[Federal Register Volume 67, Number 219 (Wednesday, November 13, 2002)]
[Proposed Rules]
[Pages 68805-68814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28845]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[DC039-2028; MD073-3091; VA090-5060; FRL-7407-6]
Designation of Areas for Air Quality Purposes; District of
Columbia, Maryland, Virginia; Metropolitan Washington, DC Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA proposes to issue a finding that the Metropolitan
Washington, DC serious ozone nonattainment area (hereinafter referred
to as the Washington area) has failed to attain the one-hour ozone
National Ambient Air Quality Standard (NAAQS) by November 15, 1999, the
date set forth in the Clean Air Act (CAA or Act) for serious
nonattainment areas. If EPA takes final action to issue this proposed
finding of nonattainment, the area would be reclassified as a severe
ozone nonattainment area. EPA is proposing to set the dates by which
the District of Columbia, the State of Maryland and the Commonwealth of
Virginia each must submit revisions to its State Implementation Plan
(SIP) that adopt the severe area requirements. Finally, EPA is
proposing to adjust the dates by which the area must achieve a nine (9)
percent reduction in ozone precursor emissions to meet the 2002 rate-
of-progress requirement and adjust contingency measure requirements as
this relates to the 2002 rate-of-progress requirement.
DATES: Written comments must be received on or before December 13,
2002.
ADDRESSES: Written comments may be mailed to Walter K. Wilkie, Deputy
Branch Chief, Air Quality Planning and Information Services Branch,
Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania 19103. 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.
FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or
by e-mail at [email protected]. Please note that while
questions may be posed via telephone and e-mail, formal comments must
be submitted in writing, as indicated in the ADDRESSES section of this
document.
SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in
this document refers to EPA.
Table of Contents
I. What Action Are We Proposing?
II. What Are the National Ambient Air Quality Standards?
III. What Is the NAAQS for Ozone?
IV. What Is the Washington Ozone Nonattainment Area?
V. Why Is the Washington Area Currently Classified as a Serious
Nonattainment Area?
VI. Why Are We Proposing to Reclassify the Washington Area?
A. What Are the Clean Air Act Requirements for Attainment
Findings?
B. What Is the Applicable Ozone Season Air Quality Data for the
Washington Area?
VII. Why Did EPA Defer Making a Finding of Nonattainment Regarding
the Washington Area's Attainment Status Beyond the Time Frame
Prescribed by the CAA?
VIII. Has Air Quality Improved in the Washington Area in Recent
Years?
IX. What Actions Has the District, Maryland and Virginia Taken to
Improve Air Quality in the Washington Area?
X. If We Finalize Our Proposed Rulemaking Reclassifying the
Washington Area, What Would Be the Area's New Classification?
XI. What Progress Has the Washington, DC Area Made Towards Planning
to Attain the Ozone NAAQS by 2005?
XII. What Would a Reclassification Mean for the Washington Area?
XIII. What Are the Transportation Conformity Implications of
Reclassification?
XIV. How Does the Recent Release of MOBILE6 Interact With
Reclassification?
A. What Is the Relationship Between MOBILE6 and the Attainment
Year Motor Vehicle Emissions Budgets
B. What Is the Relationship Between MOBILE6 and the Post-1999
Rate-of-Progress Requirement
XV. If the Washington Area Is Reclassified to Severe, What Would its
New Schedule be?
A. What Would the Attainment Date be?
B. When Are the Required SIP Revisions Due?
C. What Will Be the Rate-of-Progress and Contingency Measure
Schedules?
XVI. What Is the Impact of Reclassification on Title V Operating
Permit Programs?
XVII. What Are the Relevant Policy and Guidance Documents?
XVIII. Administrative Requirements
I. What Action Are We Proposing?
We are proposing to find that the Washington area has failed to
attain the one-hour ozone NAAQS by the November 15, 1999, attainment
deadline prescribed under the CAA for serious ozone nonattainment
areas. EPA's authority to make this finding is discussed under section
181(b)(2) of the CAA. Section 181(b)(2) explains the process for
determining whether an area has attained the one-hour ozone standard
and reclassification of the area if necessary. If we issue a final
finding of failure to attain, the Washington area will be reclassified
by operation of law from serious nonattainment to severe nonattainment.
II. What Are the National Ambient Air Quality Standards?
Since the CAA's inception in 1970, EPA has set NAAQS for six common
pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate
matter, and sulfur dioxide. For most of
[[Page 68806]]
these common air pollutants, there are two types of pollution limits
referred to as the primary and secondary standards.\1\ The primary
standard is based on health effects; the secondary standard is based on
environmental effects such as damage to property, plants, and
visibility. The CAA requires these standards to be set at levels that
protect public health and welfare with an adequate margin of safety.
These standards present state and local governments with the air
quality levels they must meet to achieve clean air. Also, these
standards allow the American people to assess whether the air quality
in their communities is healthful.
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\1\ EPA has established only a primary standard for carbon
monoxide.
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III. What Is the NAAQS for Ozone?
The NAAQS for ozone is currently expressed in two forms which are
referred to as the one-hour and eight-hour standards. Table 1
summarizes the ozone standards.
Table 1.--Summary of Ozone Standards
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Value (parts
Standard and type per million) Method of compliance
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1-hour--Primary and secondary.. 0.12 Must not be exceeded,
on average, more than
one day per year over
any 3-year period.
8-hour--Primary and secondary.. 0.08 The 3-year average of
the annual fourth-
highest maxima 8-hour
average ozone
concentrations
measured at each
monitor within an
area.
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The 1-hour ozone standard of 0.12 parts per million (ppm) has
existed since 1979. On July 18, 1997, EPA adopted the 8-hour ozone
standard, which was intended to replace the one-hour standard in areas
that were attaining the one-hour standard, (62 FR 38856).\2\ The one-
hour ozone standard continues to apply to all areas, notwithstanding
promulgation of the 8-hour standard (40 CFR 50.9(b)). Both standards
are codified at 40 CFR part 50. This document addresses the
classification of the Washington area relative to only the one-hour
ozone standard.
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\2\ EPA revoked the one-hour standard in areas that were
attaining the standard on June 5, 1998 (63 FR 31051). However, on
May 14, 1999, the U.S. Court of Appeals for the District of Columbia
Circuit ruled that the 8-hour ozone standard could not be enforced
by EPA. Although the Court of Appeals determined that the 8-hour
standard could not be enforced, it did not vacate the standard.
hence, the 8-hour standard remained in effect. While appealing this
decision to the United States Supreme Court, EPA reinstated the one-
hour standard in areas where it had been revoked. (See 65 FR 45181,
dated July 20, 2000). On February 27, 2001, the Supreme Court upheld
the 8-hour standard and instructed EPA to develop an implementation
plan for the 8-hour standard that is consistent with the Supreme
Court's opinion. Whitman v. American Trucking Assoc. Inc., 531 U.S.
