[Federal Register Volume 67, Number 219 (Wednesday, November 13, 2002)]
[Proposed Rules]
[Pages 68805-68814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28845]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[DC039-2028; MD073-3091; VA090-5060; FRL-7407-6]


Designation of Areas for Air Quality Purposes; District of 
Columbia, Maryland, Virginia; Metropolitan Washington, DC Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to issue a finding that the Metropolitan 
Washington, DC serious ozone nonattainment area (hereinafter referred 
to as the Washington area) has failed to attain the one-hour ozone 
National Ambient Air Quality Standard (NAAQS) by November 15, 1999, the 
date set forth in the Clean Air Act (CAA or Act) for serious 
nonattainment areas. If EPA takes final action to issue this proposed 
finding of nonattainment, the area would be reclassified as a severe 
ozone nonattainment area. EPA is proposing to set the dates by which 
the District of Columbia, the State of Maryland and the Commonwealth of 
Virginia each must submit revisions to its State Implementation Plan 
(SIP) that adopt the severe area requirements. Finally, EPA is 
proposing to adjust the dates by which the area must achieve a nine (9) 
percent reduction in ozone precursor emissions to meet the 2002 rate-
of-progress requirement and adjust contingency measure requirements as 
this relates to the 2002 rate-of-progress requirement.

DATES: Written comments must be received on or before December 13, 
2002.

ADDRESSES: Written comments may be mailed to Walter K. Wilkie, Deputy 
Branch Chief, Air Quality Planning and Information Services Branch, 
Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents 
relevant to this action are available for public inspection during 
normal business hours at the Air Protection Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814-2179, or 
by e-mail at [email protected]. Please note that while 
questions may be posed via telephone and e-mail, formal comments must 
be submitted in writing, as indicated in the ADDRESSES section of this 
document.

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

Table of Contents

I. What Action Are We Proposing?
II. What Are the National Ambient Air Quality Standards?
III. What Is the NAAQS for Ozone?
IV. What Is the Washington Ozone Nonattainment Area?
V. Why Is the Washington Area Currently Classified as a Serious 
Nonattainment Area?
VI. Why Are We Proposing to Reclassify the Washington Area?
    A. What Are the Clean Air Act Requirements for Attainment 
Findings?
    B. What Is the Applicable Ozone Season Air Quality Data for the 
Washington Area?
VII. Why Did EPA Defer Making a Finding of Nonattainment Regarding 
the Washington Area's Attainment Status Beyond the Time Frame 
Prescribed by the CAA?
VIII. Has Air Quality Improved in the Washington Area in Recent 
Years?
IX. What Actions Has the District, Maryland and Virginia Taken to 
Improve Air Quality in the Washington Area?
X. If We Finalize Our Proposed Rulemaking Reclassifying the 
Washington Area, What Would Be the Area's New Classification?
XI. What Progress Has the Washington, DC Area Made Towards Planning 
to Attain the Ozone NAAQS by 2005?
XII. What Would a Reclassification Mean for the Washington Area?
XIII. What Are the Transportation Conformity Implications of 
Reclassification?
XIV. How Does the Recent Release of MOBILE6 Interact With 
Reclassification?
    A. What Is the Relationship Between MOBILE6 and the Attainment 
Year Motor Vehicle Emissions Budgets
    B. What Is the Relationship Between MOBILE6 and the Post-1999 
Rate-of-Progress Requirement
XV. If the Washington Area Is Reclassified to Severe, What Would its 
New Schedule be?
    A. What Would the Attainment Date be?
    B. When Are the Required SIP Revisions Due?
    C. What Will Be the Rate-of-Progress and Contingency Measure 
Schedules?
XVI. What Is the Impact of Reclassification on Title V Operating 
Permit Programs?
XVII. What Are the Relevant Policy and Guidance Documents?
XVIII. Administrative Requirements

I. What Action Are We Proposing?

    We are proposing to find that the Washington area has failed to 
attain the one-hour ozone NAAQS by the November 15, 1999, attainment 
deadline prescribed under the CAA for serious ozone nonattainment 
areas. EPA's authority to make this finding is discussed under section 
181(b)(2) of the CAA. Section 181(b)(2) explains the process for 
determining whether an area has attained the one-hour ozone standard 
and reclassification of the area if necessary. If we issue a final 
finding of failure to attain, the Washington area will be reclassified 
by operation of law from serious nonattainment to severe nonattainment.

II. What Are the National Ambient Air Quality Standards?

    Since the CAA's inception in 1970, EPA has set NAAQS for six common 
pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate 
matter, and sulfur dioxide. For most of

[[Page 68806]]

these common air pollutants, there are two types of pollution limits 
referred to as the primary and secondary standards.\1\ The primary 
standard is based on health effects; the secondary standard is based on 
environmental effects such as damage to property, plants, and 
visibility. The CAA requires these standards to be set at levels that 
protect public health and welfare with an adequate margin of safety. 
These standards present state and local governments with the air 
quality levels they must meet to achieve clean air. Also, these 
standards allow the American people to assess whether the air quality 
in their communities is healthful.
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    \1\ EPA has established only a primary standard for carbon 
monoxide.
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III. What Is the NAAQS for Ozone?

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

                  Table 1.--Summary of Ozone Standards
------------------------------------------------------------------------
                                   Value (parts
       Standard and type           per million)    Method of compliance
------------------------------------------------------------------------
1-hour--Primary and secondary..             0.12  Must not be exceeded,
                                                   on average, more than
                                                   one day per year over
                                                   any 3-year period.
8-hour--Primary and secondary..             0.08  The 3-year average of
                                                   the annual fourth-
                                                   highest maxima 8-hour
                                                   average ozone
                                                   concentrations
                                                   measured at each
                                                   monitor within an
                                                   area.
------------------------------------------------------------------------

    The 1-hour ozone standard of 0.12 parts per million (ppm) has 
existed since 1979. On July 18, 1997, EPA adopted the 8-hour ozone 
standard, which was intended to replace the one-hour standard in areas 
that were attaining the one-hour standard, (62 FR 38856).\2\ The one-
hour ozone standard continues to apply to all areas, notwithstanding 
promulgation of the 8-hour standard (40 CFR 50.9(b)). Both standards 
are codified at 40 CFR part 50. This document addresses the 
classification of the Washington area relative to only the one-hour 
ozone standard.
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    \2\ EPA revoked the one-hour standard in areas that were 
attaining the standard on June 5, 1998 (63 FR 31051). However, on 
May 14, 1999, the U.S. Court of Appeals for the District of Columbia 
Circuit ruled that the 8-hour ozone standard could not be enforced 
by EPA. Although the Court of Appeals determined that the 8-hour 
standard could not be enforced, it did not vacate the standard. 
hence, the 8-hour standard remained in effect. While appealing this 
decision to the United States Supreme Court, EPA reinstated the one-
hour standard in areas where it had been revoked. (See 65 FR 45181, 
dated July 20, 2000). On February 27, 2001, the Supreme Court upheld 
the 8-hour standard and instructed EPA to develop an implementation 
plan for the 8-hour standard that is consistent with the Supreme 
Court's opinion. Whitman v. American Trucking Assoc. Inc., 531 U.S. 
457 (2001).
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IV. What Is the Washington Ozone Nonattainment Area?

