[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Proposed Rules]
[Pages 2085-2101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-617]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME No. R03-OAR-2004-DC-0009; FRL-7861-2]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, Virginia; Post 1996 and Post 1999 Rate-
of-Progress Plans, Contingency Measures, Transportation Control 
Measures, VMT Offset, and 1990 Base Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the State of Maryland, Commonwealth of Virginia 
and the District of Columbia for the Metropolitan Washington, DC severe 
1-hour ozone nonattainment area (the Washington area). These revisions 
include the post 1996-1999 and post 1999-2005 rate-of-progress (ROP) 
plans, changes to the 1990 base year inventory, a contingency measures 
plan, certain transportation control measures (TCMs), and a 
demonstration that each SIP contains sufficient transportation control 
measures to offset growth in vehicle miles traveled (VMT) as necessary 
to demonstrate ROP and attainment of the 1-hour national ambient air 
quality standard (NAAQS) for ozone. The intended effect of this action 
is to propose approval of revisions submitted to satisfy the SIP 
requirements of 1-hour ozone nonattainment areas classified as severe. 
These revisions are being proposed for approval in accordance with the 
Clean Air Act (CAA or the Act).

DATES: Written comments must be received on or before February 11, 
2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2004-DC-0009 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Web site: http://www.docket.epa.gov/rmepub/ RME, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    C. E-mail: [email protected].
    D. Mail: R03-OAR-2004-DC-0009, Makeba Morris, Chief, Air Quality 
Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, 
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    E. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to RME ID No. R03-OAR-2004-DC-
0009. EPA's policy is that all comments received will be included in 
the public docket without change, and may be made available online at 
http://www.docket.epa.gov/rmepub/, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through RME, regulations.gov 
or e-mail. The EPA RME and the Federal regulations.gov Web sites are an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through RME or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
RME index at http://www.docket.epa.gov/rmepub/. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in RME 
or in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal 
are available at the District of Columbia Department of Public Health, 
Air Quality Division, 51 N Street, NE., Washington, DC 20002; Maryland 
Department of the Environment, 1800 Washington Boulevard, Suite 705, 
Baltimore, Maryland, 21230, Baltimore, Maryland 21224; and the Virginia 
Department of Environmental Quality, 629 East Main Street, Richmond, 
Virginia 23219.

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

SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in 
this document refers to EPA. The use of ``States'' in this document 
refers to the State of Maryland, the Commonwealth of Virginia and the 
District of Columbia.

Outline

I. The Action EPA is Proposing Today
II. Background
    A. What is the Washington D.C. 1-Hour Ozone Nonattainment Area 
(the Washington area)?
    B. What Previous Action Has EPA Taken on the Post 1996-1999 ROP 
Plans?
    C. What Is the Purpose of the Action EPA Is Taking Today?
III. Amendments to the 1990 Base Year Emissions Inventory
IV. Post 1996-1999 and Post 1999-2005 ROP Plans
    A. What Agencies/ and Organizations Developed the Post 1996-1999 
and Post 1999-2005 ROP Plans for the Washington Area?
    B. What ROP Requirements are Applicable to the Washington Area 
after 1996?
    C. What Are the Basic Components of a ROP Plan?
    D. EPA's Evaluation of the Post 1996-1999 ROP Plans for the 
Washington Area
    E. EPA's Evaluation of the Post 1999-2005 ROP Plans for the 
Washington Area
    F. Do the Post 1996-1999 and Post 1999-2005 ROP Plans for the 
Washington Area Meet the Requirements for NOX 
Substitution?
V. Contingency Measures Plans
    A. What are the Contingency Measures Implemented to Address the 
Failure to Attain by November 15, 1999 and for the Post 1996-1999 
ROP Plans?
    B. What Are the Contingency Measures and Plan for Post-1999 ROP 
Plans and for Failure to Attain by November 15, 2005?

[[Page 2086]]

VI. Vehicle Miles Traveled (VMT) Offset SIP and Transportation 
Control Measures (TCMs)
    A. What Is a VMT Offset SIP?
    B. EPA's Analysis of VMT Offset SIP in the 2004 SIP Revisions?
    C. What TCMs Are Part of the SIP?
VII. Motor Vehicle Emissions Budgets (MVEBs)
    A. Background for Transportation Conformity
    B. What Motor Vehicle Emissions Budgets Currently Apply in the 
Washington Area
    C. Effect of This Action on the Motor Vehicle Emissions Budgets 
for the Washington Area
    D. Review of the Motor Vehicle Emissions Budgets in the Post 
1996-1999 ROP and Post 1999-2005 ROP Plans
    E. What Are the Motor Vehicle Emissions Budgets in the ROP 
Plans?
VIII. Prerequisites for Approval for the Post 1996-1999 and Post 
1999-2005 ROP Plans
IX. Proposed Actions
X. Statutory and Executive Order Reviews

