Approval and Promulgation of Air Quality Implementation Plans; Maryland; One-Hour Ozone Attainment Demonstration for the Philadelphia- Wilmington-Trenton Ozone Nonattainment Area

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[Federal Register: October 29, 2001 (Volume 66, Number 209)]
[Rules and Regulations]
[Page 54577-54596]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc01-12]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MD-074-3085; FRL-7089-1]

Approval and Promulgation of Air Quality Implementation Plans;
Maryland; One-Hour Ozone Attainment Demonstration for the Philadelphia-
Wilmington-Trenton Ozone Nonattainment Area

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

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SUMMARY: EPA is approving the attainment demonstration for the one-hour
ozone national ambient air quality standard (NAAQS) for the
Philadelphia-Wilmington-Trenton severe nonattainment area (the
Philadelphia area) as a revision to the Maryland State Implementation
Plan (SIP). This control strategy plan was submitted by the Maryland
Department of the Environment (MDE). The measures that have been
adopted by the State which comprise the control strategy of the one-
hour ozone attainment demonstration have and will result in significant
emission reductions of volatile organic compounds (VOCs) and oxides of
nitrogen (NO_X) in the Philadelphia area. The Philadelphia
area is comprised of two counties in Delaware, one county in Maryland
(namely, Cecil County), seven counties in New Jersey, and five counties
in Pennsylvania. The intended effect of this action is to approve this
SIP revision as meeting the requirements of the Clean Air Act (CAA or
the Act).

DATES: This final rule is effective on November 28, 2001.

ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103 and the Maryland
Department of the Environment, 2500 Broening Highway, Baltimore,
Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: Cristina Fernandez, (215) 814-2178, at
EPA Region III office above or by e-mail at fernandez.cristina@epa.gov.

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

A. What Action Is EPA Taking In This Final Rulemaking?
B. What Previous Action Has Been Proposed on These SIP Revisions?
C. What Were the Conditions for Approval Provided in the Notice of
Proposed Rulemakings for the Attainment Demonstration?
D. What Amendments to the Attainment Demonstration SIP Did Maryland
Submit for the Philadelphia Area Since December 16, 1999?
E. What Did EPA's Supplemental Notices of Proposed Rulemaking Cover?
F. When Did EPA Make a Determination Regarding the Adequacy of the
Motor Vehicle Emissions Budgets for the Maryland Portion of the
Philadelphia Area?
G. What SIP Elements Did EPA Take Final Action on Concurrently or
Before the Full Approval of the Attainment Demonstration Could Be
Granted?
H. What Measures Are in the Control Strategy for the Attainment
Demonstration?
I. What Are the Approved Transportation Conformity Budgets, and What
Effect Does This Action Have on Transportation Planning?
J. What Happens to the Approved 2005 Budgets When States Change
Their Budgets Using the MOBILE6 Model?
K. What Is the Status of Maryland's New Source Review (SIP)?
L. What Comments Were Received on the Proposed Approvals and How Has
EPA Responded to Those?

I. Background

A. What Action Is EPA Taking In This Final Rulemaking?

EPA is approving the one-hour attainment demonstration submitted by
Maryland for the Philadelphia area as fully meeting the requirements of
CAA section 182(c)(2) and (d). The following table identifies submittal
dates and amendment dates for the attainment demonstration:

Table 1.--Summary of Attainment Demonstration Submittal Dates
------------------------------------------------------------------------
Date Content
------------------------------------------------------------------------
Initial Submittal............. April 29, 1998... Attainment
Demonstration.
Amendment..................... August 18, 1998.. Attainment
Demonstration
Revision Including
Supplemental
Regional Scale
Modeling.
Amendment..................... December 21, 1999 Attainment
Demonstration
Revisions to Include
Revised Motor
Vehicle Emission
Budgets.
Amendment..................... December 28, 2000 Attainment
Demonstration
Revision to Include
Revised Motor
Vehicle Emission
Budgets to Reflect
Tier 2 and
Commitments.
Amendment..................... August 31, 2001.. Attainment
Demonstration
Revision to Include
Reasonably Available
Control Measures
Analysis.
------------------------------------------------------------------------

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

In a December 16, 1999 notice of proposed rulemaking (the December
16, 1999 NPR), we proposed approval of the attainment demonstration for
the Philadelphia area (64 FR 70412).
On February 22, 2000 (65 FR 8703), EPA published a notice of
availability on guidance memoranda relating to the ten one-hour ozone
attainment demonstrations (including the Philadelphia area) proposed
for approval or conditional approval on December 16, 1999. The guidance
memoranda are entitled: ``Guidance on Motor Vehicle Emissions Budgets
in One-Hour Ozone Attainment Demonstrations'' dated November 3, 1999,
and ``Guidance on the Reasonably Available Control Measures (RACM)
Requirement and Attainment Demonstration Submissions for Ozone
Nonattainment Areas'' dated November 30, 1999.
On July 28, 2000, EPA published a supplemental notice of proposed
rulemaking (SNPR) on the attainment demonstration (65 FR 46383). In
that supplemental notice, we clarified and expanded on two issues
relating to the motor vehicle emissions budgets in attainment
demonstration SIP revisions. This supplemental notice is discussed in
Section I.E. of this document.
On July 16, 2001, EPA published a SNPR on the attainment
demonstration (66 FR 36964). In that supplemental notice, we proposed
to approve the revised attainment demonstration that contains revised
motor vehicle emissions budgets for the attainment year of 2005 which
incorporate the benefits of the Federal Tier 2/Low Sulfur-in-fuel rule;
and enforceable

[[Page 54579]]

commitments to (1) submit measures by October 31, 2001 for additional
emission reductions as required in the attainment demonstration test
and to revise the SIP and motor vehicle emissions budgets by October
31, 2001 if additional measures affect the motor vehicle emissions
inventory, (2) submit revised SIP and motor vehicle emissions budgets
within one year after MOBILE6 is issued, and (3) perform a mid-course
review by December 31, 2003. We received no comments on the July 16,
2001 SNPR.
On September 7, 2001, EPA published a SNPR on the attainment
demonstration (66 FR 46758). In that supplemental notice, we proposed
to approve Maryland's analysis and determination, submitted on August
20, 2001, that there are no additional RACM for the area. We received
no comments on that September 7, 2001 SNPR.
Comments received on the December 16, 2001 and July 28, 2000
proposed notices listed in this section relevant to the Philadelphia
area attainment demonstration are discussed in Sections I.L. and II. of
this document.

C. What Were the Conditions for Approval Provided in the Notice of
Proposed Rulemaking for the Attainment Demonstration?

On December 16, 1999 (64 FR 70412) we proposed approval of the
attainment demonstration submitted by the State of Maryland for the
Philadelphia area. Our approval was contingent upon certain actions by
Maryland. These actions were to:
(1) Adopt and submit adequate motor vehicle emissions budgets.
(2) Submit a list of control measures that, when implemented, would
be expected to provide sufficient additional emission reductions to
further reduce emissions to support the attainment test and a
commitment that these measures would not involve additional limits on
highway construction beyond those that could be imposed under the
submitted motor vehicle emissions budget.
(3) Adopt and submit a rule for the regional NO_X
reductions consistent with the modeling demonstration.
(4) Adopt and submit an enforceable commitment, or a reaffirmation
of existing enforceable commitment to do the following:
(a) Submit measures by October 31, 2001 for additional emission
reductions as required in the attainment demonstration test, and for
additional emission reduction measures developed through the regional
process; submit an enforceable commitment for the additional measures
and a backstop commitment to adopt and submit intrastate measures for
the emission reductions in the event the regional process does not
recommend measures that produce emission reductions.
(b) Submit a revised SIP and motor vehicle emissions budget by
October 31, 2001 if additional measures affect the motor vehicle
emissions inventory.
(c) Submit revised SIP and motor vehicle emissions budgets one year
after MOBILE6 is issued.
(d) Perform a mid-course review by December 31, 2003.

D. What Amendments to the Attainment Demonstration SIP Did Maryland
Submit for the Philadelphia Area Since December 16, 1999?

The following is a summary of such submittals which includes the
submittal dates of revisions, the content of these submissions and
other pertinent facts regarding these submissions:
(1) On December 21, 1999, Maryland submitted the ``State
Implementation Plan (SIP) Revision: Modification to the Phase II
Attainment Plan for the Baltimore Nonattainment Area and Cecil County:
Revising the Mobile Source Emission Budgets.'' This submittal contained
the revised 2005 motor vehicle emission budgets for the Attainment
Plans for the Baltimore Nonattainment Area and for Maryland's portion
of the Philadelphia area, namely Cecil County.
(2) On December 28, 2000, Maryland submitted the ``State
Implementation Plan (SIP) Revision: Modification to the Phase II
Attainment Plan for Cecil County: Revising the Mobile Source Emission
Budgets, Adding Tier 2 Standards.'' This submittal contained the
revised 2005 motor vehicle emissions budgets for the attainment
demonstration that reflect the benefits of the Tier 2/Low Sulfur-in-
fuel rule benefits and revised commitments to do the following:
(a) Submit measures by October 31, 2001 for additional emission
reductions as required in the attainment demonstration test, and to
revise the SIP and motor vehicle emissions budgets if the additional
measures affect the motor vehicle emissions inventory,
(b) Revise the SIP and motor vehicle emission budgets using MOBILE6
within one year after it is issued.
(c) Perform a mid-course review by December 31, 2003.
(3) On August 31, 2001, Maryland submitted the ``State
Implementation Plan (SIP) Revision: Reasonably Available Control
Measures Analysis for the Baltimore Region.'' This submittal
supplements the attainment demonstration SIP for Cecil County by
including a RACM analysis.

E. What Did EPA's Supplemental Notices of Proposed Rulemaking Cover?

(1) On July 28, 2000, EPA published a supplemental notice of
proposed rulemaking (SNPR) on the attainment demonstration (65 FR
46383). In that supplemental notice, we clarified and expanded on two
issues relating to the motor vehicle emissions budgets in this
attainment demonstration SIP revision:
(a) First, we proposed a clarification of what occurs if we
finalize conditional or full approval of this and certain other
attainment demonstration SIP revisions based on a state commitment to
revise the SIP's motor vehicle emissions budgets in the future. Under
the proposal, the motor vehicle emissions budgets in the approved SIP
will apply for transportation conformity purposes only until the
budgets are revised consistent with the commitment and we have found
the new budgets adequate. Once we have found the newly revised budgets
adequate, then they would apply instead of the previous conditionally
or fully approved budgets. Normally, revisions to approved budgets
cannot be used for conformity purposes until we approve the revised
budgets into the SIP. Therefore, we proposed to clarify that when our
approval of this and certain other one-hour ozone attainment
demonstrations is based on a commitment to future revisions to the
budget, our approval of the budget lasts only until revisions to
satisfy those conditions are submitted and we find them adequate.
(b) Second, we proposed that states may opt to commit to revise
their emissions budgets one year after the release of the MOBILE6
model, as originally proposed on December 16, 1999; or states may
commit to a new option, i.e., to revise their budgets two years
following the release of the MOBILE6 model, provided that conformity is
not determined without adequate MOBILE6-derived SIP budgets during the
second year. This second option did not affect the Maryland's
attainment demonstration SIP for the Philadelphia area because Maryland
has submitted an enforceable commitment to revise the motor vehicle
emissions budgets within one year after the official release of the
MOBILE6 model. EPA is approving that commitment in this final
rulemaking.
(c) In addition, we reopened the comment period to take comment on
these two issues and to allow comment on any additional materials that
were placed in the dockets for the proposed actions close to or after
the initial

[[Page 54580]]

comment period closed on February 14, 2000 (65 FR at 46383, July 28,
2000). For many of the areas, additional information had been placed in
the docket close to or since the initial comment period concluded. In
general, these materials were identified as consisting of motor vehicle
emissions budgets, and revised or additional commitments or
reaffirmations submitted by the states (65 FR at 46383, July 28, 2000).
(2) On July 16, 2001, EPA published a SNPR on the attainment
demonstration (66 FR 36964). In that supplemental notice, we proposed
to approve:
(a) The revised attainment demonstration that contains revised
motor vehicle emissions budgets for the attainment year of 2005 which
incorporate the benefits of the Federal Tier 2/Low Sulfur-in-fuel rule,
and,
(b) Enforceable commitments to submit measures by October 31, 2001
for additional emission reductions as required in the attainment
demonstration test, revise the SIP and motor vehicle emissions budgets
by October 31, 2001 if additional measures affect the motor vehicle
emissions inventory, submit revised SIP and motor vehicle emissions
budgets within one year after MOBILE6 is issued, and to perform a mid-
course review by December 31, 2003. In this final rulemaking, EPA is
approving the attainment demonstration which contains the revised motor
vehicle emissions budgets for the attainment year of 2005 which
incorporate the benefits of the Federal Tier 2/Low Sulfur-in-fuel rule
and all three of these commitments.
(3) On September 7, 2001, EPA published a SNPR on the attainment
demonstration (66 FR 46758). In that supplemental notice, we proposed
to approve Maryland's analysis and determination, submitted on August
20, 2001, that there are no additional RACM for the area. We received
no comments on that September 7, 2001 SNPR. In this final rule, EPA is
approving Maryland's 2005 attainment demonstration plan for the
Philadelphia area including this RACM analysis.

F. When Did EPA Make a Determination Regarding the Adequacy of the
Motor Vehicle Emissions Budgets for the Maryland Portion of the
Philadelphia Area?

