[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25688-25719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9401]
[[Page 25687]]
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Part V
Environmental Protection Agency
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40 CFR Part 52
Approval and Promulgation of Air Quality Implementation Plans; Final
Rules
Federal Register / Vol. 70, No. 92 / Friday, May 13, 2005 / Rules and
Regulations
[[Page 25688]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[RME NO. R03-OAR-2004-DC-0009, R03-OAR-2004-DC-0010; FRL-7910-3]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, Virginia; 1-Hour Ozone Attainment
Plans, Rate-of-Progress Plans, Contingency Measures, Transportation
Control Measures, VMT Offset, and 1990 Base Year Inventory
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions
submitted by the District of Columbia (the District), the State of
Maryland and the Commonwealth of Virginia. These revisions include the
1996-1999 and 1999-2005 rate-of-progress (ROP) plans, changes to the
1990 base year inventory, a contingency measures plan, certain
transportation control measures (TCMs), and a demonstration that each
SIP contains any necessary transportation control measures to offset
any growth in emissions from growth in vehicle miles traveled (VMT) and
to demonstrate ROP and attainment of the 1-hour national ambient air
quality standard (NAAQS) for ozone. These revisions also include the
District's and Virginia's attainment plan for the Washington, DC severe
1-hour ozone nonattainment area (the Washington area). The intended
effect of this action with respect to the following SIP revisions, all
of which were submitted to satisfy the SIP requirements of 1-hour ozone
nonattainment areas classified as severe, is to: approve the
District's, Maryland's and Virginia's modeling demonstration, which
includes the analysis based upon photochemical grid modeling, that the
Washington area will attain the 1-hour ozone NAAQS; approve the
District's, Maryland's and Virginia's post-1996 ROP plans, 1990 base
year inventory revisions, TCMs, VMT offset and contingency measures SIP
revisions; approve the District's and Virginia's attainment plans for
the Washington area; and, determine that Maryland's SIP for the
Washington area contains adopted control measures and determine that
these measures fully satisfy the emission reductions relevant to
attainment of the 1-hour ozone NAAQS.
DATES: Effective Date: This final rule is effective on June 13, 2005.
ADDRESSES: EPA has established a docket for this action under Regional
Material in EDocket (RME) ID Number R03-OAR-2004-DC-0010. All documents
in the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the
appropriate RME identification number. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in RME or in hard copy
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. Copies of the State
submittal are available at the District of Columbia Department of
Public Health, Air Quality Division, 51 N Street, NE., Washington, DC
20002; the Maryland Department of the Environment, 1800 Washington
Boulevard, Suite 705, Baltimore, Maryland 21230; and the Virginia
Department of Environmental Quality, 629 East Main Street, Richmond,
Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or
by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. Summary
On January 12, 2005 (70 FR 2085), EPA published a notice of
proposed rulemaking (NPR) for the District, the State of Maryland and
the Commonwealth of Virginia (the States). The NPR proposed approval of
the 1996-1999 and 1999-2005 ROP plans, changes to the 1990 base year
inventory, a contingency measures plan, certain TCMs, and a
demonstration that each SIP contains sufficient transportation control
measures to offset any growth in emissions from growth in VMT as
necessary to demonstrate ROP and attainment of the 1-hour NAAQS for
ozone.
Tables 1 and 2 identify the initial submittal dates and the dates
on which the States's submitted amendments for these plans and measures
covered by our January 12, 2005 NPR:
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\1\ Maryland SIP revision submittals labeled as 97-04 and 99-12.
Table 1.--Post 1996-1999 ROP Plans From the States
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DC MD \1\ VA
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Initial submittal dates.............. November 10, 1997...... December 24, 1997...... December 19, 1997.
Amended submittal dates.............. May 25, 1999........... May 20, 1999........... May 25, 1999.
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The post 1996-1999 ROP Plan SIP revisions also include certain
TCMs, specifically those TCMs identified in Appendix H of the States
submittals.
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\2\ Maryland's identifiers for these SIP revision submittals are
SIP revisions numbers 03-05 and 04-01.
Table 2.--Attainment Plan, 1999-2005 ROP Plans, Contingency Measures Plan, Amendments to the 1990 Base Year
Inventory, and VMT Offset Plans
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DC MD \2\ VA
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Initial submittal dates.............. September 5, 2003...... September 2, 2003...... August 19, 2003.
Amended submittal dates.............. February 25, 2004...... February 24, 2004...... February 25, 2004.
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[[Page 25689]]
Hereafter, the SIP revisions listed in Table 2 of this document
will be called the ``February 2004 SIP revisions.'' The States''
February 2004 SIP revisions include the post 1999-2005 ROP plans, the
VMT Offset SIPs, revisions to the 1990 base year emissions inventory,
and the contingency measures plans for ROP and attainment for the
Washington area.\3\ The February 2004 SIP revisions additionally
include certain TCMs, namely those TCMs identified in Appendix J of the
SIP revision submittals.
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\3\ In this document a SIP revision which demonstrates the
state's SIP contains any necessary transportation control measures
to offset any growth in emissions from growth in VMT needed to
demonstrate ROP and attainment of the 1-hour NAAQS for ozone is
termed a ``VMT offset SIP.''
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The February 2004 SIP revisions also included the States' revised
attainment plans for the Washington area. The States had initially
submitted an attainment plan for the Washington area in 1998 with later
supplements. These initial attainment plans were the subject of two
earlier rulemaking actions, 66 FR 586, January 3, 2001, and 68 FR
19106, April 17, 2003. The dates of submittal are shown in Table 3
which repeats the information found in Table 2 of both the January 3,
2001 and April 17, 2003 final rules.
Table 3.--Previous Attainment Demonstrations Submissions
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DC MD \4\ VA
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Initial submittal dates.............. April 24, 1998......... April 29, 1998......... April 29, 1998.
Amendment dates...................... October 27, 1998....... August 17, 1998........ August 18, 1998.
Supplemental dates................... February 16, 2000...... February 14, 2000...... February 9, 2000.
Supplemental dates................... March 22, 2000......... March 31, 2000......... March 31, 2000.
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Hereafter those revisions listed in Table 3 will be called the
``pre-2001 SIP revisions'' attainment plan.'' \5\ Hereafter we refer to
the collective grouping of those SIP revisions listed in Tables 1 and 3
of this document as the ``pre-2001 SIP revisions.''
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\4\ Maryland's identifiers for the February 14, 2000 and March
31, 2002 submittals are SIP revisions numbers 00-01 and No. 00-02.
\5\ Only a commitment to revise the motor vehicle emissions
budgets (MVEBs) found in the March 2000 SIP revisions listed in
Table 3 of this document were subject to the January 3, 2001 and
April 17, 2003 final rules. The portion of these SIP revisions
related to MVEBs for years after 2005 (``outyear budgets'') was not
subject to these actions.
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In their February 2004 SIP revisions, each of the States
resubmitted to EPA the attainment plan contained in its prior SIP
revisions' attainment plan along with additional elements required for
a severe area attainment plan, such as a post-1999 ROP plan and the VMT
offset SIPs, a contingency measures plan to augment the previously
submitted 1996-1999 ROP plan and contingency measures plan,
respectively, as well as other SIP elements not included in the
previous SIP revisions' attainment plan.
We proposed action on these attainment plans in a separate NPR
published in the Federal Register on February 9, 2005 (70 FR 6796). In
our February 9, 2005, NPR, we also proposed approval of the attainment
plan SIP revisions submitted by the District and Virginia.
In our February 9, 2005, NPR, with respect to the State of
Maryland's attainment plan for the Washington area, we proposed
approval contingent upon the State submitting an approvable SIP
revision for certain penalty fees, required by the Clean Air Act (the
Act), prior to the time EPA would issue a final rule on Maryland's
attainment plan. In the alternative, we proposed to disapprove the
attainment plan SIP revision submitted by the State of Maryland for the
Washington area and to issue a protective finding for the attainment
plan which would allow the motor vehicle emissions budgets (MVEBs)
identified in the attainment plan SIP to be used for demonstrating
transportation conformity purposes. EPA has taken a final action on the
Maryland's attainment plan for the Washington area in a separate final
rule which is published elsewhere in today's Federal Register. In that
final rule, EPA is disapproving the Maryland's attainment plan for the
Washington area because Maryland failed to submit the required fee
program, and, pursuant to 40 CFR 93.120(a), and issuing a protective
finding to the February 2004 SIP revisions' attainment plan. As we
explain in that rule, the protective finding will allow Maryland to use
the MVEBs contained in the disapproved SIP for transportation
conformity purposes pursuant to 40 CFR 93.120. In this rule we are
approving the modeling demonstration, which includes an analysis based
upon photochemical grid modeling (the modeled demonstration of
attainment and adjunct weight-of-evidence (WOE) analysis), contained in
the District's, Maryland's and Virginia's February 2004 SIP revisions.
We also determine that based upon this modeled demonstration of
attainment and adjunct WOE analysis Maryland's submitted SIP for the
Washington area contains adopted control measures that fully satisfy
the emission reduction requirements relevant to the Washington area
attaining the 1-hour ozone NAAQS by November 15, 2005. This
determination supports issuance of the protective finding for
transportation conformity purposes pursuant to 40 CFR 93.120.
B. Relationship to Past SIP Revisions and Litigation
1. Prior SIP Revisions
During 1998, the States submitted an attainment plan for the
Washington area and supplemented these submittals on the dates listed
in Table 3 of this document. These 1998 and 2000 calendar year
revisions cumulatively constituted the attainment plan for the
Washington area which at the time was classified as being in
``serious'' nonattainment of the 1-hour ozone NAAQS. In the aggregate
these attainment plans consisted of a photochemical modeling
demonstration and adjunct WOE analyses that demonstrated attainment of
the ozone NAAQS; projected emissions inventories showing that the
States collectively had adopted sufficient measures to support the
demonstration of attainment; attainment year MVEBs; and a commitment to
conduct and submit a mid-course review to EPA by a date certain. As
noted previously, the March 2000 SIP revisions consisted of a
commitment to revise the MVEBs one-year after EPA released the MOBILE6
model and the outyear budgets. These pre-2001 SIP revisions' attainment
plans were submitted to demonstrate that the Washington area would
attain the 1-hour ozone NAAQS by no later than November 15, 2005. On
January 3, 2001, EPA approved the pre-2001 SIP revisions and extended
the attainment date for the Washington area (then a
[[Page 25690]]
serious nonattainment area) until November 15, 2005.
2. January 3, 2001 Final Rule Vacated
A petition for review challenging the January 3, 2001 final
approval was filed by the Sierra Club. The petition alleged, among
other things, that EPA could not lawfully extend the attainment date of
a serious ozone nonattainment area past November 15, 1999 without
reclassifying the area as severe nonattainment, could not approve a SIP
for an area with a 2005 attainment date unless the plan provides for
ROP reductions after 1999 and could not approve a SIP that does not
include contingency measures. On July 2, 2002, the U.S. Court of
Appeals for the District of Columbia Circuit (the Court of Appeals)
issued an opinion to vacate our rule extending the attainment date and
approving the attainment plans and 1996-1999 ROP plans. Among other
things, the Court of Appeals found that EPA had no authority to extend
the attainment date of a serious ozone nonattainment area without
reclassifying the area as severe nonattainment, and could not approve a
SIP for an area with a 2005 attainment date unless the plan provides
for ROP reductions until the attainment date. See Sierra Club v.
Whitman, 294 F.3d 155, 160-163 (D.C. Cir. 2002). The Court of Appeals
also found that EPA could not approve the pre-2001 SIP revisions
because a contingency measures plan, which is required under section
172(c)(9) of the Act, is one of the elements listed under section
172(c) as a requirement for a revised SIP for an area in nonattainment.
See Id. at 164.
3. Nonattainment Area Plan Requirements
Under section 172(c) of the Act, a revised SIP for an area in
nonattainment must also include elements such as an attainment
demonstration and all reasonably available control measures (RACM),
reasonable further progress toward attainment, an emissions inventory,
and new source permitting programs. Under section 182(d), a revised SIP
for an area in severe ozone nonattainment must include reasonably
available control technology (RACT) on, and new source review (NSR)
permitting of, major stationary sources of nitrogen oxides
(NOX) emissions and volatile organic compound (VOC)
emissions with a potential to emit of 25 tons per year (TPY) or
greater; new source permitting offset ratios of 1.3 to 1 or greater; a
VMT Offset SIP; a ROP plan to achieve a 15 percent reduction in VOC
emissions by 1996; plans for achieving an average of a 3 percent per
year ROP reductions after 1996 through the attainment date; and a SIP
revision to impose the penalty fees specified in section 185 of the
Act.
EPA believes Sierra Club v. Whitman, 294 F.3d 155, can be read to
require that before we can approve the overall revised SIP for the
nonattainment area we must approve all of the elements applicable to
the area under sections 172(c) and 182 of the Act. In this document,
the overall SIP for the nonattainment area will be termed the
``attainment plan.''
Under section 182 of the Act, a demonstration that the SIPs for a
nonattainment area, as revised, will provide for attainment of the 1-
hour ozone NAAQS by November 15, 2005 is a separate component of the
overall attainment plan. See 42 U.S.C. 7511a(c)(2)(A). Such a
demonstration for a severe ozone nonattainment area must be based upon
photochemical grid modeling (or similarly effective method) and must
show that the submitted demonstration relies upon or contains adopted
control measures that fully satisfy the emission reduction requirements
relevant to demonstrating attainment of the 1-hour ozone NAAQS by
November 15, 2005. Id.
4. Washington Area Reclassified to Severe Nonattainment
On January 24, 2003 (68 FR 3410), EPA reclassified the Washington
area to severe nonattainment because the area failed to attain 1-hour
ozone NAAQS by the November 15, 1999 statutory attainment date for
serious areas. This action made the area subject to the additional
requirements applicable to severe areas under section 182(d) of the
Act. On April 17, 2003 (68 FR at 19107), EPA conditionally approved the
pre-2001 SIP revisions (the history of litigation on the April 17, 2003
conditional approval will be discussed in a later paragraph of this
document titled ``April 17, 2003 Final Rule Vacated and Withdrawn'').
5. Recent SIP Revision Actions
In the months that followed the January 24, 2003 reclassification
of the Washington area to severe nonattainment and the April 17, 2003
conditional approval, the States submitted the SIP revisions necessary
to satisfy the requirements of section 182(d) of the Act for severe
areas and EPA's conditional approval, with the exception of Maryland
which failed to submit a SIP revision for the section 185 penalty fee
program. These SIP revisions included February 2004 SIP revisions. The
February 2004 SIP revisions contained the attainment plan which
consists of: (1) A photochemical modeling demonstration and adjunct WOE
analyses to demonstrate attainment of the ozone NAAQS by no later than
November 15, 2005; (2) projected emissions inventories showing that the
States, including Maryland, collectively had adopted sufficient
measures to support the demonstration of attainment; (3) attainment
year MVEBs; and (4) a commitment to conduct and submit a mid-course
review to EPA by a date certain.\6\ In their February 2004 SIP
revisions, each of the States resubmitted to EPA the attainment plan
contained in the State's pre-2001 SIP revisions' attainment plan along
with additional elements required for a severe area attainment plan,
such as a 1999-2005 ROP plan, and a contingency measures plan to
augment the previously submitted 1996-1999 ROP plan and contingency
measures plan, respectively, as well as other SIP elements not included
in the pre-2001 SIP revisions' attainment plan.
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\6\ The February 2004 SIP revisions did not need to contain a
commitment to revise the MVEBs one-year after EPA released the
MOBILE6 model because the MVEBs in these plans were developed using
MOBILE6.
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6. April 17, 2003 Final Rule Vacated and Withdrawn
A petition for review challenging the April 17, 2003 final
conditional approval was filed by the Sierra Club. The petition
alleged, among other things, that EPA could not lawfully conditionally
approve the SIPs due to a lack of specificity in the States' commitment
letters, that EPA should require the 1996-1999 ROP to be revised to use
the latest mobile sources emission factor model and that the
photochemical grid modeling supporting the attainment plan did not meet
the requirements of the Act. On February 3, 2004, the Court of Appeals
issued an opinion to vacate our rule conditionally approving the
attainment plans and 1996-1999 ROP plans insofar as that Court found
that our grant of conditional approval was defective. The Court of
Appeals denied the petition for review in all other respects. See
Sierra Club v. EPA, 356 F.3d 296, 301-07 (D.C. Cir. 2004). On April 23,
2004, the Court of Appeals issued its mandate thereby relinquishing
jurisdiction over the 1996-1999 ROP plans and the attainment plan SIP
revisions, and remanding them back to EPA.\7\
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\7\ On April 16, 2004, the Court of Appeals issued an order
revising the February 3, 2004, opinion to address a petition for
rehearing filed by the Sierra Club, but otherwise leaving its
decision to vacate and remand the conditional approval to EPA
intact. Sierra Club v. EPA, No. 03-1084, 2004 WL 877850 (DC Cir.
Apr. 16, 2004).
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[[Page 25691]]
Effective as of the April 23, 2004 date the Court of Appeals issued
its mandate for its February 3, 2004 ruling, all three States withdrew
their pre-2001 SIP revisions' attainment plan which had been submitted
during 1998 and 2000, specifically the SIP revisions listed in Table 2
of the April 17, 2003, final rule (68 FR 19107). By the time the three
States withdrew the pre-2001 SIP revisions' attainment plan, they had
already submitted revised attainment plan SIP revisions with an
analysis that the SIPs contained all RACM, post-1999 ROP plans
demonstrating ROP for 2002 and 2005, VMT offset plans and contingency
measures plans that superceded the earlier submissions. The States, in
their February 2004 SIP submissions, submitted not only this new
material, but resubmitted all of the previously withdrawn pre-2001 SIP
revisions' attainment plan.\8\ The newly submitted materials along with
the resubmitted pre-2001 SIP revisions' attainment plan, form a single
comprehensive package. EPA is taking final action today on both the
newly submitted and resubmitted materials, which we collectively refer
to as the February 2004 SIP revisions.
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\8\ With one exception: the ``outyear budgets,'' which were
contained in the March 31, 2002 SIP revision on which EPA had never
proposed to take action, were not resubmitted.
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7. District Court Action
The Sierra Club filed a complaint in the United States District
Court for the District of Columbia (District Court) claiming that
because the Court of Appeals vacated and remanded the conditional
approval of the pre-2001 SIP revisions' attainment demonstration and
the 1996-1999 ROP plans, EPA had an unfulfilled nondiscretionary duty
to complete final action on those SIP revisions. On April 7, 2005, the
District Court issued an order enjoining EPA to ``complete final
approval and disapproval action, in accordance with 42 U.S.C.
7410(k)(2), (3), on the state implementation plan submittals for the
Washington area identified at 66 FR 586, 586 (January 3, 2001).''
Sierra Club v. Johnson, C.A. No. 04-2163 (JR) (April 7, 2005). The
District Court's decision took note ``that the states formally withdrew
their pre-2001 submissions (except for the [ROP plans]) after the D.C.
Circuit's Sierra Club III remand,'' Id., slip op. at 7, but disputed
that ``these withdrawals removed EPA's duty to act,'' stating that ``
`withdrawal' of pre-2001 SIPs could [not] push back the deadlines
established by Congress.''
EPA does not dispute that withdrawal of a SIP cannot push back a
statutory deadline established by Congress. However, EPA disagrees that
it can act on a SIP submittal formally withdrawn by a state. We note,
however, that such a withdrawal is not without consequence, as
withdrawal of required SIP revision puts a state in jeopardy of
sanctions predicated upon a failure to submit the required SIP. However
in this case, as described in this document, the States resubmitted the
materials comprising their withdrawn pre-2001 SIP revisions' attainment
plan as part of the February 2004 SIP submissions. EPA therefore will
take action on what the District Court termed the ``pre-2001
submissions,'' \9\ as follows:
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\9\ The District Court used the term ``pre-2001 submissions''
and ``pre-2001 SIPs'' which consists of what in this document we
call ``the pre-2001 SIP revisions' attainment demonstration'' and
``the 1996-1999 ROP plan.''
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(1) In this final rule which
(a) approves all of the control measures and other constituents
needed to approve Maryland's severe area attainment plan (except for a
Section 185 fee program), including all control measures need to fully
satisfy the emissions reductions relevant to attainment of the 1-hour
ozone NAAQS;
(b) approves all of the control measures and other constituents
needed to approve the District's and Virginia's severe area attainment
plan;
(c) approves the 1996-1999 ROP plan for the District, Maryland and
Virginia;
(d) approves Maryland's modeled demonstration of attainment and
adjunct weight of evidence analyses; and
(e) approves the District's and Virginia's modeled demonstrations
of attainment and adjunct weight of evidence analyses and the
District's and Virginia's attainment plans, which include their pre-
2001 SIP revisions' attainment plan, as resubmitted and subsumed by
their February 2004 SIP revisions;
(2) Another final rule, which is published elsewhere in today's
Federal Register, which disapproves Maryland's pre-2001 SIP revisions'
attainment plan as resubmitted and subsumed by Maryland's February 2004
SIP revisions' attainment plan based upon Maryland's failure to submit
the required 185 fee program, and issues a protective finding on the
SIP, based upon our determination that the SIP contains all of the
control measures necessary to demonstrate attainment. That protective
finding will allow Maryland to use the MVEBs contained in the
disapproved SIP for transportation conformity purposes pursuant to 40
CFR 93.120.
II. The Relationship of Past SIP Revisions, February 2004 SIP Revisions
and the April 17, 2003 Conditional Approval
A. The Twelve Conditions for Approval
On April 17, 2003, EPA had conditionally approved the pre-2001 SIP
revisions subject to the following 12 conditions:
(1) Revise the 1996-1999 portion of the ROP plans to include a
contingency plan containing adopted measures;
(2) Revise the contingency plan containing those adopted measures
implemented for the failure of the Washington area to attain the one-
hour ozone standard for serious areas by November 15, 1999;
(3) Revise the ROP plans to include a contingency plan containing
adopted measures for the post-1999 ROP plans;
(4) Revise the attainment demonstration to include a contingency
plan containing adopted measures to be implemented if the Washington
area does not attain the one-hour ozone standard by November 15, 2005;
(5) Revise the ROP plans to demonstrate emission reductions of
ozone precursors of an average of 3 percent per year from November 15,
1999 to the November 15, 2005;
(6) Revise the attainment demonstration to include a revised RACM
analysis;
(7) Revise the major stationary source threshold to 25 tons per
year;
(8) Revise RACT rules to include the lower major source
applicability threshold;
(9) Revise new source review offset requirements to require an
offset ratio of at least 1.3 to 1.
(10) Submit a SIP revision that identifies and adopts specific
enforceable transportation control strategies and transportation
control measures to offset any growth in emissions from growth in
vehicle miles traveled or number of vehicle trips if required under
section 182(d)(1) of the Act;
(11) Submit the section 185 penalty fee SIP consisting of the
penalty fee requirement of Act sections 182(d)(3) and 185 for major
sources of VOC and NOX should the area fail to attain by
November 15, 2005;
(12) Update the Washington area severe attainment demonstration to
reflect revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling/weight of evidence
demonstration and adopted control measures, as necessary, to show that
the SIP continues to demonstrate attainment by November 15, 2005.