457 (2001).
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IV. What Is the Washington Ozone Nonattainment Area?
The Washington area consists of the District of Columbia (the
District), a Northern Virginia portion (Arlington, Fairfax, Loudoun,
Prince William and Stafford Counties and the cities of Alexandria,
Falls Church, Fairfax, Manassas, and Manassas Park), and Calvert,
Charles, Frederick, Montgomery, and Prince George's Counties in
Maryland.
V. Why Is the Washington Area Currently Classified as a Serious
Nonattainment Area?
Under section 107(d)(1)(C) of the CAA, each ozone area designated
nonattainment for the one-hour standard prior to enactment of the 1990
CAA amendments, such as the Washington area, was designated
nonattainment by operation of law upon enactment of the amendments.
Under section 181(a) of the Act, each ozone area designated
nonattainment under section 107(d) was also classified by operation of
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or
``extreme,'' depending on the severity of the area's air quality
problem. The design value for an area, which characterizes the severity
of the air quality problem, is represented by the highest design value
at any individual ozone monitoring site (i.e., the highest of the
fourth highest one-hour daily maximum monitored ozone levels in a given
three-year period with complete monitoring data). Table 2 provides the
design value ranges for each nonattainment classification. Ozone
nonattainment areas with design values between 0.160 and 0.180 ppm,
such as the Washington area (which had a design value of 0.165 ppm in
1989), were classified as serious. These nonattainment designations and
classifications were codified in 40 CFR part 81 (see 56 FR 56694,
November 6, 1991).
Table 2.--Ozone Nonattainment Classifications
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Area classification Design value (ppm) Attainment date
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Marginal................................. 0.121 up to 0.138........... November 15, 1993.
Moderate................................. 0.138 up to 0.160........... November 15, 1996.
Serious.................................. 0.160 up to 0.180........... November 15, 1999.
Severe................................... 0.180 up to 0.280........... November 15, 2005.
Extreme.................................. 0.280 and above............. November 15, 2010.
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In addition, states containing areas that were classified as
serious nonattainment were required to submit SIP revisions to provide
for certain controls, to show progress toward attainment, and to
provide for attainment as expeditiously as practicable, but not later
than November 15, 1999. Serious area SIP requirements are found
primarily in section 182(c) of the CAA.
VI. Why Are We Proposing To Reclassify the Washington Area?
A. What Are the Clean Air Act Requirements for Attainment Findings?
Regarding reclassification for failure to attain, section
181(b)(2)(A) of the Act
[[Page 68807]]
provides that: Within six months following the applicable attainment
date (including any extension thereof) for an ozone nonattainment area,
the Administrator shall determine, based on the area's design value (as
of the attainment date) whether the area attained the standard by that
date. Except for any Severe or Extreme area, any area that the
Administrator finds have not attained the standard by that date shall
be reclassified by operation of law in accordance with table 1 of
subsection (a) to the higher of--
(i) The next higher classification for the area, or
(ii) The classification applicable to the area's design value as
determined at the time of the notice required under subparagraph (B).
No area shall be reclassified as Extreme under clause (ii).
Furthermore, section 181(b)(2)(B) of the Act provides that:
The Administrator shall publish a notice in the Federal Register
no later than six months following the attainment date, identifying
each area that the Administrator has determined under subparagraph
(A) as having failed to attain and identifying the reclassification,
if any, described under subparagraph (A).
Therefore, under CAA section 181(b)(2)(A), we must determine within six
months of the applicable attainment date whether an ozone nonattainment
area has attained the 1-hour ozone standard. If we find that a serious
area has not attained the standard and does not qualify for an
extension, it is reclassified by operation of law to severe.\3\ CAA
section 181(b)(2)(A) requires us to base our determination of
attainment or finding of failure to attain on the area's design value
as of its applicable attainment date, which for the Washington
nonattainment area is November 15, 1999.
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\3\ If an area does not have the clean data necessary to show
attainment of the 1-hour standard but does have clean air in the
year immediately preceding the attainment date and the states
comprising the area have fully implemented its applicable SIP, the
States may apply to us, under CAA section 181(a)(5), for a one-year
extension of the attainment date. We do not discuss this provision
further in this proposal because the Washington area did not have
the requisite clean air data.
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The 1-hour ozone NAAQS is 0.12 ppm not to be exceeded on average
more than one day per year over any three year period. 40 CFR 50.9 and
Appendix H. Under our policies, we determine if an area has attained
the one-hour standard by calculating, at each monitor, the average
number of days over the standard per year during the preceding three
year period.\4\ See 40 CFR part 50, Appendix H.
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\4\ See generally 57 FR 13506, April 16, 1992, and Memorandum
from D. Kent Berry, Acting Director, Air Quality Management
Division, EPA, to Regional Air Office Directors; ``Procedures for
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment
Areas,'' dated February 3, 1994. While explicitly applicable only to
marginal areas, the general procedures for evaluating attainment in
this memorandum apply regardless of the initial classification of an
area because all findings of attainment are made pursuant to the
same Clean Air Act requirements in section 181(b)(2).
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If an area has at least one monitor recording four or more
exceedances during a 3-year period, then the average number of
exceedance days per year exceeds one, and the area has not attained the
standard.
Conversely, if an area has all monitors with an average number of
exceedance days per year less than or equal to one, only then has the
area attained the standard.
For this proposal, we have based our determination of whether the
Washington nonattainment area attained the 1-hour ozone standard by
November 15, 1999, on both the area's design value and the average
number of exceedance days per year during the 1997 to 1999 period.
The effect of a reclassification to severe on the Washington
nonattainment area is to set a new attainment deadline for the area of
November 15, 2005, and to require the State to submit a SIP revision
that meets the CAA's requirements for severe ozone nonattainment areas.
See CAA sections 181(a) and 182(i). Under section 182(i), we may set
the submittal deadlines for these new planning requirements.
B. What Is the Applicable Ozone Season Air Quality Data for the
Washington Area?
Table 3 lists the average number of days when ambient ozone
concentrations exceeded the one-hour ozone standard at each monitoring
site in the Washington area for the period 1997-1999. The ozone design
value for each monitor is also listed for the same period. A complete
listing of the ozone exceedances for each monitoring site, as well as
EPA's calculations of the design values, can be found in the docket
file for this action. The data in Table 3 show that, for 1997-1999,
many monitoring sites in the Washington area averaged more than one
exceedance day per year. Therefore, pursuant to section 181(b)(2)(B) of
the CAA, we propose to find that the Washington area did not attain the
one-hour standard by the November 15, 1999, deadline.
