[Federal Register Volume 62, Number 121 (Tuesday, June 24, 1997)]
[Rules and Regulations]
[Pages 33999-34007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16510]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[VA045-5022; FRL-5846-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Virginia; 15% Rate of Progress Plan for the Northern Virginia Portion 
of the Metropolitan Washington D.C. Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting conditional interim approval of the State 
Implementation Plan (SIP) revision submitted by the Commonwealth of 
Virginia, for the Northern Virginia portion of the Metropolitan 
Washington D.C. serious ozone nonattainment area, to meet the 15 
percent reasonable further progress (RFP, or 15% plan) requirements of 
the Clean Air Act (the Act). EPA is granting conditional interim 
approval of the 15% plan, submitted by the Commonwealth of Virginia, 
because on its face the plan achieves the required 15% emission 
reduction, but additional documentation to verify the emission 
calculations is necessary for full approval. Additionally, the plan 
relies upon the Virginia Inspection and Maintenance (I/M) rule that 
received final conditional interim approval on May 15, 1997 (62 FR 
26745). This action is being taken under section 110 of the Clean Air 
Act.

EFFECTIVE DATE: This final rule is effective on July 24, 1997.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
Air, Radiation, and Toxics Division, U.S. Environmental Protection 
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania 
19107; and the Virginia Department of Environmental Quality, 629 East 
Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Kristeen Gaffney, Ozone/Carbon 
Monoxide and Mobile Sources Section (3AT21), USEPA--Region III, 841 
Chestnut Building, Philadelphia, Pennsylvania 19107, or by telephone at 
215-566-2092 or via e-mail, at the following address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Section 182(b)(1) of the Act requires ozone nonattainment areas 
classified as

[[Page 34000]]

moderate or above to develop plans to reduce volatile organic compounds 
(VOC) emissions by fifteen percent from 1990 baseline levels. The 
Metropolitan Washington, D.C. area is classified as a serious ozone 
nonattainment area and is subject to the 15% plan requirement. The 
Metropolitan Washington, D.C. ozone nonattainment area consists of the 
entire District of Columbia (``the District''), five counties in the 
Northern Virginia area and five counties in Maryland. The Northern 
Virginia portion of the nonattainment area consists of the localities 
of Arlington, Fairfax, Loudoun, Prince William and Stafford, and the 
cities of Alexandria, Falls Church, Manassas, Manassas Park and 
Fairfax.
    Virginia, Maryland and the District all must demonstrate reasonable 
further progress for the Metropolitan Washington D.C. nonattainment 
area. Virginia, Maryland and the District, in conjunction with 
municipal planning organizations, collaborated on a coordinated 15% 
plan for the Metropolitan Washington D.C. nonattainment area. This was 
done with the assistance of the regional air quality planning 
committee, the Metropolitan Washington Air Quality Committee (MWAQC), 
and the local municipal planning organization, the Metropolitan 
Washington Council of Governments (MWCOG), to ensure coordination of 
air quality and transportation planning.
    The Commonwealth of Virginia submitted the 15% plan SIP revision 
for the Northern Virginia portion of the Metropolitan Washington D.C. 
nonattainment area on May 15, 1995. On March 12, 1997, EPA published a 
notice of proposed rulemaking (NPR) in the Federal Register proposing 
conditional interim approval of the 15% plan (62 FR 11395). EPA's 
rationale for granting conditional interim approval to the Virginia 15% 
plan for the Metropolitan Washington D.C. nonattainment area and the 
details of the May 15, 1995 submittal are contained in the March 12, 
1997 NPR, the accompanying technical support document and will not be 
restated here. There is an addendum to the technical support document 
dated June 9, 1997 available from the Regional Office listed in the 
ADDRESSES section of this rulemaking.

II. Public Comments and EPA Responses

    EPA received two letters in response to the March 12, 1997 NPR from 
the Sierra Club Legal Defense Fund (SCLDF) and the New York State 
Department of Environmental Conservation (NYSDEC). The following 
discussion summarizes and responds to the comments received.

Comment 1

    SCLDF commented that the Virginia 15% plan must be disapproved 
because it failed to produce the 15% emission reduction of 59.9 tons/
day identified in the plan as prescribed by section 182(b)(1)(A)(i) of 
the Act. EPA's argument that it believes that Virginia's required 15% 
reduction ``may be lower than the 54.4 tons per day'' is flawed. 
Speculation is no substitute for the findings EPA must make under 
sections 110 and 182 of the Act in order to approve the SIP. 
Furthermore, EPA admits that proper documentation is lacking in the 
submittal. Lack of documentation and information are grounds for 
disapproval.
    Response: Under section 110(k)(4) of the Act, EPA may conditionally 
approve a plan based on a commitment from the state to adopt specific 
enforceable measures within one year from the date of approval. EPA 
believes that the 15% required reduction in the Northern Virginia 
portion of the Metropolitan Washington D.C. nonattainment area may be 
lower than the 59.9 tons/day estimated in the May 15, 1995 SIP 
submittal based on new information supplied by the Commonwealth. 
Although this information has not been established through an official 
SIP submittal, this information is contained in Virginia's rate-of-
progress SIP for the 1996-1999 time period (known as the Post 1996 
plan). Virginia has held a public hearing on this SIP, which EPA 
provided comments on for the public record, and expects to submit it to 
EPA shortly. Under these circumstances--including the fact that the 
amount of emissions at issue is a relatively small percentage of the 
15% requirement--EPA has the authority to conditionally approve 
Virginia's 15% SIP, on the condition that Virginia submit the requisite 
documentation. The Commonwealth of Virginia has agreed to meet this 
condition to document that the amount of reduction needed to meet the 
15% requirement is less than 54.4 tons/day, and has submitted such 
commitment in writing.

