[Federal Register Volume 68, Number 22 (Monday, February 3, 2003)]
[Proposed Rules]
[Pages 5246-5263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2333]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[DC052-7005, MD143-3096, VA152-5062; FRL-7445-8]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress 
Plans and One-Hour Ozone Attainment Demonstrations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to conditionally approve the 1-hour ozone 
attainment demonstration and the 1996-1999 rate-of-progress (ROP) plans 
for the Metropolitan Washington DC ozone nonattainment area (the 
Washington area) submitted by the District of Columbia's Department of 
Health (DoH), by the Maryland Department of the Environment (MDE) and 
by the Virginia Department of Environmental Quality (VA DEQ), including 
enforceable commitments submitted by the District of Columbia, Virginia 
and Maryland as part of the 1-hour attainment demonstration plan to 
perform a mid-course review and to submit revised motor vehicle 
emissions budgets. We are also proposing to clarify what occurs if we 
issue a final conditional approval of any of these SIPs based on a 
State commitment to revise the SIP's 2005 motor vehicle emissions 
budgets in the future. If this occurs, the 2005 motor vehicle emissions 
budgets in the conditionally approved SIP will apply for transportation 
conformity purposes only until the budgets are revised consistent with 
the commitment and we have found the new budgets adequate. Once we have 
found the revised budgets adequate, then they would apply instead of 
the previous conditionally approved 2005 budgets. In the

[[Page 5247]]

alternative, the EPA is also proposing to disapprove the Washington 
area attainment demonstration with a protective finding for the 2005 
motor vehicle emissions budgets and/or the 1996-1999 ROP plan with a 
protective finding for the 1999 motor vehicle emissions budgets.

DATES: Written comments must be received on or before March 5, 2003.

ADDRESSES: Comments may be mailed to Makeba Morris, 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; 
District of Columbia Department of Public Health, Air Quality Division, 
51 N Street, NE., Washington, DC 20002; Maryland Department of the 
Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 
21230, Baltimore, Maryland 21224; and Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814a-2179, 
or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in 
this document refers to EPA.
    This SUPPLEMENTARY INFORMATION section is organized to address the 
following questions:

I. What Action Is the EPA Proposing Today?
II. Background
    A. What Is the Washington Nonattainment Area?
    B. What Previous Action Has Been Taken on These SIP Revisions?
    C. What Is the Time Frame for Taking Action on These Washington 
Area SIP Revisions?
    D. What Is the Impact of the Reclassification of the Washington 
Area to Severe Ozone Nonattainment?
    E. What Is the Purpose of the Action EPA Is Taking Today?
III. Attainment Demonstrations
    A. What Is the Basis for the Attainment Demonstration SIP?
    B. What Is the Framework for Proposing Action on the Attainment 
Demonstration SIPs?
    C. The EPA's Review and Analysis of the District's, Maryland's 
and Virginia's Submittals Against the EPA's Framework for Proposing 
Action on the Attainment Demonstration SIPs
IV. Rate-of-Progress Plans
    A. What Agencies and Organizations Developed the 1996-1999 ROP 
Plan for the Area?
    B. What Are the Rate-of-progress Requirements Applicable to the 
Washington Area?
    C. How Is the 3 Percent per Year 1996-1999 Reduction Calculated?
    D. Nonattainment Area-Wide Plan--Apportionment of Reduction 
Needs
    E. What Control Strategies Are the District, Maryland and 
Virginia Including in the 1996-1999 ROP Plan?
    F. What Are the Total Reductions in the 1996--1999 ROP plan?
V. Applicability of Revised Motor Vehicle Emissions Budgets
    A. What Is the Background on Transportation Conformity?
    B. What Is the EPA Proposing Today Regarding Clarification of 
the Applicability of Revised Motor Vehicle Emissions Budgets?
    C. How Does the 18-Month Clock Apply With Respect to These 
Budgets Revisions?
    D. What Are the Budgets in the Plans?
    E. What Is the Status of the 1999 Motor Vehicle Emission Budgets 
Contained in the 1996-1999 ROP Plan for the Area?
VI. What Is the Basis for the Proposed Actions?
    A. Conditional Approval
    B. Disapproval in the Alternative
    C. Proposed Protective Findings
VII. Proposed Action
    A. The District of Columbia--Rate-of-Progress Plan
    B. The District of Columbia--Attainment Demonstration
    C. The State of Maryland--Rate-of-Progress Plan
    D. The State of Maryland--Attainment Demonstration
    E. The Commonwealth of Virginia--Rate-of-Progress Plan
    F. The Commonwealth of Virginia--Attainment Demonstration
    G. Applicability of Revised Motor Vehicle Emissions Budgets
VIII. Statutory and Executive Order Reviews

I. What Action Is the EPA Proposing Today?

    The EPA is proposing conditional approval of the 1996-1999 ROP 
plans and the one-hour attainment demonstrations submitted by the DoH, 
MDE and VADEQ for the Washington area. The following tables identify 
submittal dates and amendment dates for the 1996-1999 ROP plans and the 
attainment demonstrations:

                                          Table 1.--1996-1999 ROP Plans
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                                           DC                   MD                           VA
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Initial submittal dates.........  November 10, 1997..  December 24, 1997..  December 19, 1997.
Amendment dates.................  May 25, 1999.......  May 20, 1999.......  May 25, 1999.
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                                       Table 2.--Attainment Demonstrations
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                                           DC                   MD                           VA
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Initial submittal dates.........  April 24, 1998.....  April 29, 1998.....  April 29, 1998.
Amendment dates.................  October 27, 1998...  August 17, 1998....  August 18, 1998.
Supplemental dates..............  February 16, 2000..  February 14, 2000    February 9, 2000.
                                                        (MD SIP No. 00-01).
Supplemental dates..............  March 22, 2000.....  March 31, 2000 (MD   March 31, 2000.
                                                        SIP No. 00-02).
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    Hereafter, the SIP revisions in the preceding Table submitted in 
April 1998 will be called the ``1998 Plans;'' those submitted in 
February 2000 will be called the ``February 2000 plans;'' and those 
submitted in March 2000 will be called the ``March 2000 plans.''
    As noted elsewhere in this document, the EPA is also proposing in 
the alternative to disapprove these SIPs if we do not finalize the 
conditional approval of these SIPs.

[[Page 5248]]

II. Background

A. What Is the Washington Nonattainment Area?

    The Washington area is comprised of the entire District of Columbia 
(the District), a portion of Maryland (namely, Calvert, Charles, 
Frederick, Montgomery, and Prince George's Counties), and a portion of 
Virginia (namely, Alexandria, Arlington County, Fairfax, Fairfax 
County, Falls Church, Manassas, Manassas Park, Prince William County, 
and Stafford County).

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

    On January 3, 2001 (66 FR 586), the EPA approved the 1996-1999 ROP 
plans, an attainment date extension and the attainment demonstrations 
for the Washington, DC area. A petition for review of that final rule 
was filed. On July 2, 2002, the United States Courts of Appeals for the 
District of Columbia Circuit (the Circuit Court) ruled on the petition 
and vacated our January 3, 2001, approval of the attainment 
demonstration, 1996-1999 ROP plan and extension of the attainment date. 
See Sierra Club v. Whitman, 294 F.3d 155, 163 (D.C. Cir. 2002). 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.'' Id. at 161. The Circuit 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. The Circuit Court also found that 
the attainment demonstration and ROP plan were deficient because 
neither SIP revision contained approved contingency measures as 
required by sections 172(c)(9) and 182(c)(9) of the Clean Air Act 
(CAA). Id. at 164. Furthermore, the Circuit Court determined that in 
addition to a nine percent reduction in baseline emissions from 1996 to 
1999, an area with an attainment date in 2005 must submit a ROP plan 
that demonstrates additional ROP to 2005. Id. at 163. The Washington 
area's 1996-1999 ROP plan demonstrated ROP only through 1999. Lastly, 
although the Circuit Court upheld the EPA's definition of RACM 
``[b]ecause the statutory provision is ambiguous and the EPA's 
construction of the term `RACM' is reasonable'', the Court remanded 
this matter to the EPA to determine which measures, if any, are RACM to 
be implemented by the States in this case because the final rule did 
not present any determination on whether certain measures tendered as 
possible RACM in the notice of proposed rulemaking (64 FR 70460) met 
EPA's RACM definition. Id. at 162-63.
    In response to the Circuit Court's ruling, on January 24, 2003 the 
EPA published a final action (68 FR 3410) determining that the 
Washington area failed to attain the serious ozone nonattainment 
deadline of November 15, 1999, and reclassifying the Washington area to 
severe ozone nonattainment.

C. What Is the Time Frame for Taking Action on These Washington Area 
SIP Revisions?

    Under the CAA, the EPA is required to approve or disapprove a 
State's submission no later than 12 months after the submission is 
determined or deemed complete. On November 13, 2002, the Sierra Club 
filed a complaint in the United States District Court for the District 
of Columbia (District Court) against the EPA (Sierra Club v. Whitman, 
No. 1:02CV02235(JR)) claiming, among other things, that the EPA had not 
issued a final action on several SIP revisions (those listed in Tables 
1 and 2 of this document) submitted by the District, Maryland and 
Virginia for the Washington area. On December 18, 2002, the District 
Court issued an order directing the EPA to publish, by February 3, 
2003, a notice of proposed rulemaking on these SIP revisions and to 
publish by April 17, 2003, a final rule on these SIP revisions. This 
notice of proposed rulemaking complies with the Court's Order to 
publish a proposed notice by February 3, 2003.

D. What Is the Impact of the Reclassification of the Washington Area to 
Severe Ozone Nonattainment?

    The reclassification to severe nonattainment imposes additional 
requirements on the Washington area including, among other things, CAA-
mandated control measures, a fee program for major sources and ROP 
plans (an additional 9 percent reduction in base line emissions between 
1999 and 2005). These new requirements, as well as all of the 
requirements for a severe ozone nonattainment SIP, must be submitted to 
the EPA by the date established in the reclassification final rule. (68 
FR 3410).
    Section 172(c)(9) of the CAA requires that specific measures must 
be undertaken if an area fails to make reasonable further progress, or 
to attain the NAAQS by the attainment date. Furthermore, such measures 
must be included in the SIP as contingency measures to take effect 
without further action by the State or the Administrator. As noted 
previously, the Circuit Court ruled that sections 172(c)(9) and 
182(c)(9) of the CAA require that contingency measures must be included 
as an integral element in the attainment demonstration and ROP SIPs for 
the Washington area. The Court further determined that EPA lacked the 
authority to approve attainment demonstration and ROP SIPs without 
contingency measures. Therefore, the jurisdictions in the Washington 
area have committed to submit to the EPA those measures that qualify as 
contingency measures due to the failure of the Washington area to 
attain the ozone standard for serious areas by November 15, 1999. They 
have also committed to submit contingency measures for failure to meet 
the 1999 ROP milestone if we find that the area has not achieved the 
required reductions. The contingency measures for the 1999 ROP 
milestone and the contingency measures for failure to attain by 1999 
could be the same measures. These measures need to provide for at least 
a 3 percent reduction in base line emissions and be fully adopted rules 
or measures that can be implemented without further action by the 
States or EPA after November 15, 1999. Such contingency measures must 
also meet all of the EPA's guidance and policy relating to contingency 
measures.