    The Washington area consists of the District of Columbia (the 
District), a Northern Virginia portion (Arlington, Fairfax, Loudoun, 
Prince William and Stafford Counties and the cities of Alexandria, 
Falls Church, Fairfax, Manassas, and Manassas Park), and Calvert, 
Charles, Frederick, Montgomery, and Prince George's Counties in 
Maryland.

V. Why Is the Washington Area Currently Classified as a Serious 
Nonattainment Area?

    Under section 107(d)(1)(C) of the CAA, each ozone area designated 
nonattainment for the one-hour standard prior to enactment of the 1990 
CAA amendments, such as the Washington area, was designated 
nonattainment by operation of law upon enactment of the amendments. 
Under section 181(a) of the Act, each ozone area designated 
nonattainment under section 107(d) was also classified by operation of 
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe,'' or 
``extreme,'' depending on the severity of the area's air quality 
problem. The design value for an area, which characterizes the severity 
of the air quality problem, is represented by the highest design value 
at any individual ozone monitoring site (i.e., the highest of the 
fourth highest one-hour daily maximum monitored ozone levels in a given 
three-year period with complete monitoring data). Table 2 provides the 
design value ranges for each nonattainment classification. Ozone 
nonattainment areas with design values between 0.160 and 0.180 ppm, 
such as the Washington area (which had a design value of 0.165 ppm in 
1989), were classified as serious. These nonattainment designations and 
classifications were codified in 40 CFR part 81 (see 56 FR 56694, 
November 6, 1991).

                                  Table 2.--Ozone Nonattainment Classifications
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           Area classification                  Design value (ppm)                   Attainment date
----------------------------------------------------------------------------------------------------------------
Marginal.................................  0.121 up to 0.138...........  November 15, 1993.
Moderate.................................  0.138 up to 0.160...........  November 15, 1996.
Serious..................................  0.160 up to 0.180...........  November 15, 1999.
Severe...................................  0.180 up to 0.280...........  November 15, 2005.
Extreme..................................  0.280 and above.............  November 15, 2010.
----------------------------------------------------------------------------------------------------------------

    In addition, states containing areas that were classified as 
serious nonattainment were required to submit SIP revisions to provide 
for certain controls, to show progress toward attainment, and to 
provide for attainment as expeditiously as practicable, but not later 
than November 15, 1999. Serious area SIP requirements are found 
primarily in section 182(c) of the CAA.

VI. Why Are We Proposing To Reclassify the Washington Area?

A. What Are the Clean Air Act Requirements for Attainment Findings?

    Regarding reclassification for failure to attain, section 
181(b)(2)(A) of the Act

[[Page 68807]]

provides that: Within six months following the applicable attainment 
date (including any extension thereof) for an ozone nonattainment area, 
the Administrator shall determine, based on the area's design value (as 
of the attainment date) whether the area attained the standard by that 
date. Except for any Severe or Extreme area, any area that the 
Administrator finds have not attained the standard by that date shall 
be reclassified by operation of law in accordance with table 1 of 
subsection (a) to the higher of--
    (i) The next higher classification for the area, or
    (ii) The classification applicable to the area's design value as 
determined at the time of the notice required under subparagraph (B).

    No area shall be reclassified as Extreme under clause (ii).
    Furthermore, section 181(b)(2)(B) of the Act provides that:

    The Administrator shall publish a notice in the Federal Register 
no later than six months following the attainment date, identifying 
each area that the Administrator has determined under subparagraph 
(A) as having failed to attain and identifying the reclassification, 
if any, described under subparagraph (A).

Therefore, under CAA section 181(b)(2)(A), we must determine within six 
months of the applicable attainment date whether an ozone nonattainment 
area has attained the 1-hour ozone standard. If we find that a serious 
area has not attained the standard and does not qualify for an 
extension, it is reclassified by operation of law to severe.\3\ CAA 
section 181(b)(2)(A) requires us to base our determination of 
attainment or finding of failure to attain on the area's design value 
as of its applicable attainment date, which for the Washington 
nonattainment area is November 15, 1999.
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    \3\ If an area does not have the clean data necessary to show 
attainment of the 1-hour standard but does have clean air in the 
year immediately preceding the attainment date and the states 
comprising the area have fully implemented its applicable SIP, the 
States may apply to us, under CAA section 181(a)(5), for a one-year 
extension of the attainment date. We do not discuss this provision 
further in this proposal because the Washington area did not have 
the requisite clean air data.
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    The 1-hour ozone NAAQS is 0.12 ppm not to be exceeded on average 
more than one day per year over any three year period. 40 CFR 50.9 and 
Appendix H. Under our policies, we determine if an area has attained 
the one-hour standard by calculating, at each monitor, the average 
number of days over the standard per year during the preceding three 
year period.\4\ See 40 CFR part 50, Appendix H.
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    \4\ See generally 57 FR 13506, April 16, 1992, and Memorandum 
from D. Kent Berry, Acting Director, Air Quality Management 
Division, EPA, to Regional Air Office Directors; ``Procedures for 
Processing Bump Ups and Extensions for Marginal Ozone Nonattainment 
Areas,'' dated February 3, 1994. While explicitly applicable only to 
marginal areas, the general procedures for evaluating attainment in 
this memorandum apply regardless of the initial classification of an 
area because all findings of attainment are made pursuant to the 
same Clean Air Act requirements in section 181(b)(2).
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    If an area has at least one monitor recording four or more 
exceedances during a 3-year period, then the average number of 
exceedance days per year exceeds one, and the area has not attained the 
standard.
    Conversely, if an area has all monitors with an average number of 
exceedance days per year less than or equal to one, only then has the 
area attained the standard.
    For this proposal, we have based our determination of whether the 
Washington nonattainment area attained the 1-hour ozone standard by 
November 15, 1999, on both the area's design value and the average 
number of exceedance days per year during the 1997 to 1999 period.
    The effect of a reclassification to severe on the Washington 
nonattainment area is to set a new attainment deadline for the area of 
November 15, 2005, and to require the State to submit a SIP revision 
that meets the CAA's requirements for severe ozone nonattainment areas. 
See CAA sections 181(a) and 182(i). Under section 182(i), we may set 
the submittal deadlines for these new planning requirements.

B. What Is the Applicable Ozone Season Air Quality Data for the 
Washington Area?

    Table 3 lists the average number of days when ambient ozone 
concentrations exceeded the one-hour ozone standard at each monitoring 
site in the Washington area for the period 1997-1999. The ozone design 
value for each monitor is also listed for the same period. A complete 
listing of the ozone exceedances for each monitoring site, as well as 
EPA's calculations of the design values, can be found in the docket 
file for this action. The data in Table 3 show that, for 1997-1999, 
many monitoring sites in the Washington area averaged more than one 
exceedance day per year. Therefore, pursuant to section 181(b)(2)(B) of 
the CAA, we propose to find that the Washington area did not attain the 
one-hour standard by the November 15, 1999, deadline.