Comment 2

    The inspection and maintenance (I/M) program currently in the 15% 
plan and estimated to achieve 23.7 tons/day reduction was renounced by 
Virginia. The current Virginia I/M program under the National Highway 
Systems Designation Act of 1995 (NHSDA) is not properly before EPA in 
the 15% plan.
    Response: Virginia never adopted the former I/M program that was 
described in the 15% plan and, instead, Virginia resubmitted a new I/M 
program under the NHSDA on March 27, 1996. On May 15, 1997, EPA granted 
conditional interim approval of Virginia's I/M program in the Virginia 
SIP (62 FR 26745). Although the SIP approved I/M program differs from 
the program referred to in Virginia's current 15% plan, EPA has 
determined that the two programs achieve a similar amount of VOC 
reduction credit. In approving the credits from I/M toward the 15% 
requirement, EPA is considering the SIP approved version of the I/M 
program. Furthermore, under the NHSDA, all states including Virginia 
are required to remodel the credits achieved from their I/M program 18 
months following program implementation. Full approval of the Virginia 
15% plan is also conditioned on this demonstration of credit through 
remodeling. The 24.6 tons/day reduction claimed in the May 15, 1995 15% 
plan submittal is, therefore, granted only conditional interim approval 
until the demonstration required under NHSDA is submitted by Virginia.

Comment 3

    SCLDF commented that EPA cannot ignore the November 15, 1996 
statutory deadline for the 15% reduction simply because the deadline is 
now behind us. It contends that EPA's and states' unlawful delays have 
prevented compliance with the November 15, 1996 deadline and that EPA 
cannot now jettison the statutory deadlines by substituting the ``as 
soon as practicable'' test; rather, SCLDF states, EPA must require 
compliance with an ``as soon as possible'' test and fix a compliance 
deadline. The commenter cited various court decisions in an effort to 
support its formulation of the ``as soon as possible'' test. SCLDF 
further added that 1999 cannot be the shortest possible timeframe for 
requiring compliance with I/M in Virginia because Pennsylvania has 
shown and EPA approved that it will achieve the needed I/M reductions 
by 1998.
    Response: The case law cited by the commenter considers various 
circumstances, such as failure by EPA to promulgate rules on the 
statutorily mandated deadline or to take action on state failures to 
make SIP submissions on the statutorily mandated deadline. See, e.g., 
Natural Resources Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir. 
1994), Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C. 
Cir. 1975). These cases articulate various formulations of the 
standards by which the courts establish new deadlines. EPA believes 
that its formulation of the

[[Page 34001]]

standard by which States must achieve the 15% reductions--``as soon as 
practicable''--is generally consistent with the case law.
    Further, EPA believes that Virginia has demonstrated that it has 
met this standard. The notice of proposed rulemaking, the TSD 
accompanying that proposal, and an addendum to the TSD in the record 
establish that implementation of the I/M program is as soon as 
practicable. The main reason for the delays in the development and 
implementation of Virginia's 15% SIP relate to its enhanced I/M plan. 
Most recently, these enhanced I/M delays were closely associated with 
the enactment, in November 1995, of the NHSDA. The NHSDA afforded 
states the opportunity to revise their I/M plans in a manner that would 
be treated as meeting certain EPA requirements on an interim basis. The 
NHSDA provided additional time for the Commonwealth and EPA to develop 
and process the revised I/M plans. The Commonwealth acted expeditiously 
in developing and implementing a revised enhanced I/M program. However, 
the amount of time necessary to develop and implement the NHSDA I/M 
program rendered impossible achieving the 15% reduction target by the 
end of 1996.
    Moreover, EPA has reviewed other VOC SIP measures that are at least 
theoretically available to Virginia, and has concluded that 
implementation of any such measures that might be appropriate would not 
accelerate the date of achieving the 15% reductions.
    EPA agrees with the commenter that in this particular case a fixed 
deadline is appropriate. Accordingly, EPA will establish November 15, 
1999, as the date by which the 15% measures must be implemented to the 
extent necessary to generate the required amount of reductions.
    The fact that Pennsylvania has developed an I/M program that will 
be implemented by the end of 1998 does not mean that Virginia's 
implementation date of the end of 1999 is not as soon as practicable. 
For reasons indicated elsewhere in the record, EPA considers the 
biennial I/M program selected by Virginia to be as soon as practicable, 
notwithstanding the fact that other states may choose to implement an 
annual program. An annual program carries certain practicability 
problems that EPA has identified elsewhere in the record.

