters and are addressed below.
Note that the response to the comment related to severe areas will
be provided at the time EPA takes final rulemaking action on those
areas.
2. Comments on October 16, 2000 Notice of Availability
Comment 1: EPA cannot invent rationales for the states: EPA's role
is limited to reviewing what the states have submitted, and approving
or disapproving it. 42 U.S.C. 7410(k)(3); Riverside Cement Co. v.
Thomas, 843 F.2d 1246 (9th Cir. 1988). EPA ``may either accept or
reject what the state proposes; but EPA may not take a portion of what
the state proposes and amend the proposal ad libitum.'' Id. If states
are going to reject control measures, their decision to do so and the
rationale therefore must be subject to notice and hearing at the state
and local level.
Response 1: The SIP submittals from the States for the Metropolitan
Washington, Western Massachusetts, and the Greater Connecticut
nonattainment areas contained no measures adopted for the sole purpose
of satisfying the RACM requirement. The public did have a chance to
comment at the State level on the fact that there were no additional
measures. The EPA interpreted this lack of additional measures as an
indication that the State did not identify any additional measures as
meeting the RACM requirement under section 172(c)(1). The EPA did not
amend the SIP; EPA supplemented the rationale

[[Page 610]]

and approved the SIP with an explanation of why it was acceptable for
the State to identify no additional measures to meet the RACM
requirement of the Clean Air Act.
The commenter cites Riverside Cement for the proposition that EPA
cannot perform an analysis of whether the State's plan complies with
the CAA's RACM requirement. The EPA believes that the holding of that
case is inapplicable to these facts. In Riverside Cement, EPA approved
a control requirement establishing an emission limit into the SIP and
disregarded a contemporaneously-submitted contingency that would allow
the State to modify the emission limit. Thus, the court concluded that
EPA ``amended'' the State proposal by approving into the SIP something
different than what the State had intended. 843 F.2d at 1248. In the
present circumstances, EPA did not attempt to modify a substantive
control requirement of the submitted plan. Rather, EPA performed
additional analyses to determine if the plan, as submitted, fulfilled
the substantive RACM requirement of the Act. As a general matter, EPA
believes that States should perform their own analyses of RACM (as well
as submitting other supporting documents for the choices they make).
The statute places primary responsibility on the States to submit plans
that meet the Act's requirements. However, nothing in the Act precludes
EPA from performing those analyses, and the Act clearly provides that
EPA must determine whether the State's submission meets the Act's
requirements. Under that authority, EPA believes that it is
appropriate, though not mandated, that EPA perform independent analyses
to determine whether a submission meets the requirements of the Act.
The EPA has not attempted to modify the State's submission by either
adding or deleting a substantive element of the submitted plan. By
virtue of the supplemental RACM analysis, EPA has concluded that the
State's initial submission contains control measures sufficient to meet
the RACM requirement.
Comment 2 (a): Inappropriate grounds for rejecting RACM. The
commenter claims that EPA's bases for rejecting measures as RACM are
inappropriate considerations: (a) The measures are ``likely to require
an intensive and costly effort for numerous small area sources''; or
(b) the measures ``do not advance the attainment dates'' for the four
areas. 65 Fed. Reg. at 61134. Neither of these grounds are legally or
rationally sufficient bases for rejecting control measures.
Response 2(a): The EPA's approach toward the RACM requirement is
grounded in the language of the Clean Air Act. Section 172(c)(1) states
that a SIP for a nonattainment area must meet the following
requirement, ``In general.--Such plan provisions shall provide for the
implementation of all reasonably available control measures as
expeditiously as practicable (including such reductions in emissions
from existing sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available control technology) and
shall provide for attainment of the national primary ambient air
quality standards.'' [Emphasis added.] The EPA interprets this language
as tying the RACM requirement to the requirement for attainment of the
national primary ambient air quality standard. The Act provides that
the attainment date shall be ``as expeditiously as practicable but no
later than * * *'' the deadlines specified in the Act. EPA believes
that the use of the same terminology in conjunction with the RACM
requirement serves the purpose of specifying RACM as the way of
expediting attainment of the NAAQS in advance of the deadline specified
in the Act. As stated in the ``General Preamble'' (57 FR 13498 at
13560, April 16, 1992), ``The EPA interprets this requirement to impose
a duty on all nonattainment areas to consider all available control
measures and to adopt and implement such measures as are reasonably
available for implementation in the area as components of the area's
attainment demonstration.'' [Emphasis added.] In other words, because
of the construction of the RACM language in the CAA, EPA does not view
the RACM requirement as separate from the attainment demonstration
requirement. Therefore, EPA believes that the Act supports its
interpretation that measures may be determined to not be RACM if they
do not advance the attainment date. In addition, EPA believes that it
would not be reasonable to require implementation of measures that
would not in fact advance attainment. See 57 FR 13560.
The term ``reasonably available control measure'' is not actually
defined in the definitions in the Act. Therefore, the EPA
interpretation that potential measures may be determined not to be RACM
if they require an intensive and costly effort for numerous small area
sources is based on the common sense meaning of the phrase,
``reasonably available.'' A measure that is reasonably available is one
that is technologically and economically feasible and that can be
readily implemented. Ready implemention also includes consideration of
whether emissions from small sources are relatively small and whether
the administrative burden, to the States and regulated entities, of
controlling such sources was likely to be considerable. As stated in
the General Preamble, EPA believes that States can reject potential
measures based on local conditions including cost. 57 FR 13561.
Also, the development of rules for a large number of very different
source categories of small sources for which little control information
may exist will likely take much longer than development of rules for
source categories for which control information exists or that comprise
a smaller number of larger sources. The longer the time frame for
development of rules by the State would decrease the possibility that
the emission reductions from the rules in the three nonattainment areas
would advance the attainment date earlier than would be achieved from
the larger amount of reductions expected from upwind controls, such as
from the NOX SIP Call and controls from severe areas with
later statutory attainment dates.
Comment 2(b): EPA's approach also illegally assumes that the
attainment dates for these areas can be extended beyond November 15,
1999 via the Agency's downwind transport policy.
Response 2(b): As noted above, EPA concluded that RACM is linked in
the language of the Clean Air Act to the attainment date. We elsewhere
respond to comments that object to EPA's approval of attainment date
extensions and do not restate those responses here. See Section II. A.
Once an attainment date is set for an area, an analysis can then be
made to determine whether any additional measures that may potentially
be RACM would advance that attainment date.
Comment 3: Failure to quantify reductions needed to attain sooner:
Even if advancement of the attainment date were a relevant test for
RACM, EPA has failed to rationally justify its claim that additional
control measures would not meet that test. To begin with, neither the
Agency nor the states have quantified in a manner consistent with EPA
rules and guidance the emission reductions that would be needed to
attain the standard prior to achievement of emission reductions
required under the NOX SIP Call.
Response 3: Elsewhere in this response to comments on the proposed
approval of the 1-hour ozone SIPs, EPA addresses the issue of the
attainment date extension. See section II. A. EPA has therein justified
the position that areas affected by transport may need

[[Page 611]]

additional time to attain--and in some cases may need an extension out
to either the date the NOX SIP Call will be implemented or
the attainment date of an upwind area if it cannot attain without the
reductions from the upwind area. In the case of Greater Connecticut, it
would be futile to perform analyses of whether additional emission
reductions in the nonattainment area--whether RACM or beyond RACM--
would advance the attainment date when it is already demonstrated
through modeling that the area cannot attain sooner than the upwind New
York City nonattainment area that needs to control. In addition, all
local measures needed for attainment are already being implemented. EPA
considers this implementation as expeditious as practicable. In the
case of Western Massachusetts, all local measures are already being
implemented also. EPA also considers this implementation as expeditious
as practicable. Issues concerned with timing of implementation of
additional measures are also discussed above for the three serious
areas.
For all three areas, EPA's section 126 rule requires compliance
with covered emission reductions in 2003, which EPA considers as
expeditiously as practicable for those sources. Additional discussion
of the Metropolitan Washington nonattainment area appears below.
Comment 4: Inadequate RACM analysis: EPA's RACM analysis is grossly
inadequate in several key respects.
Comment 4(a): EPA's analysis fails to provide the technical basis
and calculations by which it developed its emission reduction estimates
for various measures. EPA failed to provide citations to the literature
regarding estimates of emission reductions for various TCMs. EPA failed
to specify the level of implementation assumed for some of the TCMs in
the analysis.
Response 4(a): EPA's RACM analysis (found at www.epa.gov/ttn/rto)
did provide the technical basis and calculations for its emission
reduction estimates for controls possible for the source categories in
the emission inventory. The commenter apparently believes EPA's
analysis is insufficient, however. The technical basis for the analyses
and the assumptions used in the calculation of estimated emission
reductions were derived from a review of the literature on the
implementation and effectiveness of TCM's.\12\ The TCMs evaluated
depend on the level of implementation. Implementation variables,
representing levels of implementation effort, are implicit in the range
of effectiveness for each category of TCM. EPA does not believe it is
necessary, or even possible, to evaluate every explicit variation of
TCM's in order to adequately determine if it is reasonably available.
EPA believes that using the midpoint level of effectiveness represents
a level of implementation effort that is not so high as to be
economically infeasible, nor so low as to be ineffective.
---------------------------------------------------------------------------

\12\ Transportation Control Meausres: State Implementation Plan
guidance, US EPA 1992; Transportation Control Measure Information
Documents, US EPA 1992; Costs and Effectiveness of Transportation
Control Meausres: A Review and Analysis of the Literature, National
Association of Regional Councils 1994.
---------------------------------------------------------------------------

Comment 4(b): EPA's analysis looks at only a small universe of
potential measures, and does not evaluate all of the measures
identified in public comment and other sources.
Response 4(b): EPA's RACM analysis was intended to address all
potential categories of stationary and mobile sources that could
provide additional emission reductions that might be considered RACM.
The EPA believes that all identified measures were included in the
categories addressed in the analysis.
Comment 4(c): EPA's analysis also completely fails to consider the
additional benefits likely from combined implementation of
complementary TCMS e.g., parking management along with transit
improvements. It is arbitrary and irrational for EPA to assume that
these measures can and will be implemented in complete isolation from
one another.
Response 4(c): EPA recognizes that many control measures--
particularly TCMS--are more effective if done in conjunction with
others. EPA maintains, however, that it would be impossible to analyze
a seeming infinite set of combinations of measures for possible
benefits. The EPA's analysis did look at all measures in various
categories and concluded that as a whole these categories of measures
would not advance attainment or would otherwise not be reasonably
available.
Comment 5: Stationary sources: The analysis of potential emission
reductions from additional stationary source measures is flawed in
several key respects.
Comment 5(a): First, EPA arbitrarily excluded from any
consideration the bottom 20% of the stationary source categories.
Response 5(a): EPA does not consider this exclusion arbitrary,
since it was designed to eliminate from consideration controls on a
number of source categories that were not expected to yield many
emission reductions. The EPA believed that controls on categories with
very low emission reduction potential would not constitute RACM. The
fact that none of the top 80 percent of the categories considered for
additional controls yielded measures that EPA considered RACM for the
areas in question validates EPA's decision not to analyze separately
the bottom 20 percent of the categories, which would cumulatively have
achieved fewer emission reductions. Therefore, EPA concludes that
control measures applied to the bottom 20 percent of the categories are
also not RACM.
Comment 5(b): Second, EPA did not consider potential additional
controls on electric generating units and point source combustion
sources.
Response 5(b): Undoubtedly there are additional controls that could
be placed on electric generating units and point source combustion
sources. However, EPA believes that the implementation of the RACT
requirements in nonattainment areas and, more importantly, the
implementation of the NOX SIP Call in all areas affecting
the nonattainment areas in general provide a level of control that
represents all reasonably available controls for these sources in the
areas in question. The EPA believes that generally, the level of
NOX emissions control required under the NOX SIP
Call for larger sources, including electric generating units and point
source combustion sources, is greater than the level of control
presumed by EPA under the NOX RACT requirement. The
NOX SIP Call is based on a level of highly cost effective
controls, characterized as having a $2000 per ton cost effectiveness or
less (63 FR 57400, October 27, 1998). The presumptive level of RACT
provided in EPA guidance is based on cost effectiveness up to $1300 per
ton (Memorandum of March 16, 1994, from D. Kent Berry re: ``Cost-
Effective Nitrogen Oxides (NOX) Reasonably Available Control
Technology (RACT)''). EPA acknowledges that controls with costs higher
than $2000 per ton are available and may be cost-effective. However,
the control costs do not reflect other concerns regarding
reasonableness of control. EPA received comments that predicted
problems with availability of electrical generation even at the
NOX SIP Call level of control; therefore, in its final
NOX SIP Call rule, EPA included provisions for a
NOX supplement pool to allow more time for some units to
come into compliance and thus minimize potential power availability
problems. At control levels greater than