                         Table 3.--Air Quality Data for the Washington Area (1997-1999)
----------------------------------------------------------------------------------------------------------------
                                                                                  Average number
                                                     Number of       Number of      of expected     Site design
              Site                  Monitor ID       days over     expected days    exceedances     value (ppm)
                                                     standard      over standard     (Note 1)
----------------------------------------------------------------------------------------------------------------
Tacoma School, Washington, DC...     110010025-1               1             1.0             0.3           0.117
River Terrace, Washington, DC...     110010041-1               3             3.0             1.0           0.120
McMillan Reservoir, Washington,      110010043-1               4             4.0             1.3           0.128
 DC.............................
Calvert Co, MD..................     240090010-1               0             0.0             0.0           0.115
Southern Maryland, Charles Co,       240170010-1               4             4.1             1.4           0.125
 MD.............................
Frederick Co, MD (Note b).......     240210037-1               2             3.0             1.5           0.114
Rockville, Montgomery Co, MD....     240313001-1               2             2.0             0.7           0.118
Greenbelt, Prince Georges Co, MD     240330002-1              12            12.7             4.2           0.132
 (Note c).......................
Suitland-Silver Hill, Prince         240338001-1               6             6.2             2.1           0.126
 Georges Co, MD.................
Arlington Co, VA................     510130020-1               4             4.3             1.4           0.126
Chantilly, Fairfax Co, VA.......     510590005-1               2             2.1             0.7           0.118
Mount Vernon, Fairfax Co, VA....     510590018-1               3             3.2             1.1           0.124
Franconia, Fairfax Co, VA (Note      510590030-1               1             1.0             0.5           0.118
 b).............................
Seven Corners, Fairfax Co, VA...     510591004-1               3             3.0             1.0           0.124
McLean, Fairfax Co, VA..........     510595001-1               1             1.0             0.3           0.114
Ashburn, Loudoun Co, VA (Note b)     511071005-1               0             0.0             0.0           0.116
Long Park, Prince William Co, VA     511530009-1               1             1.2             0.4           0.115

[[Page 68808]]

 
Widewater, Stafford Co, VA......     511790001-1               3             3.0             1.0           0.124
Alexandria City, VA.............     515100009-1               2             2.1             0.7          0.123
----------------------------------------------------------------------------------------------------------------
a. A violation occurs when the number of expected exceedances is greater than 3.1 over a 3-year (rolling) period
  (or a 3-year (rolling) average greater than 1.04). The statistical term ``expected exceedances'' is an
  arithmetic average explained at 40 CFR part 50, Appendix H.
b. New monitoring site with only two years (1998 and 1999) of data for the 1997 to 1999 period.
c. Monitor represents the 1997-1999 design value for the Washington area.
Raw data source: U.S. EPA Aerometric Information Retrieval System (AIRS) database.

    Several monitors recorded more than two or more exceedances in 
1999. These included the McMillan Reservoir monitor in the District, 
the Southern Maryland, and Greenbelt monitors in Maryland and the 
Arlington County monitor in Virginia.

VII. Why Did EPA Defer Making a Finding of Nonattainment Regarding the 
Washington Area's Attainment Status Beyond the Time Frame Prescribed by 
the CAA?

    For some time, EPA has recognized that pollutant transport can 
impair an area's ability to meet air quality standards by the date 
prescribed in the Act. In March 1995 a collaborative, Federal-state 
process to assess the ozone transport problem began. Through a two-year 
effort known as the Ozone Transport Assessment Group (OTAG), EPA worked 
in partnership with the 37 easternmost states and the District of 
Columbia, industry representatives, academia, and environmental groups 
to develop recommended strategies to address transport of ozone and 
ozone-forming pollutants across state boundaries.
    On November 7, 1997, EPA acted on OTAG's recommendations and issued 
a proposal (the proposed oxides of nitrogen (NOX) SIP call, 
62 FR 60318) requiring 22 states and the District of Columbia to submit 
state plans addressing the regional transport of ozone. These SIP 
revisions will decrease the transport of ozone across state boundaries 
in the eastern half of the United States by reducing emissions of 
NOX (a precursor to ozone formation). EPA took final action 
on the NOX SIP call on October 27, 1998 (63 FR 57356). EPA 
expects the final NOX SIP call will assist many areas in 
attaining the 1-hour ozone standard.
    On July 16, 1998, in consideration of these factors and the 
realization that many areas were unable to meet the CAA-mandated 
attainment dates due to transport, EPA's then Acting Assistant 
Administrator, Richard Wilson, EPA issued an attainment date extension 
policy.\5\ Under this policy, the attainment date for an area may be 
extended provided that the following criteria are met: (1) The area is 
identified as a downwind area affected by transport from either an 
upwind area in the same state with a later attainment date, or an 
upwind area in another state that significantly contributes to downwind 
nonattainment (by ``affected by transport,'' EPA means an area whose 
air quality is affected by transport from an upwind area to a degree 
that affects the area's ability to attain); (2) an approvable 
attainment demonstration is submitted along with any necessary, adopted 
local measures and with an attainment date that shows that the area 
will attain the 1-hour standard no later than the date that the 
reductions are expected from upwind areas under the final 
NOX SIP call and/or the statutory attainment date for upwind 
nonattainment areas, i.e., assuming the boundary conditions reflect 
those upwind reductions; (3) the area has adopted all applicable local 
measures required under the area's current classification and any 
additional measures necessary to demonstrate attainment, assuming the 
reductions occur as required in the upwind areas; and (4) the area 
provides it will implement all adopted measures as expeditiously as 
practicable but no later than the date by which the upwind reductions 
needed for attainment will be achieved (64 FR 14441, March 25, 1999).
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    \5\ Memorandum, ``Extension of Attainment Dates for Downwind 
Transport Areas,'' issued July 16, 1998.
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    EPA contemplated that when it acted to approve such an area's 
attainment demonstration and attainment date extension, it would, as 
necessary, extend that area's attainment date to a date appropriate for 
that area in light of the schedule for achieving the necessary upwind 
reductions. As a result, the area would no longer be subject to 
reclassification or ``bump-up'' for failure to attain by its original 
attainment date under section 181(b)(2).
    The State of Maryland, the Commonwealth of Virginia and the 
District of Columbia each submitted a request for such an extension of 
the attainment date for the Washington nonattainment area. In a January 
3, 2001 (66 FR 586), final rule, EPA approved these requests along with 
attainment demonstration SIP revisions. The Sierra Club and its local 
chapters filed a petition for review in the United States Courts of 
Appeals for the appropriate circuits.\6\ The petitions were 
consolidated in the United States Courts of Appeals for the District of 
Columbia Circuit.
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    \6\ The District of Columbia lies within the jurisdiction of the 
District of Columbia Circuit and Maryland and Virginia lie within 
the Fourth Circuit.
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    On July 2, 2002, the United States Courts of Appeals for the 
District of Columbia Circuit (the Court) issued its ruling that vacated 
our January 3, 2001, final rule. With respect to the attainment date 
extension, the Court found that the plain language of Clean Air Act 
``sets a deadline without an exception for setbacks owing to ozone 
transport.'' The Court said that the EPA was without authority to 
extend the Washington, DC area's attainment deadline unless it also 
ordered the area to be reclassified as a ``severe'' area.
    Because we can no longer grant the Washington area an attainment 
date extension using the July 16, 1998, policy, we must determine 
whether the Washington area will be reclassified by operation of law to 
severe if we issue a final action finding that the area failed to 
attain.