I. The Action EPA Is Proposing Today

    The EPA is proposing approval of the post 1996-1999 ROP plans, the 
post 1999-2005 ROP plans and the contingency measure plans for both ROP 
and attainment submitted by the District of Columbia, Maryland and 
Virginia (``the States'') for the Washington area. In addition, EPA is 
also proposing approval of the States' revisions to the 1990 base year 
emissions inventory, TCMs, and a demonstration that the SIP for each 
State contains sufficient TCMs to offset growth in VMT as necessary to 
achieve ROP and to attain the ozone NAAQS (commonly referred to as the 
VMT Offset SIP). Tables 1 and 2 identify the initial submittal dates 
and the dates on which the States' submitted amendments for these plans 
and measures:

                               Table 1.--Post 1996-1999 ROP Plans From the States
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                                                  DC                     MD \1\                     VA
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Initial submittal dates..............  November 10, 1997......  December 24, 1997......  December 19, 1997.
Amended submittal dates..............  May 25, 1999...........  May 20, 1999...........  May 25, 1999.
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\1\ Maryland SIP revision submittals labeled as 97-04 and 99-12.

    The post 1996-1999 ROP Plan SIP revisions also include certain 
TCMs, specifically those TCMs identified in Appendix H of the States' 
submittals.

  Table 2.--1999-2005 ROP Plans, Contingency Measures Plan, Amendments to the 1990 Base Year Inventory, and VMT
                                                  Offset Plans
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                                                  DC                     MD \2\                     VA
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Initial submittal dates..............  September 5, 2003......  September 2, 2003......  August 19, 2003.
Amended submittal dates..............  February 25, 2004......  February 24, 2004......  February 25, 2004.
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\2\ Maryland SIP revision submittals labeled as 03-05 and 04-01.

    Hereafter, the SIP revisions listed in Table 2 of this document 
will be called the ``2004 SIP revisions.'' The States' 2004 SIP 
revisions include the post 1999-2005 ROP plans, the VMT Offset SIPs, 
revisions to the 1990 base year emissions inventory, and the 
contingency measures plans for ROP and attainment for the Washington 
area. The 2004 SIP revisions also include certain TCMs, namely those 
TCMs identified in Appendix J of the SIP revision submittals. The 2004 
SIP revisions also include the States' attainment demonstration plans 
for the Washington area. Those attainment demonstration plans are the 
subject of a separate rulemaking action.

II. Background

A. What Is the Washington DC 1-Hour Ozone Nonattainment Area?

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

B. What Previous Action Has EPA Taken on the Post 1996-1999 ROP Plans?

    On January 3, 2001 (66 FR 586), the EPA approved the States' post 
1996-1999 ROP plans, attainment demonstration plans (those submitted 
during 1998 and 2000) and an attainment date extension for the 
Washington 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 court) ruled on the petition and vacated our 
January 3, 2001 approval of the States' attainment demonstrations, 
their 1996-1999 ROP plans and the attainment date extension. (See 
Sierra Club v. Whitman, 294 F.3d 155, 163 (D.C. Cir. 2002) (``Sierra 
Club I''). Among other things, the court said that the EPA was without 
authority to extend the Washington area's attainment deadline unless it 
also ordered the area to be reclassified as a ``severe'' area. The 
court also found that the attainment demonstration and ROP plans were 
deficient because neither contained approved contingency measures as 
required by sections 172(c)(9) and 182(c)(9) of the Clean Air Act (CAA 
or the Act). Id. at 164. Furthermore, the court determined that in 
addition to a 9 percent reduction in baseline emissions from 1996 to 
1999, an area with an attainment date in 2005 must have an approved ROP 
plan that demonstrates ROP to 2005. Id. at 163. The Washington area's 
post 1996-1999 ROP plan, that had been submitted by each of the States, 
demonstrated ROP only through 1999.
    On January 24, 2003 (68 FR 3410), EPA published a final rule 
determining that the Washington area failed to attain the November 15, 
1999 ozone attainment deadline for serious areas and reclassifying the 
Washington area from serious to severe ozone nonattainment. That final 
rule also specified the additional SIP elements mandated by the CAA for 
that severe area, that would have to be adopted and submitted as SIP 
revisions by the States for the Washington area as a result of its 
reclassification to severe.

[[Page 2087]]

