Determination of Nonattainment as of November 15, 1999, and Reclassification of the Metropolitan Washington, DC Ozone Nonattainment Area; District of Columbia, Maryland, Virginia

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

[Federal Register: January 24, 2003 (Volume 68, Number 16)]
[Rules and Regulations]
[Page 3410-3425]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja03-15]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[DC039-2030; MD073-3101; VA090-5063; FRL-7441-9]

Determination of Nonattainment as of November 15, 1999, and
Reclassification of the Metropolitan Washington, DC Ozone Nonattainment
Area; District of Columbia, Maryland, Virginia

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: EPA is taking final action to issue a determination that the
Metropolitan Washington, D.C. serious ozone nonattainment area
(hereinafter referred to as the Washington area) did not attain the 1-
hour ozone national ambient air quality standard (NAAQS) by the
November 15, 1999 Clean Air Act (CAA) deadline for serious ozone
nonattainment areas. As a result, the Washington area is reclassified
by operation of law as a severe ozone nonattainment area on the
effective date of this rule. The District of Columbia, the State of
Maryland and the Commonwealth of Virginia each must submit by March 1,
2004, a State Implementation Plan (SIP) revision for the Washington
area that meets the severe area ozone nonattainment area requirements
of CAA section 182(d). Finally, EPA is adjusting the dates by which the
area must achieve a nine (9) percent reduction in ozone precursor
emissions to meet the 2002 rate-of-progress (ROP) requirement and
adjusting contingency measure requirements as this relates to the 2002
ROP milestone. In an Order entered on December 18, 2002, the United
States District Court for the District of Columbia directed EPA to
publish a final action in the Federal Register determining whether the
Washington area had attained the applicable ozone standard under the
CAA and any reclassification of the area required as a result of this
determination. This final determination and this notice are in direct
response to and comply with the Court's order.

DATES: This final rule is effective on March 25, 2003.

ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103.

[[Page 3411]]

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or
by e-mail at Cripps.Christopher @epa.gov.

SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in
this document refers to EPA.

Table of Contents

I. What is the Background for this Rule?
II. What Does This Action Do?
III. What Public Comments Were Received and What are EPA's
Responses?
IV. What is the Impact of Reclassification on Title V Operating
Permit Programs?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What Is the Background for This Rule?

A. When Did EPA Propose to Reclassify the Washington Area?

On November 13, 2002, EPA proposed to find that the Washington
serious ozone nonattainment area did not attain the 1-hour ozone NAAQS
by November 15, 1999, the attainment deadline for serious ozone
nonattainment areas under CAA section 181(a). See 67 FR 68805. The
proposed finding was based upon ambient air quality data from the years
1997, 1998, 1999. These data showed that the 1-hour ozone NAAQS of 0.12
parts per million (ppm) had been exceeded on an average of more than
one day per year over this three-year period and that the area did not
qualify for an attainment date extension under section 181(a)(5). EPA
also proposed that the appropriate reclassification of the area was to
severe ozone nonattainment.

B. What Is the Washington Ozone Nonattainment Area?

For the purposes of this final rule, the Washington ozone
nonattainment area (the Washington area) consists of: the District of
Columbia; Calvert, Charles, Frederick, and Montgomery, Prince Georges
counties in Maryland; and, the counties of Arlington, Fairfax, Loudoun,
Prince William and Stafford and the cities of Alexandria, Fairfax,
Falls Church, Manassas, and Manassas Park in Virginia. See 40 CFR
81.309, 40 CFR 81.321 and 40 CFR 81.347.

C. What Is a SIP?

Section 110 of the CAA requires states to develop air pollution
regulations and control strategies to ensure that state air quality
meet the NAAQS established by EPA. These ambient standards are
established under section 109 of the CAA, and they currently address
six criteria pollutants: carbon monoxide, nitrogen dioxide, ozone,
lead, particulate matter, and sulfur dioxide.
Each state must submit these regulations and control strategies to
us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin. These SIPs can be
extensive. They may contain state regulations or other enforceable
documents and supporting information such as emission inventories,
monitoring networks, and modeling demonstrations.

D. What Is the NAAQS for Ozone?

The NAAQS for ozone is expressed in two forms which are referred to
as the 1-hour and 8-hour standards. Table 1 summarizes the ozone
standards.

----------------------------------------------------------------------------------------------------------------
Standard Value Type Method of compliance
----------------------------------------------------------------------------------------------------------------
1-hour............................. 0.12 ppm.............. Primary and Secondary. Must not be exceeded, on
average, more than one day
per year over any three-
year period at any monitor
within an area.
8-hour annual...................... 0.08 ppm.............. Primary and Secondary. The average of the fourth
highest daily maximum 8-
hour average ozone
concentration measured at
each monitor over any
three-year period.
----------------------------------------------------------------------------------------------------------------

(Primary standards are designed to protect public health and
secondary standards are designed to protect public welfare and the
environment.)
The 1-hour ozone standard of 0.12 parts per million (ppm) was
promulgated in 1979. The 1-hour ozone standard continues to apply to
the Washington area, and it is the classification of the Washington
area with respect to the 1-hour ozone standard that is addressed in
this document.

E. How Did EPA Apply the CAA Provisions Regarding Determinations of
Nonattainment and Reclassifications to the Washington Area?

On November 13, 2002, EPA proposed its finding that the Washington
area did not attain the 1-hour ozone standard by the applicable date
(67 FR 68805). In that notice of proposed rulemaking we discussed how
we believed the provisions of section 181(b)(2), the relevant sections
of the CAA regarding determinations of attainment and reclassifications
for failure to attain, would apply to the Washington area. See 67 FR at
68806 to 68808. The proposed finding was based upon ambient ozone
concentration data for the period 1997 through 1999, from the
monitoring sites in the Washington area, several of which recorded an
average of more than one exceedance per day per year.
Section 181(b)(2)(A) of the Clean Air Act requires that when EPA
determines that an area has not attained the standard by its
statutorily required date the area shall be reclassified by operation
of law to the higher of--
(1) The next higher classification for the area, or
(2) The classification applicable to the area's design value as
determined at the time EPA publishes its notice that the area failed to
attain.
Even if a serious area's design value at the time of
reclassification is lower than the design value for serious areas that
serious area cannot be reclassified to a lower classification because
the minimum statutory classification resulting from a failure to attain
is severe.
The air quality data upon which we made the proposed finding of
failure to attain the ozone NAAQS were available for comment in our
November 13, 2002, notice of proposed rulemaking. For a listing of the
average number of days when ambient ozone concentrations exceeded the
one-hour ozone standard, See 67 FR at 68807-68808 (November 13, 2002).
We received no adverse comments pertaining to that air quality data and
the proposed determination of noattainment.
EPA has determined that the relevant air quality data for the
period of 1997 through 1999, inclusive, for the Washington area shows
that the Washington area contained at least one monitor with an average
annual number of expected exceedances that was greater than the 1.0
allowed by the 1-hour ozone NAAQS. Although currently classified as a
``serious'' nonattainment area, if the Washington area were being

[[Page 3412]]

classified for the first time today, the classification applicable to
the area's design value would be ``marginal.'' However, section
181(b)(2)(A)(1) requires that an area be reclassified to the higher of
its current design value or the next higher classification (with the
exception that no area can reclassified to ``extreme''). ``Severe,''
not ``marginal,'' is the next higher nonattainment classification from
``serious'' under CAA. Therefore, we make the determination pursuant to
section 181(b)(2)(B) of the CAA that the Washington area did not attain
the one-hour ozone standard by the November 15, 1999, attainment date,
and that the area is reclassified by operation of law to severe
nonattainment on the effective date of this rule.

F. Why Is This Action Necessary?

On November 13, 2002, the Sierra Club filed a complaint in the
United States District Court for the District of Columbia against EPA
(Sierra Club v. Whitman, No. 1:02CV02235(JR)) regarding, among other
things, the attainment status and classification of the Washington
area. On December 18, 2002, the United States District Court for the
District of Columbia issued an order directing EPA to publish, by
January 27, 2003, a determination of whether the Washington area had
attained the applicable ozone standard under the CAA. The Court also
ordered EPA to publish in the Federal Register a notice of a final
action reflecting both this determination and any reclassification of
the area required as a result of the determination. Our final
determination and this notice comply with the Court's Order.

II. What Does This Action Do?

In this action, EPA is issuing a final determination that the
Washington area did not attain the 1-hour ozone NAAQS by November 15,
1999, as prescribed in section 181 of the CAA, in fulfilling our
nondiscretionary duty pursuant to the CAA. As a result of this final
determination, the Washington area is reclassified by operation of law
to severe ozone nonattainment pursuant to section 181(b)(2) of the CAA.
In addition, this action sets the dates by which the District of
Columbia (the District), Maryland and Virginia (collectively referred
to as ``the States'') each must submit SIP revisions addressing the
CAA's pollution control requirements for severe ozone nonattainment
areas (the ``severe area SIP'') and to attain the 1-hour NAAQS for
ozone. The required post-1999 ROP nine percent reduction originally was
required by November 15, 2002 under the CAA. However, that date has
elapsed. Therefore, in this action EPA is allowing the District,
Maryland and Virginia to demonstrate that the first required post-1999
nine percent ROP is achieved as expeditiously as practicable after
November 15, 2002, but in any case no later than November 15, 2005. EPA
is allowing the District, Maryland and Virginia to key contingency
measures for the 2002 ROP milestone to this new date.\1\
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\1\ The severe area ROP plan will also have to provide for the
second increment of post-1999 ROP for the period 2002 to 2005 and
thus must achieve a minimum of 18 percent emission reduction from
base line emissions by November 15, 2005.
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III. What Public Comments Were Received and What are EPA's Responses?