Comment 4

    SCLDF commented that any further delays in implementing VOC control 
measures, including most prominently, enhanced I/M, must not be 
tolerated. For I/M, EPA's deadline must require implementation in the 
shortest time in which it is logistically possible to get the testing 
systems up and running. The NHSDA does not mention the 15% plan or 
authorize any delay of the achievement of the 15% emission reduction. 
Furthermore, missing the November 15, 1996 deadline unlawfully rewards 
states for failure to meet the deadline by giving them increased 
credits under national programs such as the Tier I Federal Motor 
Vehicle Control Program. SCLDF argues that such an approach unlawfully 
delays the achievement of clean air by allowing the states to reduce 
their own emission control efforts by the amount of the post-November 
1996 fleet turnover benefits. Consequently, EPA must deny the post-
November 1996 Tier I credit and require states to adopt emission 
reductions to compensate for post-1996 growth in vehicle miles traveled 
(VMT).
    SCLDF further argues that EPA cannot delay the section 182(b)(1) 
requirement for states to account for growth in the 15% plans to the 
Post 1996 rate-of-progress plans, particularly because the Post 1996 
plans involve potential NOX substitution that is not 
permitted in the VOC-only 15% plans.
    Response: EPA disagrees with the comment. The NHSDA was enacted by 
Congress in November of 1995. Section 348 of this statute provided 
states' renewed opportunity to satisfy the Clean Air Act requirements 
related to the network design for I/M programs. States were not only 
granted the flexibility to enact test-and-repair programs, but were 
provided additional time to develop those programs and to submit 
proposed regulations for interim SIP approval. Virginia moved rapidly 
to propose I/M regulations and to submit to EPA on March 27, 1996 a SIP 
containing those regulations, under the authority granted by the NHSDA.
    Under the terms of the 15% requirement in section 182(b)(1)(A)(i) 
of the Act, the SIP must--``provide for [VOC] emission reductions, 
within 6 years after the date of enactment of the Clean Air Act 
Amendments of 1990, of at least 15 percent from baseline emissions, 
accounting for any growth in emissions after [1990].''
    EPA interprets this provision to require that a specific amount of 
VOC reductions occur, and has issued guidance for computing this 
amount. The Commonwealth, complying with this guidance, has determined 
the amount of the required VOC reductions needed to meet the 15% goal. 
It is no longer possible for the Commonwealth to implement measures to 
achieve this level of reduction as the November 15, 1996 date provided 
under the 15% provisions has passed. Accordingly, EPA believes that the 
Commonwealth will comply with the statutory mandate as long as Virginia 
achieves the requisite level of reductions on an as-soon-as-practicable 
basis after 1996. In computing the reductions, EPA believes it 
acceptable for states to count reductions from federal measures, such 
as vehicle turnover, that occur after November 15, 1996, as long as 
they are measures that would be creditable had they occurred prior to 
that date. These measures result in VOC emission reductions as directed 
by Congress in the Act; therefore, these measures should count towards 
the achievement--however delayed--of the 15% VOC reduction goal.
    EPA does not believe states are obligated as part of the 15% SIP to 
implement further VOC reductions to offset increases in VOC emissions 
due to post-1996 growth. As noted above, the 15% requirement mandates a 
specific level of reductions. By counting the reductions that occur 
through measures implemented pre- and post-1996, SIPs may achieve this 
level of reductions. Although section 182(b)(1)(A)(i), quoted above, 
mandates that the SIPs account for growth after 1990, the provision 
does not, by its terms, establish a mechanism for how to account for 
growth, or indicate whether, under the present circumstances, post-1996 
growth must be accounted for. EPA believes that its current 
requirements for the 15% SIPs meet section 182(b)(1)(A)(i). In 
addition, although post-1996 VOC growth is not offset under the 15% 
SIPs, such growth must be offset in the Post 1996 plans required for 
serious and higher classified areas to achieve 9% in VOC reductions 
every three years after 1996 (until the attainment date). Virginia's 
Post 1996 plan for the Northern Virginia portion of the Metropolitan 
Washington D.C. area, which is nearing completion, does appear to 
achieve the 9% emissions reductions required between 1996 and 1999, 
taking into account growth in VOCs during that time. The fact that 
these Post 1996 SIPs may substitute NOX reductions for VOC 
reductions in the 1996 to 1999 period does not undermine the integrity 
of the 15% SIPs. Allowing NOX substitution is fully 
consistent with the health goals of the Clean Air Act.
    Under EPA's approach, post-1996 growth will be accounted for in the 
plans that Congress intended to take account of such growth--the Post 
1996 ``rate of progress'' SIPs. To shift the burden of accounting for 
such growth to the 15% plans, as commenters would have EPA do, would 
impose burdens on

[[Page 34002]]

states above and beyond what Congress contemplated would be imposed by 
the 15% requirement (which was intended to have been achieved by 
November 15, 1996). In the current situation, where it is clearly 
impossible to achieve the target level of VOC reductions (a 15% 
reduction taking into account growth through November 1996) by November 
1996, EPA believes that its approach is a reasonable and appropriate 
one. It will still mean that post-1996 growth is taken into account in 
the SIP revisions Congress intended to take into account such growth 
and it means that the target level of VOC reductions will be achieved 
as soon as practicable. Once the Post 1996 rate of progress plans are 
approved and implemented, areas will have achieved the same level of 
progress that they were required to have achieved through the 
combination of the 15% and rate of progress requirements as originally 
intended by Congress.

Comment 5

    The commenter notes a discrepancy on the bottom of page 11401 of 
the notice of proposed rulemaking. EPA asserted it's belief that the 
Virginia I/M program ``will achieve 24.6 tons/day of reductions by 
1997''. This is unrealistic given that EPA states elsewhere in the 
notice that the Virginia I/M program is not starting up until November 
1997.
    Response: The commenter is correct. The notice of proposed 
rulemaking contained a typographical error in that the year should have 
read 1999 instead of 1997. This statement in the proposed rulemaking is 
corrected and revised to read: ``Because Virginia's revised enhanced I/
M program is designed to meet EPA's high-enhanced performance standard 
and will achieve essentially the same number of testing cycles between 
start-up and November 1999 as that modeled in the original 15% plan, 
EPA believes that Virginia's program will achieve 24.6 tons/day of 
reductions by 1999.''