[[Page 612]]

those in the NOX SIP Call rule, EPA believes the time States
would need to provide for sources to come into compliance while
avoiding power availability problems would be more than the current
amount of time for Western Massachusetts and Metropolitan Washington to
attain. Therefore, EPA had determined that such additional controls do
not constitute RACM.
Comment 5(c): Third, EPA assumes that only a 50% level of control
is achievable for the uncontrolled emissions. This completely
unsupported claim is hard to fathom.
Response 5(c): EPA's long-standing guidance on the RACT requirement
for stationary sources of VOC has generally assumed a presumptive norm
of 81 percent control efficiency; this efficiency was based on the
assumption of a 90 percent capture efficiency and 90 percent control
efficiency of the captured emissions (0.9 X 0.9 = 0.81). However, the
specific VOC RACT control techniques guidelines were developed for
emission sources for which much information about emissions and
controls was available. The RACT rules often apply to smaller sources
as well as to major sources. There is not nearly as much information
available concerning source categories for which RACT guidelines have
not been developed; nor is there information regarding what controls
are appropriate for the smaller sources that are not already subject to
RACT. Therefore, without further information, EPA was hesitant to
assume an 81 percent level of control. EPA therefore chose a 50 percent
level of control for VOC control, which EPA believes is reasonable in
light of our limited knowledge on available controls.
The EPA established guidance to States in complying with the Clean
Air Act's requirements for NOX RACT in the NOX
Supplement to the General Preamble (57 FR 55620, November 25, 1992).
That guidance addressed RACT for major stationary sources of
NOX. Under section 182(b)(2) of the Act, moderate and higher
ozone nonattainment area SIPs--and also SIPs for all areas in the Ozone
Transport Region--were already required to contain provisions for
applying a reasonably available level of control for NOX for
major stationary sources. For NOX emission control for other
sources, when EPA published the NOX SIP Call (63 FR 57402,
October 27, 1998), EPA evaluated other levels of control for categories
of stationary sources that were not included in the highly cost-
effective controls assumed for establishing the level of control
reflected in the Statewide NOX emission budgets in that
rule. The EPA determined that for area sources, additional controls
that were technologically feasible and highly cost-effective could not
be identified. The EPA determined that for small point sources, their
collective emissions were relatively small and the administrative
burden, to the States and regulated entities, of controlling such
sources was likely to be considerable. Nonetheless, for the purpose of
the RACM analysis, EPA did assume a level of control for sources with
potential for control. In light of the lower level of confidence in
information concerning NOX controls on these sources, and
the conclusion concerning cost effectiveness, however, EPA believed it
had to take a more conservative approach, and thus chose a lower level
of control, namely 50 percent. The EPA believes this level is
reasonable in light of these facts.
Comment 6: Transportation Control Measures as RACM: EPA gives
virtually no consideration to the emission reduction benefits of
transportation programs, projects and services contained in adopted
regional transportation plans (RTPs), or that are clearly available for
adoption as part of RTPs adopted for a nonattainment area. In addition,
it is arbitrary and capricious for EPA not to require as RACM economic
incentive measures that are generally available to reduce motor vehicle
emissions in every nonattainment area.
Response 6: EPA's notice of availability of the RACM analysis (65
FR 61134, October 16, 2000) does consider transportation programs,
projects and services that are generally adopted, or available for
inclusion in a nonattainment area's regional transportation plan (RTP)
and Transportation Improvement Program (TIP). The RACM analysis
includes seven broad categories and twenty-seven subcategories of
Transportation Control Measures (TCMs) that represent a range of
programs, projects and services that can be included in RTP's and
TIP's. The inclusion of a TCM in an RTP or TIP does not necessarily
mean that it meets EPA's criteria for RACM and must be included in the
SIP. EPA has concluded that implementation of these TCM's would not
advance the attainment date for the Greater Connecticut, Western
Massachusetts, or Metropolitan Washington nonattainment areas, and
therefore are not considered RACM for purposes of the attainment SIPs
for those three areas.
Some of these TCM's, such as parking cashout, transit subsidies,
and parking pricing, are explicitly economic incentive programs.
Furthermore, these categories of TCMs, as well as most of the others,
could be infinitely differentiated according to criteria, such as the
method of implementation, level of promotional effort or market
penetration, stringency of enforcement, etc. The application of
economic incentives to increase the effectiveness of a TCM is one such
criterion. These implementation variables, representing levels of
implementation effort, are implicit in the range of effectiveness for
each category of TCM. EPA does not believe it is necessary, or even
possible, to evaluate every explicit variation of TCM's in order to
adequately determine if it is reasonably available. EPA believes that
using the midpoint level of effectiveness represents a level of
implementation effort that is not so high as to be economically
infeasible, nor so low as to be ineffective.
Also, there are many important reasons why a state, regional, or
local planning agency might implement TCMs in an integrated traffic
management plan beyond whatever air quality benefits the TCMs might
generate, including preserving open space, water shed protection,
avoiding sprawl, mitigating congestion, and ``smart growth'' planning
generally. So the fact that TCMs are being implemented in certain ozone
nonattainment areas does not necessarily lead one to the conclusion
that those TCMs represent mandatory RACM measures when they are
analyzed primarily for the purpose of determining whether they would
advance the ozone attainment date.
Comment 7: Washington, D.C. area analysis: Having refused to
consider a wide range of measures for this area, and understating the
potential benefits of others, EPA asserts that available measures would
not advance the attainment date in Washington because: (a) The area
relies heavily on control of transported emissions and ozone; and (b)
the modeling indicates that NOX reductions are generally
more beneficial in reducing ozone levels, suggesting that the area may
be NOX limited. The first point is truly irrelevant to the
RACM inquiry. Even if the issue is whether additional measures could
advance the attainment date, that inquiry is not informed by whether
the area might attain by 2005 due to NOX SIP Call
reductions, but by whether it could attain sooner than 2005 through
additional local emission reductions. As to the second point, the
modeling does not show that NOX reductions are inherently
more beneficial. They merely show that under some circumstances

[[Page 613]]

generally involving very substantial NOX reductions (e.g.,
60% cuts) NOX reductions might provide greater benefits per
ton. The same model shows that NOX reductions can sometimes
actually lead to increased ozone levels in some cells. Even if the
ozone problem in the Washington area is NOX limited, that
hardly justifies eschewing additional measures; at most it would
suggest focusing more heavily on additional measures for NOX
sources. The commenter also attached a summary of South Coast AQMD
Clean Fleet Rules.
Response 7: The sensitivity analyses that were performed with the
photochemical grid model for the Baltimore-Washington area (see
Attachment 4 of the RACM analysis) showed that, even with smaller
NOX emission reductions (e.g., 30% from the area and mobile
sectors), the ozone benefits that are achieved are substantially
greater than the minor ozone benefits achieved from similar VOC
emission reductions. Therefore, EPA stands by its belief that the
levels of VOC reductions in the Metropolitan Washington, DC area that
could be achieved by additional stationary and mobile source control
measures that are potentially RACM would not improve ozone levels to
the point that would result in advancing the attainment date.
Furthermore, EPA's analysis demonstrated that the source categories
that were available for mobile NOX controls were considered
too limited--even with the area's ability to benefit from
NOX controls--to advance the attainment date.\13\ Also,
EPA's analysis of levels of NOX reductions in the
Metropolitan Washington, DC area that could be achieved by additional
stationary source controls that are potentially RACM would have to come
from a large number of small sources where EPA does not have much
guidance for control, and therefore could be costly to develop.
Therefore, EPA concluded that additional controls on the source
categories evaluated would not be considered RACM. It should be noted
that the modeling was done for a modeling domain encompassing both
Baltimore and Washington. The sensitivity analyses were performed for
the entire area. Baltimore is classified severe with a 2005 attainment
date, whereas the Metropolitan Washington nonattainment area is
classified as a serious area. EPA has proposed to approve an attainment
date extension for the Metropolitan Washington, D.C. area precisely
because the modeling shows that additional controls are needed for the
Washington area to come into attainment--both from outside the modeling
domain, and from within the Baltimore area. Other reasons for why EPA
does not consider additional measures to be RACM for the Metropolitan
Washington, D.C. area are discussed elsewhere in these responses to
comments.
---------------------------------------------------------------------------

\13\ 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; and Office of Transportation and Air
Quality, Ann Arbor, MI 48105. October 12, 2000. p. 6.
---------------------------------------------------------------------------

Comment 8: EPA did not provide sufficient notice and time to permit
adequate comment.
Response 8: In its initial notice of availability of the RACM
analysis (65 FR 61134, October 16, 2000) EPA offered a 15 day comment
period (to October 31, 2000). On November 2, 2000 (65 FR 65818), EPA
extended the comment period an additional 15 days, specifically stating
that this would provide a total of 30 days for public comment.
Unfortunately, that notice was published with a typographical error
that appeared to extend the comment period an additional year and 15
days. Therefore, on November 9, 2000 (65 FR 67319), EPA published a
correction to clearly extend the comment period 15 days from October
31, 2000, to November 15, 2000. EPA believes 30 days is an adequate
period for public comment. The first notice to extend the public
comment period (the November 2, 2000 notice) made it quite clear that
the extension was for only 15 days to provide a total of 30 days for
comment; EPA believes no possible confusion should have resulted from
the fact that the end date of the comment period contained a
typographical error.
Comment 9: EPA is trying to circumvent obligations under 2 Consent
Decrees (MOG vs EPA and NRDC v. Browner).
Response 9: This comment refers to consent decrees filed in two
cases: NRDC v. Browner, No. 99-2976 (D.D.C.) and Midwest Ozone Group v.
EPA, No. 00-1047 (D.D.C.). In NRDC, the consent decree provides that by
November 15, 2000, EPA shall propose a federal implementation plan
(FIP) for the Springfield, Massachusetts; Greater Connecticut; and
Metropolitan Washington, DC nonattainment areas if EPA has not approved
full attainment demonstration SIP for that area. The consent decree for
Midwest Ozone Group is similar, but not identical. It provides that EPA
shall propose federal implementation plans (FIPs) for two of the three
nonattainment areas--Springfield, Massachusetts and Greater
Connecticut--if EPA has not proposed approval of a full attainment
demonstration SIP for that area. The EPA met its obligation under the
Midwest Ozone Group decree when it proposed approval of the full
attainment demonstration SIPs for those two areas on December 16, 1999.
64 FR 70319 and 64 FR 70332. On November 6, 2000, the District Court
granted EPA's unopposed motion to extend the deadline for action under
the NRDC decree until December 15, 2000 for each of the three areas. On
December 7, 2000, the court further extended the date for EPA action
with respect to Springfield until December 22, 2000. The EPA has
complied with the NRDC consent decree with respect to the Greater
Connecticut and Metropolitan Washington, D.C. areas. The appropriate
Regional Administrators signed final rulemaking actions approving the
full attainment demonstration SIPs for those two areas by December 15,
2000. The EPA is on track to comply with the NRDC consent decree for
the Springfield, Massachusetts nonattainment area by December 22, 2000.
Comment 10: Since EPA found that MA and CT failed to conduct an
adequate RACM analysis, EPA must disapprove the SIPs and propose a FIP.
Response 10: Although EPA found that MA and CT failed to conduct an
adequate RACM analysis, EPA believes it does have authority to
supplement the record and conclude that the SIPs for these two areas
meet the RACM requirement of the Act. See above the response to
comment.

F. Reliance on Commitments and State Rules Not Yet Adopted

Comment: Several commenters disagreed with the EPA's proposal to
approve attainment demonstrations and rate-of-progress plans for the
Springfield, Massachusetts, Greater Connecticut, and Metropolitan
Washington, DC ozone nonattainment areas because not all of the
emissions reductions credited in the demonstrations or plans are
supported by legally enforceable limitations adopted and approved by
the state or District 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: The EPA has approved previously, or is approving together
with the attainment demonstrations, all outstanding emission reduction
limitations relied on for attainment for these three areas. Thus, none
of the three areas on which the EPA is

[[Page 614]]

approving have commitments to adopt emission reduction measures in the
future and all emission reductions rules relied on for attainment have
been fully approved by the EPA.

G. Adequacy of Motor Vehicle Emissions Budgets

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. (Conservation Law
Foundation, Environmental Defense Fund and Natural Resources Defense
Council, New York Department of Transportation, New York State
Department of Environmental Conservation, EarthJustice, Southern
Environmental Law Center)
Response: EPA's adequacy process for these SIPs has been completed,
and we have found the motor vehicle emissions budgets in all of these
SIPs to be adequate. We have already responded to any comments related
to adequacy when we issued our adequacy findings, and therefore we are
not listing the individual comments or responding to them here. Our
findings of adequacy and responses to comments can be accessed at
www.epa.gov/otaq/traq (once there, click on the ``conformity'' button).
At the web site, EPA regional contacts are identified.

H. Motor Vehicle Emissions Inventory

Comment: Several commenters stated that the motor vehicle emissions
inventory is not current, particularly with respect to the fleet mix.
Commenters 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. Also, a commenter stated that EPA
and states have not followed a consistent practice in updating SIP
modeling to account for changes in vehicle fleets. For these reasons,
commenters recommend disapproving the SIPs. (Environmental Defense Fund
and Natural Resources Defense Council; EarthJustice; Southern
Environmental Law Center)
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. The Metropolitan Washington, DC Ozone Nonattainment Area SIP is
based on vehicle registration data from 1996, which is the most recent
data available 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 reanalyze
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 are 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 Metropolitan Washington, DC area states to revise the attainment
budgets using MOBILE6.

I. VOC Emission Reductions

Comment: For States that need additional VOC reductions, this
commenter recommends a process to achieve these VOC emission
reductions, which involves the use of HFC-152a (1,1 difluoroethane) as
the blowing agent in manufacturing of polystyrene foam products such as
food trays and egg cartons. HFC-152a could be used instead of
hydrocarbons, a known pollutant, as a blowing agent. Use of HFC-152a,
which is classified as VOC exempt, would eliminate nationwide the
entire 25,000 tons/year of VOC emissions from this industry.
Response: EPA has met with the commenter and has discussed the
technology described by the company to reduce VOC emissions from
polystyrene foam blowing through the use of HFC-152a (1,1
difluoroethane), which is a VOC exempt compound, as a blowing agent.
Since the HFC-152a is VOC exempt, its use would give a VOC reduction
compared to the use of VOCs such a pentane or butane as a blowing
agent. However, EPA has not studied this technology exhaustively. It is
each State's prerogative to specify which measures it will adopt in
order to achieve the additional VOC reductions it needs. In evaluating
the use of HFC-152a, States may want to consider claims that products
made with this blowing agent are comparable in quality to products made
with other blowing agents. Also the question of the over-all long term
environmental effect of encouraging emissions of fluorine compounds
would be relevant to consider. This is a technology which States may
want to consider, but ultimately, the decision of whether to require
this particular technology to achieve the necessary VOC emissions
reductions must be made by each affected State. Finally, EPA notes that
under the significant new alternatives policy (SNAP) program, created
under CAA Sec. 612, EPA has identified acceptable foam blowing agents
many of which are not VOCs (http://www.epa.gov/ozone/snap/index.html).

J. Credit for Measures Not Fully Implemented

Comment: 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 been delayed or weakened.
Response: Architectural and Industrial Maintenance (AIM) Coatings:
On March 22, 1995 EPA issued a memorandum \14\ that provided that
States could claim a 20% 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 20% reduction of nationwide VOC emissions from AIM coatings
categories (63 FR 48855). 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 assumed a 20% 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

[[Page 615]]

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
and that it was appropriate for the States to take credit for those
reductions in their SIPs.
---------------------------------------------------------------------------

\14\ ``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.
---------------------------------------------------------------------------

Autobody Refinish Coatings Rule: Consistent with a November 27,
1994 EPA policy,\15\ many States have claimed a 37% 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% overall nationwide. The 37% emission reduction
from EPA's 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%. However as a
result of the lacquer topcoat exemption added between proposal and
final rule, the reduction is now estimated to be 36% for previously
unregulated areas. Both the District and Virginia claimed 35.7% credit
in their attainment and ROP plans while Maryland claimed 45%. EPA's
best 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. The basis for approving Maryland's
reductions is dealt with in a response to a separate comment
---------------------------------------------------------------------------

\15\ ``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 27, 1994,
John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-
X.
---------------------------------------------------------------------------

Consumer Products Rule: Consistent with a June 22, 1995 EPA
guidance,\16\ States have claimed a 20% 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), published on September 11, 1998, has resulted in a 20%
reduction after the December 10, 1998 compliance date. 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 and that it was
appropriate for the States to take credit for those reductions in their
SIPs.
---------------------------------------------------------------------------

\16\ ``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.
---------------------------------------------------------------------------

K. 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.
Response: State enforcement program elements are contained in SIP
revisions previously approved by EPA under obligations for enforceable
emission limitations set out in section 110 of the Clean Air Act. Once
approved by the EPA, there is no need for states to readopt and
resubmit their enforcement programs with each and every SIP revision
generally required by other sections of the Act.