In the November 13, 2002, notice of proposed rulemaking (67 FR
68805) for this action, EPA proposed: (1) To find that the Metropolitan
Washington, DC serious ozone nonattainment area has failed to attain
the one-hour ozone NAAQS by November 15, 1999, and, as a consequence,
the Washington area would be reclassified as a severe nonattainment
area; (2) to require the District of Columbia, the State of Maryland
and the Commonwealth of Virginia to submit revisions to their State
Implementation Plan (SIP) that adopt the severe area requirements by
the earlier of one year after the effective date of a final action on
the attainment determination or March 1, 2004; and (3) to allow the
District, Maryland and Virginia to adjust the dates by which the area
must achieve a nine percent reduction in ozone precursor emissions to
meet the 2002 rate-of-progress requirement to a date as expeditiously
as practicable (but in no case any later than November 15, 2005), and
to adjust the contingency measure requirement as this relates to the
2002 rate-of-progress requirement accordingly.
We solicited public comments on these issues discussed in the
notice of proposed rulemaking as well as other relevant matters. We
received comment letters from Earth Justice Legal Defense Fund (on
behalf of the Sierra Club), the Virginia Department of Transportation,
Dominion Energy and three residents of the Washington area.
In this document, EPA is responding to adverse comments that are
germane to this final action and which were submitted in response to
the November 13, 2002, notice of proposed rulemaking (67 FR 68805).
EPA received no adverse comments pertaining to the data used for
our nonattainment determination, and therefore we are making the
determination that Washington did not attain by its attainment
deadline.

A. Finding of Failure to Attain and Reclassification to Severe

Summary of Comments in Support of EPA's Proposed Action
EPA received comments supporting the determination of nonattainment
and the change in the classification from serious to severe. One
resident of the District expressed concern about personal health
effects of breathing air in the District which the commenter believes
is not as clean as in more rural areas. Another commenter stated
support for the proposed finding of failure to attain and stated
concurrence that the resulting reclassification by operation of law
should result in a severe classification.
Comments Adverse to EPA's Proposed Action
Comment #1: We received one comment that stated the major reason
that the Washington, area is being reclassified from serious to severe
is because of transport from outside the area. The commenter claimed
that other States and industries in the ``Ohio Valley'' have not
reduced emissions soon enough to enable the Washington area attain by
1999.
Response #1: While EPA agrees that the Washington area is
significantly affected by transport from outside the area, the U.S.
Court of Appeals for the D.C. Circuit ruled on July 2, 2002 that EPA is
precluded from extending the Washington area's attainment date unless
the extension qualifies under CAA section 181(a)(5) or it involves
reclassification to a higher classification. With respect to attainment
date extensions, the D.C. Circuit also ruled that the plain language of
the Clean Air Act ``sets a deadline without an exception for setbacks
owing to ozone transport.'' Therefore, the Court held that EPA is
without authority to extend the attainment deadline for the Washington
area unless we also reclassify the area as a severe nonattainment area.
See Sierra Club v. Whitman, 294 F.3d 155, 163 (D.C. Cir. 2002).
EPA is issuing a final finding that the Washington area failed to
attain the 1-hour ozone NAAQS and is reclassified by operation of law
to severe nonattainment.

[[Page 3413]]

B. Severe Area SIP Revision Submittal Schedule

Comments Supporting a Shorter Schedule and on Application of Section
(i)
One commenter submitted extensive comments in opposition to the
proposed schedule for submittal of the severe area SIP.
This commenter claims EPA's use of section 182(i) is arbitrary and
capricious and contrary to law. The commenter notes that the CAA set
deadlines for SIP submittals for serious and severe areas in CAA
sections 182(c)(2) and (d). The commenter claims those deadlines are
not subject to adjustment and have long passed.
This commenter noted the following deadlines as examples:
(1) November 15, 1992: ``VMT offset'' SIP due under CAA section
182(d)(1).
(2) November 15, 1992: NSR program mandated by CAA sections
172(c)(5) and 173 including the lower stationary source major source
thresholds for severe areas.
(3) November 15, 1994: for the attainment demonstration due under
CAA sections 182(c)(2) and (d).
(4) December 31, 2000: SIP provision due under CAA section
182(d)(3) to fulfill the requirements of section 185.
The commenter claims that section 182(i) requires areas to met the
deadlines of sections 182(b)-(d) and allows EPA to adjust those
deadlines only to the extent necessary or appropriate to assure
consistency among the required submissions. The commenter claims that
EPA has not provided a rationale why the proposed schedule is necessary
and appropriate and therefore EPA must make immediate ``findings of
incompleteness'' under section 110(k)(1)(B).
The commenter further claims the proposed schedule has other
problems in that the schedule runs afoul of the statutory attainment
and ROP deadlines:
(1) The 2002 ROP plan will be due 16 months after the 2002
milestone date,
(2) The first potential sanction could only be imposed by August-
September 2005 around 34 months after the 2002 ROP milestone date and
around two months before the attainment date.
(3) The second potential sanction and the mandate for any needed
Federal Implementation Plan would not come due until after the
attainment deadline of November 15, 2005. Thus the commenter concludes
the proposed schedule also is contrary to the CAA in that the plans
would not be submitted and implemented prior to ROP and attainment
deadlines.
With regard to the 2002 milestone, the commenter further claims
that the Courts have already said that the Washington area SIP ROP plan
is deficient and must be disapproved because the plan fails to provide
an annual average of three percent ROP after November 15, 1999. The
commenter's theory is that section 182(c)(2)(B) mandates post-1999 ROP
even for serious areas and that the submittal deadline for this SIP is
November 15, 1994. Under this theory the commenter concludes the EPA
has no authority to extend the deadline for submittal of the ROP plans
since the statutory due date of November 15, 1994 is past.
The same commenter further asserts that even if EPA could lawfully
extend the submittal date (although the commenter disputes this very
point) the standard for submission should be ``as soon as possible.''
The commenter submitted a schedule recently developed by the
Metropolitan Washington Air Quality Committee (MWAQC) \2\ that the
commenter interprets as a demonstration that the air quality planning
agencies could develop the entire severe area SIP by July 2003. The
commenter maintains that EPA must set the submittal date to no later
than the date the air quality planning agencies maintain is necessary
to finish the task.
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\2\ The commenter identified this agency as the Metropolitan
Washington Council of Governments (MWCOG).
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One other commenter urged EPA to be proactive in enforcing the
severe area requirements and urged EPA to enable an expeditious switch
from the MOBILE5 to MOBILE 6.
Response to Comments Supporting a Shorter Schedule and on Application
of Section 182(i)
Response to Comment on Section 182(i): EPA's exercise of discretion
under section 182(i) to adjust the submission deadlines for the severe
area requirements that become applicable to the D.C. area for the first
time upon the effective date of the area's reclassification is not
arbitrary or capricious, and is in keeping with the terms and purpose
of the statute. Section 182(i) states that the Administrator may adjust
applicable deadlines (other than attainment dates) to the extent such
adjustment is necessary or appropriate to assure consistency among the
required submissions of new requirements applicable to an area which
has been reclassified. Where a submission date has passed and is
therefore impossible to meet, EPA has concluded that the Administrator
may establish a later date. EPA has applied this interpretation in its
prior reclassification rulemaking actions. See Santa Barbara,
California, (62 FR 65025, December 10, 1997); Phoenix, Arizona (62 FR
60001, November 6, 1997); and Dallas-Fort Worth, Texas (63 FR 8128,
February 18, 1998). The structure of the Clean Air Act itself
reinforces this interpretation. Under the Act, the original dates for
submissions for areas initially classified as serious, severe, and
extreme areas was 1994. The attainment date for serious areas is 1999.
Thus the Act does not require EPA to make a determination of whether or
not a serious area met its 1999 attainment deadline until more than
five years after the original submission date for areas originally
classified as severe. Since the original 1992, 1994 and 2000 submission
dates have elapsed, it is impossible for EPA to establish any of these
as the submission deadline for a newly reclassified area.
EPA has determined that in light of the fact that the original
submission dates for severe areas have elapsed prior to the time that
we issued the proposed reclassification rulemaking for the Washington
area, it is a reasonable exercise of EPA's discretion to adjust the
applicable submission deadlines in order to ensure consistency among
the new requirements. Because it is impossible for the state to meet
long-expired deadlines, EPA must set new deadlines that will ensure
consistency of submissions for requirements that the state is only
being notified that it must meet. This is entirely in keeping with the
discretion that Congress accorded EPA in section 182(i), and with EPA's
prior reclassification rulemakings making appropriate adjustments to
submission deadlines. Because the States must now meet newly imposed
requirements such as post-1999 ROP and additional severe area control
requirements, EPA must set prospective submission dates, and has
authority under section 182(i) to make these dates consistent.
To interpret the Clean Air Act as the commenter suggests would give
the reclassification retroactive effect by holding the States in
default of their submission obligations before the events necessary to
trigger that obligation (reclassification) has occurred. Until EPA acts
to reclassify an area, the states are under no obligation to make the
required submissions. To subject them to a lapsed deadline after
reclassification would be patently unfair and contrary to the statute's
intent. Giving the submission deadlines