    On April 17, 2003 (68 FR 19106), EPA conditionally approved the 
States' post 1996-1999 ROP plans and those versions of the attainment 
demonstration plans submitted during 1998 and 2000, contingent upon the 
States fulfilling commitments they made to submit the additional 
elements required of SIPs for a severe area within one year. The Sierra 
Club filed a petition for review of that final rule alleging, among 
other things, that EPA could not lawfully conditionally approve these 
SIP revisions due to a lack of specificity in the States' commitment 
letters, and that EPA should require the post 1996-1999 ROP plans be 
revised to use the latest mobile sources emission factor model.
    On February 3, 2004, the court ruled on that petition and issued 
its opinion vacating our April 17, 2003 rule. The court granted the 
petition solely on the issue that use of a conditional approval was not 
appropriate nor available to EPA on these SIPs. The court denied the 
petition for review in all other respects. (See Sierra Club v. EPA, 356 
F.3d at 301-04 (D.C. Cir. 2004) (``Sierra Club II'').\3\ On April 23, 
2004, the court issued its mandate, thereby relinquishing jurisdiction 
over the post 1996-1999 ROP plans and the attainment demonstration SIP 
revisions and remanding them back to EPA.
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    \3\ On April 16, 2004, the court issued an order revising the 
February 3, 2004 opinion to address a petition for rehearing and 
leaving its decision to vacate and remand the conditional approval 
to EPA intact. Sierra Club v. EPA, 356 F.3d 296, 301-304 (D.C. Cir.) 
2004), amended by No. 03-1084, 2004 WL 877850 (D.C. Cir. Apr. 16, 
2004).
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C. What Is the Purpose of the Action EPA Is Taking Today?

    Given that the States have now adopted and submitted contingency 
measures plans and ROP plans through to the 2005 attainment year, EPA 
is proposing to approve the post 1996-1999 ROP plans that applied to 
the Washington area pursuant to the area's initial classification as a 
serious ozone nonattainment area. In addition, EPA is proposing 
approval of the States' revisions to the 1990 base year emissions 
inventory. EPA is also proposing to approve the 2004 SIP revisions 
listed in Table 2 of this document, namely the post 1999-2005 ROP 
plans, contingency measures plans, and VMT offset plans that apply to 
the Washington area as a result of its reclassification to severe 1-
hour ozone nonattainment. The contingency measure plans identify those 
measures that were implemented as a consequence of the failure of the 
Washington area to meet its original November 15, 1999 serious area 
attainment date, and also identify those adopted measures that will be 
implemented should the now reclassified Washington area fail to attain 
the1-hour ozone NAAQS by the severe area deadline date of November 15, 
2005 or if the area fails to make reasonable further progress (RFP) or 
meet a ROP milestone. In addition, EPA is proposing to approve certain 
TCMs which were made part of the States' post 1996-1999 ROP plans as 
well as part of the 2004 SIP revisions. These SIP revisions and our 
rationale for proposing to approve them are discussed in more detail in 
the subsequent sections of this document.

III. Amendments to the 1990 Base Year Emissions Inventory

    EPA mandated the use of the MOBILE6 model for the post-1999 ROP 
plan development and also required associated revisions to the 1990 
base year inventory. (See 68 FR at 3418, January 24, 2003; and the 
joint memorandum issued by EPA's Office of Air Quality Planning & 
Standards and Office of Transportation & Air Quality, January 18, 2002) 
\4\ As we explained in our January 24, 2003 final rule, requiring the 
use of MOBILE6 to calculate the 2002 and 2005 ROP target levels will 
``necessitate a revision to the 1990 base year inventory which is, 
among other things, the planning base line from which the 2002 and 2005 
ROP targets are calculated.'' In their 2004 SIP revisions, the States 
updated the 1990 base year inventory to reflect the use of MOBILE6. 
This affected the base year on-road mobile source inventory as well as 
the emissions resulting from vehicle refueling and the benefits of 
stage II vapor recovery and of reformulated gasoline (RFG). The States 
also made other changes as a result of new inventory methods and 
information.
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    \4\ Joint Memorandum dated January 18, 2002, From John S. Seitz, 
Director, Office of Air Quality Planning & Standards, and Margo 
Tsirigotis Oge, Director of Office of Transportation and Air 
Quality, ``Policy Guidance for the Use of MOBILE6 in SIP Development 
and Transportation Conformity''.
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    The States added several new sources to the point source inventory, 
that is, large stationary sources of VOC and nitrogen oxides 
(NOX) emissions, as result of the area's January 24, 2003 
reclassification to severe ozone nonattainment. This reclassification 
lowered the threshold of what is considered a major stationary source 
to 25 tons per year (TPY) from 50 TPY. This resulted in additional 
sources being added to the point source inventory for NOX 
emissions. The threshold for inclusion in the point source inventory 
for VOC emissions had already been 10 TPY of VOC emissions and remains 
at this level.
    The States also updated the area and nonroad portion of the 
inventory for aircraft emissions and ground support equipment at 
commercial airports using the Emissions Dispersion Modeling System 
(EDMS) to recompute the 1990 base year emissions. The Federal Aviation 
Administration requires EDMS as the methodology for performing air 
quality emissions and air quality analyses modeling for aviation 
sources. It further requires airport sponsors to use the most recent 
EDMS model to calculate all emissions at airports to satisfy the 
National Environmental Policy Act (NEPA), the CAA's general conformity 
requirements, and other statutorily mandated analyses. EPA has endorsed 
the use of EDMS.
    The prior methodology used by the States for the 1990 inventory, as 
compared to EDMS, resulted in higher base year NOX emissions 
and provided for higher allowable levels of NOX emissions 
for these source categories. Therefore, the prior methodology would 
have set a higher NOX emissions budget against which general 
conformity would be determined in future years' analyses. However, as 
previously noted, EDMS is the required methodology for performing the 
future years' general conformity analyses, themselves. The States' 
revisions to update and recompute the SIPs' 1990 base year area and 
nonroad inventory for aircraft emissions and ground support equipment 
at commercial airports using EDMS provide for consistency between the 
methodologies used to establish the SIPs' allowable NOX 
growth budget and for performing future year's general conformity 
analyses. The States have also based the 2002 and 2005 year area 
aircraft emissions and ground support equipment at commercial airports 
portions of the area and nonroad portion of the inventory upon EDMS 
projections. EPA is proposing to approve the changes to the 1990 base 
year inventories.