Table 3.--Air Quality Data for the Washington Area (1997-1999)
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Average number
Number of Number of of expected Site design
Site Monitor ID days over expected days exceedances value (ppm)
standard over standard (Note 1)
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Tacoma School, Washington, DC... 110010025-1 1 1.0 0.3 0.117
River Terrace, Washington, DC... 110010041-1 3 3.0 1.0 0.120
McMillan Reservoir, Washington, 110010043-1 4 4.0 1.3 0.128
DC.............................
Calvert Co, MD.................. 240090010-1 0 0.0 0.0 0.115
Southern Maryland, Charles Co, 240170010-1 4 4.1 1.4 0.125
MD.............................
Frederick Co, MD (Note b)....... 240210037-1 2 3.0 1.5 0.114
Rockville, Montgomery Co, MD.... 240313001-1 2 2.0 0.7 0.118
Greenbelt, Prince Georges Co, MD 240330002-1 12 12.7 4.2 0.132
(Note c).......................
Suitland-Silver Hill, Prince 240338001-1 6 6.2 2.1 0.126
Georges Co, MD.................
Arlington Co, VA................ 510130020-1 4 4.3 1.4 0.126
Chantilly, Fairfax Co, VA....... 510590005-1 2 2.1 0.7 0.118
Mount Vernon, Fairfax Co, VA.... 510590018-1 3 3.2 1.1 0.124
Franconia, Fairfax Co, VA (Note 510590030-1 1 1.0 0.5 0.118
b).............................
Seven Corners, Fairfax Co, VA... 510591004-1 3 3.0 1.0 0.124
McLean, Fairfax Co, VA.......... 510595001-1 1 1.0 0.3 0.114
Ashburn, Loudoun Co, VA (Note b) 511071005-1 0 0.0 0.0 0.116
Long Park, Prince William Co, VA 511530009-1 1 1.2 0.4 0.115
[[Page 68808]]
Widewater, Stafford Co, VA...... 511790001-1 3 3.0 1.0 0.124
Alexandria City, VA............. 515100009-1 2 2.1 0.7 0.123
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a. A violation occurs when the number of expected exceedances is greater than 3.1 over a 3-year (rolling) period
(or a 3-year (rolling) average greater than 1.04). The statistical term ``expected exceedances'' is an
arithmetic average explained at 40 CFR part 50, Appendix H.
b. New monitoring site with only two years (1998 and 1999) of data for the 1997 to 1999 period.
c. Monitor represents the 1997-1999 design value for the Washington area.
Raw data source: U.S. EPA Aerometric Information Retrieval System (AIRS) database.
Several monitors recorded more than two or more exceedances in
1999. These included the McMillan Reservoir monitor in the District,
the Southern Maryland, and Greenbelt monitors in Maryland and the
Arlington County monitor in Virginia.
VII. Why Did EPA Defer Making a Finding of Nonattainment Regarding the
Washington Area's Attainment Status Beyond the Time Frame Prescribed by
the CAA?
For some time, EPA has recognized that pollutant transport can
impair an area's ability to meet air quality standards by the date
prescribed in the Act. In March 1995 a collaborative, Federal-state
process to assess the ozone transport problem began. Through a two-year
effort known as the Ozone Transport Assessment Group (OTAG), EPA worked
in partnership with the 37 easternmost states and the District of
Columbia, industry representatives, academia, and environmental groups
to develop recommended strategies to address transport of ozone and
ozone-forming pollutants across state boundaries.
On November 7, 1997, EPA acted on OTAG's recommendations and issued
a proposal (the proposed oxides of nitrogen (NOX) SIP call,
62 FR 60318) requiring 22 states and the District of Columbia to submit
state plans addressing the regional transport of ozone. These SIP
revisions will decrease the transport of ozone across state boundaries
in the eastern half of the United States by reducing emissions of
NOX (a precursor to ozone formation). EPA took final action
on the NOX SIP call on October 27, 1998 (63 FR 57356). EPA
expects the final NOX SIP call will assist many areas in
attaining the 1-hour ozone standard.
On July 16, 1998, in consideration of these factors and the
realization that many areas were unable to meet the CAA-mandated
attainment dates due to transport, EPA's then Acting Assistant
Administrator, Richard Wilson, EPA issued an attainment date extension
policy.\5\ Under this policy, the attainment date for an area may be
extended provided that the following criteria are met: (1) The area is
identified as a downwind area affected by transport from either an
upwind area in the same state with a later attainment date, or an
upwind area in another state that significantly contributes to downwind
nonattainment (by ``affected by transport,'' EPA means an area whose
air quality is affected by transport from an upwind area to a degree
that affects the area's ability to attain); (2) an approvable
attainment demonstration is submitted along with any necessary, adopted
local measures and with an attainment date that shows that the area
will attain the 1-hour standard no later than the date that the
reductions are expected from upwind areas under the final
NOX SIP call and/or the statutory attainment date for upwind
nonattainment areas, i.e., assuming the boundary conditions reflect
those upwind reductions; (3) the area has adopted all applicable local
measures required under the area's current classification and any
additional measures necessary to demonstrate attainment, assuming the
reductions occur as required in the upwind areas; and (4) the area
provides it will implement all adopted measures as expeditiously as
practicable but no later than the date by which the upwind reductions
needed for attainment will be achieved (64 FR 14441, March 25, 1999).
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\5\ Memorandum, ``Extension of Attainment Dates for Downwind
Transport Areas,'' issued July 16, 1998.
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EPA contemplated that when it acted to approve such an area's
attainment demonstration and attainment date extension, it would, as
necessary, extend that area's attainment date to a date appropriate for
that area in light of the schedule for achieving the necessary upwind
reductions. As a result, the area would no longer be subject to
reclassification or ``bump-up'' for failure to attain by its original
attainment date under section 181(b)(2).
The State of Maryland, the Commonwealth of Virginia and the
District of Columbia each submitted a request for such an extension of
the attainment date for the Washington nonattainment area. In a January
3, 2001 (66 FR 586), final rule, EPA approved these requests along with
attainment demonstration SIP revisions. The Sierra Club and its local
chapters filed a petition for review in the United States Courts of
Appeals for the appropriate circuits.\6\ The petitions were
consolidated in the United States Courts of Appeals for the District of
Columbia Circuit.
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\6\ The District of Columbia lies within the jurisdiction of the
District of Columbia Circuit and Maryland and Virginia lie within
the Fourth Circuit.
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On July 2, 2002, the United States Courts of Appeals for the
District of Columbia Circuit (the Court) issued its ruling that vacated
our January 3, 2001, final rule. With respect to the attainment date
extension, the Court found that the plain language of Clean Air Act
``sets a deadline without an exception for setbacks owing to ozone
transport.'' The Court said that the EPA was without authority to
extend the Washington, DC area's attainment deadline unless it also
ordered the area to be reclassified as a ``severe'' area.