E. What Is the Purpose of the Action EPA Is Taking Today?

    This proposed conditional approval is directed at issuing a final 
action on the previously submitted attainment demonstration and 1996-
1999 ROP plan SIPs and associated RACM and contingency measures that 
now apply to the Washington area as elements required by classification 
as a severe ozone nonattainment area. In this case, the EPA could not 
approve a SIP that is not consistent with the principle in the CAA that 
attainment must be achieved as expeditiously as practicable but no 
later than November 15, 2005, the new attainment date provided under 
the statute. Furthermore, the EPA cannot fully approve the previously 
submitted serious area attainment demonstration because it lacks 
contingency measures, RACM and motor vehicle emission budgets that are 
consistent with a severe attainment deadline. Similarly, the EPA cannot 
fully approve the previously submitted 1996-1999 ROP plan because it 
lacks contingency measures.
    Under section 110(k)(4) of the CAA, the EPA ``may approve a plan 
revision based on a commitment of the State to adopt specific 
enforceable measures by a date certain, but not later than 1 year after 
the date of approval of the plan revision. Any such conditional 
approval

[[Page 5249]]

shall be treated as a disapproval if the State fails to comply with 
such commitment.'' The EPA is proposing to conditionally approve these 
SIP submissions as a severe area attainment demonstration and the 1996-
99 portion of the Washington area's ROP obligation on the basis of the 
commitments from the affected jurisdictions. EPA believes that this 
action is appropriate because the attainment date for the Washington 
area, which will be reclassified as severe effective March 25, 2003 (68 
FR 3410), will be November 15, 2005, and because the States have 
committed in accordance with section 110(k)(4) to submit revisions to 
remedy the inadequacies with the RACM and contingency measure aspects 
of the attainment demonstration and the 1996-99 ROP plans. Since the 
Court viewed the contingency measures as an element of an attainment 
demonstration and ROP plan, and rejected EPA's argument that 
contingency measures were a separate SIP submission, EPA believes it is 
appropriate to proceed on the basis of a commitment to deal with that 
aspect of the attainment plan and ROP plan. Similarly, the RACM 
demonstration is merely another element of the attainment demonstration 
and EPA believes that it is appropriate to proceed with a conditional 
approval on the basis of a commitment regarding the RACM demonstration. 
As a consequence of the reclassification to severe, the Washington area 
will need to submit additional SIP revisions concerning other matters, 
such as the 1999-2005 ROP obligation and new NSR requirements, but EPA 
believes that it can proceed on the SIPs before it as a severe area 
attainment demonstration plan and a 1996-1999 ROP plan without those 
additional SIP submissions.

III. Attainment Demonstrations

A. What Is the Basis for the Attainment Demonstration SIP?

1. CAA Requirements
    The Clean Air Act (CAA) requires the EPA to establish national 
ambient air quality standards (NAAQS or standards) for certain 
widespread pollutants that cause or contribute to air pollution that is 
reasonably anticipated to endanger public health or welfare. See 
sections 108 and 109 of the CAA. In 1979, the EPA promulgated the 1-
hour 0.12 parts per million (ppm) ground-level ozone standard. 44 FR 
8202 (February 8, 1979). Ground-level ozone is not emitted directly by 
sources. Rather, emissions of nitrogen oxides (NOX) and 
volatile organic compounds (VOCs) react in the presence of sunlight to 
form ground-level ozone. Emissions of NOX and VOC are 
referred to as precursors of ozone.
    An area exceeds the 1-hour ozone standard each time an ambient air 
quality monitor records a 1-hour average ozone concentration above 
0.124 ppm. An area is violating the standard if, over a consecutive 
three-year period, more than three exceedances are expected to occur at 
any one monitor. The CAA, as amended in 1990, required the EPA to 
designate as nonattainment any area that was violating the 1-hour ozone 
standard, generally based on air quality monitoring data from the 
three-year period from 1987-1989. CAA section 107(d)(4); 56 FR 56694 
(Nov. 6, 1991). The CAA further classified these areas, based on the 
area's design value, as marginal, moderate, serious, severe or extreme. 
CAA section181(a). Marginal areas were suffering the least significant 
air pollution problems while the areas classified as severe and extreme 
had the most significant air pollution problems. The control 
requirements and dates by which attainment needs to be achieved vary 
with the area's classification. Marginal areas are subject to the 
fewest mandated control requirements and have the earliest attainment 
date. Severe and extreme areas are subject to more stringent planning 
requirements but are provided more time to attain the standard. Serious 
areas are required to attain the 1-hour standard by November 15, 1999, 
and severe areas are required to attain by November 15, 2005, or 
November 15, 2007. The Washington area was classified as a serious 
nonattainment area with an attainment date of November 15, 1999. On 
January 24, 2003, the EPA published a final rule (68 FR 3410) 
reclassifying the area to severe ozone nonattainment, with an 
attainment date of November 15, 2005.
    Under section 182(c)(2) and (d) of the CAA, serious and severe 
areas were required to submit by November 15, 1994, demonstrations of 
how they would attain the 1-hour standard and how they would achieve 
reductions in VOC emissions of 9 percent for each three-year period 
until the attainment year (rate-of-progress or ROP). (In some cases, 
NOX emission reductions can be substituted for the required 
VOC emission reductions.) Today, in this proposed rule, the EPA is 
proposing action on the attainment demonstration SIP submitted by DoH, 
the MDE and the VADEQ for the Washington area.
    In general, an attainment demonstration SIP includes a modeling 
analysis component showing how the area will achieve the standard by 
its attainment date and the control measures necessary to achieve those 
reductions. Another component of the attainment demonstration SIP is 
motor vehicle emissions budgets for transportation conformity purposes. 
Transportation conformity is a process for ensuring that States 
consider the effects of emissions associated with new or improved 
federally-funded roadways on attainment of the standard. As described 
in section 176(c)(2)(A) of the CAA, attainment demonstrations must 
include the estimates of motor vehicle emissions that are consistent 
with attainment, which then act as budgets for the purposes of 
determining whether transportation plans and projects conform to the 
attainment SIP.\1\
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    \1\ Under the CAA, the District of Columbia has the same 
attainment planning authorities and responsibilities as any of the 
50 States.
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2. What Are the Components of a Modeled Attainment Demonstration?
    The EPA allows that States may rely upon a modeled attainment 
demonstration supplemented with additional evidence to demonstrate 
attainment.\2\ In order to have a complete modeling demonstration 
submission, States should have submitted the required modeling analysis 
and identified any additional evidence that the EPA should consider in 
evaluating whether the area will attain the standard.
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    \2\ EPA issued guidance on the air quality modeling that is used 
to demonstrate attainment with the 1-hour ozone NAAQS. See U.S. EPA, 
(1991), Guideline for Regulatory Application of the Urban Airshed 
Model, EPA-450/4-91-013, (July 1991). (A copy may be found on EPA's 
web site at http://www.epa.gov/ttn/scram/ (file name: 
``UAMIVGUIDE'')). See also U.S. EPA, (1996), Guidance on Use of 
Modeled Results to Demonstrate Attainment of the Ozone NAAQS, EPA-
454/B-95-007, (June 1996). A copy may be found on EPA's web site at 
http://www.epa.gov/ttn/scram/ (file name: ``O3TEST'').
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    The EPA addressed the sufficiency of the modeling demonstration to 
attain by November 15, 2005, in its previous notices regarding the 
Washington area attainment demonstration. See 64 FR 70460, December 16, 
1999, and 66 FR 586, January 3, 2001. Since the Circuit Court did not 
address issues regarding the adequacy of the modeling demonstration, 
EPA believes that it may approve that modeling demonstration at this 
time. EPA incorporates by reference herein its prior proposal, the 
comments submitted thereon, and its response to those comments. EPA is 
not reprinting that discussion here but will address any further 
comments submitted in response to this re-proposal of its approval of 
the modeling demonstration showing attainment of the Washington area by 
November 2005.

[[Page 5250]]

B. What Is the Framework for Proposing Action on the Attainment 
Demonstration SIPs?

    In addition to the modeling analysis, the EPA has identified the 
following key elements which must be present in order for the EPA to 
approve or conditionally approve the 1-hour attainment demonstration 
SIPs. These elements are first listed in this section and then 
described in detail.
    CAA Measures and Measures Relied on in the Modeled Attainment 
Demonstration--This includes adopted and submitted rules for all 
previously required CAA mandated measures for the specific area 
classification, including contingency measures should the are fail to 
attain by the required date, and RACM. This also includes measures that 
may not be required for the area classification but that the State 
relied on in the SIP submission for attainment and ROP plans on which 
the EPA is proposing to take action on today.
    NOX reductions consistent with the modeling 
demonstration: Motor vehicle emissions budgets--Motor vehicle emissions 
budgets that EPA can determine to be consistent with the underlying 
purpose of the applicable CAA requirements.
    Tier 2/Sulfur program benefits where needed to demonstrate 
attainment--Inclusion of reductions expected from the EPA's Tier 2 
tailpipe and low sulfur-in-fuel standards in the attainment 
demonstration and the motor vehicle emissions budgets.
    Mid-course review--An enforceable commitment to conduct a mid-
course review and evaluation based on air quality and emission trends. 
The mid-course review would show whether the adopted control measures 
are sufficient to reach attainment by the area's attainment date, or 
that additional control measures are necessary.
1. CAA Measures and Measures Relied on in the Modeled Attainment 
Demonstration
    The Washington area needs to achieve substantial reductions from 
its 1990 emissions levels in order to attain. The EPA believes the 
Washington area needs all of the measures required under the CAA for 
its former serious nonattainment classification to attain the 1-hour 
ozone NAAQS. The District, Maryland and Virginia have adopted the 
control measures required under the CAA for the former serious area 
classification as well as additional control measures within the local 
modeling domain that were relied on for purposes of the modeled 
attainment demonstration.
    The Washington area attainment demonstration does not contain a 
RACM analysis which the Circuit Court held was required under section 
172(c)(1) of the CAA. In its January 3, 2001, approval of the 
Washington area nonattainment demonstration and 1996-1999 ROP plan (66 
FR 607), the EPA posited that a state must ``consider all potentially 
available measures to determine whether they were reasonably available 
for implementation in the area, and whether they would advance the 
attainment date''. Furthermore, the EPA determined that states may 
``reject measures as not being RACM because they would not advance the 
attainment date, would cause substantial widespread and long-term 
adverse impacts, or would be economically or technologically 
infeasible.'' Although the Circuit Court vacated the EPA's January 3, 
2001, approval of the Washington area's attainment demonstration and 
1996-1999 ROP plan, the Circuit Court upheld the EPA's definition of 
RACM. See Sierra Club v. Whitman, 294 F.3d at 162-63. However, the 
Circuit Court found that the EPA had not determined whether any 
measures for the Washington area fell within the EPA's definition and 
remanded the matter to the EPA to determine which measures, if any, are 
to be implemented as RACM. Id. at 163.
    With respect to contingency measures, the Washington area 
attainment demonstration does not contain a contingency plan that 
identifies those measures that will be implemented should the area not 
attain the standard by November 15, 2005. Section 172(c)(9) of the CAA 
requires that specific measures must be undertaken if an area fails to 
make reasonable further progress, or to attain the NAAQS by the 
attainment date. Furthermore, such measures must be included in the SIP 
as contingency measures to take effect without further action by the 
State or the Administrator. As noted previously, the Circuit Court 
ruled that sections 172(c)(9) and 182(c)(9) of the CAA require that 
contingency measures must be included as an integral element in the 
attainment demonstration and ROP SIPs for the Washington area. The 
Circuit Court further determined that EPA lacked the authority to 
approve the Washington area attainment demonstration and ROP SIPs 
without contingency measures. Therefore, the jurisdictions in the 
Washington area have committed to submit to the EPA adopted contingency 
measures to be implemented if the Washington area does not attain the 
1-hour ozone standard by November 15, 2005. These measures need to 
provide for at least a 3 percent reduction in base line emissions and 
be fully adopted rules or measures that can be implemented without 
further action by the States or EPA after November 15, 2005. The 
contingency measures must also meet all of the EPA's guidance and 
policy relating to contingency measures.
2. NOX Reductions Consistent With the Modeling Demonstration
    The EPA completed final rulemaking on the NOX SIP Call 
on October 27, 1998, which required States to address transport of 
NOX and ozone to other States. To address transport, the 
NOX SIP Call established NOX emissions budgets 
for 23 jurisdictions that are intended to reduce emissions in upwind 
States that significantly contribute to nonattainment problems. 
Emission reductions that will be achieved through the EPA's 
NOX SIP Call will reduce the levels of ozone and ozone 
precursors entering nonattainment areas at their boundaries. For 
purposes of developing attainment demonstrations, States define local 
modeling domains that include both the nonattainment area and nearby 
surrounding areas. The ozone levels at the boundary of the local 
modeling domain are reflected in modeled attainment demonstrations and 
are referred to as boundary conditions. The 1-hour attainment 
demonstration for the Washington area relies, in part, on the 
NOX SIP Call reductions for purposes of determining the 
boundary conditions of the modeling domain. Emission reductions assumed 
in the attainment demonstrations are modeled to occur both within the 
State and in upwind States; thus, intrastate reductions as well as 
reductions in other States impact the boundary conditions. If States 
assume control levels and emission reductions other than those of the 
NOX SIP Call within their State but outside of the modeling 
domain, States must also adopt control measures to achieve those 
reductions in order to have an approvable plan.
    Accordingly, States in which the nonattainment areas are located 
will not be required to adopt measures outside the modeling domain to 
achieve the NOX SIP Call budgets prior to the time that all 
States are required to comply with the NOX SIP Call. If the 
reductions from the NOX SIP Call do not occur as planned, 
States will need to revise their SIPs to add additional local measures 
or obtain interstate reductions, or both, in order to provide 
sufficient reductions needed for attainment.