[[Page 3414]]

retroactive effect would also be inconsistent with the Administrative
Procedure Act, 5 U.S.C. 553(d), which requires that before a rule takes
effect, persons affected will have advance notice of its requirements.
A failure to meet an obligation, especially one accompanied by
sanctions, cannot occur in advance of the imposition of that
obligation. The obligation to submit requirements to meet the severe
area classification did not exist for the Washington area prior to the
final action that reclassifies the area. Giving retroactive effect to
the old SIP submission deadlines would also preclude EPA from
exercising the discretion with respect to setting the deadlines for
these submissions that is specifically afforded by section 182(i).
In Sierra Club v. Whitman, 130 F. Supp.2d 78 (D.D.C. 2001),
affirmed, 285 F.3d 63 (D.C. Cir. 2002), a case involving the
reclassification of the St. Louis nonattainment area, the District
Court refused to interpret the reclassification provisions as
authorizing relief that would treat submission deadlines as having
lapsed prior to EPA having issued a reclassification rulemaking. The
court stated that such an interpretation ``could `create * * * an
injustice at the hands of the court itself.' '' 130 F. Supp.2d at 94.
Such relief ``could throw the (area) into extreme noncompliance.'' Id.
The court refused to impose such relief when it ``could effectively
penalize the state and local entities that are required to comply with
EPA findings.'' Id. In the St. Louis case, the Sierra Club demanded not
only retroactive reclassification, but also demanded that the district
court declare that ``the State of Missouri has failed to file a SIP
revision that comports with the requirements of section 7511a(c) by the
statutory deadline of May 15, 1998,'' id. at 87, a date that had long
since passed. The district court refused to do so, recognizing that
this would unfairly penalize the States, which are entitled to rely on
EPA's actions in anticipating the burdens that will be imposed pursuant
to the CAA. Imposition of sanctions would also have unfair adverse
consequences for emissions sources.
The D.C. Circuit upheld the District court's ruling. ``In any
event, what Sierra Club sought--to have the effective date of EPA's
court-ordered determination converted to the date the statute
envisioned, rather than the actual date of EPA's action--was a form of
relief the district court quite properly rejected.'' Sierra Club v.
Whitman 285 F.3d 63, 68 (D.C. Cir. 2002). The D.C. Circuit continued:
``Although EPA failed to make the nonattainment determination within
the statutory time frame, Sierra Club's proposed solution only makes
the situation worse. Retroactive relief would likely impose large costs
on the States, which would face fines and suits for not implementing
air pollution prevention plans in 1997, even though they were not on
notice at the time.'' Id. See also NRDC v. EPA, 22 F.3d 1125 (D.C. Cir.
1994).
EPA believes that it has provided an adequate rationale for its
exercise of discretion in setting the applicable submission deadlines,
and that it would be unreasonable and inappropriate to make the
``immediate findings of incompleteness'' that the commenter suggests.
Response to Comment on ROP Submissions
The Commenter's contention that the ROP submissions are inadequate
also ignores the fact that reclassification is occurring in 2003, and
thus it is impossible for the State to meet the 2002 milestone date.
See the discussion in the preceding paragraphs regarding the
impossibility of meeting deadlines that have already passed, and the
ROP discussion in the following paragraphs.
The commenter claims that ``the rate of progress plans for the
Washington area are already deficient because they fail to provide for
the post-1999 progress mandated by section182(c)(2)(B). Sierra Club v.
Whitman, 294 F.2d 155, 163 (D.C. Cir. 2002).'' The commenter claims
plans to fulfill the post-1999 ROP obligation we due to EPA by November
15, 1994, and that because such plans were never submitted, EPA must
therefore ``disapprove those plans immediately.''
With respect to the claim that EPA must disapprove these previously
submitted ROP plans, this claim is not relevant to the proposed action,
which was for the reclassification of the Washington area concurrent
with the establishment of a reasonable deadline for submitting SIP
revisions. EPA will be taking a separate action on the submitted ROP
plans, which will address their approvability.
With respect to the claim that the area was required to submit to
EPA a plan to fulfill post-1999 ROP by November 15, 1994, the commenter
ignores the context of the Circuit Court's decision with respect to
post-1999 ROP obligations. The Circuit Court was merely agreeing with
an observation made by the plaintiff that ``with an attainment date in
2005, `the rate of progress plan for the Washington area had to
demonstrate a 9% reduction in emissions from 1996 to 1999, another 9%
from 1999 to 2002, and another 9% from 2002 to 2005''' (emphasis
added).
However, the Circuit Court vacated as contrary to the statute EPA's
approval of a 2005 attainment date for the Washington area to attain as
serious area. 294 F.2d at 164. Consequently, until the effective date
of final action to reclassify the Washington area as a severe
nonattainment area with an attainment date of November 15, 2005, the
attainment date for the Washington area remained the November 15, 1999
date for serious areas. Indeed, it is the failure of the Washington
area to attain the one-hour ozone NAAQS by November 15, 1999 that
results in the area being reclassified as a severe area.
As a serious area with a lapsed attainment date of November 15,
1999, the Washington area had no legal obligation to provide for post-
1999 ROP. As noted by the Circuit Court, only an area with an
attainment date of 2005 has a legal obligation to provide for post-1999
ROP. The Washington area will not have an attainment date of 2005 until
the effective date of its reclassification as a severe area. A serious
area has an obligation to provide for ROP until its attainment date,
which is 1999. See section 182(c)(2)(B) and section 181(a)(1). Not
until it is reclassified to severe does an area have a later attainment
date and a consequent obligation to provide for ROP until that later
attainment date (2005 in the case of the Washington area). See section
182(d). As explained elsewhere in this section of this document in the
responses regarding application of section 182(i), the Administrative
Procedure Act requires that new obligations, such as the one to
demonstrate post-1999 ROP for an area reclassified to severe
nonattainment, cannot be imposed retroactively.
Response to Comment on Findings of Incompleteness
One commenter suggests that because EPA has not provided a
rationale why the proposed schedule is necessary and appropriate the
SIP is past due (under the schedule provisions of section 182(b)-(d))
and thus EPA must make immediate ``findings of incompleteness'' under
section 110(k)(1)(B). As discussed in previous paragraphs of this
document, EPA disagrees with the commenter that section 182(i)
prohibits EPA from providing the state with time to submit a SIP
consistent with its reclassification from serious to severe. As
provided in the preceding paragraphs, EPA has concluded that it is
reasonable and appropriate to provide the state until March 1, 2004, to
submit

[[Page 3415]]

a SIP based on its reclassification. Thus, there is no SIP due yet and
there is no basis to find that the state failed to submit a complete
SIP. To the extent the commenter is suggesting that EPA determine the
area's serious area SIP to be incomplete, EPA notes that the serious
area SIP revisions for which EPA has not issued a final action were
deemed complete or deemed complete by operation of law under CAA
section 110(k)(1)(B). These serious area SIP revisions and their
submission dates are listed in the following table.

Table 2.-Submittal Dates of Serious Area SIP Revisions
[Post-1996 ROP Plans and Contingency Measure Plans]
-------------------------------------------------------------------------------------------------------------------------------------
District of Columbia Maryland Virginia
-------------------------------------------------------------------------------------------------------------------------------------
Initial submittal dates............... November 10, 1997..................... December 24, 1997.................... December 19, 1997.
Amendment dates....................... May 25, 1999.......................... May 20, 1999......................... May 25, 1999.
=======================================
Attainment Demonstrations
=======================================
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)...................
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All the attainment demonstration SIP revisions were deemed complete
by operation of law under CAA section 110(k)(1)(B) six-months after the
dates listed in the preceding table. Therefore, the latest of these
revisions related to the attainment demonstration, those submitted in
March 2000, were complete by operation of law on or prior to October 1,
2000.
On November 3, 1997, the District submitted the Post-1996 plan to
EPA as a proposed revision to the District's SIP. On December 10, 1997,
EPA determined that the Post-1996 plan fulfilled the completeness
criteria set out at 40 CFR part 51, appendix V (1991), as amended by 57
FR 42216 (August 26, 1991). On May 25, 1999, the District submitted a
revised Post-1996 plan document to EPA as a revision to the District's
SIP. On July 14, 1999, EPA determined that this revised Post-1996 plan
fulfilled the completeness criteria set out at 40 CFR part 51, appendix
V.
On December 24, 1997, Maryland submitted the Post-1996 plan to EPA
as a proposed revision to Maryland's SIP. On January 14, 1998, EPA
determined that the Post-1996 plan fulfilled the completeness criteria
set out at 40 CFR part 51, appendix V. On May 20, 1999, Maryland
submitted a revised Post-1996 plan document to EPA as a revision to
Maryland's SIP. On July 14, 1999, EPA determined that this revised
Post-1996 plan fulfilled the completeness criteria set out at 40 CFR
part 51, appendix V.
On December 19, 1997, Virginia submitted the Post-1996 plan to EPA
as a proposed revision to Virginia's SIP. On January 12, 1998, EPA
determined that the Post-1996 plan fulfilled the completeness criteria
set out at 40 CFR part 51, appendix V (1991). On May 25, 1999, Virginia
submitted a revised 1999 Post-1996 plan document to EPA as a revision
to Virginia's SIP. On July 26, 1999, EPA determined that this revised
Post-1996 plan fulfilled the completeness criteria set out at 40 CFR
part 51, appendix V.
EPA believes that it has provided an adequate rationale for its
exercise of discretion in setting the applicable submission deadlines,
and that it would be unreasonable, inappropriate and contrary with
applicable law to make the ``immediate findings of incompleteness''
that the commenter suggests.
Response to Comment That July 2003 Should Be the Submittal Date
One commenter submitted a schedule that was presented to the
Transportation Planning Board (TPB) at their December 18, 2002,
meeting. EPA does not disagree that this schedule was developed on
December 4, 2002, and adopted by the Metropolitan Washington Air
Quality Committee (MWAQC). However, this schedule clearly shows three
parallel tracks of activities: the first is the ``SIP schedule''; the
second is ``State Action Deadlines''; and the third is ``TPB
Conformity''. The schedule says that in January 2003 the preliminary
shortfall analysis for 2005 will be completed. The same document says
that in February 2003 the States will provide schedules for Title I
modifications.
The severe area SIP has many elements. One is a ROP plan for the
post-1999 ROP milestone years to include conformity budgets, emission
target levels determinations, and future year emissions levels
projections. Another is revisions to the area's mobile source emissions
estimates for the base year and previously submitted 2005 budgets using
MOBILE6. Historically, the MWAQC develops these elements of the SIP,
ensures inter-State coordination and ensures that appropriate
consultation regarding the mobile source emissions budgets with the
transportation planning agencies occurs. However, it is the States, not
MWAQC, that must adopt the MWAQC plans for inclusion in each State's
SIP. Historically, the States have had to adopt control measure
regulations to support the MWAQC air quality plans and meet CAA
requirements for nonattainment areas.
The severe area SIP elements that will require action by the
District, Virginia and Maryland include any needed changes to each
jurisdiction's new source review permitting rules to incorporate the
severe area offset ratios and major source thresholds or to lower
reasonable available control technology major source thresholds. Other
examples could include adoption of regulations to address any post-1999
ROP plan reduction needs not provided by the current control strategies
in the SIPs and to address contingency measure requirements.
The District of Columbia, Virginia and Maryland each have written
to EPA indicating that they support the date of March 1, 2004, to
complete the total severe area SIP package. These States have clarified
that MWAQC's use of the term ``severe area SIP'' does not mean the
total package.
The Maryland Department of the Environment (MDE) understands that
MWAQC's plan is to finalize and forward a recommended SIP revision to
the States in July 2003. MDE indicates that MDE will need to complete
additional tasks after the MWAQC completes its work on the severe area
SIP for the Washington area. These tasks