[[Page 25692]]
In the February 3, 2003 (68 FR 5246) proposed rule for the April
17, 2003 final conditional approval, we proposed conditional approval
of the pre-2001 SIP revisions if the State committed to correct
condition numbers (1) through (3), (6) and (12). EPA revised the
conditional approval to include condition numbers (4), (5), and (7)
through (11) in response to comment which stated that EPA could not
fully approve the pre-2001 SIP revisions because the pre-2001 SIP
revisions did not cover all of the required severe area SIP components.
EPA agreed with the comment to the extent that condition numbers (4),
(5), and (7) through (11) were applicable severe area requirements that
precluded full approval. See 68 FR at 19121, April 17, 2003.
Conditions (1) and (2) were elements needed to correct deficiencies
in the SIP required for a serious nonattainment area.
Conditions (4) through (11) are SIP elements required as a
consequence of the reclassification of the Washington area to severe
nonattainment.
Conditions (3) through (6) were required to correct deficiencies in
the pre-2001 SIP revisions because the pre-2001 SIP revisions included
a demonstration that the Washington area would attain the 1-hour ozone
standard by November 15, 2005.
We conditioned approval on item (12) under EPA's policy related to
the transition from our prior mobile source emissions factor model,
MOBILE5, to the newer model, MOBILE6.
B. How the States Have Addressed the Twelve Conditions
In this section we will discuss how the States have addressed the
twelve conditions. EPA had already approved many of the States' SIP
revisions for the control measures needed to support the attainment
plan, the ROP plans and the contingency measure plan by the time we
published the NPRs on January 12, 2005 (70 FR 2085) and February 9,
2005 NPR (70 FR 6796) for the States' 1996-1999 ROP plans and the
February 2004 SIP revisions including the resubmitted pre-2001 SIP
revisions' attainment plan. In this document we will not reiterate the
specifics of such approvals but will provide details on the approval of
control measures which were not approved at the time of the January 12,
2005 and February 9, 2005 NPRs.
1. Conditions 1 to 4--Contingency Measures
At the time of the January 12, 2005 NPR for the contingency
measures plan, EPA had approved all the contingency measures except
each of the States' architectural and industrial maintenance coatings
rules (AIM coatings rules), and the District's motor vehicle
refinishing, consumer products, solvent cleaning and portable fuels
container rules.
On May 2, 2005, the Regional Administrator signed final rules
approving the District's, Maryland's and Virginia's AIM coatings rules.
Those final actions have been published in a recent Federal Register or
shortly will be published in the Federal Register.
On December 23, 2004 (69 FR 76855), December 28, 2004 (69 FR
77642), December 29, 2004 (69 FR 77906) and December 29, 2004 (69 FR
77903), EPA approved, respectively, the District's motor vehicle
refinishing, consumer products, solvent cleaning and portable fuels
container rules.
In this final rule, EPA is approving the States's contingency
measures plans for the Washington area. These contingency measure plans
provide sufficient contingency measures to meet our 3 percent (relative
to baseline emissions for the Washington area) reduction for all of the
relevant years for which the States need contingency measures. Our
basis for determining that the States' contingency measures plans get
the required reductions is discussed in detail in section V.
``Contingency Measures Plans'' of the January 12, 2005 NPR (70 FR at
2087-2095) and in our response to comments under sections III. D.
``Comment on the Contingency Measures Plans'' of this document.
EPA finds that the actions cited in the preceding four paragraphs
fulfilled conditions (1) through (4).
2. Condition 5--Post-1999 ROP
At the time of the January 12, 2005 NPR for the ROP plans and the
February 9, 2005 NPR on the attainment demonstration, EPA had approved
all the control measures except each of the States' AIM coatings rules,
the District's portable fuels container rule, the TCMs submitted with
the 1996-1999 and post-1999 ROP plans and Maryland's and Virginia's
nonregulatory measures SIP revisions.
As noted previously, EPA has approved the States' AIM coatings
rules and the District's portable fuel containers rule. In this action,
EPA is approving the TCMs submitted with the 1996-1999 and post-1999
ROP plans.
On May 2, 2005, the Regional Administrator signed a final rule
approving Maryland's and Virginia's nonregulatory measures SIP
revision. That final action has been published in a recent Federal
Register or shortly will be published in the Federal Register.
In this final rule EPA is approving the States' 1996-1999 and post-
1999 ROP plans. Our basis for determining that the States' ROP plans
get the required post-1996 ROP reductions of 3 percent per year
(averaged over consecutive 3-year periods) is discussed in detail in
section IV. ``Post 1996-1999 and Post 1999-2005 ROP Plans'' of the
January 12, 2005 NPR (70 FR at 2087-2095) and in our response to
comments under sections III. A. ``Comment on the ROP Plans and
NOX Substitution'' and B. ``Comment on the Transportation
Demand Model (TDM) Used in the Plans'' of this document.
EPA finds that the actions cited in the preceding four paragraphs
fulfilled condition (5).
3. Condition 6--RACM
For the reasons cited in our February 9, 2005 NPR, EPA believes
that the States' attainment demonstration in the February 2004 SIP
revisions demonstrated that no remaining RACM remain to be adopted for
the Washington area. We received no adverse comment on this aspect of
the proposal and find that the States have fulfilled condition 5 by
adoption of all the measures necessary to demonstrate attainment as
expeditiously as practicable.
4. Conditions 7 to 9--New Source Review and RACT Thresholds
EPA has approved a SIP revision to implement the severe area NSR
requirements in the Washington area for both VOC and NOX
including an offset ratio of 1.3:1 and a major source applicability
definition of 25 tons/year. See 69 FR 77647, December 28, 2004; 69 FR
56170, September 20, 2004; and 69 FR 48150, August 9, 2004, for the
District, Maryland, and Virginia, respectively. For each of the three
States, EPA has fully approved a SIP revision to implement RACT for
major sources of VOC and NOX with major source size
definition of 25 tons/year. See 69 FR 77647, December 28, 2004; 69 FR
56170, September 20, 2004; and 69 FR 48150, August 9, 2004, for the
District, Maryland, and Virginia, respectively. EPA finds that the
States have fulfilled conditions (7) through (9).
5. Condition 10--VMT Offset SIP
In this final rule EPA is approving the States' VMT Offset SIP
revisions which fulfills condition (10). Our basis for determining that
the States' VMT Offset SIP meets the Act's requirements is discussed in
detail in section VI. ``Vehicle Miles Traveled (VMT) Offset SIP and
Transportation Control Measures (TCMs)'' of the January 12,
[[Page 25693]]
2005 NPR (70 FR at 2098) and in our response to comments under section
III. C. ``Comment on the VMT Offset SIP'' of this document.
6. Condition 11--the Section 185 Penalty Fee SIP
On December 28, 2004 (69 FR 77639) and on December 29, 2004 (69 FR
77909), EPA approved the District's and Virginia's section 185 penalty
fee SIP revisions, respectively, and thus, believes that the District
and Virginia have fulfilled condition (11). To date, Maryland has not
submitted a section 185 penalty fee SIP revision. For the lack of a
section 185 penalty fee SIP revision, EPA is disapproving Maryland's
attainment plan with a protective finding which will allow the MVEBs
contained in Maryland's 2004 SIP revisions to be used for
transportation conformity purposes pursuant to 40 CFR 93.120. That
disapproval is published elsewhere in today's Federal Register.
7. Condition 12--MOBILE6-Based Attainment Plan Budgets
In their February 2004 SIP revisions, the States adopted MOBILE6-
based 2005 attainment year MVEBs. The final version of the 2005
attainment year MVEBs was contained in the February 2004 SIP revisions
identified in Table 2 of this document. These MVEBs are area-wide MVEBs
which cover the entire Washington area.
In this final rule EPA is approving the District's and Virginia's
attainment plan for the Washington area, namely the attainment plans
contained in the February 2004 SIP revisions which subsumes the
resubmitted pre-2001 SIP revisions' attainment plan. We are also
approving the final revision of the 2005 attainment year MVEBs for the
District and Virginia found in the February 2004 SIP revisions
identified in Table 2 of this document. EPA would have been able to
approve Maryland's attainment plan for the Washington area had Maryland
submitted a section 185 penalty fee program. We could not approve the
District's and Virginia's attainment plan without determining that the
three States collectively have adopted enough measures in their SIPs to
demonstrate that the area as a whole will attain the 1-hour ozone NAAQS
by no later than November 15, 2005. Such a finding is necessary because
this is an interstate area and any potential emissions shortfall would
have to be addressed collectively before any State's attainment plan
could be approved.
For the reasons stated in our February 9, 2005 NPR, the recently
approved control measures discussed previously in this final action and
given in our responses in this final action to comments received on
that proposed rule, EPA believes that the States collectively have
adopted enough measures in their SIPs to demonstrate that the area will
attain the 1-hour ozone NAAQS by no later than November 15, 2005 with
the MVEBs found in the February 2004 SIP revisions identified in Table
2 of this document. EPA believes that Maryland, in combination with the
District and Virginia, adopted sufficient measures and have fully
satisfied the emissions reduction requirements necessary to ensure that
attainment of the 1-hour ozone NAAQS will be attained by no later than
November 15, 2005. EPA believes that the States, including Maryland,
have satisfied condition (12) since they have demonstrated that the
attainment plans have been revised to reflect MOBILE6-based MVEBS and
have included the necessary revisions to the modeled demonstration of
attainment and adjunct WOE analyses and have adopted control measures
showing that the SIP continues to demonstrate attainment by November
15, 2005.
Therefore, in this final rule, EPA is approving the District's,
Maryland's, and Virginia's modeled demonstrations of attainment and
adjunct WOE analyses and the District's and Virginia's attainment
plans. EPA is also determining that the attainment plan for Maryland
contains adopted control measures that fully satisfy the emission
reduction requirement relevant to attainment of the 1-hour ozone NAAQS.
EPA is therefore approving the modeled demonstration of attainment and
adjunct WOE analyses contained in Maryland's February 2004 SIP
revisions which includes the analysis based upon photochemical grid
modeling demonstrating timely attainment of the 1-hour ozone standard.
In addition, EPA is therefore issuing Maryland's 2004 SIP revisions'
attainment plan--a protective finding which will allow the MVEBs
contained in Maryland's 2004 SIP revisions to be used for
transportation conformity purposes pursuant to 40 CFR 93.120.
EPA concludes that once we issue our approval of the District's and
Virginia's February 2004 SIP revisions the District and Virginia will
have cured the deficiencies we identified in their pre-2001 SIP
revisions through the various SIP revisions that they have submitted
since April 17, 2003. In the case of Maryland, EPA concludes that all
of the deficiencies except the section 185 penalty fee SIP revision
will have been cured for Maryland's pre-2001 SIP revisions by the
various SIP revisions submitted since April 17, 2003 once we issue our
approval of:
(1) Maryland's 1996-1999 and 1999-2005 ROP plans,
(2) the changes to the 1990 base year inventory, the contingency
measures plan, TCMs,
(3) the modeled demonstration of attainment which includes the
analysis based upon photochemical grid modeling and adjunct WOE
analyses that Maryland's submitted SIP for the Washington area contains
adopted control measures that fully satisfy the emission reduction
requirements to provide for attainment of the 1-hour ozone NAAQS in the
Washington area by November 15, 2005.
III. Comment Received on the ROP plans, VMT Offset SIP and Contingency
Measures Plan and EPA's Response
We received comments adverse to the proposed approval of the ROP,
VMT offset, contingency measures, and attainment plans. A summary of
these adverse comments, and our responses, follows.
A. Comment on the ROP plans and NOX Substitution
Comment: We received a comment asserting that the ROP plans do not
meet the requirement of demonstrating a nine percent reduction in VOC
emissions from 1999 to 2002 and a further nine percent from 2002 to
2005 because the NOX substitution in the ROP plans is
impermissible. The comment asserts that the ROP plans do not meet
section 182(c)(2)(c) of the Act because they do not show that a nine
percent reduction in NOX emissions will result in the same
reduction in ozone concentration as a nine percent reduction in VOC
emissions. The comment claims that EPA's own guidance requires
photochemical grid modeling to show equivalent changes in ozone
concentrations.
The comment also asserts that EPA's reliance on our December 1993
NOX Substitution Guidance is flawed because the plain
language of the Act requires proof of equivalent benefits of
NOX substitution. The comment also asserts that because the
1999-2005 ROP plan relies solely upon NOX reductions the
plans do not meet the requirement of section 182(c)(2)(C) because the
plan does not provide for some percentage of VOC reduction during each
period. The comment claims that the Act requires some non-zero
percentage reduction in VOC emissions for any ROP period.
The comment asserts that the Act requires the ROP plans to have VOC
reductions by November 15, 2002 to
[[Page 25694]]
prevent a net increase in VOC emissions by the 2002 milestone date,
which would offset the progress achieved by the nine percent
NOX reductions. The comment asserts that while the ROP plans
do provide for such reductions, EPA cannot approve the 1999-2005 ROP
plans because they do not provide for all of these reductions by the
2002 milestone date.
Response: NOX Substitution in General. The EPA believes
States have the opportunity to substitute NOX reductions for
required VOC reductions under certain circumstances. The opportunity
for NOX substitution originates in section 182(c)(2)(C) of
the Act which specifically allows NOX emissions reductions
to be substituted for VOC reductions required under section
182(c)(2)(B) for reasonable further progress (RFP), sometimes called
ROP.
EPA issued guidance to the States on how to implement the
NOX substitution provisions for the post-1996 ROP plans in
December 1993 (the December 1993 NOX Substitution Guidance).
The guidance allows States to substitute NOX emission
reductions for VOC emission reductions if that substitution is
consistent with the demonstration of attainment in the SIP. The modeled
demonstration of attainment in the SIP establishes the overall
reductions of VOC and/or NOX reductions required for
attainment in the attainment year. The ROP plan is a tool to phase in
emission reductions between the time the plan is prepared and the
attainment date. When substituting NOX for VOC in post-1996
ROP plans, we are mindful that if too many NOX reductions
are substituted for VOC reductions, the modeled demonstration of
attainment may no longer be valid. Our December 1993 NOX
Substitution Guidance allows substitution on a percentage basis (i.e.,
one percent of NOX emissions reductions can be substituted
for one percent of VOC emissions reductions).
Results of the Application of EPA's December 1993 NOX Substitution
Guidance in the Washington Area. EPA believes that NOX
substitution as applied to the Washington area based on our December
1993 NOX Substitution Guidance yields ROP plans that result
in reductions in ozone concentrations that are better than those which
would have resulted from ROP plans relying upon an equal percent of VOC
reductions.
Applying our December 1993 NOX Substitution Guidance to
the Washington area we substitute one percent of VOC ROP reductions
with one percent of NOX reductions. One percent of
NOX represents a larger quantity of emissions reduction than
does one percent of VOC. This is the case because ROP reductions are
computed from baseline emissions, which are defined in section
182(b)(2)(B) of the Clean Air Act to be ``the total amount of actual
VOC or NOX emissions from all anthropogenic sources in the
area during the calendar year 1990,'' excluding the emissions that
would be eliminated by the programs specified in sections 182(b)(1)(C)
and (D) of the Act. The reduction of baseline emissions by the programs
specified in sections 182(b)(1)(C) and (D) yields the adjusted 1990
base year inventory for each milestone year (which is discussed further
in the January 5, 2005 technical support document (TSD) \10\). The
adjusted 1990 base year inventory is the baseline from which the
necessary ROP reductions are computed. Section 182(c)(2) of the Act
requires that a set percentage of reductions in baseline emissions be
achieved every three years after 1996 until the area's attainment date.
To determine the reductions in tons required for any given ROP
milestone year, the percentage is multiplied by the adjusted 1990 base
year inventory for that milestone year. For example, in the case of the
Washington area, the ``Adjusted 1990 Base Year Inventory for 2005'' for
VOC is 412.1 tons per day (TPD), and, thus, a one percent ROP reduction
equates to 4.1 TPD. For NOX emissions the ``Adjusted 1990
Base Year Inventory for 2005'' is 735.6 TPD, and, thus, a one percent
ROP reduction equates to 7.4 TPD.
---------------------------------------------------------------------------
\10\ Technical Support Document for Approval and Promulgation of
Air Quality Implementation Plans; District of Columbia, Maryland,
and Virginia; Post-1996 Rate-of-Progress Plan, Contingency Measures,
Transportation Control Measures, 1990 Base Year Inventory Changes,
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment
Area, January 5, 2005
---------------------------------------------------------------------------
The States only modeled changes in anthropogenic (man-made)
emissions to see how sensitive the Washington area was to changes in
VOC and to NOX emission reductions. They did not model
changes in biogenic emissions which are VOC emissions from plants. The
air quality model responds to changes in emission between the 1990 base
year inventory and the emissions resulting from the control strategy to
be modeled.\11\
---------------------------------------------------------------------------
\11\ For a summary of the photochemical grid modeling for the
Washington area refer to the February 9, 2005 (70 FR 6796) NPR, and,
for a discussion in depth, see Technical Support Document for
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, and Virginia; Attainment
Demonstration for the Metropolitan Washington, DC Nonattainment
Area, dated January 31, 2005.
---------------------------------------------------------------------------
The States used the results of this sensitivity modeling to
determine that a one ton reduction in NOX emissions within
the Washington area would result in a peak ozone concentration
reduction of 0.114 parts per billion (ppb) (0.114 ppb/ton of
NOX); a similar analysis for VOC emissions indicated that a
one ton reduction in VOC emissions would result in a peak ozone
concentration reduction of 0.029 ppb (0.029 ppb/ton of VOC reduced).
The States concluded that emissions reductions of 34.0 tons/day of VOC
or 8.8 tons/day NOX would have to be required within the
Washington area would reduce ozone concentrations by 1 ppb. That is,
NOX reductions in the Washington area have greater ozone
reducing potential than an equivalent amount of VOC reductions.
Therefore, substituting a percentage of VOC reductions with an equal
percentage of NOX reductions should result in greater ozone
concentration reduction than if the substitution were not done.
The 1990 base year VOC inventory for the Washington area is
comprised of 578.7 TPD of anthropogenic emissions and of 376.5 TPD
biogenic emissions for a total of 955.2 TPD of VOC. The 1990 base year
NOX inventory (all of which is anthropogenic) for the
Washington area is 869.3 TPD of NOX. Given that 39 percent
(376.5/955.2) of the VOC emissions inventory is biogenic emissions, it
is not surprising that reductions in anthropogenic VOC emissions would
show less ozone response than an equal percentage reduction in
anthropogenic NOX emissions. The NOX emissions
are all anthropogenic, and, a one percent reduction in NOX
emissions equates to more tons of emission reduction than does one
percent reduction of the anthropogenic VOC emissions.
This is not to say VOC reductions are not beneficial towards
attainment, but rather that reductions in anthropogenic VOC emissions
are not as effective on a TPD or ROP percentage basis as NOX
reductions. However, the States are free to fashion their attainment
demonstrations and ROP plans to include whatever mix of VOC and
NOX reductions they choose, so long as the plans demonstrate
timely attainment and timely ROP in accordance with the requirements of
the Clean Air Act.
The following table compares a 9 percent reduction in baseline VOC
emissions by each post-1996 milestone year to the chosen levels of
NOX substitution in the ROP plans in terms
[[Page 25695]]
of TPD reductions and of ozone concentration decreases resulting from
these reductions.
Table 4.--Results of NOX Substitution in the Washington Area
----------------------------------------------------------------------------------------------------------------
Milestone year 1999 2002 2005
----------------------------------------------------------------------------------------------------------------
9 percent reduction in VOC baseline emissions (TPD)................ 39 37.8 37.1
Ozone Concentration Change to 9 percent VOC (at 0.029 ppb/ton 1.1 1.1 1.1
rounded to nearest tenth).........................................
Percent NOX reduction Substituted (percent of baseline NOX 8 9 9
emissions)........................................................
Substituted NOX Reductions (TPD)................................... 62.8 68.1 66.2
Ozone Concentration Change to Substituted NOX Reductions ( 0.114 7.2 7.8 7.5
ppb/ton rounded to nearest tenth).................................
----------------------------------------------------------------------------------------------------------------
Technical and Practical Reasons for our December 1993
NOX Substitution Guidance. The modeling performed for
demonstration of attainment basically establishes the relationship
between emission reductions--either of VOC, NOX, or both--
and ozone reductions. This relationship is established for the
attainment year. As noted previously, the modeled attainment
demonstration establishes the overall VOC and/or NOX
emission targets that are consistent with attainment of the standard in
the attainment year. When EPA determines that a demonstration of
attainment is approvable, i.e., it demonstrates that the relevant area
will timely attain the NAAQS, we are making an implicit corollary
conclusion that the mix of VOC and/or NOX control measures
included in the area's demonstration of attainment is sufficient for
timely attainment.
The post-1996 ROP plan requirement is used to phase-in emission
reductions between the time of plan adoption and the attainment date.
EPA does not require modeling of interim years for the purpose of
trying to update the NOX/VOC/ozone relationship for a number
of reasons, including the following that are provided in our December
1993 NOX Substitution Guidance:
a. The strong likelihood that optimum ``exchange'' rates vary from
year to year and across a geographic area as an area's emissions
distribution and atmospheric chemistry change over time;
b. Uncertainty in modeling analyses, particularly when attempting
to ascertain responses from small percentage perturbations in
emissions; and
c. Resource limitations associated with modeling specific control
measures during interim years before attainment dates.
EPA continues to believe in the validity of this guidance and in
the reasoning set forth therein as it relates to NOX
substitution under the post-1996 ROP plan requirements.
Legal Rationale for EPA's December 1993 NOX Substitution
Guidance. The comment focuses exclusively upon the phrase ``result in a
reduction in ozone concentrations at least equivalent to that which
would result from the amount of VOC emission reductions required* * *
'' to the exclusion of remaining language of section 182(c)(2)(C). The
comment would completely ``write-out'' of the statutory text provisions
such as ``in lieu of the demonstration required under subparagraph (B),
a demonstration to the satisfaction of the Administrator * * * '' and
``in accord with such guidance [the substitution guidance required by
section 182(c)(2)(C)] a lesser percentage of VOCs may be accepted as an
adequate demonstration * * * '' (emphases added). In the plain text of
the statute Congress explicitly and affirmatively granted EPA broad
discretion as to what sort of demonstration is acceptable on this
technical and science-driven issue. See, e.g., Sierra Club v. EPA, 294
F.3d at 162-163.
In addition, EPA still stands behind its legal rationale underlying
the interpretation of ``equivalency'' that appears in our December 1993
NOX Substitution Guidance in section 4. In that guidance,
the basis for equivalency is the ability of a given control strategy
(i.e., any particular mix of NOX and VOC emission
reductions) to effect attainment of the ozone NAAQS by the designated
attainment year (December 1993 NOX Substitution Guidance, p.
2). Further, as we previously set out, the NOX emission
reductions credited toward ROP may be limited to the amount of
NOX reductions required in the demonstration of attainment.