[[Page 5251]]

3. Motor Vehicle Emissions Budgets
    The EPA believes that attainment demonstration SIPs must 
necessarily estimate the motor vehicle emissions that will be produced 
in the attainment year and demonstrate that this emissions level, when 
considered with emissions from all other sources, is consistent with 
attainment. This estimate of motor vehicle emissions is used to 
determine the conformity of transportation plans and programs to the 
SIP, as described by CAA section 176(c)(2)(A). For transportation 
conformity purposes, these estimates of motor vehicle emissions are 
known as the motor vehicle emissions budgets. The EPA believes that 
appropriately identified motor vehicle emissions budgets are a 
necessary part of an attainment demonstration SIP. A SIP cannot 
effectively demonstrate attainment unless it identifies the level of 
motor vehicle emissions that can be allowed while still demonstrating 
attainment.
4. Tier 2/Sulfur Program Benefits
    On February 10, 2000 (65 FR 6698), the EPA published a final rule 
promulgating a major, comprehensive program designed to significantly 
reduce emissions from passenger cars and light trucks (including sport-
utility vehicles, minivans, and pickup trucks) and to reduce sulfur in 
gasoline. Under this program, automakers would produce vehicles 
designed to have very low emissions when operated on low-sulfur 
gasoline, and oil refiners would provide that cleaner gasoline 
nationwide.
    The final rule was supported by 1-hour ozone modeling and 
monitoring information that support the EPA's conclusion that the Tier 
2/Sulfur program is necessary to help areas attain the 1-hour NAAQS. 
See 64 FR 35112, June 30, 1999, and 64 FR 57827, October 27, 1999. 
Under the final rule, NOX and VOC emission reductions (as 
well as other reductions not directly relevant for attainment of the 1-
hour ozone standard) would occur beginning in the 2004 ozone season. 
Nationwide, the Tier 2/Sulfur program is projected to result in 
emissions reductions of NOX per year of approximately 
856,000 tons per year by 2007 and 1,236,000 tons by 2010 tons (65 FR at 
6698).
    In the October 27, 1999, supplemental notice (64 FR at 57830), the 
EPA reported that the EPA's regional ozone modeling indicated that 17 
metropolitan areas for which the 1-hour standard applies need the Tier 
2/Sulfur program reductions to help attain the 1-hour ozone standard. 
The Washington area whose attainment demonstration the EPA is proposing 
to conditionally approve today is included on that list.
    The EPA issued a memorandum that provides estimates of the 
emissions reductions associated with the Tier 2/Sulfur program 
proposal.\3\ The memorandum provides the tonnage benefits for the Tier 
2/Sulfur program in 2007 on a county-by-county basis for all counties 
within many serious and severe nonattainment areas and the 2005 tonnage 
benefits for the Tier 2/Sulfur program for each county for three areas.
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    \3\ Memorandum, ``1-Hour Ozone Attainment Demonstrations and 
Tier 2/Sulfur Rulemaking'' from Lydia Wegman, Office of Air Quality 
Planning and Standards and Merrylin Zaw-Mon, Office of Mobile 
Sources to the Air Division Directors, Regions I-IV, issued November 
8, 1999. A copy of this memorandum may be found on the EPA's web 
site at http://www.epa.gov/oms/transp/traqconf.htm.
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    The EPA also issued a memorandum which explains the connection 
between the Tier 2/Sulfur program, motor vehicle emissions budgets for 
conformity determinations, and timing for SIP revisions to account for 
the Tier 2/Sulfur program benefit.\4\ This memorandum explains that 
conformity analyses in serious and severe ozone nonattainment areas can 
begin including Tier 2/Sulfur program benefits once the EPA's Tier 2 
rule is promulgated, provided that the attainment demonstration SIPs 
and associated motor vehicle emissions budgets include the Tier 2 
benefits. The motor vehicle emissions budgets in the February 2000 
plans include Tier 2 benefits.
---------------------------------------------------------------------------

    \4\ Memorandum, ``Guidance on Motor Vehicle Emissions Budgets in 
One-Hour Ozone Attainment Demonstrations'', from Merrylin Zaw-Mon, 
Office of Mobile Sources, to Air Division Directors, Regions I-VI, 
issued November 3, 1999. A copy of this memorandum may be found on 
the EPA's web site at http://www.epa.gov/oms/transp/traqconf.htm.
---------------------------------------------------------------------------

    The District, Maryland and Virginia need to revise their motor 
vehicle emissions budgets in their attainment demonstration SIPs using 
the MOBILE6 model because the motor vehicle emissions budgets in the 
February 2000 plans to include the effects of the Tier 2/Sulfur 
program, which can not be accurately reflected with the MOBILE5 model. 
In addition, the budgets need to be revised using MOBILE6 even in an 
area that does not need the Tier 2/Sulfur program for attainment but 
decide to include its benefits in the motor vehicle emissions budgets 
anyway.
    When we first proposed action on the attainment demonstration for 
the Washington area (64 FR 70460, December 16, 1999), the District, 
Maryland and Virginia needed to submit an enforceable commitment in the 
near term to revise their motor vehicle emissions budgets if the 
budgets include the effects of the Tier 2/Sulfur program within one 
year after the EPA's release of MOBILE6. When we released the Tier 2 
guidance and policy in November 1999, we could not forecast the MOBILE6 
release date in relation to final action on the attainment 
demonstration SIP revisions. Such release date could have been over 
one-year past the time we approved the attainment demonstration for an 
area, and therefore, a conditional approval would not have been a 
suitable approval option. Therefore, at that time, approval of an 
enforceable commitment would ensure the requirement to revise the motor 
vehicle emissions budgets could be enforced in court by the EPA or 
citizens. The enforceable commitment was to be submitted to the EPA 
along with the other commitments discussed elsewhere in this document, 
or alternatively, as part of the SIP revision that modified the motor 
vehicle emission inventories and budgets to include the Tier 2/Sulfur 
program benefits needed in order for the EPA to approve the SIP 
submittal. The MOBILE6 model was released on January 29, 2002 (67 FR 
4254). Now that MOBILE6 has been released, the EPA may issue a 
conditional approval based on a State's commitment to expeditiously 
revise and submit not later than one-year after the EPA issues a 
conditional approval to the EPA an updated attainment demonstration SIP 
that reflects revised MOBILE6-based motor vehicle emissions budgets.
5. Mid-Course Review
    A mid-course review (MCR) is a reassessment of modeling analyses 
and more recent monitored data to determine if a prescribed control 
strategy is resulting in emission reductions and air quality 
improvements needed to attain the ambient air quality standard for 
ozone as expeditiously as practicable but by no later than the 
statutory dates. The EPA believes that an enforceable commitment to 
perform a MCR is a critical element of the WOE analysis for the 
attainment demonstration on which the EPA is proposing to take action 
today. The State of Maryland, the Commonwealth of Virginia and the 
District submitted an enforceable commitment to perform a MCR as 
described here. However, an enforceable commitment to perform and 
submit a MCR is meaningless outside of the context of an approved 
attainment demonstration. For this reason, our conditional approval of 
the attainment

[[Page 5252]]

demonstration includes the enforceable commitment to perform a mid-
course review.

C. The EPA's Review and Analysis of the District's, Maryland's and 
Virginia's Submittals Against the EPA's Framework for Proposing Action 
on Attainment Demonstration SIPs

    This section provides a review of Maryland's, Virginia's and the 
District's submittals and an analysis of how these submittals satisfy 
the frame work previously discussed.
    As noted previously, the EPA addressed the sufficiency of the 
modeling demonstration of attainment in its previous notices regarding 
the Washington area attainment demonstration and incorporated by 
reference its prior proposal, the comments submitted thereon, and its 
response to those comments. See 64 FR 70460, December 16, 1999, and 66 
FR 586, January 3, 2001. EPA is not reprinting that discussion here but 
will address any further comments submitted in response to this re-
proposal of its approval of the modeling demonstration showing 
attainment of the Washington area by November 2005.
1. CAA Measures and Measures Relied on in the Current SIP Submission
    Table 3 contains a summary of the CAA required ozone SIP elements 
for serious areas and any additional measures included in the 
attainment demonstration.