VIII. Has Air Quality Improved in the Washington Area in Recent Years?

    The air quality in the Washington area has improved significantly 
since the area was designated nonattainment following enactment of the 
1990 CAA amendments, when the area's (1987-1989) ozone design value was 
0.165

[[Page 68809]]

ppm. The most recent (i.e., 1999-2001) area-wide ozone data shows a 
continuing downward trend in the numbers of violations and ozone design 
values. The area now has only three monitors violating the standard, 
and of these, the maximum number of violations is 2.0 at the Greenbelt 
monitor in Maryland. The current design value is 0.130 ppm. The 1987-
1989, 1997-1999 and 1999-2001 data are summarized in Table 4.

                                    Table 4--Air Quality Data Summary for 1987 to 1989, 1997 to 1999 and 1999 to 2001
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               1987 to 1989              1997 to 1999                          Average
                                                                        ----------------------------------------------------                  number of
                                                                                                                                               expected
                          Site                             Monitor ID    Average number            Average number             1999 to 2001   exceedances
                                                                           of expected    Design     of expected    Design                  ------------
                                                                           exceedances     value     exceedances     value                      Design
                                                                                                                                                value
--------------------------------------------------------------------------------------------------------------------------------------------------------
West End, Washington, DC (Note a)......................     110010017-1             1.8     0.120            N.D.      N.D.            N.D.        N.D.
Tacoma School, Washington, DC..........................     110010025-1             5.0     0.165             0.3     0.117             1.0       0.117
River Terrace, Washington, DC..........................     110010041-1            N.D.      N.D.             1.0     0.120             0.3       0.120
McMillan Reservoir, Washington, DC.....................     110010043-1            N.D.      N.D.             1.3     0.128             1.6       0.125
Calvert Co, MD.........................................     240090010-1            N.D.      N.D.             0.0     0.115             0.0       0.112
Southern Maryland, Charles Co, MD......................     240170010-1             5.0     0.145             1.4     0.125             0.7       0.121
Frederick Co, MD (Note b)..............................     240210037-1            N.D.      N.D.             1.5     0.114             0.4       0.114
Rockville, Montgomery Co, MD...........................     240313001-1             5.3     0.140             0.7     0.118             0.3       0.113
Greenbelt, Prince Georges Co, MD.......................     240330002-1             6.8     0.157             4.2     0.132             2.1       0.130
Suitland-Silver Hill, Prince Georges Co, MD............     240338001-1             7.6     0.163             2.1     0.126             1.4       0.126
Arlington Co, VA.......................................     510130020-1             5.4     0.145             1.4     0.126             0.7       0.122
Chantilly, Fairfax Co, VA (Note c).....................     510590005-1            N.D.      N.D.             0.7     0.118             0.0       0.113
Mount Vernon, Fairfax Co, VA...........................     510590018-1             8.1     0.162             1.1     0.124             0.8       0.121
Franconia, Fairfax Co, VA (Note b).....................     510590030-1            N.D.      N.D.             0.5     0.118             0.3       0.117
Seven Corners, Fairfax Co, VA (Note d).................     510591004-1             8.0     0.155             1.0     0.124             0.5       0.111
McLean, Fairfax Co, VA.................................     510595001-1             7.1     0.144             0.3     0.114             0.7       0.115
Ashburn, Loudoun Co, VA (Note b).......................     511071005-1            N.D.      N.D.             0.0     0.116             0.0       0.106
Long Park, Prince William Co, VA (Note c)..............     511530009-1            N.D.      N.D.             0.4     0.115             0.0       0.108
Widewater, Stafford Co, VA (Note c)....................     511790001-1            N.D.      N.D.             1.0     0.124             0.3       0.106
Alexandria City, VA....................................     515100009-1             1.7     0.130             0.7     0.123             0.3       0.117
Fairfax City, VA (Note a)..............................     516000005-1             6.1     0.146            N.D.      N.D.            N.D.       N.D.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
N.D. denotes no data.
a. Discontinued Monitoring site.
b. New Monitoring site with only two years (1998 and 1999) of data for the 1997 to 1999 period and three years of data for 1999 to 2001.
c. New Monitoring Site with three years of data for 1997 to 1999 and all later periods.
d. Also known as the ``Lewinsville'' site.

IX. What Actions Has the District, Maryland and Virginia Taken To 
Improve Air Quality in the Washington Area?

    EPA has approved, and the District, Maryland and Virginia have 
implemented, VOC emission reductions as part of the State's 15 Percent 
Rate-of-Progress Plan, and VOC and NOX emission reductions 
as part of the Post-1996 Rate-of-Progress Plan. The area has already 
opted into the Federal reformulated gasoline program. For an extensive 
summary of these plans and the measures currently in place or scheduled 
for future implementation refer to the preambles of our December 16, 
1999 (64 FR at 70471-70474), and January 3, 2001 (66 FR at 589-590), 
Federal Register publications. In addition, since the January 3, 2001, 
final rule, the District and Virginia have adopted rules to implement 
the NOX SIP call with implementation in 2003 and 2004, 
respectively. Virginia submitted its rule on June 25, 2002.\7\ See 67 
FR 48032, July 23, 2002. We approved the District's rule on November 1, 
2001, (66 FR 55099).
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    \7\ This June 25, 2002, submittal was to set statewide 
requirements on electric generating utilities. Virginia has already 
adopted two SIP revisions that effectively impose a 0.15 pounds of 
NOX per million BTU heat input on emissions units at two 
electric generating facilities in the Washington area. On December 
14, 2000 (65 FR 78100), EPA approved these two SIP revisions.
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X. If We Finalize Our Proposed Rulemaking Reclassifying the Washington 
Area, What Would Be the Area's New Classification?

    As stated previously, section 181(b)(2)(A) of the Act requires 
that, when an area is reclassified for failure to attain, its 
reclassification must be the higher of the next higher classification 
or the classification applicable to the area's ozone design value at 
the time the notice of reclassification is published in the Federal 
Register. However, no area can be reclassified as extreme based upon 
its design value. The official design value of the Washington area 
based on quality-assured ozone monitoring data from 1997-1999 is 0.132 
ppm. The classification corresponding to this value is ``marginal'' 
nonattainment. By contrast, the next higher classification for the 
Washington area is ``severe'' nonattainment. Because ``severe'' is a 
higher nonattainment classification than ``marginal,'' under the 
statutory scheme, the area would be reclassified to severe 
nonattainment. Refer to Table 3 above.