IV. Post 1996-1999 and Post 1999-2005 ROP Plans

A. What Agencies and Organizations Developed the Post 1996-1999 and 
Post 1999-2005 ROP Plans for the Washington Area?

    The District, 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

[[Page 2088]]

Washington Council of Governments (COG), collaborated on a coordinated 
post 1996-1999 ROP plan and later a coordinated post 1999-2005 ROP plan 
for the Washington area. The MWAQC includes state and local elected 
officials and representatives of the District's Department of Health 
(DoH), the Maryland Department of the Environment (MDE), the Virginia 
Department of Environmental Quality (VADEQ) and the National Capital 
Region Transportation Planning Board (TPB). The CAA provides for such 
interstate coordination for multi-state nonattainment areas. Because 
control strategy SIPs, such as the ROP plans, must establish and 
identify motor vehicle emissions budgets (MVEBs) for use in conformity 
determinations of 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 Washington area ROP plans and their 
associated MVEBs. The post 1996-1999 ROP plan and the post 1999-2005 
ROP plan each include the emission target levels that demonstrate ROP 
for the milestone year(s), the projections of growth and the total 
amount of creditable reductions required for the entire Washington 
area. The District, Maryland and Virginia agreed to apportion this 
total amount of required creditable reductions among themselves. 
Although both the ROP plans were developed on an area-wide basis, each 
State met the CAA requirements by submitting the post 1996-1999 ROP 
plan and the post 1999-2005 ROP plan to the EPA as revisions to its 
SIP.

B. What ROP Requirements Are Applicable to the Washington Area After 
1996?

    The CAA requires that serious and above ozone nonattainment areas 
develop plans to reduce area-wide VOC base line emissions after 1996 by 
3 percent per year (averaged over consecutive 3-year periods) until the 
year of the attainment date required for that classification of 
nonattainment area. The Washington area was initially classified as a 
serious ozone nonattainment area with an attainment date of November 
15, 1999. As such, the Washington area States had and continue to have 
a requirement that a post 1996-1999 ROP plan be SIP-approved which 
demonstrates a 9 percent reduction in baseline emissions by 1999.
    As previously noted, EPA published a final rule reclassifying the 
Washington area to severe ozone nonattainment on January 24, 2003, 
effective March 25, 2003. The statutory attainment date for severe 
areas is November 15, 2005. The final rule reclassifying the Washington 
area to severe ozone nonattainment imposed additional requirements on 
the Washington area including, among other things, a post 1999-2005 ROP 
plan to achieve an additional 9 percent reduction in base line 
emissions between 1999 and 2002, and, a further 9 percent reduction 
between 2002 and 2005. This 9 percent reduction requirement is a 
continuation of the ROP requirement for a 15 percent reduction in VOC 
post 1990-1996. For post 1996 and post 1999 ROP plans, 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.