   Table 3.--Control Measures in the 1-Hour Ozone 1996-1999 ROP Plan and Attainment Plans for the Metropolitan
                                          Washington Nonattainment Area
----------------------------------------------------------------------------------------------------------------
                                                                Credited in 1996--1999   Credited in attainment
           Control measure                Type of measure              ROP plan                   plan
----------------------------------------------------------------------------------------------------------------
Enhanced Inspection & Maintenance...  Approved SIP...........  Yes....................  Yes.
Federal Motor Vehicle Control         Federal................  Tier 1.................  Tier 1 and 2.
 program.
NLEV................................  Approved SIP opt-in....  Yes....................  Yes \1\.
Reformulated Gasoline (Phase 1 & 2).  State opt-in...........  Phase 1................  Phase 2.
Transportation Control Measures       Approved SIP...........  Yes....................  Yes.
 (TCM).
Federal Non-road Gasoline Engine      Federal................  Yes....................  Yes.
 standards.
Federal Non-road Heavy Duty diesel    Federal................  Yes....................  Yes.
 engine standards.
Rail Road Locomotive Controls.......  Federal................  No.....................  Yes.
NOX RACT............................  Approved SIP...........  Yes....................  Yes.
Non-CTG RACT to 50 tpy..............  Approved SIP...........  Yes....................  Yes.
VOC Point Source Regulations to 25    Approved SIP...........  Yes....................  Yes.
 tons/year \2\.
Stage II Vapor Recovery \3\ &.......  Approved SIP...........  Yes....................  Yes.
    On-board Refueling Vapor          Federal
     Recovery (ORVR).
AIM Surface Coatings................  Federal................  Yes....................  Yes.
Consumer & commercial products......  Federal................  Yes....................  Yes.
Autobody refinishing................  Federal/State..........  Yes....................  Yes.
Surface Cleaning/Degreasing.........  Approved SIP...........  Yes....................  Yes.
Open Burning Ban \2\................  Approved SIP...........  Yes....................  Yes.
Stage I Vapor Recovery \4\..........  Approved SIP...........  Yes....................  Yes.
Graphic Arts........................  Approved SIP...........  Yes....................  Yes.
Heavy Duty Diesel Engines (On-road).  Federal................  No.....................  Yes.
Beyond RACT NOX Requirements on       Approved SIP...........  No.....................  Yes.
 Utilities.
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ To the extent NLEV not superceded by Tier 2.
\2\ Maryland and Virginia only.
\3\ Reduction credits calculated for Maryland and Virginia only. The District required implementation of Stage
  II in 1985 for most sources, and has claimed no reductions since 1990. (The District's Stage II regulation was
  amended after 1990 to comply with the requirements for Stage II controls set forth in the 1990 amendments to
  the Clean Air Act. The EPA has approved the District's rule into the SIP.
\4\ Reductions in only in those additional areas in Maryland and Virginia that were added to the Metropolitan
  Washington DC area after 1990.

    The MDE, VADEQ and DoH have submitted all measures relied on in the 
attainment demonstration and all required measures except RACM and 
specific contingency measures. All submitted measures have been 
approved to date with the exception of Transportation Control Measures 
(TCMs), which are as part of the Washington area attainment 
demonstration and 1996-1999 ROP plan that the EPA is proposing to 
conditionally approve in this document. TCMs are strategies to both 
reduce vehicle miles traveled (VMT) and decrease the amount of 
emissions per VMT. The CAA classifies TCMs as programs for improved 
transit, traffic flow, fringe parking facilities for multiple occupancy 
transit programs, high occupancy or share-ride programs, and support 
for bicycle and other non-automobile transit. The TCMs for Virginia and 
Maryland included projects programmed between fiscal years 1994-1999 in 
the transportation improvement plan (TIP) under the Congestion 
Mitigation and Air Quality (CMAQ) Improvement Program and funded for 
implementation in the Washington area. The specific projects that 
Virginia and Maryland are claiming credit for and the estimated 
benefits are listed in Appendix H of the 1996-1999 ROP plan and 
Appendix J of the February 2000 plans. TCMs are considered acceptable 
measures for states to use to achieve reductions and EPA has determined 
that the VOC and NOX reductions attributable to these 
measures are creditable for the 1996-1999 ROP plan and attainment 
demonstration.
    The EPA is also proposing to conditionally approve the attainment 
demonstration based on the District, Maryland and Virginia having 
committed to submit contingency measures that will be implemented if 
the area fails to attain the ozone standard by November 15, 2005. In 
addition, the District, Maryland and Virginia have committed to 
submitting to the EPA an appropriate RACM analysis and any revisions to 
the attainment demonstration necessitated by such an analysis, 
including revised emissions budgets as applicable.

[[Page 5253]]

2. NOX Reductions Consistent With the Modeling Demonstration
    Inside the Baltimore-Washington modeling domain, the District, 
Maryland and Virginia modeled only the measures indicated in Table 3. 
The only NOX control measure beyond CAA requirements was an 
additional level of control beyond RACT at large stationary sources of 
NOX in the District's and Maryland's portion of the 
Washington area. The status of all measures was discussed in the 
preceding section of this document.
3. Motor Vehicle Emissions Budgets
    As discussed in section III.B.3 of this document, the motor vehicle 
emissions budgets are the estimate of motor vehicle emissions in the 
attainment year that when considered with emissions from all other 
sources is consistent with attainment. The attainment demonstrations 
for the Washington area contain levels of modeled emissions that the 
EPA concludes demonstrate attainment once transport from upwind areas 
is addressed. The basis for this conclusion will not be altered if the 
Washington area can demonstrate that the level of nonattainment area 
emissions in 2005 is equal to or less than the 1999 control strategy 
levels contained in the attainment demonstrations considering growth. 
Thus, Maryland, Virginia and the District have demonstrated that 
revised motor vehicle emissions budgets for 2005 in the attainment 
demonstrations for the Washington area are adequate by showing that 
overall emissions including the revised motor vehicle emissions budgets 
when considered with emissions from all other sources are less than the 
1999 control strategy levels. In the February 2000 plans, the States 
submitted such a demonstration. The EPA has reviewed these submittals 
and found that all measures upon which the States relied are now in the 
approved SIP.
    The EPA has interpreted the general adequacy criteria with respect 
to the 1-hour ozone attainment demonstrations to require the motor 
vehicle emissions budgets to include the effects of all motor vehicle 
controls, including Federal measures and the mobile source control 
measures assumed in the NOX SIP Call, that will be in place 
in the attainment year. Therefore, the revised motor vehicle emissions 
budgets presumptively must include all currently promulgated Federal 
measures and State SIP measures and opt-ins shown in Table 4.

  Table 4.--On-Road Mobile Source Control Measures Contributing to Attainment of the 1-Hour Ozone NAAQS in the
                                      Washington Nonattainment Area in 2005
----------------------------------------------------------------------------------------------------------------
                                                                                          In the 2005  motor
            Control measure               Implementation   Assumed in local modeling      vehicle  emissions
                                               year              demonstration?                 budget?
----------------------------------------------------------------------------------------------------------------
Federal Motor Vehicle Control Program
 (FMVCP):
    Tier 1.............................              1994  Tier 1 FMVCP only........  Yes.
    Tier 2.............................              2004  .........................  Yes.
High enhanced I/M (CAA Mandate)........              1997  Yes......................  Yes.
Reformulated Gasoline (State Opt-in):
    Phase I............................              1995  Yes......................  Yes.
    Phase II...........................              2000  No.......................  Yes.
Clean Fuel Fleets/National Low                       1999  No.......................  Yes.
 Emissions Vehicles (NLEV).
Federal Heavy-duty Diesel Vehicle (HDV)              2004  No.......................  Yes.
 2 gm std.
----------------------------------------------------------------------------------------------------------------

4. Tier 2/Sulfur Program Benefits
    The EPA concludes that based on the modeling and WOE that the 
Washington area would not need any additional emission reductions 
beyond those contained in the area attainment demonstration to ensure 
attainment of the ozone NAAQS by 2005. Like other areas that rely, in 
part or in full, on Tier 2 reductions in order to demonstrate 
attainment, the Washington area attainment demonstration was revised in 
the February 2000 plans to estimate the effects of Tier 2 according to 
our policy. However, as noted, this was done with the MOBILE5 model 
which is inaccurate and must be redone with the MOBILE6 model.
    The EPA is proposing to conditionally approve the attainment 
demonstration SIP revisions which include the commitment found in 
section 9.1.1.2 of the March 2000 plans for the Washington area because 
the State of Maryland, Commonwealth of Virginia and the District of 
Columbia have committed to revise and submit to the EPA by April 17, 
2004, an updated attainment demonstration SIP that reflects revised 
MOBILE6-based motor vehicle emissions budgets, including revisions to 
the attainment modeling and/or weight of evidence demonstration, as 
necessary, to demonstrate that the SIP continues to demonstrate 
attainment by November 15, 2005.
5. Mid-Course Review (MCR)
    In accordance with the provisions of section III.B.5. of this 
document, the EPA must receive an enforceable commitment to include a 
MCR from each of the three Washington area States before their 
attainment demonstrations can be approved. Virginia, Maryland and the 
District submitted these commitments on February 9, 14 and 22, 2000, 
respectively. The EPA has concluded that the enforceable commitments 
found in February 2000 plans are acceptable. However, an enforceable 
commitment to perform a mid-course review is meaningless outside of the 
context of an approved attainment demonstration. For this reason, our 
proposal to conditionally approve the attainment demonstration includes 
the enforceable commitment to perform and submit the MCR contained 
within the February 2000 plans.

IV. Rate-of-Progress Plans

A. What Agencies and Organizations Developed the 1996-1999 ROP Plan for 
the Washington Area?

    The District of Columbia, Virginia and Maryland must demonstrate 
reasonable further progress (RFP) for the Washington area. These 
jurisdictions, under the auspices of the Metropolitan Washington Air 
Quality Committee (MWAQC) (with the assistance of the Metropolitan 
Washington Council of Governments) collaborated on a coordinated 1996-
1999 ROP plan for the Washington area. The MWAQC includes state and 
local elected officials and representatives of the DC

[[Page 5254]]

Department of Health, the Maryland Department of the Environment, the 
Virginia Department of Environmental Quality and the National Capital 
Region Transportation Planning Board (TPB). The Act provides for 
interstate coordination for multi-state nonattainment areas. Because 
ROP requirements such as the 1996-1999 ROP plan establish emission 
budgets for transportation improvement plans, municipal planning 
organizations have historically been involved in air quality planning 
in the Washington area. The MWAQC ensures consultation with the TPB 
during the development of the 1996-1999 ROP plan and emission budgets. 
As explained below, the regional 1996-1999 ROP plan determined the 
regional target level, regional projections of growth and finally the 
total amount of creditable reductions required under the 9 percent 
requirement in the Washington area. The District of Columbia, Maryland 
and Virginia agreed to apportion this total amount of required 
creditable reductions among themselves. Although the plan was developed 
by a regional approach, each jurisdiction is required to submit its 
portion of the 1996-1999 ROP plan to the EPA as a revision to its SIP.

B. What Are the Rate-of-Progress Requirements Applicable to the 
Washington Area?

    The CAA requires that serious and above ozone nonattainment areas 
develop plans to reduce area-wide VOC emissions after 1996 by 3 percent 
per year until the year of the attainment date required for that 
classification of nonattainment area. In addition, section 172(c)(9) of 
the CAA requires the SIP to provide for specific measures to be 
undertaken if an area fails to make reasonable further progress. The 
Washington area is classified as a serious ozone nonattainment area 
with an attainment date of November 15, 1999. However, the EPA 
published its final rule reclassifying the Washington area to severe 
ozone nonattainment effective March 25, 2003. The statutory attainment 
date for severe areas is November 15, 2005. As a serious area, the 3 
percent per year requirement is expressed as an average over 
consecutive 3-year periods; thus, the requirement is a 9 percent 
reduction by 1999. However, the Circuit Court ruling on the EPA's 
approval of the Washington area attainment demonstration and 1996-1999 
ROP plan indicated that in addition to a nine percent reduction in 
baseline emissions from 1996 to 1999, an area with an attainment date 
in 2005 must submit a ROP plan for the Washington area that 
demonstrates additional ROP to 2005. 294 F. 3d at 163. The Federal 
Register notice reclassifying the Washington area to severe ozone 
nonattainment imposes additional requirements on the Washington area 
including, among other things, ROP plans that achieve an additional 18 
percent reduction in base line emissions between 1999 and 2005. These 
new requirements, as well as all of the requirements for a severe ozone 
nonattainment SIP, must be submitted to the EPA by the date established 
in the reclassification final rule. This proposed action is confined to 
the 1996-1999 ROP requirements for a severe ozone nonattainment area 
that are currently pending before the Agency.
    The ROP plans were to be submitted by November 15, 1994, and the 
first 9 percent reductions were required to be achieved within 9 years 
after enactment, that is, by November 15, 1999. This 9 percent 
reduction requirement is a continuation of the requirement for a 15 
percent reduction in VOC by 1996. For the 1996-1999 ROP plan, the Act 
allows the substitution of NOX emissions reductions for VOC 
emission reductions where equivalent air quality benefits are achieved 
as determined using the applicable EPA guidance. The 9 percent VOC/
NOX reduction required by November 15, 1999, is a 
demonstration of reasonable further progress in the Washington area. 
Our assessment of the 1996-1999 ROP plan is limited to whether or not 
the 9 percent reduction requirement is met.