L. Contingency Measures

Comment: The SIPs for the Metropolitan Washington, D.C. ozone
nonattainment area 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. The lawn/garden control measure that
is included in the SIP for the District of Columbia and indicated as
sufficient for a contingency measure is not currently legally
enforceable, is only episodic in nature, and would not be adopted until
18 months after notice of a milestone failure.
Response: The EPA believes the contingency measure requirements of
sections 172(c)(9) and 182(c)(9) are independent requirements from the
attainment demonstration requirements under sections 172(c)(1) and
182(c)(2)(A) and the rate-of-progress (ROP) requirements under sections
172(c)(2) and 182(c)(2)(B). The contingency measure requirements are to
address the event that an area fails to meet a ROP milestone or fails
to attain the ozone NAAQS by the attainment date established in the
SIP. The contingency measure requirements have no bearing on whether a
state has submitted a SIP that projects attainment of the ozone NAAQS
or the required ROP reductions toward attainment. The attainment or ROP
SIP provides a demonstration that attainment or ROP requirements ought
to be fulfilled, but the contingency measure SIP requirements concern
what is to happen only if attainment or ROP is not actually achieved.
The EPA acknowledges that contingency measures are an independently
required SIP revision, but does not believe that submission of
contingency measures is necessary before EPA may approve an attainment
or ROP SIP. Also see the discussion of contingency measures in the
extension of the attainment date policy section.
The EPA has, however, examined the ROP and attainment SIPs for the
Washington, D.C. nonattainment area.
The Post 1996 ROP and attainment demonstration SIPs for the
Washington, D.C. area do not specify any specific measures as
contingency measures. The EPA is approving the nonattainment
demonstration and ROP plans today. (The plans pertain to the District
and portions of the Commonwealth of Virginia and State of Maryland.)
Approval of the plans without contingency measures is appropriate as
stated above. Furthermore, the EPA notes that there are emission
reductions not relied on or credited in the ROP plan accruing from the
January 1, 2000, implementation of phase 2 of the reformulated gasoline
program, NOX reductions beyond RACT, and other on-road
measures, such as NLEV, and a variety of off-road national emissions
reduction programs. These measures will continue to provide reductions
after 1999. The additional NOX controls and reformulated
gasoline measures alone are estimated to reduce emissions in the area
by 1.7 percent of the VOC base line emissions and 10.5 percent of the
NOX base line emissions by May 2001. Thus, the SIP contains
approved measures consistent with the contingency requirement.
Additionally, the EPA notes that there are emissions reductions not
relied on or credited in the attainment

[[Page 616]]

demonstration SIP accruing from the EPA's Tier II tailpipe standards
and off-road national emission reduction measures. These measures will
continue to provide reductions after November 2005, the attainment date
that EPA is approving for the area. The measures are estimated to
reduce emissions in the area by 2.5 percent of the VOC base line
emissions and 1.7 percent of the NOX base line emissions by
May 2007 (the year following the time by which EPA must determine
whether the area has attained). More details on EPA's contingency
measure analysis are included in the docket for the rulemaking action.
While there is not an approved SIP contingency measure that would apply
if the Washington, D.C. area failed to attain, EPA believes that
existing federally enforceable measures would provide the necessary
substantive relief.
The EPA agrees with the commenter that the lawn/garden measure is
insufficient as a contingency measure. However, the measure is not
critical to meeting the contingency obligation in view of the
reductions generated by the other emission control measures noted
above.

M. Rate of Progress--NOX Substitution

Comment: We received comments that assert the 9% demonstration
assumes that a 1% reduction in NOX emissions is equivalent
in ozone reducing benefit to a 1% reduction in VOC emissions. The
commenters assert 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%
annual cut in VOC emissions. The commenters claim 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% NOX for
1% VOC substitution without proving that a 1% NOX cut will
in fact provide ozone reductions at least equivalent to that resulting
from a 1% VOC cut.
The commenters further assert 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 commenters do not disavow their other comments
that the states must prove the validity of their NOX
substitution ratios as discussed in the summary of their comments in
the preceding paragraph but they claim the 9% demonstration fail to use
the ratio of 1.6 to 1 required by the more recent EPA guidance.
Additionally, the commenters assert that substitutions should not
be allowed because the plan does not demonstrate timely attainment.
Response:
1. NOX Substitution in General
The EPA believes States have the opportunity to substitute
NOX reductions for required VOC reductions under certain
circumstances. The opportunity for NOX substitution
originates in section 182(c)(2)(C) of the CAA which specifically allows
NOX emissions reductions to be substituted for VOC
reductions required under section 182(c)(2)(B) for reasonable further
progress (RFP) also called rate-of-progress (ROP).
EPA issued guidance to the States on how to implement the
NOX substitution provisions for the post-1996 ROP plans in
1993 (Memorandum of December 15, 1993, from John S. Seitz re:
``Transmittal of NOX Substitution Guidance''). The guidance
allows States to substitute NOX emission reductions for VOC
emission reductions if such substitution is consistent with the modeled
attainment demonstration in the SIP. The modeled attainment
demonstration in the SIP establishes the overall reductions of VOC and/
or NOX reductions required for attainment in the attainment
year. The rate of progress plan is basically a tool to phase in
emission reductions between the time the plan is prepared and the
attainment date. To substitute NOX for VOC in post-1996
ROP's, care must be taken to not substitute so much NOX such
that the attainment demonstration is no longer valid. At the extreme
case, in an area for which the attainment demonstration that relies
totally on VOC emission reductions, it would be inconsistent to
substitute NOX for VOC.
The NOX substitution guidance allows substitution on a
percentage basis (i.e., one percent of NOX emissions
reductions for one percent of VOC emissions reductions) and does not
require additional analysis of whether the ozone reduced from the
NOX emission reductions is equivalent to that which would
result from the foregone VOC emission reductions.
It should be noted also that EPA's ``Guidance for Improving Weight
of Evidence Through Identification of Additional Emission Reductions,
Not Modeled'',\17\ references EPA's NOX substitution
guidance for purposes of substitution of NOX reduction for
additional VOC emission reductions identified as needed for attainment.
---------------------------------------------------------------------------

\17\ 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.
November 1999. Available at http://www.epa.gov//tnn.scram/.
---------------------------------------------------------------------------

2. Technical and Practical Reasons for NOX Substitution
Guidance
The modeling performed for attainment demonstration basically
establishes the relationship between emission reductions--either of
VOC, NOX, or both--and ozone reductions. This relationship
is established for the attainment year. As noted above, the modeled
attainment demonstration establishes the overall VOC and/or
NOX emission targets that are consistent with attainment of
the standard at the attainment year. When EPA determines that an
attainment demonstration is approvable, i.e., will likely demonstrate
attainment for the relevant areas, it is making an implicit corollary
conclusion that the mix of VOC and/or NOX control measures
included in the area's attainment demonstration is adequate.
The ROP plan is then used to phase in emission reductions between
the time of plan adoption and the attainment date. EPA does not require
modeling of interim years for the purpose of trying to update the
NOX/VOC/ozone relationship for a number of reasons,
including the following that are provided in the 1993 NOX
substitution guidance:
a. The strong likelihood that optimum ``exchange'' rates vary from
year to year and across a geographic area as an area's emissions
distribution and atmospheric chemistry change over time;
b. Uncertainty in modeling analyses, particularly when attempting
to ascertain responses from small percentage perturbations in
emissions; and
c. Resource limitations associated with modeling specific control
measures during interim years before attainment dates.
The EPA believes these are adequate reasons for maintaining this
guidance for purposes of NOX substitution under the ROP plan
requirements.
In addition, the ``Major Modeling/Air Quality Conclusions'' from
the Ozone Transport and Assessment Group (OTAG) effort, based on
extensive photochemical grid modeling of the Eastern U.S. stated that
regional NOX reductions are effective in producing ozone
benefits, and that the more NOX

[[Page 617]]

reduced, the greater the benefit. [From: ``Summary of Ozone Transport
Assessment Group Recommendations to the U.S. Environmental Protection
Agency as of June 20, 1997.'' Found at: http://www.epa.gov/ttn/
naaqs/ozone/rto/otag/finalrpt/.]
Recognizing that regional NOX reductions are effective
in producing ozone benefits, EPA further encouraged NOX
reductions by allowing States to credit certain regional NOX
emission reductions outside the nonattainment area for purposes of the
ROP plan. See EPA's Interim Implementation Guidance. [Memorandum of
December 29, 1997, from Richard D. Wilson re: ``Guidance for
Implementing the 1-Hour Ozone and Pre-Existing PM\10\ NAAQS.'']
3. Legal Rationale for EPA NOX Substitution Guidance
In addition, EPA still stands behind its legal rationale underlying
the interpretation of ``equivalency'' that appears in the 1993
NOX substitution guidance (see section 4 of that guidance).
In that guidance, the basis for equivalency is the ability of a given
control strategy (i.e., any particular mix of NOX and VOC
emission reductions) to effect attainment of the ozone NAAQS by the
designated attainment year ( NOX substitution guidance at
page 2).'' Further, the NOX emission reductions credited
toward ROP may be limited to the amount of NOX reductions
required in the attainment demonstration; see the discussion and
example above on this matter.
In allowing a combination of NOX and VOC controls or the
substitution of NOX emissions reductions for VOC emissions
reductions, Section 182(c)(2)(C) of the statute states that the
resulting reductions ``in ozone concentrations'' must be ``at least
equivalent'' to that which would result from the 3% VOC reductions
required as a demonstration of RFP under Section 182(c)(2)(B). The
second sentence of Section 182(c)(2)(C) requires EPA to issue guidance
``concerning the conditions under which NOX control may be
substituted for [or combined with] VOC control.'' In particular, the
Agency is authorized to address in the guidance the appropriate amounts
of VOC control and NOX control needed, in combination, ``in
order to maximize the reduction in ozone air pollution.'' Further, the
Act explicitly provides that the guidance may permit RFP demonstrations
that allow a lower percentage of VOC emission reductions as long as
compensating NOX reductions are achieved. In light of the
entire set of language and Congress's evident intent under this
subsection to maximize the opportunity for ozone reductions, EPA
believes that Section 182(c)(2)(C) confers on the Agency the discretion
to select, for purposes of determining equivalent reductions, a
percentage of NOX emission reductions that is reasonably
calculated to achieve both the ozone reduction and attainment progress
goals intended by Congress.
As noted above, when EPA determines that an attainment
demonstration is approvable, it is making an implicit corollary
conclusion that the mix of VOC and/or NOX control measures
included in the area's attainment demonstration is adequate.
EPA disagrees with the comments that EPA's Guidance on the Post-
1996 Rate-of-Progress Plan and Attainment Demonstration (corrected
version as of 2/18/94) requires a different test than EPA's December
15, 1993 NOX Substitution Guidance. In section 4.1 of the
Guidance on the Post-1996 Rate-of-Progress Plan and Attainment
Demonstration, EPA restated the equivalency test set forth in sections
2 and 3 of our December 1993 NOX Substitution Guidance. With
regard to the photochemical grid modeling. section 4.1 of the Guidance
on the Post-1996 Rate-of-Progress Plan and Attainment Demonstration
reads:

Section 182(c)(2)(C) states that actual NOX emission
reductions which occur after 1990 can be used to meet post-1996
emission reduction requirements, provided that such reductions meet the
criteria outlined in EPA's December 15, 1993 NOX
Substitution Guidance. The condition for meeting the rate-of-progress
requirement is that the sum of all creditable VOC and NOX
emission reductions must equal 3 percent per year averaged over each
applicable milestone period. The percent VOC reduction is determined
from the VOC rate-of-progress inventory and the percent NOX
reduction is determined from the NOX rate-of-progress
inventory. In addition, the overall VOC and NOX reductions
must be consistent with the area's modeled attainment demonstration. In
other words, the NOX emission reductions creditable toward
the rate-of-progress plan cannot be greater than the cumulative
reductions dictated by the modeled attainment demonstration.

This portion of the 1994 guidance merely summarizes the guidance
provided in our December 1993 NOX Substitution Guidance.
With regard to the photochemical grid modeling. section 2 of our
December 1993 NOX Substitution Guidance reads:

The provision for NOX substitution recognizes that a
VOC-only control pathway may not be the most effective approach for
effecting attainment in all areas. Consequently, NOX
reductions are placed on a near equal footing with VOC through
substitution. This document establishes two conditions pursuant to
both the substitution and RFP provisions in the Act. The first
condition requires that control strategies incorporating
NOX emission reduction measures must demonstrate that the
ozone NAAQS will be attained within time periods mandated by the
Act. This condition reflects the Title I provision for gridded
photochemical model demonstrations (Section 182(c)).
The second condition, addressed below in Section 3, maintains
the requirement for periodic emission reductions in order to realize
progress toward attainment. Flexibility is introduced by allowing
VOC and NOX reductions rather than VOC reductions alone.
A third condition exists in which the periodic emission reductions
must be consistent with the model attainment demonstration.