C. What Are the Basic Components of a ROP Plan?

    1. An Overview--A ROP plan consists of a plan to achieve a target 
level of emissions by each of the milestone years covered by the plan. 
There are several important emission inventories and calculations 
associated with the plan including the base year emissions inventory, 
future year projection inventories, and target level calculations. 
After accounting for growth in emissions after 1990, the plan must also 
demonstrate that future year emissions with be held to levels by the 
creditable control programs' emissions reductions to an amount that is 
less than or equal to the applicable target level. One method for 
demonstrating this is to determine how many emission reductions are 
required by subtracting the target level from the future year 
uncontrolled emissions.
    2. How is the Target Level Determined?--EPA has issued guidance on 
how to calculate the target levels. This guidance outlines a process 
for calculating a target level. In summary, the State first calculates 
the 1996 VOC target level that corresponds to the 15 percent reduction 
in VOC baseline emissions (the 15 percent plan) required under section 
182(b)(1) of the Act. The target level starts with the 1990 ROP VOC 
inventory of VOC. The 1996 VOC target level equals the 1990 ROP VOC 
inventory minus:
    (a) The ``noncreditable reductions'' due to the Federal Motor 
Vehicle Control Program (FMVCP) promulgated by January 1, 1990, 
(``FMVCP Tier 0'') and Reid Vapor Pressure (RVP) regulations required 
under section 211(h) of the Act (Phase 2 RVP),
    (b) Any noncreditable reasonably available control technology 
(RACT) rule correction reductions required by section 182(a)(2)(A) of 
the Act,\5\ and,
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    \5\ Any reductions in 1990 baseline emissions due to the 
corrections in vehicle inspection and maintenance programs under 
section 182(a)(2)(B) are also treated excluded from counting towards 
the required 15 percent reduction (see CAA section 
182(b)(1)(D)(iv)). There were no required corrections in vehicle 
inspection and maintenance programs in the Washington area and this 
provision will not be discussed further in this document.
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    (c) An amount equal to the required 15 percent reduction in 
baseline VOC emissions.
    The required 15 percent reduction in baseline VOC emissions is not 
computed as 15 percent of the 1990 ROP VOC emissions inventory. Because 
section 182(b)(1)(C) defines ``base line emissions'' as the 1990 ROP 
inventory less those 1990 calendar year emissions that would be 
eliminated by the FMVCP Tier 0 and Phase 2 RVP programs by the 
milestone year, an ``adjusted'' 1990 base year inventory must be 
computed to reduce the 1990 ROP inventory by the amount of emissions 
that would be eliminated by implementation of the FMVCP Tier 0 and 
Phase 2 RVP programs. The required 15 percent reduction in baseline VOC 
emissions is, therefore, 15 percent of the ``adjusted'' 1990 base year 
inventory for 1996.
    For subsequent milestone years, a similar process is used to 
compute the target level of emissions. For each three year period after 
1996, the ``fleet turnover correction'' (FTC) (that amount of base line 
emission eliminated by FMVCP Tier 0 and Phase 2 RVP programs during 
that three year period) is computed and the ``adjusted'' 1990 base year 
inventory is computed (which is the ``adjusted'' 1990 base year 
inventory for the prior milestone year minus the relevant FTC). The 
target level for a milestone year is the target level for the prior 
milestone year minus the FTC for the three-year period minus the 
required ROP reductions.\6\ In the absence of NOX 
substitution, the required post-1996 ROP reduction is 9 percent of the 
adjusted 1990 VOC base year inventory for the milestone year in 
question. With NOX substitution, the required post-1996 ROP 
VOC reductions can be an amount less than 9 percent as long as the 
percentage of NOX substituted plus the VOC ROP percentage 
equals or exceeds 9 and as long as the amount of NOX 
substituted

[[Page 2089]]

meets EPA's December 1993 NOX Substitution Guidance. With 
NOX substitution, a NOX target is also calculated 
along the same lines as for a VOC target.
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    \6\ With the exception of 1999 when NOX substitution 
is used. In that case, for the 1999 VOC target level, the starting 
point is the 1996 VOC target level from the 15 percent plan, but for 
the 1999 NOX target level the 1990 ROP NOX 
inventory is used in lieu of a 1996 target level because the 15 
percent plan does not set a NOX target level for 1996.
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    Table 3 summarizes the process for computing ROP target levels 
continued through the 2005 milestone year:

        Table 3.--General Process for Computing ROP Target Levels
------------------------------------------------------------------------
        Row                Description                How computed
------------------------------------------------------------------------
1.................  1990 ROP Inventory.......  1990 base year inventory
                                                less biogenic emissions
                                                and sources outside the
                                                nonattainment area.
2.................  Adjusted 1990 Base Year    1990 ROP inventory less
                     Inventory for 1996.        emissions eliminated
                                                through 1996 by Tier 0
                                                FMVCP/Phase 2 RVP.
3.................  Emissions eliminated       Row 1 minus Row 2 (see
                     through 1996 by Tier 0     Note 1).
                     FMVCP/Phase 2 RVP
                     Programs.
4.................  Reductions from RACT Rule  Amount 1990 base year
                     Corrections.               emissions reduced by
                                                required RACT rule
                                                corrections (see Note
                                                1).
5.................  Required 15 Percent        0.15 times Row 2.
                     Reduction.
6.................  1996 Target Level........  Row 1 minus Rows 3, 4 and
                                                5.
7.................  Adjusted 1990 Base Year    1990 ROP inventory less
                     Inventory for 1999.        emissions eliminated
                                                through 1999 by Tier 0
                                                FMVCP/Phase 2 RVP.
8.................  Fleet Turnover Correction  Row 2 minus Row 7 (see
                     (FTC) for 1999.            Note 2).
9.................  Required ROP Reduction     ROP Percentage (0.0 to
                     for 1999.                  0.09) times Row 7 (see
                                                Note 3).
10................  1999 Target Level........  Row 6 minus Rows 8 and 9
                                                (See Note 4).
11................  Adjusted 1990 Base Year    1990 ROP inventory less
                     Inventory for 2002.        emissions eliminated
                                                through 2002 by Tier 0
                                                FMVCP/Phase 2 RVP.
12................  FTC for 2002.............  Row 7 minus Row 11.
13................  Required ROP Reduction     ROP Percentage (0.0 to
                     for 2002.                  0.09) times Row 11 (see
                                                Note 2).
14................  2002 Target Level........  Row 10 minus Rows 12 and
                                                13.
15................  Adjusted 1990 Base Year    1990 ROP inventory less
                     Inventory for 2005.        emissions eliminated
                                                through 2005 by Tier 0
                                                FMVCP/Phase 2 RVP.
16................  FTC for 2005.............  Row 15 minus Row 11.
17................  Required ROP Reduction     ROP Percentage (0.0 to
                     for 2005.                  0.09) times Row 15 (see
                                                Note 2).
18................  2005 Target Level........  Row 14 minus Rows 16 and
                                                17 (see Note 3).
------------------------------------------------------------------------
Note 1. With NOX substitution this need not be computed for any 1999 or
  later NOX target levels. Also, because RACT was not required on
  sources of NOX prior to 1990, there were no RACT rule corrections that
  might reduce 1990 base line NOX emissions and thus this need not be
  computed for any 1999 or later NOX target levels.
Note 2. Formula shown for 1999 applies to VOC. When using NOX
  substitution the FTC for 1999 is Row 1 minus Row 7.
Note 3. For any three-year, post-1999 period, States are free to choose
  the amount of NOX substituted as long as the percentage of VOC plus
  the percentage of NOX reduction equals 9 percent (0.09), and, as long
  as the plan adheres to the other restraints on the amount of NOX
  substituted found in EPA's December 1993 NOX Substitution Guidance.
Note 4. When NOX substitution is used, the 1999 target level starts with
  the 1990 ROP inventory, not a 1996 target level, and hence would be
  Row 1 minus Rows 8 and 9. Row 4 is not relevant when computing NOX
  targets.