[[Page 3416]]

include promulgating the new mandatory Title I provisions like New
Source Review, contingency measures and any shortfall measures that
result from the MWAQC process. Maryland has already started to draft
regulations for some of these SIP elements, but believes that it will
take until March 1, 2004 to finalize many of the rules that will need
to be included as part of the final SIP submittal.
The District of Columbia Department of Health, Division of Air
Quality (DC DAQ), points out that the schedule adopted by the MWAQC is
very aggressive and establishes milestones and actions for which MWAQC
is responsible, but it does not include all the steps involved in
developing a complete SIP.
DC DAQ notes it can not complete by July 2003 either the regulatory
process for the required Title I NSR changes or the NO_X RACT
determinations for sources that emit between 25 and 50 tons per year by
July 2003. The DC DAQ notes it cannot complete these in less than six
months and notes the normal schedule for adoption of rules is ten
months. The DC DAQ has informed us that any measures identified as RACM
will require time beyond July 2003 for the development of
implementation plans and schedules.
The Virginia Department of Environmental Quality (DEQ) points out
that the schedule adopted by the MWAQC is very aggressive and
establishes milestones and actions for which MWAQC is responsible, but
it does not include all the steps involved in developing a complete
SIP.
DEQ notes it can not complete by 2004 either the regulatory process
for the additional rulemakings required or the NO_X RACT
determinations for sources that emit between 25 and 50 tons per year
before March 2004. DEQ is currently working on both of these tasks. DEQ
has informed us that any measures identified as RACM will require time
beyond July for the development of implementation plans and schedules.
Given that the contingency measures or other necessary measures
(e.g., any remaining reasonably available control measures or measure
needed to uncover a shortfall found by the ROP planning which is
scheduled to be available only in January 2003) have not been selected
(or even identified), EPA does not believe that any State could adopt
new measures between January and July 2003. Nothing from the States
indicates otherwise.
For the reasons set forth above, we cannot conclude from the
information before us that the schedule provided by the one commenter
reflects the intention that all three States would submit complete
severe area SIP packages to EPA by July 2003. Indeed, three of the
States have informed us that they could not meet, and have never
intended or committed to meet, a July 2003 SIP submittal deadline.
Likewise, information received from the States provides no reason
to extend the severe area SIP submittal date beyond what we proposed on
November 13, 2002. We proposed a submittal date of one year after the
effective date of a final reclassification to severe but not later than
March 1, 2004. Because one year after the effective date of this action
will be past March 1, 2004, we are setting a deadline for the
submission of the severe area SIP as March 1, 2004.
Comments Supporting a Longer Schedule Than That Proposed
Two commenters asserted that one year to develop the severe area
SIP is insufficient given the length of time required by one state's
regulatory adoption process and the need to allow time to identify
additional control measure needs to meet the severe area requirement.
The first of these two commenters noted that one state needed 18 months
to adopt control regulations while the second stated that the same
state would require 18 to 24 months for this process. The first of
these two commenters urged EPA to set the due date for submittal of the
severe area SIP to 24 months. The second of these two commenters urged
EPA to add at least six months to the proposed March 1, 2004, date
found in the proposal or to allow enforceable commitments.
EPA's Response To Comment on Need for a Longer Schedule for Submission
EPA believes that the deadlines it has set for submission of the
severe area requirements are consistent with the Clean Air Act and are
adequate for the area to achieve compliance. EPA has discretion to
adjust deadlines under section 182(i). EPA believes that a period up to
eighteen months would be consistent with the Act, since under section
110(k)(5) the Clean Air Act SIP revision provision, states have up to
18 months to submit a SIP revision after receiving a SIP call notice.
Given that the States have indicated in this case that March 1,
2004, is not unreasonable, and we received no adverse comments from the
states during the comment period indicating that they could not meet
this deadline, EPA is setting a deadline for the submission of the
severe area SIP as March 1, 2004.

C. Rate-of-Progress (ROP) and Contingency Measures for 2002

Comments in Support of Allowing the States To Adjust the 2002 Milestone
One commenter supported the ``expeditious'' standard as being
appropriate. Another commenter agreed with EPA that the nine percent
reduction should be achieved as soon as practicable after November 15,
2002.
Comments in Opposition To Allowing the States To Adjust the 2002
Milestone
One commenter stated that EPA cannot move the November 15, 2002,
statutory deadline for the 2002 ROP reduction of nine percent between
November 15, 1999, and November 15, 2002. The commenter claims that the
ROP plan for the Washington area has to demonstrate a nine percent
reduction in emissions between November 15, 1999, and November 15,
2002, (as well as nine percent between November 15, 1996, and November
15, 1999, and another nine percent between November 15, 2002, and
November 15, 2005). The commenter claims that if the states cannot show
a nine percent reduction between November 15, 1999 and November 15,
2002, then the states must implement the only alternative scheme
allowed by statute, namely that of section 182(c)(2)(B)(ii).
The same commenter asserts that even if the statute were not
explicit as to the ROP deadline, the proposed ``as expeditiously as
practicable'' standard should be ``as soon as possible with every
control measure.'' The commenter further asserts that the term
``practicable'' in ``as expeditiously as practicable'' is not defined
in terms of what factors will go into the determination and thus could
be used to nullify the statutory deadline.
This commenter further asserts that EPA does not have the statutory
authority to move the 2002 ROP milestone date and thus there is no need
for the contingency plan requirement to account for a date other than
November 15, 2002.
Response: With respect to the assertion that EPA lacks authority to
allow the States to demonstrate the first required post-1999 nine
percent ROP, due under the statute by November 15, 2002, as
expeditiously as practicable, EPA disagrees, in light of the fact that
the statutory deadline has passed. It is impossible for the states to
demonstrate any progress by a date that passed before the time the area
became classified a severe area and thus first became subject to the
requirement to demonstrate post-1999 ROP. EPA agrees that the
Washington area must now

[[Page 3417]]

demonstrate such progress, but reasonably concludes that the states
must have some time in which to actually develop and implement the
measures to achieve such ROP. EPA has addressed similar issues on
several occasions in the past when areas for various reasons have not
timely submitted progress SIPs, and when the date for achieving
progress had passed prior to EPA action on a progress SIP. EPA has
routinely concluded in these circumstances that the area should
demonstrate the required ROP as expeditiously as practicable once the
statutory date for achieving such ROP had passed. See, e.g., 65 FR
31485 (May 18, 2000), 63 FR 28898 (May 27, 1998), 62 FR 31343 (June 9,
1997). Even though, as the commenter points out, there is no provision
in the statute expressly addressing the situation where an area has
failed to timely submit a progress SIP, EPA must fill the statutory gap
where such SIPs are submitted after the date for achieving progress,
and EPA has reasonably done so in this case by following its past
practice of requiring such SIPs to demonstrate ROP as expeditiously as
practicable. Although no court has directly addressed the issue of the
propriety of this ``as expeditious as practicable'' standard, courts
have addressed other issues concerning ROP plans submitted after the
statutory date for achieving ROP, which have demonstrated ROP as
expeditiously as practicable, without expressing any concern with that
standard. See, e.g., Sierra Club v. EPA, 252 F.3d 943 (8th Cir. 2001)
(Court upheld calculation methods used in 15 percent ROP plan submitted
three years after statutory date demonstrating achievement of ROP seven
years after statutory date).
The commenter indicates that the only statutory provision allowing
less than a nine percent reduction by 2002 is CAA section
182(c)(2)(B)(ii). However, the commenter misconstrues that section
which provides for areas to demonstrate that they have adopted various
feasible measures in exchange for achieving a less than nine percent
reduction. Although this provision would remain available to the
Washington area states should they be unable to demonstrate the
required average annual three percent reduction after November 15,
1996, through the attainment date of November 15, 2005, EPA did not
propose to allow the states to show less than the nine percent
reduction. EPA merely acknowledged in the proposal that the statutory
date for achieving the nine percent reduction had passed and that in
such event the states should demonstrate the full nine percent
reduction as expeditiously as practicable.
The commenter also objects to the observed stringency of the ``as
expeditious as practicable'' standard, citing a case involving the 1987
attainment date in the 1977 version of the Clean Air Act, in which the
court held that once an attainment date has passed an area must
demonstrate attainment ``as soon as possible with every available
control measure.'' Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990).
However, that case was interpreting EPA's 1981 guidance on planning for
post-1987 attainment, in which EPA had indicated that areas which could
not attain by 1987 should identify all ``measures possible in a longer
time frame that, together with the measures already evaluated, will
result in attainment as quickly as possible after 1987.'' 46 FR 7186,
7188 (January 22, 1981). Subsequent to the Delaney opinion, EPA
published a Federal Register notice in which it clarified that the
agency never intended that its 1981 guidance be interpreted to require
the imposition of draconian control measures, nor to require immediate
attainment after 1987 if only such measures could produce it. 55 FR
38326 (September 17, 1990). To avoid future misinterpretation of this
guidance, EPA then revoked those aspects of the 1981 guidance requiring
the use of ``all possible measures'' after 1987. Id., at 38327. The EPA
instead concluded that Federal and State post-1987 planning should
attain the standard ``as expeditiously as practicable,'' as required by
section 172(a)(2). EPA concluded that the statute does not require
measures that are absurd, unenforceable, or impracticable, and thus
that, after 1987, EPA would equate its interpretation of the Ninth
Circuit's standard in Delaney of attainment ``as soon as possible''
absent absurd, impossible, or unenforceable measures with the statutory
test of attainment ``as expeditiously as practicable.'' Id. This is the
interpretation EPA has consistently held since that time, as noted in
the various Federal Register actions mentioned above where areas have
missed statutory deadlines for attainment or ROP.
Moreover, EPA notes that one court, while finding Delaney not
precisely on point for its purpose of fashioning a remedy in a
citizen's enforcement action, nevertheless made some instructive
observations on the relationship between the two standards. The Court
noted that: ``[A]lthough the Delaney opinion utilized the `as soon as
possible' standard employed by EPA guidelines, it did not do so out of
rejection of the `practicable' standard or out of concern that the two
standards differed. Rather it simply had no occasion to compare them.
Indeed the Delaney court appeared to blur them when it criticized
Arizona for rejecting measures without demonstrating that such measures
were `impracticable' or unreasonable.'' Citizens for a Better
Environment v. Deukmejian, 746 F. Supp. 976, 985 (N.D. Cal. 1990). The
Court went on to observe that: ``As a practical matter, however, no
Court will use its equitable powers to impose remedies that are
irrational, albeit `possible.' Thus as long as time is considered
paramount, and the term `practical' is strictly construed in keeping
with the purposes of the Act, the `as expeditiously as practicable'
standard should yield no less results than an `as soon as possible'
standard.'' Id.
The Court concluded that ``when properly interpreted, there is no
practical difference between the two standards.'' Id. EPA agrees with
this assessment.
The commenter further complains that EPA's standard does not impose
any particular deadline, and that it is too vague and undefined.
However, the standard is the very one established in the statute for
attainment of the standard, and years of experience in implementation
of the statute has provided EPA and the states sufficient familiarity
with the standard. Finally, the commenter notes that the states have
already submitted ROP plans which the D.C. Circuit has allegedly found
deficient for failure to include progress through 2002, thus warranting
disapproval. As we stated previously this claim is not relevant to the
proposed action, which was for reclassification of the Washington area
concurrent with the establishment of a reasonable deadline for
submitting SIP revisions. The commenter's contention that the ROP
submissions are inadequate for not having ROP for 2002 and 2005 also
ignores the fact that reclassification is occurring in 2003, and thus
it is impossible for the State to meet the 2002 milestone date. Refer
to the discussion in the preceding section entitled ``Severe Area SIP
Revision Submittal Schedule'' regarding the impossibility of meeting
deadlines that have already passed, and the ROP discussion regarding
the Washington area's post-1999 ROP obligation that appears elsewhere
in this document.
The severe area ROP plan will also have to provide for the second
increment of post-1999 ROP for the period 2002 to 2005 and thus must