Maryland submitted a revision to the attainment plan SIP for the
Philadelphia area on December 28, 2000. This revision contained revised
motor vehicle emissions budgets for the attainment year of 2005 that
reflected the benefits of the Federal Tier 2/Low Sulfur rule.\1\
---------------------------------------------------------------------------

\1\ In December 16, 1999 NPR, we proposed to disapprove the
attainment demonstration if Maryland did not submit motor vehicle
emissions budgets for this area that EPA could find adequate by May
31, 2000 (See 64 FR 70417). The budgets subject to this May 31, 2000
deadline did not necessary have to account for Federal Tier 2/Low
Sulfur rule reductions. On December 21, 1999, Maryland submitted a
SIP revision that included motor vehicle emissions budgets for the
2005 attainment year that did not include the benefits of the
Federal Tier 2/Low Sulfur rule. EPA had determined that these
budgets were adequate by the May 31, 2000 deadline (65 FR 36441,
June 8, 2000).
---------------------------------------------------------------------------

We began our adequacy review process on the budgets in the December
28, 2000 submittal under our adequacy process with a posting on EPA's
Web site (www.epa.gov/otaq/transp/conform/adequacy.htm) that started a
public comment period on the adequacy of the motor vehicle emissions
budgets in the December 28, 2000 SIP revision submitted by Maryland for
the Philadelphia area. We then prepared a technical support document
for our adequacy determination that included responses to any public
comments received during the adequacy process comment period. In an
April 12, 2001 Federal Register notice we announced that we had
determined the budgets contained in the December 28, 2000 submission
were adequate (66 FR 18928). (The proposed approval of the budgets in
the December 28, 2000 submission is discussed in Section I.E. of this
document and the response to any comments received on the proposed
approval are in Section II.) Our findings of adequacy and responses to
comments can be accessed at www.epa.gov/otaq/traq (once there, click on
the ``conformity'' button). As stated previously, Maryland has made an
enforceable commitment to revise the attainment year motor vehicle
emissions budgets using the MOBILE6 model within one year after the
release of the MOBILE6 model, and EPA is approving that commitment in
this final rulemaking.

G. What SIP Elements Did EPA Take Final Action on Concurrently or
Before the Full Approval of the Attainment Demonstration Could Be
Granted?

In the December 16, 1999 NPR for the Philadelphia attainment
demonstration SIP, EPA noted in Table 4, the status of many of the
control measures or SIP elements that are required under part D of the
Act for serious and severe areas. The following provides the status of
those SIP elements which are prerequisites for approval of the
attainment demonstration but which were not fully approved on December
16, 1999 or not listed as fully approved in Table 4 of the December 16,
1999 NPR:
(1) On July 29, 1997 (62 FR 40457), EPA approved Maryland's 15
percent VOC Reduction Plan for the Cecil County as a revision to the
Maryland SIP.
(2) On October 29, 1999, EPA approved Maryland's enhanced vehicle
inspection and maintenance program as a SIP revision (64 FR 58340).
(3) On December 28, 1999, EPA approved Maryland's national low
emission vehicle (NLEV) program as a SIP revision (64 FR 72564).
(4) On December 15, 2000, EPA approved Maryland's NO_X
budget rule, which is consistent with the Ozone Transport Commission's
(OTC) NO_X Memorandum of Understanding (MOU) Phase II as a
SIP revision (65 FR 78416).
(5) On January 10, 2001, EPA approved Maryland's NO_X
trading rule which complies with the NO_X SIP Call as a
revision to the Maryland SIP (66 FR 1866).
(6) On February 8, 2001, EPA approved Maryland's NO_X
RACT rule as a SIP revision (66 FR 9522).
(7) On September 19, 2001, EPA approved Maryland's Post-1996 Rate-
of-Progress (ROP) plan (from 1996 through the 2005 attainment year) for
the Philadelphia area, namely, Cecil County (66 FR 48209).
To comply with the VOC RACT requirements, Maryland has developed
source category rules. Sources of VOC in the Maryland portion of the
Philadelphia area, namely Cecil County, which emit more than 25 tons
per year (TPY) and that are not subject to any specific source category
rule are then subject to Maryland's SIP-approved regulation COMAR
26.11.06.06--Volatile Organic Compounds. Such sources may apply on a
case-by case basis for an alternative RACT under COMAR 26.11.19.02G--
Control of Major Stationary Sources of Volatile Organic Compounds. But
until such a case-by-case RACT determination is made by the MDE and
approved by EPA as a SIP revision, the source remains subject to COMAR
26.11.06.06. The following provides the status of those VOC source
category rules which are prerequisites for approval of the attainment
demonstration but which were not fully approved, as of December 16,
1999, as revisions to the Maryland SIP:
(1) On August 19, 1999, EPA approved Maryland's Fiberglass
Manufacturing Rule (64 FR 45182).
(2) On January 14, 2000, EPA approved Maryland's Flexographic
Printing and Plastic Bottle Coating Rule (65 FR 2334).

[[Page 54581]]

(3) On May 7, 2001, EPA approved Maryland's Bread and Snack Food
Drying Operations and Expandable Polystyrene Operations Rules (66 FR
22924).
(4) On September 5, 2001, EPA approved Maryland's Marine Vessel
Coating Rule (66 FR 46379).
(5) On September 20, 2001, EPA approved Maryland's Synthetic
Organic Chemicals Rule (66 FR 37914).
(6) On October 5, 2001, the Regional Administrator of EPA Region
III signed a final rule approving Maryland's VOC RACT rules for Iron &
Steel Operations. That action has been or soon will be published in the
Federal Register.
(7) On October 9, 2001, the Regional Administrator of EPA Region
III signed a final rule approving Maryland's VOC RACT rules for
Aerospace Coating, Kraft Pulp Mills, and Distilled Spirits Facilities.
That action has been or soon will be published in the Federal Register.

H. What Measures Are in the Control Strategy for the Attainment
Demonstration?

Table 2.--Control Measures in the One-Hour Ozone Attainment
Demonstration for the Philadelphia Nonattainment Area
------------------------------------------------------------------------
Credited in
Control measure Type of measure attainment plan
------------------------------------------------------------------------
Enhanced Inspection & SIP Approved...... Yes.
Maintenance.
Federal Motor Vehicle Control Federal........... Tiers 1 and 2.
Program.
NLEV \1\........................ SIP Approved...... Yes.
Reformulated Gasoline (Phases 1 Federal........... Phase 2.
& 2).
Federal Non-road Gasoline Engine Federal........... Yes.
Standards.
Federal Non-road Heavy Duty Federal........... Yes.
Diesel Engine Standards.
Rail Road Locomotive Controls... Federal........... Yes.
Stage II Vapor Recovery & On- SIP Approved; Yes.
board Refueling Vapor Recovery Federal.
(ORVR).
AIM Surface Coatings............ Federal........... Yes.
Consumer & Commercial Products.. Federal........... Yes.
Autobody Refinishing............ SIP Approved...... Yes.
Surface Cleaning/Degreasing SIP Approved...... Yes.
Controls.
Open Burning Ban................ SIP Approved...... Yes.
Marine Engine Emission Standards Federal........... Yes.
Stage I Vapor Recovery.......... SIP Approved...... Yes.
Graphic Art Controls............ SIP Approved...... Yes.
Heavy Duty Diesel Engines (On- Federal........... Yes.
road).
VOC RACT to 25 tpy.............. SIP Approved...... Yes.
------------------------------------------------------------------------
Notes:
\1\ To the extent NLEV not superceded by Tier 2.

I. What Are the Approved Transportation Conformity Budgets, and What
Effect Does This Action Have on Transportation Planning?

(1) What Are the Approved Transportation Conformity Budgets in the
Attainment Demonstration?
EPA has determined that the budgets in the attainment demonstration
are adequate. The approved motor vehicle emissions budgets of the
attainment demonstration are listed in Table 3. Table 3 also provides
the amounts by pollutant in tons per day (TPD), the year associated
with the budgets, and the effective date of EPA's adequacy
determination.

Table 3.--Transportation Conformity Budgets for the Maryland Portion of the Philadelphia Area
----------------------------------------------------------------------------------------------------------------
Control strategy SIP Year VOC (TPD) NO_X (TPD) Date of adequacy determination
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration................. 2005 2.6 5.6 April 27, 2001 (See 66 FR 18928,
published on April 12, 2001).
----------------------------------------------------------------------------------------------------------------

EPA has concluded that Maryland's 2005 attainment demonstration SIP
for the Philadelphia area, including its associated budgets for Cecil
County, meets the requirements of the CAA. EPA has also determined that
Maryland's SIP contains the measures necessary to support these
budgets. In this final action, EPA is approving these budgets which
were submitted on December 28, 2000 by the State of Maryland as a
formal revision to its attainment demonstration SIP for the
Philadelphia area.
(2) Is a Requirement to Redetermine Conformity Within 18 months Under
Section 93.104 of the Conformity Rule Triggered?
Our conformity rule establishes the frequency by which
transportation plans and transportation improvement programs must be
found to conform to the SIP and includes trigger events tied to both
submittal and approval of a SIP [40 CFR 93.104(e)]. Both initial
submission and initial approval trigger a redetermination of
conformity. This final rule approves motor vehicle emissions budgets
contained in the attainment demonstration. We are advising affected
transportation planning agencies that this final

[[Page 54582]]

approval of the budgets is listed in Table 3 will require a
redetermination that existing transportation plans and TIPs conform
within 18 months of the effective date listed in the DATES section of
this document. See 40 CFR 93.104(e).

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

All states whose attainment demonstration includes the effects of
the Tier 2/Low Sulfur program have committed to revise and resubmit
their motor vehicle emissions budgets after EPA releases the MOBILE6
model. On December 28, 2000, Maryland submitted a commitment to revise
the 2005 motor vehicle budgets in the attainment demonstration within
one year of EPA's release of the MOBILE6 model. In this action, EPA is
approving this commitment to revise the 2005 motor vehicle budgets in
the attainment demonstration within one year of EPA's release of the
MOBILE6 model. If Maryland fails to meet its commitment to submit
revised budgets using the MOBILE6 model, EPA could make a finding of
failure to implement the SIP, which would start a sanctions clock under
section 179 of the Act.
As we proposed in our July 28, 2000 SNPR (65 FR 46383), today's
final approval of the budgets contained in the 2005 attainment plan
will be effective for conformity purposes only until such time as
revised motor vehicle emissions budgets are submitted (pursuant to the
commitment to submit revised budgets using the MOBILE6 model within one
year of EPA's release of that model) and we have found those revised
budgets adequate. We are only approving the attainment demonstration
and its current budgets because Maryland has provided an enforceable
commitment to revise the budgets using the MOBILE6 model within one
year of EPA's release of that model. Therefore, we are limiting the
duration of our approval of the current budgets only until such time as
the revised budgets are found adequate. Those revised budgets will be
more appropriate than the budgets we are approving for conformity
purposes for the time being.
Similarly, EPA is only approving the 2005 attainment demonstration
and its currents budgets because Maryland has provided an enforceable
commitment to submit new budgets as a revision to the attainment SIP
consistent with any new measures submitted to fill any shortfall, if
the additional control measures affect on-road motor vehicle emissions.
Therefore, EPA is limiting the duration of its approval of the current
budgets only until such time as any such revised budgets are found
adequate. Those revised budgets will be more appropriate than the
budgets EPA is approving for conformity purposes for the time being.

K. What Is the Status of Maryland's New Source Review (SIP)?

EPA approved Maryland's NSR program on February 12, 2001 (66 FR
9766). As stated in the proposed (65 FR 62675, October 19, 2000) and
final rulemaking notices, EPA granted limited approval of Maryland's
NSR regulations as they apply in the Baltimore area and the Maryland
portion of the Philadelphia area, and granted full approval throughout
the remainder of Maryland. EPA's sole reason for granting limited
approval in the Baltimore area and in Cecil County rather than full
approval was that Maryland's NSR regulations do not contain certain
restrictions on the use of emission reductions from the shutdown and
curtailment of existing sources or units as NSR offsets. These
restrictions, however, only apply in nonattainment areas without an
approved attainment demonstration [See 40 CFR section
51.165(a)(ii)(C)]. As EPA today is taking final action to approve
Maryland's attainment demonstration SIPs for the Baltimore and
Philadelphia areas, Maryland's SIP-approved NSR program's lack of
restrictions on the use of emission reductions from the shutdown and
curtailment of existing sources or units as NSR offsets, applicable
only in nonattainment areas without an approved attainment
demonstration, is moot. Now that we have approved Maryland's attainment
demonstration SIPs for the Baltimore and Philadelphia areas, we intend
to remove the limited nature of our approval of the State's NSR program
in those areas of Maryland as well.

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

EPA received comments from the public on the Notice of Proposed
Rulemaking (NPR) published on December 16, 1999 (64 FR 70412) for
Maryland's ozone attainment demonstration for the Philadelphia area.
Comments were received from Robert E. Yuhnke on behalf of Environmental
Defense and Natural Resources Defense Council; the Midwest Ozone Group;
and from the University of Maryland Law School on behalf of 1000
Friends of Maryland.
EPA also received comments from the public on the supplemental
notice of proposed rulemaking published on July 28, 2000 (65 FR 46383),
in which EPA clarified and expanded on two issues relating to the motor
vehicle emissions budgets in the attainment demonstration SIPs.
Comments were received from Environmental Defense and from ELM
Packaging Co.