In both cases, the guidance refers to the photochemical grid
modeling that is necessary for the modeled attainment demonstration and
that establishes the NOX/VOC/ozone relationship at the
attainment date. The NOX substitution guidance does not
require a modeled demonstration of equivalence for interim period for
the reasons discussed above.
4. January 10, 2000, Guidance on Conformity Budgets in Out-Years
The January 10, 2000 guidance (Memorandum from G.T. Helms to Marcia
Spink re: ``Substitution of Nitrogen Oxide ( NOX) Emission
Reduction in Out-Year Conformity Budgets'') was developed to address a
question related to development of an emissions budget for conformity
purposes well beyond the attainment date of an area. Transportation
planning cycles generally run beyond the attainment year, and a State
may establish a budget for conformity

[[Page 618]]

purposes in those out years beyond the attainment year if it desires
and may substitute NOX for VOC reductions in that out-year
budget. The January 10, 2000 guidance refers to the methodology
contained in ``Guidance for Improving Weight of Evidence Through
Identification of Additional Emissions Reductions, Not Modeled'' (EPA,
November 1999) and was not intended for use in ROP demonstrations; the
methodology was developed for use in strengthening weight of evidence
arguments for attainment demonstrations. The January 10, 2000 guidance
contemplates use of this methodology for establishing conformity
budgets for the out-years of an attainment demonstration, i.e., the
years after the attainment date for which there are no ROP requirements
unless the area fails to attain as determined by the relevant air
quality monitoring data. The guidance may result in NOX
substitution ratios of other than one-to-one, since it is based on the
results of the modeled attainment demonstration. EPA's methodology for
use in strengthening weight of evidence arguments for attainment
demonstrations was intended to be used for calculating small amounts of
emission reductions such that the overall NOX/VOC/ozone
relationship of the modeling used in the attainment demonstration would
not be significantly altered. Likewise, the substitution of
NOX for VOC reductions for purposes of setting an emissions
budget for conformity in the out-years beyond the attainment date would
likely involve relatively small tons/day shifts in the ratio of
NOX to VOC. Thus EPA's methodology would be appropriate to
use for this purpose. It should be noted that this methodology provides
most reliable results when used with the best and most recent data.
Of course, any future emissions budget for a period years after the
projected attainment year has uncertainty. If EPA subsequently finds
that an area is not making sufficient progress toward attainment and
its SIP is inadequate, or if ultimately the area does not attain the
standard by its attainment date, the area will be required to revise
its SIP. At that time, a new modeled attainment demonstration would be
required, together with updated modeling that would re-establish a new
NOX/VOC/ozone relationship.
Furthermore, once an area attains the standard, the State may
request redesignation to attainment. To obtain that redesignation, one
requirement is that the State must submit an approvable air quality
maintenance plan to ensure that the standard will be maintained for at
least a 10-year period. The maintenance plan will establish an out-year
emission budget for conformity based on conditions at the time of
attainment.
5. NOX Substitution in Metropolitan Washington
Based on our review of all the information submitted in the
attainment demonstration, it is the Agency's belief that the ozone
reduction benefits achieved by application of NOX controls
is at least equivalent as that achieved by application of VOC controls.
The modeled attainment demonstration for the Metropolitan
Washington, D.C. area calls for more NOX and VOC emissions
control than the 9 percent post-1996 ROP plan. The ROP plan relies on
NOX substitution, but the substitution rate is consistent
with the attainment demonstration in that it does not provide any more
NOX reductions than called for in the attainment
demonstration. The state's attainment demonstration is based upon
local-scale photochemical grid modeling performed on the Baltimore-
Washington Urban Airshed Modeling (UAM) domain and upon EPA's Regional
Oxidant Modeling (ROM) results. Both EPA's ROM results and the
photochemical grid modeling submitted with the attainment plan show
that significant NOX reductions will contribute to
attainment in the area. The local UAM modeling also shows that
NOX reductions beyond those contained in the Post-1996 plan
continue to provide reductions in ozone concentrations. The local
photochemical grid modeling submitted with the attainment demonstration
contains modeling results that further support the conclusion that on a
ton for ton basis, NOX reductions achieve at least
equivalent changes in ozone concentrations as an equivalent reduction
in VOC emissions.\18\
---------------------------------------------------------------------------

\18\ This incidently is consistent with the intended outcome of
the NOX substitution guidance document, which requires
that substitution be done on the basis of percentage--a 1 percent
reduction in NOX from the 1990 ROP baseline adjusted to
1999 of 667.3 tons/day (6.67 tons/day) will thus likely produce a
greater reduction in ozone than a 1 percent reduction in VOC from
the 1990 ROP baseline adjusted to 1999 of 435.7 tons a day (4.36
tons/day). [Baseline emissions taken from memoranda of August 24,
2000, from Christopher Cripps, re: ``Technical Support Document for
the Approval of the Post-1996 Rate-of-Progress Plan for the District
of Columbia portion of the Metropolitan Washington, DC Nonattainment
Area (DC 035-2015, DC 044-2015).'' and of October 13, 2000, from
Janice Lewis, re: ``Technical Support Document for Approval and
Promulgation of Air Quality Implementation Plans; Maryland, and
Virginia; Post-1996 Rate-of-Progress Plan for the Metropolitan
Washington, DC Area (MD 058-3036 and VA 083-5038).'']
---------------------------------------------------------------------------

Also, model sensitivity analysis demonstrates that the Metropolitan
Washington portion of the Baltimore-Washington modeling domain benefits
more from NOX reductions than VOC reductions. See Attachment
4 (``Model Sensitivity Study for Metropolitan Washington Area'') of the
EPA document, ``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; and Office of Transportation and Air Quality, Ann
Arbor, MI 48105. October 12, 2000. An electronic version of EPA's RACM
analysis cited above can be downloaded at www.epa.gov/ttn/rto under
``What's New.'' This analysis does not contradict EPA's determination
that a one percentage reduction of NOX emissions will likely
produce a greater reduction of ozone than a one percent reduction of
VOC emissions.
EPA is determining that the attainment demonstration is approvable,
i.e., will likely demonstrate attainment for the Metropolitan
Washington, D.C. area. Implicit in making this determination, is a
corollary conclusion that the mix of VOC and/or NOX control
measures included in the area's attainment demonstrations is adequate.
Based on review of all the information submitted in support of the
attainment demonstration, it is the Agency's belief that the percentage
of ozone reduction benefits achieved by application of NOX
controls, for both ozone reduction and attainment progress goals, is
``at least equivalent'' as that achieved by application of VOC
controls. Both the NOX and VOC controls are necessary if the
area is to realize ozone reduction benefits and attain the NAAQS.
The commenter submitted a memorandum, dated January 13, 2000, from
Joan Rohlfs, Chief Air Quality Planning, Metropolitan Washington
Council of Governments, to the Technical Advisory Committee,
Metropolitan Washington Air Quality Committee, entitled ``Calculating
the NOX Substitution Ratio for Out-Year Conformity Budget in
the Washington Nonattainment Area'', in which a 1.64 to 1 ratio was
calculated for the Washington, D.C. area based upon the January 10,
2000 guidance. On March 22, 31, and 31, 2000, respectively, the
District, Maryland and Virginia submitted a SIP revision with budgets
for years after 2005 that used substitution at the 1.64:1 ratio. EPA
has not yet taken rulemaking action on the portion of that submittal
that deals with the out-year budgets. As noted above, the use of this
1.64:1 ratio, calculated

[[Page 619]]

from the January 2000 guidance, is not applicable for purposes of the
ROP plan.
6. Assertion of Metropolitan Washington Plan Fails To Demonstrate
Attainment
EPA 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. Further reasoning is
also set forth in responses to other comments elsewhere in this notice.

N. NOX Reduction Credits

O. Attainment Demonstration and Rate of Progress

Comment 1: We received comments that assert that both the
attainment demonstration and rate of progress plan for the Washington
DC nonattainment area rely on emission reductions from control measures
that have not been fully approved by EPA as part of the SIP.
Response 1: The EPA recently signed a final action fully approving
the District's, Maryland's and Virginia's post-1996 ROP plan. These
plans were credited with reductions from only those measures that have
been fully approved into the SIP.
The EPA recently approved the District's, Maryland's and Virginia's
NOX RACT rules. Maryland's NOX RACT rule has been
amended since 1999. The District's final rule was amended since 1999.
The EPA recently approved source specific emission limits for the major
sources of NOX in the Virginia portion of the Metropolitan
Washington, DC area. The EPA recently signed a final action approving
these rules. The action has been or will be published shortly in the
Federal Register.
The EPA recently approved the District's and Maryland's
NOX reduction measures that require NOX
reductions from stationary sources beyond those required under RACT.
The EPA recently signed a final action approving these rules. The
action has been or will be published shortly in the Federal Register.
For purposes of the Metropolitan Washington, DC attainment
demonstration, the EPA has not granted any reduction credits from
Virginia's non-CTG VOC RACT rule except to the extent source-specific
RACT limits or in the case of lithographic printing operations a
category-specific RACT limits have been approved by EPA. [See 40 CFR
52.2520 (c)(128), and (c)(113)]. In addition, EPA recently approved a
source specific RACT determination for another source subject to the 50
TPY non-CTG RACT for which Virginia takes no credit.
Comment 2: We received comments that state there are significant
disparities between the projections of 1999 regional emissions found in
the most recent 9% ROP plan for the Metropolitan DC 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: A large part of the disparity is that the ROP plan does
not take credit for all the measures implemented by 1999. However,
those measures can be credited for attainment. Specifically, the ROP
demonstration only requires the area to achieve a NOX
emissions level of 614.7 tons per day whereas attainment requires an
emissions level of 538 tons per day. The States and the District have
specifically identified beyond the RACT reductions at large point
sources of NOX that have not been counted towards the ROP
demonstration. These reductions are quantified at 93 tons per day.
Other control programs such as the surface cleaning and degreasing
rules in Virginia and the Stage I reductions in Loudoun County,
Virginia, resulted in emission reductions by 1999. However, Virginia
elected not to claim credit for the surface cleaning rule in the final
version of the Post-1996 plan (which EPA is approving), and the Stage I
reductions are not creditable towards the 9% reduction requirement
(because it is a RACT correction subject to the restrictions of section
182(b)(1)(D)). However, these measures are creditable for purposes of
the attainment demonstration. EPA's approval of the attainment
demonstration is based upon the February 2000 amendments to the SIP.
The SIP amendments show that in 2005, the area can achieve the emission
levels less than the levels in the modeled demonstration of attainment.
The SIP amendments account for growth in emissions from 1990 through
2005, as well as more recent planning assumptions and modeling
assumptions used in the development of the mobile source emissions
budgets. They also provide a reevaluation of the control measures.

P. Modeling Assumptions

Comment 1: We 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 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 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: This August 27, 1998, EPA letter to the MPO concerned
EPA's review of the conformity determination on the FY99-04
Transportation Improvement program (TIP) as well as the Long Range
Transportation Plan. Planning assumptions in a TIP must be derived from
the estimates of current and future population, employment, travel, and
congestion most recently developed by the MPO or other agency
authorized to make such estimates and approved by the MPO. Likewise,
the conformity rule, 40 CFR 93.118(e)(4)(ii), requires SIP motor
vehicle emissions budgets to be developed in consultation with federal,
state and local agencies such as the MPO in order to be adequate and
approvable. Based on EPA reviews of the most recently approved
Transportation Improvement programs (TIPs) as well as the Long Range
Transportation Plans in the Washington, DC area, EPA is satisfied that
the MPO through its land activity forecasts, provides timely
information on growth and land use, through consultation with all of
its regional county planners.

[[Page 620]]

These same forecasts are used for both the development of SIP motor
vehicle emissions budget as well as the determination that a TIP
conforms. Therefore, while the estimates of land use activity are not
done by modeling, their process of estimating land use activity does
not violate the requirements of the conformity rule which was the
context in which this August 27, 1998 letter was sent, and therefore
EPA can find no reason to agree with any assertion or implication that
the transportation model, used by the MPO to develop any SIP budgets in
1999 or 2005, is deficient. Furthermore, this August 27, 1998, EPA
letter to the MPO does not have any relevance in this instance because
the letter targets the lack of any clear graphic display of information
in the transportation plans rather than the absence of information for
the transportation model to use.
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: EPA disagrees with the comment that this is a reason to
determine that the budgets are not approvable. 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 1990 base year and all subsequent projection inventories. The
typical ozone season day conditions are those used when determining the
typical daily emissions for the 1990 base year emissions inventory. For
1990 inventories, the period to be used for temperature determination
was 1988-1990. The same typical season day is also used when setting
target levels of emissions in ROP plans and all future year projection
inventories in ROP plans and attainment demonstrations. EPA believes it
is reasonable to use these typical ozone season day temperatures rather
than actual future year temperatures in projecting future emissions
since these projections are made in advance when actual temperatures
cannot be known.

Q. NOX RACT Size Cutoff

Comment: 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: The Clean Air Act does not require that serious areas
extend NOX or VOC RACT to 25 tons per year sources within
serious classifications. Virginia's approved SIP has extended VOC RACT
to 25 ton per year sources in the Washington, DC area. In addition, in
section II. E. discussing RACM, EPA has determined that Maryland,
Virginia and the District have met the RACM requirements.

R. NOX Reduction Credits

Comment: We received comments that both the attainment and rate-of-
progress (ROP) demonstrations are further flawed because they rely on
emission reductions from control measures that have not been fully
approved by EPA as part of the SIP. These measures include
NOX RACT rules for all three Metropolitan Washington, DC
area states. EPA cannot credit the SIP with NOX reductions
until the state adopts source specific RACT limits.
Response: EPA has approved SIP revisions for all sources subject to
RACT in the Metropolitan Washington, DC area subject to Maryland's,
Virginia's and the District's RACT regulations. On December 14, 2000,
the Regional Administrator signed a final action approving the
District's NOX RACT rule. That action has been or will be
published shortly in the Federal Register. On December 15, 2000, the
Regional Administrator signed final actions approving Maryland's and
Virginia's NOX RACT rules. The Virginia final approval also
included RACT determinations for Non-CTG major VOC sources. These
actions have been or will be published shortly in the Federal Register.

S. 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 condition. The comments state 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 is related only to the
adequacy determination of the attainment year budgets. The States have
now adopted all regulations on which they rely for attainment. In
section I.C.5 of the proposed rulemaking we stated:

``For purposes of conformity, if the states submitted a
commitment, which has been subject to public hearing, to adopt the
control measures necessary for attainment and ROP through the area's
attainment date in conformance with the December 1997 Wilson policy,
the State will not need an additional commitment at this time.
However, the states will need to amend its commitment by letter to
provide two things concerning the additional measures.
First, the State will need to identify a list of potential
control measures (from which a set of measures could be selected)
that when implemented, would be expected to provide sufficient
additional emission reductions to meet the level of reductions that
EPA has identified as necessary for attainment. States need not
commit to adopt any specific measures on their list at this time,
but if they do not do so, they must identify sufficient additional
emission reductions to attain the standard with the submitted motor
vehicle emissions budget. These measures may not involve additional
limits on highway construction beyond those that could be imposed
under the submitted motor vehicle emissions budget.'' (64 FR at
70467, December 16, 1999).