XI. What Progress Has the Washington, DC Area Made Towards Planning To 
Attain the Ozone NAAQS by 2005?

    In April 1998, the District, Maryland and Virginia each submitted 
modeling and a weight of evidence demonstration setting local overall 
emissions budgets when combined with boundary conditions consistent 
with the NOX SIP

[[Page 68810]]

call to demonstrate attainment of the 1-hour ozone NAAQS. While the air 
quality modeling analysis considered projected local emissions levels 
that were expected to occur by 1999, the calendar year itself is not an 
input to the air quality model. The air quality model responds only to 
the meteorology (temperature, wind patterns, etc.) of the selected 
episode, the ozone and precursor levels at the boundaries of the grid 
of the area being modeled and the overall change in local emissions 
levels in the local area. During February 2000, the States submitted 
SIP revisions that demonstrated that the local overall emissions 
budgets set by the air quality modeling demonstration could be achieved 
in 2005 with a combination of Federally promulgated national measures 
and local measures in the approved SIPs. (For a discussion of these 
measures and their status as of January 3, 2001, see 66 FR at 589-590, 
January 3, 2001.)

XII. What Would a Reclassification Mean for the Washington Area?

    If reclassified, the Washington area would need to attain the one-
hour ozone NAAQS as expeditiously as practicable, but no later than 
November 15, 2005. The District, Maryland and Virginia would also need 
to submit SIP revisions addressing all the severe area requirements for 
the one-hour standard specified in sections 182(a) through 182(d) of 
the Act. The SIP requirements for severe ozone nonattainment areas 
include, but are not limited to, the following:
    (1) Attainment demonstration for 2005 and rate-of-progress 
demonstrations for 2002 and 2005 including adequate on-road mobile 
emissions budgets for transportation conformity purposes.
    (2) A 25 ton-per-year major stationary source threshold for 
volatile organic compounds and nitrogen oxides.
    (3) More stringent new source review requirements.
    (4) Enforceable transportation control strategies and measures to 
offset projected growth in vehicle miles traveled or number of vehicle 
trips as necessary to demonstrate attainment and to achieve periodic 
emissions reduction requirements.
    (5) Contingency measures.

XIII. What Are the Transportation Conformity Implications of 
Reclassification?

    The ozone reclassification in and of itself would not immediately 
affect the applicable motor vehicle emissions budgets in the Washington 
area. Currently the only applicable motor vehicle emission budgets for 
the District, Maryland and Virginia are those for VOC and 
NOX in the approved rate-of-progress plan for 1999 and two 
sets of outyear budgets established for 2015 and for 2020.\8\ Until 
such time as rate-of-progress and/or 2005 attainment year ozone budgets 
have been determined to be adequate or are approved, these 1999 budgets 
apply until 2015, at which point the outyear budgets apply for 2015 and 
all future years. See 65 FR 40167, July 3, 2000.
---------------------------------------------------------------------------

    \8\ There are also approved VOC budgets in the 15 percent rate-
of-progress plan, but these are effectively superceded by the 
approved 1999 VOC budgets which are both for a later year and are 
more stringent. See 40 CFR 93.118.
---------------------------------------------------------------------------

    Our January 3, 2001, final rule approved motor vehicle emissions 
budgets for 2005 which were contained within the February 2000 
submittals, but the Court's July 2, 2002, decision has vacated our 
approval action. We had found these budgets to be adequate on June 8, 
2000, (65 FR 36439), but have always interpreted the transportation 
conformity rule such that a final rulemaking action approving a control 
strategy or maintenance plan SIP renders any prior adequacy 
determination made for budgets related to that particular control 
strategy or maintenance plan SIP of no further force or effect. 
Instead, the final rulemaking governs which budgets apply for 
conformity purposes. We also interpret our transportation conformity 
rule to mean that once an approval is vacated the prior adequacy 
determination is not resurrected. We made the prior adequacy 
determination based upon the record before us at that time. At the very 
least, we are now confronted with the fact of the Court's vacatur of 
the January 3, 2001, final rule and thus must consider whether or not 
the Court's ruling precludes a determination of adequacy of the 
calendar year 2005 motor vehicle emissions budgets in the February 2000 
SIP submissions.
    We initiated a new adequacy process with respect to the budgets for 
2005 that were contained in the February 2000 plan. On September 9, 
2002, we completed the public notice and comment portion of the process 
to determine the adequacy process. EPA received adverse comments on the 
adequacy of these budgets, and is currently considering appropriate 
action in response to those comments. Further information on any 
findings of adequacy can be found at http://www.epa.gov/otaq/transp/conform/adequacy.htm.
    Once new severe area budgets are submitted and have been determined 
adequate, these post-1999 rate-of-progress budgets would set emission 
caps for any post-1999 milestone years (2002 and 2005), and the new 
attainment year budgets would apply to the 2005 attainment year and all 
years beyond the attainment year up to the point when an outyear budget 
has been established.

XIV. How Does the Recent Release of MOBILE6 Interact With 
Reclassification?

A. What Is the Relationship Between MOBILE6 and the Attainment Year 
Motor Vehicle Emissions Budgets

    The 2005 motor vehicle emissions budgets contained in the February 
2000 submittal are not based upon the most recent mobile source 
emission factors model, MOBILE6. The February 2000 attainment plan SIP 
submissions relied upon reductions from EPA's Tier 2 Federal motor 
vehicle control program standards and Sulfur in gasoline rule (the Tier 
2/Sulfur program) to in effect demonstrate that the reduction in local 
emissions between 1990 and 2005 would be greater than or equal to the 
reduction in local overall emissions assumed in the air quality 
modeling demonstration. We have always stated that the benefits of the 
Tier 2 program cannot be accurately estimated until MOBILE6 is 
released. Before the official release of the MOBILE6 emission factor 
model, we required States that adopted benefits of the Tier 2/Sulfur 
program into their attainment demonstrations (and certain other SIP 
revisions) to submit an enforceable commitment to revise the motor 
vehicles emissions budgets within either one or two years of the 
release of the MOBILE6 model. For further detail on our rationale 
regarding this commitment see 64 FR 70460, December 16, 1999, and 65 FR 
46383, July 28, 2000. The District, Maryland and Virginia submitted an 
enforceable commitment to revise the motor vehicles emissions budgets 
within one-year of the release of the MOBILE6 model. Because the 
MOBILE6 model was released on January 29, 2002, (67 FR 4254) the 
commitment required submittal of revised budgets by January 29, 2003. 
We believe that approval of this commitment only has context within the 
framework of an approval of the attainment demonstration under the 
conditions we laid out in our January 3, 2001, final rule and in the 
proposed actions leading up to that final action. We have interpreted 
the Court of Appeals's July 2, 2002, ruling as vacating the approval of 
this commitment.
    We expect that any subsequent motor vehicle emissions budgets 
submitted to fulfill the severe area requirements

[[Page 68811]]

including that of the attainment demonstration will be prepared using 
the MOBILE6 emissions factor model and pursuant to applicable guidance 
and policy such as that found in the January 18, 2002, joint memorandum 
from John S. Seitz and Margo Tsirigotis Oge entitled ``Policy Guidance 
for the Use of MOBILE6 in SIP Development and Transportation 
Conformity'' (January 18 MOBILE6 policy). Thus, although the obligation 
to submit MOBILE6 budgets by January 29, 2003, has been vacated, the 
severe area SIP when submitted must contain budgets based on MOBILE6 
modeling.