II. Response to Comments

The following discussion summarizes and responds to the comments
received on the December 16, 1999 (64 FR 70412) and July 28, 2000 (65
FR 46383) proposed actions summarized in Sections I.B. and I.E.

A. Attainment Demonstration--Weight of Evidence

Comment: The weight of evidence approach does not demonstrate
attainment or meet CAA requirements for a modeled attainment
demonstration. Commenters added several criticisms of various technical
aspects of the weight of evidence approach, including certain specific
applications of the approach to particular attainment demonstrations.
These comments are discussed in the following response.
Response: Under section 182(c)(2) and (d) of the CAA, serious and
severe ozone nonattainment areas were required to submit by November
15, 1994, demonstrations of how they would attain the one-hour
standard. Section 182(c)(2)(A) provides that ``[t]his attainment
demonstration must be based on photochemical grid modeling or any other
analytical method determined by the Administrator, in the
Administrator's discretion, to be at least as effective.'' As described
in more detail below, EPA allows states to supplement their
photochemical modeling results, with additional evidence designed to
account for uncertainties in the photochemical modeling, to demonstrate
attainment. This approach is consistent with the requirement of section
182(c)(2)(A) that the attainment demonstration ``be based on
photochemical grid modeling,'' because the modeling results constitute
the principal component of EPA's analysis, with supplemental
information designed to account for uncertainties in the model. This
interpretation and application of the photochemical modeling
requirement of section 182(c)(2)(A) finds further justification in the
broad deference Congress granted EPA to develop appropriate methods for
determining attainment, as indicated in the last phrase of section
182(c)(2)(A).
The flexibility granted to EPA under section 182(c)(2)(A) is
reflected in the regulations EPA promulgated for modeled attainment
demonstrations. These regulations provide, ``The

[[Page 54583]]

adequacy of a control strategy shall be demonstrated by means of
applicable air quality models, data bases, and other requirements
specified in [40 CFR part 51 Appendix W]
(Guideline on Air Quality
Models).''\2\ 40 CFR 51.112(a)(1). However, the regulations further
provide, ``Where an air quality model specified in Appendix W * * * is
inappropriate, the model may be modified or another model substituted
[with approval by EPA, and after]
notice and opportunity for public
comment. * * *'' Appendix W, in turn, provides that, ``The Urban
Airshed Model (UAM) is recommended for photochemical or reactive
pollutant modeling applications involving entire urban areas,'' but
further refers to EPA's modeling guidance for data requirements and
procedures for operating the model. See 40 CFR part 51 Appendix W
section 6.2.1.a. The modeling guidance discusses the data requirements
and operating procedures, as well as interpretation of model results as
they relate to the attainment demonstration. This provision references
guidance published in 1991, but EPA envisioned the guidance would
change as we gained experience with model applications, which is why
the guidance is referenced, but does not appear, in Appendix W. With
updates in 1996 and 1999, the evolution of EPA's guidance has led us to
use both the photochemical grid model, and additional analytical
methods approved by EPA.
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\2\ The August 12, 1996 version of ``Appendix W to part 51--
Guideline on Air Quality Models'' was the rule in effect for these
attainment demonstrations. EPA is proposing updates to this rule,
that will not take effect until the rulemaking process for them is
complete.
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The modeled attainment test compares model predicted one-hour daily
maximum ozone concentrations in all grid cells for the attainment year
to the level of the NAAQS. The results may be interpreted through
either of two modeled attainment or exceedance tests: the deterministic
test or the statistical test. Under the deterministic test, a predicted
concentration above 0.124 parts per million (ppm) ozone indicates that
the area is expected to exceed the standard in the attainment year and
a prediction at or below 0.124 ppm indicates that the area is expected
to not exceed the standard. Under the statistical test, attainment is
demonstrated when all predicted (i.e., modeled) one-hour ozone
concentrations inside the modeling domain are at, or below, an
acceptable upper limit above the NAAQS permitted under certain
conditions (depending on the severity of the episode modeled).\3\
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\3\ Guidance on the Use Of Modeled Results to Demonstrate
Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

In 1996, EPA issued guidance \4\ to update the 1991 guidance
referenced in 40 CFR part 51 Appendix W, to make the modeled attainment
test more closely reflect the form of the NAAQS (i.e., the statistical
test described above), to consider the area's ozone design value and
the meteorological conditions accompanying observed exceedances, and to
allow consideration of other evidence to address uncertainties in the
modeling databases and application. When the modeling does not
conclusively demonstrate attainment, EPA has concluded that additional
analyses may be presented to help determine whether the area will
attain the standard. As with other predictive tools, there are inherent
uncertainties associated with air quality modeling and its results. The
inherent imprecision of the model means that it may be inappropriate to
view the specific numerical result of the model as the only determinant
of whether the SIP controls are likely to lead to attainment. The EPA's
guidance recognizes these limitations, and provides a means for
considering other evidence to help assess whether attainment of the
NAAQS is likely to be achieved. The process by which this is done is
called a weight of evidence (WOE) determination. Under a WOE
determination, the state can rely on, and EPA will consider in addition
to the results of the modeled attainment test, other factors such as
other modeled output (e.g., changes in the predicted frequency and
pervasiveness of one-hour ozone NAAQS exceedances, and predicted change
in the ozone design value); actual observed air quality trends (i.e.
analyses of monitored air quality data); estimated emissions trends;
and the responsiveness of the model predictions to further controls.
---------------------------------------------------------------------------

\4\ Ibid.
---------------------------------------------------------------------------

In 1999, EPA issued additional guidance\5\ that makes further use
of model results for base case and future emission estimates to predict
a future design value. This guidance describes the use of an additional
component of the WOE determination, which requires, under certain
circumstances, additional emission reductions that are or will be
approved into the SIP, but that were not included in the modeling
analysis, that will further reduce the modeled design value. An area is
considered to monitor attainment if each monitor site has air quality
observed ozone design values (4th highest daily maximum ozone using the
three most recent consecutive years of data) at or below the level of
the standard. Therefore, it is appropriate for EPA, when making a
determination that a control strategy will provide for attainment, to
determine whether or not the model predicted future design value is
expected to be at or below the level of the standard. Since the form of
the one-hour NAAQS allows exceedances, it did not seem appropriate for
EPA to require the test for attainment to be ``no exceedances'' in the
future model predictions.
---------------------------------------------------------------------------

\5\ ``Guidance for Improving Weight of Evidence Through
Identification of Additional Emission Reductions, Not Modeled.''
U.S. Environmental Protection Agency, Office of Air Quality Planning
and Standards, Emissions, Monitoring, and Analysis Division, Air
Quality Modeling Group, Research Triangle Park, NC 27711. November
1999. Web site: http://www.epa.gov/ttn/scram.
---------------------------------------------------------------------------

The method outlined in EPA's 1999 guidance uses the highest
measured design value across all sites in the nonattainment area for
each of three years. These three ``design values'' represent the air
quality observed during the time period used to predict ozone for the
base emissions. This is appropriate because the model is predicting the
change in ozone from the base period to the future attainment date. The
three yearly design values (highest across the area) are averaged to
account for annual fluctuations in meteorology. The result is an
estimate of an area's base year design value. The base year design
value is multiplied by a ratio of the peak model predicted ozone
concentrations in the attainment year (i.e., average of daily maximum
concentrations from all days modeled) to the peak model predicted ozone
concentrations in the base year (i.e., average of daily maximum
concentrations from all days modeled). The result is an attainment year
design value based on the relative change in peak model predicted ozone
concentrations from the base year to the attainment year. Modeling
results also show that emission control strategies designed to reduce
areas of peak ozone concentrations generally result in similar ozone
reductions in all core areas of the modeling domain, thereby providing
some assurance of attainment at all monitors.
In the event that the attainment year design value is above the
standard, the 1999 guidance provides a method for identifying
additional emission reductions, not modeled, which at a minimum provide
an estimated attainment year design value at the level of the standard.
This step uses a locally derived factor which assumes a linear
relationship between ozone and the precursors.

[[Page 54584]]

A commenter criticized the 1999 guidance as flawed on grounds that
it allows the averaging of the three highest air quality sites across a
region, whereas EPA's 1991 and 1996 modeling guidance requires that
attainment be demonstrated at each site. This has the effect of
allowing lower air quality concentrations to be averaged against higher
concentrations thus reducing the total emission reduction needed to
attain at the higher site. The commenter does not appear to have
described the guidance accurately. The guidance does not recommend
averaging across a region or spatial averaging of observed data. The
guidance does recommend determination of the highest site in the region
for each of the three-year periods, determined by the base year
modeled. For example, if the base year is 1990, it is the amount of
emissions in 1990 that must be adjusted or evaluated (by accounting for
growth and controls) to determine whether attainment results. These
1990 emissions would contribute to three design value periods (1988-90,
1989-91 and 1990-92).
Under the approach of the guidance document, EPA determined the
design value for each of those three-year periods, and then averaged
those three design values, to determine the base design value. This
approach is appropriate because, as just noted, the 1990 emissions
contributed to each of those periods, and there is no reason to believe
the 1990 (episodic) emissions resulted in the highest or lowest of the
three design values. Averaging the three years is beneficial for
another reason: It allows consideration of a broader range of
meteorological conditions--those that occurred throughout the 1988-1992
period, rather than the meteorology that occurs in one particular year
or even one particular ozone episode within that year. Furthermore, EPA
relied on three-year averaging only for purposes of determining one
component, i.e.--the small amount of additional emission reductions not
modeled--of the WOE determination. The WOE determination, in turn, is
intended to be part of a qualitative assessment of whether additional
factors (including the additional emissions reductions not modeled),
taken as a whole, indicate that the area is more likely than not to
attain.
A commenter criticized the component of this WOE factor that
estimates ambient improvement because it does not incorporate complete
modeling of the additional emissions reductions. However, the
regulations do not mandate, nor does EPA guidance suggest, that states
must model all control measures being implemented. Moreover, a
component of this technique--the estimation of future design value--
should be considered a model-predicted estimate. Therefore, results
from this technique are an extension of ``photochemical grid'' modeling
and are consistent with section 182(c)(2)(A). Also, a commenter
believes that EPA has not provided sufficient opportunity to evaluate
the calculations used to estimate additional emission reductions. EPA
provided a full 60-day period for comment on all aspects of the
proposed rule. EPA has received several comments on the technical
aspects of the approach and the results of its application, as
discussed above and in the responses to the individual SIPs.
A commenter states that application of the method of attainment
analysis used for the December 16, 1999 NPRs will yield a lower control
estimate than if we relied entirely on reducing maximum predictions in
every grid cell to less than or equal to 124 ppb on every modeled day.
However, the commenter's approach may overestimate needed controls
because the form of the standard allows up to 3 exceedances in 3 years
in every grid cell. If the model over predicts observed concentrations,
predicted controls may be further overestimated. EPA has considered
other evidence, as described above through the weight of evidence
determination.
When reviewing a SIP, EPA must make a determination that the
control measures adopted are reasonably likely to lead to attainment.
Reliance on the WOE factors allows EPA to make this determination based
on a greater body of information presented by the states and available
to EPA. This information includes model results for the majority of the
control measures. Although not all measures were modeled, EPA reviewed
the model's response to changes in emissions as well as observed air
quality changes to evaluate the impact of a few additional measures,
not modeled. EPA's decision was further strengthened by each state's
commitment to check progress towards attainment in a mid-course review
and to adopt additional measures, if the anticipated progress is not
being made.
A commenter further criticized EPA's technique for estimating the
ambient impact of additional emissions reductions not modeled on
grounds that EPA employed a ``rollback'' modeling technique that,
according to the commenter, is precluded under EPA regulations. The
commenter explained that 40 CFR part 51 Appendix W section 6.2.1.e.
provides, ``Proportional (rollback/forward) modeling is not an
acceptable procedure for evaluating ozone control strategies.'' Section
14.0 of Appendix W defines ``rollback'' as ``a simple model that
assumes that if emissions from each source affecting a given receptor
are decreased by the same percentage, ambient air quality
concentrations decrease proportionately.'' Under this approach if 20
percent improvement in ozone is needed for the area to reach
attainment, it is assumed a 20 percent reduction in VOC would be
required. There was no approach for identifying NO_X
reductions.
The ``proportional rollback'' approach is based on a purely
empirically/mathematically derived relationship. EPA did not rely on
this approach in its evaluation of the attainment demonstrations. The
prohibition in Appendix W applies to the use of a rollback method which
is empirically/mathematically derived and independent of model
estimates or observed air quality and emissions changes as the sole
method for evaluating control strategies. For the demonstrations under
proposal, EPA used a locally derived (as determined by the model and/or
observed changes in air quality) ratio of change in emissions to change
in ozone to estimate additional emission reductions to achieve an
additional increment of ambient improvement in ozone.
For example, if monitoring or modeling results indicate that ozone
was reduced by 25 ppb during a particular period, and that VOC and
NO_X emissions fell by 20 tons per day and 10 tons per day
respectively during that period, EPA developed a ratio of ozone
improvement related to reductions in VOC and NO_X. This
formula assumes a linear relationship between the precursors and ozone
for a small amount of ozone improvement, but it is not a ``proportional
rollback'' technique. Further, EPA uses these locally derived
adjustment factors as a component to estimate the extent to which
additional emissions reductions--not the core control strategies--would
reduce ozone levels and thereby strengthen the weight of evidence test.
EPA uses the UAM to evaluate the core control strategies.
This limited use of adjustment factors is more technically sound
than the unacceptable use of proportional rollback to determine the
ambient impact of the entire set of emissions reductions required under
the attainment SIP. The limited use of adjustment factors is acceptable
for practical reasons: It obviates the need to expend more time and
resources to perform additional modeling. In