[[Page 3418]]

achieve a minimum of 18 percent emission reduction from base line
emissions by November 15, 2005. Therefore, this delay does not reduce
the overall ROP obligation.
With respect to the claim that EPA incorrectly asserted that
contingency plans would need to account for any adjustment in the 2002
ROP milestone date, EPA disagrees. As discussed in the preceding
paragraphs, EPA reasonably concluded that after 2002 the 2002 ROP
milestone date should be adjusted to be ``as expeditiously as
practicable,'' and thus contingency measures would properly be keyed to
this new date.
The requirements for contingency measures for failure to attain the
1-hour ozone NAAQS by November 15, 2005 or a 2005 ROP milestone failure
are not affected by this action.

D. Triggering Implementation of Contingency Measures

Summary of Public Comments Received and EPA's Response
Comment: One commenter urged EPA to specify in the final rulemaking
that any adjustment of the 2002 ROP milestone would not trigger or
require the implementation of contingency measures in the area.
Response: EPA believes that allowing the first required post-1999
nine percent ROP, due by November 15, 2002, to be demonstrated as
expeditiously as practicable after that date does not trigger the need
to implement contingency measures prior to that date.
EPA is allowing the District, Maryland and Virginia to demonstrate
that the first required post-1999 nine percent ROP, due under the
statute by November 15, 2002, as expeditiously as practicable after
that date in the event that control measures currently in the SIPs of
the District, Maryland and Virginia or already promulgated by EPA, have
not already achieved the required nine percent reduction by November
15, 2002. This first post-1999 ROP reduction has to be from base line
emissions and account for growth in emissions through November 15,
2002. We have noted that for the Washington area there are emission
reductions not relied on or credited in the ROP plan accruing between
November 15, 1999, and November 15, 2002, from the January 1, 2000,
implementation of phase 2 of the reformulated gasoline program,
NO_X reductions beyond RACT, and other on-road measures, such
as the national low emission vehicle (NLEV) program, and a variety of
off-road national emissions reduction programs. See 66 FR at 615,
January 3, 2001. These measures have and will continue to provide
additional reductions beyond those credited in the area's post-1996 ROP
for the November 15, 1999, ROP milestone. These measures meet the ROP
creditablity requirements of CAA sections 182(b) and (c) because these
measures are already in the approved SIPs or are rules promulgated by
the EPA. However, EPA had insufficient information at the time of the
November 13, 2002, notice of proposed rulemaking (and currently still
has insufficient information) to determine whether or not these
measures achieve the required nine percent reduction in base line
emissions for the first post-1999 period. One major factor in
demonstrating ROP for any milestone year is the release of a revised
mobile source emissions factor model, MOBILE6. As discussed elsewhere
in this document, as well as in the November 13, 2002, notice of
proposed rulemaking (67 FR at 68811) the revised MOBILE6 model must be
used for the severe area SIP and the MOBILE6 model must be used to
redetermine 1990 base line emissions and prior target levels, as well
as the new 2002 and 2005 year target levels and control strategy
projections.
In the event that the Washington area can demonstrate that the
required nine percent reduction occurred by November 15, 2002, (with
the current SIP plus Federal measures), then the contingency
requirement will not be triggered. In the event the area cannot
demonstrate the required nine percent reduction did occur by November
15, 2002, (with the current SIP plus Federal measures) then EPA has
determined that the District, Maryland and Virginia ROP SIP would be
able to adjust the milestone date for the first required post-1999 nine
percent ROP to a date that is as expeditiously as practicable after
November 15, 2002. As explained in prior paragraphs, this is because
the statutory 2002 ROP date lapsed before the area was first classified
as severe ozone nonattainment. Only a finding that the area failed to
achieve the required reductions by that new milestone could trigger the
need to implement contingency measures.

E. Impacts on Mobile Source Emissions Budgets and Transportation
Planning

Summary of Public Comments Received and EPA's Response
Comment #1: One commenter stated agreement with our assessment that
a portion of the Washington area air quality problem is due to
transport and agreement that there has been improvement in ozone air
quality in the area. For these reasons the commenter asserted that the
area should not be subjected to punitive measures such as sanctions,
nor subject to lapses or ``freezes'' of the transportation planning
processes.
Response #1: This action does not create a ``conformity freeze'' or
impose sanctions.\3\ Under section 179(a), sanctions can result from an
EPA finding that a State failed to submit a required SIP revision (or
has submitted one that does not meet the completeness requirements of
the CAA and EPA regulations) or other required submission required
under the CAA, result from a disapproval of a required submission, or
result from a finding that a State is not implementing all or part of
its approved SIP.\4\ Likewise, under the conformity rule, 40 CFR part
93, a conformity freeze only results when EPA disapproves a ROP or
attainment demonstration SIP revision without making a protective
finding. See 40 CFR 93.120(a)(2). This final rule does none of these
things.
---------------------------------------------------------------------------

\3\ In a conformity freeze the only transportation projects that
could be found to conform would be those included in the first three
years of the currently conforming transportation plan and
transportation improvement program (TIP). No new plans, TIPs, or
plan/TIP amendments could be found to conform after the effective
date of the disapproval.
\4\ EPA's completeness criteria that are promulgated pursuant to
section 110(k)(1) of the CAA are found in appendix V to 40 CFR part
51.
---------------------------------------------------------------------------

Comment #2: One commenter asserted that transportation planning
should not be subject to a conformity freeze due to action on the plans
subject to the July 2, 2002, Court ruling on EPA's January 3, 2001,
final rule on the Washington area SIP.
Response #2: This comment is not germane to this action. EPA did
not propose action on any SIP revision in the November 13, 2002, notice
of proposed rulemaking. The action EPA takes on the SIP revisions
formerly covered by the now vacated January 3, 2001, final rule will be
the subject of separate rulemaking action(s). EPA intends to establish
in a forthcoming notice of proposed rulemaking in the Federal Register
a separate public comment period on these SIP revisions.
Comment #3: One commenter stated that the District, Maryland and
Virginia had provided MOBILE5 budgets for the Washington area that were
found to be adequate. This commenter claimed these budgets were
consistent with the attainment plan and were the most recent budgets at
the time these budgets were developed. The commenter urged that no
conformity freeze should ensue because these budgets are adequate. This
commenter urged EPA to allow the area to continue to use any adequate
MOBILE5 derived budgets until

[[Page 3419]]

MOBILE6 based budgets are found to be adequate.
Response #3: This action has no effect on the adequacy status of
budgets or the determination of which budgets are in effect. These
comments are not germane to this action because EPA did not propose any
action on any budgets in the November 13, 2002, notice of proposed
rulemaking.
Our discussion of conformity issues in the November 13, 2002,
notice of proposed rulemaking was only for the purpose of informing the
public of the status of the separate process related to the adequacy
status of the budgets in the SIP for which EPA's approval was vacated
by the July 2, 2002, court ruling. EPA has taken no final action with
respect to adequacy and thus the budgets in the vacated SIPs currently
can not be used for conformity. The previously approved ROP budgets in
the 15 percent ROP SIPs are currently in effect. (See 64 FR 42629,
August 5, 1999, 65 FR 44686, July 19, 2000, and 65 FR 59727, October 6,
2000.) See the discussion under section XIII of the notice of proposed
rulemaking entitled ``What are the Transportation Conformity
Implications of Reclassification?'' (67 FR at 68810, November 13,
2002).