C. How Is the 3 Percent per Year 1996-1999 Reduction Calculated?

    A 1996-1999 ROP plan consists of a plan to achieve a target level 
of emissions. There are several important emission inventories and 
calculations associated with the plan. These include: The base year 
emission inventory, future year projection inventories, and target 
level calculations.
    The EPA addressed the sufficiency of the 1996-1999 ROP plan base 
year emission inventory, future year projection inventories, and target 
level calculations in its previous notices regarding the Washington 
area attainment demonstration. See 65 FR 58243, September 28, 2000, and 
65 FR 62658, October 19, 2000. Since the Circuit Court did not address 
issues regarding the adequacy of the base year emission inventory, 
future year projection inventories, and target level calculations, the 
EPA believes that it may approve these calculations at this time. EPA 
incorporates by reference herein its prior proposal, the comments 
submitted thereon, and its response to those comments. EPA is not 
reprinting that discussion here but will address any further comments 
submitted in response to this re-proposal of its approval of the base 
year emission inventory, future year projection inventories, and target 
level calculations.

D. Nonattainment Area-Wide Plan--Apportionment of Reduction Needs

    The EPA must determine whether or not the Washington area 9 percent 
requirement has been met. In general, the emission reduction from a 
measure is the difference between the future year projected 
uncontrolled emissions and the future year controlled emissions, or is 
equal to a percentage of the future year projected uncontrolled 
emissions. For on-road mobile sources, the emission reductions from a 
measure or suite of measures are determined by the difference of 
projected future year emissions with and without new control measures.
    The Washington area 1996-1999 ROP plan apportions among the 
District, Maryland and Virginia the amount of creditable emission 
reductions that each must achieve in order for the nonattainment area 
to achieve, as a region, the required 9 percent reduction in VOC net of 
growth. The 1996-1999 ROP plan identifies the amount of creditable 
emission reductions that each state must achieve for the nonattainment 
area-wide plan to get a 9 percent reduction accounting for any growth 
in emissions from 1990 to 1999. The District of Columbia, Maryland and 
Virginia each committed to achieving the necessary NOX and 
VOC reductions, found in Table 5.

[[Page 5255]]



                  Table 5.--Emission Reduction Commitments for the Washington Area Through 1999
                                                   [tons/day]
----------------------------------------------------------------------------------------------------------------
                                                              District of
                                                                Columbia     Maryland     Virginia    Area total
----------------------------------------------------------------------------------------------------------------
Total VOC reduction by 1999.................................         10.6         63.7         57.2        131.5
Total NOX reduction by 1999.................................          7.2         96.8         46.6        150.6
----------------------------------------------------------------------------------------------------------------

    The required VOC and NOX emission reductions for each 
jurisdiction have been apportioned using a ratio of the regional 
reduction requirement to the claimed creditable measures for the 
nonattainment area. This result was then multiplied by each 
jurisdiction's total creditable measures to determine its emission 
reduction requirement. The EPA has determined that this apportionment 
of the emission reduction needed for ROP is approvable because the Act 
provides for interstate planning of SIPs, and because all three 
jurisdictions have committed to achieving, in the aggregate, sufficient 
reductions to achieve the 9 percent requirement in the entire 
nonattainment area.

E. What Control Strategies Are the District, Maryland and Virginia 
Including in the 1996-1999 ROP Plan?

    The 1996-1999 ROP plan describes the emission reduction credits 
that the Washington area jurisdictions are claiming toward their 9 
percent reduction requirement. We can credit reductions for the ROP 
requirement for rules promulgated by the EPA and for state measures in 
the approved SIP.
    Transportation Control Measures (TCMs): TCMs are strategies to both 
reduce VMT and decrease the amount of emissions per VMT. The CAA 
classifies as TCMs programs for improved transit, traffic flow, fringe 
parking facilities for multiple occupancy transit programs, high 
occupancy or share-ride programs, and support for bicycle and other 
non-automobile transit. The 1996-1999 ROP plans for Virginia and 
Maryland included TCM projects programmed between fiscal years 1994-
1999 in the transportation improvement plan (TIP) under the Congestion 
Mitigation and Air Quality (CMAQ) Improvement Program and funded for 
implementation in the Washington area. The specific projects that 
Virginia and Maryland are claiming credit for and the estimated 
benefits are listed in Appendix H of the 1996-1999 ROP plan and 
Appendix J of the February 2000 plans. TCMs are considered acceptable 
measures for states to use to achieve reductions and EPA has determined 
that the VOC and NOX reductions attributable to these 
measures are creditable for the 1996-1999 ROP plan and attainment 
demonstration.
    The 1996-1999 ROP plan control measures for the Washington area are 
listed in Table 3 of this document and described in more detail in the 
TSD for this rulemaking.

F. What Are the Total Reductions in the 1996-1999 ROP Plan?

    Tables 6, 7 and 8 summarize the VOC and NOX creditable 
measures in Maryland's, Virginia's and the District's 1996-1999 ROP 
plan for the Washington area.

 Table 6.--Creditable VOC Emission Reductions in the 1996-1999 ROP Plan
                  for the Metropolitan Washington Area
                               [tons/day]
------------------------------------------------------------------------
                                     District
             Measure               of Columbia    Maryland     Virginia
------------------------------------------------------------------------
Tier 1 FMVCP.....................          1.4          5.5          5.9
RFG Refueling Benefits...........          0.0          0.9          0.7
NLEV.............................          0.2          0.6          1.3
Reformulated Gasoline (on/off              2.2          7.9          8.0
 road)...........................
Surface Cleaning/Degreasing......          0.0          2.9          0.0
Autobody Refinishing.............          0.5          3.8          2.7
AIM..............................          1.6          6.6          5.6
Consumer Products................          0.6          2.2          1.9
Seasonal Open Burning Ban........          0.0          3.7          2.6
Graphic Arts.....................          0.9          1.0          1.5
Landfill Regulations.............          0.0            0          0.3
Non-CTG RACT to 50 TPY...........          0.0          0.4          0.4
RACT on Additional Sources 25 TPY and <50 TPY.......
Stage II Vapor Recovery..........          0.0          8.9          7.9
Stage I Enhancement (excluding             0.0          0.9          0.3
 Loudoun County, VA).............
Non-road Gasoline Engines Rule...          0.9          6.3          6.8
TCMs.............................          0.0          0.1          0.1
Enhanced I/M.....................          3.9         18.0         17.9
                                  --------------
    Total Creditable Reductions..         11.8         70.0         63.9
------------------------------------------------------------------------


[[Page 5256]]


 Table 7.--Creditable NOX Emission Reductions in the 1996-1999 ROP Plan
                  for the Metropolitan Washington Area
                               [tons/day]
------------------------------------------------------------------------
                                   District of
             Measure                 Columbia     Maryland     Virginia
------------------------------------------------------------------------
Enhanced I/M.....................          2.4         14.8         16.9
Tier 1...........................          2.5         13.7         14.7
NLEV.............................           .2          0.3          1.5
Reformulated Gasoline (on-road)..          0.0          0.1          0.1
Non-road Gasoline Engines........         -0.1         -0.4         -0.5
Non-road Diesel Engines..........          0.4          3.7          3.2
State NOX RACT...................          2.1         67.9         12.0
Open Burning Ban.................            0          0.8          0.6
TCMs.............................            0          0.2          0.2
                                  --------------
    Total Creditable Reductions..          7.5        101.1         48.7
------------------------------------------------------------------------


 Table 8.--Creditable Emission Reductions Versus Reduction Needs for the 1996-1999 ROP Plan for the Metropolitan
                                                 Washington Area
                                                   [tons/day]
----------------------------------------------------------------------------------------------------------------
                                                              District of
                                                                Columbia     Maryland     Virginia    Area-wide
----------------------------------------------------------------------------------------------------------------
VOC Reductions in Plan......................................         11.8         70.0         63.9        145.7
Commitment/Area-wide Needs..................................         10.6         63.7         57.2        131.5
Surplus.....................................................          1.2          6.3          6.7         14.2
NOX Reductions in Plan......................................          7.5        101.1         48.7        157.3
Commitment/Area-wide Needs..................................          7.2         96.8         46.6        150.6
Surplus.....................................................          0.3          4.3          2.1          6.7
----------------------------------------------------------------------------------------------------------------

    Section 172(c)(9) of the CAA requires that specific measures must 
be undertaken if an area fails to make reasonable further progress, or 
to attain the NAAQS by the attainment date. Furthermore, such measures 
must be included in the SIP as contingency measures to take effect 
without further action by the State or the Administrator. As noted 
previously, the Circuit Court ruled that sections 172(c)(9) and 
182(c)(9) of the CAA require that contingency measures must be included 
as an element in the attainment demonstration and ROP SIPs for the 
Washington area. The Court further determined that EPA lacked the 
authority to approve attainment demonstration and ROP SIPs without 
contingency measures. Therefore, the jurisdictions in the Washington 
area have committed to submit contingency measures that will be 
implemented should EPA notify the Washington area jurisdictions that 
the area did not achieve the required 9 percent reductions by November 
15, 1999. These measures need to provide for a 3 percent reduction in 
base line emissions and be fully adopted rules or measures that can 
implemented without further action by the States or EPA after November 
15, 1999. Such contingency measures must also meet all of the EPA's 
guidance and policy relating to contingency measures.

V. Applicability of Revised Motor Vehicle Emissions Budgets

A. What Is the Background on Transportation Conformity?

1. What Is Transportation Conformity?
    Transportation conformity is a Clean Air Act (CAA) requirement for 
metropolitan planning organizations and the U.S. Department of 
Transportation to ensure that federally supported highway and transit 
activities are consistent with (``conform to'') the SIP. Conformity to 
a SIP means that an action will not cause or contribute to new 
violations; worsen existing violations; or delay timely attainment. The 
conformity requirements are established by CAA section 176(c). We 
issued the transportation conformity rule (40 CFR part 93) to implement 
this CAA requirement.
2. What Are Motor Vehicle Emissions Budgets?
    As described in CAA section 176(c)(2)(A), attainment demonstrations 
necessarily include estimates of motor vehicle emissions to help areas 
reach attainment. These estimates act as a budget or ceiling for 
emissions from motor vehicles, and are used in conformity to determine 
whether transportation plans and projects conform to the attainment 
SIP. In order for transportation plans and projects to conform, 
estimated emissions from transportation plans and projects must not 
exceed the emission budgets contained in the attainment demonstration.
3. Which Motor Vehicle Emissions Budgets Usually Apply?
    According to the transportation conformity rule, motor vehicle 
emissions budgets in a submitted SIP apply for conformity purposes even 
before we have approved the SIP, under certain circumstances. First, 
there must not be any other approved SIP motor vehicle emissions 
budgets that have been established for the same time frame and with 
respect to the same CAA requirements. For example, if there is already 
an approved attainment demonstration SIP that establishes motor vehicle 
emissions budgets for the attainment date, and the State submits a 
revision to those motor vehicle emissions budgets, the newly submitted 
budgets do not apply for conformity purposes until we have approved 
them into the SIP.
    Second, submitted SIP motor vehicle emissions budgets cannot be 
used before we have approved the SIP unless we have found that the 
submitted SIP motor

[[Page 5257]]

vehicle emissions budgets are adequate for conformity purposes. Our 
process for determining adequacy is explained at 40 CFR 93.118(e) and 
the EPA's May 14, 1999, memo entitled, ``Conformity Guidance on 
Implementation of March 2, 1999, Conformity Court Decision.''
    For more details about the applicability of submitted and approved 
budgets, see 61 FR 36117 (July 9, 1996) and 62 FR 43783 (August 15, 
1997).