[[Page 54585]]

addition, the adjustment factor is a locally derived relationship
between ozone and its precursors based on air quality observations and/
or modeling which is more consistent with recommendations referenced by
Appendix W and does not assume a direct proportional relationship
between ozone and its precursors. Lastly, the requirement that areas
perform a mid-course review (a check of progress toward attainment)
provides a margin of safety.
A commenter expressed concerns that EPA used a modeling technique
(proportional rollback) that was expressly prohibited by 40 CFR part 51
Appendix W, without expressly proposing to do so in a notice of
proposed rulemaking. However, the commenter is mistaken. As explained
above, EPA did not use or rely upon a proportional rollback technique
in this rulemaking, but used UAM to evaluate the core control
strategies and then applied its WOE guidance. Therefore, because EPA
did not use an ``alternative model'' to UAM, it did not trigger an
obligation to modify Appendix W. Furthermore, EPA did propose the use
the November 1999 guidance ``Guidance for Improving Weight of Evidence
Through Identification of Additional Emission Reductions, Not Modeled''
in the December 16, 1999 NPR and has responded to all comments received
on that guidance elsewhere in this document.
A commenter also expressed concern that EPA applied unacceptably
broad discretion in fashioning and applying the WOE determinations. For
all of the attainment submittals proposed for approval in December 1999
concerning serious and severe ozone nonattainment areas, EPA first
reviewed the UAM results. In all cases, the UAM results did not pass
the deterministic test. In two cases--Milwaukee and Chicago--the UAM
results passed the statistical test; in the rest of the cases, the UAM
results failed the statistical test. The UAM has inherent limitations
that, in EPA's view, were manifest in all these cases. These
limitations include: (1) Only selected time periods were modeled, not
the entire three-year period used as the definitive means for
determining an area's attainment status; (2) inherent uncertainties in
the model formulation and model inputs such as hourly emission
estimates, emissions growth projections, biogenic emission estimates,
and derived wind speeds and directions. As a result, for all areas,
even Milwaukee and Chicago, EPA examined additional analyses to
indicate whether additional SIP controls would yield meaningful
reductions in ozone values. These analyses did not point to the need
for additional emission reductions for Springfield, Greater
Connecticut, Metropolitan Washington DC, Chicago and Milwaukee, but did
point to the need for additional reductions, in varying amounts, in the
other areas. As a result, the other areas submitted control
requirements to provide the indicated level of emissions reductions.
EPA applied the same methodology in these areas, but because of
differences in the application of the model to the circumstances of
each individual area, the results differed on a case-by-case basis.
As another WOE factor, for areas within the NO_X SIP call
domain, results from the EPA regional modeling for NO_X
controls as well as the Tier2/Low Sulfur program were considered. Also,
for all of the areas, EPA considered recent changes in air quality and
emissions. For some areas, this was helpful because there were emission
reductions in the most recent years that could be related to observed
changes in air quality, while for other areas there appeared to be
little change in either air quality or emissions. For areas in which
air quality trends, associated with changes in emissions levels, could
be discerned, these observed changes were used to help decide whether
or not the emission controls in the plan would provide progress towards
attainment.
The commenter also complained that EPA has applied the WOE
determinations to adjust modeling results only when those results
indicate nonattainment, and not when they indicate attainment. First,
we disagree with the premise of this comment: EPA does not apply the
WOE factors to adjust model results. EPA applies the WOE factors as
additional analysis to compensate for uncertainty in the air quality
modeling. Second, EPA has applied WOE determinations to all of the
attainment demonstrations proposed for approval in December 1999.
Although for most of them, the air quality modeling results by
themselves indicated nonattainment, for two metropolitan areas--Chicago
and Milwaukee, including parts of the States of Illinois, Indiana, and
Wisconsin, the air quality modeling did indicate attainment on the
basis of the statistical test.
The commenter further criticized EPA's application of the WOE
determination on grounds that EPA ignores evidence indicating that
continued nonattainment is likely, such as, according to the commenter,
monitoring data indicating that ozone levels in many cities during 1999
continue to exceed the NAAQS by margins as wide or wider than those
predicted by the UAM. EPA has reviewed the evidence provided by the
commenter. The 1999 monitor values do not constitute substantial
evidence indicating that the SIPs will not provide for attainment.
These values do not reflect either the local or regional control
programs which are scheduled for implementation in the next several
years. Once implemented, these controls are expected to lower emissions
and thereby lower ozone values. Moreover, there is little evidence to
support the statement that ozone levels in many cities during 1999
continue to exceed the NAAQS by margins as wide or wider than those
predicted by the UAM. Since areas did not model 1999 ozone levels using
1999 meteorology and 1999 emissions which reflect reductions
anticipated by control measures, that are or will be approved into the
SIP, there is no way to determine how the UAM predictions for 1999
compare to the 1999 air quality. Therefore, we can not determine
whether or not the monitor values exceed the NAAQS by a wider margin
than the UAM predictions for 1999. In summary, there is little evidence
to support the conclusion that high exceedances in 1999 will continue
to occur after adopted control measures are implemented.
In addition, the commenter argued that in applying the WOE
determinations, EPA ignored factors showing that the SIPs under-predict
future emissions, and the commenter included as examples certain mobile
source emissions sub-inventories. EPA did not ignore possible under-
prediction in mobile emissions. EPA is presently evaluating mobile
source emissions data as part of an effort to update the computer model
for estimating mobile source emissions. EPA is considering various
changes to the model, and is not prepared to conclude at this time that
the net effect of all these various changes would be to increase or
decrease emissions estimates. For attainment demonstration SIPs that
rely on the Tier 2/Low Sulfur program for attainment or otherwise
(i.e., reflect these programs in their motor vehicle emissions
budgets), states have committed to revise their motor vehicle emissions
budgets after the MOBILE6 model is released. EPA will work with states
on a case-by-case basis if the new emission estimates raise issues
about the sufficiency of the attainment demonstration. If analysis
indicates additional measures are needed, EPA will take the appropriate
action.

[[Page 54586]]

B. Reliance on the NO_X SIP Call and Tier 2

Comment: Several commenters stated that given the uncertainty
surrounding the NO_X SIP Call at the time of EPA's proposals
on the attainment demonstrations, there is no basis for the conclusion
reached by EPA that states should assume implementation of the
NO_X SIP Call, or rely on it as a part of their
demonstrations. One commenter claims that there were errors in the
emissions inventories used for the NO_X SIP Call Supplemental
Notice (SNPR) and that these inaccuracies were carried over to the
modeling analyses, estimates of air quality based on that modeling, and
estimates of EPA's Tier 2 tailpipe emissions reduction program not
modeled in the demonstrations. Thus, because of the inaccuracies in the
inventories used for the NO_X SIP Call, the attainment
demonstration modeling is also flawed. Finally, one commenter suggests
that modeling data demonstrates that the benefits of imposing
NO_X SIP Call controls are limited to areas near the sources
controlled.
Response: These comments were submitted prior to several court
decisions largely upholding EPA's NO_X SIP Call. Michigan v.
EPA, 213 F.3d 663 (D.C. Cir. 2000), cert. denied,_U.S._, 121 S. Ct.
1225, 149 L.Ed. 135 (2001); Appalachian Power v. EPA, 251 F.3d 1026
(D.C. Cir. 2001) . In those cases, the court largely upheld the
NO_X SIP Call. Although a few issues were vacated or remanded
to EPA for further consideration, these issues do not concern the
accuracy of the emission inventories relied on for purposes of the
NO_X SIP Call. Moreover, contrary to the commenter's
suggestion, the NO_X SIP Call modeling data bases were not
used to develop estimates of reductions from the Tier 2 program for the
severe-area one-hour attainment demonstrations. Accordingly, the
commenter's concerns that inaccurate inventories for the NO_X
SIP Call modeling lead to inaccurate results for the severe-area one-
hour attainment demonstrations are inapposite.
The remanded issues do affect the ability of EPA and the states to
achieve the full level of the SIP Call reductions by May 2003. First,
the court vacated the rule as it applied to two states--Missouri and
Georgia--and also remanded the definition of a co-generator and the
assumed emission limit for internal combustion engines. EPA has
informed the states that until EPA addresses the remanded issues, EPA
will accept SIPs that do not include those small portions of the
emission budget. However, EPA is planning to propose a rule shortly to
address the remanded issues and ensure that emission reductions from
these states and the emission reductions represented by the two source
categories are addressed in time to benefit the severe nonattainment
areas. Also, although the court in the Michigan case subsequently
issued an order delaying the implementation date to no later than May
31, 2004, and the Appalachian Power case remanded an issue concerning
computation of the electric generating units (EGU) growth factor, it is
EPA's view that states should assume that the SIP Call reductions will
occur in time to ensure attainment in the severe nonattainment areas.
Both EPA and the states are moving forward to implement the
NO_X SIP Call.
Finally, contrary to the commenter's conclusions, EPA's modeling to
determine the region-wide impacts of the NO_X SIP Call
clearly shows that regional transport of ozone and its precursors is
impacting nonattainment areas several states away. This analysis was
upheld by the court in Michigan.

C. Approval of Demonstrations That Rely on State Commitments or State
Rules for Emission Limitations to Lower Emissions in the Future Not Yet
Adopted by a State and/or Approved By EPA

Comment: Several commenters disagreed with EPA's proposal to
approve states' attainment demonstrations because: (a) Not all of the
emissions reductions assumed in the demonstrations have actually taken
place, (b) are reflected in rules yet to be adopted and approved by a
state and approved by EPA as part of the SIP, (c) are credited
illegally as part of a demonstration because they are not approved by
EPA as part of the SIP, or (d) the commenter maintains that EPA does
not have authority to accept enforceable state commitments to adopt
measures in the future in lieu of current adopted measures to fill a
near-term shortfall of reductions.
Response: EPA disagrees with the comments, and believes--consistent
with past practice--that the CAA allows approval of enforceable
commitments that are limited in scope where circumstances exist that
warrant the use of such commitments in place of adopted measures.\6\
Once EPA determines that circumstances warrant consideration of an
enforceable commitment, EPA believes that three factors should be
considered in determining whether to approve the enforceable
commitment: (1) Whether the commitment addresses a limited portion of
the statutorily-required program; (2) whether the state is capable of
fulfilling its commitment; and (3) whether the commitment is for a
reasonable and appropriate period of time.
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\6\ These commitments are enforceable by the EPA and citizens
under, respectively, sections 113 and 304 of the CAA. In the past,
EPA has approved enforceable commitments and courts have enforced
these actions against states that failed to comply with those
commitments. See, e.g., American Lung Ass'n of N.J. v. Kean, 670 F.
Supp.1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC,
Inc. v. N.Y. State Dept. of Env. Cons., 668 F. Supp. 848
(S.D.N.Y.1987); Citizens for a Better Env't v. Deukmejian, 731 F.
Supp. 1448, recon. granted in part, 746 F. Supp. 976 (N.D. Cal.
1990); Coalition for Clean Air v. South Coast Air Quality Mgt.
Dist., No. CV 97--6916--HLH, (C.D. Cal. Aug. 27, 1999). Further, if
a state fails to meet its commitments, EPA could make a finding of
failure to implement the SIP under section 179(a) of the Act, which
starts an 18-month period for the State to begin implementation
before mandatory sanctions are imposed.
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As an initial matter, EPA believes that present circumstances for
the New York City, Philadelphia, Baltimore and Houston nonattainment
areas warrant the consideration of enforceable commitments. The
Northeast states that make up the New York, Philadelphia and Baltimore
nonattainment areas submitted SIPs that they reasonably believed
demonstrated attainment with fully adopted measures. After EPA's
initial review of the plans, EPA recommended to these areas that
additional controls would be necessary to ensure attainment. Because
these areas had already submitted plans with many fully adopted rules
and the adoption of additional rules would take some time, EPA believed
it was appropriate to allow these areas to supplement their plans with
enforceable commitments to adopt and submit control measures to achieve
the additional necessary reductions. For Maryland's attainment
demonstration for the Philadelphia area, EPA has determined that the
submission of enforceable commitments in place of adopted control
measures for this limited set of reductions will not interfere with the
area's ability to meet its 2005 attainment obligations.
EPA's approach here of considering enforceable commitments that are
limited in scope is not new. EPA has historically recognized that under
certain circumstances, issuing full approval may be appropriate for a
submission that consists, in part, of an enforceable commitment. See,
e.g., 62 FR 1150, 1187, January 8, 1997 (ozone attainment demonstration
for the South Coast Air Basin); 65 FR 18903, April 10, 2000 (revisions
to attainment