F. MOBILE6 Model and the Submittal Schedule

In the November 13, 2002, notice of proposed rulemaking, we
discussed the MOBILE6 release to interpret and reiterate application of
our guidance affiliated with the January 29, 2002, official release of
the MOBILE6 emission factor model to the SIP revisions that the
Washington area needed to prepare if the area was reclassified to
severe.
Summary of Public Comments Received and EPA's Responses
Comment #1: One commenter claims the MOBILE5 emission factor model
lacks the ability to predict real emissions because it uses average
trip speed to predict emissions and thus misses the influence of
variations in speed on emissions. The commenter further claims that
MOBILE6 will have the same imperfection because it merely substitutes
average speed on each link for average trip speed. The commenter
asserts that MOBILE6 will be replaced in a few years, that this planned
replacement shows MOBILE6 is inadequate and that tax dollars should not
be spent on using a model that is inadequate for its intended purpose.
Response #1: In the November 13, 2002, notice of proposed
rulemaking, we discussed the MOBILE6 release to interpret and reiterate
application of our guidance affiliated with the January 29, 2002,
official release of the MOBILE6 emission factor model to the severe
area SIP revisions that would become due if the Washington area was
reclassified to severe. As a consequence, application of our guidance
policy relating to the phase-in of MOBILE6 will require additional plan
development in the case of the Washington area that would not have
occurred otherwise. This increase in scope of the severe area SIP
development is one factor in setting the deadline for submission of the
severe area SIP.
The Washington area States had submitted a plan to demonstrate that
the Washington area would attain the ozone NAAQS by November 15, 2005,
once transport-controls implemented in upwind areas have had time to
take effect. This plan included, among other things, 2005 motor vehicle
emissions budgets, a ROP plan through 1999 and the approved 1990 base
year emission inventory. The District, Maryland and Virginia had used
the MOBILE5b model to quantify the on-road mobile source emissions for
the ROP plan through 1999, the 2005 motor vehicle emissions budgets and
the 1990 base year inventory.
If the Washington area had been reclassified to severe
nonattainment well before the release of MOBILE6 the existing
submittals might have formed part of the severe area SIP by adding the
other elements including (but not limited to) ROP plans through 2005,
contingency measures and revised major stationary source thresholds and
severe area offset ratios. In the absence of an official release of
MOBILE6, the States could have continued to use MOBILE5b to develop the
missing ROP plans for 2002 and 2005 and to revise the 2005 attainment
motor vehicle emissions budgets to reflect any new transportation
control measures that might be adopted.
However, MOBILE6, which has been officially released, incorporates
numerous changes in emissions that necessitate a revision to the 1990
base year inventory which is, among other things, the planning base
line from which the 2002 and 2005 ROP targets are calculated. The
changes incorporated into MOBILE6 were not merely limited to coding in
the effects of new regulations under the federal motor vehicle control
program but also looked at factors and data that result in changed
emission rates for 1999 and earlier years. MOBILE6 is a major revision
of the MOBILE model. The revision is based on much new data, but also
on new understanding of vehicle emission processes. It includes the
effects of regulations that have been issued since MOBILE5b was
released, and it includes new features designed to make the model more
useful. The improvements in the data and calculations have led to
improved estimates of highway vehicle emissions. In some cases, the
updated MOBILE6 emissions are significantly different from the
emissions estimated with MOBILE5.
In the November 13, 2002, notice of proposed rulemaking, EPA
intended to state our position that the severe area ROP plan and
attainment demonstration need to use MOBILE6 to calculate ROP targets,
ROP and attainment motor vehicle emissions budgets using MOBILE6.
Because MOBILE6 is the best model currently available and has been
officially released, EPA reaffirms that MOBILE6 must be used by
Maryland, Virginia and the District of Columbia to quantify mobile
source emissions levels and benefits of mobile source emissions control
measures and programs when developing the severe area SIP for the
Washington area. These uses include (but are not limited to) revision
of the1990 base year emissions inventory, development of the target
levels for the 2002 and 2005 ROP plans future year emissions
projections, and development of motor vehicle emissions budgets.
EPA is currently developing the framework for the model that will
eventually replace MOBILE6. While work has begun on the new model, we
estimate that it will not be completed until the fall of 2005. In other
words, based on EPA's current schedule it is likely that the new model
will not be available more than one or two months prior to the area's
attainment date of November 15, 2005. Therefore, it is not possible for
EPA to allow the area to wait until the new model is available to
submit the severe area SIP revisions that are required. For areas
reclassified under section 181(b), pursuant to section 182(i) of the
CAA EPA can adjust applicable deadlines (other than the attainment
date) such as those for submission of a SIP to meet a new
classification or achievement of rate-of-progress, but EPA cannot delay
the date by which the Washington area must submit the severe area SIP
revision submissions past the attainment date.
With regard to the influence of speeds on emissions, EPA concludes
that MOBILE6 provides the best estimates of mobile source emissions
currently available including consideration of the effects of speed on
emissions. Thus EPA believes it is appropriate for the Washington area
to use MOBILE6 for current SIP planning. This is for the

[[Page 3420]]

reasons discussed in the preceding paragraphs: (1) MOBILE6 is the best
model currently available and has been officially released; (2) EPA
believes it is unlikely a new model will become available within the
time period before the severe area SIPs are due; and (3) because the
release date of any successor model cannot be forecast at this time,
EPA cannot delay the submittal date indefinitely.
Comment #2: One commenter agreed with EPA that the July 2, 2002,
Court ruling vacated approval of the commitment to revise the
transportation conformity budgets within one year of the official
release of MOBILE6. This commenter urged EPA to set the date by which
the area must set transportation conformity budgets using MOBILE6 to
coincide with the date by which the severe area plan elements must be
submitted.
Response #2: In the November 13, 2002, notice of proposed
rulemaking, we discussed the MOBILE6 release to interpret and reiterate
application of our guidance affiliated with the January 29, 2002,
official release of the MOBILE6 emission factor model to the SIP
revisions that would become due if the Washington area was reclassified
to severe. Given the time that has now elapsed since the release of the
MOBILE6, EPA believes that application of our policy and guidance
related to the release of the MOBILE6 model means that MOBILE6 is the
only proper model to be used for any motor vehicle emissions budgets
submitted to fulfill the severe area requirements.\5\
EPA did not propose action on any SIP revision or on any
enforceable commitment in the November 13, 2002, notice of proposed
rulemaking for this action. Any action EPA takes on the SIP revisions
formerly covered by the now vacated January 3, 2001, final rule will be
the subject of separate rulemaking action(s). EPA will establish in a
forthcoming notice of proposed rulemaking in the Federal Register a
separate public comment period on these SIP revisions. EPA anticipates
it would not set any different date for submittal of the budgets than
the date for submittal of the ROP and attainment demonstration SIP
revisions.
---------------------------------------------------------------------------

\5\ The applicable guidance and policy can be found in the
January 18, 2002, joint memorandum from John S. Seitz and Margo
Tsirigotis Oge entitled ``Policy Guidance for the Use of MOBILE6 in
SIP Development and Transportation Conformity.''
---------------------------------------------------------------------------

G. Need for Mid-Course Review

Summary of Public Comments Received
One commenter agreed with EPA that the July 2, 2002, Court ruling
vacated approval of the commitment to perform a mid-course review
(MCR). The commenter contended that the schedule for submittal of the
severe area SIP might well negate the need for a MCR and asked EPA to
specify whether the severe area SIP needs to include a MCR.
EPA's Response
EPA disagrees that the schedule set in this final rule fully
negates the need for a commitment to a MCR.
Our 1996 modeling guidance recognizes a need to perform a MCR
review as a means for addressing uncertainty in the modeling results.
\6\ Because of the uncertainty in long term projections, EPA believes a
viable attainment demonstration that relies on WOE needs to contain
provisions for periodic review of monitoring, emissions, and modeling
data to assess the extent to which refinements to emission control
measures are needed.
---------------------------------------------------------------------------

\6\ See ``Guidance on Use of Modeled Results to Demonstrate
Attainment of the Ozone NAAQS'', EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

On March 28, 2002, EPA issued further guidance on the performance
of the MCR.\7\ In this memorandum covered the overall MCR process and
timing, including the potential consequences of findings that progress
toward attainment is, or is not, being made; guidance for situations
where failure to make progress is due to transport; and a special
schedule for other (e.g., moderate or serious) ozone nonattainment
areas with attainment dates of 2004 or earlier. This memorandum revised
some of the earlier policy related to areas in the east significantly
affected by transport. Originally we required the Washington area to
provide an enforceable commitment to perform the MCR following the 2003
ozone season and to submit the results to EPA by the end of the review
year (i.e., December 31, 2003). We chose the end of calendar year 2003
because at the time we had thought that an analysis in 2003 would be
most robust since some or all of the regional NO_X emission
reductions should be achieved by that date.
---------------------------------------------------------------------------

\7\ See ``Mid-Course Review Guidance for the 1-Hour Ozone
Nonattainment Areas that Rely on Weight-of-Evidence for Attainment
Demonstration,'' from Lydia N. Wegman, Director, Air Quality
Strategies & Standards Division, OAQPS and J. David Mobley, Acting
Director, Emissions, Monitoring and Analysis Division, OAQPS, dated
March 28, 2002, and see ``Recommended Approach For Performing Mid-
course Review of SIP's To Meet The 1-hour NAAQS For Ozone,'' January
2002.
---------------------------------------------------------------------------

In our January 2002, guidance we noted that if a State's
implementation plan relies on regional control measures, for a MCR to
be useful, a substantial portion of these measures need to have been
implemented prior to the most recent ozone season in the nonattainment
area for which the MCR is being performed. For example, if
NO_X SIP call measures are implemented by the spring of 2004,
and those measures are an important part of the strategy for meeting
the NAAQS in a particular nonattainment area, the MCR should include
data from the Summer of 2004.\8\ EPA has already concluded that the
Washington area is significantly affected by transport and issued the
NO_X SIP call to prohibit specified amounts of emissions of
one of the main precursors of ground-level ozone, NO_X, to
reduce ozone transport across State boundaries in the eastern half of
the United States. See 63 FR 57356, October 27, 1998).
---------------------------------------------------------------------------

\8\ Ibid.
---------------------------------------------------------------------------

While the District, Maryland and Virginia may be able to perform
some aspects of the MCR before submission of the severe area SIP, they
will not be able to incorporate 2004 air quality data into the
analysis. The 2004 air quality data should be the first to reflect
control of NO_X throughout the entire eastern half of the
United States. EPA believes that the appropriate submission date for
the MCR for the Washington area is no later than December 31, 2004, in
order to include air quality data that reflects at least one full
season of regional NO_X controls. Given that the schedule set
in this final rule requires submission of the severe area SIP before
December 31, 2004, EPA believes that the Washington area needs to
revise its commitment to perform a MCR as part of its severe area SIP.
The revised commitment would not have to provide an administrative
review of additional measures adopted after reclassification to severe,
but would have to address other aspects of a MCR.