Comment 6

    SCLDF commented that the Virginia 15% plan, which takes credit for 
federal control measures such as architectural and industrial 
maintenance coating, consumer/commercial products and autobody 
refinishing, should not be approved because those federal control 
measures have not yet been promulgated. SCLDF states that allowing such 
credit violates section 182(b)(1)(C) of the Act. SCLDF further 
commented that EPA cannot lawfully base SIP decisions on unpromulgated 
rules because it does not know what these final rules will say. SCLDF 
contends that allowing credit on as yet unpromulgated rules, even with 
the caveat that the states must revisit the rule later if the federal 
rules turn out differently than predicted, amounts to an unlawful 
extension of a SIP submission deadline. SCLDF stated that EPA must base 
its decision on the record before it at the time of its decision; not 
on some record that the agency hopes will exist in the future.
    Response: Section 182(b)(1)(A) of the Act requires states to submit 
their 15% SIP revisions by November, 1993. Section 182(b)(1)(C) of the 
Act provides the following general rule for creditability of emissions 
reductions towards the 15% requirement: ``Emissions reductions are 
creditable toward the 15 percent required * * * to the extent they have 
actually occurred, as of (November, 1996), from the implementation of 
measures required under the applicable implementation plan, rules 
promulgated by the Administrator, or a permit under Title V.''
    This provision further indicates that certain emissions reductions 
are not creditable, including reductions from certain control measures 
required prior to the 1990 Amendments.
    This creditability provision is ambiguous. Read literally, it 
provides that although the 15% SIPs are required to be submitted by 
November 1993, emissions reductions are creditable as part of those 
SIPs only if ``they have actually occurred, as of (November 1996)''. 
This literal reading renders the provision internally inconsistent. 
Accordingly, EPA believes that the provision should be interpreted to 
provide, in effect, that emissions reductions are creditable ``to the 
extent they will have actually occurred, as of (November, 1996), from 
the implementation of (the specified measures)'' (the term ``will'' is 
added). This interpretation renders the provision internally 
consistent.
    Sec. 182(b)(1)(C) of the Act explicitly includes as creditable 
reductions those resulting from ``rules promulgated by the 
Administrator''. This provision does not state the date by which those 
measures must be promulgated, i.e., does not indicate whether the 
measures must be promulgated by the time the 15% SIPs were due 
(November, 1993), or whether the measures may be promulgated after this 
due date.
    Because the statute is silent on this point, EPA has discretion to 
develop a reasonable interpretation, under Chevron U.S.A. Inc. v. NRDC, 
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA believes it 
reasonable to interpret section 182(b)(1)(C) of the Act to credit 
reductions from federal measures as long as those reductions are 
expected to occur by November 1996, even if the Federal measures are 
not promulgated by the November 1993 due date for the 15% SIPs.
    EPA's interpretation is consistent with the congressionally 
mandated schedule for promulgating regulations for consumer and 
commercial products, under section 182(e) of the Act. This provision 
requires EPA to promulgate regulations controlling emissions from 
consumer and commercial products that generate emissions in 
nonattainment areas. Under the schedule, by November 1993--the same 
date that the States were required to submit the 15% SIPs--EPA was to 
issue a report and establish a rulemaking schedule for consumer and 
commercial products. Further, EPA was to promulgate regulations for the 
first set of consumer and commercial products by November, 1995. It is 
reasonable to conclude that Congress anticipated that reductions from 
these measures would be creditable as part of the 15% SIPs, as long as 
those reductions were to occur by November, 1996.
    Crediting reductions from federal measures promulgated after the 
due date for the 15% SIPs is also sensible from an administrative 
standpoint. Crediting the reductions allows the states to plan 
accurately to meet the 15% reduction target from the appropriate level 
of state and federal measures. Not crediting such reductions would mean 
that the states would have to implement additional control requirements 
to reach the 15% mark; and that SIPs would result in more than a 15% 
level of reductions once the federal measures in question were 
promulgated and implemented. At that point in time, the state may seek 
to eliminate those additional SIP measures on grounds that they would 
no longer be necessary to reach the 15% level. Such constant revisions 
to the SIP to demonstrate 15% is a paper exercise that exhausts both 
the states' and EPA's time and resources.
    The fact that EPA cannot determine precisely the amount of credit 
available for the federal measures not yet promulgated does not 
preclude granting the credit. The credit can be granted as long as EPA 
is able to develop reasonable estimates of the amount of VOC reductions 
from the measures EPA expects to promulgate. EPA believes that it is 
able to develop reasonable estimates, particularly because it has 
already proposed and taken comment on the measures at issue, and 
expects to promulgate final rules by the spring of 1998. Many other 
parts of the SIP, including state measures, typically

[[Page 34003]]

include estimates and assumptions concerning VOC amounts, rather than 
actual measurements. For example, EPA's document to estimate emissions, 
(``Compilation of Air Pollutant Emission Factors'', January 1995, AP-
42), provide emission factors used to estimate emissions from various 
sources and source processes. AP-42 emission factors have been used, 
and continue to be used, by states and EPA to determine base year 
emission inventory figures for sources and to estimate emissions from 
sources where such information is needed. Estimates in the expected 
amount of VOC reductions are commonly made in air quality plans, even 
for those control measures that are already promulgated.
    Moreover, the fact that EPA is occasionally delayed in its 
rulemaking is not an argument against granting credits from these 
measures. The measures are statutorily required, and states and 
citizens could bring suit to enforce the requirements that EPA 
promulgate them. If the amount of credit that EPA allows the state to 
claim turns out to be greater than the amount EPA determines to be 
appropriate when EPA promulgates the federal measures, EPA intends to 
take appropriate action to require correction of any shortfall in 
necessary emissions reductions that may occur.
    The above analysis focuses on the statutory provisions that include 
specific dates for 15% SIP submittals (November, 1993), and 
implementation (November 15, 1996). These dates have expired, and EPA 
has developed new dates for submittal and implementation. EPA does not 
believe that the expiration of the statutory dates, and the development 
of new ones, has implications for the issue of whether reductions from 
federal measures promulgated after the date of 15% SIP approval may be 
counted toward those 15% SIPs. Although the statutory dates have 
passed, EPA believes that the analysis described above continues to be 
valid.

Comment 7

    SCLDF commented that EPA proposed disapproval of the Philadelphia 
15% plan in 1996 because the plan assumed credit from control 
strategies either not fully adopted, not creditable under the Clean Air 
Act, or which had not been adequately quantified. Furthermore, EPA 
proposed disapproval of the plan because Pennsylvania switched I/M 
programs yet did not revise the 15% plan to reflect the differences in 
the I/M program description and projected emission reductions. EPA set 
precedence with this rulemaking and to propose approval of the Virginia 
15% plan when the same deficiencies exist is acting in an arbitrary and 
capricious manner of treating similar situations in such a 
diametrically opposite fashion.
    Response: EPA's proposed approval of the Virginia 15% plan is not 
inconsistent with the proposed disapproval of the Philadelphia 15% 
plan. On July 10, 1996, EPA proposed to disapprove Pennsylvania's 15% 
plan for the Philadelphia area because it would not have achieved 
sufficient reductions to meet the requirements of section 182(b)(1) of 
the Act (61 FR 36320). EPA did not credit any reductions from 
Pennsylvania's Enhanced iI/M Program because at the time of the July 
10, 1996 rulemaking EPA had disapproved Pennsylvania's I/M 
submittal.1 As discussed above, on May 15, 1997, EPA granted 
conditional interim approval of Virginia's I/M program in the Virginia 
SIP (62 FR 26745). Therefore, the factual basis for EPA's conditional 
interim approval of Virginia's 15% is not similar to that of the 
Philadelphia 15% Plan. In the July 10, 1996 proposed disapproval, EPA 
credited the measures in Pennsylvania's 15% Plan towards meeting the 
rate of progress requirements of the Act even though they were 
insufficiently documented to qualify for full approval. See, 61 FR 
36322. That action is wholly consistent with EPA's conditional interim 
approval of the Virginia 15% plan.
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    \1\ In a letter, dated April 13, 1995, EPA converted the August 
31, 1994 conditional approval of Pennsylvania I/M submittal to a 
disapproval.
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Comment 8

    NYSDEC commented that EPA should not be treating this as a Table 3 
SIP action, because the Sierra Club Legal Defense Fund settlement 
regarding 15% plans in the Philadelphia, Baltimore and Washington D.C. 
ozone nonattainment areas has national policy implications.
    Response: EPA disagrees with this comment. Delegation authority is 
an internal agency decision. This rulemaking action is consistent with 
EPA delegation policy. The authority for decision making and signature 
of all SIP revisions has been delegated to the Regional Administrators.