[[Page 54587]]

demonstration for the South Coast Air Basin); 63 FR 41326, August 3,
1998 (federal implementation plan for PM-10 for Phoenix); (48 FR 51472,
state implementation plan for New Jersey). Nothing in the Act speaks
directly to the approvability of enforceable commitments.\7\ However,
EPA believes that its interpretation is consistent with provisions of
the CAA. For example, section 110(a)(2)(A) provides that each SIP
``shall include enforceable emission limitations and other control
measures, means or techniques . . . as well as schedules and timetables
for compliance, as may be necessary or appropriate to met the
applicable requirement of the Act.'' (Emphasis added). Section
172(c)(6) of the Act requires, as a rule generally applicable to
nonattainment SIPs, that the SIP ``include enforceable emission
limitations and such other control measures, means or techniques . . .
as may be necessary or appropriate to provide for attainment . . . by
the applicable attainment date . . . `` (Emphasis added). The
emphasized terms mean that enforceable emission limitations and other
control measures do not necessarily need to generate reductions in the
full amount needed to attain. Rather, the emissions limitations and
other control measures may be supplemented with other SIP rules--for
example, the enforceable commitments EPA is approving today--as long as
the entire package of measures and rules provides for attainment.
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\7\ Section 110(k)(4) provides for ``conditional approval'' of
commitments that need not be enforceable. Under that section, a
State may commit to ``adopt specific enforceable measures'' within
one-year of the conditional approval. Rather than enforcing such
commitments against the State, the Act provides that the conditional
approval will convert to a disapproval if ``the State fails to
comply with such commitment.''
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As provided above, after concluding that the circumstances warrant
consideration of an enforceable commitment--as they do for the
Philadelphia area--EPA would consider three factors in determining
whether to approve the submitted commitments. First, EPA believes that
the commitments must be limited in scope. In 1994, in considering EPA's
authority under section 110(k)(4) to conditionally approve
unenforceable commitments, the Court of Appeals for the District of
Columbia Circuit struck down an EPA policy that would allow States to
submit (under limited circumstances) commitments for entire programs.
Natural Resources Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir.
1994). While EPA does not believe that case is directly applicable
here, EPA agrees with the Court that other provisions in the Act
contemplate that a SIP submission will consist of more than a mere
commitment. See NRDC, 22 F.3d at 1134.
In the present circumstances, the commitments address only a small
portion of the plan. For the Philadelphia area, Maryland's commitment
addresses only 10.7 percent VOC and 0.7 percent NO_X of the
emission reductions necessary to attain the standard. Please see
Sections I.G. and I.H. of this document for a comprehensive description
of all of the adopted control measures and other components of the
Maryland attainment demonstration SIP's control strategy for the
Philadelphia area.
As to the second factor, whether the State is capable of fulfilling
the commitment, EPA considered the current or potential availability of
measures capable of achieving the additional level of reductions
represented by the commitment. For the New York, Philadelphia and
Baltimore nonattainment areas, EPA believes that there are sufficient
untapped sources of emission reductions that could achieve the minimal
levels of additional reductions that the areas need. This is supported
by the recent recommendation of the OTC regarding specific controls
that could be adopted to achieve the level of reductions needed for
each of these three nonattainment areas. Thus, EPA believes that the
States will be able to find sources of reductions to meet the
shortfall. The States that comprise the New York, Philadelphia and
Baltimore nonattainment areas are making significant progress toward
adopting the measures to fill the shortfall. The OTC has met and on
March 28, 2001 recommended a set of control measures. Currently, the
States are working through their adoption processes with respect to
those, and in some cases other, control measures.
Although EPA has evidence that the State may not make the
submission on or before the date to which it has committed, EPA
believes that it is making sufficient progress to support approval of
the commitment. The State of Maryland has indicated that it would
adopt, submit and implement the measures within a time period fully
consistent with the Philadelphia area attaining the standard by its
2005 attainment date.
The third factor, EPA has considered in determining to approve
limited commitments for the Philadelphia area attainment demonstrations
is whether the commitment is for a reasonable and appropriate period.
EPA recognizes that both the Act and EPA have historically emphasized
the need for submission of adopted control measures in order to ensure
expeditious implementation and achievement of required emissions
reductions. Thus, to the extent that other factors--such as the need to
consider innovative control strategies--support the consideration of an
enforceable commitment in place of adopted control measures, the
commitment should provide for the adoption of the necessary control
measures on an expeditious, yet practicable, schedule.
As provided above, for the New York, Baltimore and Philadelphia
areas, EPA proposed that these areas have time to work within the
framework of the OTC to develop, if appropriate, a regional control
strategy to achieve the necessary reductions and then to adopt the
controls on a state-by-state basis. In the proposed approval of the
attainment demonstrations, EPA proposed that these areas would have
approximately 22 months to complete the OTC and state-adoption
processes--a fairly ambitious schedule--i.e., until October 31, 2001.
As a starting point in suggesting this time frame for submission of the
adopted controls, EPA first considered the CAA ``SIP Call'' provision
of the CAA--section 110(k)(5)--which provides States with up to 18
months to submit a SIP after EPA requests a SIP revision. While EPA may
have ended its inquiry there, and provided for the States to submit the
measures within 18 months of its proposed approval of the attainment
demonstrations, EPA further considered that these areas were all
located with the Northeast Ozone Transport Region and determined that
it was appropriate to provide these areas with additional time to work
through the OTR process to determine if regional controls would be
appropriate for addressing the shortfall. EPA believed that allowing
these States until 2001 to adopt these additional measures would not
undercut their attainment dates of November 2005 or 2007. EPA still
believes that this a reasonable schedule for the states to submit
adopted control measures that will achieve the additional necessary
reductions
The enforceable commitments submitted by Maryland for the
Philadelphia nonattainment area, in conjunction with the other SIP
measures and other sources of emissions reductions, constitute the
required demonstration of attainment. EPA believes that the delay in
submittal of the final rules is permissible under section 110(k)(3)
because the State has obligated itself to submit the rules by

[[Page 54588]]

specified short-term dates, and that obligation is enforceable by EPA
and the public. Moreover, as discussed in the December 16, 1999
proposal, its TSD, other rulemaking actions (cited herein) taken by EPA
since December 16, 1999, and in this document; the SIP submittal
approved today contains major substantive components submitted as
adopted regulations and enforceable orders.

D. RACM (Including Transportation Control Measures)

Comment: Several commenters have stated that there is no evidence
in several states that they have adopted reasonably available control
measures (RACM) or that the SIPs have provided for attainment as
expeditiously as practicable. Specifically, the lack of Transportation
Control Measures (TCMs) was cited in several comments, but commenters
also raised concerns about potential stationary source controls. One
commenter stated that mobile source emission budgets in the plans are
by definition inadequate because the SIPs do not demonstrate timely
attainment or contain the emissions reductions required for all RACM.
That commenter claims that EPA may not find adequate motor vehicle
emission budget (MVEB) that is derived from a SIP that is inadequate
for the purpose for which it is submitted. The commenter alleges that
none of the MVEBs submitted by the states that EPA is considering for
adequacy is consistent with the level of emissions achieved by
implementation of all RACM; nor are they derived from SIPs that provide
for attainment. Some commenters stated that for measures that are not
adopted into the SIP, the states must provide a justification for why
they were determined to not be RACM.
Response: EPA reviewed the initial SIP submittals for the Maryland
portion of the Philadelphia area, namely Cecil County, and determined
that they did not include sufficient documentation concerning available
RACM measures. For all of the severe areas for which EPA proposed
approval in December 1999, EPA consequently issued policy guidance
memorandum to have these states address the RACM requirement through an
additional SIP submittal. (Memorandum of December 14, 2000, from John
S. Seitz, Director, Office of Air Quality Planning and Standards, re:
``Additional Submission on RACM from States with Severe One-Hour Ozone
Nonattainment Area SIPs'').
On August 20, 2001, Maryland submitted its proposed analysis and
determination that there are no additional reasonably available control
measures (RACM) for the area and requested that EPA approve it as a SIP
revision using a form of Federal rulemaking known as parallel-
processing. On September 7, 2001 (66 FR 46758), EPA published a SNPR
proposing to approve this supplement to the SIP as meeting the RACM
requirements. We received no comments on that September 7, 2001 SNPR.
That proposed approval was done under a procedure called parallel
processing, whereby EPA proposes rulemaking action concurrently with
the state's procedures for amending its SIP. If the final, adopted
revision is substantially changed from the version EPA proposed to
approve, and which was available for public review during EPA's comment
period, EPA will evaluate those changes and may publish another
supplemental notice of proposed rulemaking. If no substantial changes
are made, EPA will publish a final rulemaking notice on the revision.
The final rulemaking action by EPA will occur only after the SIP
revision has been adopted by the state and submitted formally to EPA
for incorporation into the SIP.
On August 31, 2001, the State of Maryland supplemented its original
attainment demonstration SIP with a formal submittal of an analysis of
RACM. EPA has determined that there are no changes between Maryland's
formally submitted RACM analysis and the proposed version for which we
proposed approval on September 7, 2001. Based upon this SIP supplement,
EPA concluded that Maryland's attainment demonstration SIP for the
Philadelphia area meets the requirement for adopting RACM. In this
final rule, EPA is approving Maryland's 2005 attainment demonstration
plan for the Philadelphia area including this RACM analysis.
Section 172(c)(1) of the Act requires SIPs to contain RACM and
provides for areas to attain as expeditiously as practicable. EPA has
previously provided guidance interpreting the requirements of
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its
interpretation that potentially available measures that would not
advance the attainment date for an area would not be considered RACM.
EPA also indicated in that guidance that states should consider all
potentially available measures to determine whether they were
reasonably available for implementation in the area, and whether they
would advance the attainment date. Further, states should indicate in
their SIP submittals whether measures considered were reasonably
available or not, and if measures are reasonably available they must be
adopted as RACM. Finally, EPA indicated that states could reject
measures as not being RACM because they would not advance the
attainment date, would cause substantial widespread and long-term
adverse impacts, would be economically or technologically infeasible,
or would be unavailable based on local considerations, including costs.
EPA also issued a recent memorandum re-confirming the principles in the
earlier guidance, entitled, ``Guidance on the Reasonably Available
Control Measures (RACM) Requirement and Attainment Demonstration
Submissions for Ozone Nonattainment Areas.'' John S. Seitz, Director,
Office of Air Quality Planning and Standards. November 30, 1999. Web
site: www.epa.gov/ttn/oarpg/t1pgm.html.
As stated previously, the analysis submitted by Maryland on August
31, 2001 as a supplement to its attainment demonstration SIP for the
Philadelphia area, addresses the RACM requirement. Maryland has
considered a variety of potential stationary/area source controls such
as limits on area source categories not covered by a control technique
guideline (e.g., motor vehicle refinishing, and surface/cleaning
degreasing); rule effectiveness improvements; controls on major
stationary sources of NO_X that are beyond that required
under reasonably available control technology (RACT); and other
potential measures. Maryland considered a variety of potential mobile
source control measures such as alternative fuel vehicles; bicycle and
pedestrian improvements; early retirement of older motor vehicles; land
use and development changes; transit improvements; employer based
programs; congestion pricing for low occupancy vehicles; traffic flow
improvements; outreach and education; parking restrictions; market-
based/economic incentive-based program; low emission vehicle standards;
and other measures such as trip reduction ordinances, value pricing and
highway ramp metering.
The State has implemented measures which went beyond the Federally
mandated controls, which were found to be cost effective and
technologically feasible. Maryland has adopted and submitted rules for
the following categories of area sources which go beyond the Federally
mandated controls. The State has implemented measures which went beyond
the Federally mandated controls, which were found to be cost effective
and technologically feasible. Maryland has

[[Page 54589]]