In allowing a combination of NOX and VOC controls or the
substitution of NOX emissions reductions for VOC emissions
reductions, section 182(c)(2)(C) of the statute states that the
resulting reductions ``in ozone concentrations'' must be ``at least
equivalent'' to that which would result from the 3 percent VOC
reductions required as a demonstration of ROP under section
182(c)(2)(B).\12\ The second sentence of section 182(c)(2)(C) requires
EPA to issue guidance ``concerning the conditions under which
NOX control may be substituted for [or combined with] VOC
control.'' In particular, the Agency has been authorized by Congress to
address in the guidance the appropriate amounts of VOC control and
NOX control needed, in combination, ``in order to maximize
the reduction in ozone air pollution.'' Further, the Act explicitly
provides that the guidance may permit ROP demonstrations that allow a
lower percentage of VOC emission reductions as long as compensating
NOX reductions are achieved. In light of the language in the
Act evidencing Congressional intent under this subsection to maximize
the opportunity for ozone reductions, EPA believes that section
182(c)(2)(C) confers on the Agency the discretion to select, for
purposes of determining ``at least equivalent'' reductions, a
percentage of NOX emission reductions that is reasonably
calculated to achieve the statutorily required ozone reduction and
attainment progress goals intended by Congress. See Chevron U.S.A.,
Inc. v. NRDC, 467 U.S. 837, 842-44 (1984), Sierra Club v. EPA, 294 F.3d
at 162-163.
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\12\ Equivalent means: ``equal in value, force, amount, effect
or significance,'' or ``corresponding in effect or function; nearly
equal; virtually identical.'' Black's Law Dictionary, Eighth
Edition, 2004. (emphasis added).
---------------------------------------------------------------------------
As we have previously stated, when we determine that a
demonstration of attainment is approvable, we are making an implicit
corollary conclusion that the mix of VOC and/or NOX control
measures included in the area's demonstration of attainment is
sufficient for timely attainment.
As additional evidence that Congress was concerned with getting
more than minimal reductions in ozone concentrations through
substitution, EPA notes that the ROP demonstration described in section
182(c)(2)(B) focuses on reductions of a specified quantity of VOC
emissions per year (similarly, the 15 percent ROP reductions required
for
[[Page 25696]]
moderate ozone nonattainment areas focuses on reductions of that
specific quantity of VOC emissions per year). By contrast, the
alternative ROP demonstration in section 182(c)(2)(C) allows flexible
VOC/NOX emission reduction strategies, but only so long as
the overall quantitative reduction in ozone concentrations is
equivalent to the amount which, for serious ozone nonattainment areas,
Congress initially determined must be met (i.e., the ozone
concentrations achieved by VOC reductions of 3 percent per year) in
order to ensure expeditious progress towards attainment. In this regard
the House Committee Report states: ``NOX reductions may not
be substituted for VOC reductions in a manner that delays attainment of
the ozone standard or that results in lesser annual reductions in ozone
concentration than provided for in the demonstration of attainment.''
H.R. Rep. No. 490, 101st Cong., 2d Sess. 239 (1990).
Additional support for EPA's view that our December 1993
NOX Substitution Guidance's focus on the NOX and
VOC reductions necessary for attainment is consistent with
Congressional intent is found in section 182(g), which waives the
requirement for a milestone demonstration for a milestone that
coincides with an area's attainment date for an area that attains the
standard by that date.
EPA disagrees with the comment that EPA's ``Guidance on the Post-
1996 Rate-of-Progress Plan and Attainment Demonstration'' (corrected
version as of 2/18/94) specifies a different test, that is, a modeled
showing of equivalency, than does EPA's December 15, 1993
NOX Substitution Guidance. In section 4.1 of the ``Guidance
on the Post-1996 Rate-of-Progress Plan and Attainment Demonstration,''
EPA restated the equivalency test set forth in sections 2 and 3 of our
December 1993 NOX Substitution Guidance.
With regard to the photochemical grid modeling. section 4.1 of the
``Guidance on the Post-1996 Rate-of-Progress Plan and Attainment
Demonstration'' reads:
Section 182(c)(2)(C) states that actual NOX emission
reductions which occur after 1990 can be used to meet post-1996
emission reduction requirements, provided that such reductions meet
the criteria outlined in EPA's December 15, 1993 NOX
Substitution Guidance. The condition for meeting the rate-of-
progress requirement is that the sum of all creditable VOC and
NOX emission reductions must equal 3 percent per year
averaged over each applicable milestone period. The percent VOC
reduction is determined from the VOC rate-of-progress inventory and
the percent NOX reduction is determined from the
NOX rate-of-progress inventory. In addition, the overall
VOC and NOX reductions must be consistent with the area's
modeled attainment demonstration. In other words, the NOX
emission reductions creditable toward the rate-of-progress plan
cannot be greater than the cumulative reductions dictated by the
modeled attainment demonstration.
This portion of the 1994 guidance merely summarizes, and does not
alter, the guidance provided in our December 1993 NOX
Substitution Guidance. With regard to the photochemical grid modeling,
section 2 of our December 1993 NOX Substitution Guidance
specifies that the provision for NOX substitution recognizes
that a VOC-only control pathway may not be the most effective approach
for effecting attainment in all areas. Consequently, NOX
reductions are placed on a near equal footing with VOC through
substitution. The December 1993 NOX Substitution Guidance
establishes two conditions pursuant to both the substitution and RFP
provisions in the Act. The first condition requires that control
strategies incorporating NOX emission reduction measures
must demonstrate that the ozone NAAQS will be attained within time
periods mandated by the Act. This condition reflects the Title I
provision for photochemical grid modeling demonstrations (section
182(c)). The second condition, addressed in section 3 of the guidance,
maintains the requirement for periodic emission reductions in order to
realize progress toward attainment. Flexibility is introduced by
allowing VOC and NOX reductions rather than VOC reductions
alone. A third condition exists in which the periodic emission
reductions must be consistent with the modeled demonstration of
attainment.
In both cases, the guidance refers to the photochemical grid
modeling that is necessary for the modeled demonstration of attainment
and that establishes the NOX/VOC/ozone relationship at the
attainment date. Neither our December 1993 NOX Substitution
Guidance nor the ``Guidance on the Post-1996 Rate-of-Progress Plan and
Attainment Demonstration'' require a modeled demonstration of
equivalence for an interim period for the reasons discussed previously.
The 1999-2005 ROP Plans Provide for Any Required NOX and
VOC Reductions by 2002 in a Timely Manner. Section 182(c)(2)(C) of the
Act states that ``[t]he revision may contain, in lieu of the
demonstration required under subparagraph (B), a demonstration to the
satisfaction of the Administrator that the applicable implementation
plan, as revised, provides for reductions of VOCs and [NOX]
(calculated according to the creditability provisions of subsection
(b)(1)(C) and (D) of this section) * * * that would result in reduction
in ozone concentrations equivalent to that which would result from the
amount of VOC reductions required under subparagraph (B).'' The salient
provisions of the demonstration of ``subparagraph B'', that is, section
182(c)(2)(B) of the Act, are: (1) The requirement to reduce baseline
emissions by an average of 3 percent per year averaged over each three-
year period after 1996, and (2) the reductions creditable towards ROP
must meet the same creditability requirements as for the 15 percent
reduction by 1996 requirement of section 182(b)(1)(A).
Our post-1996 guidance implements section 182(c)(2)(B) by requiring
that the area demonstrate that milestone year emissions with the ROP
control strategies will be less than the target level of emissions.\13\
Because the target level is determined by reducing 1990 baseline
emissions and because the future year projected inventory with all the
ROP control strategies must reflect estimated growth in emissions
activities, this demonstration accounts for growth between 1990 and the
milestone year. Section 182(c)(2)(B) does not contain the phrase
``accounting for growth after 1990'' which is found in section
182(b)(1)(A). Nevertheless, EPA has inferred that the 3 percent
reduction requirement of section 182(c)(2)(B) must be net of growth.
EPA's interpretation is sound when considering relevant provisions of
the statute as a whole because: (1) Section 182(b)(1)(A) contains a
statement, ``accounting for growth after 1990,'' of Congressional
intent regarding ROP and growth under section 182; and (2) the last
sentence of section 182(c)(2)(B) allows creditable VOC reductions
between 1990 and 1996 that are in excess of those needed to meet the 15
percent reduction by 1996 requirement to count towards post-1996 ROP.
Reductions under section 182(b)(1)(A) are excess only to the extent
they are net of growth.
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\13\ ``Guidance on the Post '96 Rate-of-Progress Plan (RPP) and
Attainment Demonstration'' (Corrected version of February 18, 1994).
---------------------------------------------------------------------------
EPA believes that in section 182(c)(2)(C) Congress granted EPA even
greater discretion as to the composition of the demonstration required
by section 182(c)(2)(C). As noted previously in other portions of this
response, section 182(c)(2)(C) allows a post-1996 ROP demonstration
``in lieu of'' that required under section 182(c)(2)(B). This
demonstration must be ``to the
[[Page 25697]]
satisfaction of EPA,'' and allows that a ``lesser percentage of VOCs
may be accepted'' in accordance with the guidance that the EPA was
required to issue.
Thus, EPA was granted discretion regarding the content of the ROP
demonstration allowable under section 182(c)(2)(C). For instance,
section 182(c)(2)(C) does not use the phrase ``accounting for growth
after 1990.'' However, EPA's December 1993 NOX Substitution
Guidance is based upon the use of the future inventories used in the
photochemical grid modeling to account for growth in emissions related
activities, and thus reflect emissions reductions that are net of
growth. Furthermore, section 182(c)(2)(C) does not require that the
plan providing for reductions of VOC and NOX provide for
reductions in ``baseline emissions.'' EPA's guidance for demonstrations
of ROP under section 182(c)(2)(C) reflects many of the same features in
our guidance implementing section 182(c)(2)(B): A ROP plan calculates
target levels by reducing 1990 baseline emissions by a set percentage
for each ROP period; and, EPA chose to require that NOX
substitution be net of growth.\14\ EPA believes that these features are
reasonable in order to address a scenario where the demonstration of
post-1996 ROP for an area for one ROP milestone year, say 1999, relies
a mixture of VOC and NOX control and then relies upon all
VOC reductions for the subsequent 2002 milestone. EPA believes that the
claim that the Act requires some non-zero percentage of reductions in
VOC baseline emissions in ROP demonstrations pursuant to section
182(c)(2)(C) or provides, that such a percentage reduction net of
growth requirements required by section 182(c)(2)(B) is not supported
by the plain text of the statute. The Act allows NOX
substitution with lesser VOC reductions and doesn't prohibit 9 percent
NOX substitution and zero percent VOC. Therefore, we believe
that we can approve a ROP plan which provides for 9 percent
NOX reductions and no specific level of VOC reductions.
EPA's interpretation is reasonable given the broad discretion afforded
by section 182(c)(2)(C) on these matters.
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\14\ Section 1.1 of ``Guidance on the Post '96 Rate-of-Progress
Plan (RPP) and Attainment Demonstration'' (Corrected version of
February 18, 1994).
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EPA's December 1993 NOX Substitution Guidance focuses on
progress towards reducing the levels of NOX and VOC needed
for attainment. In that guidance, EPA caps the NOX emission
reductions to be consistent with those in the modeled demonstration of
attainment.
For the reasons discussed previously in this response, EPA believes
that the Act allows approval of a ROP Plan even when a ROP milestone is
met with out any reduction in VOC baseline emissions for the milestone
year. The Act allows EPA to accept a ``lesser percentage of VOC.'' EPA
believes that ``lesser percentage'' can mean, consistent with the plain
language of the Act, any percentage less than the average 3 percent per
year prescribed by section 182(c)(2)(B), including zero percent. EPA
previously has approved ROP plans under section 182(c)(2) that relied
solely upon NOX reductions without regard to VOC reductions.
See 69 FR 42880, July 19, 2004 (proposed at 69 FR 25348, May 6, 2004)
and 64 FR 13348, March 18, 1999 (proposed by 63 FR 45172, August 25,
1998).
As to the growth in VOC emissions ``offsetting'' the 9 percent
NOX reductions, the comment fails to realize that a ROP plan
meeting the 9 percent reduction requirement for some milestone year,
say 1999, prior to the attainment date, say 2005, using only VOC
reductions, would not be required to offset any growth in
NOX emissions. EPA believes that such a ROP plan would meet
the requirements of section 182(c)(2)(B), even if the area needed
significant NOX reductions for attainment, as long as all
the reductions were creditable and the ROP plan otherwise met the Act
and EPA's guidance. Nothing in section 182(c)(2)(C) requires the
converse--that the ROP plan must ensure that a 9 percent NOX
reduction is not ``offset'' by changes in VOC emissions.
It is worthwhile to note that the 1999-2005 ROP plans in the
February 2004 SIP revisions do in fact provide for a reduction in VOC
emissions. The 1999-2005 ROP plans in the February 2004 SIP revisions
project that controlled VOC emissions by November 15, 2002 will be
372.3TPD. This is significantly less than both the 1990 VOC ROP
Inventory of 578.7 TPD and the 1990 baseline emissions, reduced by
reductions from noncreditable measures (the ``Adjusted 1990 Base Year
Inventory for 2002''), of 420.5 TPD. The 1999-2005 ROP plans in the
February 2004 SIP revisions project that controlled VOC emissions by
November 15, 2005 will be 331.6 TPD. This is significantly less than
the 1990 baseline emissions, reduced by reductions from noncreditable
measures (the ``Adjusted 1990 Base Year Inventory for 2005''), of 412.1
TPD.\15\ Therefore, the 1999-2005 ROP plans do provide for VOC
reductions by the 2002 and 2005 milestone years, and, provide for a net
reduction in VOC emissions by these dates. However, EPA has concluded
that the States' 1999-2005 ROP plans meet section 182(c)(2) of the Act
because the States' 1999-2005 ROP plans demonstrate a 9 percent
reduction in baseline NOX emissions by 2002 and a further 9
percent reduction in baseline NOX emissions by 2005 and can
be approved based upon these reductions in baseline NOX
emissions.
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\15\ Table IX. A-1 ``Demonstration of ROP'' and 2002 and Table
V. D-3 ``2005 ROP Target Levels'' of ``Technical Support Document
for Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, and Virginia; Post-1996 Rate-of-
Progress Plan, Contingency Measures, Transportation Control
Measures, 1990 Base Year Inventory Changes, and VMT Offset SIP for
the Metropolitan Washington, DC Nonattainment Area,'' dated January
5, 2005.
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EPA has concluded that the States' NOX measures are
sufficient to achieve a 9 percent reduction in NOX baseline
emissions by November 15, 2002. Because ROP is demonstrated through the
use of a 9 percent reduction in NOX emissions by 2002, EPA
believes that there is no requirement for the plan to have a target
level of VOC emissions for the 2002 milestone year for the reasons
discussed previously in this response. Therefore, EPA believes that the
plan cannot be deficient for not achieving any set reduction in VOC
baseline emissions (net of growth) by November 15, 2002--no such
requirement exists.
B. Comment on the Transportation Demand Model (TDM) Used in the Plans
Comment: We received a comment asserting that the TDM used to
project the mobile source emissions does not properly predict traffic
volumes in the Washington area on roadways. The comment alleges that
the inaccuracies are significant enough that the results cannot form a
basis for predicting future motor vehicle emissions or the emission
cuts needed to meet ROP targets, or to show that the SIP contains
sufficient transportation control measures to offset any growth in
emissions from growth in vehicle miles traveled or numbers of vehicle
trips in the nonattainment area.
Response: EPA disagrees with this comment. EPA's conformity
regulation requires that for serious, severe, and extreme ozone
nonattainment areas (if their metropolitan planning area contains an
urbanized area population over 200,000), the estimates of regional
transportation-related emissions, which support conformity
determinations, must be made at a minimum using network-based TDMs
according to
[[Page 25698]]
procedures and methods that are available and in practice, and which
are supported by current and available documentation. 40 CFR 93.122(b).
These network-based travel models must at a minimum satisfy the certain
requirements, including a requirement that network-based travel models
must be validated against observed counts (peak- and off-peak, if
possible) for a base year that is not more than 10 years prior to the
date of the conformity determination. Model forecasts must be analyzed
for reasonableness and compared to historical trends and other factors,
and the results must be documented. 40 CFR 93.122(b)(1)(i); 62 FR
43793, August 15, 1997.
Even though this regulation applies to network-based travel models
used for conformity determinations, it represents EPA's determination
as to acceptable practices and was issued through notice and comment
rulemaking. The conformity regulation's adequacy provisions (40 CFR
93.118(e)) require that MVEBs in control strategy SIP revisions be the
product of interagency consultation between air quality planning
agencies and transportation planning agencies. Therefore, EPA believes
that it is reasonable to assume that the transportation planning
agencies will want the MVEBs to be developed using the same network
models currently in use at the time the MVEBs are developed. This is
indeed the case for the February 2004 SIP revisions. The TDM model used
for development of the February 2004 SIP revisions was based upon the
execution of the COG/TPB's Version 2.1/TP+ travel forecasting
process.\16\ See page B-10 of Appendix B to the February 2004 SIP
revisions.\17\
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\16\ COG is the Metropolitan Washington Council of Governments.
The TPB is the National Capital Region Transportation Planning
Board.
\17\ The ``Version 2.1/TP+'' model is also called Version 2.1/
TP+, Release C in ``COG/TPB Travel Forecasting Model Version 2.1/
TP+, Release C Calibration Report,'' Metropolitan Washington Council
of Governments, December 23, 2002.
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EPA believes that only one of the six modeling criteria of section
93.122 of the conformity rule is implicated by the comment. This
criterion is that validation must be against observed counts for base
year not more than 10 years prior to conformity determination. The
comment does not allege that the validation of the model was made
against data that was more than 10 years old. Rather, the commenter
alleges the model results are not ``reasonable.''
EPA disagrees with this comment, and, we specifically disagree with
certain factual allegations made therein. For instance, on page 15 of
the supporting documentation to the comment, the commenter claimed that
``the [Transportation Research Board (TRB) review] committee found that
8 of 33 facility type traffic volume classes had percent Root Mean
Square Error (RMSE) values that were unacceptable.'' The TRB review
committee actually stated that ``for 8 of 33 facility type traffic
volume classes, RMSE values were marginally acceptable * * *'' \18\ EPA
concludes that the claim that the review committee found the model
results unacceptable is not borne out by the factual record.
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\18\ Letter from David J. Forkenbrock, Chair, Transportation
Research Board's Committee for Review of Travel Demand Modeling by
the Metropolitan Washington Council of Governments to Peter Shapiro,
Chairman, National Capital region Transportation Planning Board,
dated, September 3, 2003.
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The supporting documentation for this comment asserted that the
TDMs on average underestimated traffic on the 20 highest volume freeway
links by 26 percent, and on the 10 highest volume arterials by 41
percent as demonstrated by ``the comparison of simulated to observed
traffic data for over 11,000 links grouped by traffic volume class and
facility type.'' The same claim was made to the TPB during the
development of the FY 2005-2010 Transportation Improvement Program for
the Washington Metropolitan Region. The TPB responded by concluding
that the analysis in the comment did not support the conclusion.
Specifically the TPB stated: (1) That the commenter did not understand
the TPB's data upon which the conclusion was made; (2) that there are
many factors which lead to differences between observed data and model
outputs; (3) that the RMSE for the model declines with volume, i.e,
there is less error associated with higher volumes; (4) that the ``20
highest freeway links'actually represent only five roadway segments in
the region because freeway links are directionally coded and these
links are split between interchanges resulting in four links per these
five highway segment; (5) that the comment focuses only on a few values
at the high-end of the volumes ranges, but draws the mistaken
conclusion that the model underestimates volumes for the regional
highway network links with the highest ``observed'' volumes; (6) that
the ``observed date'' for the 11,000 link segments of the regional
highway network, do not represent actual traffic counts but rather
represent factored estimates of average daily traffic volumes based on
continuous traffic counts taken at a very limited number of permanent
counting stations, and; (7) that ``observed'' volumes on the ``20
highest freeway links'' are either factored estimates of average daily
or are ``uncounted manual'' estimates.\19\
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\19\ ``FY 2005-2010 Transportation Improvement Program for the
Washington Metropolitan Region National Capital Region,''
Transportation Planning Board and the Metropolitan Washington
Council of Governments, dated November 17, 2004, pp. 260 to 262.
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EPA notes that the supporting documentation cited by the comment is
for the COG/TPB Travel Forecasting Model, Version 2.1D Draft
50. The TDM model actually used for development of the
February 2004 SIP revisions actually was the COG/TPB's Version 2.1/TP+
travel forecasting process. See Appendix B to the February 2004 SIP
revisions, p. B-10. Version 2.1/TP+ model was validated using year 2000
data. See ``COG/TPB Travel Forecasting Model Version 2.1/TP+, Release C
Calibration Report,'' Metropolitan Washington Council of Governments,
December 23, 2002, p. 9-1. The conclusion in the validation report was
that VMT is shown to be overestimated by about 8 percent, screenlines
estimates are high by 17 percent overall, and the RMSE is about 51
percent, but the model performs well in other capacities (transit
estimation, restrained speeds, trip distribution pattern. COG/TPB's
Version 2.1 travel forecasting process represented the continuation of
a multi-year models development plan that was formulated in FY-93 in
response to the Federal Clean Air Act Amendments of 1990 and the
Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991. Id.,
p. 1-1. For instance, the validation report states that the ratio of
estimated to observed transit trips was 0.95 which means that overall
the TDM predictions were only 5 percent less than the observed values.
For transit trips, the ratio was 0.93 or 7 percent less. The overall
ratio of estimated to observed VMT for the entire model domain was 1.08
which is equivalent to the TDM over-predicting VMT by 8 percent. For
the Washington area, the TDM over predicted VMT by 9 percent overall.
Overall, the Version 2.1/TP+ TDM model used for the February 2004 SIP
revisions over predicted VMT by facility type by 13 percent. See ``COG/
TPB Travel Forecasting Model Version 2.1/TP+, Release C Calibration
Report,'' Metropolitan Washington Council of Governments, December 23,
2002, Ex. 9-1 through 9-12.
While the Version 2.1/TP+ TDM model under-predicts VMT on some
highway segments it over predicts on most others. EPA believes that the
claim made in the comment that the TDM
[[Page 25699]]
systematically underestimates traffic and therefore that the SIP
revisions ``necessarily understate emission reductions needed'' to
achieve required rates of progress, attainment or the VMT offset
requirements is not supported by the facts. In actuality, the model
generally overestimated VMT, as we have noted.
In a letter to the TPB, the TRB noted that in the four decades of
experience with the use of travel demand models in transportation
planning there are few universally accepted guidelines or standards of
practice for these models and their application, and any assessment of
these models, their performance, and the current state of
transportation demand modeling practices relies primarily upon
professional experience and judgement.\20\ Given that TDMs are
constantly undergoing refinement, and that models can always be
improved, EPA believes we need not hold up the approval process until a
hypothetical ``best model'' is eventually, if ever, developed. For
these reasons, EPA disagrees with the comment. We conclude that the TDM
model used in the SIP revisions is acceptable and that the SIP
revisions can be approved.
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\20\ Letter from David J. Forkenbrock, to Christopher Zimmerman,
Chairman, National Capital Region Transportation Planning Board,
dated, May 10, 2004.
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C. Comment on the VMT Offset SIP
Comment: We received a comment asserting that the SIP revisions are
deficient because they do not contain sufficient TCMs to offset growth
in emissions from growth in VMT or in trip numbers. The comment alleges
that the Act requires the SIP to offset any growth in emissions due to
growth in VMT or in trip numbers be offset rather than a showing that
overall motor vehicle emissions are expected to decline. The comment
implies that the VMT offset provisions apply to both VOC and
NOX emissions.
Response: The VMT Offset Provision Applies Only to VOC Increases.