Comment 9

    NYSDEC commented that EPA should propose limited approval/limited 
disapproval of this SIP because of its technical defects.
    Response: EPA disagrees with this comment. Historically, the Agency 
has used both conditional approval and limited approval/disapproval 
actions for SIP revisions with technical deficiencies. EPA has the 
authority to grant conditional approvals at least when EPA has a 
reasonable basis to believe that the information to correct these 
deficiencies is available and can be implemented by the state within a 
12-month period. EPA has a reasonable basis to believe that the 
Commonwealth of the Virginia has the ability to and will correct the 
deficiencies conditioned in the 15% plan. The Commonwealth has taken a 
revised 15% plan through the public hearing process which addresses 
many of the named deficiencies. Furthermore, Virginia has submitted a 
commitment letter agreeing to meet the conditions of the conditional 
approval and correct the 15% plan within 12 months of this rulemaking.

Comment 10

    NYSDEC commented that EPA should have addressed the contingency 
measure requirements of the Clean Air Act in this rulemaking.
    Response: EPA disagrees with this comment. Under section 172(b) of 
the Act, areas classified as nonattainment must include in their 
nonattainment plan provisions, contingency measures to be implemented 
if an area fails to make reasonable further progress or attain the 
standard by the applicable attainment date. In addition, section 
182(c)(9) of the Act requires areas classified as serious and above to 
include in their nonattainment SIP contingency measures to be 
implemented if a reasonable further progress (RFP) milestone is not 
achieved.
    EPA interprets the provisions of sections 172(b) and 182(c)(9), on 
the one hand; and section 182(b)(1)(A) [the 15% plan requirement], on 
the other hand, to be separate and independent provisions within the 
Act. Therefore, this rulemaking addresses EPA's action on the May 15, 
1995 15% plan submittal only as it adheres to the requirements of 
Section 182(b)(1)(A) of the Act. There is no obligation to act on the 
contingency measure requirement in this rulemaking. Any submittal that 
the Commonwealth submits to EPA regarding the contingency measure 
requirements of section 172(b) of the Act will be handled under a 
separate rulemaking action.

Comment 11

    NYSDEC commented that the redesign of the Virginia I/M test and 
repair program claims an effectiveness of 93% relative to a centralized 
program. This implies that the existing

[[Page 34004]]

basic test and repair program effectiveness is greater than 50%. The 
effectiveness of the existing program needs to be re-evaluated and the 
base year inventory and 1996 target levels adjusted to reflect the 
revised effectiveness.
    Response: EPA does not agree with the commenter that the 
Commonwealth should have to re-evaluate the effectiveness of the 
existing program. Requiring recalculation of the baseline at this point 
in time would effectively be requiring the states to hit a moving 
target, something which EPA feels Congress did not intend to happen as 
a result of the latitude afforded to states under the NHSDA. EPA is 
willing to allow states to rely on the baseline modeling previously 
done for the 15% plans, even though the Commonwealth's assessment of 
the existing program provides evidence to say that the program was more 
effective than previously demonstrated through modeling. EPA believes a 
recalculation of the I/M baseline credits would be an unreasonable 
burden to place on states because the information that suggests the 
need for recalculation did not become available until well after 
Virginia completed the 15% calculations and submitted the SIP to EPA 
for approval. See discussion below under comment 16 regarding 
calculation of credits for open burning.

Comment 12

    NYSDEC commented that the viability of the cited 24.6 tons/day 
reduction from Virginia I/M is questionable. The Virginia I/M program 
is similar to the New York I/M program, yet the New York program is an 
annual one. EPA Region III has allowed Virginia to claim greater credit 
for their I/M program than Region II has allowed New York to do. This 
constitutes regional inconsistency. EPA is treating the Virginia I/M 
program more favorably than the New York I/M program by allowing 
greater credit for a more deficient program.
    Response: EPA has granted conditional interim approval to 
Virginia's I/M program under NHSDA. Although the SIP approved I/M 
program differs from the program referred to in Virginia's 15% plan, 
EPA has determined that the two programs will ultimately achieve a 
similar amount of credit. As a condition of this rulemaking however, 
Virginia is required to remodel the credits achieved from its I/M 
program using the appropriate inputs which accurately reflect the newly 
designed program under the NHSDA. Full approval of the 15% plan is 
conditioned upon this demonstration of credit through remodeling. The 
24.6 tons/day reduction is, therefore, only conditionally approved 
until the demonstration is submitted by Virginia as required under 
NHSDA.
    Virginia has committed to complete a remodeling demonstration in 
accordance with EPA policy on I/M modeling. Virginia has not been 
allowed to deviate from EPA-accepted modeling practices, in fact the 
Commonwealth will be required to remodel the program as designed and 
implemented, using the credit deck specified for its ASM test 
procedure, as directed by EPA. The 15% I/M credits for both the New 
York program and the Virginia program are calculated with respect to 
not only the I/M program performance standard, but more importantly in 
conjunction with the amount and type of VMT for each area. EPA does not 
lend any credibility to New York's argument that EPA is allowing 
Virginia to take greater credit with modeling EPA Region II would find 
insufficient. The premise of New York's comment is that EPA has made a 
decision regarding the amount of creditable emission reductions from 
New York's I/M program. In fact, New York State has not yet submitted a 
15% plan and EPA has not made a decision regarding the amount of 
creditable reduction from the New York I/M program. Once New York 
submits a 15% plan, EPA will evaluate the amount of credit from New 
York's I/M program. Furthermore, Virginia has moved forward with final 
regulations for an I/M program that has been granted final conditional 
interim approval, and which is slated to begin start-up by November 
1997.