D. EPA's Evaluation of the Post 1996-1999 ROP Plans for the Washington 
Area

1. How Were the 3 Percent per Year Reduction Needs for the Post-1996-
1999 ROP Plans Calculated?
    A post 1996-1999 ROP plan consists of a plan to achieve a target 
level of emissions by November 15, 1999. As previously stated, there 
are emission inventories and calculations associated with the plan 
including the base year emission inventory, future year projection 
inventories, and target level calculations. The post 1996-1999 ROP plan 
also 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 EPA addressed the sufficiency of the Washington area's post 
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, 65 FR 62658, October 19, 2000, 68 FR 5246, 
February 3, 2004, and 68 FR 19106, April 17, 2004.)
    Although EPA requires that states use the latest mobile source 
emissions factor model available at the time a plan is developed, our 
policy is not to require states that have already submitted SIPs or 
that submitted SIPs shortly after MOBILE6's release to revise these 
SIPs simply because the new motor vehicle emissions model becomes 
available. (See 68 FR at 19120, April 17, 2003 and Memorandum from EPA 
Office of Air Quality Planning & Standards, January 18, 2002.\7\) In 
the case of the Washington area's post 1996-1999 ROP plans, the States' 
SIP revisions were submitted in 1999 more than 3 years prior to the 
release of the MOBILE6 model.
---------------------------------------------------------------------------

    \7\ Joint Memorandum dated January 18, 2002, from John S. Seitz, 
Director, Office of Air Quality Planning & Standards, and Margo 
Tsirigotis Oge, Director of Office of Transportation and Air 
Quality, ``Policy Guidance for the Use of MOBILE6 in SIP Development 
and Transportation Conformity''.
---------------------------------------------------------------------------

    As stated previously, EPA promulgated a final action on January 3, 
2001 (66 FR 586) fully approving and a final action on April 17, 2003 
(68 FR 19106) conditionally approving these 1996-1999 ROP plan SIP 
revisions which the court vacated. It is important to note that 
although the Sierra Club's petition for review of our April 17, 2003 
final rule claimed, among other things, that the approval of the 
States' 1996-1999 ROP plans was arbitrary and capricious because those 
plans relied on an outdated emissions model and that EPA should require 
that the post 1996-1999 ROP plans be revised using MOBILE6, in its 
February 3, 2004 ruling on the petition, the court denied the petition 
for review on this claim. (See Sierra Club II, 356 F.3d 296, 307-308 
(D.C. Cir. 2004). The court upheld EPA's decision not to require the 
Washington area States to revise their post 1996-1999 ROP plans to 
reflect MOBILE6. Therefore, EPA believes that the ROP target levels of 
the post 1996-1999 ROP plans are approvable.

[[Page 2090]]

2. What Control Strategies Are the District, Maryland and Virginia 
Including in the Post 1996-1999 ROP Plan?
    The post 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 EPA and for state measures we 
have approved as SIP revisions. The post 1996-1999 ROP plan control 
measures for the Washington area are listed in Tables 4 and 5 of this 
document and described in more detail in the Technical Support Document 
(TSD) for this rulemaking.
3. What Are the Total Reductions in the 1996-1999 ROP Plan?
    Table 6 summarizes the VOC and NOX creditable measures 
in Maryland's, Virginia's and the District's 1996-1999 ROP plan for the 
Washington area.