As an initial matter EPA believes that the VMT offset provision applies
only to increases of VOC emissions. As explicitly stated in the
proposed rulemaking for the General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990, 57 FR 13498 at 13521,
Apr. 16, 1992, EPA has consistently interpreted the VMT offset
requirements of the Act, set forth in section 182, to apply only to VOC
emissions. See, e.g., 60 FR 38718 at 38721, July 28, 1995; 60 FR 48896
at 48898-48899, September 21, 1995. As we explain, EPA disagrees with
the commenter's assertion that the VMT offset SIP revisions are
deficient because these revisions do not address growth in
NOX emissions.
Section 182(d)(1)(A) of the Act provides that ``any growth in
emissions'' from growth in VMT must be offset. EPA believes that in the
plain language of the Act Congress intended that this offset
requirement be limited to VOC emissions. First, section 182(d)(1)(A)'s
requirement that a State's adopted TCMs comply with the ``periodic
emissions reduction requirements'' of subsections 182(b) and (c) the
Act, indicates that the VMT offset SIP requirement is VOC-specific, and
NOX emissions are not required to be offset.
Section 182(c)(2)(B), which requires reasonable further progress
demonstrations for serious ozone nonattainment areas, provides that
such demonstrations will result in VOC emissions reductions; thus, the
only ``periodic emissions reduction requirement'' of section
182(c)(2)(B) is VOC-specific. In fact, it is only in section
182(c)(2)(C)--a provision not referenced in section 182(d)(1)(A)--that
Congress provided States the authority to submit demonstrations
providing for reductions of VOC and NOX emissions in lieu of
the SIP otherwise required by section 182(c)(2)(B).
Moreover, the 15 percent periodic reduction requirement of section
182(b)(1)(A)(i) applies only to VOC emissions, while only the separate
``annual'' reduction requirement applies to both VOC and NOX
emissions. We believe that Congress did not intend the terms ``periodic
emissions reductions'' and ``annual emissions reductions'' to be
synonymous, and that the former does not include the latter. In section
176(c)(3)(A)(iii) of the Act, Congress required that conformity SIPs
``contribute to annual emissions reductions'' consistent with section
182(b)(1) (and thus achieve NOX emissions reductions), but
did not cross reference the 15 percent periodic reduction requirement.
Conversely, section 182(d)(1)(A) refers to the periodic emissions
reduction requirements of the Act, but does not refer to annual
emissions reduction requirements that require NOX
reductions. Consequently, we interpret the requirement that VMT Offset
SIPs comply with periodic emissions reduction requirements of the Act
to mean that only VOC emissions are subject to section 182(d)(1)(A) in
severe ozone nonattainment areas.
Finally, we note that where Congress intended section 182 ozone SIP
requirements to apply to NOX as well as VOC emissions, it
specifically extended applicability to NOX. Thus, references
to ozone or emissions in general in section 182 do not on their own
implicate NOX. For example, in section 182(a)(2)(C), the Act
requires States to issue preconstruction permits for new or modified
stationary sources ``with respect to ozone.'' Congress clearly did not
believe this reference to ozone alone was sufficient to subject
NOX emissions to the permitting requirement, since it was
necessary to enact section 182(f)(1) of the Act, which specifically
extends the permitting requirement to major stationary sources of
NOX. Since section 182(d)(1)(A) does not specifically
identify NOX emissions requirements in addition to the VOC
emissions requirements identified in the provision, EPA does not
believe States are required to offset NOX emissions from VMT
growth in their section 182(d)(1)(A) SIPs.
The VMT Offset Provision in Section 182 Does Not Apply as Claimed
in Comments. EPA has consistently explained that the purpose of the VMT
offset requirement is to maintain motor vehicle VOC emissions beneath a
``ceiling level'' established through modeling of mandated
transportation-related controls, so that VOC emission reductions
resulting from such measures are not cancelled out by growth in motor
vehicle emissions. See, e.g., 57 FR 13498 at 13521-13523, April 16,
1992; 61 FR 51214, October 1, 1996; 61 FR 53624, October 15, 1996; and
66 FR 57247 at 57247-57248, November 14, 2001.
The VMT offset provision of section 182(d)(1) of the Act requires
that states submit by November 15, 1992 specific enforceable TCMs and
transportation control strategies to offset any growth in emissions
from growth in VMT or number of vehicle trips and to attain reductions
in motor vehicle emissions sufficient, in combination with other
measures, to allow total emissions in the sever nonattainment area to
comply with the ROP and attainment requirements of the Act.
As discussed in the General Preamble, EPA believes that section
182(d)(1)(A) of the Act requires the State to ``offset any growth in
emissions'' from growth in VMT, but not, as the comment suggests, all
emissions resulting from VMT growth. See 57 FR at 13522-13523. As we
explained in response to similar comments objecting to our application
of the General Preamble's approach when approving other SIPs, the
purpose is to prevent a growth in motor vehicle emissions from
canceling out the emission reduction benefits of the federally mandated
programs in the Act.
[[Page 25700]]
See 60 FR at 48898; 60 FR at 38720-38721. The baseline for emissions is
the 1990 level of vehicle emissions and the subsequent reductions in
emission levels required to reach attainment with the NAAQS for ozone.
Thus, the anticipated benefits from the mandated measures such as the
Federal motor vehicle pollution control program, lower Reid vapor
pressure, enhanced inspection and maintenance and all other motor
vehicle emission control programs are included in the ceiling line
calculations used by the States in the VMT Offset SIP. Chapter 10 of
the February 2004 SIP revisions, shows how emissions will decline
substantially and will not begin to rise over the ceiling established
by the mandated controls. Emission reductions are expected every year
through the year 2005.
Our approach is consistent with the purposes Congress had in
enacting section 182(d)(1)(A). The ceiling line level decreases from
year to year as the state implements various control measures, and the
decreasing ceiling line prevents an upturn in mobile source emissions.
Dramatic increases in VMT that could wipe out the benefits of motor
vehicle emission reduction measures will not be allowed and will
trigger the required implementation of TCMs. This prevents mere
preservation of the status quo, and ensures emissions reductions
despite an increase in VMT or number of vehicle trips. To prevent
future growth changes from adversely impacting emissions from motor
vehicles, states are required under section 182(c)(5) of the Act to
track actual VMT and to periodically demonstrate that the actual VMT is
equal to or less than the projected VMT, with TCMs required to offset
VMT that is above the projected levels. Under the commenter's approach
to section 182(d)(1)(A), the States would have to offset VMT growth
even while vehicle emissions are declining. Although the statutory
language could arguably be read to require offsetting any VMT growth,
EPA believes that the language can also be reasonably and appropriately
read so that only actual emissions increases resulting from VMT growth
need to be offset. The statute by its own terms requires offsetting of
``any growth in emissions from growth in [VMT].'' 42 U.S.C.
7511a(d)(1). EPA has reasonably and consistently interpreted the VMT
offset provision of the Act to require that states adopt, and submit to
EPA for approval into their SIPs, TCMs or transportation control
strategies sufficient to at least offset ``growth in [VMT] or numbers
of vehicle trips,'' but only if the VMT growth would result in actual
emissions increases from mobile sources. Our consistent historic
interpretation of the language of section 182(d)(1)(A) is entitled to
deference. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-44 (1984).
See also U.S. v. Mead, 533 U.S. 218, 227-35 (2001).
Given the susceptibility of the statutory language to these two
alternative interpretations, EPA believes it is the Agency's role in
administering the statute to take the interpretation most reasonable in
light of the practical implications of such interpretation, and the
purposes and intent of the statutory scheme as a whole. In the context
of the intricate planning requirements Congress established in title I
to bring areas towards attainment of the ozone standard, and in light
of the absence of any discussion of this aspect of the VMT Offset
provision by the Congress as a whole (either in floor debate or in the
Conference Report), EPA has consistently concluded that the appropriate
interpretation of section 182(d)(1)(A) requires offsetting VMT growth
only when such growth would result in actual emissions increases.\21\
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\21\ As noted previously, EPA has applied this interpretation
since the enactment of the 1990 amendments to the Clean Air Act
adding section 182(d)(1)(A), and in response to adverse comments
submitted on other rulemaking actions. See, e.g., 60 FR 48898 (final
approval of Illinois' SIP) and 60 FR 39720-39721 (final approval of
Indiana's SIP); 66 FR 57247 at 57247-57248, November 14, 2001 (final
approval of Texas SIP).
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When growth in VMT and vehicle trips would otherwise cause an
upturn in emissions from motor vehicles, this upturn must be prevented.
The emissions level at the point of upturn becomes a ceiling on motor
vehicle emissions. This requirement applies to projected emissions in
the years between the submission of the SIP revision and the attainment
demonstrations. The ceiling level is defined, therefore, up to the
point of upturn, as motor vehicle emissions that would occur in the
ozone season of that year, with VMT growth, if all measures for that
area in that year were implemented by the Act. When this curve begins
to turn up due to growth in VMT or vehicle trips, the ceiling becomes a
fixed value. The ceiling line would include the effects of federal
measures such as new motor vehicle standards, phase II Reid vapor
pressure (RVP) controls, and reformulated gasoline, as well as the
statutorily-mandated SIP requirements. For the reasons outlined in the
February 9, 2005 NPR (70 FR 2085), EPA believes that the February 2004
SIP revisions fulfill the first element.
Under EPA's approach, the second element, which requires the VMT
offset SIP to comply with the 15 percent ROP requirement of the Act,
was due on November 15, 1993 for areas initially classified as severe
nonattainment. November 15, 1993 is the same date on which the 15
percent ROP SIP itself was due under section 182(b)(1) of the Act. For
areas initially classified as severe nonattainment, EPA believes it was
reasonable to extend the deadline for this VMT offset element from
November 15, 1992 to the date on which the entire 15 percent SIP was
due, as this allows states to develop the comprehensive strategy to
address the 15 percent requirement and assure that the TCMs elements
required under section 182(d)(1)(A) are consistent with the remainder
of the 15 percent demonstration. Indeed, EPA believes that only upon
submittal of the broader 15 percent plan can a state have had the
necessary opportunity to coordinate its VMT strategy with its 15
percent plan. In the case of the Washington area, the second element
has been fulfilled because the 15 percent ROP plans were approved long
before the area was reclassified to severe nonattainment. See 64 FR
42629, August 5, 1999; 65 FR 44686, July 19, 2000; and, 65 FR 59727,
October 6, 2000.
The third element, which requires the VMT offset SIP to comply with
the post-1996 ROP and attainment requirements of the Act, was due on
November 15, 1994, the statutory deadline for those broader
submissions. For areas initially classified as severe nonattainment,
EPA believes it is reasonable to similarly extend the deadline for this
VMT element to the date on which the post-1996 ROP and attainment SIPs
are due for the same reason it is reasonable to extend the deadline for
the second element.\22\ First, it is arguably impossible for a state to
make the showing required by section 182(d)(1)(A) for the third element
until the broader demonstrations have been developed by the State.
Moreover, allowing states to develop the comprehensive strategy to
address post-1996 ROP plans and attainment by providing a fuller
opportunity to assure that the TCMs elements comply with the broader
ROP plans and attainment demonstrations, will result in a better
program for reducing emissions in the long term. In the case of the
Washington area, EPA believes the third element has
[[Page 25701]]
been fulfilled for the reasons outlined in the February 9, 2005 NPR (70
FR 2085) and this document because EPA is approving the 1996-1999 and
1999-2005 ROP plans and the modeled demonstration of attainment. EPA
thus finds that the SIPs contain all measures necessary to provide for
timely attainment and ROP, and therefore that no additional TCMs will
be necessary to meet those requirements.
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\22\ In the case of the Washington area, the post-1999 portions
of the post-1996 ROP plan required under section 182(c)(2) were in
fact due on the same as the VMT offset SIP. See 68 FR 3410, January
24, 2003.
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D. Comment on the Contingency Measures Plans
Comment 1: We received a comment asserting that EPA cannot approve
the contingency measures which were identified in the SIP revisions to
address the Washington area's the failure to attain by November 15,
1999. The comment claims that, because these measures in the plan
required further action by the States, these contingency measures do
not meet the CAA's requirement that the measures take effect without
further action by the State or EPA after the failure to attain. The
comment also claims the contingency measures do not meet EPA's own
guidance which requires contingency measures to achieve reductions no
later than the year after the one in which the failure is identified
because these contingency measures identified by the SIP revision were
not implemented until 5 to 6 years after the failure to attain.
Response 1: EPA disagrees with the comment that the contingency
plan for the failure of the Washington serious ozone nonattainment area
to attain by November 15, 1999 cannot be approved. The comment does not
address the factual situation for the Washington area where the SIP did
not contain a contingency measures plan consisting of fully adopted
measures until the submission of the February 2004 SIP revisions and
submission of the various adopted rules identified as the contingency
measures that is the contingency measures implemented in response to
the failure of the Washington area to attain the 1-hour ozone NAAQS by
November 15, 1999.
Prior to our January 12, 2004 NPR (70 FR 2085), EPA had recognized
that the SIP of each of the Washington area States did not contain
contingency measures to address the failure to attain (FTA) the ozone
NAAQS by November 15, 1999 (the ``contingency measures for 1999 FTA'').
In the January 12, 2004 NPR (70 FR at 2087), we provided a brief
history of the severe area SIP revisions by noting that EPA had
previously conditionally approved the post-1996 ROP plans and those
versions of the attainment plans submitted during 1998 and 2000,
contingent upon the States fulfilling commitments they made to submit
the additional elements required of SIPs for a severe area within one
year. One of the conditions for approval in the April 17, 2003 final
conditional approval (68 FR 19106) was that the States had to revise
the Washington area severe attainment plan to include a contingency
plan containing those adopted measures that qualify as contingency
measures to be implemented for the failure of the Washington area to
attain the one-hour ozone standard for serious areas by November 15,
1999; that is, the States had to submit SIP revisions to add the
contingency measures for 1999 FTA. 68 FR at 19106. In the NPR for the
April 17, 2003 final conditional approval, EPA noted that the States in
the Washington area had committed to submit to the EPA those measures
that qualify as contingency measures due to the failure of the
Washington area to attain the ozone standard for serious areas by
November 15, 1999. 68 FR at 5248, February 3, 2003. In the February 3,
2003 NPR, EPA also recounted that our January 3, 2001 approval (66 FR
586) of the post-1996 ROP plans and those versions of the attainment
plans submitted during 1998 and 2000 had been vacated by the Court of
Appeals. The Court of Appeals determined that EPA lacked the authority
to approve attainment plan and ROP SIPs without contingency measures.
Sierra Club v. Whitman, 294 F.3d at 164. EPA had noted that the post-
1996 ROP plans and those versions of the attainment plans submitted
during 1998 and 2000 covered by the January 3, 2001 final rule ``[did]
not specify any specific measures as contingency measures.'' 66 FR at
615-616, January 3, 2001. EPA also agreed with comment that the lawn/
garden measure identified in the contingency plan as a contingency
measure was insufficient. Therefore, EPA believes that prior to
submittal of the February 2004 SIP revisions and the SIP revisions
containing the adopted rules for the contingency measures the
Washington area States had not submitted the necessary SIP revisions
for the contingency measures for 1999 FTA.
EPA has interpreted the requirement that contingency measures must
``take effect without further action by the State or the
Administrator'' to mean that no further rulemaking activities, such as
public hearings or legislative review, by the State or the EPA should
be needed to implement the contingency measures. See 57 FR at 13512,
April 16, 1992; section 9.0 of ``Guidance for Growth Factors,
Projections, and Control Strategies for the 15 Percent Rate-of-Progress
Plans,'' (EPA-452/R-93-002, March 1993). EPA has required that
contingency measures must be fully adopted rules or measures but do not
have to be implemented unless and until they are triggered by a failure
to either meet a milestone or attain the NAAQS. See section 5.6 of
``Guidance on the Post '96 Rate-of-Progress Plan (RPP) and Attainment
Demonstration'' (Corrected version of February 18, 1994).
The States did not have adopted contingency measures to implement
without further action by the States on the effective date of EPA's
determination that the Washington area failed to attain by 1999. If EPA
were to now disapprove the contingency measures plan because the States
needed to take further action after the 1999 FTA in order to implement
the contingency measures to address the 1999 FTA, the States would have
to adopt and submit SIP revisions consisting of a revised contingency
measures plan and adopted control measures, and, EPA would have to
approve those SIP revisions in order to prevent or lift sanctions
required by section 179 of the Act. This would be an impossibility
since the relevant 1999 date has long since passed. In short, the
States and EPA would have to undertake rulemaking actions on those
remedial SIP revisions, and those rulemakings would suffer the same
fate that the commenter's claim make the measures we approve today
supposedly defective--we would have to disapprove them because they
were not implementable prior to the States' failure to attain in 1999.
The commenter would have EPA produce an endlessly looping, absurd
result, namely, the States would be left in a position where no SIP
revision would be able to lift sanctions because the States cannot go
back in time to adopt measures that were not adopted by a deadline in
the past. The fact that the States failed to adopt and submit these
measures in a timely fashion should not preclude EPA from approving
them now that they have been adopted, implemented, and submitted.
EPA further disagrees with the comment that the contingency
measures needed to address the contingency measures for 1999 FTA are
inadequate because these measures do not meet EPA's guidance which
requires contingency measures to achieve reductions no later than the
year after the one in which the failure is identified. Once again, the
commenter would have EPA produce an absurd
[[Page 25702]]
result. Because the States cannot go back in time to implement measures
that were not implemented by a deadline in the past, if EPA were to
disapprove the contingency measures for 1999 FTA for the reason
advanced in the comment, the States again would be left in the
situation where no SIP revisions or measures could be approved to halt
or lift sanctions. Any further SIP revisions to address the contingency
measures for 1999 FTA would suffer the same defect of timeliness. Given
this impossibility EPA believes that it is appropriate and beneficial
to the environment to belatedly get the reductions contemplated by the
1999 FTA contingency measures.
EPA agrees that our guidance and policy requires contingency
measures, once triggered, to achieve reductions no later than the year
after the one in which the failure is identified. However, this
guidance applies to contingency measures that meet the requirement that
the measures can be ``implemented without further action'' by the state
or EPA. EPA expects that certain actions, such as notification of
sources, modification of permits, etc., would probably be needed before
a measure could be implemented effectively needed to affect full
implementation of the contingency measures and expect such actions to
occur within 60 days after EPA notifies the State of its failure. See
57 FR at 13512, April 16, 1992. EPA considers that in the case of a
failure to attain, the State is notified of a failure to attain only
once EPA has published the notice in the Federal Register pursuant to
section 181(b)(2)(B) that EPA has determined that the area has failed
to attain by the statutory attainment date, and that such notification
is effective on the effective date of the Federal Register publication.
Under section 181, such a notification can be published no later than
May 15th of the year following the attainment date and still be timely
under the Act. For a November 15, 1999 attainment date, the one-year
period for implementation of the contingency measures for 1999 FTA
could well have started May 15, 2000.
For the Washington area, EPA's determination that the area had
failed to attain by the serious attainment date of November 15, 1999
was in fact effective March 24, 2003. 68 FR 3410, January 24, 2003. In
the case of the Washington area, the States adopted and implemented by
January 1, 2005 all the measures identified in the plan as addressing
the contingency measures for 1999 FTA. See Table X. B-1 Summary of
Benefits from Measures 7.4.11, 7.4.12 and 7.4.14 of the January 5, 2005
TSD.\23\ Arguably, the one-year period after the States were notified
of the failure to attain ended March 24, 2004, but as discussed
previously, the States needed to first adopt the measures that would be
used as the contingency measures for 1999 FTA before the measures could
be implemented. The comment offers no suggestion on how the States
might retroactively obtain emission reductions in 2004 (or for that
matter 2000) for measures that the States did not adopt and implement
until after that time.
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\23\ ``Technical Support Document for Approval and Promulgation
of Air Quality Implementation Plans; District of Columbia, Maryland,
and Virginia; Post-196 Rate-of-Progress Plan, Contingency Measures,
Transportation Control Measures, 1990 Base Year Inventory Changes,
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment
Area,'' dated January 5, 2005.
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As pointed out by the Court of Appeals in Sierra Club v. EPA, 356
F.3d 296, with respect to the reclassification of the area to severe
nonattainment status due to the its failure to attain the 1-hour ozone
NAAQS by November 15, 1999, this commenter ``challenged EPA's decision
to extend the States' final deadline for submitting revised SIPs
complying with the Act's requirements for severe areas, including post-
1999 ROP plans, to March 1, 2004.'' 356 F.3d at 308-09.
The Court of Appeals acknowledged that ``the deadline for filing
severe area SIP components including post-1999 ROP plans had already
passed long before reclassification took place. Indeed, the statutory
deadline for such submittals was November 15, 1994.'' Id. at 309.
Citing to a prior decision, Sierra Club v. Whitman, 285 F.3d 63 (D.C.
Cir. 2002), the Court reiterated that `` `The relevant provisions of
the Clean Air Act * * * contain no language suggesting that Congress
intended to give EPA the unusual ability to implement rules
retroactively,' '' in upholding EPA's reliance on the discretion
conferred by section 182(i) of the CAA to adjust applicable statutory
deadlines, other than attainment dates, when it reclassifies an
attainment area.
Similarly, EPA believes that it would be arbitrary and capricious
to impose a retroactive obligation on the States that can never be
fulfilled, resulting in sanctions that could never be lifted. It would
be especially egregious for EPA to put the States in that position
since the States' failure to submit contingency measures or to even
realize that the November 15, 1999 attainment date pertained to the
Washington area was due to their reliance on published EPA
guidance.\24\ The failure to begin implementation of contingency
measures in 2000, upon a March 24, 2003 EPA finding that the area
failed to attain in November 1999, cannot be cured by a state
rulemaking that occurred before March 24, 2003; there was no such
rulemaking then, it does not exist now, and it never can be. After
March 24, 2003, the States could complete their respective state
rulemaking processes to develop the missing contingency measures. They
have done so, and all those measures have been implemented.
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\24\ See, Memorandum dated July 16, 1998, from Richard Wilson,
Acting Assistant Administrator for Air and Radiation, ``Extension of
Attainment Dates for Downwind Areas.''
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In this action EPA is acting on SIP revisions that, with respect to
the contingency measures for 1999 FTA, identify additional measures
that the States have implemented subsequent to November 15, 1999
attainment date for serious areas. EPA concludes that in the
circumstances of this case it is appropriate and consistent with the
statute to approve these contingency measures that have now been
implemented.
Comment 2: We received a comment asserting that the contingency
plan for 2005 cannot rely on measures already adopted and in place or
to be in place before the 2005 attainment and ROP deadline. The comment
claims that the Act requires that contingency measures must be
additional measures that will be triggered by the attainment or
milestone failure, that is, the Act provision is prospective, not
retrospective. In support of their argument, the comment cites
language, ``to be undertaken in the event the area fails,'' from the
legislative history for the 1990 amendments to the Act.
Response 2: EPA believes that its interpretation of the contingency
measure provisions of the Act applicable to severe nonattainment areas
is a reasonable interpretation of the Act because reductions from these
contingency measures are continuing in nature. Sections 172(c)(9) and
182(c)(9) of the Act direct that a state's revised SIP shall include
``specific measures to be undertaken'' if an ROP or attainment
milestone is missed, and that the contingency measures are ``to take
effect in any such case without further action by the State or the
Administrator.'' 42 U.S.C. 7502(c)(9), 7511a(c)(9) (emphasis added).