Comment 13

    NYSDEC commented that EPA cannot allow credit from an I/M program 
outside the nonattainment area (Facquier County).
    Response: EPA disagrees with this comment. As a preliminary matter, 
EPA originally relied on policy established in guidance documents for 
the preparation of 15% plans in allowing creditable reductions from the 
implementation of I/M in Facquier County, a county adjacent to but not 
part of the nonattainment area.
    Specifically, Appendix F (F-10) of ``Guidance For Growth Factors, 
Projections, And Control of Strategies For The 15 Percent Rate-Of-
Progress Plans'' [EPA-452/R-93-002, March 1993] provides examples of 
additional mobile source controls which will achieve creditable 
emissions reductions necessary to meet 15 percent requirements, net of 
growth. One example shown is a ``basic I/M program imposed in areas 
adjacent to the nonattainment area to control emissions from vehicles 
that commute into the nonattainment area. States should rely primarily 
on traffic counts to verify the commute traffic information for the 
nonattainment area.'' The Commonwealth of Virginia initially made such 
a showing using the Mobile 5.0a model to determine the amount of 
creditable reductions to be achieved by implementing I/M in adjacent 
Facquier County. Therefore, EPA proposed to approve the 0.9 tons/day 
reduction creditable through this measure.
    However, since the proposed rulemaking was published, EPA has 
subsequently learned from the Commonwealth that I/M will not in fact be 
implemented in Facquier County, Virginia. The Commonwealth has removed 
this measure from the draft revised 15% plan that it has taken to 
public hearing. The Commonwealth is no longer claiming a 0.9 tons/day 
reduction from I/M in Facquier County as a creditable measure in the 
revised 15% plan. In response, EPA is not approving the 0.9 tons/day 
credits in the conditionally approved 15% plan for northern Virginia. 
In its commitment letter of April 4, 1997 the Commonwealth agreed to 
submit an amended 15% plan as a SIP revision that will demonstrate 
using appropriate documentation methodologies and credit calculations 
that the 54.5 tons/day emissions reduction, supported through 
creditable emissions reduction control measures, satisfies Virginia's 
15% rate of progress requirement for the Metropolitan Washington D.C. 
nonattainment area. EPA interprets this commitment to mean that 
Virginia will demonstrate in the revised 15% plan submittal that the 
area will have achieved a 15% reduction in VOCs net of growth, not 
including the credit initially claimed for I/M in Facquier County.

Comment 14

    NYSDEC commented that the discrepancies in the inventory and growth 
projections in the Virginia plan are significant and EPA should not 
dismiss these.
    Response: EPA is not dismissing the discrepancies in the May 15, 
1995 submittal. EPA noted the differences in the numbers for the mobile 
source category between the base year 1990 inventory and the 15% plan 
inventory. EPA determined that the discrepancies are insignificant and 
can be attributed to rounding errors in the inventory development 
process. Additionally, the Commonwealth is submitting revisions to the 
1990 base year inventory for the Northern Virginia portion of the

[[Page 34005]]

Washington D.C. nonattainment area as part of the revised 15% plan that 
went to public hearing. These revisions to the 1990 base year inventory 
will be reviewed and acted upon once the submittal is made.
    Regarding growth projections, EPA is conditioning approval of the 
plan and requiring Virginia to revise its growth estimates as a 
condition for full approval. Revising the plan to account for growth in 
point sources between 1990 and 1996 will, in fact, change the budget 
contained in the 15% plan and the amount of emission reductions 
required to offset growth. EPA has also conditioned full approval of 
the 15% plan on a demonstration to be provided by Virginia that point 
source growth be determined and offset with an equivalent amount of 
emission reductions.

Comment 15

    NYSDEC commented that the Stage I credits in Loudoun County should 
not be allowed; this was a noncreditable reasonably available control 
technology (RACT) fix-up.
    Response: The commenter is correct in this statement. Virginia 
claimed a total of 0.5 tons/day emission reduction from the 
implementation of Stage I controls in Loudoun and Stafford counties in 
the nonattainment area. In 1988 EPA made a SIP call to the Commonwealth 
of Virginia to among other requirements, require Stage I VOC controls 
in Loudoun County. This was, in fact, part of the RACT Fix-Ups SIP 
call. The Act does not allow reductions from RACT Fix-Ups to be 
creditable toward the 15% plans. Therefore, the 0.23 tons/day emissions 
reductions associated with implementing Stage I controls in Loudoun 
County are not creditable toward the Virginia 15% plan, and EPA is not 
approving these credits in the conditionally approved 15% plan for 
Northern Virginia. However, the remaining 0.26 tons/day associated with 
implementing Stage I emission controls in Stafford County are a 
creditable reduction in the 15% plan, because Stafford County was added 
to the nonattainment area in the 1991 designations and not subject to 
the pre-1990 RACT fix-up requirements. In its commitment letter of 
April 4, 1997 the Commonwealth agreed to submit an amended 15% plan as 
a SIP revision that will demonstrate using appropriate documentation 
methodologies and credit calculations that the 54.5 tons/day emissions 
reduction, supported through creditable emissions reduction control 
measures, satisfies Virginia's 15% rate of progress requirement for the 
Metropolitan Washington D.C. nonattainment area. EPA interprets this 
commitment to mean that the Commonwealth will demonstrate in the 
revised 15% plan submittal that the area will have achieved a 15% 
reduction in VOCs net of growth, notwithstanding the credit claimed for 
implementing Stage I controls in Loudoun County.
    The Commonwealth and EPA originally believed that there were no 
RACT fix-ups that resulted in emission reductions in the northern 
Virginia area and claimed zero in the target level calculation for the 
area. Although the effects of this revision to the target level may be 
minimal and insignificant, nevertheless, Stage I reductions in Loudoun 
County should be deducted from the target level in accordance with EPA 
guidance and policy on target level calculations. EPA interprets 
Virginia's commitment letter to mean that Virginia will recalculate the 
target level for the northern Virginia area to account for these 
reductions from the RACT fix-up rule.