adopted and submitted rules for the following categories of area
sources which go beyond the Federally mandated controls. The following
are examples and not an exhaustive list:
(1) Maryland has adopted, and EPA has SIP approved, a rule for
motor vehicle refinishing. The rule includes volatile organic compound
(VOC) content limits for motor vehicle refinishing coatings,
application standards and storage and house keeping work practices.
This rule goes beyond the Federal rule in content limits, and sets
application and work practices standards.
(2) Maryland has adopted, and EPA has approved, a rule for control
of VOC emissions from screen printing on plywood used for signs, and
untreated sign paper.
(3) Maryland has adopted, and EPA has SIP approved, a rule for
control of VOC emissions from screen printing, lithographic printing,
drying ovens, adhesive application, and laminating equipment used to
produce a credit card or similar plastic card product.
(4) Maryland has adopted, and EPA has SIP approved, a rule for
control of VOC emissions from ``digital imaging''--printers that use a
computer driven machine to transfer an electronically stored image onto
the substrate through the use of inks, toners, or other similar color
graphic materials via ink jet, electrostatic, and spray jet
technologies.
(5) Maryland has adopted, and EPA has SIP approved, a rule for
control of VOC emissions from cold and vapor degreasing that includes
requirements that go beyond the applicable CTG. Maryland restricts the
vapor pressure of solvents used to 1 mm Hg at 20 C (0.019 psia) or less
for and cold degreasing, including cold or vapor degreasing at: service
stations; motor vehicle repair shops; automobile dealerships; machine
shops; and any other metal refinishing, cleaning, repair, or
fabrication facility.
(6) Maryland has adopted, and EPA has SIP approved, a rule for
control of VOC and NO_X emissions by banning open burning
activities from June 1 through August 31 of each year.
(7) Maryland has adopted, and EPA has SIP approved, a rule for
control of VOC emissions from lithographic printing.
(8) Maryland has adopted, and EPA has SIP approved, a rule to
implement Phase II NO_X controls under the OTC's MOU. This
rule established a fixed cap on ozone-season NO_X emissions
from specified major point sources of NO_X. The rule grants
each source a fixed number of NO_X allowances, applies state-
wide, and required compliance starting during the 2000 ozone season. It
reduces NO_X emissions both inside and outside the
Philadelphia area.
(9) Maryland has adopted, and EPA has SIP approved, a rule to
implement the NO_X SIP Call. The Maryland rule requires
compliance commencing with the start of the 2003 ozone season. (This
measure is identified as Phase II/III control under the OTC MOU on
NO_X control in the attainment demonstration).
(10) Maryland has also adopted, and EPA has SIP approved, a rule
requiring the sale of vehicles under the national low-emission vehicle
program (NLEV).
Maryland has considered a variety of potential mobile source
control measures such as alternative fuel vehicles; bicycle and
pedestrian improvements; early retirement of older motor vehicles; land
use and development changes; transit improvements; employer based
programs; congestion pricing for low occupancy vehicles; traffic flow
improvements; outreach and education; parking restrictions; market-
based/economic incentive-based program; and other measures such as trip
reduction ordinances, value pricing and highway ramp metering. The
Maryland portion of the Philadelphia area, Cecil County, has unique
local characteristics that affect the effectiveness of many mobile
source measures. The first is that the majority of the vehicle travel
occurs on the Interstate 95 highway; much of this traffic is through
traffic that would not be affected by locally adopted transportation
control measures. Cecil County is a rural area without much of the mass
transit infrastructure found in Maryland's other major nonattainment
areas (Baltimore, Metropolitan Washington, DC). The area has few point
sources of VOC emissions and no major sources of NO_X. Most
of the area source VOC emissions are already subject to regulation.
Maryland determined that many of the considered measures were not to be
RACM due to the potential for substantial widespread and long-term
adverse impacts, or for various reasons related to local conditions,
such as economics or implementation concerns. A large number of the
considered measures were rejected on these grounds or on the grounds
that they could not be implemented by 2005 much less any earlier. Some
were rejected because they would not advance attainment because the
measure had benefits outside the ozone season or would be sporadically
implemented (not episodically) such as the ``try transit week'' items.
These explanations are provided in further detail in the docket for
this rulemaking. On September 7, 2001, EPA published an SNPR proposing
to approve the RACM analysis submitted by Maryland on August 31, 2001
as a supplement to its 2005 attainment demonstration SIP for the
Philadelphia area. We received no comments on that SNPR. In this final
rule, EPA is approving Maryland's 2005 attainment demonstration plan
for the Philadelphia area including this RACM analysis.
Although EPA does not believe that section 172(c)(1) requires
implementation of additional measures for the Maryland portion of the
Philadelphia area, this conclusion is not necessarily valid for other
areas. Thus, a determination of RACM is necessary on a case-by-case
basis and will depend on the circumstances for the individual area. In
addition, if in the future EPA moves forward to implement another ozone
standard, this RACM analysis would not control what is RACM for these
or any other areas for that other ozone standard.
Also, EPA has long advocated that states consider the kinds of
control measures that the commenters have suggested, and EPA has indeed
provided guidance on those measures. See, e.g., www.epa.gov/otaq/
transp.htm. In order to demonstrate that they will attain the one-hour
ozone NAAQS as expeditiously as practicable, some areas may need to
consider and adopt a number of measures--including the kind that the
Maryland portion of the Philadelphia area, Cecil County itself
evaluated in its RACM analysis--that even collectively do not result in
many emission reductions. Furthermore, EPA encourages areas to
implement technically available and economically feasible measures to
achieve emissions reductions in the short term--even if such measures
do not advance the attainment date--since such measures will likely
improve air quality. Also, over time, emission control measures that
may not be RACM now for an area may ultimately become feasible for the
same area due to advances in control technology or more cost-effective
implementation techniques. Thus, areas should continue to assess the
state of control technology as they make progress toward attainment and
consider new control technologies that may in fact result in more
expeditious improvement in air quality.
Because EPA is finding that the SIP meets the Clean Air Act's
requirement for RACM and that there are no additional reasonably
available control measures that can advance the attainment date, EPA
concludes that the attainment date being approved is as expeditious as
practicable.

[[Page 54590]]

E. Adequacy of the Motor Vehicle Emissions Budgets

Comment 1: We received a number of comments about the process and
substance of EPA's review of the adequacy of motor vehicle emissions
budgets for transportation conformity purposes.
Response 1: EPA's adequacy process for these SIPs has been
completed, and we have found the motor vehicle emissions budgets in all
of these SIPs to be adequate. We have already responded to any comments
related to adequacy when we issued our adequacy findings, and therefore
we are not listing the individual comments or responding to them here.
Our findings of adequacy and responses to comments can be accessed at
www.epa.gov/otaq/traq (once there, click on the ``conformity'' button).
At the Web site, EPA regional contacts are identified.
Comment 2: We received comments that assert that EPA cannot approve
Maryland's motor vehicle emissions budgets because Maryland has not
submitted the latest periodic inventory which the comments claim was
due three years after June 30, 1997, and because there is no
demonstration that Maryland is meeting rate of progress requirements.
Response 2: EPA believes the milestone compliance demonstration
requirements of CAA section 182(g) and the periodic inventory
requirements under section 182(a)(3)(A) each are independent
requirements from the attainment demonstration requirements under CAA
sections 172(c)(1) and 182(c)(2)(A). The periodic emissions inventory
and milestone compliance demonstration requirements have no bearing on
whether a state has submitted a SIP that projects attainment of the
ozone NAAQS. EPA acknowledges that milestone compliance demonstration
and periodic emission inventory requirements are an independently
required action, but does not believe that these have any bearing on
whether Maryland has submitted an approvable attainment demonstration
SIP. EPA certainly expects that the periodic emissions inventory for
1999 would reflect the 1999 fleet data used in the final motor vehicle
emissions budgets found in the final attainment demonstration SIP.

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

Comment 1: One commenter generally supports a policy of requiring
motor vehicle emissions budgets to be recalculated when revised MOBILE
models are released.
Response 1: The Phase II attainment demonstrations that rely on
Tier 2 emission reduction credit contain commitments to revise the
motor vehicle emissions budgets after MOBILE6 is released.
Comment 2: The revised budgets calculated using MOBILE6 will likely
be submitted after the MOBILE5 budgets have already been approved.
EPA's policy is that submitted SIPs may not replace approved SIPs.
Response 2: This is the reason that EPA proposed in the July 28,
2000, SNPR (65 FR 46383) that the approval of the MOBILE5 budgets for
conformity purposes would last only until MOBILE6 budgets had been
submitted and found adequate. In this way, the MOBILE6 budgets can
apply for conformity purposes as soon as they are found adequate.
Comment 3: If a State submits additional control measures that
affect the motor vehicle emissions budget, but does not submit a
revised motor vehicle emissions budget, EPA should not approve the
attainment demonstration.
Response 3: EPA agrees. The motor vehicle emissions budgets in
Maryland's 2005 attainment demonstration SIP for the Philadelphia area
reflect the motor vehicle control measures in the attainment
demonstration. In addition, Maryland has committed to submit new
budgets as a revision to the attainment SIP consistent with any new
measures submitted to fill any shortfall, if the additional control
measures affect on-road motor vehicle emissions.
Comment 4: EPA should make it clear that the motor vehicle
emissions budgets to be used for conformity purposes will be determined
from the total motor vehicle emissions reductions required in the SIP,
even if the SIP does not explicitly quantify a revised motor vehicle
emissions budget.
Response 4: EPA will not approve SIPs without motor vehicle
emissions budgets that are explicitly quantified for conformity
purposes. The Maryland attainment demonstration for the Philadelphia
area contains explicitly quantified motor vehicle emissions budgets.
Comment 5: If a state fails to follow through on its commitment to
submit the revised motor vehicle emissions budgets using MOBILE6, EPA
could make a finding of failure to submit a portion of a SIP, which
would trigger a sanctions clock under section 179.
Response 5: If a state fails to meet its commitment, EPA could make
a finding of failure to implement the SIP, which would start a
sanctions clock under section 179 of the Clean Air Act.
Comment 6: If the budgets recalculated using MOBILE6 are larger
than the MOBILE5 budgets, then attainment should be demonstrated again.
Response 6: As EPA proposed in its December 16, 1999 notices, we
will work with States on a case-by-case basis if the new emissions
estimates raise issues about the sufficiency of the attainment
demonstration.
Comment 7: If the MOBILE6 budgets are smaller than the MOBILE5
budgets, the difference between the budgets should not be available for
reallocation to other sources unless air quality data show that the
area is attaining, and a revised attainment demonstration is submitted
that demonstrates that the increased emissions are consistent with
attainment and maintenance. Similarly, the MOBILE5 budgets should not
be retained (while MOBILE6 is being used for conformity demonstrations)
unless the above conditions are met.
Response 7: EPA agrees that if recalculation using MOBILE6 shows
lower motor vehicle emissions than MOBILE5, then these motor vehicle
emission reductions cannot be reallocated to other sources or assigned
to the motor vehicle emissions budget as a safety margin unless the
area reassesses the analysis in its attainment demonstration and shows
that it will still attain. In other words, the area must assess how its
original attainment demonstration is impacted by using MOBILE6 versus
MOBILE5 before it reallocates any apparent motor vehicle emission
reductions resulting from the use of MOBILE6. In addition, Maryland
will be submitting new budgets based on MOBILE6, so the MOBILE5 budgets
will not be retained in the SIP indefinitely.

G. MOBILE6 Grace Period

Comment 1: We received a comment on whether the grace period before
MOBILE6 is required in conformity determinations will be consistent
with the schedules for revising SIP motor vehicle emissions budgets
within 1 or 2 years of MOBILE6's release.
Response 1: This comment is not germane to this rulemaking, since
the MOBILE6 grace period for conformity determinations is not
explicitly tied to EPA's SIP policy and approvals. However, EPA
understands that a longer grace period would allow some areas to better
transition to new MOBILE6 budgets. EPA is considering the maximum two-
year grace period allowed by the conformity rule, and EPA will address
this in the future when the final MOBILE6 emissions model and policy
guidance is released.

[[Page 54591]]

Comment 2: One commenter asked EPA to clarify in the final rule
whether MOBILE6 will be required for conformity determinations once new
MOBILE6 budgets are submitted and found adequate.
Response 2: This comment is not germane to this rulemaking.
However, it is important to note that EPA intends to clarify its policy
for implementing MOBILE6 in conformity determinations when the final
MOBILE6 model is released. EPA believes that MOBILE6 should be used in
conformity determinations once new MOBILE6 budgets are found adequate.

H. Two-Year Option To Revise the MVEBs

Comment: One commenter did not prefer the additional option for a
second year before the state has to revise the conformity budgets with
MOBILE6, since new conformity determinations and new transportation
projects could be delayed in the second year.
Response: EPA proposed the additional option to provide further
flexibility in managing MOBILE6 budget revisions. The supplemental
proposal did not change the original option to revise budgets within
one year of MOBILE6's release. State and local governments can continue
to use the one-year option, if desired, or submit a new commitment
consistent with the alternative two-year option. EPA expects that state
and local agencies have consulted on which option is appropriate and
have considered the impact on future conformity determinations.
Maryland has committed to revise its budgets within one year of
MOBILE6's release.

I. Motor Vehicle Emissions Inventory

Comment: Several commenters stated that the motor vehicle emissions
inventory is not current, particularly with respect to the fleet mix.
Commenters stated that the fleet mix does not accurately reflect the
growing proportion of sport utility vehicles and gasoline trucks, which
pollute more than conventional cars. Also, a commenter stated that EPA
and states have not followed a consistent practice in updating SIP
modeling to account for changes in vehicle fleets. For these reasons,
commenters recommend disapproving the SIPs.
Response: All of the SIPs on which we are taking final action are
based on the most recent vehicle registration data available at the
time the SIP was submitted. The SIPs use the same vehicle fleet
characteristics that were used in the most recent periodic inventory
update. Maryland used 1999 vehicle registration data in the final motor
vehicle emissions budgets found in its attainment demonstration SIP for
the Philadelphia area. EPA requires the most recent available data to
be used, but we do not require it to be updated on a specific schedule.
Therefore, different SIPs base their fleet mix on different years of
data. Our guidance does not suggest that SIPs should be disapproved on
this basis. Nevertheless, we do expect that revisions to these SIPs
that are submitted using MOBILE6 (as required in those cases where the
SIP is relying on emissions reductions from the Tier 2 standards) will
use updated vehicle registration data appropriate for use with MOBILE6,
whether it is updated local data or the updated national default data
that will be part of MOBILE6.