Because we can no longer grant the Washington area an attainment
date extension using the July 16, 1998, policy, we must determine
whether the Washington area will be reclassified by operation of law to
severe if we issue a final action finding that the area failed to
attain.
VIII. Has Air Quality Improved in the Washington Area in Recent Years?
The air quality in the Washington area has improved significantly
since the area was designated nonattainment following enactment of the
1990 CAA amendments, when the area's (1987-1989) ozone design value was
0.165
[[Page 68809]]
ppm. The most recent (i.e., 1999-2001) area-wide ozone data shows a
continuing downward trend in the numbers of violations and ozone design
values. The area now has only three monitors violating the standard,
and of these, the maximum number of violations is 2.0 at the Greenbelt
monitor in Maryland. The current design value is 0.130 ppm. The 1987-
1989, 1997-1999 and 1999-2001 data are summarized in Table 4.
Table 4--Air Quality Data Summary for 1987 to 1989, 1997 to 1999 and 1999 to 2001
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1987 to 1989 1997 to 1999 Average
---------------------------------------------------- number of
expected
Site Monitor ID Average number Average number 1999 to 2001 exceedances
of expected Design of expected Design ------------
exceedances value exceedances value Design
value
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West End, Washington, DC (Note a)...................... 110010017-1 1.8 0.120 N.D. N.D. N.D. N.D.
Tacoma School, Washington, DC.......................... 110010025-1 5.0 0.165 0.3 0.117 1.0 0.117
River Terrace, Washington, DC.......................... 110010041-1 N.D. N.D. 1.0 0.120 0.3 0.120
McMillan Reservoir, Washington, DC..................... 110010043-1 N.D. N.D. 1.3 0.128 1.6 0.125
Calvert Co, MD......................................... 240090010-1 N.D. N.D. 0.0 0.115 0.0 0.112
Southern Maryland, Charles Co, MD...................... 240170010-1 5.0 0.145 1.4 0.125 0.7 0.121
Frederick Co, MD (Note b).............................. 240210037-1 N.D. N.D. 1.5 0.114 0.4 0.114
Rockville, Montgomery Co, MD........................... 240313001-1 5.3 0.140 0.7 0.118 0.3 0.113
Greenbelt, Prince Georges Co, MD....................... 240330002-1 6.8 0.157 4.2 0.132 2.1 0.130
Suitland-Silver Hill, Prince Georges Co, MD............ 240338001-1 7.6 0.163 2.1 0.126 1.4 0.126
Arlington Co, VA....................................... 510130020-1 5.4 0.145 1.4 0.126 0.7 0.122
Chantilly, Fairfax Co, VA (Note c)..................... 510590005-1 N.D. N.D. 0.7 0.118 0.0 0.113
Mount Vernon, Fairfax Co, VA........................... 510590018-1 8.1 0.162 1.1 0.124 0.8 0.121
Franconia, Fairfax Co, VA (Note b)..................... 510590030-1 N.D. N.D. 0.5 0.118 0.3 0.117
Seven Corners, Fairfax Co, VA (Note d)................. 510591004-1 8.0 0.155 1.0 0.124 0.5 0.111
McLean, Fairfax Co, VA................................. 510595001-1 7.1 0.144 0.3 0.114 0.7 0.115
Ashburn, Loudoun Co, VA (Note b)....................... 511071005-1 N.D. N.D. 0.0 0.116 0.0 0.106
Long Park, Prince William Co, VA (Note c).............. 511530009-1 N.D. N.D. 0.4 0.115 0.0 0.108
Widewater, Stafford Co, VA (Note c).................... 511790001-1 N.D. N.D. 1.0 0.124 0.3 0.106
Alexandria City, VA.................................... 515100009-1 1.7 0.130 0.7 0.123 0.3 0.117
Fairfax City, VA (Note a).............................. 516000005-1 6.1 0.146 N.D. N.D. N.D. N.D.
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Notes:
N.D. denotes no data.
a. Discontinued Monitoring site.
b. New Monitoring site with only two years (1998 and 1999) of data for the 1997 to 1999 period and three years of data for 1999 to 2001.
c. New Monitoring Site with three years of data for 1997 to 1999 and all later periods.
d. Also known as the ``Lewinsville'' site.
IX. What Actions Has the District, Maryland and Virginia Taken To
Improve Air Quality in the Washington Area?
EPA has approved, and the District, Maryland and Virginia have
implemented, VOC emission reductions as part of the State's 15 Percent
Rate-of-Progress Plan, and VOC and NOX emission reductions
as part of the Post-1996 Rate-of-Progress Plan. The area has already
opted into the Federal reformulated gasoline program. For an extensive
summary of these plans and the measures currently in place or scheduled
for future implementation refer to the preambles of our December 16,
1999 (64 FR at 70471-70474), and January 3, 2001 (66 FR at 589-590),
Federal Register publications. In addition, since the January 3, 2001,
final rule, the District and Virginia have adopted rules to implement
the NOX SIP call with implementation in 2003 and 2004,
respectively. Virginia submitted its rule on June 25, 2002.\7\ See 67
FR 48032, July 23, 2002. We approved the District's rule on November 1,
2001, (66 FR 55099).
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\7\ This June 25, 2002, submittal was to set statewide
requirements on electric generating utilities. Virginia has already
adopted two SIP revisions that effectively impose a 0.15 pounds of
NOX per million BTU heat input on emissions units at two
electric generating facilities in the Washington area. On December
14, 2000 (65 FR 78100), EPA approved these two SIP revisions.
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X. If We Finalize Our Proposed Rulemaking Reclassifying the Washington
Area, What Would Be the Area's New Classification?
As stated previously, section 181(b)(2)(A) of the Act requires
that, when an area is reclassified for failure to attain, its
reclassification must be the higher of the next higher classification
or the classification applicable to the area's ozone design value at
the time the notice of reclassification is published in the Federal
Register. However, no area can be reclassified as extreme based upon
its design value. The official design value of the Washington area
based on quality-assured ozone monitoring data from 1997-1999 is 0.132
ppm. The classification corresponding to this value is ``marginal''
nonattainment. By contrast, the next higher classification for the
Washington area is ``severe'' nonattainment. Because ``severe'' is a
higher nonattainment classification than ``marginal,'' under the
statutory scheme, the area would be reclassified to severe
nonattainment. Refer to Table 3 above.
XI. What Progress Has the Washington, DC Area Made Towards Planning To
Attain the Ozone NAAQS by 2005?