B. What Is the EPA Proposing Today Regarding Clarification of the 
Applicability of Revised Motor Vehicle Emissions Budgets?

    We are proposing to clarify this proposal with regard to 
applicability of revised budgets under a conditional approval of the 
attainment demonstration SIPs for the Washington area. The following 
discussion addresses this issue specifically pertaining to the motor 
vehicle emissions budgets in the attainment demonstration for the 
Washington area.
1. How Are We Proposing to Clarify the Applicability of Revised 
Budgets?
    In this notice, we are proposing to clarify what occurs if we issue 
a conditional approval of any of the February 2000 plans based on a 
State commitment to revise the 2005 motor vehicle emissions budgets for 
the Washington area in the future. If this occurs, the approved SIP 
motor vehicle emissions budgets will apply for conformity purposes only 
until the revised motor vehicle emissions budgets have been submitted 
and we have found the submitted motor vehicle emissions budgets to be 
adequate for conformity purposes.
    In other words, when the State submits revised motor vehicle 
emissions budgets as they have committed, those revised motor vehicle 
emissions budgets will apply for conformity purposes as soon as we have 
found those motor vehicle emissions budgets to be adequate for 
conformity purposes and our adequacy finding is effective. The revised 
motor vehicle emissions budgets would then replace the motor vehicle 
emissions budgets in the conditionally approved attainment 
demonstration SIP, provided that (as we expect) the revised motor 
vehicle emissions budgets are submitted as a revision to part of the 
attainment demonstration SIP and are established for the same year as 
those in the approved SIP.
2. Why Are We Proposing to Clarify the Applicability of Revised 
Budgets?
    In this notice of proposed rulemaking, we are proposing that for 
reasons described in section III.C. we would not conditionally approve 
the attainment demonstration SIPs unless the States commit to revise 
the SIPs' budgets in the future. As described in prior sections of this 
preamble, the motor vehicle emissions budgets must be revised using 
MOBILE6 because the attainment year budgets that would be conditionally 
approved reflect the benefits of our Tier 2/Sulfur regulation. The 
budgets might also be revised as a result of the RACM analysis the area 
has committed to complete.
    Since we are proposing to approve attainment year motor vehicle 
emissions budgets only because the States have committed to revise 
them, we want our approval of the budgets to last only until adequate 
revised budgets are submitted pursuant to the commitments. We believe 
the revised motor vehicle emissions budgets should apply as soon as we 
find them adequate; we do not believe it is appropriate to wait until 
we have fully approved the revised attainment demonstration SIP. This 
is because we already know that once we have confirmed that the revised 
motor vehicle emissions budgets are adequate, they will be more 
appropriate than the originally approved budgets for conformity 
purposes.
    In addition, we know now that the area cannot estimate accurately 
the benefits of the Tier 2 program until they revise the budgets using 
the MOBILE6 model. We are proposing to conditionally approve motor 
vehicle emissions budgets based on interim approximations of Tier 2 
benefits only because the States are committing to recalculate the 
budgets using MOBILE6 in a timely fashion.
    Finally, we know now that if the area identifies any additional 
mobile source RACM, the budgets, as revised to include those measures, 
will more accurately reflect the emissions levels necessary to 
demonstrate attainment. If we do not clarify our proposed conditional 
approval of the motor vehicle emissions budgets, States will revise 
their budgets as they have committed, but they will not be able to 
start using them quickly for conformity purposes. This would defeat the 
purpose of our original requirements for the budgets to be revised 
quickly. In contrast, according to this proposal, the revised budgets 
could be used for conformity after we have completed our adequacy 
review process, which we have committed to complete within 90 days 
after revisions are submitted, provided they are adequate.
    This notice does not propose any change to the existing 
transportation conformity rule or to the way it is normally implemented 
with respect to other submitted and approved SIPs, which do not contain 
commitments to revise the motor vehicle emissions budgets.

C. How Does the 18-Month Clock Apply With Respect to These Budget 
Revisions?

    Section 93.104(e)(2) of the conformity rule requires conformity of 
the transportation plan and transportation improvement program (TIP) to 
be redetermined within 18 months following the date of a State's 
initial submission of each SIP establishing a budget.
    As described at 60 FR 44792 (August 29, 1995), the first submission 
of a given type of SIP that establishes a motor vehicle emissions 
budget (e.g., an ozone attainment demonstration) starts the 18-month 
clock for redetermining conformity. However, the 18-month clock is 
unaffected by subsequent changes to that submitted SIP.
    Therefore, the revisions to the attainment demonstration SIPs to 
reflect MOBILE6 or any additional RACM will not start a new 18-month 
clock. Of course, whenever conformity is determined in the future (in 
accordance with the 18-month clock or for any other reason), the 
demonstration must use whatever motor vehicle emissions budgets are 
applicable at that time. If an initial submission starts the 18-month 
clock but then is changed and the revised motor vehicle emissions 
budgets are found adequate, any subsequent conformity determination 
must use the new, adequate budgets.
    Section 93.104(e)(3) also requires conformity of the transportation 
plan and TIP to be redetermined 18 months following our approval of a 
SIP that establishes or revises a budget. If we conditionally approve 
an ozone attainment demonstration, an 18-month clock will be started on 
the effective date of our conditional approval. A subsequent conversion 
of the conditional approval to full approval will not start another 18-
month clock, unless the motor vehicle emissions budgets we are 
approving have changed since the conditional approval.

D. What Are the Budgets in the Plans?

    The motor vehicle emissions budgets in the 1996-1999 ROP plan and 
attainment demonstrations are area-wide budgets for the entire 
Washington area. The motor vehicle emissions budgets for 1999 in the 
1996-1999 ROP plan are 196.4 tons per day of NOX and 128.5 
tons per day of VOC. The motor vehicle emissions budgets for 2005 in 
the attainment demonstration are 101.8

[[Page 5258]]

tons per day for VOC and 161.8 tons per day of NOX.

E. What Is the Status of the 1999 Motor Vehicle Emission Budgets 
Contained in the 1996-1999 ROP Plan for the Area?

    We are proposing to conditionally approve the 1996-1999 ROP plan 
for the area including the 1999 motor vehicle emission budgets, or in 
the alternative, to disapprove this SIP with a protective finding. It 
should be noted that the 1999 budgets in the ROP plan do not have to be 
revised using MOBILE6 since these budgets were established for a year 
prior to the implementation of the Tier 2/sulfur regulations.

VI. What Is the Basis for the Proposed Actions?

A. Conditional Approval

    In the previous sections of this document, the EPA has presented 
our analysis of the 1996-1999 ROP plan and attainment demonstration 
plans submitted for the Washington area. The EPA has concluded that 
these submittals will be fully approvable once several deficiencies are 
corrected. Two of these deficiencies were identified by the Circuit 
Court, namely that the 1996-1999 ROP plan and the attainment 
demonstration lack contingency measures, and the attainment 
demonstration lacks an analysis showing that all RACM have been adopted 
for implementation in the Washington area. A third deficiency we have 
identified with the attainment demonstration is the lack of revised 
MOBILE6-based motor vehicle emissions budgets, including revisions to 
the attainment modeling and/or weight of evidence demonstration, as 
necessary, to show that the SIP continues to demonstrate attainment by 
November 15, 2005.
    To cure these deficiencies and allow for full approval of the SIPs 
the States must undertake the actions set forth below. For contingency 
measures related to the attainment demonstration, the States need to 
identify which measures have been implemented since the area failed to 
attain by November 15, 1999. In addition, because the Washington area 
will on March 25, 2003, become a severe nonattainment area, the 
attainment demonstration for the Washington area must also include 
contingency measures if the area fails to attain by November 15, 2005. 
For the 1996-1999 ROP plan contingency requirement, the area needs to 
identify those adopted measures that qualify as contingency measures to 
be implemented if EPA notifies the states that the Washington area did 
not achieve the required 9 percent rate of progress reductions by 
November 15, 1999.
    The deficiencies in the SIPS are due to the actual (or potential) 
lack of certain enforceable measures in the SIPs. Under section 
110(k)(4) of the CAA, the EPA ``may approve a plan revision based on a 
commitment of the State to adopt specific enforceable measures by a 
date certain, but not later than 1 year after the date of approval of 
the plan revision. Any such conditional approval shall be treated as a 
disapproval if the State fails to comply with such commitment.''
    The EPA concludes that the SIP revisions identified in the section 
of this document entitled ``I. What action is the EPA proposing 
today?'' can be conditionally approved because each of the States has 
committed to all of the following:
    (1) Submit to the EPA by April 17, 2004, a contingency plan 
containing those adopted measures that qualify as contingency measures 
due to the failure of the Washington area to attain the one-hour ozone 
standard for serious areas by November 15, 1999, and also those adopted 
measures that qualify as contingency measures to be implemented if EPA 
notifies the states that the Washington area did not achieve the 
required 9 percent rate of progress reductions by November 15, 1999.
    (2) Revise and submit to the EPA by April 17, 2004, an updated 
attainment demonstration SIP that reflects revised MOBILE6-based motor 
vehicle emissions budgets, including revisions to the attainment 
modeling and/or weight of evidence demonstration, as necessary, to show 
that the SIP continues to demonstrate attainment by November 15, 2005.
    (3) Submit to the EPA by April 17, 2004, adopted contingency 
measures to be implemented if the Washington area does not attain the 
one-hour ozone NAAQS by November 15, 2005.
    (4) Submit to the EPA by April 17, 2004, an appropriate RACM 
analysis for the Washington area, along with any revisions to the 
attainment demonstration SIP necessitated by such analysis, should 
there be any.
    These commitments are embodied in the following letters:
    (1) A letter, dated January 14, 2003, from Richard F. Pecora, 
Secretary, Maryland Department of the Environment, to Donald S. Welsh, 
Regional Administrator, EPA. Region III.
    (2) A letter, dated January 14, 2003, from Robert G. Burnley, 
Director, Virginia Department of Environmental Quality, to Donald S. 
Welsh, Regional Administrator, EPA. Region III.
    (3) A letter, dated January 14, 2003, from Theodore J. Gordon, 
Senior Deputy Director for Environmental Health Science and Regulation, 
Government of the District of Columbia Department of Health, to Donald 
S. Welsh, Regional Administrator, EPA. Region III.
    These letters contain the commitments that are acceptable in form 
and substance to comply with sections 110(k)(3) and (4) of the Act.
    Although each of the Washington area States has committed to 
submitting the RACM analysis, the contingency measures and the 2005 
revised mobile vehicle emissions budgets to EPA by April 17, 2004, 
these three things are among the severe area SIP elements required by 
the reclassification of the Washington area to severe ozone 
nonattainment. Therefore, as a practical matter, these three elements 
will have to be submitted to EPA consistent with the schedule for 
submission of the severe area SIP revisions to EPA. Under the schedule 
set forth in the final rule reclassifying the Washington area, each of 
the three Washington area States must submit all of the severe area SIP 
revisions no later than March 1, 2004. (See 68 FR 3410). 
Notwithstanding the April 17, 2004, commitment date, failure of the 
States to submit these three elements by March 1, 2004, can have 
repercussions. If EPA makes a finding that any of the Washington area 
States have failed to submit any of the required severe area SIP 
elements by March 1, 2004, or if EPA makes a finding that any of the 
required submittals is incomplete in accordance with section 
110(k)(1)(B) and 40 CFR part 51, Appendix V, section 179(a) provides 
for the imposition of two sanctions. See section 179(a) of the CAA and 
40 CFR 52.31. Under EPA's sanctions regulations, 40 CFR 52.31, the 
first sanction would be 2:1 offsets for sources subject to the new 
source review requirements under section 173 of the CAA unless the EPA 
has determined the State has submitted the required SIP revisions 
meeting the completeness criteria section 110(k)(1)(B) and of 40 CFR 
part 51. If 6 months after the first sanction is imposed EPA has not 
determined that State has submitted the required SIP revisions meeting 
the completeness criteria section 110(k)(1)(B) and of 40 CFR part 51, 
the second sanction will apply. The second sanction is a limitation on 
the receipt of Federal highway funds.
    However, as discussed previously in this document, because the 
commitment letter recites April 17, 2004, as the