Comment 16

    NYSDEC commented that the inventory data and emission factors for 
open burning do not support Virginia's claim of 2.6 tons/day credit.
    Response: EPA does not agree with this comment. The Commonwealth of 
Virginia used the available data at the time to compute emission 
reductions from controls on open burning. Additional information 
regarding the emissions inventory for the open burning category can be 
found in Virginia's SIP submittal for the 1990 Base Year VOC Emissions 
Inventory for the area, which EPA approved on September 16, 1996. Using 
information from the inventory and the appropriate methodology at the 
time from EPA's Compilation of Air Pollutant Emission Factors (AP-42), 
Fourth Edition (1987), EPA has determined that Virginia correctly 
computed the amount of emission reductions resulting from the open 
burning control strategy. Virginia's open burning rule bans all burning 
of construction waste, debris waste and demolition waste.
    Using information collected through permits issued for open 
burning, Virginia estimates that 1,824 acres are burned annually in the 
nonattainment area. The fuel loading factor of 70 tons/acre was taken 
from AP-42, Table 2.4-5, category ``forest residues--unspecified'' (the 
appropriate category for landclearing debris associated with 
construction projects). The VOC emission factor of 19 lbs/ton burned 
(nonmethane emissions) 2 was taken from the same table.

    \2\ According to AP-42, nonmethane VOC emissions from 
unspecified forest residues could include olefins, acetylene, 
aldehydes, ketones, aromatics, cycloparaffins, and other saturates. 
Not all VOC emissions are necessarily ozone precursors. However, in 
the absence of more specific information and for the purposes of 
emissions inventory development, all non-methane VOC emissions from 
open burning categories are assumed to be ozone precursors.
---------------------------------------------------------------------------

1824 acres/year * 1 year/365days * 70 tons/acre fuel = 349.9 tons/day 
burned
349.9 tons/day * 19 lbs/ton VOC * .0005 tons/1 lb = 3.32 lbs VOC/day 
emission

    The Fourth Edition (1987) of AP-42 was the current edition when the 
Commonwealth prepared the 1990 base year inventory and the 15% plan. 
EPA's applicable guidance does not require that a base year inventory, 
target level calculation and, hence, other aspects of a 15% plan be 
revisited due to insignificant changes in emission factors that become 
available after submission of the plan. 3 The Commonwealth 
of Virginia took the 15% plan to hearing in November 1993. The 
commenter quotes information from the Fifth Edition of AP-42 which was 
released during 1995 well after preparation and submission of the 15% 
plan.
---------------------------------------------------------------------------

    \3\ See section 2.3 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, October 1992); and ``State 
Implementation Plans; General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990; Proposed Rule'', 57 
Federal Register 13498 and 13508 (April 16, 1992).
---------------------------------------------------------------------------

    The 15% plan for the Northern Virginia portion of the Washington 
D.C. nonattainment area claimed no growth in emissions in the open 
burning category for the period 1990-1996. Virginia applied the default 
rule compliance value of 80% to the 1990 baseline daily emissions of 
3.3 tons/day. The resulting estimated emissions reduction from the ban 
on open burning is 2.64 tons/day. EPA is approving this amount of 
emission reduction credit in the Virginia 15% plan because the 
Commonwealth used the appropriate methodology for estimating emissions 
and has properly adopted and implemented the open burning rule in the 
nonattainment area.

III. Conditional Interim Approval

    EPA has evaluated Virginia's May 15, 1995 submittal for consistency 
with the Act, applicable EPA regulations, and EPA policy and 
determined, as documented in the March 12, 1997 NPR that, on its face, 
the 15% plan for Northern Virginia portion of the Metropolitan 
Washington D.C. area achieves the required 15% VOC

[[Page 34006]]

emission reduction to meet Virginia's portion of the regional multi-
state plan to satisfy the requirements of section 182(b)(1) of the Act. 
However, there are measures included in the Virginia 15% plan, which 
may be creditable towards the Act requirement, but which are 
insufficiently documented for EPA to take action on at this time. While 
the amount of creditable reductions for certain control measures has 
not been adequately documented to qualify for Clean Air Act approval, 
EPA has determined that the submittal for Northern Virginia portion of 
the Metropolitan Washington D.C. area contains enough of the required 
structure to warrant conditional interim approval. EPA cannot grant 
full approval of the Virginia 15% rate-of-progress plan under section 
110(k)(3) and Part D of the Clean Air Act. Instead, EPA is granting 
conditional interim approval of this SIP revision under section 
110(k)(4) of the Act, because the Commonwealth must meet the specified 
conditions and supplement its submittal to satisfy the requirements of 
section 182(b)(1) of the Act regarding the 15 percent rate-of-progress 
plan, and because the Commonwealth must supplement its submittal and 
demonstrate it has achieved the required emission reductions.
    The March 12, 1997 NPR listed the conditions that Virginia must 
meet in order to convert the conditional approval to full approval. In 
an April 4, 1997 letter to EPA, the Commonwealth committed to meet all 
the conditions listed in the NPR within 12 months of final conditional 
approval. The conditions from the NPR are restated here. The 
Commonwealth of Virginia must fulfill the following conditions by no 
later than June 24, 1998:
    1. Virginia's 15% plan must be revised to account for growth in 
point sources from 1990-1996.
    2. Virginia must meet the conditions listed in the November 6, 1996 
proposed conditional interim Inspection and Maintenance Plan (I/M) 
rulemaking notice, and the I/M reductions using the following two EPA 
guidance memos: ``Date by which States Need to Achieve all the 
Reductions Needed for the 15 Percent Plan from I/M and Guidance for 
Recalculation,'' note from John Seitz and Margo Oge, dated August 13, 
1996, and ``Modeling 15 Percent VOC Reductions from I/M in 1999--
Supplemental Guidance'', memorandum from Gay MacGregor and Sally 
Shaver, dated December 23, 1996.
    3. Virginia must remodel to determine affirmatively the creditable 
reductions from RFG, and Tier 1 in accordance with EPA guidance.
    4. Virginia must submit a SIP revision amending the 15% plan with a 
demonstration using appropriate documentation methodologies and credit 
calculations that the 54.5 tons/day reduction, supported through 
creditable emission reduction measures in the submittal, satisfies 
Virginia's 15% ROP requirement for the Metropolitan Washington D.C. 
nonattainment area.
    After making all the necessary corrections to establish the 
creditability of chosen control measures, Virginia must demonstrate 
that 15% emission reduction is obtained in the Northern Virginia 
portion of the Metropolitan Washington D.C. nonattainment area as 
required by section 182(b)(1) of the Act and in accordance with EPA's 
policies and guidance issued pursuant to section 182(b)(1).