EPA has consistently stated that any rule or measure that meets the
creditability requirements of section 182(b)(1)(C) and (D), that would
achieve real, permanent, enforceable reductions, and that is not
already required as a part of the relevant ROP or attainment
[[Page 25703]]
demonstration SIP, can be adopted as a contingency measure. See
``Guidance on the Post-1996 Rate-of-Progress Plan and Attainment
Demonstration'' (corrected version as of 2/18/94), section 5.6.
Congress, in the Act, did not define the terms ``to take effect''
and ``to be undertaken.'' The terms ``to take effect'' and ``to be
undertaken'' could imply a purely prospective action that excludes the
possibility of contingency measure implementation prior to an area's
failure to meet an ROP milestone or attainment date. If we were to read
the CAA this way, the only acceptable contingency measure would be
those that are adopted but not implemented. Under that reading, the
states could adopt the contingency measures but hold their
implementation in reserve to meet the contingency measure requirement.
If we read the Act to allow adopted and implemented measures that
continue to result in emissions reductions in years subsequent to their
implementation to serve as contingency measures, provided that those
measures' emission reductions are not needed to demonstrate expeditious
attainment and/or ROP, the states could implement the contingency
measures early and would achieve the environmental benefits prior to
the triggering of the contingency requirement. Nothing in the language
of sections 172(c)(1), 172(c)(9) or 182(c)(9) prohibits this
interpretation. Implemented contingency measures achieve continuing
emissions reductions. We reasonably interpret the term ``to take
effect'' and ``to be undertaken,'' as used in sections 172(c)(9) and
182(c)(9) of the Act, to allow as contingency measures, measures
implemented prior to the failure to achieve an ROP or attainment
milestone, that will continue to achieve emissions reductions after the
plan fails, so long as those measures are not needed to demonstrate
expeditious attainment and/or ROP. As noted previously, this
interpretation is a longstanding exercise of EPA's authority to
construe a statutory scheme it is entrusted to administer, by filling
the gap left by Congress's failure to define the terms ``to take
effect'' and ``to be undertaken.'' See generally, U.S. v. Mead Corp.,
553 U.S. at 227-35; Chevron U.S.A, Inc. v. NRDC, 467 U.S. 837, 842-45
(1984).\25\
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\25\ The commenter's appeal to the legislative history does not
add to its argument, since the quoted language reiterates, but does
not elaborate, explain or expound upon, the statutory text.
---------------------------------------------------------------------------
EPA believes that allowing early reductions to be used as
contingency measures comports with a primary purpose of the Act--the
aim of ensuring that nonattainment areas reach NAAQS compliance in an
efficient manner and achieving additional emissions reductions that
will improve air quality. The contingency plan allows the Washington
area to include sufficient contingency measures to ensure that ``upon
implementation of such measures, additional emissions reductions of up
to 3 percent of the emissions in the adjusted base year inventory (or
such lesser percentage that will cure the identified failure) would be
achieved in the year following the year in which the failure has been
identified.'' See 57 FR at 13511, April 16, 1992.
The emissions reductions from the measures in the Washington area
contingency plan are not available for any other use so long as the
measures remain in the SIP as contingency measures. A failure to attain
or failure to demonstrate ROP will result in these emissions reductions
being applied toward attainment or ROP (depending on which milestone is
not being met). Even though these measures are already implemented, the
continuing reduction credits are, in effect, set aside to be applied in
the event that attainment or ROP is not achieved. These credits are
immediately available, without further action by the States. We note
that measures that have already been implemented clearly meet CAA
section 172(c)(9) requirement that contingency measures take effect
without further action by the State or Administrator. EPA believes that
it would be illogical and counterproductive to penalize nonattainment
areas that are taking extra step of implementing contingency measures
prior to a failure to achieve a ROP or attainment milestone, to further
insure that the area will comply with the CAA's mandate that states
attain the NAAQS as ``expeditiously as practicable.'' 42 U.S.C.
7502(c)(1). As we have noted previously, ``There are a number of
benefits to allowing and even encouraging the early implementation of
contingency measures. The chief benefit is that their emission
reductions and thus their public health benefit are realized early.
Another is that it allows states to build uncredited cushions into
their attainment and RFP demonstrations, a cushion which makes actual
failures to make progress or attain less likely.'' 67 FR 48718, 48731,
July 25, 2002.
The standard advocated by the comment would allow EPA to approve
the contingency measure plan only if the measures were scheduled for
implementation in the event of a future failure to make a ROP target or
attain the NAAQS. EPA believes that the States could correct a
disapproval issued pursuant the standard advocated by the comment by
amending the contingency measure rules themselves to replace the
current requirement for compliance by a date certain with a requirement
to comply by some date(s) in future to be determined only upon a ROP or
attainment failure. Such a revision would not interfere with ROP or
attainment because EPA believes that the reductions from the measures
in the contingency plan to address a ROP failure or a failure to attain
by November 15, 2005 must go beyond the emissions reductions needed to
demonstrate ROP and timely attainment (i.e., they are ``surplus'').
Although this result might arguably comply with the statute as the
commenter suggests, it would actually be detrimental for air quality as
the measures would not be producing emissions reductions currently as
under the submitted SIP.
The comment alleges that if an area fails to meet a progress or
attainment deadline, the measures already in effect are insufficient,
thus warranting the implementation of additional controls which the
comment claims should be the contingency measures. Yet, the comment
fails to recognize that if the area fails to attain on time, such
failure would have been worse in the absence of the contingency
measures. Likewise, if an area has an ROP shortfall, such shortfall
would have been larger in the absence of the contingency measures.
EPA has approved many contingency measure plans relying upon early
implementation of contingency measures. See, e.g., 67 FR 60590,
September 26, 2002. EPA's interpretation that early implemented
contingency measures meet the requirements of the Act was upheld in
Louisiana Environmental Action Network v. EPA, 382 F.3d 575 (5th Cir.
2004), though the court found that the particular measure at issue did
not qualify as a contingency measure for other reasons.
Comment 3: We received a comment that the Act requires a set of
contingency measures to address any failure to meet ROP requirements
for the 2002-2005 period, that is separate from those required for
failure to attain. The comment claims that the requirement for
contingency measures to address post-1996 milestone failures is
explicitly set out in the Act as an additional mandate in addition to
the requirement for contingency measures to address attainment
failures. The comment further claims that the 2005 ROP deadline here
could precede the attainment date if, in the case of an area which
qualifies for one or both of the 1-
[[Page 25704]]
year attainment date extensions allowed by the Act.
Response 3: EPA disagrees that section 182(c)(9) of the Act
necessarily adds anything substantive to the requirement of section
172(c)(9) other than a requirement that the contingency plan be able to
address a milestone failure pursuant to section 182(g). EPA first notes
that neither section 182(c)(9) nor 172(c)(9) of the Act specify how
many contingency measures are needed or the magnitude of emissions
reductions that must be provided by these measures. The Act is totally
silent on this issue. EPA rejected the interpretation that the Act
requires states to adopt sufficient contingency measures to make up for
a shortfall resulting from the failure where none of the state measures
produce any expected reductions. We thus rejected an interpretation
where the state would have to adopt ``double'' the measures needed to
satisfy the applicable emissions reduction requirements because EPA
believes that this would be an unreasonable requirement given the
difficulty many States will already have in identifying and adopting
sufficient measures to meet ROP and other requirements, let alone
contingency measures. See 57 FR at 13510-13512, April 16, 1992.
Instead, EPA believes that the contingency measures should, at a
minimum, ensure that an appropriate level of emissions reduction
progress continues to be made if attainment or ROP is not achieved and
additional planning by the state is needed. Therefore, EPA has
interpreted the Act to require states with moderate and above ozone
nonattainment areas to include sufficient contingency measures so that,
upon implementation of such measures, additional emissions reductions
of up to 3 percent of the emissions in the adjusted base year inventory
\26\ (or such lesser percentage that will cure the identified failure)
would be achieved in the year following the year in which the failure
has been identified. This ``additional'' reduction would ensure that
progress toward attainment occurs at a rate similar to that specified
under the ROP requirements for moderate areas (i.e., 3 percent per
year), and that the state would achieve these reductions while
conducting additional control measure development and implementation as
necessary to correct the shortfall in emissions reductions and/or to
adopt newly required measures resulting from reclassification to a
higher classification, in the case of a moderate or serious area, or to
meet the 3 percent per year requirements specified by section
181(b)(4)(A) of the Act for severe areas that fail to attain. Under
this approach, the State would have 1 year to modify its SIP and take
other corrective action needed to ensure that milestones are achieved
and that ROP toward attainment continues. See 57 FR at 13510-13512,
April 16, 1992.
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\26\ The adjusted base year inventory is that inventory
specified by the provisions under section 182(b)(1)(B).
---------------------------------------------------------------------------
Section 182(c)(9) provides that ``[i]n addition to the contingency
provisions required under section [172(c)(9)] * * * the plan revision
[for serious and above nonattainment areas] shall provide for the
implementation of specific measures to be undertaken if the area fails
to meet any applicable milestone.'' Section 172(c)(9) requires
contingency measures for failure of an area to ``make reasonable
further progress, or to attain'' the NAAQS. As clarified by section
182(g)(1) of the Act, the ``applicable milestones'' for serious, and
above, nonattainment areas, such as the Washington area, which is a
severe nonattainment area, are those tied to the ROP plan percent
emission reductions. The commenter urges EPA to interpret sections
172(c)(9) and 182(c)(9) to require not only that there be contingency
measures in the SIP tied to the ROP milestones for the Washington area,
but that these contingency measures must be different from the measures
required under 172(c)(9).
We believe, however, that 182(c)(9) merely adds milestones for
serious and above areas that must be included as triggers for
contingency measures, and does not impose any requirement for a state
to adopt contingency measures in addition to those being used in the
contingency plan required by section 172(c)(9), provided that such
measures will generate reductions in all the relevant years.\27\ Thus a
state may specify the same contingency measure to be used for failure
to attain the NAAQS as for failure to meet an ROP milestone, in a year
for which the measure produces emission reductions. Of course, if a
measure is triggered for failure to meet a milestone in an early year
the area would have to submit an additional measure to be available in
the event of a later failure to meet a subsequent milestone or
demonstrate attainment. Since the plain language of the statute
supports this interpretation, and nothing in the statute prohibits this
interpretation, EPA's interpretation of how these two contingency
measure provisions relate to each other is entitled to deference. See
U.S. v. Mead Corp., 553 U.S. 218 (2001); Chevron U.S.A, Inc. v. NRDC,
467 U.S. 837 (1984).
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\27\ We note that if a serious or above nonattainment area fails
to meet an applicable milestone, the contingency measures will not
even necessarily be triggered. A state may opt to be reclassified to
the next higher classification or to adopt an economic incentive
program in lieu of implementing the measures in its contingency
plan. 42 U.S.C. 7511a(g)(3).
---------------------------------------------------------------------------
Comment 4: We received a comment asserting that the contingency
plan does not meet EPA's guidance because the plan does not contain a
commitment for timely adoption of additional measures if the 3 percent
contingency plan is not adequate to correct a failure to attain or
achieve an ROP milestone.
Response 4: While EPA's guidance does specify that the States to
backfill a contingency measures plan after the need for the measures is
triggered neither the statute nor the guidance contains the sort of
commitment claimed by the comment.
``Any implemented measures (that are not needed for the rate-of-
progress requirements or for the attainment demonstration) would need
to be backfilled only to the extent they are used to meet a milestone *
* *. The State would be required to adopt new contingency measures as
part of the process of developing their new SIP for their new
classification.'' See section 5.6 of ``Guidance on the Post '96 Rate-
of-Progress Plan (RPP) and Attainment Demonstration'' (Corrected
version of February 18, 1994). ``Within 1 year of the triggering of a
contingency requiring the early implementation of control measures, the
State must submit a revision to the SIP containing whatever additional
measures will be needed to backfill the SIP with replacement measures
to cure any eventual shortfall that would occur as the result of the
early use of the contingency measure.'' See 57 FR at 13511, April 16,
1992.
The commitment discussed in the General Preamble (57 FR 13498 at
13511-31512, April 16, 1992) was to an annual tracking program--not a
commitment to backfill the plan with new measures. As interpreted in
the general preamble, EPA does not believe that contingency measures
are required to completely fill any shortfall caused by a failure. This
will be filled by the revised plan required to cure the failure.
Comment 5: We received a comment asserting that the contingency
plan must contain some NOX reductions since the ROP and
attainment plans rely upon NOX reductions as well as VOC
reductions.
Response 5: With regard to the need for NOX contingency
measures, EPA disagrees with the comment that the contingency plan must
contain NOX
[[Page 25705]]
contingency measures simply because the ROP and attainment plans rely
upon NOX reductions. As to contingency measures to address a
failure to in the ROP plans, the Act creates a clear command that VOC
reductions presumptively meet the ROP requirements applicable to
moderate, serious and worse areas. Section 182(b)(1)(A) requires a ROP
plan for a 15 percent reduction in baseline VOC emissions. EPA has
never interpreted the Act to allow NOX substitution in the
15 percent plan for an area which is subject to subpart 2 of part D to
Title I of the Act and which is not already covered by a 15 percent ROP
plan. See, section 1.1 of ``Guidance on the Post-1996 Rate-of-Progress
Plan and Attainment Demonstration'' (corrected version as of 2/18/94);
see, 68 FR at 32826, June 2, 2003 (waiving the VOC reduction
requirement would require ``absurd results;'' ``We believe that absurd
results will happen only rarely in those cases where application of the
requirement in that area would thwart the intent of Congress in
enacting the relevant provisions of the [Act].'' Absurd results would
require a showing that ``future VOC reductions required under subpart 2
for a particular area would actually cause ozone to increase more than
a de minimis amount,'' and, ``it would not be sufficient for the area
to show that VOC reductions would be less beneficial than
NOX reductions.'') See 68 FR at 32833, June 2, 2003. Section
182(c)(2)(B) requires ROP reductions averaging 3 percent per year
reduction in baseline VOC emissions. Section 182(c)(2)(C) authorizes
EPA to accept ROP plans containing a lesser percentage of VOC
reductions plan if the that substitutes NOX reductions in
accordance with EPA's guidance.
The comment claims EPA's policy and guidance requires SIPs to
provide for contingency reductions in NOX where the SIP for
the area relies on NOX substitution in lieu of or in
addition to VOC reductions. In support of this position, the commenter
quotes a footnote in the General Preamble, 57 FR 13498, April 16, 1992.
However, EPA believes our interpretation of the Act set forth in later
guidance allows just the opposite, namely, that the contingency
measures for both ROP and attainment failures can provide for at least
some VOC reductions where the attainment plan relies on VOC and
NOX reductions even if the ROP plan relies on all
NOX reductions. See ``Guidance on Issues Related to 15
Percent Rate-of-Progress Plans,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation to the Regional
Division Directors, August 23, 1993.\28\ This later guidance provides
that NOX contingency reductions can be substituted for VOC
contingency reductions, but plainly does not preclude all of the
contingency reductions from being achieved through VOC control.
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\28\ Reissued in Appendix D to ``Guidance on the Post-1996 Rate-
of-Progress Plan and Attainment Demonstration'' (corrected version
as of 2/18/94).
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Where a ROP plan relies upon 9 percent NOX reduction to
demonstrate ROP pursuant to section 182(c)(2)(C) of the Act for one or
more milestone years after 1996, EPA believes that a milestone failure
caused by a shortage of NOX reductions can be filled by VOC
reductions. Under EPA's guidance for NOX substitution, the
VOC contingency reductions would in essence change the plan from one
relying upon 9 percent NOX reductions to a plan relying upon
a mixture of NOX and VOC percentage reductions. For
instance, a 1 percent failure would change in such a ROP plan from 9
percent NOX to 8 percent NOX and at least 1
percent VOC.
EPA believes that the Washington area attainment plans demonstrate
attainment through a strategy of VOC and NOX control.
Therefore, inclusion of VOC measures in the contingency measures plan
is proper to address a failure to attain.
Comment 6: We received a comment alleging that all of the emission
reductions from the continency measures are not ``surplus'' because
neither EPA nor the States have quantified the total VOC and
NOX reductions needed to attain by November 15, 2005. The
comment further claims that the use of a WOE approach in the modeled
demonstration of attainment is incapable of identifying the precise
level of emission reductions needed for attainment and thus does not
support the claim that there are ``surplus'' reductions in the SIP that
can be used for ``contingency'' purposes.
Response 6: The photochemical grid modeling runs used in the SIP
revisions which were the subject of the April 17, 2003 final rule (68
FR 19106) are the same as those photochemical grid modeling runs used
in the February 2004 SIP revisions which are the subject of this final
rule. The WOE analytical methods and/or analyses that support the
modeled demonstration of attainment in the February 2004 SIP revisions,
which are the subject of this final rule, include the same WOE
analytical methods and/or analyses that supported the modeled
demonstration of attainment which were the subject of the April 17,
2003 final rule (68 FR 19106). This issue has been litigated by the
commenter and conclusively decided in EPA's favor. See Sierra Club v.
EPA, 356 F.3d at 304-307. In addition, as noted in section IV. A. 2. of
the January 31, 2005 TSD prepared for the February 9, 2005 NPR (70 FR
6796) the States provided additional WOE in the form of the results of
EPA's photochemical grid modeling performed for the Tier 2 final rule.
See, sections VI. A. 1. and 2. of ``Technical Support Document for
Approval and Promulgation of Air Quality Implementation Plans; District
of Columbia, Maryland, and Virginia; Attainment Demonstration for the
Metropolitan Washington, DC Nonattainment Area,'' dated January 31,
2005.
As discussed elsewhere in response to comment, EPA believes that
the States' use of photochemical grid modeling with an adjunct WOE
analysis demonstrates timely attainment and meets the statutory
requirements of the Act and constitutes a modeled demonstration of
attainment. Specifically, EPA incorporates by reference the responses
to comment in section IV. A. ``Comment on the Attainment Demonstration
Modeling'' of the preamble to this final rule. In the TSD prepared for
the NPR for this final rule, EPA concluded that without the reductions
from the contingency measures the SIP contained sufficient creditable
measures to achieve emissions levels in the Washington area of 331 TPD
of VOC emissions and 491 TPD of NOX emissions.\29\
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\29\ Table IV.F-1 Relative Reductions on page A-27 of
``Technical Support Document for Approval and Promulgation of Air
Quality Implementation Plans; District of Columbia, Maryland, and
Virginia; Attainment Demonstration for the Metropolitan Washington,
DC Nonattainment Area,'' dated January 31, 2005.
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These overall emissions levels of 331 TPD of VOC and 491 TPD of
NOX are still less than the levels used in the photochemical
grid modeling which assumed levels of 360 TPD of VOC emissions and of
over 500 TPD of NOX emissions, and are sufficient to support
the WOE demonstration.\30\ The WOE demonstration builds upon the
photochemical grid modeling by considering other photochemical grid
modeling results, and the overall change in emissions from the 1990
base year to the 2005 attainment year. EPA concludes that attainment is
[[Page 25706]]
demonstrated without reliance upon the reductions from the contingency
measures and therefore the reductions from the contingency measures are
surplus for the purposes of attainment.
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\30\ Table IV.F-1 Relative Reductions on page A-27 of
``Technical Support Document for Approval and Promulgation of Air
Quality Implementation Plans; District of Columbia, Maryland, and
Virginia; Attainment Demonstration for the Metropolitan Washington,
DC Nonattainment Area,'' dated January 31, 2005.
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Comment 7: We received a comment asserting that the SIP cannot rely
on the reformulated gasoline (RFG) program as a ``contingency'' measure
to address the area's failure to attain by 1999, because the RFG
program became mandated by the Act once the Washington area missed the
1999 attainment deadline. The comment claims that contingency measures
are measures that must be in addition to those mandated by the Act. The
comment also claims that RFG was never intended as a contingency
measure and, thus, contrary to EPA's assertion, it is hardly a
``penalty'' to the nonattainment area to disallow contingency credit
for a measure that was never intended as a contingency measure, and
that was implemented at a time when the area was already years behind
schedule in adopting adequate ROP and attainment plans. The comment
further asserts that if the RFG program is a permissible contingency
measure the agency's guidance would obligate the states to ``backfill''
the measure with one year assuring equivalent reductions and that the
states have not done so.
Response 7: EPA agrees with the comment to the extent that it
raises questions about whether RFG can be used as a contingency measure
after an area is reclassified to severe nonattainment. The RFG
requirement is required under Title II of the Act once an area is
reclassified to severe nonattainment. However, EPA believes that
whether or not RFG is a contingency measure is not a deciding factor
whether EPA approve the contingency measures plan in this case because
the plan contains other sufficient measures to fulfill the requirement.
EPA concludes that the contingency measures plan is approvable even
without considering RFG to be a contingency measure and thus EPA is not
responding to the allegations that RFG can not be considered a
contingency measure in this case.
E. Comment Received Regarding the TSD and EPA's Response
We received the following comments on our evaluation of the credits
from the States' AIM coatings rules which was in our January 12, 2005
TSD prepared for the January 12, 2005 NPR. A summary of these comments
that we received on our evaluation of the credits from the States' AIM
coatings rules for the Washington area and our responses follows.
Comment: We received one set of comments that were critical of the
baseline per capita emission factor EPA used to evaluate the States'
emission reductions claims for the States' AIM coatings rules.
Specifically, these comments took issue with the pre-control baseline
value of 4.5 pounds per person per year (lbs/p/yr) that EPA used. These
comments also took issue with the 6.7 lbs/p/yr emission factor which
was used by the States and which is found in ``Procedures for the
Preparation of Emission Inventories for Carbon Monoxide and Precursors
of Ozone'' (EPA-450/4-91-016), May 1991. These comments noted that EPA
has issued another document under EPA's ongoing Emission Inventory
Improvement Program with yet another per capita emission factor of 5.7
lbs/p/yr. In summary, the comments questioned if any of the baseline
per capita emission factors (6.7, 5.7, or 4.5 lbs/p/yr) published by
EPA is based upon the best currently available data. These comments
supported EPA's use of the most recent California Air Resources Board
(CARB) survey data for deriving the best estimate of the post-control
per capita emission factor to be realized from the promulgation of the
District's, Maryland's and Virginia's rules modeled upon the Ozone
Transport Commission's Model AIM coatings rule. These comments advocate
the position that the CARB surveys provide the best available data
under federal data quality criteria and asserts that the California
pre-control total emissions should be similar on a per person basis to
the rest of the country. The commenter examined the pre-control
baseline used by CARB and assert that the baseline per capita emissions
factor for VOC emissions from AIM coatings in California before
controls should be 6.3 lbs/p/yr. The commenter states that this 6.3
lbs/p/yr factor is based upon CARB's data for VOC emissions from AIM
coatings for the years 1975 through 2004. The comments note that the
first significant AIM controls were not adopted in California until
1984, and, conclude that 1980 is an acceptable year to use as a
baseline year. The comments state: California reports that in 1980,
according to its surveys, there were 148,579,090 pounds of VOC emitted
from AIM coatings; the population of California in 1980 according to
the U.S. Census Bureau was 23,668,000 people, and thus this yields a
pre-control baseline of 6.3 lbs/p/yr. The commenter therefore urges EPA
to evaluate the benefits from the States' AIM coatings rules using a
pre-control baseline of 6.3 lbs/p/yr.
We received a second set of comments supporting the States'
analysis of the reduction credits from the States' AIM coatings rules
but critical of EPA's reliance upon CARB data to determine a per capita
emission factor after application of the States's AIM coatings rules.