Likewise in Table 2 of section I.D. the list of measures was tied
to the making of a finding of adequacy that the motor vehicle emissions
budgets are consistent with attainment.
Elsewhere, in section I.C.3 the December 16, 1999 NPR we spelled
out the importance of making an adequacy finding by May 31, 2000:

Therefore, EPA is proposing, in the alternative, to disapprove
the attainment demonstration SIPs for those nine areas if the States
do not submit motor vehicle emissions budgets that EPA can find
adequate by May 31, 2000.\11\ In order for EPA to complete the
adequacy process by the end of May, States should submit a budget no
later than December 31, 1999.\12\ If an area does not have a motor
vehicle emissions budget that EPA can determine adequate for
conformity purposes by May 31, 2000, EPA plans to take final action
at that time disapproving in full or in part the area's attainment
demonstration. (64 FR at 70465, December 16, 1999.) (Footnote 11
read as follows: For severe areas, EPA will determine the adequacy
of the emissions budgets associated with the post-1999 ROP plans
once the States submit the target calculations, which are due no
later than December 2000. Footnote 12 read as follows: A final
budget is preferred; but, if the State public hearing process is not
yet complete, then the draft budget for public hearing may be
submitted. The adequacy process generally takes at least 90 days.
Therefore, in order for EPA to complete the adequacy process no
later than the end of May, EPA must have by February 15, 2000, the
final budget or a draft that is substantially similar to what the
final budget will be. The State must submit the final budget by
April 15, 2000.)

[[Page 621]]

Through the adequacy process the public had an opportunity to
comment on the lists of potential control measures. The states
identified all the potential control measures in Tables A, 6-1 and 6-2
of the SIP revision submittals of the plan document entitled ``State
Implementation Plan (SIP) Revision, Phase II Attainment Plan for the
Washington DC-MD-VA Nonattainment Area''---dated February 3, 2000, by
which the budgets were submitted by the District, Maryland and Virginia
on February 16, 2000, February 14, 2000, and February 9, 2000,
respectively. These tables identified a number of control measures most
of which had been either promulgated by EPA, or adopted and submitted
by the states as SIP revisions on February 3, 2000. Not all of the
remaining measures are necessary to make the motor vehicle emissions
budgets consistent with attainment. EPA made the requisite findings of
adequacy (65 FR 36439, June 8, 2000).
Disapproving the SIP for the sole reason that the lists were not
submitted by December 31, 1999, would place the states in a situation
where the states would have no ability to remedy the disapproval
because the States have adopted and EPA has approved all measures
needed to make the motor vehicle emissions budgets approvable. EPA
disagrees that the attainment demonstration SIPs should be disapproved
because the states have failed to submit lists of potential control
measures by December 31, 1999.
Comment 2: We received Comments that assert that both the
attainment demonstration and rate of progress plan for the Washington
D.C. nonattainment area rely on emission reductions from control
measures that have not been fully approved by EPA as part of the SIP.
Response 2: Today, EPA is fully approving the District's,
Maryland's and Virginia's post-1996 ROP plan. These plans were credited
with reductions from only those measures that have been fully approved
into the SIP.
In recent Federal Register notices, EPA has fully approved the
District's, Maryland's and Virginia's NOX RACT rules.
Maryland's NOX RACT rule has been amended since 1999. The
District's final rule was amended since 1999. The EPA has approved
source specific emission limits for the major sources of NOX
in the Virginia portion of the Metropolitan Washington, DC area.
In recent Federal Register notices, EPA has approved the District's
and Maryland's NOX reduction measures that require
NOX reductions from stationary sources beyond those required
under RACT.
For purposes of the Washington, DC attainment demonstration, the
EPA has not granted any reduction credits from Virginia's non-CTG VOC
RACT rule except to the extent source-specific RACT limits or in the
case of lithographic printing operations a category-specific RACT
limits have been approved by EPA. [See 40 CFR 52.2520(c)(128), and
(c)(113)]. In addition, in a recent Federal Register notice, EPA has
approved a source specific RACT determination for another source
subject to the 50 TPY non-CTG RACT for which Virginia takes no credit.
On December 15, 2000, the Regional Administrator signed final actions
approving RACT for this source along with Virginia's NOX
RACT rules. This action has been or will be published shortly in the
Federal Register. (The Virginia attainment plan also includes credits
from a source that would have been subject to the 50 TPY non-CTG VOC
RACT requirement but that shut-down in 1991.)

T. MOBILE6 and the Motor Vehicle Emissions Budgets (MVEBs)

Comment 1: One Commenter generally supports a policy of requiring
motor vehicle emissions budgets to be recalculated when revised MOBILE
models are released.
Response 2: The Phase II attainment demonstrations that rely on
Tier 2 emission reduction credit contain commitments to revise the
motor vehicle emissions budgets after MOBILE6 is released.
Comment 3: The revised budgets calculated using MOBILE6 will likely
be submitted after the MOBILE5 budgets have already been approved.
EPA's policy is that submitted SIPs may not replace approved SIPs.
Response 3: This is the reason that EPA proposed in the SNPR (65 FR
46383) that the approval of the MOBILE5 budgets for conformity purposes
would last only until MOBILE6 budgets had been submitted and found
adequate. In this way, the MOBILE6 budgets can apply for conformity
purposes as soon as they are found adequate.
Comment 4: If a State submits additional control measures that
affect the motor vehicle emissions budget but does not submit a revised
motor vehicle emissions budget, EPA should not approve the attainment
demonstration.
Response 4: EPA agrees. The motor vehicle emissions budgets in the
Metropolitan Washington, DC area attainment demonstration reflect the
motor vehicle control measures in the attainment demonstration.
Comment 5: EPA should make it clear that the motor vehicle
emissions budgets to be used for conformity purposes will be determined
from the total motor vehicle emissions reductions required in the SIP,
even if the SIP does not explicitly quantify a revised motor vehicle
emissions budget.
Response 5: EPA will not approve SIPs without motor vehicle
emissions budgets that are explicitly quantified for conformity
purposes. The Metropolitan Washington, DC area attainment demonstration
contains explicitly quantified motor vehicle emissions budgets which
EPA has found adequate (64 FR 62196).
Comment 6: If a state fails to follow through on its commitment to
submit the revised motor vehicle emissions budgets using MOBILE6, EPA
could make a finding of failure to submit a portion of a SIP, which
would trigger a sanctions clock under section 179.
Response 6: If a state fails to meet its commitment, EPA could make
a finding of failure to implement the SIP, which would start a
sanctions clock under section 179 of the Clean Air Act.
Comment 7: If the budgets recalculated using MOBILE6 are larger
than the MOBILE5 budgets, then attainment should be demonstrated again.
Response 7: As EPA proposed in its December 16, 1999 notices, we
will work with States on a case-by-case basis if the new emissions
estimates raise issues about the sufficiency of the attainment
demonstration.
Comment 8: If the MOBILE6 budgets are smaller than the MOBILE5
budgets, the difference between the budgets should not be available for
reallocation to other sources unless air quality data show that the
area is attaining, and a revised attainment demonstration is submitted
that demonstrates that the increased emissions are consistent with
attainment and maintenance. Similarly, the MOBILE5 budgets should not
be retained (while MOBILE6 is being used for conformity demonstrations)
unless the above conditions are met.
Response 8: EPA agrees that if recalculation using MOBILE6 shows
lower motor vehicle emissions than MOBILE5, then these motor vehicle
emission reductions cannot be reallocated to other sources or assigned
to the motor vehicle emissions budget as a safety margin unless the
area reassesses the analysis in its attainment demonstration and shows
that it will still attain. In other words, the area must assess how its
original attainment demonstration is impacted by using

[[Page 622]]

MOBILE6 vs. MOBILE5 before it reallocates any apparent motor vehicle
emission reductions resulting from the use of MOBILE6. However, if the
state is not required to remodel with MOBILE6 because the attainment
demonstration does not rely on Tier II reductions, the conformity rules
do require the use of MOBILE6 for conformity after any established
grace period even if the SIP is based on MOBILE5. The state is not
required to revise the SIP merely because a new mobile model becomes
available.

U. MOBILE6 Grace Period

Comment 1: We received a Comment on whether the grace period before
MOBILE6 is required in conformity determinations will be consistent
with the schedules for revising SIP motor vehicle emissions budgets
(``budgets'') within 1 or 2 years of MOBILE6's release. This Commenter
was concerned that MOBILE6 could be required for conformity before new
budgets were submitted based on MOBILE6.
Response 1: The MOBILE6 grace period for conformity determinations
is a separate requirement that is not explicitly tied to EPA's SIP
policy and approvals. However, it is important to note that the
transportation conformity rule requires EPA to consider many factors in
establishing the length of the grace period before MOBILE6 is required
in conformity, including the degree of change in emissions models and
scope of re-planning likely to be necessary by transportation agencies
(40 CFR 93.111). The grace period must be between 3-24 months, and EPA
understands that a longer grace period would allow some areas to better
transition to new MOBILE6 budgets. EPA will be taking the 1-2 year
period provided for in the SIP approvals into account in establishing
an appropriate grace period for conformity.
Comment 2: One Commenter asked EPA to clarify in the final rule
whether MOBILE6 will be required for conformity determinations once new
MOBILE6 budgets are submitted and found adequate. The Commenter wanted
clarification on the case where the MOBILE6 conformity grace period
ends before new budgets are submitted based on MOBILE6. The Commenter
thought that this situation could necessitate the use of the emission
reduction tests (e.g., build/no-build test) for conformity analyses,
instead of using the budgets based on MOBILE5b. The Commenter stated
that using the build/no-build test instead of existing budgets that are
based on MOBILE5b is less appropriate for air quality planning
purposes.
Response 2: The transportation conformity rule requires adequate
budgets to be used in regional emissions analysis, when they exist,
regardless of what emissions model was used to establish the budgets.
In the example highlighted by the Commenter, the MOBILE5b budgets would
be required for conformity purposes if they were the only applicable
budgets at the end of the MOBILE6 grace period. Thus, the conformity
analysis would compare future reductions under a proposed
transportation plan or TIP calculated with MOBILE6 against the SIP
budgets developed with MOBILE5. This has always been required by the
conformity rule once the grace period for a new model has passed. Once
budgets have been established, the build/no-build test is no longer
applicable. See 40 CFR 93.111 of the transportation conformity rule.
During the grace period, areas should use the consultation process to
address any future conformity impacts of using the new emissions model.

V. Two-Year Option To Revise the MVEBs

Comment: One Commenter did not prefer the additional option for a
second year before the state has to revise the conformity budgets with
MOBILE6, due to several concerns. The Commenter cited that the air
agency did not select this option and had already submitted a
commitment to revise the conformity budgets with MOBILE6.
Response: EPA proposed the additional option to provide further
flexibility in managing MOBILE6 budget revisions. The supplemental
proposal did not change the original option to revise budgets within
one year of MOBILE6's release. State and local governments can continue
to use the 1-year option, if desired, or submit a new commitment
consistent with the alternative 2-year option.

W. RACM

Comment: The Phase II NOX limits agreed to by OTC are
also clearly RACM.
Response: With respect to the OTC MOU Phase II NOX
limits in the Metropolitan Washington, DC 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 party 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 Metropolitan Washington nonattainment area. 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. An
analysis of whether these SIP approved measures is RACM for the area is
moot, since the States and the District have adopted the Phase II
NOX limits (in the case of Maryland and the District of
Columbia) or measures consistent with these limits (in the case of
Virginia). There is additional discussion elsewhere of the RACM
requirement in relationship to electric generating units.

X. Additional Comments on the Rate of Progress Plan

Comment 1: We received Comments that asserted EPA cannot act on the
District's, Maryland's and Virginia's Post-1996 ROP plan in isolation
because the Post-1996 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 the
Post-1996 plan for the Metropolitan Washington, DC serious
nonattainment area in one final action published in the Federal
Register.
Comment 2: We received Comments that certain modeling cited by
EPA's proposed approval do not show that a 1% reduction in
NOX emissions provides the same ozone reduction benefit as a
1% 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% 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: EPA proposed approval of the District's, Maryland's and
Virginia's Post-1996 ROP plan for the Metropolitan Washington, DC area
based upon the modeling results from the attainment demonstration and
conformance of the NOX substitution to EPA's December 1993
`` NOX Substitution Guidance'' which was issued pursuant to
section 182(c) of the Act. In the notice of proposed rulemakings EPA
stated:

[[Page 623]]

``EPA's guidance requires that the amount of substituted
NOX reductions in the Post-1996 plan be less than or
equal to the amount of NOX reductions needed to attain
the national ozone standard. The amount of NOX reductions
needed for attainment must be demonstrated by photochemical grid
modeling. The District's demonstration that the NOX
substitution is based upon local scale modeling performed on the
Baltimore-Washington Urban Airshed Modeling (UAM) domain and upon
EPA's Regional Oxidant Modeling (ROM) results. Both EPA's ROM
results and the photochemical grid modeling submitted with the
attainment plan show that significant NOX reductions will
contribute to attainment in the area.''

[and,

``Post-1996 plan substitutes fewer NOX reductions
than assumed in the attainment plan modeling.''

(See 65 FR at 58245 to 58246, September 28, 2000, and see 65 FR 62660
to 62661, October 19, 2000.)