In April 1998, the District, Maryland and Virginia each submitted
modeling and a weight of evidence demonstration setting local overall
emissions budgets when combined with boundary conditions consistent
with the NOX SIP
[[Page 68810]]
call to demonstrate attainment of the 1-hour ozone NAAQS. While the air
quality modeling analysis considered projected local emissions levels
that were expected to occur by 1999, the calendar year itself is not an
input to the air quality model. The air quality model responds only to
the meteorology (temperature, wind patterns, etc.) of the selected
episode, the ozone and precursor levels at the boundaries of the grid
of the area being modeled and the overall change in local emissions
levels in the local area. During February 2000, the States submitted
SIP revisions that demonstrated that the local overall emissions
budgets set by the air quality modeling demonstration could be achieved
in 2005 with a combination of Federally promulgated national measures
and local measures in the approved SIPs. (For a discussion of these
measures and their status as of January 3, 2001, see 66 FR at 589-590,
January 3, 2001.)
XII. What Would a Reclassification Mean for the Washington Area?
If reclassified, the Washington area would need to attain the one-
hour ozone NAAQS as expeditiously as practicable, but no later than
November 15, 2005. The District, Maryland and Virginia would also need
to submit SIP revisions addressing all the severe area requirements for
the one-hour standard specified in sections 182(a) through 182(d) of
the Act. The SIP requirements for severe ozone nonattainment areas
include, but are not limited to, the following:
(1) Attainment demonstration for 2005 and rate-of-progress
demonstrations for 2002 and 2005 including adequate on-road mobile
emissions budgets for transportation conformity purposes.
(2) A 25 ton-per-year major stationary source threshold for
volatile organic compounds and nitrogen oxides.
(3) More stringent new source review requirements.
(4) Enforceable transportation control strategies and measures to
offset projected growth in vehicle miles traveled or number of vehicle
trips as necessary to demonstrate attainment and to achieve periodic
emissions reduction requirements.
(5) Contingency measures.
XIII. What Are the Transportation Conformity Implications of
Reclassification?
The ozone reclassification in and of itself would not immediately
affect the applicable motor vehicle emissions budgets in the Washington
area. Currently the only applicable motor vehicle emission budgets for
the District, Maryland and Virginia are those for VOC and
NOX in the approved rate-of-progress plan for 1999 and two
sets of outyear budgets established for 2015 and for 2020.\8\ Until
such time as rate-of-progress and/or 2005 attainment year ozone budgets
have been determined to be adequate or are approved, these 1999 budgets
apply until 2015, at which point the outyear budgets apply for 2015 and
all future years. See 65 FR 40167, July 3, 2000.
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\8\ There are also approved VOC budgets in the 15 percent rate-
of-progress plan, but these are effectively superceded by the
approved 1999 VOC budgets which are both for a later year and are
more stringent. See 40 CFR 93.118.
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Our January 3, 2001, final rule approved motor vehicle emissions
budgets for 2005 which were contained within the February 2000
submittals, but the Court's July 2, 2002, decision has vacated our
approval action. We had found these budgets to be adequate on June 8,
2000, (65 FR 36439), but have always interpreted the transportation
conformity rule such that a final rulemaking action approving a control
strategy or maintenance plan SIP renders any prior adequacy
determination made for budgets related to that particular control
strategy or maintenance plan SIP of no further force or effect.
Instead, the final rulemaking governs which budgets apply for
conformity purposes. We also interpret our transportation conformity
rule to mean that once an approval is vacated the prior adequacy
determination is not resurrected. We made the prior adequacy
determination based upon the record before us at that time. At the very
least, we are now confronted with the fact of the Court's vacatur of
the January 3, 2001, final rule and thus must consider whether or not
the Court's ruling precludes a determination of adequacy of the
calendar year 2005 motor vehicle emissions budgets in the February 2000
SIP submissions.
We initiated a new adequacy process with respect to the budgets for
2005 that were contained in the February 2000 plan. On September 9,
2002, we completed the public notice and comment portion of the process
to determine the adequacy process. EPA received adverse comments on the
adequacy of these budgets, and is currently considering appropriate
action in response to those comments. Further information on any
findings of adequacy can be found at http://www.epa.gov/otaq/transp/conform/adequacy.htm.
Once new severe area budgets are submitted and have been determined
adequate, these post-1999 rate-of-progress budgets would set emission
caps for any post-1999 milestone years (2002 and 2005), and the new
attainment year budgets would apply to the 2005 attainment year and all
years beyond the attainment year up to the point when an outyear budget
has been established.
XIV. How Does the Recent Release of MOBILE6 Interact With
Reclassification?
A. What Is the Relationship Between MOBILE6 and the Attainment Year
Motor Vehicle Emissions Budgets
The 2005 motor vehicle emissions budgets contained in the February
2000 submittal are not based upon the most recent mobile source
emission factors model, MOBILE6. The February 2000 attainment plan SIP
submissions relied upon reductions from EPA's Tier 2 Federal motor
vehicle control program standards and Sulfur in gasoline rule (the Tier
2/Sulfur program) to in effect demonstrate that the reduction in local
emissions between 1990 and 2005 would be greater than or equal to the
reduction in local overall emissions assumed in the air quality
modeling demonstration. We have always stated that the benefits of the
Tier 2 program cannot be accurately estimated until MOBILE6 is
released. Before the official release of the MOBILE6 emission factor
model, we required States that adopted benefits of the Tier 2/Sulfur
program into their attainment demonstrations (and certain other SIP
revisions) to submit an enforceable commitment to revise the motor
vehicles emissions budgets within either one or two years of the
release of the MOBILE6 model. For further detail on our rationale
regarding this commitment see 64 FR 70460, December 16, 1999, and 65 FR
46383, July 28, 2000. The District, Maryland and Virginia submitted an
enforceable commitment to revise the motor vehicles emissions budgets
within one-year of the release of the MOBILE6 model. Because the
MOBILE6 model was released on January 29, 2002, (67 FR 4254) the
commitment required submittal of revised budgets by January 29, 2003.
We believe that approval of this commitment only has context within the
framework of an approval of the attainment demonstration under the
conditions we laid out in our January 3, 2001, final rule and in the
proposed actions leading up to that final action. We have interpreted
the Court of Appeals's July 2, 2002, ruling as vacating the approval of
this commitment.
We expect that any subsequent motor vehicle emissions budgets
submitted to fulfill the severe area requirements
[[Page 68811]]
including that of the attainment demonstration will be prepared using
the MOBILE6 emissions factor model and pursuant to applicable guidance
and policy such as that found in the January 18, 2002, joint memorandum
from John S. Seitz and Margo Tsirigotis Oge entitled ``Policy Guidance
for the Use of MOBILE6 in SIP Development and Transportation
Conformity'' (January 18 MOBILE6 policy). Thus, although the obligation
to submit MOBILE6 budgets by January 29, 2003, has been vacated, the
severe area SIP when submitted must contain budgets based on MOBILE6
modeling.