J. VOC Emission Reductions

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

K. Credit for Measures Not Fully Implemented

Comment: States should not be given credit for measures that are
not fully implemented. For example, the States are being given full
credit for Federal coating, refinishing and consumer product rules that
have been delayed or weakened.
Response: Architectural and Industrial Maintenance (AIM) Coatings:
On March 22, 1995 EPA issued a memorandum \8\ that provided that States
could claim a 20 percent reduction in VOC emissions from the AIM
coatings category in ROP and attainment plans based on the anticipated
promulgation of a national AIM coatings rule. In developing the
attainment and ROP SIPs for their nonattainment areas, States relied on
this memorandum to estimate emission reductions from the anticipated
national AIM rule. EPA promulgated the final AIM rule in September
1998, codified at 40 CFR part 59 subpart D. In the preamble to EPA's
final AIM coatings regulation, EPA estimated that the regulation will
result in 20 percent reduction of nationwide VOC emissions from AIM
coatings categories (63 FR 48855). The estimated VOC reductions from
the final AIM rule resulted in the same level as those estimated in the
March 1995 EPA policy memorandum.
---------------------------------------------------------------------------

\8\ ``Credit for the 15 Percent Rate-of-Progress Plans for
Reductions from the Architectural and Industrial Maintenance (AIM)
Coating Rules,'' March 22, 1995, from John S. Seitz, Director,
Office of Air Quality Planning and Standards to Air Division
Directors, Regions I-X.
---------------------------------------------------------------------------

In accordance with EPA's final regulation, States have assumed a 20
percent reduction from AIM coatings source categories in their
attainment and ROP plans. AIM coatings manufacturers were required to
be in compliance with the final regulation within one year of
promulgation, except for certain pesticide formulations which were
given an additional year to comply. Thus all manufacturers were
required to comply, at the latest, by September 2000. Industry
confirmed in comments on the proposed AIM rule that 12 months between
the issuance of the final rule and the compliance deadline would be
sufficient to ``use up existing label stock'' and ``adjust
inventories'' to conform to the rule. (63

[[Page 54592]]

FR 48848, September 11, 1998). In addition, EPA determined that, after
the compliance date, the volume of nonconforming products would be very
low (less than one percent) and would be withdrawn from retail shelves
anyway. Therefore, EPA believes that compliant coatings were in use by
the Fall of 1999 with full reductions to be achieved by September 2000
and that it was appropriate for the States to take credit for a 20
percent emission reduction in their SIPs.
Autobody Refinish Coatings Rule: Consistent with a November 27,
1994 EPA policy \9\, many States claimed a 37 percent reduction from
this source category based on a proposed rule.
---------------------------------------------------------------------------

\9\ ``Credit for the 15 Percent Rate-of-Progress Plans for
Reductions from the Architectural and Industrial Maintenance (AIM)
Coating Rule and the Autobody Refinishing Rule,'' November 29, 1994,
John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-
X.
---------------------------------------------------------------------------

However, EPA's final rule, ``National Volatile Organic Compound
Emission Standards for Automobile Refinish Coatings,'' published on
September 11, 1998 (63 FR 48806), did not regulate lacquer topcoats and
will result in a smaller emission reduction of around 33 percent
overall nationwide. The 37 percent emission reduction from EPA's
proposed rule was an estimate of the total nationwide emission
reduction. Since this number is an overall national average, the actual
reduction achieved in any particular area could vary depending on the
level of control which already existed in the area. For example, in
California the reduction from the national rule is zero because
California's rules are more stringent than the national rule. In the
proposed rule, the estimated percentage reduction for areas that were
unregulated before the national rule was about 40 percent. However as a
result of the lacquer topcoat exemption added between proposal and
final rule, the reduction is now estimated to be 36 percent for
previously unregulated areas. Thus, most previously unregulated areas
will need to make up the approximately 1 percent difference between the
37 percent estimate of reductions assumed by States, following EPA
guidance based on the proposal, and the 36 percent reduction actually
achieved by the final rule for previously unregulated areas. EPA's best
estimate of the reduction potential of the final rule was spelled out
in a September 19, 1996 memorandum entitled ``Emissions Calculations
for the Automobile Refinish Coatings Final Rule'' from Mark Morris to
Docket No. A-95-18.
Consumer Products Rule: Consistent with a June 22, 1995 EPA
guidance \10\, States claimed a 20 percent reduction from this source
category based on EPA's proposed rule. The final rule, ``National
Volatile Organic Compound Emission Standards for Consumer Products,''
(63 FR 48819), published on September 11, 1998, has resulted in a 20
percent reduction after the December 10, 1998 compliance date.
Moreover, these reductions largely occurred by the Fall of 1999. In the
consumer products rule, EPA determined and the consumer products
industry concurred, that a significant proportion of subject products
have been reformulated in response to State regulations and in
anticipation of the final rule (63 FR 48819). That is, industry
reformulated the products covered by the consumer products rule in
advance of the final rule. Therefore, EPA believes that complying
products in accordance with the rule were in use by the Fall of 1999.
It was appropriate for the States to take credit for a 20 percent
emission reduction for the consumer products rule in their SIPs.
---------------------------------------------------------------------------

\10\ ``Regulatory Schedule for Consumer and Commercial Products
under Section 183(e) of the Clean Air Act,'' June 22, 1995, John S.
Seitz, Director OAQPS, to Air Division Directors, Regions I-X.
---------------------------------------------------------------------------

L. Enforcement of Control Programs

Comment: The attainment demonstrations do not clearly set out
programs for enforcement of the various control strategies relied on
for emission reduction credit.
Response: In general, state enforcement, personnel and funding
program elements are contained in SIP revisions previously approved by
EPA under obligations set forth in section 110(a)(2)(c) of the Clean
Air Act. Once approved by EPA, there is no need for states to re-adopt
and resubmit these programs with each and every SIP revision generally
required by other sections of the Act. Maryland had previously received
approval of their section 110(a)(2) SIPs. In a final rulemaking action
published on March 8, 1984 (49 FR 8610), EPA approved Maryland's
financial and manpower resource commitments, after having proposed
approval of these commitments on February 3, 1983 (48 FR 5048, 5052).
In addition, emission control regulations will also contain specific
enforcement mechanisms, such as record keeping and reporting
requirements, and may also provide for periodic state inspections and
reviews of the affected sources. EPA's review of these regulations
includes review of the enforceability of the regulations. Rules that
are not enforceable are generally not approved by EPA. To the extent
that the ozone attainment demonstration and ROP plan depend on specific
state emission control regulations these individual regulations have
undergone review by EPA in past approval actions.

M. Maryland's NO_X Measures Are Not Approved

Comment: We received comments that objected to crediting the
attainment plan with reductions from measures not approved into the
SIP. The comments specifically mentioned the NO_X RACT rule
and the Phase II NO_X controls under the OTC MOU. We also
received comments on these programs which stated that the applicability
of the NO_X RACT requirement should extend down to sources
with emissions of 25 tons per year or more.
Response: These comments are no longer germane to Maryland's
attainment plan for the Philadelphia area. On, February 8, 2001, EPA
fully approved Maryland's NO_X RACT rule (66 FR 9522). On
December 15, 2000, EPA fully approved Maryland's rule that implements
the Phase II controls under the OTC MOU to control NO_X (65
FR 78416). The comment regarding extending the applicability of RACT
down to 25 ton per year sources is moot because the applicability
threshold for NO_X RACT in Maryland's SIP-approved rule for
the Philadelphia severe nonattainment area is 25 tons per year or more
as required by the Act.

N. Attainment and Post-1999 Rate of Progress Demonstrations

Comment: One commenter claims that the plans fail to demonstrate
emission reductions of 3 percent per year over each 3-year period
between November 1999 and November 2002; and November 2002 and November
2005; and the 2-year period between November 2005 and November 2007, as
required by 42 U.S.C. section 7511a(c)(2)(B). The states have not even
attempted to demonstrate compliance with these requirements, and EPA
has not proposed to find that they have been met. EPA has absolutely no
authority to waive the statutory mandate for 3 percent annual
reductions. The statute does not allow EPA to use the NO_X
SIP call or 126 orders as an excuse for waiving rate-of-progress (ROP)
deadlines. The statutory ROP requirement is for emission reductions--
not ambient reductions. Emission reductions in upwind states do not
waive the statutory requirement for 3 percent annual emission
reductions within the downwind nonattainment area.

[[Page 54593]]

Response: Under no condition is EPA waiving the statutory
requirement for 3 percent annual emission reductions. For many areas,
EPA did not propose approval of the post-99 ROP demonstrations at the
same time as EPA proposed action on the area's attainment
demonstration. On July 13, 2001 (66 FR 36717), EPA published a NPR for
the State of Maryland. The NPR proposed approval of the post 1996 ROP
plans for milestone years 1999, 2002 and 2005 for the Cecil County
portion of the Philadelphia ozone nonattainment area submitted by the
State of Maryland on December 24, 1997, as revised on April 24, 1998,
August 18, 1998, December 21, 1999 and December 28, 2000. We received
no comments on that NPR. EPA has approved Maryland's Post 1996 ROP
plans for this area for all years after 1996 through the attainment
year of 2005. See 66 FR 48209, September 19, 2001.
As provided in EPA's final action on the Maryland's ROP plan (66 FR
48209), the state is relying on emission reductions achieved in its
portion of the Philadelphia area from fully promulgated Federal and
fully adopted, SIP-approved NO_X and VOC measures for meeting
the ROP requirement.

O. Specific Point Source Measures

Comment 1: We received comments in response to the December 16,
1999 NPR that asserted NO_X emission reduction estimates
claimed by Maryland are unreliable for Maryland's Phase II and Phase
III control under the OTC NO_X MOU. The comments note that in
February 1999, a Maryland Court remanded the implementation schedule in
Maryland's regulation and thus claim without definitive emission
reduction schedules from one of the largest NO_X producing
utilities in the state, the SIP reduction estimates are unreliable.
Response 1: Regarding the Phase II reductions under the OTC
NO_X MOU, Maryland has reached settlement agreements with the
pertinent utilities. The settlements indicate that the estimated
NO_X reductions projected for the years 2002 and 2005 will
not be affected. Maryland has provided copies of those agreements to
EPA. EPA fully approved the Maryland NO_X Budget Rule to
implement the Phase II controls as a SIP revision. See 65 FR 78416,
December 15, 2000. This approval includes these agreements. By the
ozone season of the year 2002, under the terms of those settlement
agreements, both utilities are required to be in compliance with the
Maryland's NO_X Budget Program under all circumstances.
Regarding the Phase III reductions, EPA disagrees with the comments
because the comments were based upon a Maryland rule has been
superceded by a SIP approved rule that applies to all years after 2003
and that contains none of the alleged defects identified in the
comments. On January 10, 2001, EPA approved Maryland's SIP to address
EPA's NO_X SIP Call rule into the Maryland SIP (66 FR 1866).
This rule requires reductions of NO_X from major stationary
sources equivalent to EPA's NO_X SIP Call regulation and
requires sources to achieve compliance with the final seasonal
NO_X allocations commencing with the 2003 ozone season. This
rule contains no provisions which allow sources to avoid compliance in
the event that the NO_X allowance market fails to materialize
or if the price of these allowances is unreasonable. EPA has determined
that this rule substantively provides for the NO_X reductions
that Maryland modeled in their local scale modeling submitted to EPA in
support of Maryland's attainment demonstration for the Philadelphia
Area.
Comment 2: We received comments asserting that on December 17,
1999, EPA granted section 126 petitions filed by four states to reduce
ozone through reductions in NO_X emissions from other states,
and that under those petitions, fifteen (15) facilities located in
Maryland will have to reduce NO_X emissions by a total of
19,466 tons by May 1, 2003. The comments express concerns about the
accountability of these reductions as compared to those assumed in the
attainment demonstration. The comments assert that EPA's decision on
the 126 petitions will clearly change state and Ozone Transport Group
implementation schedules and should be addressed by the state prior to
SIP approval.
Response 2: As noted in the December 16, 1999 proposal, Maryland's
attainment demonstration plan assumed NO_X reductions
consistent with those called for by EPA's NO_X SIP Call. In
consideration of recent court decisions on the NO_X SIP Call
described in this document and as explained in EPA's response to
comments on ``Reliance on NO_X SIP Call and Tier 2
Modeling,'' EPA believes it is appropriate to allow states to continue
to assume the reductions from the NO_X SIP Call. The fact
that EPA has granted section 126 petitions does not remove the
obligations of states subject to the NO_X SIP Call to reduce
NO_X emissions as called for in that rule. Furthermore,
implementation of either the section 126 rules (described in this
document) or the NO_X SIP Call achieves emission reductions
prior to the applicable attainment deadline, 2005. Under recent rulings
by the U.S. Court of Appeals for the District of Columbia Circuit both
the 126 rule and the NO_X SIP Call must be implemented early
in the ozone season in 2004. Therefore, EPA does not agree that there
is a need for the states to address its implementation schedule in
light of the section 126 petition action.
On August 14-15, 1997, we received petitions submitted individually
by eight Northeastern states under section 126 of the CAA. Each
petition requested us to make a finding that sources in certain
categories of stationary sources in upwind states emit or would emit
NO_X in violation of the prohibition in section
110(a)(2)(D)(i) on emissions that contribute significantly to
nonattainment, or interfere with maintenance, in the petitioning
states. On May 25, 1999, we promulgated a final rule (May 1999 Rule)
determining that portions of the petitions are approvable under the
one-hour and/or eight-hour ozone NAAQS based on their technical merit
(64 FR 28250). Based on the affirmative technical determinations for
the one-hour ozone NAAQS made in the May 1999 Rule, we promulgated a
final rule on January 18, 2000 (January 2000 Rule) making section 126
findings that a number of large electric generating units (EGUs) and
large industrial boilers and turbines named in the petitions emit in
violation of the CAA prohibition against significantly contributing to
nonattainment or maintenance problems in the petitioning states (65 FR
2674). In the January 2000 Rule, we also finalized the Federal
NO_X Budget Trading Program as the control remedy for sources
affected by the rule. This requirement replaces the default remedy in
the May 1999 Rule. The January 2000 Rule establishes Federal
NO_X emissions limits that sources must meet through a cap-
and-trade program by May 1, 2003. The January 2000 rule affects sources
located in the District of Columbia, Delaware, Maryland, North
Carolina, New Jersey, Ohio, Pennsylvania, Virginia, West Virginia, and
parts of Indiana, Kentucky, Michigan, and New York. All of the affected
sources are located in states that are subject to the NO_X
SIP Call.
On October 27, 1998 (63 FR 57356), EPA promulgated the ``Finding of
Significant Contribution and Rulemaking for Certain s in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone,'' commonly referred to as the NO_X SIP
Call. On March 3, 2000, the D.C. Circuit issued its decision on the
NO_X SIP Call