B. What Is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress Requirement

    In our guidance documents, the EPA has interpreted the section 
182(c)(2) reasonable further progress requirement as mandating volatile 
organic compounds (VOC) or nitrogen oxides (NOX) reductions 
of 3 percent per year, averaged over a 3-year period, for serious and 
above ozone nonattainment areas that were designated and classified 
under the 1-hour ozone NAAQS. The EPA refers to these reductions as the 
rate-of-progress requirement.
    The January 18, 2002, MOBILE6 policy guidance indicates that among 
other things, the motor vehicle emissions budgets in the post-1999 
rate-of-progress plans will have to developed using MOBILE6. In this 
policy we said:

    In general, EPA believes that MOBILE6 should be used in SIP 
development as expeditiously as possible. The Clean Air Act requires 
that SIP inventories and control measures be based on the most 
current information and applicable models that are available when a 
SIP is developed.\9\
---------------------------------------------------------------------------

    \9\ See Clean Air Act section 172(c)(3) and 40 CFR 51.112(a)(1).

Since the area is only now beginning work on the post-1999 rate-of-
progress plans as a result of reclassification to severe, these plans 
will need to be based upon MOBILE6.
    The post-1999 rate-of-progress requirement flows from section 
182(c)(2)(B) which requires serious and above areas to achieve a 3 
percent per year reduction in baseline VOC emissions (or some 
combination of VOC and NOX reduction from baseline emissions 
pursuant to section 182(c)(2)(C)) averaged over each consecutive three-
year period after November 15, 1996, until the attainment date.\10\ 
Baseline emissions are the total amount of actual VOC or NOX 
emissions from all anthropogenic sources in the area during the 
calendar year 1990, excluding emissions that would be eliminated under 
certain Federal programs and Clean Air Act mandates: phase 2 of the 
Federal gasoline Reid vapor pressure regulations (Phase 2 RVP) 
promulgated on June 5, 1990 (see 55 FR 23666); the Federal motor 
vehicle control program in place as of January 1, 1990 (1990 FMVCP); 
and certain changes and corrections to motor vehicle inspection and 
maintenance (I/M) programs and corrections and reasonably available 
control technology (RACT) that were required under section 
182(a)(2).\11\ We have issued guidance that provides detailed 
information on for implementing the rate-of-progress provisions of 
section 182.\12\ Basically our guidance requires the calculation of a 
target level of emissions for each rate-of-progress milestone year. The 
target level for any rate-of-progress milestone year is the 1990 
baseline emissions decreased by the amount of baseline emissions that 
would be reduced by the 1990 FMVCP and the Phase 2 RVP program by that 
year and reduced by the amount of the mandated minimum reductions (15 
percent VOC by 1996, and an additional nine (9) percent VOC, or VOC and 
NOX by 1999, * * *). Under our guidance the first rate-of-
progress milestone year target levels, for example, the 15 percent VOC 
reduction by 1996 requirement, starts with the 1990 base year emissions 
and then subtracts the effects of the 1990 FMVCP and Phase 2 RVP 
through 1996 and also subtracts the required 15 percent VOC reduction. 
The 1999 VOC target level starts with the 1996 target level and 
subtracts the effects between 1996 and 1999 of the 1990 FMVCP and Phase 
2 RVP and subtracts the required 9 percent post-1996 reduction. For 
each target level, our guidance requires the preparation of a 1990 base 
year inventory ``adjusted'' to the milestone year (the ``1990 adjusted 
base year inventory'') to account for the effects of the 1990 FMVCP and 
Phase 2 RVP by the milestone year. The adjusted inventory uses 1990 
motor vehicle activity levels but emission factors computed by MOBILE6 
for the applicable milestone year. For example, preparation of a rate-
of-progress plan for 1999 with NOX substitution requires a 
1990 base year inventory for both VOC and NOX, a 1990 base 
year VOC inventory adjusted to 1996 and 1990 base year VOC and 
NOX inventories inventory adjusted to 1999. Preparation of a 
rate-of-progress plan for 1999 with NOX substitution 
requires a 1990 base year inventory for both VOC and NOX 
plus the following seven ``adjusted'' inventories: 1996 VOC; 1999 VOC 
and NOX; 2002 VOC and NOX and 2005 VOC and 
NOX.
---------------------------------------------------------------------------

    \10\ As a serious area the Washington area was required to 
submit a rate-of-progress plan for a nine (9) percent reduction for 
the 3-year period November 15, 1996, through November 15, 1999.
    \11\ These requirements under section 182(a)(2) are known I/M 
and RACT corrections or I/M and RACT ``fix-ups.'' For further 
explanation of these see 57 FR at 13503-13504, April 16, 1992.
    \12\ This includes among others: Guidance on the Post -1996 
Rate-of-Progress Plan (RPP) and Attainment Demonstration, EPA-452/R-
93-015 (Corrected version of February 18, 1994). An electronic copy 
may be found on EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html (file name: ``post96--2.zip'').
---------------------------------------------------------------------------

    One consequence of the need to use MOBILE6 emission factors in the 
post-1999 rate-of-progress plan is that the area must recompute the 
1990 baseline emissions using the MOBILE6 emissions factor model to 
update the 1990 on-road mobile sources portion of the 1990 base year 
emission inventory. The area must also calculate post-1999 rate-of-
progress target levels by re-iterating the target levels for rate-of-
progress requirements for the 1996 and 1999 milestone years.
    In addition to vehicle emissions budgets for any applicable 
milestone year, the post-1999 rate-of-progress requirement will also 
require the development of a revision to the 1990 base year emissions 
inventories and development of up to seven 1990 adjusted inventories 
(VOC for 1996, VOC and NOX for 1999, VOC and NOX 
for 2002, plus VOC and NOX for 2005).

XV. If the Washington Area Is Reclassified to Severe, What Would Its 
New Schedule Be?

A. What Would the Attainment Date Be?

    If the Washington area is reclassified to severe, the new 
attainment deadline under section 181(b)(2) would be as expeditious as 
practicable, but no later than the date applicable to the new 
classification, i.e., November 15, 2005.