B. What Is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress Requirement
In our guidance documents, the EPA has interpreted the section
182(c)(2) reasonable further progress requirement as mandating volatile
organic compounds (VOC) or nitrogen oxides (NOX) reductions
of 3 percent per year, averaged over a 3-year period, for serious and
above ozone nonattainment areas that were designated and classified
under the 1-hour ozone NAAQS. The EPA refers to these reductions as the
rate-of-progress requirement.
The January 18, 2002, MOBILE6 policy guidance indicates that among
other things, the motor vehicle emissions budgets in the post-1999
rate-of-progress plans will have to developed using MOBILE6. In this
policy we said:
In general, EPA believes that MOBILE6 should be used in SIP
development as expeditiously as possible. The Clean Air Act requires
that SIP inventories and control measures be based on the most
current information and applicable models that are available when a
SIP is developed.\9\
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\9\ See Clean Air Act section 172(c)(3) and 40 CFR 51.112(a)(1).
Since the area is only now beginning work on the post-1999 rate-of-
progress plans as a result of reclassification to severe, these plans
will need to be based upon MOBILE6.
The post-1999 rate-of-progress requirement flows from section
182(c)(2)(B) which requires serious and above areas to achieve a 3
percent per year reduction in baseline VOC emissions (or some
combination of VOC and NOX reduction from baseline emissions
pursuant to section 182(c)(2)(C)) averaged over each consecutive three-
year period after November 15, 1996, until the attainment date.\10\
Baseline emissions are the total amount of actual VOC or NOX
emissions from all anthropogenic sources in the area during the
calendar year 1990, excluding emissions that would be eliminated under
certain Federal programs and Clean Air Act mandates: phase 2 of the
Federal gasoline Reid vapor pressure regulations (Phase 2 RVP)
promulgated on June 5, 1990 (see 55 FR 23666); the Federal motor
vehicle control program in place as of January 1, 1990 (1990 FMVCP);
and certain changes and corrections to motor vehicle inspection and
maintenance (I/M) programs and corrections and reasonably available
control technology (RACT) that were required under section
182(a)(2).\11\ We have issued guidance that provides detailed
information on for implementing the rate-of-progress provisions of
section 182.\12\ Basically our guidance requires the calculation of a
target level of emissions for each rate-of-progress milestone year. The
target level for any rate-of-progress milestone year is the 1990
baseline emissions decreased by the amount of baseline emissions that
would be reduced by the 1990 FMVCP and the Phase 2 RVP program by that
year and reduced by the amount of the mandated minimum reductions (15
percent VOC by 1996, and an additional nine (9) percent VOC, or VOC and
NOX by 1999, * * *). Under our guidance the first rate-of-
progress milestone year target levels, for example, the 15 percent VOC
reduction by 1996 requirement, starts with the 1990 base year emissions
and then subtracts the effects of the 1990 FMVCP and Phase 2 RVP
through 1996 and also subtracts the required 15 percent VOC reduction.
The 1999 VOC target level starts with the 1996 target level and
subtracts the effects between 1996 and 1999 of the 1990 FMVCP and Phase
2 RVP and subtracts the required 9 percent post-1996 reduction. For
each target level, our guidance requires the preparation of a 1990 base
year inventory ``adjusted'' to the milestone year (the ``1990 adjusted
base year inventory'') to account for the effects of the 1990 FMVCP and
Phase 2 RVP by the milestone year. The adjusted inventory uses 1990
motor vehicle activity levels but emission factors computed by MOBILE6
for the applicable milestone year. For example, preparation of a rate-
of-progress plan for 1999 with NOX substitution requires a
1990 base year inventory for both VOC and NOX, a 1990 base
year VOC inventory adjusted to 1996 and 1990 base year VOC and
NOX inventories inventory adjusted to 1999. Preparation of a
rate-of-progress plan for 1999 with NOX substitution
requires a 1990 base year inventory for both VOC and NOX
plus the following seven ``adjusted'' inventories: 1996 VOC; 1999 VOC
and NOX; 2002 VOC and NOX and 2005 VOC and
NOX.
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\10\ As a serious area the Washington area was required to
submit a rate-of-progress plan for a nine (9) percent reduction for
the 3-year period November 15, 1996, through November 15, 1999.
\11\ These requirements under section 182(a)(2) are known I/M
and RACT corrections or I/M and RACT ``fix-ups.'' For further
explanation of these see 57 FR at 13503-13504, April 16, 1992.
\12\ This includes among others: Guidance on the Post -1996
Rate-of-Progress Plan (RPP) and Attainment Demonstration, EPA-452/R-
93-015 (Corrected version of February 18, 1994). An electronic copy
may be found on EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html (file name: ``post96--2.zip'').
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One consequence of the need to use MOBILE6 emission factors in the
post-1999 rate-of-progress plan is that the area must recompute the
1990 baseline emissions using the MOBILE6 emissions factor model to
update the 1990 on-road mobile sources portion of the 1990 base year
emission inventory. The area must also calculate post-1999 rate-of-
progress target levels by re-iterating the target levels for rate-of-
progress requirements for the 1996 and 1999 milestone years.
In addition to vehicle emissions budgets for any applicable
milestone year, the post-1999 rate-of-progress requirement will also
require the development of a revision to the 1990 base year emissions
inventories and development of up to seven 1990 adjusted inventories
(VOC for 1996, VOC and NOX for 1999, VOC and NOX
for 2002, plus VOC and NOX for 2005).
XV. If the Washington Area Is Reclassified to Severe, What Would Its
New Schedule Be?
A. What Would the Attainment Date Be?
If the Washington area is reclassified to severe, the new
attainment deadline under section 181(b)(2) would be as expeditious as
practicable, but no later than the date applicable to the new
classification, i.e., November 15, 2005.
B. When Are the Required SIP Revisions Due?
The District, Maryland and Virginia would be required to submit a
SIP that adopts all the severe area requirements. Under section
181(a)(1) of the Act, the new attainment deadline for serious areas
reclassified to severe under section 181(b)(2) would be as expeditious
as practicable, but no later than the date applicable to the new
classification, i.e., November 15, 2005. When we issue any final
finding of failure to attain that reclassifies the Washington area, we
must also address the schedule by which the District, Maryland and
Virginia will be required to submit a SIP revision meeting the severe
area requirements. Pursuant to section 182(i), EPA can adjust any
[[Page 68812]]
applicable deadline (other than the attainment date) as appropriate for
any area reclassified under section 181(b) of the CAA. We propose to
have the District, Maryland and Virginia submit this SIP by the earlier
of the following dates: within one year of the effective date of a
final action on the proposed finding of failure to attain and any
consequent reclassification or March 1, 2004. If any of the Washington
area States fail to submit a complete severe area SIP that addresses
the new severe area requirements by the deadline set in a final rule
reclassifying this area, we will start a sanctions clock pursuant to
CAA section 179(a)(1) for failure to submit a required SIP revision.