In the TSDs for the proposed rulemaking actions, EPA compared the
NOX substitution in the Post-1996 plan to the NOX
reductions assumed in the attainment demonstration. EPA noted that the
Post-1996 plan assumed less NOX reduction than the
photochemical grid modeling supporting the attainment demonstration or,
when stated another way, the target level (i.e., ROP allowable) of
NOX emissions is higher than the NOX emissions
allowed by the attainment demonstration modeling. See section III.C.3.b
and 3.c of the TSDs for the proposed actions.
EPA does not believe that the presence of an ozone increase in four
modeling grid cells on one episode day is sufficient cause to
disapprove the Post-1996 plan on the grounds that NOX
reductions do not provide equivalent ozone concentration benefits.
Under EPA's December 1993 NOX Substitution Guidance, which
is the basis for approving the Post-1996 plan, it is only necessary to
show equivalency for one of the episodes selected for the attainment
demonstration. This follows because the attainment strategy ultimately
selected must show predicted ozone to be less than or equal to the
standard for all selected episodes.
Comment 3: We received comments that assert that although the 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 that assert that EPA can only credit
these plans 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. Comments
concerning specific measures and EPA's responses are summarized
separately. 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: An ROP SIP is a projection that the State has a SIP to
achieve an emissions target based upon projections of future year
activity. In other words, the ROP analysis is forward-looking. The CAA
has other provisions that require a backward look at what were the
actual emissions in an area during a milestone year and whether a
milestone was met or not. Determination of actual emissions for a
milestone year is the subject of the periodic inventory requirement of
section 182(a)(3) and the requirements of section 182(g) concerns
milestone compliance.
For approving ROP plans, EPA views implementation dates as the date
sources are required to comply with rule. In general, when reviewing a
SIP submission with enforceable regulations, EPA does not separately
analyze whether sources are in fact complying with the adopted
regulations. The Act provides relief against sources that fail to
comply, such as enforcement action and penalties. See CAA 304. In
addition, if EPA determines that a State is failing to require sources
to comply with an approved plan, EPA may make a finding of failure to
implement under section 179(a), which would trigger the possible
imposition of sanctions.
Preparation of the Post-1996 ROP SIP for the Metropolitan
Washington, DC area commenced prior to the start of calendar year 1999
and was formally adopted in April and submitted in May 1999. Thus, the
ROP SIP prepared for the area was a forward-looking projection that the
9% ROP requirement for the three year period from November 1996 to
November 1999 would occur. The rules relied on in the plan were
required to be implemented prior to November 15, 1999.
EPA is not required to disapprove an area's SIP simply because EPA
did not act on the SIP revision prior to the statutory timeframe for
the reductions. If EPA disapproves a SIP, the area is subject to
sanctions and EPA is required to promulgate a FIP. Sanctions will not
be imposed (or will be lifted) and EPA will not be required to
promulgate a FIP (or the FIP can be replaced) if the State(s) submit a
SIP that corrects the deficiency that was the basis for the disapproval
and EPA approves the SIP. It would be impossible for a State to ever
correct a disapproval based on EPA's failure to approve the SIP by an
earlier date. Moreover, if EPA were to then promulgate a FIP, the FIP
would not be federally enforceable during the compliance timeframe
contemplated by the statute. For these reasons, EPA does not believe
that it is precluded from approving the SIP simply because November
1999 has passed.
As provided below, EPA believes that the measures on which the
Metropolitan Washington, DC area relied for credit in the post-1996
plan were scheduled to achieve the necessary reductions prior to
November 1999. However, EPA notes that even if it had found that there
was a shortfall in the plan, the best remedy at this juncture would be
to allow credit for other measures that were not relied upon, but that
achieved reductions prior to 1999. If sufficient actual reductions
occurring by the milestone date did not exist, then Maryland, Virginia
or the District could only get reductions after the milestone deadline
because, at this point, the States do not have the ability to require
additional reductions for a period that has already passed. The passing
of the deadline would not relieve Maryland, Virginia or the District
from the requirement to achieve the 9% reduction in emissions, but the
9% reduction needs to be achieved as expeditiously as practicable after
November 15, 1999. Measures such as enhanced inspection and maintenance
and National Low Emission Vehicle that accrue additional benefits over
time as newer vehicles replace older vehicles or as additional vehicles
are required to obtain repairs will generate additional reductions more
expeditiously than new measures which must undergo adoption processes
that must include public notice and comment periods and any required
legislative review processes prior to SIP approval.\19\
---------------------------------------------------------------------------

\19\ Or in the case of the Metropolitan Washington, DC area, the
three-state opt-in into the reformulated gasoline program would also
quickly produce emission reduction benefits from the commencement of
the second phase of the program in January 1, 2000 without further
rule adoption.
---------------------------------------------------------------------------

Comment 4: We received comments that said 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

[[Page 624]]

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: As provided above, EPA does not believe that it cannot
approve ROP credit for the NLEV program simply because the NLEV program
was not approved prior to November 1999. In addition, EPA disagrees
with the comment that the NLEV program does not get sufficient
creditable reductions.
The NLEV program is a federally-enforceable program. Unlike other
federally enforced motor vehicle control programs, however, the NLEV
program required an agreement from nine northeastern states and 23
manufacturers prior to its becoming enforceable. On March 9, 1998, EPA
made a finding that the NLEV program was in effect. Nine northeastern
states and 23 manufacturers had opted into this ``voluntary'' \20\
clean car program and the opt-ins met the criteria set forth by EPA in
its NLEV regulations (63 FR 926, January 7, 1998). As a result,
starting in the northeastern states in model year 1999 and nationally
in model year 2001, new cars and smaller light-duty trucks had to meet
tailpipe standards that are more stringent than EPA could mandate prior
to model year 2004. The phase-in of the NLEV vehicles began in the
District, Maryland and Virginia (and the other northeastern states
covered under the rule) commencing with the introduction of the model
year 1999 vehicles during the fall of 1998.
---------------------------------------------------------------------------

\20\ The NLEV program was ``voluntary'' in that it could only
come into effect if agreed upon by the northeastern states and the
auto manufacturers. As of March 2, 1998, the NLEV standards were
enforceable in the same manner as any other federal new motor
vehicle program (63 FR at 11375, March 9, 1998).
---------------------------------------------------------------------------

The NLEV program required certain northeast states and the District
to adopt certain regulations into their SIP. The scope of these
regulations can be found in the NLEV final rule and associated docket.
See 63 FR 926, January 7, 1998. EPA would concede that if the Maryland,
Virginia or the District did not have a SIP-approved NLEV rule at this
time then crediting of the reductions from the measure would require a
definitive determination whether the NLEV reductions resulted from a
rule promulgated by EPA or from a rule adopted into the SIP. However,
the NLEV rule has been approved into the SIPs for the District,
Maryland and Virginia thus negating any need for such a determination.
The reductions from this program that are relied on in the Metropolitan
Washington, DC post-1996 ROP plan occurred prior to November 15, 1999,
in accordance with the approved SIPs and, therefore, are creditable.
Comment 5: We received comments 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: As provided above, EPA believes that there is no point
in disapproving the Metropolitan Washington DC area Post-1996 ROP SIPs
at this time on the basis that the District's NOX RACT
regulation was approved after November 15, 1999. Moreover, as provided
above, it is sufficient that the District's NOX RACT rule
requires sources to comply prior to the November 15, 1999 date by which
ROP must be achieved. The District does not need to demonstrate that
sources have actually complied with its regulations. Affected sources
were required to comply with the applicable emissions standards and
requirements contained in the District's NOX RACT regulation
(20 DCMR Section 805) by May 31, 1995. On December 14, 2000, the
Regional Administrator signed a final action approving the District's
NOX RACT rule. That action has been or will be published
shortly.
Comment 6: The comments assert 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: With respect to Maryland and Virginia NOX
RACT rules, EPA has provided responses to comments in the final
rulemaking action on those SIPs. With respect to the District's
NOX RACT rule, the District did make several amendments to
address several provisions regarding monitoring, operating practice
standards for smaller emission units, and applicability provisions that
would only increase the number of sources and hence reductions
available after 1999.
Comment 7: We received comments that assert that EPA cannot credit
reductions because the District has not implemented its NOX
RACT rules. Specifically, the comments cite 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: As an initial matter, EPA notes that the District has
not taken credit in its ROP plan for NOX RACT reductions
attributable to the Blue Plains Wastewater Treatment Plant and, as
provided below, believes that this source is not subject to the
NOX RACT requirement. (EPA notes that no comments regarding
the Blue Plains Plant were received during the comment period on EPA's
proposed full approval of the District's NOX RACT rule.)
Sources subject to the District's NOX RACT rule were
required to comply with the applicable emissions standards and
requirements contained in the District's NOX RACT regulation
(20 DCMR Section 805) by May 31, 1995. Over the past several years, the
District has been incorporating source-specific NOX RACT
requirements in Title V permits for many sources.
EPA has reviewed a draft operating permit for the Blue Plains
Plant. The Blue Plains Plant has twenty-nine combustion sources. This
includes five digester gas/number two fuel oil-fired boilers between
ten and thirteen and one-half million BTU per hour heat input, nine
natural gas/number 2 fuel oil-fired boilers between five and ten
million BTU per hour heat input, seven distillate/natural gas fired
boilers less than five million BTU per hour heat input, two oil-fired
generators and six flares. The requirements in the permit limit the
hours of operation of the emergency generators to less than 500 hours
per year consistent with section 805.1(c) of the District's
NOX RACT rule, thus excluding the generators from coverage
by the NOX RACT rule.
The District's NOX RACT rule sets differing level of
control on boilers through emission limitations or good operating
practices, depending upon the rated capacity and fuel type of the
boiler. A source generally consists of several units which emit
pollutants to the atmosphere. The sum of emissions from all units at a
facility determines if a unit is major and, thus, subject to the RACT
requirements. However, certain units at a facility may be so small that
it is clear that no controls are reasonably available for those units,
although RACT might apply at the other units within the facility.
Regulatory agencies have typically included exemptions for very

[[Page 625]]

small emission units in their VOC RACT rules. The reason for the
exemptions is that control requirements at very small units are
generally not reasonable, considering technological and economic
feasibility. As a result of the new NOX RACT requirements in
the Clean Air Act Amendments of 1990, regulatory agencies are required
to develop and adopt NOX RACT rules. In the process of
drafting these rules, many agencies have included exemptions for very
small NOX emission sources for the same reason noted above
for VOC rules. Unlike the VOC rules, however, there is no well-
established precedent with respect to NOX.
The District's NOX RACT was approved without emission
limits for de minimis sources. In the case of the boilers at the Blue
Plains Plant, EPA concludes these 29 units would be de minimis because
the units are distillate-oil or digester/natural-gas fired and thus the
emission reduction potential is small, control is not cost effective,
and the actual emissions reported in the draft operating permit from
the plant are small and thus the potential emission reductions are
negligible. Most of the combustion units, such as the sixteen boiler
units below ten-million BTU per hour, are below the threshold at which
controls are cost effective, and those at or just over ten-million BTU
per hour are on the threshold of cost effectiveness. See the memorandum
entitled ``De Minimis Values for NOX RACT'' G. T. Helms,
Group Leader, Ozone Policy and Strategies Group (MD-15), to the Air
Branch Chiefs, Regions I-X, dated January 1, 1995.
Comment 8: We received comments that assert 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: As provided above, EPA believes that there is no point
in disapproving the Metropolitan Washington DC Post-1996 ROP SIPs at
this time on the basis that Virginia's and Maryland's NOX
RACT regulations were approved after November 15, 1999. Moreover, as
provided above, it is sufficient that the States' NOX RACT
rules require sources to comply prior to the November 15, 1999 date by
which ROP must be achieved. The States do not need to demonstrate that
sources have actually complied with its regulations.
The Commonwealth's EPA-approved RACT regulations, found at 9 VAC 5-
40-300 and 310, require all sources for which the CAA requires RACT to
be in compliance by the May 31, 1995 deadline specified in the CAA.\21\
Virginia has not extended the Act's compliance date for those major
sources mandated to comply by May 31, 1995, and by approving the
Commonwealth's case-by-case SIP revisions, EPA is not approving an
extension of this deadline. To the extent that Virginia's consent
agreements and permits require additional reductions beyond the
mandated compliance deadline for meeting RACT, these requirements are
not considered to be part of the RACT determinations.
---------------------------------------------------------------------------

\21\ Consistent with the Act, the Commonwealth's RACT
regulations require facilities in the Northern Virginia Emissions
Control Area which have a theoretical potential to emit of 50 tons
per year (TPY) or greater of NOX or VOCs to comply by May
31, 1995. To obtain additional emission reductions beyond those
mandated by the Act, the Commonwealth also required VOC sources with
a theoretical potential to emit 25 TPY or greater, but less than 50
TPY, to apply RACT. The Commonwealth set a compliance deadline for
these sources of May 31, 1996.
---------------------------------------------------------------------------

EPA disagrees with the commenter that there are no compliance dates
established for the RACT requirements. As explained previously, on July
11, 1995, the MDE submitted a revision to its SIP for the control of
NOX emissions from major sources. This submittal included
revisions to regulation COMAR 26.11.09.01 and 26.11.09.08 which
pertained to definitions and a generic NOX RACT rule which
required affected sources to either meet a presumptive NOX
emissions standard or to submit a case-by-case RACT proposal for
approval by MDE. In all cases, under this regulation, RACT requirements
were to have been met by no later than May 31, 1995. On June 22, 1999
(64 FR 33197), EPA granted conditional limited approval of this SIP
revision. The condition imposed required that all case-by-case RACT
determination be submitted as SIP revisions. On September 8, 2000,
Maryland submitted a SIP revision. It consisted of a revised version of
COMAR 26.11.09.08 which removed the generic RACT provisions and
replaced them with source category specific RACT emission limitations.
Maryland chose to do this to avoid the undue burden of submitting all
the case-by-case RACT determinations as source-specific SIP revisions.
The submittal of the September 8, 2000, SIP revision satisfies the
conditions of EPA's June 22, 1999 conditional limited approval.
Maryland first revised COMAR 26.11.09.08 on September 22, 1999 and
further revised it on August 30, 2000. These revisions to COMAR
26.11.09.08 became effective in the State of Maryland on October 18,
1999, and September 18, 2000, respectively. Its provisions are to be
complied with at all times and it provides no extension of the CAA
mandated RACT compliance date of May 31, 1995.
EPA has fully approved Maryland's and Virginia's NOX
RACT rules. On December 15, 2000, the regional Administrator signed
final actions approving the Maryland and Virginia NOX RACT
rules. These actions have been or will be published shortly.
Comment 9: We received comments that asserted 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 reductions by November 15, 1999, then the plan cannot be
approved.
Response 9: EPA disagrees that the full fleet must be tested for a
state to get the credit that they claim. I/M program benefits were
determined using EPA's MOBILE5b emission factor model. The MOBILE5b
emission factor model was designed to evaluate program benefits from
annual and bienniel programs and is quite capable of evaluating program
benefits for a specified year that is year-one of a bienniel program.
The MOBILE5b model has inherent limitations in that it can only assume
an I/M start date of January 1 and can only provide output for July 1
or January 1 for the year of evaluation. The States modeled an enhanced
I/M start date of January 1 of the following years: 1998 for Maryland
and Virginia and 1999 for the District. The Maryland enhanced program
commenced in October 1997, the Virginia program commenced during May of
1998 and the District on April 26, 1999. All the programs have