 Table 4.--Creditable VOC Emission Reductions in the Post 1996-1999 ROP
                      Plan for the Washington Area
                               [Tons/day]
------------------------------------------------------------------------
                   Measure                        DC       MD       VA
------------------------------------------------------------------------
Tier 1 FMVCP.................................      1.4      5.5      5.9
RFG Refueling Benefits.......................      0.0      0.9      0.7
National low emission vehicle (NLEV).........      0.2      0.6      1.3
Reformulated Gasoline (on/off road)..........      2.2      7.9      8.0
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      0.3
Non-CTG RACT to 50 TPY.......................      0.0      0.4      0.4
RACT on Additional Sources >25 TPY and <50         N/A      0.3      0.0
 TPY.........................................
Stage II Vapor Recovery......................      0.0      8.9      7.9
Stage I Enhancement (excluding Loudoun             0.0      0.9      0.3
 County, VA).................................
Federal Non-road Gasoline Engine Standards...      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
------------------------------------------------------------------------


 Table 5.--Creditable NOX Emission Reductions in the Post 1996-1999 ROP
                      Plan for the Washington Area
                               [Tons/day]
------------------------------------------------------------------------
                   Measure                        DC       MD       VA
------------------------------------------------------------------------
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
Federal Non-road Gasoline Engine Standards...     -0.1     -0.4     -0.5
Federal Non-road Diesel Engine Standards.....      0.4      3.7      3.2
State NOX RACT/beyond NOX RACT rules.........      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 6.--Creditable Emission Reductions Compared to the Emissions
  Reductions Needed for the Post 1996-1999 ROP Plan for the Washington
                                  Area
                               [Tons/day]
------------------------------------------------------------------------
                                                                  Area-
                                         DC       MD       VA      wide
                                                                  total
------------------------------------------------------------------------
VOC Reductions in Plan..............     11.8     70.0     63.9    145.7
Area-wide Reduction Needs...........  .......  .......  .......    131.5
Surplus.............................  .......  .......  .......     14.2
NOX Reductions in Plan..............      7.5    101.1     48.7    157.3
Area-wide Reduction Needs...........  .......  .......  .......    150.6
Surplus.............................  .......  .......  .......      6.7
------------------------------------------------------------------------


[[Page 2091]]

E. EPA's Evaluation of the of the Post 1999-2005 ROP Plans for the 
Washington Area

1. What Effect Do the Amendments to the 1990 Base Year Have on the Post 
1999-2005 ROP Plans
    Unlike the post 1996-1999 ROP plan, EPA explicitly requires that 
the States develop the post 1999-2005 ROP plan using the updated 
MOBILE6 emission factor model because the requirement for such a plan 
came due for the Washington area after the release of MOBILE6. (See 68 
FR 3410 at 3420, January 24, 2003.) The 1990 ROP and ``adjusted'' 1990 
base year inventories, as discussed in section IV. C. this document, 
are significantly dependent upon the mobile source emission factor 
model. The mobile source emission factor model is the tool used to 
determine the amount of 1990 baseline emissions that would be 
eliminated by the pertinent milestone year due to the Tier 0 FMVCP and 
Phase 2 RVP programs, and, thus, is a fundamental aspect of the 
development of the FTC and ``adjusted'' 1990 base year inventories. In 
the guidance that we provided for the post 1999-2005 ROP plan under the 
reclassification of the Washington area to severe, we recognized that 
the 1990 ROP and adjusted 1990 base year inventories and the 1996 and 
1999 target levels would have to be re-computed in order to determine 
the target levels for the post 1999 ROP requirements. We had identified 
that in addition to motor vehicle emissions budgets for the 2002 and 
2005 milestone years, development of the required post 1999 ROP plan 
would also require the development of revisions to the 1990 base year 
emissions inventories and development of up to seven 1990 adjusted 
inventories (VOC for 1996, VOC and NOX for 1999, VOC and 
NOX for 2002, plus VOC and NOX for 2005). See 67 
FR 68805 at 68811, November 13, 2003.
    As shown in Table 3 of this document, the 1999 target level is the 
1996 target level minus a percentage of the adjusted 1990 Base Year 
Inventory for 1999 and the FTC for 1999; and the 1996 target level is 
the 1990 ROP Inventory minus the following three amounts:
    (a) 15 percent of the ``adjusted'' 1990 base year inventory for 
1996;
    (b) Reductions from RACT rule corrections; and
    (c) Emissions eliminated through 1996 by Tier 0 FMVCP/Phase 2 RVP 
programs.
    Therefore, the 1999 target level is just the 1990 ROP inventory 
minus the following five amounts:
    (1) 15 percent of the ``adjusted'' 1990 base year inventory for 
1996;
    (2) Reductions from RACT rule corrections;
    (3) Emissions eliminated through 1996 by Tier 0 FMVCP/Phase 2 RVP 
programs;
    (4) A percentage of the ``adjusted'' 1990 Base Year Inventory for 
1999; and
    (5) The FTC for 1999.
    To continue this process for 2002 and 2005, the steps outlined in 
Table 3 of this document entitled, ``General Process for Computing ROP 
Target Levels'' are used for the 2002 and 2005 milestone targets as 
shown in Tables 7a and 7b.\8\
---------------------------------------------------------------------------

    \8\ To facilitate comparison by the reader of Tables 7a and 7b 
with Table 3, the rows identifiers in the following two tables 
remain the same as those for the corresponding item in Table 3.