EPA believes that this proposed rule provides ample advance notice
to the affected jurisdictions that the severe area requirements may
become applicable to the Washington area. However, the issuance of the
MOBILE6 emission factor model will require the area to recompute the
1990 base year emissions and restate pre-1999 rate-of-progress targets
using MOBILE6. This will require significantly more inventory
preparation than would have occurred had the MOBILE5 model remained in
force and the area could have used the MOBILE5-based 1990 base year
emissions inventories and target levels through 1999. A March 1, 2004,
submittal deadline will require the jurisdictions to have adopted
additional emission control regulations that can allow sources a
minimally reasonable time to comply before the start of the 2005 ozone
season and, for measures needed solely to meet rate-of-progress
requirements, slightly longer to comply before the rate-of-progress
deadline of November 15, 2005. This schedule is for all the severe area
SIP requirements. We solicit comments on this proposed schedule.
C. What Will Be the Rate-of-Progress and Contingency Measure Schedules?
(1) 2002 Rate-of-Progress Milestone
Section 182(c)(2)(B) requires serious and above areas achieve a 3
percent per year reduction in baseline VOC emissions (or some
combination of VOC and NOX reductions from baseline
emissions pursuant to section 182(c)(2)(C)) averaged over each
consecutive three-year period after November 15, 1996, until the
attainment date. Therefore, a serious area must achieve a 9 percent
reduction between November 15, 1996, and November 15, 1999; a severe
area with an attainment date of November 15, 2005, additionally has to
achieve an additional 9 percent reduction by November 15, 2002, and a
further 9 percent reduction by November 15, 2005.
Under the schedule for submittal of all severe area requirements
that is proposed in the preceding section of this document under the
heading ``B. When are the Required SIP Revisions Due,'' the rate-of-
progress plan for the 2002 milestone year will be due well after the
November 15, 2002, milestone date for the first of the post-1999 9
percent reduction requirements.
If sufficient actual reductions occurring by the November 15, 2002,
milestone date do not now exist, then Maryland, Virginia or the
District can only get reductions after the milestone deadline because,
at this point, the States do not have the ability to require additional
reductions for a period that has already passed. We believe the passing
of the deadline does not relieve Maryland, Virginia or the District
from the requirement to achieve the 9 percent reduction in emissions,
but rather the 9 percent reduction needs to be achieved as
expeditiously as practicable after November 15, 2002.
The approved SIPs for the area contain measures that either were
not used in the demonstration of rate-of-progress by 1999 or that
generate additional benefits after November 15, 1999, over and above
what was credited to the rate-of-progress plan for 1999. Such measures
include the National Low Emission Vehicle program in the entire area
and, in the District and Maryland portions of the Washington area,
beyond RACT reduction requirements on large sources of NOX.
The area also opted-into the Federal reformulated gasoline (RFG)
program. The second phase of the RFG program, which went into effect on
January 1, 2000, also produces reductions creditable towards the 2002
rate-of-progress requirement.
As discussed elsewhere in this document in the section titled
``What is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress,'' the CAA specifies the emissions ``baseline'' from which
each emission reduction milestone is calculated. Section 182(c)(2)(B)
states that the reductions must be achieved ``from the baseline
emissions described in subsection (b)(1)(B).'' This baseline value is
termed the 1990 adjusted base year inventory. Section 182(b)(1)(B)
defines baseline emissions (for purposes of calculating each milestone
VOC/NOX emission reduction) as ``the total amount of actual
VOC or NOX emissions from all anthropogenic sources in the
area during the calendar year of enactment'' (emphasis added) and
excludes from the baseline the emissions that would be eliminated by
certain specified Federal programs and ceratin changes to state I/M and
RACT rules.\13\ The 1990 adjusted base year inventory must be
recalculated relative to each milestone and attainment date because the
emission reductions associated with the FMVCP increase each year due to
fleet turnover.\14\
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\13\ These are the 1990 FMVCP, Phase 2 RVP, and the I/M and RACT
fix-ups.
\14\ See U.S. EPA, (1994), Guidance on the Post-1996 Rate-of-
Progress Plan (RPP) and Attainment Demonstration, EPA-452/R-93-015
(Corrected version of February 18, 1994). An electronic copy may be
found on EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html
(file name: ``post96--2.zip'').
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Therefore, EPA concludes that the area has already implemented
measures creditable towards the 2002 rate-of-progress milestone.
However, we are not able to conclude that the area has sufficient
measures to achieve the required 9 percent reduction by November 15,
2002, in the absence of a full blown rate-of-progress plan for the 2002
milestone year that documents the calculations of the 2002 target
levels of emissions, documents how the SIP accounts for expected growth
in emissions related activities and contains the requisite
demonstration that sufficient creditable reductions have or were
projected to occur by November 15, 2002. We have insufficient data
concerning what the levels of reductions will be in the area by 2002,
what the proper 1990 adjusted base year inventory for 2002 will be or
how much emissions growth will occur in the period November 15, 1999,
through November 15, 2002. Nor do we have sufficient information to
allow us to determine what date will be as expeditiously as practicable
after November 15, 2002, for this first post-1999 9 percent rate-of-
progress requirement.
EPA proposes that the 2002 rate-of-progress requirement be that the
District, Maryland and Virginia submit a rate-of-progress plan that
demonstrates that the SIP has sufficient measures to make the required
percent reduction by November 15, 2002, or by a date as expeditiously
as practicable thereafter.\15\ Such SIP revisions will have to
demonstrate that any date after November 15, 2002, by which the first
post-1999 9 percent rate-of-progress reduction is achieved is that
which is as expeditiously as practicable.
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\15\ EPA believes that such date cannot be any later than
November 15, 2005.
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(2) 2005 Rate-of-Progress
EPA is not proposing any change to the date by which the second 9
percent increment of post-1999 rate-of-progress
[[Page 68813]]
must be achieved. If the currently adopted and approved SIP measures
and the current suite of Federal measures will not achieve the required
rate-of-progress reductions, we believe the area has sufficient time to
adopt and implement measures to achieve the required reductions by
November 15, 2005.
(3) Contingency for Failure To Achieve Rate-of-Progress by November 15,
2002
The contingency measures plan must identify specific measures to be
undertaken if the area fails to meet any applicable milestone, failure
to make rate-of-progress or failure to attain the NAAQS. With respect
to the November 15, 2002, milestone, EPA believes that the contingency
plan will need to account for any adjustment to the milestone date.
XVI. What Is the Impact of Reclassification on Title V Operating Permit
Programs?