H. Guidance on Offsetting Growth in Emissions Due to Growth in Vehicle
Miles Traveled (VMT)

Summary of Public Comments Received
One commenter asked for clarification regarding a statement made
regarding the enforceable transportation control strategies requirement
of section 182(d)(1). The text at issue in the proposal was found in
item number four in section XII of the proposed rule (67 FR at 68810)
which was entitled ``What would a Reclassification Mean for the
Washington Area?'', November 13, 2002). The commenter noted a
discrepancy between the description in the notice of proposed
rulemaking and the language found in the statute. The commenter stated
that section 182(d)(1) of the CAA requires a State to submit a

[[Page 3421]]

revision ``that identifies and adopts specific enforceable
transportation control strategies and transportation control measures
to offset any growth in emissions from growth in vehicle miles traveled
or numbers of vehicle trips in such area and to attain reduction in
motor vehicle emissions as necessary, in combination with other
emission reduction requirements of this subpart, to comply with the
requirements of subsection (b)(2)(B) and (c)(2)(B) (pertaining to
periodic emissions reduction requirements). The State shall consider
measures specified in section 108(f), and choose from among and
implement such measures as necessary to demonstrate attainment.'' In
contrast the notice of proposed rulemaking stated ``[e]nforceable
transportation control strategies and measures to offset projected
growth in vehicle miles traveled or number of vehicle trips as
necessary to demonstrate attainment and to achieve periodic emissions
reduction requirements''.
The commenter asserted that if EPA was changing the requirement for
the Washington area from a requirement for measures to offset growth in
vehicle emissions due to VMT growth or number of vehicle trips as
necessary to attain or achieve ROP to one requiring measures to offset
VMT growth or number of vehicle trips then EPA needs to conduct formal
notice and comment rulemaking.
EPA's Response
EPA intent in section XII entitled ``What would a Reclassification
Mean for the Washington Area'' of the notice of proposed rulemaking was
not to change any requirement or any change current guidance or policy.
In section XII of the notice of proposed rulemaking we merely outlined
some of the major planning elements that the Washington area would have
to include in a severe area SIP. EPA agrees that the summary
description provided in the notice of proposed rulemaking would have
better reflected the statutory requirement if it had said ``enforceable
transportation control strategies and measures to offset any growth in
emissions due to projected growth in vehicle miles traveled or number
of vehicle trips as necessary to demonstrate attainment and to achieve
periodic emissions reduction requirements.''

I. 2002 Air Quality Data and Air Quality Improvement Since 1990

Summary of Public Comments Received
One commenter does not agree with EPA's statement in the notice of
proposed rulemaking that the air quality in the Washington area has
improved significantly since 1990. The commenter claims the notice
failed to consider air quality data for the 2002 ozone season and that
the 2002 ozone season was the worst in a decade because their were nine
days during which at least one monitor exceeded the 1-hour ozone NAAQS.
EPA's Response
Some of the air quality data trends presented in the notice of
proposed rulemaking were for informational purposes only and do not
form the basis for the action we announce in this document. The data
relevant for purposes of making the statutory determination of whether
the area attained by its deadline is that which shows the area did not
attain by November 15, 1999.
As explained elsewhere in this document, section 181(b)(2)(A) of
the Clean Air Act requires that when EPA determines that an area has
not attained the standard by its statutorily required date the area
shall be reclassified by operation of law to the higher of--
(1) The next higher classification for the area, or
(2) The classification applicable to the area's design value as
determined at the time EPA publishes its notice that the area failed to
attain.
Therefore, even if a serious area's design value at the time of
reclassification is lower than the design value for serious
nonattainment, that serious area cannot be reclassified to a lower
classification because the minimum reclassification resulting from a
failure to attain is severe. Likewise, the maximum reclassification is
severe because even if an area's design value is beyond the extreme
threshold section 181(b)(2) prohibits an area failing to attain from
being reclassified to extreme nonattainment.
Therefore, unlike a marginal or moderate nonattainment area where
the design value at the time of the reclassification could have a
bearing on the final classification resulting from a failure to attain,
a serious area can only be reclassified under section 181(b)(2) to
severe nonattainment upon a finding of failure to attain because the
only operative provision is that which requires reclassification to the
next higher classification.
The design value data in the notice of proposed rulemaking was
presented mainly as an indicator that had the area been classified for
the first time, the area would have been classified as marginal.
The relevant air quality data for EPA's final determination of a
failure to attain is that which shows the area contained at least one
monitor with an average annual number of expected exceedances for the
1997 through 1999, inclusive, period.
With respect to the 2002 air quality data , we did not present it
in the notice of proposed rulemaking for the simple reason that
insufficient final data was available for us to make a proper
comparison with prior years data at the time the notice of proposed
rulemaking was drafted.
Even taking into account the 2002 data, the Washington area's
design value corresponds to that of a marginal area. The Washington
area's air quality has by this measure improved from the time it was
classified as a serous area based upon its design value.

J. Adequacy of Current SIP Submittals

Summary of Public Comments Received
One commenter does not agree that the Washington area states had
ever submitted a modeled demonstration of attainment for the area.
EPA's Response
This comment is not germane to this action. EPA did not propose
action on any SIP revision in the November 13, 2002, notice of proposed
rulemaking. What action EPA takes on the SIP revisions formerly covered
by the now vacated January 3, 2001, final rule will be the subject of
separate rulemaking action(s). EPA will establish in a forthcoming
notice of proposed rulemaking in the Federal Register a separate public
comment period on these SIP revisions.

IV. What Is the Impact of Reclassification on Title V Operating Permit
Programs?

In the November 13, 2002, notice of proposed rulemaking, EPA noted
that additional sources would become subject to the Title V major
stationary source operating permit program as a collateral consequence
of a reclassification of the Washington area to severe. The affected
sources are those with a potential to emit of more than 25 tons per
year of either VOC or NO_X or both VOC and NO_X.
Any newly major stationary sources must submit a timely Title V permit
application. ``A timely application for a source applying for a part 70
permit for the first time is one that is submitted within 12 months
after the source becomes subject to the permit program or on or before
such earlier date as the permitting authority may establish.'' See 40
CFR 70.5(a)(1) and see 40 CFR 71.5(a)(1). On the effective date of this
action that can be found in the DATES section of this final rule, the

[[Page 3422]]

12 month (or earlier date set by the applicable permitting authority)
time period to submit a timely application will commence in accordance
with the state Title V program regulations applicable to that
source.\9\
---------------------------------------------------------------------------

\9\ Or, in the absence of an applicable state permit program
covering the affected source, see 40 CFR 71.5(a)(1).
---------------------------------------------------------------------------

V. Final Action

For the reasons set forth in the notice of proposed rulemaking and
in this final rulemaking notice, EPA has determined that the Washington
ozone nonattainment area failed to attain the 1-hour ozone NAAQS by
November 15, 1999, as required by section 181(a) of the CAA, and the
Washington ozone nonattainment area is reclassified by operation of law
to severe ozone nonattainment pursuant to section 181(b)(2) of the CAA.

A. What Is the New Attainment Date for the Washington Area?

Under section 181(a)(1) of the CAA, the new attainment deadline for
the Washington area as a serious ozone nonattainment areas reclassified
to severe under section 181(b)(2) is to attain the 1-hour ozone NAAQS
as expeditiously as practicable but no later than November 15, 2005,
which is the date applicable to the new severe nonattainment
classification.

B. When Must District of Columbia, Maryland and Virginia Submit SIP
Revisions Fulfilling the Requirements for Severe Ozone Attainment
Areas?