[[Page 5259]]

controlling date for submission of the RACM analysis, the contingency 
measures and the 2005 revised mobile vehicle emissions budgets, any 
conditional approval issued pursuant to this proposed rulemaking shall 
convert to a disapproval only if the State fails to make the required 
submissions by April 17, 2004. If EPA disapproves a required SIP, such 
as an attainment demonstration SIP, section 179(a) provides for the 
imposition of two sanctions. In the event of a disapproval the two 
sanctions would be imposed in accordance with the EPA's sanctions 
regulation, 40 CFR 52.31, and in the same order as described in the 
preceding paragraph.

B. Disapproval in the Alternative

    The EPA believes that the proposed conditional approval is 
consistent with sections 110(k)(3) and (4) of the Act and with rulings 
by the Circuit Court and the District Court cited previously in this 
document. We also believe that the proposed conditional approval is the 
most reasonable of the legally supported alternatives for allowing the 
Washington area to deal with the situation created by the two court 
rulings adverse to EPA. However, EPA is well aware that its past 
actions with respect to this area have been controversial and have 
resulted in separate actions in two different Federal courts. EPA is 
also well aware that it is under a District Court-ordered deadline to 
publish its final action on the Washington area attainment 
demonstration and ROP SIPs by no later than April 17, 2003. Because EPA 
anticipates that the proposed conditional approvals may receive adverse 
comment, we are also proposing in the alternative to disapprove either 
or both the attainment demonstration and ROPs SIPs. EPA believes that 
the proposed disapproval in the alternative is a prudent step to take 
to preserve the court-ordered schedule in the event that we cannot 
issue a timely final conditional approval for both the attainment 
demonstration and ROP SIP revisions.
    In the event that we cannot issue a final conditional approval with 
respect to the attainment demonstration SIP revision, we propose to 
disapprove those submissions due to the following deficiencies: (1) 
Lack of contingency measures; (2) lack of an analysis showing that all 
RACM have been adopted for implementation in the Washington area; and, 
(3) lack of revised MOBILE6-based motor vehicle emissions budgets, 
including revisions to the attainment modeling and/or weight of 
evidence demonstration, as necessary, to show that the SIP continues to 
demonstrate attainment by November 15, 2005. With respect to the 1996-
1999 ROP plan, in the event that we cannot issue a final conditional 
approval, we propose to disapprove the submissions because they lack 
contingency measures. As explained in the following paragraphs at VI.C. 
the EPA is proposing that disapproval of either the attainment 
demonstration or the 1996-1999 ROP plan will be made with a protective 
finding regarding their respective motor vehicle emissions budgets.

C. Proposed Protective Findings

    Under the conformity rule if EPA disapproves any submitted control 
strategy implementation plan revision (with or without a protective 
finding), the conformity status of the transportation plan and 
transportation improvement plan (TIP) shall lapse on the date that 
highway sanctions as a result of the disapproval are imposed on the 
nonattainment area under section 179(b)(1) of the Clean Air Act.\5\ No 
new transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined. See 40 CFR 93.120(a).
---------------------------------------------------------------------------

    \5\ Under the conformity rule the term ``control strategy 
implementation plan revisions'' includes ROP and attainment 
demonstrations, or, more generally, those implementation plans which 
contain specific strategies for controlling the emissions of and 
reducing ambient levels of pollutants in order to satisfy CAA 
requirements for demonstrations of reasonable further progress and 
attainment (CAA sectons 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 
187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and 
192(b), for nitrogen dioxide).
---------------------------------------------------------------------------

    When the EPA disapproves a control strategy SIP the EPA has to 
determine whether to issue a protective finding. If the EPA does not 
issue a protective finding then the conformity freeze established by 
section 93.120(a)(2) of the conformity rule will occur on the effective 
date of the disapproval. See 40 CFR 93.120(a)(2).
    Alternatively, when disapproving a control strategy implementation 
plan revision, the EPA would give a protective finding where a 
submitted plan contains adopted control measures or written commitments 
to adopt enforceable control measures that fully satisfy the emissions 
reductions requirements relevant to the statutory provision for which 
the implementation plan revision was submitted, such as reasonable 
further progress or attainment. See 40 CFR 93.120(a)(3).
    In the preamble to the conformity rule, EPA explained the 
implications of a disapproval of a ROP plan or attainment demonstration 
and how a protective finding works. When disapproving a control 
strategy SIP revision the EPA may give the SIP a protective finding. If 
the EPA disapproves a SIP but gives a protective finding, the motor 
vehicle emissions budget in the disapproved SIP could still be used to 
demonstrate conformity. There would be no adverse conformity 
consequences unless highway sanctions were imposed, as is the case with 
respect to all other SIP planning failures. Highway sanctions would be 
imposed two years following the EPA's disapproval if the SIP deficiency 
had not been remedied. The conformity of the plan and TIP would lapse 
once highway sanctions were imposed. The EPA will make a protective 
finding only if a submitted SIP contains adopted control measures or 
commitments to adopt measures that fully satisfy the emissions 
reductions requirements relevant to the statutory provision for which 
the SIP was submitted, such as ROP. That is, the EPA will give such a 
submitted SIP a protective finding if it contains enough emissions 
reduction measures to achieve its purpose of either demonstrating ROP 
or attainment. The EPA will not make a protective finding with respect 
to a SIP that does not contain emission reduction measures or 
commitments adequate to achieve the required ROP or attainment. See 62 
FR at 43796, August 15, 1997.
    The EPA is proposing that based on the analysis discussed in 
section IV of this document that the 1996-1999 ROP plan meets the ROP 
requirement by providing enough reductions with the adopted measures to 
have achieved the 9 percent reduction requirement. The EPA believes 
that the ROP plan meets the requirement for a protective finding, 
however, the EPA will take final action with respect to this protective 
finding only if it finalizes the disapproval in the alternative option 
proposed in this document.
    Likewise, the EPA is proposing that, based on the analysis 
discussed previously in this document, the attainment demonstration has 
demonstrated that the Washington area will attain the ozone NAAQS no 
later than November 15, 2005, by providing enough reductions with the 
adopted measures to demonstrate attainment. The EPA believes that the 
attainment demonstration meets the requirement for a protective 
finding, however, the EPA will take final action with respect to this 
protective finding only if it finalizes the disapproval in the 
alternative option proposed in this document.

[[Page 5260]]

    Under this proposed protective finding the mobile source budgets 
that were established in the 1996-1999 ROP plan and attainment 
demonstration plans will be in effect for transportation planning and 
conformity purposes and can be used until such time that highway 
sanctions as required in accordance with 40 CFR 52.31 and would apply 
two years after the disapproval of the ROP plan, unless EPA takes final 
action to approve a revised plan correcting the deficiency within 2 
years of EPA's findings. The 1999 mobile emissions budgets in the 1996-
1999 ROP plan which would remain in place under the proposed protective 
finding are 196.8 tons of NOX and 128.5 tons for VOC. The 
2005 mobile emissions budgets in the attainment demonstration which 
would remain in place under the proposed protective finding are 101.8 
tons of NOX and 161.8 tons for VOC.

VII. Proposed Action

A. The District of Columbia--Rate-of-Progress Plan

    EPA is proposing conditional approval of the District of Columbia's 
1996-1999 ROP plan SIP revision for the Washington area which was 
submitted on November 3, 1997, and supplemented on May 25, 1999, and 
the transportation control measures in Appendix H of the May 25, 1999, 
submittal, because the District has committed to submit to the EPA by 
April 17, 2004, (a date that will not be later than 1 year after the 
date of approval of the plan revision) a contingency plan containing 
those adopted measures that qualify as contingency measures to be 
implemented if EPA notifies the states that the Washington area did not 
achieve the required 9 percent rate of progress reductions by November 
15, 1999.
    With respect to the 1996-1999 ROP plan, in the event that we cannot 
issue a final conditional approval, we propose in the alternative to 
disapprove the District of Columbia's 1996-1999 ROP plan SIP because it 
lacks contingency measures. The EPA is proposing disapproval in the 
alternative with a protective finding with respect to the 1999 ROP 
motor vehicle emissions budgets.

B. The District of Columbia--Attainment Demonstration

    EPA is proposing conditional approval of the revisions to the State 
Implementation Plan submitted by the District of Columbia on April 24, 
1998, October 27, 1998, and February 16, 2000, and only section 9.1.1.2 
of the March 22, 2000, SIP supplement dealing with a commitment to 
revise the 2005 attainment motor vehicle emissions budgets within one-
year of the EPA's release of the MOBILE6 model. EPA is proposing 
conditional approval because the District has committed to:
    (1) Submit to the EPA by April 17, 2004, a contingency plan 
containing those adopted measures that qualify as contingency measures 
due to the failure of the Washington area to attain the one-hour ozone 
standard for serious areas by November 15, 1999;
    (2) Revise and submit to the EPA by April 17, 2004, an updated 
attainment demonstration SIP that reflects revised MOBILE6-based motor 
vehicle emissions budgets, including revisions to the attainment 
modeling and/or weight of evidence demonstration, as necessary, to show 
that the SIP continues to demonstrate attainment by November 15, 2005;
    (3) Submit to the EPA by April 17, 2004, adopted contingency 
measures to be implemented if the Washington area does not attain the 
one-hour ozone NAAQS by November 15, 2005; and
    (4) Submit to the EPA by April 17, 2004, a revised RACM analysis 
and any revisions to the attainment demonstration SIP as necessitated 
by such analysis should there be any.
    In the alternative, the EPA is proposing to disapprove the State 
Implementation Plan submitted by the District of Columbia on April 24, 
1998, October 27, 1998, and February 16, 2000, and only section 9.1.1.2 
of the March 22, 2000, SIP supplement, due to the following 
deficiencies: (1) Lack of contingency measures; (2) lack of an analysis 
showing that all RACM have been adopted for implementation in the 
Washington area; and, (3) lack of revised MOBILE6-based motor vehicle 
emissions budgets, including revisions to the attainment modeling and/
or weight of evidence demonstration, as necessary, to show that the SIP 
continues to demonstrate attainment by November 15, 2005. The EPA is 
proposing disapproval with a protective finding with respect to the 
2005 attainment motor vehicle emissions budgets.