[[Page 626]]

now tested the amount of the fleet specified in the post-1996 ROP plan.
EPA believes the estimated reductions from I/M needed for the post-96
ROP plans were achieved and surpassed by the end of May 2000, prior to
the beginning of the ozone season. EPA believes that these reductions
were achieved as expeditiously as practicable and that no other
reasonable emissions control strategy would have allowed the District
or Virginia or EPA to achieve these reductions sooner.
EPA believes that there is no point to disapprove Maryland's,
Virginia's or the District's Post-1996 plan SIP at this time because of
the date Maryland's, Virginia's or the District's I/M SIP regulation
was approved. First the reductions claimed by Maryland, Virginia and
the District have now occurred. Second, Maryland, Virginia or the
District would have to remedy the deficiencies that lead to the
disapproval. The comments suggest that the deficiency could arise from
one of two deficiencies: first, the reductions did not occur by the
required deadline or, two, the reductions did not arise from either a
measure approved into the District's SIP or from a measure promulgated
by EPA. In either case, a shortfall of creditable reductions would
occur. Now that the milestone deadline has passed, Maryland's,
Virginia's or the District's has limited ability to effectuate a remedy
to a shortfall of creditable reductions that must occur by a date past.
The passing of the deadline does not relieve Maryland, Virginia or the
District from the requirement to achieve the 9% reduction in emissions,
but the 9% reduction needs to be achieved as expeditiously as
practicable after November 15, 1999. Maryland, Virginia or the District
can only get creditable reductions from reductions that actually
occurred by the milestone deadline by making such reductions, if any
exist, creditable by incorporating such reductions into a SIP
regulation that EPA approves. In such a situation, the SIP approval
would occur after the deadline. If sufficient actual reductions
occurring by the milestone date did not exist then Maryland, Virginia
or the District could only get reductions after the milestone deadline.
The Post-1996 ROP requirement would only be fulfilled if such
additional reductions occurred as expeditiously as practicable.
Measures such as I/M and NLEV that accrue additional benefits over time
as newer vehicles replace older vehicles or as additional vehicles are
required to obtain repairs will generate additional reductions more
expeditiously than new measures which must undergo adoption processes
that must include public notice and comment periods and any required
legislative review processes prior to SIP approval.
Comment 10: We received comments that assert 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 10: The AIM rule (40 CFR 594.404) sets caps on the amount
of the tonnage exemptions. The Economic Impact Analysis for the final
rule evaluated the magnitude of lost emission reductions in considering
the fee provision and found that the fee would result in a relatively
minor adjustment in emission reductions, while providing considerable
flexibility in the marketplace, thus reducing the number of products
that withdraw from the market. The effect of the tonnage exemption and
the exceedance fee on the estimated emission reduction was considered
in derivation of the estimated emission reduction. The estimated
reduction for the final rule was reduced by 2,350 tons to account for
the exceedance and tonnage exemptions in the rule.
Not all variance requests were related to time extensions to
reformulate products but also included time extensions to update
product literature or labeling or date coding equipment. See 64 FR
16447, April 5, 1999. Most variances were submitted immediately after
the rules became effective and the time extension requested have now
run out. Region III has not received a variance request in over a year.
Comment 11: We received comments that assert that the proposed
rulemakings used estimates from the proposed rulemaking for autobody
refinishing, consumer products, and architectural and industrial
maintenance coatings as a basis for approving the States' reduction
claims.
Response 11: As stated in the TSDs for the proposed approvals of
Maryland's, Virginia's and the District's post-1996 ROP plan, the 36%
reduction for autobody refinish coatings is based upon the final rule,
and as stated in the preambles and associated dockets for the consumer
products and architectural and industrial maintenance coatings final
rules, these final rules are estimated to achieve a 20% reduction in
affected source categories.
EPA's March 22, 1995 memorandum \22\ allowed states to claim a 20%
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 20%
reduction of nationwide VOC emissions from AIM coatings categories (63
FR 48855). 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 assumed a 20% reduction from AIM coatings source categories in its
attainment and ROP plans.
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\22\ ``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
---------------------------------------------------------------------------

Consistent with a November 27, 1994 EPA policy,\23\ many States
have claimed a 37% reduction from the autobody refinishing 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% overall nationwide. The 37% emission reduction
from EPA's 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

[[Page 627]]

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%. However as a result of the lacquer topcoat
exemption added between proposal and final rule, the reduction is now
estimated to be 36% for previously unregulated areas. Both the District
and Virginia claimed 35.7% credit in their attainment and ROP plans
while Maryland claimed 45%. EPA's best 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.
---------------------------------------------------------------------------

\23\ ``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 27, 1994,
John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-
X.
---------------------------------------------------------------------------

The basis for approving Maryland's reductions is dealt with in a
response to a separate comment consistent with a June 22, 1995 EPA
guidance,\24\ States have claimed a 20% reduction from the consumer
products source category based on EPA's proposed rule. The final rule,
``National Volatile Organic Compound Emission Standards for Consumer
Products,'' (63 FR 48819), published on September 11, 1998, has
resulted in a 20% reduction after the December 10, 1998 compliance
date. Therefore the reductions obtained by States for their attainment
and ROP plans from the final national rule are consistent with credit
which was claimed.
---------------------------------------------------------------------------

\24\ ``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.
---------------------------------------------------------------------------

Comment 12: We received comments that state 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 12: The basis for the 20% reductions achieved by the final
rule is documented in the rulemaking docket for the AIM coatings final
rule in docket A-92-18, item number IV-B-2 as stated in appendix C to
the TSDs for the rulemakings on Maryland's, Virginia's and the
District's P attainment and Post-1996 ROP plans. The emission reduction
and the baseline emissions estimate for the final rule reflect changes
due to new information as well as the decisions on some categories.
These changes included:
(a) Addition of information on concrete curing and sealing
compounds.
(b) Removal of acetone emissions from the inventory for industrial
maintenance coatings and for traffic coatings and zone marking
coatings.
(c) Adjustments to account for creation of new categories where EPA
had the necessary information on coating volume and VOC content and we
could determine if the category was included in the NPCA survey.
After all of the revisions were made, the revised estimate of
baseline emissions was 6 percent higher than the estimate at proposal
and the revised estimate of the emission reduction was 7 percent
higher. Thus, it is not possible to assess the validity of the emission
reduction estimate by a simple comparison of the VOC content limits for
a few products.
EPA believes the 20% reduction identified in the final AIM rule was
reasonable and EPA took final action on the attainment and Post-1996
ROP plans on that basis.
Comment 13: We received comments that assert 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, and the comments
assert EPA that 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 13: EPA's best 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.
The basis for approving Maryland's reductions is dealt with in a
response to a separate comment below.
Comment 14: We received comments that assert there is insufficient
basis for granting full credit for 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 11/15/99, and the late
implementation deadline of September 12, 1999 virtually assures that
this was not the case.
Response 14: As discussed in response to other comments, 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 assumed a 20%
reduction from AIM coatings source categories in its 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.
EPA believes that there is no point to disapprove the Post-1996
plan SIPs at this time because the States have limited ability to
effectuate a remedy to a shortfall of creditable reductions that must
occur by a date past. The passing of the deadline does not relieve the
States from the requirement to achieve the 9% reduction in emissions,
but the 9% reduction needs to be achieved as expeditiously as
practicable after November 15, 1999. The States can only get creditable
reductions from permanent reductions that actually occurred by the
milestone deadline by making such reductions, if any exist, creditable
by incorporating such reductions into a SIP regulation that EPA
approves. In such a situation, the SIP approval would occur after the
deadline. If sufficient actual reductions occurring by the milestone
date did not exist then the States could only get reductions after the
milestone deadline. The Post-1996 ROP requirement would only be
fulfilled if such additional reductions occurred as expeditiously as
practicable. Measures such as AIM rule which are already promulgated
would generate reductions more expeditiously than new measures which
must undergo adoption processes that must include public notice and
comment periods and any required legislative review processes prior to
SIP approval.
In promulgating the final AIM rule in 1998, EPA considered the
impact of the new rule on the affected industry and inventory. 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 at 48867, September 11,
2000).
EPA believes the estimated reductions from AIM needed for the Post-
96 ROP plans were achieved already. EPA believes that these reductions
were achieved as expeditiously as practicable and that no other
reasonable emissions control strategy would have allowed the

[[Page 628]]

States or EPA to achieve these reductions sooner.
Comment 15: 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, DC Ozone
Nonattainment Area.
Response 15: The budgets at issue in the 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, DC Ozone Nonattainment Area were the 2005 budgets. The
statement made in this document stated that the reductions from the AIM
rule ``* * * will occur by 2002 * * *''. The statement does not state
EPA's position that the reductions would not occur any sooner. For the
reasons outlined in the TSDs for the proposed rulemaking actions, EPA
believes the AIM reductions occurred by November 15, 1999.
Comment 16: 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 and cites 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 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 16: This August 27, 1998, EPA letter to the MPO concerned
EPA's review of the conformity determination FY99-04 Transportation
Improvement program (TIP) as well as the Long Range Transportation
Plan. Planning assumptions in a TIP must be derived from the estimates
of current and future population, employment, travel, and congestion
most recently developed by the MPO or other agency authorized to make
such estimates and approved by the MPO. Likewise, the conformity rule,
40 CFR 93.118(e)(4)(ii), requires SIP motor vehicle emissions budgets
to be developed in consultation with federal, state and local agencies
such as the MPO in order to be adequate and approvable. Based on EPA
reviews of the most recently approved Transportation Improvement
programs (TIPs) as well as the Long Range Transportation Plans in the
Washington, DC area, EPA is satisfied that the MPO through its land
activity forecasts, provides timely information on growth and land use,
through consultation with all of its regional county planners. These
same forecasts are used for both the development of SIP motor vehicle
emissions budget and the determination of conformity TIP. Therefore,
while the estimates of land use activity are not done by modeling,
their process of estimating land use activity does not violate the
requirements of the conformity rule which was the context in which the
cited 1998 letter was sent, and therefore EPA can find no reason to
agree with any assertion or implication that the transportation model,
used by the MPO to develop any SIP budgets in 1999 or 2000, is
deficient. Furthermore, this August 27, 1998, EPA letter to the MPO
does not have any relevance in this instance because the letter targets
the lack of any clear graphic display of information in the
transportation plans rather than the absence of information for the
transportation model to use.
Comment 17: We received comments that assert that EPA cannot credit
the Post-1996 plan submitted by Virginia and Maryland with reductions
from measures credited in the 15% plan and cannot count emission
reductions to both the 15% and 9% reduction requirements, that is
reductions from some measures are being counted towards both the 5% and
9% reduction requirements.
Response 17: EPA disagrees with this comment. Under EPA's
interpretation of the reasonable further progress (also called rate-of-
progress (ROP)) requirements under section 182 of the CAA, the 15%
reduction requirement and post-1996 reduction requirement (e.g., 9% by
1999) are not separate tabulations but rather the post-1996 requirement
is in addition to the 15% requirement.
EPA has always interpreted the ROP requirement to be a requirement
to lower an area's emissions below a target level of emissions. See 57
FR at 13506, April 16, 1992. The 9% per post-1996 requirement (over the
three year period 1996 to 1999) is in addition to 15% by 1996
requirement. See 57 FR at 13516. EPA continued this approach in
guidance documents issued subsequent to April 16, 1992.
The target level for any milestone year is always calculated
relative to the 1990 base year emissions in the area and results in a
lower target level for each milestone year. The 15% target level of VOC
emissions is the 1990 base year inventory adjusted to account for the
effects on base year emissions of certain noncreditable programs under
Clean Air Act section 182(b): (1) Certain mandated RACT and I/M rule
corrections, if any; (2) certain mandated reductions in gasoline Reid
vapor pressure (the so called ``Phase II RVP'' program) to occur in
1992; and (3) the federal motor vehicle control program in place as of
1990 (the so-called ``Tier 0 FMVCP''). This adjusted VOC emissions
inventory is reduced by 15% to arrive at the 15% plan target level.
Calculation of the VOC target level for the 1999 milestone year
starts with the 15% plan target level and applies further decremental
reductions. Part of the decrement is due to effects on base year
emissions due to the Tier 0 FMVCP between 1996 and 1999 (which is not
creditable towards the 9% per year post-1996 ROP requirement under the
Act) and part due to application of the post-1996 9% requirement.
Substituting NOX reductions for VOC reductions only lessens
the additional 9% VOC reduction requirement by 1999 to some lesser
percentage, which is 1% in the case of the plan subject to this
rulemaking action.
Under section 182(b) of the CAA, the ROP requirements are to be met
accounting for growth in the area.
An emission reduction is the difference between two emission
projections that differ only in the presence of the effects of a
control strategy in one case and the absence in the other (often
referred to the ``uncontrolled'' projected emissions). For the 15% ROP
plan, the projection year is 1996 whereas for the Post-1996 ROP plan
the year is 1999.
A demonstration of ROP for the 15% plan requires that the plan have
enough reductions to reduce the 1996 projected uncontrolled emissions
to less or equal to the 1996 target level. The Post-1996 ROP plan has
to have enough VOC reductions to account for growth in VOC emissions
between 1996 and 1999 and to make the VOC portion (when NOX
is substituted) of the 1996 to 1999 3% per year reduction requirement.
The Post-1996 plan for the Washington area projects all emissions
in all categories to 1999 without new

[[Page 629]]