Under section 181(a)(1) of the Act, the attainment deadline for
serious ozone nonattainment areas reclassified to severe under section
181(b)(2) is as expeditiously as practicable but no later than November
15, 2005. Under section 182(i), such areas are required to submit SIP
revisions addressing the severe area requirements for the 1-hour ozone
NAAQS. Under section 182(d), severe area plans are required to meet all
the requirements for serious area plans plus the requirements for
severe areas, including, but not limited to: (1) A 25 ton per year
major stationary source threshold; (2) additional reasonably available
control technology (RACT) rules for sources subject to the new lower
major applicability cutoff; (3) a new source review (NSR) offset
requirement of at least 1.3 to 1; (4) a post-1999 rate-of-progress plan
with on-road mobile source emission budgets in emission reductions of
ozone precursors of at least 3 percent per year from November 15, 1999
until the attainment date; and (5) a fee requirement for major sources
of volatile organic compounds (VOC) and nitrogen oxides
(NO_X) should the area fail to attain by 2005.\10\ We have
issued a ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990'' that sets forth our preliminary
views on these section 182 requirements and how we will act on SIPs
submitted under Title I. See 57 FR 13498 (April 16, 1992) and 57 FR
18070 (April 28, 1992).
---------------------------------------------------------------------------

\10\ Section 182(d)(3) sets a deadline of December 31, 2000, to
submit the plan revision requiring fees for major sources should the
area fail to attain. This date can be adjusted pursuant to CAA
section 182(i). We proposed to adjust this date to coincide with the
submittal deadline for the rest of the severe area plan
requirements.
---------------------------------------------------------------------------

The District's, Maryland's and Virginia's severe ozone SIP for the
Washington area must also contain adopted regulations, and/or
enforceable commitments to adopt and implement control measures in
regulatory form by specified dates, sufficient to make the required
rate-of-progress and to attain the 1-hour ozone NAAQS as expeditiously
as practicable but no later than November 15, 2005. Section 182(i)
further provides that we may adjust the CAA deadlines for submitting
these severe area SIP requirements. In addition to establishing a new
attainment date, EPA must also address the schedule by which the
District, Maryland and Virginia are required to submit SIP revisions
meeting the CAA's pollution control requirements for severe areas.
For the reasons set forth in the notice of proposed rulemaking and
this final rulemaking notice and pursuant to section 182(i) of the CAA,
EPA is requiring the District of Columbia, Maryland and Virginia to
submit SIP revisions addressing the CAA's pollution control
requirements for severe ozone nonattainment areas by March 1, 2004.

C. What Will Be the Rate-of-Progress (ROP) and Contingency Measure
Schedules?

For the reasons set forth in the notice of proposed rulemaking and
this final rulemaking notice and pursuant to section 182(i) of the CAA,
EPA is allowing the District, Maryland and Virginia to demonstrate the
first required post-1999 nine percent ROP, due under the CAA by
November 15, 2002, as expeditiously as practicable after that date (but
in any case no later than November 15, 2005) in the event that control
measures currently in the SIPs of the District, Maryland and Virginia
or already promulgated by EPA do not achieve the required nine percent
reduction by November 15, 2002.
The severe area SIP will have to provide for a total of a 18
percent reduction from base line emissions between November 15, 1999,
through November 15, 2005. Because the 2002 ROP deadline is now past,
the first 9 percent reduction requirement for the period 1999 to 2002
will have to be achieved as expeditiously as practicable after November
15, 2002. The second 9 percent reduction in base line emissions must be
achieved by November 15, 2005, to address the 2002 through 2005 ROP
requirement. Additionally, the area must submit adequate on-road mobile
source emission budgets consistent with the 2002 and 2005 ROP plans.
Because EPA is allowing the District, Maryland and Virginia to
demonstrate the first required post-1999 nine percent ROP, due under
the CAA by November 15, 2002, as expeditiously as practicable after
that date (but in any case no later than November 15, 2005), EPA is
also allowing the District, Maryland and Virginia to adopt contingency
measures keyed to this new date.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA is
required to determine whether regulatory actions are significant and
therefore should be subject to Office of Management and Budget (OMB)
review, economic analysis, and the requirements of the Executive Order.
The Executive Order defines a ``significant regulatory action'' as one
that is likely to result in a rule that may meet at least one of the
four criteria identified in section 3(f), including, under paragraph
(1), that the rule may ``have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local or tribal
governments or communities.''
The Agency has determined that the finding of nonattainment would
result in none of the effects identified in section 3(f) of the
Executive Order. Under section 181(b)(2) of the CAA, determinations of
nonattainment are based upon air quality considerations and the
resulting reclassifications must occur by operation of law. They do
not, in and of themselves, impose any new requirements on any sectors
of the economy. In addition, because the statutory requirements are
clearly defined with respect to the differently classified areas, and
because those

[[Page 3423]]

requirements are automatically triggered by classifications that, in
turn, are triggered by air quality values, determinations of
nonattainment and reclassification cannot be said to impose a
materially adverse impact on state, local, or tribal governments or
communities.

B. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This final action to reclassify the Washington, DC area as a severe
ozone nonattainment area and to adjust applicable deadlines does not
involve technical standards. Therefore, EPA did not consider the use of
any voluntary consensus standards.

C. Paperwork Reduction Act

This final action to reclassify the Washington, DC area as a severe
ozone nonattainment area and to adjust applicable deadlines does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
Determinations of nonattainment and the resulting reclassification
of nonattainment areas by operation of law under section 181(b)(2) of
the CAA do not in and of themselves create any new requirements.
Instead, this rulemaking only makes a factual determination, and does
not directly regulate any entities. See 62 FR 60001, 60007-8, and 60010
(November 6, 1997) for additional analysis of the RFA implications of
attainment determinations. Therefore, pursuant to 5 U.S.C. 605(b), I
certify that this final action does not have a significant impact on a
substantial number of small entities within the meaning of those terms
for RFA purposes.

E. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary
impact statement to accompany any proposed or final rule that includes
a Federal mandate that may result in estimated annual costs to state,
local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule.
EPA believes, as discussed previously in this document, that the
finding of nonattainment is a factual determination based upon air
quality considerations and that the resulting reclassification of the
area must occur by operation of law. Thus, EPA believes that the
proposed finding does not constitute a Federal mandate, as defined in
section 101 of the UMRA, because it does not impose an enforceable duty
on any entity.

F. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be economically significant as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This final
action is not subject to Executive Order 13045 because this is not an
economically significant regulatory action as defined by Executive
Order 12866.

G. Executive Order 13132, Federalism

Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.'' Under
Executive Order 13132, EPA may not issue a regulation that has
Federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by state and local governments, or EPA consults with
state and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
Federalism implications and that preempts state law unless the Agency
consults with state and local officials early in the process of
developing the proposed regulation. This determination of nonattainment
and the resulting reclassification of a nonattainment area by operation
of law 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 this action does not, in and of itself, impose any
new requirements on any sectors of the economy, and does not alter the
relationship or the distribution of power and responsibilities
established in the CAA. Thus, the requirements of section 6 of the
Executive Order do not apply to these actions.

H. Executive Order 13175, Coordination With Indian Tribal Governments

This final rule also does not have tribal implications because it
will not have a substantial direct effect on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes, as specified by Executive Order
13175 (59 FR 22951, November 9, 2000).

[[Page 3424]]

I. Executive Order 13211, Actions that Significantly Affect Energy
Supply, Distribution, or Use

Under Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), EPA must prepare for those matters identified as
significant energy actions. A ``significant energy action'' is any
action by an agency (normally published in the Federal Register) that
promulgates or is expected to lead to the promulgation of a final rule
or regulation, including notices of inquiry, advance notices of
proposed rulemaking, and notices of proposed rulemaking that is a
significant regulatory action under Executive Order 12866 and, and is
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Under Executive Order 12866, this
action is not a ``significant regulatory action.'' For this reason, the
proposed finding of nonattainment and reclassification is also not
subject to Executive Order 13211.

J. Congressional Review Act

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).

K. 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 25, 2003. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action to reclassify the Washington, DC area as a
severe ozone attainment area and to adjust applicable deadlines may not
be challenged later in proceedings to enforce its requirements. (See
section 307(b)(2)).

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas.

Dated: January 15, 2003.
Donald S. Welsh,
Regional Administrator, Region III.

Accordingly, 40 CFR part 81 is amended as follows:

PART 81--[AMENDED]

1. The authority citation for part 81 continues to read as follows:

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

2. Section 81.309 is amended by revising the ozone table entry for
the Washington area to read as follows:

Sec. 81.309 District of Columbia.

* * * * *

District of Columbia--Ozone
[1-Hour Standard]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------
Date\1\ Type Date\1\ Type
----------------------------------------------------------------------------------------------------------------
Washington Area: Washington .................. Nonattainment..... 3/25/03........... Severe
Entire Area
----------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990, unless otherwise noted.

* * * * *

3. Section 81.321 is amended by revising the ozone table entry for
the Washington, DC area to read as follows:

Sec. 81.321 Maryland.

* * * * *

Maryland--Ozone
[1-Hour Standard]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------
Date\1\ Type Date\1\ Type
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Washington, DC Area:
Calvert County.............. .................. Nonattainment..... 3/25/03........... Severe
Charles County.............. .................. Nonattainment..... 3/25/03........... Severe
Frederick County............ .................. Nonattainment..... 3/25/03........... Severe
Montgomery County........... .................. Nonattainment..... 3/25/03........... Severe
Prince George's County...... .................. Nonattainment..... 3/25/03........... Severe

* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ This date is October 18, 2000, unless otherwise noted.

[[Page 3425]]

* * * * *

4. Section 81.347 is amended by revising the ozone table entry for
the Washington area to read as follows:

Sec. 81.347 Virginia.

* * * * *

Virginia--Ozone
[1-Hour Standard]
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------
Date\1\ Type Date\1\ Type
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Washington, DC Area:
Alexandria.................. .................. Nonattainment..... 3/25/03........... Severe
Arlington County............ .................. Nonattainment..... 3/25/03........... Severe
Fairfax..................... .................. Nonattainment..... 3/25/03........... Severe
Fairfax County.............. .................. Nonattainment..... 3/25/03........... Severe
Falls Church................ .................. Nonattainment..... 3/25/03........... Severe
Loudoun County.............. .................. Nonattainment..... 3/25/03........... Severe
Manassas.................... .................. Nonattainment..... 3/25/03........... Severe
Manassas Park............... .................. Nonattainment..... 3/25/03........... Severe
Prince William County....... .................. Nonattainment..... 3/25/03........... Severe
Stafford County............. .................. Nonattainment..... 3/25/03........... Severe

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\1\ This date is October 18, 2000, unless otherwise noted.

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[FR Doc. 03-1515 Filed 1-23-03; 8:45 am]
BILLING CODE 6560-50-P

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Determination of Nonattainment as of November 15, 1999, and Reclassification of the Metropolitan Washington, DC Ozone Nonattainment Area; District of Columbia, Maryland, Virginia

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