These comments assert that because California has had more restrictive
VOC limits for architectural coatings for over a decade, VOC emissions
for architectural and industrial maintenance coatings in California
were already significantly lower than the States' pre-rule emissions.
Response: The States' Contingency Measures, ROP and Attainment
Plans Are Still Approvable. EPA has considered both set of comments and
analyzed the sufficiency of the contingency measures, ROP and
attainment plans by considering the baseline emission factors and
reduction calculation methodologies advocated by each set of comments,
as well as the baseline emission factors and reduction calculation
methodology contained in our January 5, 2005 TSD that was prepared for
the January 12, 2005 (70 FR 2085) NPR.\31\ EPA concludes that the
contingency measures, ROP and attainment plans are approvable
regardless of whether we use the baseline emission factor and reduction
calculation methodology advocated by each set of comments, or whether
we use the baseline emission factors and reduction calculation
methodology contained in our January 5, 2005 TSD.
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\31\ ``Technical Support Document for Approval and Promulgation
of Air Quality Implementation Plans; District of Columbia, Maryland,
and Virginia; Post-1996 Rate-of-Progress Plan, Contingency Measures,
Transportation Control Measures, 1990 Base Year Inventory Changes,
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment
Area,'' dated January 5, 2005.
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EPA has evaluated the effect that changing the 1990 per capita
emission factor for the AIM coatings source category might have on the
contingency measures implemented to address the failure of the
Washington area to attain in 1999, the 1999-2005 ROP plans, and the
attainment demonstration plans. EPA has determined that regardless of
which of the 1990 per capita emission factors and reduction calculation
methodologies--be it that advocated by the first set of comments, or
that advocated by the second set of comments, or that found in our
technical support for the January 12, 2005 (70 FR 2085) NPR--the States
secure sufficient VOC reductions to meet the needs of the contingency
[[Page 25707]]
measures plan for failure to attain in 1999, the 1999-2005 ROP plans or
attainment plans. As noted in the January 12, 2005 NPR, the States
computed that the reductions needed to address the 1999 failure to
attain contingency requirement was at least 13.0 TPD.\32\ Of these 13.0
TPD, 11.4 would be filled by the solvent cleaning and portable fuels
containers rules. The States' AIM coatings rules would thus have to
provide at least 1.6 TPD of reductions to ensure that the contingency
plan is approvable. EPA has evaluated the effects that changing the
1990 per capita emission factor and reduction methodologies for the AIM
coatings source category might have on the contingency plan for failure
to attain by 1999. The States ascribed 12.3 tons per day reduction from
the States' AIM coatings rules. EPA arrived at a value of over 16 tons
per day using the 4.5 pounds per capita emission factor.\33\ EPA
concludes that the States' contingency plans are still approvable.
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\32\ See Table 12. Contingency Measures in the NPR for this
action (70 FR 2085 at 2096, January 12, 2005).
\33\ The comments advocating the 6.3 pounds per capita emission
factor did not advocate by what percentage this value would be
reduced by the 1998 Federal AIM coatings rule, EPA assumed for the
purposes of this analysis that the Federal AIM coatings rule would
result in the same post-rule per capita emission factor.
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There is no effect on the approvability of the 1999-2005 ROP plans
because any change in the 1990 per capita emission factor for the AIM
coatings source category or the method to determine reduction from the
States' AIM coatings rules will only affect VOC emission reductions.
EPA proposed approval of the 1999-2005 ROP plans based solely upon a
showing that the plans provided for a minimum 9 percent reduction in
baseline NOX emissions by the 2002 milestone and a further 9
percent by 2005. As discussed elsewhere in this document in response to
comment, EPA is approving the 1999-2005 ROP plans based upon these
NOX reductions alone.
With respect to the demonstration of attainment, EPA evaluated the
overall change in VOC emissions relative to 1990 base year emissions
which would result from using the 4.5 or the 6.3 pounds per capita
emission factor. The results were an overall relative reduction in VOC
emissions of 45 percent in 1990 VOC emissions by 2005 from all sources
(point plus area plus nonroad plus on-road). The States' credit claims
corresponded to a projected overall 42.8 percent reduction in 1990 VOC
emissions by 2005 from all sources (point plus area plus nonroad plus
on-road). 70 FR at 6803, February 9, 2005. EPA concludes that the
States' estimate of the overall relative reduction in VOC emissions is
conservative relative to the use of either the 4.5 or the 6.3 emission
factors. EPA concludes that using either baseline the States get at
least the reductions they claimed and needed to demonstrate timely
attainment, to meet the ROP requirements, and to provide for sufficient
reduction for the contingency plan. EPA concludes that the issues
raised in the comments do not change the approvability of the
attainment plans.
After considering the comments received during the public comment
period, EPA's analysis indicates that the reduction claims in the
February 2004 SIP revisions are supported using the alternative per
capita base line emission factors in the record in that the States'
reduction claims are less than the other methods. EPA is neither
approving nor disapproving the States' method nor promoting an
alternative method. EPA's analysis in support of this rulemaking is to
determine if any information received during the comment period would
give cause for us to reconsider our proposed approval. Regardless of
which of the baseline emission factors or methods that have been
proffered by the commenters or by EPA is used to calculate VOC emission
reductions for the States' AIM coatings rules, we have determined that
the States' ROP, attainment and contingency measures plans for the
Washington area demonstrate ROP, provide sufficient VOC reductions to
satisfy the need for implemented contingency measures set by EPA's
guidance and demonstrate attainment. Therefore, EPA is approving the
States' SIP revisions.\34\ Further details of EPA's analysis can be
found in the supplemental TSD prepared for this final rule.\35\
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\34\ As noted elsewhere in this doucment, EPA is not approving
Maryland's attainment plan for the Washington area but is making a
finding that Maryland's attainment plan, in conjunction with those
of the District and Virginia, contains control measures that ``fully
satisfy the emission reduction requirements relevant to * * *
attainment.''
\35\ ``Supplement to the Technical Support Document for Approval
and Promulgation of Air Quality Implementation Plans; District of
Columbia, Maryland, Virginia; 1-Hour Ozone Attainment Plans, Rate-
of-Progress Plans, Contingnecy Measures, Transportation Control
Measures, VMT Offset, and 1990 Base Year Inventory,'' dated May 3,
2005.
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A determination of the best baseline from which to estimate the
reductions from the States' AIM rules is not essential for this final
rule because, as stated earlier, regardless of whether those reductions
are calculated as proposed by EPA or as advocated by either of the
commenters, the States' ROP, attainment and contingency measures plans
demonstrate ROP, provide sufficient VOC reductions to satisfy the need
for implemented contingency measures, and demonstrate attainment.
However, EPA recognizes the need to resolve conclusively how to
determine the amount of VOC emission reductions achieved from the
implementation of AIM coatings rules in a given ozone nonattainment
area. This remains an issue of concern to the states, the regulated
sector, and other interested parties. Therefore, EPA intends to conduct
a separate process to solicit further comment, information and
recommendations from all interested parties as to how to determine the
amount of VOC emission reductions achieved from the implementation of
AIM coatings rules in a given ozone nonattainment area.
EPA's Policy on Changes in Inventory Methods. EPA is clarifying its
proposal in the NPR (70 FR 2085) that EPA was not proposing that the
District, Maryland and Virginia change the ROP plans to reflect a new
1990 per capita emission factor for the AIM source category prepared
for this action, but rather intended to verify that the ROP plans were
adequate without using the reduction methodology upon which the States
relied.
EPA acknowledges that emissions factors, as well as inventory
calculation methodologies, are continually being improved. In general,
EPA has not required changes to submitted SIPs that result from changes
in factors and methodologies that occur after the SIP is submitted.
With respect to the 15 percent plan due in November 1993, in section
2.4 of ``Guidance on the Adjusted Base Year Emissions Inventory and the
1996 Target for 15 Percent Rate-of-Progress Plans'' (EPA-452/R-92-005)
EPA stated: ``If other significant changes occur in emissions factors
or methodologies before which time it is impossible for states to make
adjustments to their 15 percent calculations and associated control
strategies, then EPA may require states to make corrections to the base
year emissions inventory, as well as to the adjusted base year
inventory and the 1996 target level of emissions.'' This guidance
discussed the then pending transition from the MOBILE4.1 model to the
MOBILE5 model but only prospectively, by requiring that emissions
values calculated using MOBILE4.1 would have to be recalculated using
MOBILE5 before
[[Page 25708]]
submittal of the final ROP plans in November 1993.
Likewise with respect to the post-1996 ROP plans, EPA has advised
the states when changes in emissions factors or in methodologies for
developing emissions inventories would force revisions to the
inventories or plans. Changes would be necessary if they occurred
before the plan was submitted. ``However, if such changes occur after
November 15, 1991, but prior to November 15, 1994, a serious or above
area may be required to make corrections to the base year inventory and
attainment year projection inventory for purposes of developing the 3
percent rate-of-progress demonstration. If such changes occur after
November 15, 1994, EPA will advise on when it would be appropriate for
the states to make corrections in future supplements to this General
Preamble.'' 57 FR at 13517 (April 16, 1992). In the context of the
guidance, ``November 15, 1994'' would mean the date by which the post-
1996 plan was due. In the case of the Washington area, the 1996-1999
ROP plans were due on November 15, 1994 because the area was serious
nonattainment area, and the 1999-2005 ROP plans were due by March 1,
2004, which was the date established in our final rule reclassifying
the Washington area to severe nonattainment. See 68 FR 3410 at 3422,
January 24, 2003.
From the States' perspective, the baseline per capita emission
factor of 4.5 pounds per person per year (lbs/p/yr) for the AIM
coatings source category could be seen as a change in factors and
methodologies which occurred after the SIP is submitted. As for the
1996-1999 ROP plans, EPA notes that the plan was projected to have a
surplus of 14 tons per day in VOC emission reductions. Nor did EPA
propose that the States do so in the NPR (70 FR 2085) prepared for this
action. Indeed, to require the States to revise completed plans every
time a new emission factor or changed methodology is announced would
lead to significant costs and potentially endless delays in the
approval processes. In the case of the 1996-1999 ROP plans, any
possible claim that EPA required a ``changed methodology'' would have
to accept that the ``changed methodology'' came to light years after
the 1996-1999 ROP plans were submitted. For the policy reasons stated
previously, EPA has not required the States revise their 1996-1999 ROP
plans for the Washington area.
Additional Response to the Second Set of Comments. EPA further
believes that the second set of comments misstates the role CARB data
played in the EPA's estimate of the OTC rule reduction. EPA used data
from CARB to ascertain an end point for the OTC rule (post-OTC rule per
capita emission factor) not a 1990 baseline factor. EPA did so in order
to evaluate the States' reduction claims using methods other than those
used by the States for the reasons stated in the January 12, 2005 (70
FR 2085) NPR.
IV. Comment Received on the Attainment Demonstration and EPA's Response
We received the following additional comments adverse to the
proposed approval of the attainment plans. In addition to comments that
are unique to the attainment plan (set forth in sections IV. A. and IV.
B of this document), we also received a number of comments identical to
those submitted in relation to the ROP plans, VMT Offset SIPs, and
contingency measure plans, to which we responded in section III of this
document. We have set forth in this section of this document each
comment we received relevant to the attainment demonstrations and plans
and respond separately to it even if that comment is identical to a
comment to which we responded in section III. A summary of these
additional adverse comments that we received on our proposed action to
approve the attainment plans for the Washington area and our responses
follows.
A. Comment on the Attainment Demonstration Modeling
Comment: We received a comment asserting that the SIP does not
demonstrate attainment as required by the Act. The comment alleges that
attainment is not demonstrated using photochemical grid modeling, or
other analytical tool which EPA has determined to be at least as
effective, that the WOE approach does not satisfy the CAA's requirement
to assure attainment as expeditiously as practicable or the CAA's
requirement for a modeled demonstration of attainment, that EPA
provides no evidence that the core assumption underlying its WOE
approach--i.e., that ozone will be reduced in the same proportion as
emissions--is valid. The comment alleges that such an assumption
conflicts with EPA's own repeated findings that the relationship
between ozone formation and precursor emissions is nonlinear, and
cannot be accurately predicted by means other than photochemical grid
models. The comment also asserts that the photochemical grid model used
in the modeled demonstration of attainment and WOE analysis is not
based upon a photochemical grid model that represents sound science and
that meets current regulations and guidance. Therefore, the comment
claims EPA cannot approve the WOE determination.
Response: Attainment Is Demonstrated Using Photochemical Grid
Modeling, the Woe Approach Satisfies the Act Requirements. The
photochemical grid modeling runs used in the pre-2001 SIP revisions'
attainment plan are the same as those photochemical grid modeling runs
used in the February 2004 SIP revisions which are the subject of this
final rule. The WOE analytical methods and/or analyses that support the
modeled demonstration of attainment in the February 2004 SIP revisions,
which are the subject of this final rule, include the same WOE
analytical methods and/or analyses that supported the modeled
demonstration of attainment which were the subject of the April 17,
2003 final rule (68 FR 19106). In addition, as noted in section IV. A.
2. of the January 31, 2005 TSD prepared for the February 9, 2005 NPR
(70 FR 6796) the States provided additional WOE in the form of the
results of EPA's photochemical grid modeling performed for the Tier 2
final rule. See, sections VI. A. of ``Technical Support Document for
Approval and Promulgation of Air Quality Implementation Plans; District
of Columbia, Maryland, and Virginia; Attainment Demonstration for the
Metropolitan Washington, DC Nonattainment Area,'' dated January 31,
2005.
EPA had received a comment from the same commenter alleging the
same deficiencies of WOE for the same photochemical grid modeling runs
and some of the same adjunct WOE analyses when EPA conditionally
approved the pre-2001 SIP revisions' attainment plan. Specifically the
commenter had alleged that photochemical grid modeling shows that the
Washington area will not attain the ozone standard by the November 2005
attainment date and because the WOE analysis used by EPA to conclude
that the Washington area has demonstrated attainment by November 2005
is not authorized by the Act or by EPA rules. The commenter had claimed
that the modeling demonstration and WOE used in the attainment
demonstration for the Washington area do not meet requirements of
section 182(c) of the [Act] and EPA's own regulations for photochemical
grid modeling and other analytical methods, that the WOE is an
alternative method to photochemical grid modeling which has not been
shown to be equally effective to the Urban Airshed Model (UAM), and
that
[[Page 25709]]
WOE is a proscribed rollback method. See 68 FR 19106 at 19111/3, April
17, 2003.
The claim in the comment from the same commenter received during
the public comment period for this rulemaking ``that ozone will be
reduced in the same proportion as emissions'' merely restates the claim
that the WOE approach relies upon ``'proportional''' rollback.
Likewise, the comment on this rulemaking assert that the modeled
demonstration of attainment does not meet the CAA's requirement for a
modeled demonstration of attainment or that attainment is not
demonstrated using a photochemical grid model and that WOE does not
demonstrate timely attainment simply restate, with less specificity,
comment made by the same commenter on our April 17, 2003 final rule, 68
FR 19106. See 68 FR 5246, February 3, 2003.
EPA provided responses to these comments in our April 17, 2003
final rule (68 FR 19106) and incorporates our responses in the April
17, 2004 final rule by reference, particularly those in response to
``comment 1'' on pages 19111 to 19112 of the April 17, 2003 final rule.
See 68 FR 19112-19115, April 17, 2003.
Furthermore, this commenter's assertions that EPA's use of
photochemical grid modeling with an adjunct WOE analysis does not
demonstrate timely attainment, violates statutory requirements of the
Act and does not constitute a ``modeled demonstration of attainment,''
encompasses all those issues related to WOE that the commenter has
restated in this rulemaking, and were briefed and litigated to
conclusion in a suit brought by the commenter against EPA. See Sierra
Club v. EPA, 356 F.3d at 304-07; see also Initial Opening Brief of
Petitioner Sierra Club, Docket No. 03-1084 (June 23, 2003), pp. 25-37;
Final Reply Brief of Petitioner Sierra Club, Docket No. 03-1084
(September 22, 2003), pp. 8-19. The Court of Appeals' decision
upholding the very same photochemical grid modeling and WOE that is at
issue herein (as resubmitted by the States and supplemented with an
analysis of the effects of the Tier 2 rule that strengthened the
conclusion of the WOE analysis), is binding on both EPA and the
commenter. After extensively analyzing the record, the Court of Appeals
resolved the commenter's claims in EPA's favor with respect to the
Urban Airshed Model-IV (UAM-IV) and the WOE analysis, stating:
``[P]hotochemical modeling [using the UAM-IV] is the primary
basis for the attainment demonstration,'' while the [WOE] ``is
merely an adjunct for assessing the photochemical grid modeling. * *
* '' [T]hat analysis was employed to ensure that the model achieved
its statutory purpose: determining whether the SIPs actually
``provide for attainment of the ozone national ambient air quality
standard by the applicable attainment date.'' 42 U.S.C.
7511a(c)(2)(A). And the adjustments appear well-suited to that end,
as they do no more than correct for the model's over-prediction of
ozone levels as compared to actual observations, and for its
reliance on a base day that appears to be a statistical outlier.
See, Sierra Club v. EPA, 356 F.3d at 306.
Res judicata bars re-litigation not only of matters determined in a
previous litigation but also ones that a party could have raised. * * *
Collateral estoppel further bars parties from re-litigating issues of
law or fact resolved in prior cases between those parties. * * * (When
a court determines an issue of fact or law that is actually litigated
and necessary to its judgment, that conclusion binds the same parties
in a subsequent action.).'' Appalachian Power Co. v. EPA, 251 F.3d
1026, 1033-34 (D.C. Cir. 2001) (internal citations and quotations
omitted). While EPA believes that the commenter is precluded from re-
litigating the binding holding of the court in Sierra Club v. EPA with
respect to the validity of WOE analyses, EPA reiterates that, as
articulated and explained in the April 17, 2004 final conditional
approval rule at 68 FR 19112-19115, April 17, 2003, WOE in general as a
supplement to photochemical grid modeling, and Washington Area WOE
analysis in particular (as upheld by the Court of Appeals), is a valid
tool for demonstrating attainment with the NAAQS. The Washington Area
WOE analysis demonstrates that the Washington Area will timely attain
the 1-hour ozone NAAQS for all the reasons previously explained in the
April 17, 2004 final conditional approval.
EPA continues to believe that the commenter is wrong on the law, as
EPA's use of WOE as an analytical adjunct to photochemical grid
modeling has been successfully litigated to conclusion several times.
Each time the Court of Appeals has upheld both EPA's interpretation of
the Act to allow supplemental analysis to photochemical grid modeling
to demonstrate attainment, and EPA's determination that each of the WOE
analyses at issue, including the core of the WOE analysis at issue in
the conditional approval and in this current rulemaking, was valid. See
356 F.3d at 304-07; Environmental Defense v. EPA, 369 F.3d 193, 203-07
(2d Cir. 2004); BCCA Appeal Group v. EPA, 348 F.3d 817, 203-09 (5th
Cir. 2003). Accord, 1000 Friends of Maryland v. Browner, 265 F.3d 216,
234 (4th Cir. 2001).
The Amendments to Appendix W Do Not Preclude Use of UAM-IV. EPA
disagrees that the use of the UAM-IV for photochemical grid modeling
represents a reason to disapprove the attainment plan even though UAM-
IV is no longer on the list of refined models that are preferred or
recommended for use in regulatory applications. EPA notes that no other
photochemical grid models for modeling urban areas are on the preferred
list found in Appendix A to Appendix W to 40 CFR part 51, even though
the Act reflects a clear preference, or, in the case of serious and
worse areas, essentially mandates that a modeled demonstration of
attainment be based on photochemical grid modeling. 42 U.S.C.
7511a(c)(2)(A); (j)(1)(B). All photochemical grid models for modeling
ozone in urban areas are on EPA's list of alternative models which is
now posted on the internet as opposed to being issued as Appendix B to
Appendix W to 40 CFR part 51.
Nothing in the Appendices to 40 CFR part 51 indicate that EPA may
no longer rely on UAM-IV modeling, or that other photochemical grid
models are mandated for use in lieu of UAM-IV. The ``[s]imulation of
ozone formation and transport is a highly complex and resource
intensive exercise. Control agencies with jurisdiction over areas with
ozone problems are encouraged to use photochemical grid models, such as
the Models-3/Community Multi-scale Air Quality (CMAQ) modeling system *
* * to evaluate the relationship between precursor species and ozone.''
See section 6.2.1.a. ``Choice of Models for Multi-source Applications''
in Appendix W to 40 CFR part 51 (emphases added); see also 68 FR at
18457-18458, April 15, 2003.
Explicitly, the ``[d]etermination of acceptability of a model is a
Regional Office responsibility. Where the Regional Administrator finds
that an alternative model is more appropriate than a preferred model,
that model may be used subject to the recommendations of this
subsection. This finding will normally result from a determination that
(1) a preferred air quality model is not appropriate for the particular
application; or (2) a more appropriate model or analytical procedure is
available and applicable. (emphasis added). See section 3.2.2 in
Appendix W to 40 CFR part 51. See 68 FR at 18452, April 15, 2003.
In this case, the States had submitted the pre-2001 SIP revisions'
attainment plan which demonstrated that the States had sufficient
measures in the SIP to demonstrate that the Washington area
[[Page 25710]]
would attain the 1-hour ozone NAAQS no later then November 15, 2005.
EPA acknowledged that the SIP could not be fully approved at that time
because the States had not demonstrated that all RACM had been adopted
and the plan lacked certain other elements which we initially
identified in our February 3, 2003 proposed conditional approval. See
68 FR 5246, February 3, 2003. All that adoption of additional rules as
RACM would have done to the attainment plan would be to strengthen the
WOE that the area would timely attain or advance the date by which the
area would attain. Of the other elements noted as needing revision
under the conditional approval, the only one which could possibly have
implicated the modeling demonstration was a proposed condition that
required the States to commit to revise and submit to the EPA by April
17, 2004, an updated attainment plan SIP that reflects revised MOBILE6-
based MVEBs, including revisions to the attainment modeling and/or WOE
demonstration, as necessary, to demonstrate that the SIP continues to
demonstrate attainment by November 15, 2005. See 68 FR at 5253, 5258,
5260-5261, February 3, 2003. We included this condition in our April
17, 2003 (68 FR 19106) final rule conditionally approving the pre-2001
SIP revisions' attainment plan.
The States readily agreed to this condition because, in their pre-
2001 SIP revisions' attainment plan, the States had included a
commitment to revise the 2005 attainment MVEBs within one-year of the
EPA's release of the MOBILE6 model. See 66 FR at 631-632 (regulatory
text for 40 CFR 52.476(c), 52.1076(g) and 52.2428(d)), January 3, 2001.
By the time we issued the April 17, 2003 conditional approval EPA had
released the MOBILE6 model and its implementing guidance. That guidance
does not mandate redoing the entire modeling demonstration due to a
change in the MVEBs.\36\ EPA reasonably believes that the Act does not
mandate a revision to the photochemical grid modeling due to a change
in the MVEBs, and, this interpretation has been upheld on review. See
1000 Friends of Maryland v. Browner, 265 F.3d 216 (4th Cir. 2001). EPA
concludes that where MVEBs are changed the state must analyze the
impacts of such change on the modeled attainment demonstration, but
that the state need not rerun the entire model.
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\36\ See, Joint memorandum dated January 18, 2002, From John S.
Seitz, Director, Office of Air Quality Planning & Standards, and
Margo Tsirigotis Oge, Director of Office of Transportation and Air
Quality, ``Policy Guidance for the Use of MOBILE6 in SIP Development
and Transportation Conformity.''