Upon reclassification the major stationary source threshold will be
lowered from 50 tons per year (TPY) to 25 TPY. Consequently, the
District's, Maryland's and Virginia's Title V operating permits program
regulations need to cover sources that will become subject to the lower
major stationary source threshold. EPA has reviewed the relevant permit
program regulations for the Washington area states. This review
indicates that the three program regulations will apply the requisite
25 TPY major stationary source threshold to the Washington area if this
area is reclassified to severe. No changes to the State's' Title V
permit program regulations will be required as a result of a
reclassification of the Washington area to severe nonattainment.
After any reclassification to severe, additional sources will
become subject to the Title V permitting requirements due to the change
in the major stationary source threshold from 50 TPY to 25 TPY. Any
newly major stationary sources must submit a timely Title V permit
application. ``A timely application for a source applying for a part 70
permit for the first time is one that is submitted within 12 months
after the source becomes subject to the permit program or on or before
such earlier date as the permitting authority may establish.'' See 40
CFR 70.5(a)(1). The 12 month (or earlier date set by the applicable
permitting authority) time period to submit a timely application will
commence on the effective date of any reclassification action.
XVII. What Are the Relevant Policy and Guidance Documents?
Commencing with ``State Implementation Plans; General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of 1990''
(57 FR 13498, April 16, 1992), EPA has issued numerous policy and
guidance memoranda and guidance documents related to the attainment
demonstration, rate-of-progress and other requirements related to the
severe area classification. These documents are too numerous to list
here.
Several have already been cited elsewhere in this document.
Several of the documents identified in prior Federal Register
publications related to the Washington area, for example, those listed
at 64 FR at 70469, December 16, 1999, no longer are applicable in this
instance because they have dealt with quantifying the benefits of our
Tier 2 regulations prior to the release of MOBILE6 and have become
unnecessary since the release of the MOBILE6 model and the January 18
MOBILE6 policy.\16\ The final mid-course review guidance has been
released whereas prior Federal Register publications referenced a
draft.\17\ And the Memorandum, ``Extension of Attainment Dates for
Downwind Transport Areas,'' issued July 16, 1998, was declared unlawful
by the United States Courts of Appeals for the District of Columbia.
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\16\ These are the two following memoranda: ``Guidance on Motor
Vehicle Emissions Budgets in One-Hour Attainment Demonstrations,''
of November 3, 1999, and ``1-Hour Ozone Attainment Demonstrations
and Tier 2/Sulfur Rulemaking.'' of November 8, 1999.
\17\ Memorandum ``Mid-Course Review Guidance for the 1-Hour
Ozone Nonattainment Areas that Rely on Weight-of-Evidence for
Attainment Demonstration'' from Lydia N. Wegman and J. David Mobley
to the Air Division Directors, Regions I-X of March 28, 2002.
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EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. These comments will be
considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional office listed in the ADDRESSES section of
this document.
Proposed Action
EPA is proposing to find that the Metropolitan Washington, D.C.
serious ozone nonattainment area has failed to attain the one-hour
ozone NAAQS by November 15, 1999, the date set forth in the Clean Air
Act (CAA or Act) for serious nonattainment areas. If EPA takes final
action to issue this proposed finding of failure to attain, the area
would be reclassified as a severe ozone nonattainment area by operation
of law. EPA is proposing to require the District of Columbia, the State
of Maryland and the Commonwealth of Virginia to submit revisions to its
State Implementation Plan (SIP) that adopt the severe area requirements
within one year of the effective date of a final action on the
attainment determination and any consequent reclassification but not
later than March 1, 2004, whichever is sooner. Finally, EPA is
proposing to adjust the dates by which the area must achieve a nine (9)
percent reduction in ozone precursor emissions to meet the 2002 rate-
of-progress requirement and contingency measure requirement as this
relates to the 2002 rate-of-progress requirement.
XVIII. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA is
required to determine whether regulatory actions are significant and
therefore should be subject to Office of Management and Budget (OMB)
review, economic analysis, and the requirements of the Executive Order.
The Executive Order defines a ``significant regulatory action'' as one
that is likely to result in a rule that may meet at least one of the
four criteria identified in section 3(f), including, under paragraph
(1), that the rule may ``have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local or tribal
governments or communities.''
The Agency has determined that the proposed finding of
nonattainment would result in none of the effects identified in section
3(f) of the Executive Order. Under section 181(b)(2) of the CAA,
determinations of nonattainment are based upon air quality
considerations and the resulting reclassifications must occur by
operation of law. They do not, in and of themselves, impose any new
requirements on any sectors of the economy. In addition, because the
statutory requirements are clearly defined with respect to the
differently classified areas, and because those requirements are
automatically triggered by classifications that, in turn, are triggered
by air quality values, determinations of nonattainment and
reclassification cannot be said to impose a materially adverse impact
on state, local, or tribal governments or communities.
For this reason, the proposed finding of nonattainment and
reclassification is
[[Page 68814]]
also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to
any rule that: (1) Is determined to be economically significant as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposed action is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866.
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999) requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
Federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by state and local governments, or EPA consults with
state and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
Federalism implications and that preempts state law unless the Agency
consults with state and local officials early in the process of
developing the proposed regulation. This determination of nonattainment
and the resulting reclassification of a nonattainment area by operation
of law will not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999), because this action does not, in and of itself, impose any
new requirements on any sectors of the economy, and does not alter the
relationship or the distribution of power and responsibilities
established in the CAA. Thus, the requirements of section 6 of the
Executive Order do not apply to these actions.
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
Determinations of nonattainment and the resulting reclassification
of nonattainment areas by operation of law under section 181(b)(2) of
the CAA do not in and of themselves create any new requirements.
Instead, this rulemaking only makes a factual determination, and does
not directly regulate any entities. See 62 FR 60001, 60007-60008, and
60010 (November 6, 1997) for additional analysis of the RFA
implications of attainment determinations. Therefore, pursuant to 5
U.S.C. 605(b), I certify that this proposed action does not have a
significant impact on a substantial number of small entities within the
meaning of those terms for RFA purposes.
Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary
impact statement to accompany any proposed or final rule that includes
a Federal mandate that may result in estimated annual costs to state,
local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objectives of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly or uniquely impacted by
the rule.
EPA believes, as discussed previously in this document, that the
finding of nonattainment is a factual determination based upon air
quality considerations and that the resulting reclassification of the
area must occur by operation of law. Thus, EPA believes that the
proposed finding does not constitute a Federal mandate, as defined in
section 101 of the UMRA, because it does not impose an enforceable duty
on any entity.
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed action does not involve technical standards.
Therefore, EPA did not consider the use of any voluntary consensus
standards.
This proposed action to reclassify the Washington, DC area as a
severe ozone nonattainment area and to adjust applicable deadlines does
not impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 4, 2002.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 02-28845 Filed 11-12-02; 8:45 am]
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