B. When Are the Required SIP Revisions Due?

    The District, Maryland and Virginia would be required to submit a 
SIP that adopts all the severe area requirements. Under section 
181(a)(1) of the Act, the new attainment deadline for serious areas 
reclassified to severe under section 181(b)(2) would be as expeditious 
as practicable, but no later than the date applicable to the new 
classification, i.e., November 15, 2005. When we issue any final 
finding of failure to attain that reclassifies the Washington area, we 
must also address the schedule by which the District, Maryland and 
Virginia will be required to submit a SIP revision meeting the severe 
area requirements. Pursuant to section 182(i), EPA can adjust any

[[Page 68812]]

applicable deadline (other than the attainment date) as appropriate for 
any area reclassified under section 181(b) of the CAA. We propose to 
have the District, Maryland and Virginia submit this SIP by the earlier 
of the following dates: within one year of the effective date of a 
final action on the proposed finding of failure to attain and any 
consequent reclassification or March 1, 2004. If any of the Washington 
area States fail to submit a complete severe area SIP that addresses 
the new severe area requirements by the deadline set in a final rule 
reclassifying this area, we will start a sanctions clock pursuant to 
CAA section 179(a)(1) for failure to submit a required SIP revision.
    EPA believes that this proposed rule provides ample advance notice 
to the affected jurisdictions that the severe area requirements may 
become applicable to the Washington area. However, the issuance of the 
MOBILE6 emission factor model will require the area to recompute the 
1990 base year emissions and restate pre-1999 rate-of-progress targets 
using MOBILE6. This will require significantly more inventory 
preparation than would have occurred had the MOBILE5 model remained in 
force and the area could have used the MOBILE5-based 1990 base year 
emissions inventories and target levels through 1999. A March 1, 2004, 
submittal deadline will require the jurisdictions to have adopted 
additional emission control regulations that can allow sources a 
minimally reasonable time to comply before the start of the 2005 ozone 
season and, for measures needed solely to meet rate-of-progress 
requirements, slightly longer to comply before the rate-of-progress 
deadline of November 15, 2005. This schedule is for all the severe area 
SIP requirements. We solicit comments on this proposed schedule.

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

(1) 2002 Rate-of-Progress Milestone
    Section 182(c)(2)(B) requires serious and above areas achieve a 3 
percent per year reduction in baseline VOC emissions (or some 
combination of VOC and NOX reductions from baseline 
emissions pursuant to section 182(c)(2)(C)) averaged over each 
consecutive three-year period after November 15, 1996, until the 
attainment date. Therefore, a serious area must achieve a 9 percent 
reduction between November 15, 1996, and November 15, 1999; a severe 
area with an attainment date of November 15, 2005, additionally has to 
achieve an additional 9 percent reduction by November 15, 2002, and a 
further 9 percent reduction by November 15, 2005.
    Under the schedule for submittal of all severe area requirements 
that is proposed in the preceding section of this document under the 
heading ``B. When are the Required SIP Revisions Due,'' the rate-of-
progress plan for the 2002 milestone year will be due well after the 
November 15, 2002, milestone date for the first of the post-1999 9 
percent reduction requirements.
    If sufficient actual reductions occurring by the November 15, 2002, 
milestone date do not now exist, then Maryland, Virginia or the 
District can only get reductions after the milestone deadline because, 
at this point, the States do not have the ability to require additional 
reductions for a period that has already passed. We believe the passing 
of the deadline does not relieve Maryland, Virginia or the District 
from the requirement to achieve the 9 percent reduction in emissions, 
but rather the 9 percent reduction needs to be achieved as 
expeditiously as practicable after November 15, 2002.
    The approved SIPs for the area contain measures that either were 
not used in the demonstration of rate-of-progress by 1999 or that 
generate additional benefits after November 15, 1999, over and above 
what was credited to the rate-of-progress plan for 1999. Such measures 
include the National Low Emission Vehicle program in the entire area 
and, in the District and Maryland portions of the Washington area, 
beyond RACT reduction requirements on large sources of NOX. 
The area also opted-into the Federal reformulated gasoline (RFG) 
program. The second phase of the RFG program, which went into effect on 
January 1, 2000, also produces reductions creditable towards the 2002 
rate-of-progress requirement.
    As discussed elsewhere in this document in the section titled 
``What is the Relationship Between MOBILE6 and the Post-1999 Rate-of-
Progress,'' the CAA specifies the emissions ``baseline'' from which 
each emission reduction milestone is calculated. Section 182(c)(2)(B) 
states that the reductions must be achieved ``from the baseline 
emissions described in subsection (b)(1)(B).'' This baseline value is 
termed the 1990 adjusted base year inventory. Section 182(b)(1)(B) 
defines baseline emissions (for purposes of calculating each milestone 
VOC/NOX emission reduction) as ``the total amount of actual 
VOC or NOX emissions from all anthropogenic sources in the 
area during the calendar year of enactment'' (emphasis added) and 
excludes from the baseline the emissions that would be eliminated by 
certain specified Federal programs and ceratin changes to state I/M and 
RACT rules.\13\ The 1990 adjusted base year inventory must be 
recalculated relative to each milestone and attainment date because the 
emission reductions associated with the FMVCP increase each year due to 
fleet turnover.\14\
---------------------------------------------------------------------------

    \13\ These are the 1990 FMVCP, Phase 2 RVP, and the I/M and RACT 
fix-ups.
    \14\ See U.S. EPA, (1994), Guidance on the Post-1996 Rate-of-
Progress Plan (RPP) and Attainment Demonstration, EPA-452/R-93-015 
(Corrected version of February 18, 1994). An electronic copy may be 
found on EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html 
(file name: ``post96--2.zip'').
---------------------------------------------------------------------------

    Therefore, EPA concludes that the area has already implemented 
measures creditable towards the 2002 rate-of-progress milestone. 
However, we are not able to conclude that the area has sufficient 
measures to achieve the required 9 percent reduction by November 15, 
2002, in the absence of a full blown rate-of-progress plan for the 2002 
milestone year that documents the calculations of the 2002 target 
levels of emissions, documents how the SIP accounts for expected growth 
in emissions related activities and contains the requisite 
demonstration that sufficient creditable reductions have or were 
projected to occur by November 15, 2002. We have insufficient data 
concerning what the levels of reductions will be in the area by 2002, 
what the proper 1990 adjusted base year inventory for 2002 will be or 
how much emissions growth will occur in the period November 15, 1999, 
through November 15, 2002. Nor do we have sufficient information to 
allow us to determine what date will be as expeditiously as practicable 
after November 15, 2002, for this first post-1999 9 percent rate-of-
progress requirement.
    EPA proposes that the 2002 rate-of-progress requirement be that the 
District, Maryland and Virginia submit a rate-of-progress plan that 
demonstrates that the SIP has sufficient measures to make the required 
percent reduction by November 15, 2002, or by a date as expeditiously 
as practicable thereafter.\15\ Such SIP revisions will have to 
demonstrate that any date after November 15, 2002, by which the first 
post-1999 9 percent rate-of-progress reduction is achieved is that 
which is as expeditiously as practicable.
---------------------------------------------------------------------------

    \15\ EPA believes that such date cannot be any later than 
November 15, 2005.
---------------------------------------------------------------------------

(2) 2005 Rate-of-Progress
    EPA is not proposing any change to the date by which the second 9 
percent increment of post-1999 rate-of-progress

[[Page 68813]]

must be achieved. If the currently adopted and approved SIP measures 
and the current suite of Federal measures will not achieve the required 
rate-of-progress reductions, we believe the area has sufficient time to 
adopt and implement measures to achieve the required reductions by 
November 15, 2005.
(3) Contingency for Failure To Achieve Rate-of-Progress by November 15, 
2002
    The contingency measures plan must identify specific measures to be 
undertaken if the area fails to meet any applicable milestone, failure 
to make rate-of-progress or failure to attain the NAAQS. With respect 
to the November 15, 2002, milestone, EPA believes that the contingency 
plan will need to account for any adjustment to the milestone date.