IV. Final Action

    EPA is today granting conditional interim approval of the Northern 
Virginia 15% plan as a revision to the Virginia SIP. EPA is granting 
approval to emission credits for the Virginia 15% plan on an interim 
basis, pending verification of Virginia's I/M program's performance, 
pursuant to section 348 of the NHSDA. The interim approval of the 15% 
plan will expire at the end of 18 months following EPA's final 
conditional interim rulemaking of Virginia's I/M program which was 
published in the Federal Register on May 15, 1997. The interim approval 
will be replaced by appropriate EPA action based on the evaluation EPA 
receives concerning the I/M program's performance. If the evaluation 
indicates a shortfall in emission reductions compared to the remodeling 
that the 15% plan is conditioned on, the Commonwealth will need to find 
additional emission credits. Failure of the Commonwealth to make up for 
an emission shortfall from the enhanced I/M program may subject the 
Commonwealth to sanctions and imposition of a Federal Implementation 
Plan. EPA has already approved the Virginia enhanced I/M program on a 
conditional interim basis. This approval of the Virginia enhanced I/M 
program was taken under section 110 of the Act and, although the 
credits provided by this program may expire, the approval of the I/M 
regulations does not expire. As explained above, the credits provided 
by the enhanced I/M program on an interim basis for the 15% plan may be 
adjusted based on EPA's evaluation of the enhanced I/M program's 
performance.
    This rulemaking action is a conditional interim approval that will 
not convert to full approval until Virginia has met conditions 1 
through 4 of this rulemaking. If the conditions are not met within 12 
months of today's rulemaking, this rulemaking will convert to a 
disapproval. Once Virginia satisfies the conditions of the I/M 
rulemaking and receives final interim approval of I/M, EPA will grant 
final interim approval of the 15% plan, (assuming that the other 
conditions have been met). Conversely, if EPA disapproves the Virginia 
I/M program, EPA's conditional interim approval of the 15% plan would 
also convert to a disapproval. EPA would notify Virginia by letter that 
the conditions have not been met and that the conditional interim 
approval of the 15% plan has converted to a disapproval. Each of the 
conditions must be fulfilled by Virginia and submitted to EPA as an 
amendment to the SIP. If Virginia corrects the deficiencies within one 
year of conditional interim approval, and submits a revised 15% plan as 
a SIP revision, EPA will conduct rulemaking on that revision.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any state implementation plan. Each request for revision to 
the state implementation plan shall be considered separately in light 
of specific technical, economic, and environmental factors and in 
relation to relevant statutory and regulatory requirements.
    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
Federal SIP approval does not impose any new requirements, the EPA 
certifies that it does not have a significant impact on any small 
entities affected. Moreover, due to the nature of the Federal-State 
relationship under the Act, preparation of a flexibility analysis would 
constitute Federal inquiry into the economic reasonableness of state 
action. The Clean Air Act forbids EPA

[[Page 34007]]

to base its actions concerning SIPs on such grounds. Union Electric Co. 
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    Conditional approvals of SIP submittals under section 110 and 
subchapter I, part D of the Act do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP approval does not impose any new 
requirements, EPA certifies that it does not have a significant impact 
on any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the Act, preparation of a flexibility 
analysis would constitute Federal inquiry into the economic 
reasonableness of state action. The Clean Air Act forbids EPA to base 
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. 
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
    If the conditional approval is converted to a disapproval under 
section 110(k), based on the State's failure to meet the commitment, it 
will not affect any existing state requirements applicable to small 
entities. Federal disapproval of the state submittal does not affect 
its state-enforceability. Moreover, EPA's disapproval of the submittal 
does not impose a new Federal requirement. Therefore, EPA certifies 
that this disapproval action does not have a significant impact on a 
substantial number of small entities because it does not remove 
existing requirements nor does it substitute a new federal requirement.
    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under Section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.
    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action, pertaining to the final conditional 
interim approval of the 15% plan for the Northern Virginia portion of 
the metropolitan Washington D.C. area, must be filed in the United 
States Court of Appeals for the appropriate circuit by August 25, 1997. 
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 may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Ozone.

    Dated: June 13, 1997.
W. Michael McCabe,

Regional Administrator, Region III.
    Chapter I, title 40, of the Code of Federal Regulations is amended 
as follows:

PART 52--[AMENDED]

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

    Authority: 42 U.S.C. 7401-7671q.

Subpart VV--Virginia

    2. Section 52.2450 is amended by adding paragraph (e) to read as 
follows:


Sec. 52.2450  Conditional approval.

* * * * *
    (e) The Commonwealth of Virginia's May 15, 1995 submittal for the 
15 Percent Rate of Progress Plan (15% plan) for the Northern Virginia 
portion of the Metropolitan Washington D.C. ozone nonattainment area, 
is conditionally approved based on certain contingencies, for an 
interim period. The conditions for approvability are as follows:
    (1) Virginia's 15% plan must be revised to account for growth in 
point sources from 1990-1996.
    (2) Virginia must meet the conditions listed in the November 6, 
1996 proposed conditional interim Inspection and Maintenance Plan (I/M) 
rulemaking notice, remodel the I/M reductions using the following two 
EPA guidance memos: ``Date by which States Need to Achieve all the 
Reductions Needed for the 15 Percent Plan from I/M and Guidance for 
Recalculation,'' note from John Seitz and Margo Oge, dated August 13, 
1996, and ``Modeling 15 Percent VOC Reductions from I/M in 1999--
Supplemental Guidance'', memorandum from Gay MacGregor and Sally 
Shaver, dated December 23, 1996.
    (3) Virginia must remodel to determine affirmatively the creditable 
reductions from RFG, and Tier 1 in accordance with EPA guidance.
    (4) Virginia must submit a SIP revision amending the 15% plan with 
a demonstration using appropriate documentation methodologies and 
credit calculations that the 54.5 tons/day reduction, supported through 
creditable emission reduction measures in the submittal, satisfies 
Virginia's 15% ROP requirement for the Metropolitan Washington D.C. 
nonattainment area.

[FR Doc. 97-16510 Filed 6-23-97; 8:45 am]
BILLING CODE 6560-50-P