controls from the 1990 base year level and then applies controls to
determine 1999 reductions. (Any growth projections in uncontrolled
emissions for 1996 to 1999 or any changes in reductions for 1996 to
1999 in the plan were the difference between the 1990 to 1999
projections and the 1990 to 1996 projections (from the 15% plan)). The
Post-1996 ROP plans evaluate the effects of the various creditable
control strategies in the plan on these uncontrolled emissions levels
to determine the reductions in 1999 from the Post-1996 ROP plan. EPA is
approving the Post-1996 ROP plans on the basis that there were
sufficient projected reductions to reduce the 1999 projected
uncontrolled emissions to less than or equal to the target level.
Some measures used for the 15% ROP demonstration may produce more
reductions relative to projected 1999 uncontrolled emissions for the
post-1996 plan than for the reductions relative to projected 1996
uncontrolled emissions the 15% plan because the source categories
affected by the measures have higher uncontrolled emissions in the
post-1996 period due to growth in emissions related activity. (Other
measures produce the same reductions because the underlying emissions
related activity are projected to remain steady.) Some measures namely
the additional rules under the FMVCP promulgated since 1990 (i.e.,
``Tier 1'') produce greater reductions for a post-1996 plan than for
the 15% plan for an additional reason than just growth in underlying
emissions related activity: the post-1996 fleet contains a higher
percentage of vehicles meeting the newer standards than the fleet
assumed in the 15% plan.
Suppose a measure (implemented after 1990 but before 11/15/96) can
reduce emissions in a sector (or at a source) by 20%. Suppose the 1990
base line emissions for that sector (or source) were 10.0 tons per day.
Suppose the emissions in the category were projected to grow 1% per
year or 6.2% between 1990 and 1996 and 9.4% between 1990 and 1999. The
uncontrolled emissions would be 10.62 (10 x 1.062) tons per day for
1996 and 10.94 (10 x 1.094) tons per day for 1999. The 1996
reductions would be 2.12 tons per day (0.20 x 10.62) , and the 1999
reductions would be 2.19 (0.20 x 10.94) tons per day.
A demonstration of ROP for the post-1996 plan requires that the
plan have enough VOC reductions to reduce the 1999 projected
uncontrolled emissions to less than or equal to the relevant post-1996
VOC target level.
In the Post-1996 ROP plan the measures used in the 15% plan are
evaluated as to how well these measures reduce projected uncontrolled
1999 emissions. These 1999 reductions were added up with the 1999
reductions from additional measures implemented after 11/15/96 to get
the total emission reductions in 1999 (relative to the 1999
uncontrolled levels).
Thus although some measures may be included in both the 15% and 9%
plans, only the reductions between 1990 and 1996 from those measures
are counted towards the 15% plan, while those from 1996 to 1999 are
counted in the 9% plan.
The comments do not offer any substantive alternative
interpretation regarding the demonstration of ROP to that which EPA has
issued in guidance on the subject except to claim once a measure has
been used towards the 15% requirement it cannot be used towards the 9%
requirement. Nor do the commenters comment adversely on EPA's
interpretation regarding demonstration of ROP through calculation of
target levels and through a showing that milestone year projected
emission inventories with all controls are less than the target levels.
As explained above, the measures used to achieve the 15% reduction
requirement by 1996 were evaluated for the effect on uncontrolled 1999
emissions (that were projected from 1990). In the case of the
Metropolitan Washington, D.C. nonattainment area additional measures
are needed in the post-1996 plan to achieve additional reductions
needed to offset growth in emissions after 1996 and to achieve the VOC
portion of the 9% reduction requirement.
Comment 18: We received comments that assert 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% reduction claimed by
Maryland for the Maryland rules applicable to autobody refinishing. The
comments state that the States assume an 80% compliance with the open
burning regulations without documenting the basis for this assertion.
The comments claim that the 80% compliance assertion is void in the
absence of plans or commitments needed for local enforcement.
Response 18: In the case of Maryland's autobody refinishing rule,
Maryland's rule requires coating limits equivalent to those required
under EPA's proposed autobody refinishing rule. Maryland's rule also
establishes VOC content requirements for surface preparation cleaners,
equipment cleaning, and for application equipment. The effect from the
coating limits, surface preparation cleaners, and equipment cleaning
would be a reduction of 42.5% based upon the analysis in EPA's
Alternative Control Techniques: Auto Body Refinishing (EPA 453/R-94-
031, April 1994). Maryland's rule also requires the use of either low-
volume, high-pressure or high-volume, low-pressure application
equipment. STAPPA reports that the Bay Area Air Quality Management
District conservatively estimates that use of HVLP equipment can reduce
coatings usage by 20 to 40% (STAPPA/ALAPCO, ``Meeting the 15% Rate of
Progress--A Menu of Options'', pages 91-99 (Sept. 1993)). A 20%
reduction in coatings usage would result in a further 12% reduction in
coating emissions which equate to a further 10% reduction in overall
emissions. Based upon this EPA believes the 45% reduction credit
assumed by Maryland is appropriate and may be conservative.
Regarding open burning, 80% compliance is reasonable as a default
compliance rate. This default 80% compliance assertion is based upon
EPA's guidance for rule effectiveness. This guidance was among that
listed in appendix A to the TSD for the proposed action (such as item
numbers 4, 5, 6, 24, 27, 30, 35, 36, and 38 among others). EPA's
guidance allows States to assume 80% compliance rate as a default. EPA
views the fact that States take the default 80% rule effectiveness as a
defacto commitment to invest enforcement resources to ensure this level
of compliance.
Comment 19: We received comments that claimed 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 19: The emissions from the open burning category were
documented in the 1990 base year emissions inventory. These were
documented in Chapter 3.0, section 3.4.4.5.2 on pages 3-65 and 3-66,
and on page III-32 of Appendix 3.0 of the ``1990 Base Year Emissions
Inventory for Stationary Anthropogenic, Biogenic and Highway Vehicle
Emissions of Ozone Precursors in the Washington, DC-MD-VA Metropolitan
Statistical Nonattainment Area'', dated September 22, 1993, that was
submitted by Maryland and Virginia as part of their 1990 base year
emissions inventory SIP.
Comment 20: We received comments asserting that the Maryland and
Virginia attainment and Post-1996 ROP plans are flawed because they
assume a fleet mix

[[Page 630]]

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 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. The
comments also assert 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. The comments also assert
that if the motor vehicle inventory has not been updated to prepare the
current SIP submission, it should be disapproved.
Response 20: 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. The Metropolitan Washington D.C. Ozone Nonattainment Area SIP
is based on vehicle registration data from 1996, which is the most
recent data available 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
reanalyze 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 are 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 Metropolitan Washington, D.C. area states to revise the
attainment budgets using MOBILE6.
Comment 21: We received comments that assert that the Post-1996 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 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 21: EPA disagrees with the commenter's assertion that
states must provide such information with each SIP revision. Although
Clean Air Act sections 110(a)(2)(E) and 110(a)(2)(C) do contain these
provisions cited by the commenter, section 110(a)(2)(H) is the
statutory provision which governs requirements for individual plan
revisions which States may be required to submit from time to time.
There are no cross-references in section 7410(a)(2)(H) to either
7410(a)(2)(E) or 7410(a)(2)(C). Therefore, EPA concludes that Congress
did not intend to require States to submit an analysis of adequate
funding and enforcement with each subsequent and individual SIP
revision submitted under the authority of section 110(a)(2)(H).
Once EPA approves a State's SIP as meeting section 110(a)(2), EPA
is not required to reevaluate that SIP for each new revision to the
plan to meet additional requirements in later sections of the Act. The
Metropolitan Washington D.C. area States had previously received
approval of their section 110(a)(2) SIPs.
In a final rulemaking action published on February 25, 1984 (49 FR
3063), EPA approved Virginia's financial and manpower resource
commitments, after having proposed approval of these commitments on
February 3, 1983 (48 FR 5124 at 5127).
In a final rulemaking action published on March 8, 1984 (49 FR
8610), EPA approved Maryland's financial and manpower resource
commitments, after having proposed approval of these commitments on
February 3, 1983 (48 FR 5048 at 5052).
In a final rulemaking action published on October 3, 1984 (49 FR
39059 at 39060), EPA approved the District's financial and manpower
resource commitments, after having proposed approval of these
commitments on December 17, 1983 (48 FR 54833 at 54836).
Neither this commenter or any other person has submitted
substantive comments that would lead EPA to separately analyze whether
it should call on the states to revise their section 110(a)(2) SIPs
regarding enforcement and funding.

III. Final Action

A. The District of Columbia

1. Post-1996 ROP Plan
EPA is approving the District of Columbia's post-1996 (ROP) plan
SIP revision for the Washington area which was submitted on November 3,
1997, and supplemented on May 25, 1999.
2. Attainment Demonstration
EPA is approving the District of Columbia's attainment
demonstration SIP revision for the Washington area which was submitted
on April 24, 1998, and supplemented on October 27, 1998, and on
February 16, 2000, and section 9.1.1.2 of the March 22, 2000 SIP
supplement dealing with a commitment to revise the 2005 attainment
motor vehicle emissions budgets within one-year of the EPA's release of
the MOBILE6 model.
3. Attainment Date Extension
EPA is approving the District of Columbia's request for an
attainment date extension from November 15, 1999 to November 15, 2005,
for the Washington area.

B. State of Maryland

1. Post-1996 Plan
EPA is approving the State of Maryland's post-1996 (ROP) plan SIP
revision for the Washington area which was submitted on December 24,
1997, and supplemented on May 20, 1999, and the transportation control
measures in Appendix H of the May 20, 1999 submittal.
2. Attainment Demonstration
EPA is approving the State of Maryland's attainment demonstration
SIP revision for the Washington area which was submitted on April 29,
1998 and supplemented on August 17, 1998 and February 14, 2000, and
only section 9.1.1.2 of the March 31, 2000 SIP supplement dealing with
a commitment to revise the 2005 attainment motor vehicle emissions
budgets within one-year of the EPA's release of the MOBILE6 model.
3. Attainment Date Extension
EPA is approving the State of Maryland's request for an attainment
date extension from November 15, 1999 to November 15, 2005, for the
Washington area.

[[Page 631]]

C. Commonwealth of Virginia

1. Post -1996 Plan
EPA is approving the Commonwealth of Virginia's post-1996 (ROP)
plan SIP revision for the Washington area which was submitted on
December 19, 1997, and supplemented on May 25, 1999, and the
transportation control measures in Appendix H of the May 25, 1999
submittal.
2. Attainment Demonstration
EPA is approving the Commonwealth of Virginia's attainment
demonstration SIP revision for the Washington area which was submitted
on April 29, 1998 and supplemented on August 18, 1998, and February 9,
2000, and only section 9.1.1.2 of the March 31, 2000 SIP supplement
dealing with a commitment to revise the 2005 attainment motor vehicle
emissions budgets within one-year of the EPA's release of the MOBILE6
model.
3. Attainment Date Extension
EPA is approving the Commonwealth of Virginia's request for an
attainment date extension for the Washington area from November 15,
1999 to November 15, 2005.

IV. Administrative Requirements

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. 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). For the same reason, this
rule also does not significantly or uniquely affect the communities of
tribal governments, as specified by Executive Order 13084 (63 FR 27655,
May 10, 1998). This rule will 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), because it 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 (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. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
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 this action must be filed in the United States Court
of Appeals for the appropriate circuit by March 5, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action to approve the Post-1996 ROP plan, the
ozone attainment demonstration and the attainment date extension SIP
revisions submitted by the District, Maryland and Virginia 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, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.

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

Dated: December 15, 2000.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

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

Subpart J-DC

2. Section 52.475 is added to read as follows:

Sec. 52.475 Extensions.

The Administrator hereby approves a request to extend the
attainment date for the national ambient air quality standards for
ozone to November 15, 2005 for the Metropolitan Washington, DC ozone
nonattainment area.

3. Section 52.476 is amended by designating the existing text as
paragraph (a) and by adding paragraphs (b) and (c) to read as follows:

Sec. 52.476 Control strategy and rate-of-progress plan: ozone.

* * * * *
(b) EPA is approving the District of Columbia's post-1996 (ROP)
plan SIP revision for the Washington area which was submitted on
November 3, 1997, and supplemented on May 25, 1999.
(c) EPA approves the revisions to the State Implementation Plan
submitted by the District of Columbia Department of

[[Page 632]]

Health on April 24, 1998, October 27, 1998, and February 16, 2000, and
only section 9.1.1.2 of the March 22, 2000 SIP supplement dealing with
a commitment to revise the 2005 attainment motor vehicle emissions
budgets within one-year of the EPA's release of the MOBILE6 model. The
revisions are for the purpose of satisfying the attainment
demonstration requirements of section 182(c)(2)(A) of the Clean Air Act
for the Metropolitan Washington, DC serious ozone nonattainment area.
The revision establishes an attainment date of November 15, 2005 for
the Metropolitan Washington, DC ozone nonattainment area. This revision
establishes motor vehicle emissions budgets for 2005 of 101.4 tons per
day of volatile organic compounds (VOC) and 166.7 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. In the revision, the District of
Columbia commits to revise their VOC and NOX transportation
conformity budgets within one year of the release of the MOBILE6 model.
The District of Columbia also commits to conduct a mid-course review to
assess modeling and monitoring progress achieved towards the goal of
attainment by 2007, and submit the results to EPA by December 31, 2003.

Subpart V-MD

4. Section 52.1078 is added to read as follows:

Sec. 52.1078 Extensions.

The Administrator hearby approves a request to extend the
attainment date for the national ambient air quality standards for
ozone to November 15, 2005 for the Metropolitan Washington, DC ozone
nonattainment area.

5. Section 52.1076 is amended by adding paragraphs (d) and (g) to
read as follows:

Sec. 52.1076 Control strategy and rate-of-progress plan: ozone.

* * * * *
(d) EPA is approving the State of Maryland's post-1996 (ROP) plan
SIP revision for the Washington area which was submitted on December
24, 1997, and supplemented on May 20, 1999, and the transportation
control measures in Appendix H of the May 20, 1999 submittal.
* * * * *
(g) EPA approves the revisions to the State Implementation Plan
submitted by the Maryland Department of the Environment on April 29,
1998, August 17, 1998, and February 14, 2000, and only section 9.1.1.2
of the March 31, 2000 SIP supplement dealing with a commitment to
revise the 2005 attainment motor vehicle emissions budgets within one-
year of the EPA's release of the MOBILE6 model. The revisions are for
the purpose of satisfying the attainment demonstration requirements of
section 182(c)(2)(A) of the Clean Air Act for the Metropolitan
Washington, DC serious ozone nonattainment area. The revision
establishes an attainment date of November 15, 2005 for the
Metropolitan Washington, DC ozone nonattainment area. This revision
establishes motor vehicle emissions budgets for 2005 of 101.4 tons per
day of volatile organic compounds (VOC) and 166.7 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. In the revision, Maryland commits to
revise their VOC and NOX transportation conformity budgets
within one year of the release of the MOBILE6 model. Maryland also
commits to conduct a mid-course review to assess modeling and
monitoring progress achieved towards the goal of attainment by 2007,
and submit the results to EPA by December 31, 2003.

Subpart VV-VA

6. Section 52.2429 is added to read as follows:

Sec. 52.2429 Extensions.

Sec. 52.2428 Control strategy and rate-of-progress plans: ozone.

* * * * *
(c) EPA is approving the Commonwealth of Virginia's post-1996 (ROP)
plan SIP revision for the Washington area which was submitted on
December 19, 1997, and supplemented on May 25, 1999, and the
transportation control measures in Appendix H of the May 25, 1999
submittal.
(d) EPA approves the revisions to the State Implementation Plan
submitted by the Virginia Department of Environmental Quality on April
29, 1998, August 18, 1998, and February 9, 2000, and only section
9.1.1.2 of the March 31, 2000 SIP supplement dealing with a commitment
to revise the 2005 attainment motor vehicle emissions budgets within
one-year of the EPA's release of the MOBILE6 model. The revisions are
for the purpose of satisfying the attainment demonstration requirements
of section 182(c)(2)(A) of the Clean Air Act for the Metropolitan
Washington, DC serious ozone nonattainment area. The revision
establishes an attainment date of November 15, 2005 for the
Metropolitan Washington, DC ozone nonattainment area. This revision
establishes motor vehicle emissions budgets for 2005 of 101.4 tons per
day of volatile organic compounds (VOC) and 166.7 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. In the revision, Virginia commits to
revise their VOC and NOX transportation conformity budgets
within one year of the release of the MOBILE6 model. Virginia also
commits to conduct a mid-course review to assess modeling and
monitoring progress achieved towards the goal of attainment by 2007,
and submit the results to EPA by December 31, 2003.

[FR Doc. 01-61 Filed 1-2-00; 8:45 am]
BILLING CODE 6560-50-U

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Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress Plans, One-Hour Ozone Attainment Demonstrations and Attainment Date Extension for the Metropolitan Washington D.C. Ozone Nonattainment Area

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