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

    Upon reclassification the major stationary source threshold will be 
lowered from 50 tons per year (TPY) to 25 TPY. Consequently, the 
District's, Maryland's and Virginia's Title V operating permits program 
regulations need to cover sources that will become subject to the lower 
major stationary source threshold. EPA has reviewed the relevant permit 
program regulations for the Washington area states. This review 
indicates that the three program regulations will apply the requisite 
25 TPY major stationary source threshold to the Washington area if this 
area is reclassified to severe. No changes to the State's' Title V 
permit program regulations will be required as a result of a 
reclassification of the Washington area to severe nonattainment.
    After any reclassification to severe, additional sources will 
become subject to the Title V permitting requirements due to the change 
in the major stationary source threshold from 50 TPY to 25 TPY. Any 
newly major stationary sources must submit a timely Title V permit 
application. ``A timely application for a source applying for a part 70 
permit for the first time is one that is submitted within 12 months 
after the source becomes subject to the permit program or on or before 
such earlier date as the permitting authority may establish.'' See 40 
CFR 70.5(a)(1). The 12 month (or earlier date set by the applicable 
permitting authority) time period to submit a timely application will 
commence on the effective date of any reclassification action.

XVII. What Are the Relevant Policy and Guidance Documents?

    Commencing with ``State Implementation Plans; General Preamble for 
the Implementation of Title I of the Clean Air Act Amendments of 1990'' 
(57 FR 13498, April 16, 1992), EPA has issued numerous policy and 
guidance memoranda and guidance documents related to the attainment 
demonstration, rate-of-progress and other requirements related to the 
severe area classification. These documents are too numerous to list 
here.
    Several have already been cited elsewhere in this document.
    Several of the documents identified in prior Federal Register 
publications related to the Washington area, for example, those listed 
at 64 FR at 70469, December 16, 1999, no longer are applicable in this 
instance because they have dealt with quantifying the benefits of our 
Tier 2 regulations prior to the release of MOBILE6 and have become 
unnecessary since the release of the MOBILE6 model and the January 18 
MOBILE6 policy.\16\ The final mid-course review guidance has been 
released whereas prior Federal Register publications referenced a 
draft.\17\ And the Memorandum, ``Extension of Attainment Dates for 
Downwind Transport Areas,'' issued July 16, 1998, was declared unlawful 
by the United States Courts of Appeals for the District of Columbia.
---------------------------------------------------------------------------

    \16\ These are the two following memoranda: ``Guidance on Motor 
Vehicle Emissions Budgets in One-Hour Attainment Demonstrations,'' 
of November 3, 1999, and ``1-Hour Ozone Attainment Demonstrations 
and Tier 2/Sulfur Rulemaking.'' of November 8, 1999.
    \17\ Memorandum ``Mid-Course Review Guidance for the 1-Hour 
Ozone Nonattainment Areas that Rely on Weight-of-Evidence for 
Attainment Demonstration'' from Lydia N. Wegman and J. David Mobley 
to the Air Division Directors, Regions I-X of March 28, 2002.
---------------------------------------------------------------------------

    EPA is soliciting public comments on the issues discussed in this 
document or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the ADDRESSES section of 
this document.

Proposed Action

    EPA is proposing to find that the Metropolitan Washington, D.C. 
serious ozone nonattainment area has failed to attain the one-hour 
ozone NAAQS by November 15, 1999, the date set forth in the Clean Air 
Act (CAA or Act) for serious nonattainment areas. If EPA takes final 
action to issue this proposed finding of failure to attain, the area 
would be reclassified as a severe ozone nonattainment area by operation 
of law. EPA is proposing to require the District of Columbia, the State 
of Maryland and the Commonwealth of Virginia to submit revisions to its 
State Implementation Plan (SIP) that adopt the severe area requirements 
within one year of the effective date of a final action on the 
attainment determination and any consequent reclassification but not 
later than March 1, 2004, whichever is sooner. Finally, EPA is 
proposing to adjust the dates by which the area must achieve a nine (9) 
percent reduction in ozone precursor emissions to meet the 2002 rate-
of-progress requirement and contingency measure requirement as this 
relates to the 2002 rate-of-progress requirement.

XVIII. Administrative Requirements

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

[[Page 68814]]

also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).
    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be economically significant as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
proposed action is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866.
    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
Federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by state and local governments, or EPA consults with 
state and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
Federalism implications and that preempts state law unless the Agency 
consults with state and local officials early in the process of 
developing the proposed regulation. This determination of nonattainment 
and the resulting reclassification of a nonattainment area by operation 
of law will not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999), because this action does not, in and of itself, impose any 
new requirements on any sectors of the economy, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the CAA. Thus, the requirements of section 6 of the 
Executive Order do not apply to these actions.
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).
    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    Determinations of nonattainment and the resulting reclassification 
of nonattainment areas by operation of law under section 181(b)(2) of 
the CAA do not in and of themselves create any new requirements. 
Instead, this rulemaking only makes a factual determination, and does 
not directly regulate any entities. See 62 FR 60001, 60007-60008, and 
60010 (November 6, 1997) for additional analysis of the RFA 
implications of attainment determinations. Therefore, pursuant to 5 
U.S.C. 605(b), I certify that this proposed action does not have a 
significant impact on a substantial number of small entities within the 
meaning of those terms for RFA purposes.
    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary 
impact statement to accompany any proposed or final rule that includes 
a Federal mandate that may result in estimated annual costs to state, 
local, or tribal governments in the aggregate, or to the private 
sector, of $100 million or more. Under section 205, EPA must select the 
most cost-effective and least burdensome alternative that achieves the 
objectives of the rule and is consistent with statutory requirements. 
Section 203 requires EPA to establish a plan for informing and advising 
any small governments that may be significantly or uniquely impacted by 
the rule.
    EPA believes, as discussed previously in this document, that the 
finding of nonattainment is a factual determination based upon air 
quality considerations and that the resulting reclassification of the 
area must occur by operation of law. Thus, EPA believes that the 
proposed finding does not constitute a Federal mandate, as defined in 
section 101 of the UMRA, because it does not impose an enforceable duty 
on any entity.
    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed action does not involve technical standards. 
Therefore, EPA did not consider the use of any voluntary consensus 
standards.
    This proposed action to reclassify the Washington, DC area as a 
severe ozone nonattainment area and to adjust applicable deadlines does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: November 4, 2002.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 02-28845 Filed 11-12-02; 8:45 am]
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