C. The State of Maryland--Rate-of-Progress Plan

    EPA is proposing conditional approval of the State of Maryland's 
1996-1999 ROP plan SIP revision for the Washington area which was 
submitted on December 24, 1997, and supplemented on May 20, 1999, and 
the transportation control measures in Appendix H of the May 25, 1999, 
submittal because Maryland has committed to submit to the EPA by April 
17, 2004, a contingency plan containing those adopted measures that 
qualify as contingency measures to be implemented if EPA notifies the 
states that the Washington area did not achieve the required 9 percent 
rate of progress reductions by November 15, 1999.
    With respect to the 1996-1999 ROP plan, in the event that we cannot 
issue a final conditional approval, we propose in the alternative to 
disapprove the State of Maryland's 1996-1999 ROP plan SIP because it 
lacks contingency measures. The EPA is proposing disapproval in the 
alternative with a protective finding with respect to the 1999 ROP 
motor vehicle emissions budgets.

D. The State of Maryland--Attainment Demonstration

    EPA is proposing conditional approval of the revisions to the State 
Implementation Plan submitted by the State of Maryland on April 29, 
1998, August 17, 1998, and February 14, 2000, and the transportation 
control measures in Appendix J of the February 9, 2000, submittal and 
only section 9.1.1.2 of the March 31, 2000, SIP supplement dealing with 
a commitment to revise the 2005 attainment motor vehicle emissions 
budgets within one-year of the EPA's release of the MOBILE6 model. EPA 
is proposing conditional approval because Maryland has committed to:
    (1) Submit to the EPA by April 17, 2004, a contingency plan 
containing those adopted measures that qualify as contingency measures 
due to the failure of the Washington area to attain the one-hour ozone 
standard for serious areas by November 15, 1999;
    (2) Revise and submit to the EPA by April 17, 2004, an updated 
attainment demonstration SIP that reflects revised MOBILE6-based motor 
vehicle emissions budgets, including revisions to the attainment 
modeling and/or weight of evidence demonstration, as necessary, to show 
that the SIP continues to demonstrate attainment by November 15, 2005;
    (3) Submit to the EPA by April 17, 2004, adopted contingency 
measures to be implemented if the Washington area does not attain the 
one-hour ozone NAAQS by November 15, 2005; and
    (4) Submit to the EPA by April 17, 2004, a revised RACM analysis 
and any revisions to the attainment demonstration SIP as necessitated 
by such analysis should there be any.
    In the alternative, the EPA is proposing to disapprove the State 
Implementation Plan submitted by the State of Maryland on April 29, 
1998,

[[Page 5261]]

August 17, 1998, and February 14, 2000, and the transportation control 
measures in Appendix J of the February 9, 2000, submittal and only 
section 9.1.1.2 of the March 31, 2000 SIP supplement due to the 
following deficiencies: (1) Lack of contingency measures; (2) lack of 
an analysis showing that all RACM have been adopted for implementation 
in the Washington area; and, (3) lack of revised MOBILE6-based motor 
vehicle emissions budgets, including revisions to the attainment 
modeling and/or weight of evidence demonstration, as necessary, to show 
that the SIP continues to demonstrate attainment by November 15, 2005. 
The EPA is proposing disapproval with a protective finding with respect 
to the 2005 attainment motor vehicle emissions budgets.

E. The Commonwealth of Virginia--Rate-of-Progress Plan

    EPA is proposing conditional approval of the Commonwealth of 
Virginia's 1996-1999 ROP plan SIP revision for the Washington area 
which was submitted on December 19, 1997, and supplemented on May 25, 
1999, and the transportation control measures in Appendix H of the May 
25, 1999, submittal because Virginia has committed to submit to the EPA 
by April 17, 2004, a contingency plan containing those adopted measures 
that qualify as contingency measures to be implemented if EPA notifies 
the states that the Washington area did not achieve the required 9 
percent rate of progress reductions by November 15, 1999.
    With respect to the 1996-1999 ROP plan, in the event that we cannot 
issue a final conditional approval, we propose in the alternative to 
disapprove the Commonwealth of Virginia's 1996-1999 ROP plan SIP 
because it lacks contingency measures. The EPA is proposing disapproval 
in the alternative with a protective finding with respect to the 1999 
ROP motor vehicle emissions budgets.

F. The Commonwealth of Virginia--Attainment Demonstration

    EPA is proposing conditional approval of the revisions to the State 
Implementation Plan submitted by the Commonwealth of Virginia on April 
29, 1998, August 18, 1998, and February 9, 2000, and the transportation 
control measures in Appendix J of the February 9, 2000, submittal, and 
only section 9.1.1.2 of the March 31, 2000, SIP supplement dealing with 
a commitment to revise the 2005 attainment motor vehicle emissions 
budgets within one-year of the EPA's release of the MOBILE6 model. EPA 
is proposing conditional approval because Virginia has committed to:
    (1) Submit to the EPA by April 17, 2004, a contingency plan 
containing those adopted measures that qualify as contingency measures 
due to the failure of the Washington area to attain the one-hour ozone 
standard for serious areas by November 15, 1999;
    (2) Revise and submit to the EPA by April 17, 2004, an updated 
attainment demonstration SIP that reflects revised MOBILE6-based motor 
vehicle emissions budgets, including revisions to the attainment 
modeling and/or weight of evidence demonstration, as necessary, to show 
that the SIP continues to demonstrate attainment by November 15, 2005;
    (3) Submit to the EPA by April 17, 2004, adopted contingency 
measures to be implemented if the Washington area does not attain the 
one-hour ozone NAAQS by November 15, 2005; and
    (4) Submit to the EPA by April 17, 2004, a revised RACM analysis 
and any revisions to the attainment demonstration SIP as necessitated 
by such analysis should there be any.
    In the alternative, the EPA is proposing to disapprove the State 
Implementation Plan submitted by the Commonwealth of Virginia on April 
29, 1998, August 18, 1998, and February 9, 2000, and the transportation 
control measures in Appendix J of the February 9, 2000, submittal, and 
only section 9.1.1.2 of the March 31, 2000, SIP supplement due to the 
following deficiencies: (1) Lack of contingency measures; (2) lack of 
an analysis showing that all RACM have been adopted for implementation 
in the Washington area; and, (3) lack of revised MOBILE6-based motor 
vehicle emissions budgets, including revisions to the attainment 
modeling and/or weight of evidence demonstration, as necessary, to show 
that the SIP continues to demonstrate attainment by November 15, 2005. 
The EPA is proposing disapproval with a protective finding with respect 
to the 2005 attainment motor vehicle emissions budgets.

G. Applicability of Revised Motor Vehicle Emissions Budgets

    In this notice, we are proposing to clarify what occurs if we issue 
a conditional approval of any of the February 2000 plans based on a 
State commitment to revise the 2005 motor vehicle emissions budgets for 
the Washington area in the future. If this occurs, the conditionally 
approved 2005 motor vehicle emissions budgets will apply for conformity 
purposes only until the revised motor vehicle emissions budgets have 
been submitted and we have found the submitted motor vehicle emissions 
budgets to be adequate for conformity purposes.
    The EPA is soliciting public comments on the issues discussed in 
this document and any other relevant issues regarding the attainment 
demonstration for the Washington area. 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. A more detailed description of the state submittal and 
the EPA's evaluation are included in a Technical Support Document (TSD) 
prepared in support of this rulemaking action. A copy of the TSD is 
available upon request from the EPA Regional Office listed in the 
ADDRESSES section of this document.
    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) that are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1997, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code sec. 10.1-1198, precludes granting a privilege 
to documents and

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information ``required by law,'' including documents and information 
``required by Federal law to maintain program delegation, authorization 
or approval,'' since Virginia must ``enforce Federally authorized 
environmental programs in a manner that is no less stringent than their 
Federal counterparts. * * *'' The opinion concludes that ``[r]egarding 
Sec.  10.1-1198, therefore, documents or other information needed for 
civil or criminal enforcement under one of these programs could not be 
privileged because such documents and information are essential to 
pursuing enforcement in a manner required by Federal law to maintain 
program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1997 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, the EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
the EPA has also determined that a State audit privilege and immunity 
law can affect only State enforcement and cannot have any impact on 
Federal enforcement authorities, the EPA may at any time invoke its 
authority under the Clean Air Act, including, for example, sections 
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions 
of the State plan, independently of any State enforcement effort. In 
addition, citizen enforcement under section 304 of the Clean Air Act is 
likewise unaffected by this, or any, State audit privilege or immunity 
law.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Executive Order 13045

    Executive Order entitled ``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 rule is not subject to Executive Order 13045 because 
it does not involve decisions intended to mitigate environmental health 
or safety risks.

C. Executive Order 13132

    Executive Order entitled ``Federalism'' (64 FR 43255, August 10, 
1999) revokes and replaces Executive Orders 12612 (Federalism) and 
12875 (Enhancing the Intergovernmental Partnership). Executive Order 
13132 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 proposed rule 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 it merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. Thus, the requirements of section 6 of the Executive Order do 
not apply to this rule.

D. Executive Order 13175

    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).

E. Executive Order 13211

    This action is also not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely 
approves state law as meeting Federal requirements and imposes no 
additional requirements beyond those imposed by state law.

F. Regulatory Flexibility Act

    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. This proposed rule will not have a significant impact on 
a substantial number of small entities because conditional approvals of 
SIP submittals under section 110 and subchapter I, part D of the CAA 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, I certify 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 Clean Air 
Act, preparation of a flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The Clean Air 
Act forbids EPA

[[Page 5263]]

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, I certify that 
this proposed 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.
    The EPA's alternative proposed disapproval of the State request 
under section 110 and subchapter I, part D of the Act would not affect 
any existing requirements applicable to small entities. Any pre-
existing Federal requirements would remain in place after this 
disapproval. Federal disapproval of the State submittal does not affect 
State-enforceability. Moreover EPA's disapproval of the submittal would 
not impose any new Federal requirements. Therefore, I certify that the 
proposed disapproval would not have a significant impact on a 
substantial number of small entities.

G. Unfunded Mandates

    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 
annual 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 this proposed approval action does not 
include a Federal mandate that may result in estimated annual 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.
    Sections 202 and 205 do not apply to the proposed disapproval 
because the proposed disapproval of the SIP submittal would not, in and 
of itself, constitute a Federal mandate because it would not impose an 
enforceable duty on any entity. In addition, the Act does not permit 
EPA to consider the types of analyses described in section 202 in 
determining whether a SIP submittal meets the CAA. Finally, section 203 
does not apply to the proposed disapproval because it would affect only 
the District of Columbia, the State of Maryland and the Commonwealth of 
Virginia, which are not small governments.

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    EPA believes that VCS are inapplicable to this action. Today's 
proposed action does not require the public to perform activities 
conducive to the use of VCS.
    This proposed rule regarding the 1-hour ozone attainment 
demonstration and the 1996-1999 ROP plan for the Washington area 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 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

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

    Dated: January 24, 2003.
James J. Burke,
Acting Regional Administrator, Region III.
[FR Doc. 03-2333 Filed 1-31-03; 8:45 am]
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