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In this case EPA believes that disapproving the February 2004 SIP
revisions based on alleged defects in the modeling demonstration for
the reason cited in the comment would be arbitrary and capricious
because in the February 3, 2003 notice of proposed rulemaking (68 FR
5246) EPA did not propose to require that the States redo the
photochemical grid modeling. Because, as of February 3, 2003, the
changes to Appendix W to 40 CFR part 51 had not been issued, only,
proposed,\37\ EPA believes that it would not have been appropriate to
disapprove the SIP revisions in the April 17, 2003 final rule which was
the final action issued pursuant to the February 3, 2003 NPR. We
believe that it would not be appropriate to disapprove the SIP
revisions now because the States have relied on the same photochemical
grid modeling analysis for the February 2004 SIP revisions as they
previously did.
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\37\ The final rule amending Appendix W was signed on April 2,
2003, nearly two months after the proposed conditional approval.
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In addition, the modeled demonstration of attainment does not
depend solely upon the UAM-IV modeling results. The WOE contained in
the February 2004 SIP revisions relied upon EPA's modeling conducted
for the NOX SIP call and the Tier 2 rulemaking. These
modeling rules relied upon photochemical grid modeling that used the
UAM-V and/or the CAMx models. See, 63 FR 57356 at 57381,
October 27, 1998; ``Technical Support Document for the Tier 2/Gasoline
Sulfur Ozone Modeling Analyses,'' EPA420-R-99-031, December 1999. The
UAM-V and the CAMx models are among those listed on the
replacement for what was formerly Appendix B of the Guideline on Air
Quality Models (Appendix W to 40 CFR Part 51). ``The models listed in
this section are: ADAM, ADMS, AFTOX, ASPEN, CAMx, CMAQ,
DEGADIS, HGSYSTEM, HOTMAC, HYROAD, OZIPR, OBODM, Panache, PLUVUEII,
REMSAD, SCIPUFF, SDM, SLAB, UAM-V.'' (See http://www.epa.gov/scram001/tt22.htm#altmod, last checked April 6, 2005). For these reasons, EPA
believes the Regional Administrator appropriately and reasonably
exercised the discretion afforded by Appendix W to allow the continued
use of the UAM-IV modeling results in this particular case.
Furthermore, the law is well established that res judicata bars re-
litigation not only as to all matters actually determined in prior
litigation, but also as to all matters that might have been determined.
See, e.g., Appalachian Power, supra, at 1033-34; Natural Resources
Defense Council, Inc. v. Thomas, 838 F.2d 1224, 1235 (D.C. Cir. 1988).
EPA proposed to remove UAM-IV as obsolete on April 21, 2001. 65 FR
21506. EPA proposed the conditional approval based on WOE. See 68 FR
5246, February 3, 2003. As noted previously, EPA took final action to
remove UAM-IV as obsolete on April 15, 2003, 68 FR 18440, two days
before final action on the conditional approval, April 17, 2003. See 68
FR at 19121. The commenter did not raise the issue that UAM-IV was no
longer a preferred model listed in Appendix A of Appendix W to 40 CFR
51 in its comments on the conditional approval, and in the subsequent
litigation over that EPA action, although it could have, although the
commenter had raised the general issue that the modeling demonstration
and WOE used in the modeled demonstration of attainment for the
Washington area did not meet requirements of section 182(c) of the Act
and EPA's own regulations for photochemical grid modeling and other
analytical methods.\38\ See 68 FR at 19111, April 17, 2003. Res
judicata would bar raising the UAM-IV claim now as it could have been
litigated in the suit over EPA's conditional approval. Nevertheless,
and without waiving its contention that res judicata and/or collateral
estoppel bar litigation of the UAM-IV claim, for the reasons stated
previously in this response, EPA believes: (1) The Regional
Administrator appropriately and reasonably exercised the discretion
afforded by Appendix W to allow the continued use of the UAM-IV
modeling results in this particular case, (2) EPA's guidance is
reasonable and is not a
[[Page 25711]]
proportional rollback, (3) WOE and the photochemical grid modeling used
to demonstrate attainment is consistent with the Act and EPA
regulations.
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\38\ The fact that EPA had not finalized its proposed removal of
UAM-IV as an approved model was no bar to raising this issue in the
litigation over the Conditional Approval. Section 307(d)(7)(B) of
the Act specifically allows, if certain conditions are met, for
comment on a rule after the comment period was closed if ``it was
impracticable to raise such objection within such time or if the
grounds for such objection arose after the period for public
comments (but within the time specified for judicial review. * * *
'' Although EPA's proposal clearly demonstrated its intention to
remove the UAM-IV as a preferred model three years prior to the
opening of the comment period on the Conditional Approval, EPA's
final action on the UAM-IV occurred just two days prior to the
Conditional Approval, thereby arising within the time period
specified by Section 307(d)(7)(B). Importantly, the commenter did
not invoke this administrative reconsideration provision of the Act
at the time of the conditional approval. Had the Court of Appeals
not vacated and remanded the conditional approval for reasons
entirely unrelated to the WOE analysis issue, the commenter would
not have been afforded opportunity to attempt add to the record on
WOE.
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B. Comment On the MVEBs
Comment: We received a comment that EPA cannot approve the MVEBs in
the attainment plan SIP because the NOX budgets are 70 tons
per day higher than those in the previous attainment SIP budget for the
same year. The comment claims that the MVEBs in the previous attainment
plan were inadequate because that SIP did not demonstrate attainment
with photochemical grid modeling as required by the Act and did not
include all reasonably available transportation control measures. The
comment asserts that because the MVEBs in the previous attainment plan
were inadequate EPA cannot approve the NOX MVEBs that are 70
tons per day higher and that EPA does not demonstrate, with
photochemical grid modeling as required by the Act, how it can assure
attainment in 2005 with such a major increase in allowable motor
vehicle emissions.
Response: EPA disagrees with the comment that the MVEBs in the SIP
revisions are inadequate. EPA had proposed to conditionally approve the
previous attainment plan and in the alternative to disapprove the
attainment plan with a protective finding that would allow the MVEBs to
be used for transportation conformity purposes. Our proposed protective
finding was based upon our conclusion that the pre-2001 SIP revisions'
attainment plan, which were the subject to the February 3, 2003 notice
of proposed rulemaking, had demonstrated that the Washington area will
attain the 1-hour ozone NAAQS no later than November 15, 2005, by
providing enough reductions with adopted measures to demonstrate
attainment. See 68 FR at 5259, February 3, 2003. Our final conditional
approval was granted on the basis that the pre-2001 SIP revisions'
attainment plan did demonstrate attainment with photochemical grid
modeling as required by the Act. We granted a conditional, rather than
a full approval solely on the basis that the pre-2001 SIP revisions'
attainment plan lacked some adopted measures required by an attainment
plan for a severe ozone nonattainment area. See 68 FR 19106 (April 17,
2003). While the conditional approval itself was vacated, our
determination that the modeled demonstration of attainment in the pre-
2001 SIP revisions' attainment plan demonstrated attainment with
photochemical grid modeling as required by the Act was specifically
upheld. Sierra Club v. EPA, 356 F.3d at 304-307.
The conditional approval was predicated in part upon the States
revising and submitting to the EPA by April 17, 2004, SIP revisions
constituting an update to the attainment plan incorporating MOBILE6-
based MVEBs. Further, the States would need to include in the submittal
revisions to the attainment modeling and/or WOE demonstration, as
necessary, to show that the SIP would continue to demonstrate
attainment by November 15, 2005. See 68 FR at 5258, February 3, 2003.
EPA acknowledged at the time of the conditional approval the
possibility that the MVEBs in the pre-2001 SIP revisions' attainment
plan might not have included all RACM or all adopted transportation
control strategies and TCMs to offset increases in emissions resulting
from growth in VMT or numbers of vehicle trips and to obtain reductions
in motor vehicle emissions as necessary (in combination with other
emission reduction requirements) to comply with the CAA's ROP
milestones and attainment demonstration requirements. We had
conditioned approval of the pre-2001 SIP revisions' attainment plan
upon the States adopting any remaining RACM and any required TCMs. See
68 FR at 19106-19107, 19129-19130 (April 17, 2004).
For the reasons outlined in our notices of proposed rulemakings,
and in conjunction with response to comments elsewhere in this
document, EPA has concluded that the SIP revisions now before us
demonstrate that all RACM has been adopted and that the SIP contains
all necessary transportation control strategies and TCMs to offset
increases in emissions resulting from growth in VMT or numbers of
vehicle trips and to obtain reductions in motor vehicle emissions as
necessary (in combination with other emission reduction requirements)
to demonstrate attainment and ROP.
EPA disagrees that the ``70'' ton per day increase from the mobile
sector is the only relevant criterion for analyzing the impact of the
MVEBs. MVEBs exist in the context of the attainment plan and do not in
and of themselves determine whether an area will attain the NAAQS.
MVEBs merely are the amount of motor vehicle emissions allowed by a
control strategy SIP which consists of, among other things the
estimated further reductions from adopted rules affecting all source
categories including stationary and area sources in the States' SIPs or
promulgated by EPA. A change in the MVEBs higher or lower cannot, in a
vacuum, lead to a conclusion as to whether an area is still on track to
attain the NAAQS. Rather, the MVEBs must be considered in context, as
follows:
EPA first addressed the sufficiency of the attainment plan in our
first round of rulemaking on the pre-2001 SIP revisions' attainment
plan. See 68 FR at 5249 (February 3, 2003) (citing 64 FR 70460
(December 16, 1999); 66 FR 586 (January 3, 2001).
In the December 16, 1999 NPR we noted that the ``1998 SIP
revisions'' did not contain adequate MVEBs.\39\ In the December 16,
1999 (64 FR 70460), NPR, we also stated that:
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\39\ The ``1998 SIP revisions'' are those submittals listed in
Table 3 of this document which were submitted during calendar year
1998.
[A] motor vehicle emissions budget is the estimate of motor
vehicle emissions in the attainment year that when considered with
emissions from all other sources is consistent with attainment. The
attainment demonstrations for the Washington area contain levels of
modeled emissions that EPA concludes demonstrate attainment once
transport from upwind areas is addressed. The basis for this
conclusion will not be altered if the Washington area States can
demonstrate that the level of nonattainment area emissions in 2005
is equal to or less than the 1999 control strategy levels contained
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in the attainment demonstrations considering growth. 64 FR at 70473.
In other words, we required the States to revise the MVEBs and to
demonstrate that the SIP contained enough measures that when considered
with the revised 2005 MVEBs, the overall emissions levels in 2005,
taking into account growth through 2005, were less than or equal to the
levels of emissions assumed in the photochemical grid modeling. In the
TSD for the December 16, 1999 NPR we noted that the photochemical grid
modeling performed for the area had assumed local emissions levels of
360 TPD of VOC emissions and over 500 TPD of NOX
emissions.\40\ These were the local emissions levels the 1998 SIP
revisions projected the Washington area would have by 1999. The pre-
2001 SIP revisions' attainment plans were submitted to fulfill these
and other prerequisites for approval proposed in
[[Page 25712]]
the December 16, 1999 NPR. On January 3, 2001, we approved the pre-2001
SIP revisions' attainment plans.\41\ In the TSD for that rulemaking, we
concluded that the creditable measures upon which the pre-2001 SIP
revisions' attainment plan relied were projected to achieve emissions
levels of 356.7 TPD of VOC emissions and 403 TPD of NOX
emissions.\42\ The pre-2001 SIP revisions' attainment plan contained
MVEBs of 101.8 TPD of VOC emissions and 161.8 TPD of NOX
emissions. See 66 FR at 590, January 3, 2001. The pre-2001 SIP
revisions' attainment plans were later conditionally approved on April
17, 2004, 68 FR 19106, one condition of the approval being that the
States revise the budgets using the MOBILE6 model and revise, as
necessary, the attainment modeling and/or WOE demonstration to show
that the SIP continues to demonstrate attainment by November 15, 2005.
In the TSD prepared for this final rule, EPA concluded that even with
the higher MVEBs the SIP contained sufficient creditable measures
applying to all source categories to achieve overall emissions levels
in the Washington area of 331 TPD of VOC and 491 TPD of
NOX.\43\ Even though the February 2004 SIP revisions
contained the higher, 234.7 TPD of NOX MVEBs (and lower
motor vehicle VOC emissions budgets of 97.4 TPD) than the pre-2001 SIP
revisions' attainment plan (101.8 TPD for VOC and 161.8 TPD for
NOX), the overall emissions levels from all sources of 331
TPD of VOC and 491 TPD of NOX are still less than the levels
used in the photochemical grid modeling. Because the overall VOC and
NOX emissions are less than both the 360 TPD of VOC and over
500 TPD of NOX used in the photochemical grid modeling, EPA
concludes that the 70 ton increase in the NOX MVEB will not
adversely impact the Washington area's ability to timely attain the
one-hour ozone NAAQS.
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\40\ ``Technical Support Document for the One-Hour Ozone
Attainment Demonstrations submitted by the State of Maryland,
Commonwealth of Virginia and the District of Columbia for the
Metropolitan Washington, DC Ozone Nonattainment Area (DC039-2019,
VA090-5036, MD073-3045),'' dated November 30, 1999. See also,
``Technical Support Document for Approval and Promulgation of Air
Quality Implementation Plans; District of Columbia, Maryland, and
Virginia; Post-1996 Rate-of-Progress Plan, Contingency Measures,
Transportation Control Measures, 1990 Base Year Inventory Changes,
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment
Area,'' dated January 5, 2005.
\41\ That rule was vacated by the Court of Appeals for reasons
unrelated to the adequacy of the modeled demonstration of
attainment. See Sierra Club v. Whitman, 294 F.3d at 163.
\42\ Table II--Summary of Creditable Measures in ``Supplement to
Technical Support Document for the One-Hour Ozone Attainment
Demonstrations, Attainment Date Extension and Post-1996 Rate-of-
Progress Plans submitted by the State of Maryland, Commonwealth of
Virginia and the District of Columbia for the Metropolitan
Washington, DC Ozone Nonattainment Area and Commitment to Revise
Motor Vehicle Budgets for the Metropolitan Washington, DC Ozone
Nonattainment Area (DC-2025, VA-5052, MD-3064),'' dated December 15,
2000.
\43\ Table IV. F-1 Relative Reductions on page A-27 of
``Technical Support Document for Approval and Promulgation of Air
Quality Implementation Plans; District of Columbia, Maryland, and
Virginia; Attainment Demonstration for the Metropolitan Washington,
DC Nonattainment Area,'' dated January 31, 2005.
---------------------------------------------------------------------------
Comment: We received a comment claiming that EPA cannot approve the
MVEBs in the attainment plan because the attainment plan is based on a
``flawed WOE analysis'' and relies on an outdated photochemical model
and thus the modeled demonstration of attainment does not accurately
identify the mobile source budgets required to ensure timely
attainment.
Response: EPA disagrees with the comment. As explained elsewhere in
the response to comments portion of this document, EPA believes that
the both WOE analysis and the photochemical grid model upon which the
States relied meets the requirements of the Act, and EPA's regulations
and guidance. Therefore, EPA believes that the MVEBs consistent with
the attainment modeling would not be defective based upon any alleged
defects in the modeling.
Comment: We received a comment asserting that the photochemical
modeling runs for the modeled demonstration of attainment assumed motor
vehicle NOX emissions of 161.8 tons per day instead of the
motor vehicle NOX emissions budgets of 234.7 tons per day in
the attainment plan. The comment states that because EPA has found that
emissions projections determined using MOBILE6 are more accurate than
the MOBILE5 values relied on in the photochemical grid modeling runs
the States should have rerun the photochemical grid model with the
MOBILE6 values. The comment contends that the demonstration of
attainment is flawed because the demonstration assumes that 2005 ozone
levels will be no different even though NOX emissions will
be more than 72 tons per day higher than assumed in the photochemical
grid modeling runs and that because this conclusion of no increase in
2005 ozone levels is based not on photochemical grid modeling, but on
the conclusion that ozone levels in 2005 will be determined not by
actual 2005 emission levels but by the relative reduction in emissions
between the baseline and 2005. The comment claims that this assumption
is invalid because ozone levels do not respond in linear fashion to
emission changes and claim that EPA does not demonstrate, with
photochemical grid modeling as required by the Act, how it can assure
attainment in 2005 with such a major increase in allowable motor
vehicle emissions. The comment further alleges that this approach would
allow any absolute increase in projected 2005 emissions over the level
used in the photochemical grid modeling, as long as the ``relative
increase over baseline emissions is the same or less.''
Response: EPA disagrees with the comment because the comment assume
that in this case the overall emissions levels in the Washington area
in 2005 will be higher than those assumed in the photochemical grid
modeling for the attainment year because the MVEB for NOX
will be higher.
We have noted previously that the photochemical grid modeling
performed for the area had assumed local emissions levels of 360 TPD of
VOC emissions and over 500 TPD of NOX emissions in the
attainment year. In the TSD prepared for the February 9, 2005 NPR
(which is the notice of proposed rulemaking published for this final
rule), EPA concluded that even with the higher MVEBs the SIP would
contain sufficient creditable measures applicable to all source
categories to achieve emissions levels in the Washington area of 331
TPD of VOC and 491 TPD of NOX.\44\ Even though the February
2004 SIP revisions contained the higher 234.7 TPD NOX, MVEB
(and a lower VOC MVEB of 97.4 TPD) than the pre-2001 SIP revisions'
attainment plan (101.8 TPD for VOC and 161.8 TPD for NOX),
the overall emissions levels of 331 TPD of VOC and 491 TPD of
NOX are still less than the levels assumed in the
photochemical grid modeling. Therefore in the attainment year,
notwithstanding an increase in mobile source NOX emissions,
there is a decrease in overall emissions in the attainment year, not an
increase as implied by the commenter.
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\44\ Table IV. F-1 Relative Reductions on page A-27 of
``Technical Support Document for Approval and Promulgation of Air
Quality Implementation Plans; District of Columbia, Maryland, and
Virginia; Attainment Demonstration for the Metropolitan Washington,
DC Nonattainment Area,'' dated January 31, 2005.
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The comment that EPA's policy would allow any absolute increase in
projected 2005 emissions over the level used in the photochemical grid
modeling, as long as the ``relative increase over baseline emissions is
the same or less,'' is irrelevant because as discussed in the preceding
paragraph the overall emissions levels for the Washington area in 2005
are projected to be less than the overall levels assumed in the
photochemical grid modeling used in the demonstration of attainment.
That is, the February 2004 SIP revisions achieve emissions levels less
than that assumed in the photochemical grid modeling for the attainment
year and a greater relative emissions reduction between the 1990
baseline and 2005 attainment year. The
[[Page 25713]]
photochemical grid modeling for the Washington area shows that VOC and
NOX reductions, along or in combination, that go beyond
those assumed in the attainment year will result in additional
reduction in ozone concentrations. While ozone may not respond linearly
to reductions, the photochemical grid modeling for this area indicates
that ozone concentration does respond directionally to a reduction in
ozone precursors (a decrease in the ozone precursors VOC and
NOX will result in a decrease, not an increase in ozone
concentration, albeit not necessarily a proportional decrease).
Therefore the demonstration that this SIP will result in emissions
levels of ozone precursors at levels less than that assumed in the
photochemical grid modeling for the attainment year, along with a
showing of a greater relative emissions reduction, only adds to the WOE
that attainment is demonstrated.
EPA also believes that an upward revision of the MVEBs, which is
more than offset by other emissions reductions from other source
categories, does not mandate a new photochemical grid modeling
demonstration. EPA believes that, if an ozone attainment plan relied on
changes in emissions from the base year to an attainment or maintenance
year inventory to estimate via photochemical grid modeling the relative
changes in monitored ozone levels, that the attainment plan SIP
revision with revised MVEBs continues to demonstrate attainment of the
ozone NAAQS showing that the relative emission reductions between the
base year and the attainment are the same or greater using MOBILE6 than
they were using MOBILE5, and that projected emissions levels for the
attainment year are lower than those assumed in the modeling
demonstration. The Washington area attainment plan relies upon the use
of the photochemical modeling results in a relative manner, and, the
attainment plan shows a greater relative emission reduction with the
MOBILE6-based base year and attainment year MVEBs. See, Joint
Memorandum dated January 18, 2002, From John S. Seitz, Director, Office
of Air Quality Planning & Standards, and Margo Tsirigotis Oge, Director
of Office of Transportation and Air Quality, ``Policy Guidance for the
Use of MOBILE6 in SIP Development and Transportation Conformity.'' EPA
has reasonably interpreted the Act not to require new photochemical
grid modeling for every revision of a SIP. While section 182(c)(2)(A)
requires demonstrations of attainment for serious and above areas be
based upon photochemical grid modeling (or something equivalent), the
Act only establishes a time frame for the initial submittal of the
attainment demonstration and does not explicitly require new modeling
in connection with every SIP revision. The Act simply requires that the
demonstration of attainment be based upon photochemical grid modeling
and demonstrate attainment of the ozone NAAQS. See 1000 Friends of
Maryland v. Browner, 265 F.3d 216 (4th Cir. 2001) (``Nothing in
[section 182(c)(2)(A)] prohibits the use of previously performed
modeling if that modeling can show that the plan as revised will allow
the area to reach attainment'').
Comment: We received a comment asserting that photochemical grid
modeling runs and WOE analysis relied on by EPA in its 2001 approval of
the attainment plan assumed that motor vehicle NOX emissions
would be 161.8 tons per day and that neither EPA nor the States ever
proclaimed that were any surplus emission reductions under that
scenario. The comment contends that the photochemical grid modeling
runs showed continued nonattainment even with motor vehicle emissions
at that level and therefore EPA cannot find that motor vehicle
NOX emissions more than 72 tons per day higher than those
assumed in the photochemical grid modeling runs are consistent with
timely attainment.
Response: As discussed elsewhere in this document in section IV. A.
``Comment on the Attainment Demonstration Modeling,'' EPA disagrees
that the photochemical grid modeling runs showed continued
nonattainment even with motor vehicle NOX emissions at 161.8
TPD. This issue has previously been litigated by the commenter and
conclusively decided in EPA's favor. See Sierra Club v. EPA, 356 F.3d
at 304-307. As noted in our response to previous comments on the MVEBs,
EPA has concluded that the MVEBs must be analyzed in the context of the
entire SIP, and in that context EPA even with the higher MVEBs the SIP
contains sufficient creditable measures applicable to all source
categories to achieve overall emissions levels consistent with
attainment in a demonstration based on the submitted photochemical grid
modeling.
C. Comment on the ROP Plans and NOX Substitution
Comment: We received a comment asserting the ROP plans do not meet
the requirements to demonstrate a nine percent reduction in VOC
emissions from 1999 to 2002 and a further nine percent from 2002 to
2005 because the NOX substitution in the ROP plans is
impermissible. The comment asserts that the plan does not meet section
182(c)(2)(c) of the Act because the plan does not show that a nine
percent reduction in NOX emissions will result in the same
reduction in ozone concentration as a nine percent reduction in VOC
emissions. The comment asserts that EPA's reliance on our December 1993
NOX Substitution Guidance is flawed because the plain
language of the Act requires proof of actual equivalent benefits of
NOX substitution.