[[Page 54594]]

regarding the one-hour ozone NAAQS ruling in favor of EPA on all the
major issues. Michigan v. EPA, supra. On June 22, 2000, the Court
ordered that we allow the states and the District of Columbia 128 days
from June 22, 2000 to submit their SIPs. Accordingly, 19 states and the
District of Columbia were required to submit SIPs in response to the
NO_X SIP Call by October 30, 2000.\11\ On August 30, 2000,
the D.C. Circuit ordered that the June 22, 2000 Order be amended to
extend the deadline for implementation of the NO_X SIP Call
from May 1, 2003 to May 31, 2004. In a separate rulemaking, we are
addressing the Court's remand of the definition of electricity
generating units, the control level for large stationary internal
combustion engines and the SIP submittal and compliance dates for these
actions, which affect less than 10 percent of the total emission
reductions called for by the NO_X SIP Call.
---------------------------------------------------------------------------

\11\ October 30, 2000 is the first business day following the
expiration of the 128-day period.
---------------------------------------------------------------------------

Furthermore, as noted above in response to the previous comment in
this document, Maryland has a state regulation in place to implement
the SIP Call requirements. This state rule is in the approved Maryland
SIP and requires compliance commencing May 1, 2003.
Comment 3: We received comments in response to the December 16,
1999 NPR asserting that the NO_X Phase II/III emissions
reduction estimates asserted by the Maryland Department of the
Environment are unreliable because the NO_X trading rule may
not work. The comments raise the following concerns: If a
NO_X allowance market ``fails to materialize'' or if the
price of these allowances is ``unreasonable'' the ``safe harbor
provision'' will allow a utility to avoid purchasing credits. Without
definitive emission reduction schedules from one of the largest
NO_X producing utilities in the state, the SIP reduction
estimates are unreliable, at best, and misleadingly optimistic at
worst. There is no guarantee that the OTC NO_X Budget Program
will function and achieve its emissions target. The price of allowances
may be prohibitively high allowing Maryland sources to avoid purchasing
credits.
Response 3: EPA disagrees with the comments and maintains that cap-
and-trade programs are an effective remedy for achieving emissions
reductions in a cost-effective manner. Under cap-and-trade programs,
total emissions are limited at the regional level. Sources are then
given individual emissions limits expressed in the form of allowances,
i.e., tradable permits equal to one ton of NO_X. A source has
the option of reducing its emissions to or beyond its initial allowance
level or of reducing to less than its initial allocation level and
purchasing allowances from another source. Regardless of the compliance
strategy a source employs, the environmental integrity of the program
and of the emissions reductions remain intact because the total number
of allowances remains capped. Every allowance available on the
allowance market represents a ton of NO_X another plant did
not emit.
The Acid Rain Program is a similar cap-and-trade program which has
been in effect since 1995. Each year since 1995, emissions have been
reduced beyond the required level and sources have achieved 100 percent
compliance. The experience of the Acid Rain Program has been that the
larger, higher emitting units reduced the most because they had the
most cost-effective reductions to make.
Regarding comments that the OTC NO_X Budget Program will
fail to function and achieve its emissions target, EPA disagrees for
the following reasons: In 1999, the initial year of the Phase II, the
OTC NO_X Budget Program was a success. According to EPA's OTC
NO_X compliance report, 99 percent of the sources achieved
full compliance. Furthermore, sources in the OTC over controlled during
the 1999 ozone season, reducing their emissions 20 percent beyond the
required control level. These allowances may be traded on the
allowances market in future years and used for compliance.
Moreover, a viable NO_X allowances market was created;
during the 15 months between the onset of allowance trading and 1999
reconciliation (December 30, 1999), 138,790 allowances were
transferred. Of these transactions, EPA estimated that nearly 40
percent of them (53,563) were transferred between non-affiliated
parties. Over 28 percent of the allowances traded were future year
allowances (2000-2002 vintage years) not available for compliance in
1999; another indication that the NO_X allowance market is
strong.
EPA notes that the concerns about the price of allowances did not
materialize. During the first year of the OTC NO_X Budget
Program, there was significant price volatility. Before the start of
the program allowance prices generally fluctuated between $1500 and
$3000 and peaked at $7500/ton in February, 1999. However, once it
became apparent that there would be more than enough allowances
available for compliance in 1999, allowance prices dropped steadily.
Since October 1999, the prices have been more or less steady at $600-
$800 a ton. As the second control period begins, there is no indication
that either allowance prices or price volatility are on the rise again.

P. Specific Area and Mobile Source Measures

Comment 1: We received comments asserting that Maryland appears to
have relied upon an EPA memorandum dated November 28, 1994 when
calculating emission reduction credits for control measures for nonroad
small gasoline engines (NSGE). The comments state that because the NSGE
Phase II rules were not published until 1998, the accuracy of the
emissions reductions anticipated in the 1994 guidance is questionable
and that the memorandum upon which MDE appears to have relied suggests
that states include a safety margin in their emission reduction
estimates for NSGE. The comments conclude that there is no evidence in
the SIP that MDE incorporated a safety margin into the reductions.
Response 1: The State of Maryland acted consistent with guidance
provided by EPA. However, in a December 28, 2000 revision, Maryland
updated its attainment demonstration and ROP plans to include the
benefits expected to accrue from the final Federal rules and thus is no
longer relying on the guidance cited by the comments when determining
the benefits for the Federal NSGE rule. (The cited guidance does
provide guidance based upon final rules for one category of nonroad
sources.)
Comment 2: We received comments asserting that Maryland needs to
produce up-to-date emissions reduction calculations for surface
cleaning/degreasing and automobile refinishing. The comments claim that
the MDE asserts that new state rules for these source categories will
result in 70 percent and 45 percent reductions in VOC from degreasing
and automobile refinishing products, respectively, and that these
claims are not supported with reliable data and it is impossible for
the public to evaluate the reliability of these predictions.
Response 2: The Maryland degreasing regulation went beyond the
draft-CTG requirements (which are estimated to be around 60 percent
reduction) and so should generate deeper reductions when compared to
reductions anticipated from the CTG. EPA estimates the efficiency of
the automobile refinishing national rule to be around 36 percent in
areas which did not previously have a rule. Maryland's autobody
reductions are based upon a state rule which has state limits and
additional requirements such as application equipment requirements
discussed in a previous

[[Page 54595]]

response to a previous comment in Section II.K.

Q. Measures for the One-Hour NAAQS and for Progress Requirements Toward
the Eight-Hour NAAQS

Comment: One commenter notes that EPA has been working toward
promulgation of a revised eight-hour ozone National Ambient Air Quality
Standard (NAAQS) because the Administrator deemed attaining the one-
hour ozone NAAQS is not adequate to protect public health. Therefore,
EPA must ensure that measures be implemented now that will be
sufficient to meet the one-hour standard and that make as much progress
toward implementing the eight-hour ozone standard as the requirements
of the CAA and implementing regulations allow.
Response: The one-hour standard remains in effect for all of these
areas and the SIPs that have been submitted are for the purpose of
achieving that NAAQS. Congress has provided the States with the
authority to choose the measures necessary to attain the NAAQS and EPA
cannot second guess the states' choice if EPA determines that the SIP
meets the requirements of the CAA. EPA believes that the SIPs for the
severe areas meet the requirements for attainment demonstrations for
the one-hour standard and thus, could not disapprove them even if EPA
believed other control requirements might be more effective for
attaining the eight-hour standard. However, EPA generally believes that
emission controls implemented to attain the one-hour ozone standard
will be beneficial towards attainment of the eight-hour ozone standard
as well. This is particularly true regarding the implementation of
NO_X emission controls resulting from EPA's NO_X
SIP Call.
Finally, EPA notes that although the eight-hour ozone standard has
been adopted by EPA, implementation of this standard has been delayed
while certain aspects of the standard remain before the United States
Circuit Court of Appeals. The states and EPA have yet to define the
eight-hour ozone nonattainment areas and EPA has yet to issue guidance
and requirements for the implementation of the eight-hour ozone
standard.

III. Final Action

A. Attainment Demonstration

EPA is fully approving Maryland's attainment demonstration SIP
revisions for the Philadelphia area, namely Cecil County, which was
submitted on April 29, 1998, and revised on August 18, 1998, December
21, 1999, December 28, 2000, and August 31, 2001 including its analysis
and determination of RACM.

B. Commitments

EPA is approving the enforceable commitments made to the Maryland's
attainment plan for the Philadelphia severe ozone nonattainment area,
which were submitted on December 28, 2000. The enforceable commitments
are to:
(1) Submit measures by October 31, 2001 for additional emission
reductions as required in the attainment demonstration test, and to
revise the SIP and motor vehicle emissions budgets by October 31, 2001
if the additional measures affect the motor vehicle emissions
inventory,
(2) Revise the SIP and motor vehicle emission budgets using MOBILE6
within one year after it is issued, and
(3) Perform a mid-course review by December 31, 2003.

C. Mobile Budgets of the Attainment Plan for the Philadelphia Area

EPA is approving the following mobile budgets of the Maryland's
attainment plan for the Philadelphia area:

Transportation Conformity Budgets for the Maryland Portion of the Philadelphia Area
----------------------------------------------------------------------------------------------------------------
Control Strategy SIP Year VOC (TPD) NO_X (TPD) Date of adequacy determination
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.............. 2005 2.6 5.6 April 27, 2001 (See 66 FR
18928, published on April 12,
2001).
----------------------------------------------------------------------------------------------------------------

We are only approving the attainment demonstration and its current
budgets because Maryland has provided an enforceable commitment to
revise the budgets using the MOBILE6 model within one year of EPA's
release of that model. Therefore, we are limiting the duration of our
approval of the current budgets only until such time as the revised
budgets are found adequate. Those revised budgets will be more
appropriate than the budgets we are approving for conformity purposes
for the time being.
Similarly, EPA is only approving the 2005 attainment demonstration
and its currents budgets because Maryland has provided an enforceable
commitment to submit new budgets as a revision to the attainment SIP
consistent with any new measures submitted to fill any shortfall, if
the new additional control measures affect on-road motor vehicle
emissions. Therefore, EPA is limiting the duration of its approval of
the current budgets only until such time as any such revised budgets
are found adequate. Those revised budgets will be more appropriate than
the budgets EPA is approving for conformity purposes for the time
being.

IV. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning regulations That significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the

[[Page 54596]]

distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely approves a state rule implementing a
Federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant. In reviewing SIP submissions, EPA's role is to approve
state choices, provided that they meet the criteria of the Clean Air
Act. In this context, in the absence of a prior existing requirement
for the states to use voluntary consensus standards (VCS), EPA has no
authority to disapprove a SIP submission for failure to use VCS. It
would thus be inconsistent with applicable law for EPA, when it reviews
a SIP submission, to use VCS in place of a SIP submission that
otherwise satisfies the provisions of the Clean Air Act. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 28, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action to approve the ozone attainment
demonstration SIP revision for the Philadelphia-Wilmington-Trenton area
submitted by Maryland may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.

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

Dated: October 15, 2001.
James W. Newsom,
Regional Administrator, Region III.

CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart V--Maryland

2. Section 52.1076 is amended by revising the section heading and
by adding paragraphs (h) and (i) to read as follows:

Sec. 52.1076 Control strategy plans for attainment and rate-of-
progress: ozone.

* * * * *
(h) EPA approves the attainment demonstration for the Philadelphia
area submitted as a revision to the State Implementation Plan by the
Maryland Department of the Environment on April 29, 1998, August 18,
1998, December 21, 1999, December 28, 2000, and August 31, 2001
including its RACM analysis and determination. EPA is also approving
the revised enforceable commitments made to the attainment plan for the
Baltimore severe ozone nonattainment area which were submitted on
December 28, 2000. The enforceable commitments are to submit measures
by October 31, 2001 for additional emission reductions as required in
the attainment demonstration test, and to revise the SIP and motor
vehicle emissions budgets by October 31, 2001 if the additional
measures affect the motor vehicle emissions inventory; to revise the
SIP and motor vehicle emission budgets using MOBILE6 within one year
after it is issued; and to perform a mid-course review by December 31,
2003.
(i) EPA approves the following mobile budgets of Maryland's
attainment plan for the Philadelphia area:

Transportation Conformity Budgets for the Maryland Portion of the Philadelphia Area
----------------------------------------------------------------------------------------------------------------
Control Strategy SIP Year VOC (TPD) NO_X (TPD) Date of Adequacy Determination
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.............. 2005 2.6 5.6 April 27, 2001 (See 66 FR
18928, published on April 12,
2001).
----------------------------------------------------------------------------------------------------------------

(1) We are only approving the attainment demonstration and its
current budgets because Maryland has provided an enforceable commitment
to revise the budgets using the MOBILE6 model within one year of EPA's
release of that model. Therefore, we are limiting the duration of our
approval of the current budgets only until such time as the revised
budgets are found adequate. Those revised budgets will be more
appropriate than the budgets we are approving for conformity purposes
for the time being.
(2) Similarly, EPA is only approving the 2005 attainment
demonstration and its currents budgets because Maryland has provided an
enforceable commitment to submit new budgets as a revision to the
attainment SIP consistent with any new measures submitted to fill any
shortfall, if the new additional control measures affect on-road motor
vehicle emissions. Therefore, EPA is limiting the duration of its
approval of the current budgets only until such time as any such
revised budgets are found adequate. Those revised budgets will be more
appropriate than the budgets EPA is approving for conformity purposes
for the time being.

[FR Doc. 01-26680 Filed 10-26-01; 8:45 am]
BILLING CODE 6560-50-P

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