The comment also asserts that because the ROP plans for each of the
1999 to 2005 periods rely solely upon NOX reductions the
plans do not meet the requirement of section 182(c)(2)(C) because the
plan does not provide for some percentage of VOC reduction during each
period. The comment claims that the Act requires some non-zero
percentage reduction in VOC emissions for any ROP period. Finally, the
comment asserts that the Act requires the ROP plan to have VOC
reductions by November 15, 2002 to prevent a net increase in VOC
emissions by the 2002 milestone date, which would offset the progress
achieved by the nine percent NOX reductions. The comment
notes that the plan provides for such reductions but asserts that EPA
cannot approve the ROP plans because the plan does not provide for all
of these reductions by the 2002 milestone date.
Response: EPA disagrees with the comment and incorporates by
reference the response found in section III. A. ``Comment on the ROP
plans and NOX Substitution'' of this document.
D. Comment on the Transportation Demand Model (TDM) Used in the Plans
Comment: We received a comment asserting that the TDM used to
project the mobile source emissions does not properly predict traffic
volumes in the Washington area on roadways. The comment alleges that
the inaccuracies are significant enough that the results cannot form a
basis for predicting future motor vehicle emissions or the emission
cuts needed to demonstrate attainment of the 1-hour ozone NAAQS by
November 15, 2005.
Response: EPA disagrees with the comment and incorporates by
reference the response found in section III. B. ``Comment on the
Transportation Demand Model (TDM) Used in the plans'' of the this
document.
E. Comment on the VMT Offset SIP
Comment: We received a comment asserting that the SIP revisions are
[[Page 25714]]
deficient because they do not contain sufficient transportation control
measures (TCMs) to offset growth in emissions from growth in vehicle
miles traveled (VMT) or in trip numbers. The comment alleges that the
Act requires that the SIP offset any growth in emissions due to growth
in VMT or in trip numbers not a showing that overall motor vehicle
emissions are expected to decline.
Response: EPA disagrees with the comment and incorporates by
reference the response found in section III. C. ``Comment on the VMT
Offset SIP'' of this document.
F. Comment on the Contingency Measures Plans
Comment 1: We received a comment asserting that EPA cannot approve
the contingency measures which were identified in the SIP revisions to
address the Washington area's failure to attain by November 15, 1999.
The comment claims that, because these measures in the plan required
further action by the States, these contingency measures do not meet
the CAA's requirement that the measures take effect without further
action by the State or EPA after the failure to attain. The comment
also claims the contingency measures do not meet EPA's own guidance
which requires contingency measures to achieve reductions no later than
the year after the one in which the failure is identified because these
contingency measures identified by the SIP revision were not
implemented until 5 to 6 years after the failure to attain.
Response 1: EPA disagrees with the comment and incorporates by
reference the response to the comment labeled ``comment 1'' found in
section III. D. ``Comment on the Contingency Measures Plans'' of this
document.
Comment 2: We received a comment asserting that the contingency
plan for 2005 cannot rely on measures already adopted and in place or
to be in place before the 2005 attainment and ROP deadline. The comment
claims that the Act requires that contingency measures must be
additional measures that will be triggered by the attainment or
milestone failure, that is, the Act provision is prospective, not
retrospective.
Response 2: EPA disagrees with the comment and incorporates by
reference the response to the comment labeled ``comment 2'' found in
section III. D. ``Comment on the Contingency Measures Plans'' of this
document.
Comment 3: We received a comment that the Act requires a set of
contingency measures to address any failure to meet ROP requirements
for the 2002-2005 period, that is separate from those required for
failure to attain. The comment claims that the requirement for
contingency measures to address post-1996 milestone failures is
explicitly set out in the Act as an additional mandate in addition to
the requirement for contingency measures to address attainment
failures. The comment further claims that the 2005 ROP deadline here
could precede the attainment date if, in the case of an area which
qualifies for one or both of the 1-year attainment date extensions
allowed by the Act.
Response 3: EPA disagrees with the comment and incorporates by
reference the response to the comment labeled ``comment 3'' found in
section III. D. ``Comment on the Contingency Measures Plans'' of this
document.
Comment 4: We received a comment asserting that the contingency
plan does not meet EPA's guidance because the plan does not contain a
commitment for timely adoption of additional measures if the 3 percent
contingency plan is not adequate to correct a failure to attain or
achieve an ROP milestone.
Response 4: EPA disagrees with the comment and incorporates by
reference the response to the comment labeled ``comment 4'' found in
section III. D. ``Comment on the Contingency Measures Plans'' of this
document.
Comment 5: We received a comment asserting that the contingency
plan must contain some NOX reductions since the ROP and
attainment plans rely upon NOX reductions as well as VOC
reductions.
Response 5: EPA disagrees with the comment and incorporates by
reference the response to the comment labeled ``comment 5'' found in
section III. D. ``Comment on the Contingency Measures Plans'' of this
document.
Comment 6: We received a comment alleging that all of the emission
reductions from the continency measures are not ``surplus'' because
neither EPA nor the States have quantified the total VOC and
NOX reductions needed to attain by November 15, 2005. The
comment further claims that the use of a WOE approach in the modeled
demonstration of attainment is incapable of identifying the precise
level of emission reductions needed for attainment and thus does not
support the a claim that there are ``surplus'' reductions in the SIP
that can be used for ``contingency'' purposes.
Response 6: EPA disagrees with the comment and incorporates by
reference the response to the comment labeled ``comment 6'' found in
section III. D. ``Comment on the Contingency Measures Plans'' of this
document.
Comment 7: We received a comment asserting that the SIP cannot rely
on the reformulated gasoline program (RFG program) as a ``contingency''
measure to address the area's failure to attain by 1999, because the
RFG program became mandated by the Act once the Washington area missed
the 1999 attainment deadline. The comment claims that contingency
measures are measures in addition to those mandated by the Act. The
comment also claims that RFG was never intended as a contingency
measure and, thus, contrary to EPA's assertion, it is hardly a
``penalty'' to the nonattainment area to disallow contingency credit
for a measure that was never intended as a contingency measure, and
that was implemented at a time when the area was already years behind
schedule in adopting adequate ROP and attainment plans. The comment
further asserts that if the RFG program is a permissible contingency
measure the agency's guidance would obligate the states to ``backfill''
the measure with one year assuring equivalent reductions and that the
states have not done so.
Response 7: EPA incorporates by reference the response to the
comment labeled ``comment 7'' found in section III. D. ``Comment on the
Contingency Measures Plans'' of this document.
G. Comment on Protective Finding
We also received comment adverse to issuing a protective finding in
concert with a disapproval of the Maryland attainment plan. Because we
are not issuing a protective finding in this final rule, we do not
address this comment in this document. Our response to these comment
adverse to issuing a protective finding are addressed in the final rule
disapproving Maryland's attainment plan with a protective finding that
is published elsewhere in today's Federal Register.
V. Other Matters
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the
[[Page 25715]]
Commonwealth and takes prompt and appropriate measures to remedy the
violations. Virginia's Voluntary Environmental Assessment Privilege
Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from
disclosure documents and information about the content of those
documents that are the product of a voluntary environmental assessment.
The Privilege Law does not extend to documents or information (1) that
are generated or developed before the commencement of a voluntary
environmental assessment; (2) that are prepared independently of the
assessment process; (3) that demonstrate a clear, imminent and
substantial danger to the public health or environment; or (4) that are
required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts. * * * '' The opinion
concludes that ``[r]egarding [section] 10.1-1198, therefore, documents
or other information needed for civil or criminal enforcement under one
of these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by Federal law to maintain program delegation, authorization or
approval.''
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the Clean Air Act, including, for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by this, or any, state audit privilege or immunity law.
VI. Final Actions
A. The District of Columbia--1996-1999 ROP Plan
EPA is approving as a revision to the District's SIP the District
of Columbia's 1996-1999 ROP plan SIP revision for the Washington area
which was submitted on November 3, 1997, as supplemented on May 25,
1999. EPA is approving the 1999 MVEBs of 128.5 tons per day of VOC and
196.4 tons per day of NOX established and identified in the
Post 1996-1999 ROP plan.
B. The District of Columbia--1990 Base Year Inventory Revisions
EPA is approving as a revision to the District's SIP the revision
to the 1990 Base Year Emissions Inventory submitted by the District of
Columbia on September 5, 2003 as supplemented on February 25, 2004.
C. The District of Columbia--Post 1999-2005 Rate-of-Progress Plan and
TCMs
EPA is approving as a revision to the District's SIP the District
of Columbia's post 1999-2005 ROP plan SIP revision for the Washington
area which was submitted on September 5, 2003 as supplemented on
February 25, 2004 and the TCMs in Appendix J of the February 25, 2004
submittal. EPA is approving the 2002 MVEBs of 125.2 tons per day for
VOC and 290.3 tons per day of NOX and the 2005 MVEBs of 97.4
tons per day for VOC and 234.7 tons per day of NOX
established and identified in the Post 1999-2005 ROP Plan.
D. The District of Columbia--VMT Offset SIP
EPA is approving as a revision to the District's SIP the District
of Columbia VMT Offset SIP revision for the Washington area which was
submitted on September 5, 2003, as supplemented on February 25, 2004.
E. The District of Columbia--Contingency Measure Plan
EPA is approving as a revision to the District's SIP the District
of Columbia's contingency measure plan SIP revision for the Washington
area which was submitted on September 5, 2003, as supplemented on
February 25, 2004.
F. The District of Columbia--Attainment Demonstration and Plan
EPA is approving as a revision to the District's SIP the modeled
demonstration of attainment and adjunct WOE analyses that the
Washington area will attain the 1-hour ozone NAAQS by November 15, 2005
and the District's 1-hour ozone attainment plan for the Washington area
both of which were submitted on September 5, 2003 as supplemented on
February 25, 2004. EPA is approving the 2005 MVEBs of 97.4 tons per day
for VOC and 234.7 tons per day of NOX established and
identified in the attainment plan.
G. Maryland--Post 1996-1999 Rate-of-Progress Plan and TCMs
EPA is approving as a revision to the State of Maryland's SIP
Maryland's post 1996-1999 ROP plan SIP revision for the Washington area
which was submitted on December 24, 1997, as supplemented on May 20,
1999, and the TCMs in Appendix H of the May 20, 1999 submittal. EPA is
approving the 1999 MVEBs of 128.5 tons per day of VOC and 196.4 tons
per day of NOX established and identified in the Post 1996-
1999 ROP plan.
H. Maryland--1990 Base Year Inventory Revisions
EPA is approving as a revision to the State of Maryland's SIP the
revision to the 1990 Base Year Emissions Inventory submitted by
Maryland on September 2, 2003 as supplemented on February 24, 2004.
I. Maryland--Post 1999-2005 Rate-of-Progress Plan and TCMs
EPA is approving as a revision to the State of Maryland's SIP
Maryland's post 1999-2005 ROP plan SIP revision for the Washington area
which was submitted on September 2, 2003 as supplemented on February
24, 2004 and the TCMs in Appendix J of the February 24, 2004 submittal.
EPA is approving the 2002 MVEBs of 125.2 tons per day for VOC and 290.3
tons per day of NOX and the 2005 MVEBs of 97.4 tons per day
for VOC and 234.7 tons per day of NOX established and
identified in the Post 1999-2005 ROP Plan.
[[Page 25716]]
J. Maryland--VMT Offset SIP
EPA is approving as a revision to the State of Maryland's SIP
Maryland's VMT Offset SIP revision for the Washington area which was
submitted on September 2, 2003 as supplemented on February 24, 2004
K. Maryland--Contingency Measure Plan
EPA is approving as a revision to the State of Maryland's SIP
Maryland's contingency measure plan SIP revision for the Washington
area which was submitted on September 3, 2003, as supplemented on
February 24, 2004.
L. Maryland--Modeled Demonstration of Attainment and Determination That
Maryland's Submitted SIP Contains Measures That Fully Satisfy the
Emission Reduction Requirements Relevant to Attainment
EPA is approving as a revision to the State of Maryland's SIP the
modeled demonstration of attainment and adjunct WOE analyses that the
Washington area will attain the 1-hour ozone NAAQS by November 15,
2005, which was submitted on September 2, 2003 as supplemented on
February 24, 2004. EPA is issuing a determination that Maryland's
submitted SIP for the Washington area contains adopted control measures
that fully satisfy the emission reduction requirements relevant to
attainment of the 1-hour ozone NAAQS in the Washington area by November
15, 2005.
M. Virginia--Post 1996-1999 Rate-of-Progress Plan and TCMs
EPA is approving as a revision to the Commonwealth of Virginia's
SIP Virginia's post 1996-1999 ROP plan SIP revision for the Washington
area which was submitted on December 29, 1997, as supplemented on May
25, 1999, and the TCMs in Appendix H of the May 25, 1999 submittal. EPA
is approving the 1999 MVEBs of 128.5 tons per day of VOC and 196.4 tons
per day of NOX established and identified in the Post 1996-
1999 ROP plan.
N. Virginia--1990 Base Year Inventory Revisions
EPA is approving as a revision to the Commonwealth of Virginia's
SIP Virginia's revision to the 1990 Base Year Emissions Inventory which
was submitted on August 19, 2003 as supplemented on February 25, 2004.
O. Virginia--Post 1999-2005 Rate-of-Progress Plan and TCMs
EPA is approving as a revision to the Commonwealth of Virginia's
SIP Virginia's post 1999-2005 ROP plan SIP revision for the Washington
area which was submitted on August 19, 2003 as supplemented on February
25, 2004 and the TCMs in Appendix J of the February 25, 2004 submittal.
EPA is approving the 2002 MVEBs of 125.2 tons per day for VOC and 290.3
tons per day of NOX and the 2005 MVEBs of 97.4 tons per day
for VOC and 234.7 tons per day of NOX established and
identified in the Post 1999-2005 ROP Plan.
P. Virginia--VMT Offset SIP
EPA is approving as a revision to the Commonwealth of Virginia's
SIP Virginia's VMT Offset SIP revision for the Washington area which
was submitted on August 19, 2003, as supplemented on February 25, 2004.
Q. Virginia--Contingency Measure Plan
EPA is approving as a revision to the Commonwealth of Virginia's
SIP Virginia's contingency measure plan SIP revision for the Washington
area which was submitted on August 19, 2003, as supplemented on
February 25, 2004.
R. Virginia--Attainment Demonstration and Plan
EPA is approving as a revision to the Commonwealth of Virginia's
SIP the modeled demonstration of attainment and adjunct WOE analyses
that the Washington area will attain the 1-hour ozone NAAQS by November
15, 2005 and Virginia's SIP Virginia's 1-hour ozone attainment plan for
the Washington area both of which were submitted on August 19, 2003 as
supplemented on February 25, 2004. EPA is approving the 2005 MVEBs of
97.4 tons per day for VOC and 234.7 tons per day of NOX
established and identified in the attainment plan.
VII. Statutory and Executive Order Reviews
A. General Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not
have tribal implications because it will not have a substantial direct
effect on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes,
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).
This action merely approves a state rule implementing a Federal
requirement, and does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. This rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
B. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides
[[Page 25717]]
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 July 12, 2005. 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 District's and Virginia's
base year inventory revision, ROP, VMT Offset, contingency measure and
attainment plans, MVEBs and TCMs, Maryland's base year inventory
revision, TCMs, and ROP, VMT Offset and contingency measure plan, and
Maryland's modeled demonstration of attainment and demonstration that
its submitted SIP for the Washington area contains adopted control
measures that fully satisfy the emissions reductions requirements
relevant to attainment of the 1-hour ozone NAAQS may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Dated: May 3, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart J--District of Columbia
0
2. In Sec. 52.470, the table in paragraph (e) is amended by adding at
the end of the table, the entries for 1996-1999 Rate-of-Progress Plan,
1990 Base Year Inventory Revisions, Post 1999-2005 Rate-of-Progress
Plan and Transportation Control Measures (TCMs) in Appendix J, VMT
Offset SIP, Contingency Measure Plan and 1-hour Ozone Modeled
Demonstration of Attainment and Attainment Plan to read as follows:
Sec. 52.470 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
Applicable
Name of non-regulatory SIP geographic or State EPA approval date Additional
revision nonattainment area submittal date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
1996-1999 Rate-of-Progress plan Washington 1-hour 11/3/1997, 5/13/05............ 1999 motor vehicle
SIP. ozone 5/25/1999 [Insert page number emissions budgets
nonattainment. where the document of 128.5 tons per
begins]. day (tpy) of VOC
and 196.4 tpy of
NOX.
1990 Base Year inventory Washington 1-hour 9/5/2003, 5/13/05............ ...................
Revisions,. ozone 2/25/2004 [Insert page number
nonattainment area. where the document
begins].
1999-2005 Rate-of-Progress Plan Washington 1-hour 9/5/2003, 5/13/05............ Only the TCMs in
SIP Revision and the ozone 2/25/2004 [Insert page number Appendix J of the
Transportation Control Measures nonattainment area. where the document 2/25/2004
(TCMs) in Appendix J. begins]. revision, 2002
motor vehicle
emissions budgets
(MVEBs) of 125.2
tons per day (tpy)
for VOC and 290.3
tpy of NOX, and,
2005 MvEBs of 97.4
tpy for VOC and
234.7 tpy of NOX.
VMT Offset SIP Revision.......... Washington 1-hour 9/5/2003, 5/13/05............ ...................
ozone 2/25/2004 [Insert page number
nonattainment area. where the document
begins].
Contingency Measure Plan......... Washington 1-hour 9/5/2003, 5/13/05............ ...................
ozone 2/25/2004 [Insert page number
nonattainment area. where the document
begins].
1-hour Ozone Modeled Washington 1-hour 9/5/2003, 5/13/05............ 2005 motor vehicle
Demonstration of Attainment and ozone 2/25/2004 [Insert page number emissions budgets
Attainment Plan. nonattainment area. where the document of 97.4 tons per
begins]. day (tpy) for VOC
and 234.7 tpy of
NOX.
----------------------------------------------------------------------------------------------------------------
Subpart V--Maryland
0
3. In Sec. 52.1070, the table in paragraph (e) is amended by adding at
the end of the table, the entries for 1996-1999 Rate-of-Progress Plan
and Transportation Control Measures (TCMs) in Appendix H, 1990 Base
Year Inventory Revisions, Post 1999-2005 Rate-of-Progress Plan and
Transportation Control Measures (TCMs) in Appendix J, VMT Offset SIP,
Contingency Measure Plan and Modeled Demonstration of Attainment to
read as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(e)* * *
[[Page 25718]]
----------------------------------------------------------------------------------------------------------------
Applicable
Name of non-regulatory SIP geographic or State EPA approval date Additional
revision nonattainment area submittal date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
1996-1999 Rate-of-Progress Plan Washington DC 1- 12/20/1997, 5/13/05............ Only the TCMs in
SIP and the Transportation hour ozone 5/20/1999 [Insert page number Appendix H of the
Control Measures (TCMs) in nonattainment area. where the document 5/20/1999
Appendix H. begins]. revision, 1999
motor vehicle
emissions budgets
of 128.5 tons per
day (tpy) of VOC
and 196.4 tpy of
NOX.
1990 Base Year Inventory Washington DC 1- 9/2/2003, 5/13/05............
Revisions. hour ozone 2/24/2004 [Insert page number
nonattainment area. where the document
begins].
1999-2005 Rate-of-Progress Plan Washington DC 1- 9/2/2003, 5/13/05............ Only the TCMs in
SIP Revision and the hour ozone 2/24/2004 [Insert page number Appendix J of the
Transportation Control Measures nonattainment area. where the document 2/24/2004
(TCMs) in Appendix J. begins]. revision, 2002
motor vehicle
emissions budgets
(MVEBs) of 125.2
tons per day (tpy)
for VOC and 290.3
tpy of NOX, and,
2005 MVEBs of 97.4
tpy for VOC and
234.7 tpy of NOX.
VMT Offset SIP Revision.......... Washington DC 1- 9/2/2003, 5/13/05............
hour ozone 2/24/2004 [Insert page number
nonattainment area. where the document
begins].
Contingency Measure Plan......... Washington, DC Area 9/2/2003, 5/13/05............
2/24/2004 [Insert page number
where the document
begins].
1-hour Ozone Modeled Washington DC 1- 9/2/2003, 5/13/05............
Demonstration of Attainment. hour ozone 2/24/2004 [Insert page number
nonattainment area. where the document
begins].
----------------------------------------------------------------------------------------------------------------
0
4. Section 52.1073 is revised by adding paragraph (f) to read as
follows:
Sec. 52.1073 Approval status.
* * * * *
(f) EPA is issuing a determination that Maryland's submitted SIP
for the Washington area contains adopted control measures that fully
satisfy the emission reduction requirements relevant to attainment of
the 1-hour ozone NAAQS in the Washington area by November 15, 2005.
Subpart VV--Virginia
0
5. In Sec. 52.2420, the table in paragraph (e) is amended by adding at
the end of the table, the entries for 1996-1999 ROP Plan and
Transportation Control Measures (TCMs) in Appendix H, 1990 Base Year
Inventory Revisions, Post 1999-2005 Rate-of-Progress Plan and
Transportation Control Measures (TCMs) in Appendix J, VMT Offset SIP,
Contingency Measure Plan and 1-hour Ozone Modeled Demonstration of
Attainment and Attainment Plan to read as follows:
Sec. 52.2420 Identification of plan.
* * * * *
(e)* * *
----------------------------------------------------------------------------------------------------------------
Applicable
Name of non-regulatory SIP geographic or State EPA approval date Additional
revision nonattainment area submittal date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
1996-1999 Rate-of-Progress Plan Washington 1-hour 12/29/2003, 5/13/05............ Only the TCMs in
SIP and the Transportation ozone 5/25/1999 [Insert page number Appendix H of the
Control Measures (TCMs) in nonattainment area. where the document 5/25/1999
Appendix H. begins]. revision, 1999
motor vehicle
emissions budgets
of 128.5 tons per
day (tpy) of VOC
and 196.4 tpy of
NOX.
1990 Base Year Inventory Washington 1-hour 8/19/2003, 5/13/05............ ...................
Revisions. ozone 2/25/2004 [Insert page number
nonattainment area. where the document
begins].
1999-2005 Rate-of-Progress Plan Washington 1-hour 8/19/2003, 5/13/05............ Only the TCMs in
SIP Revision and the ozone 2/25/2004 [Insert page number Appendix J of the
Transportation Control Measures nonattainment area. where the document 2/25/2004 the
(TCMs) in Appendix J. begins]. revision, 2002
motor vehicle
emissions budgets
(MVEBs) of 125.2
tons per day (tpy)
for VOC and 290.3
tpy of NOX, and,
2005 MVEBs of 97.4
tpy for VOC and
234.7 tpy of NOX.
VMT Offset SIP Revision.......... Washington 1-hour 8/19/2003, 5/13/05............ ...................
ozone 2/25/2004 [Insert page number
nonattainment area. where the document
begins].
[[Page 25719]]
Contingency Measure Plan......... Washington 1-hour 8/19/2003, 5/13/05............ ...................
ozone 2/25/2004 [Insert page number
nonattainment area. where the document
begins].
1-hour Ozone Modeled Washington 1-hour 8/19/2003, 5/13/05............ 2005 motor vehicle
Demonstration of Attainment and ozone 2/25/2004 [Insert page number emissions budgets
Attainment Plan. nonattainment area. where the document of 97.4 tons per
begins]. day (tpy) for VOC
and 234.7 tpy of
NOX.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 05-9401 Filed 5-12-05; 8:45 am]
BILLING CODE 6560-50-P