  Table 7a.--General Process for Computing 2002 and 2005 ROP VOC Target
                                 Levels
------------------------------------------------------------------------
        Row                Description                How computed
------------------------------------------------------------------------
1.................  1990 VOC ROP Inventory...  1990 base year inventory
                                                less biogenic emissions
                                                and sources outside the
                                                nonattainment area.
2.................  Adjusted 1990 Base Year    1990 ROP inventory less
                     VOC Inventory for 1996.    emissions eliminated
                                                through 1996 by Tier 0
                                                FMVCP/Phase 2 RVP.
3.................  VOC Emissions eliminated   Row 1 minus Row 2.
                     through 1996 by Tier 0
                     FMVCP/Phase 2 RVP
                     Programs.
4.................  VOC Reductions from RACT   Amount 1990 base year
                     Rule Corrections.          emissions reduced by
                                                required RACT rule
                                                corrections.
5.................  Required 15 Percent VOC    0.15 times Row 2.
                     Reduction.
7.................  Adjusted 1990 Base Year    1990 ROP inventory less
                     VOC Inventory for 1999.    emissions eliminated
                                                through 1999 by Tier 0
                                                FMVCP/Phase 2 RVP.
8.................  Fleet Turnover Correction  Row 2 minus Row 7.
                     (FTC) for 1999.
9.................  Required ROP VOC           ROP Percentage (0.0 to
                     Reduction for 1999.        0.09) times Row 7.
11................  Adjusted 1990 Base Year    1990 ROP inventory less
                     Inventory for 2002.        emissions eliminated
                                                through 2002 by Tier 0
                                                FM VCP/Phase 2 RVP.
12................  FTC for 2002.............  Row 7 minus Row 11.
13................  Required ROP Reduction     ROP Percentage (0.0 to
                     for 2002.                  0.09) times Row 11.
14................  2002 VOC Target Level....  Row 1 minus Rows 3, 4, 5,
                                                8, 9, 12 and 13.
15................  Adjusted 1990 Base Year    1990 ROP inventory less
                     VOC Inventory for 2005.    emissions eliminated
                                                through 2005 by Tier 0
                                                FMVCP/Phase 2 RVP.
16................  FTC for 2005.............  Row 15 minus Row 11.
17................  Required ROP VOC           ROP Percentage (0.0 to
                     Reduction for 2005.        0.09) times Row 15.
18................  2005 VOC Target Level....  Row 14 minus Rows 16 and
                                                17.
------------------------------------------------------------------------


  Table 7B.--General Process for Computing 2002 and 2005 TOP NOX Target
                                 Levels
------------------------------------------------------------------------
        Row                Description                How computed
------------------------------------------------------------------------
1.................  1990 NOX ROP Inventory...  1990 base year inventory
                                                less biogenic emissions
                                                and sources outside the
                                                nonattainment area.
7.................  Adjusted 1990 Base Year    1990 ROP inventory less
                     NOX Inventory for 1999.    emissions eliminated
                                                through 1999 by Tier 0
                                                FMCVP/Phase 2 RVP.
8.................  Fleet Turnover Correction  Row 1 minus Row 7.
                     (FTC) for 1999.
9.................  Required ROP NOX           ROP Percentage (0.0 to
                     Reduction for 1999.        0.09) times Tow 7.

[[Page 2092]]

 
11................  Adjusted 1990 Base Year    1990 ROP inventory less
                     NOX Inventory for 2002.    emissions eliminated
                                                through 2002 by Tier 0
                                                FMCVP/Phase 2 RVP.
12................  FTC for 2002.............  Row 7 minus Row 11.
13................  Required ROP Reduction     ROP Percentage (0.0 to
                     for 2002.                  0.9) times Tow 11.
14................  2002 NOX Target Level....  Row 1 minus Rows 8, 9, 12
                                                and 13.
15................  Adjusted 1990 Base Year    1990 ROP inventory less
                     Inventory for 2005.        emissions eliminated
                                                through 2005 by Tier 0
                                                FMVCP/Phase 2 RVP.
16................  FTC for 2005.............  Row 15 minus Tow 11.
17................  Required ROP NOX           ROP Percentage (0.0 to
                     Reduction for 2005.        0.9) times Row 15.
18................  2005 NOX Target Level....  Row 14 minus Rows 16 and
                                                17.
------------------------------------------------------------------------

2. How Were the 3 Percent per Year Reductions for the Post 1999-2005 
ROP Plan Calculated?

                Table 8.--2002 and 2005 ROP Target Levels
------------------------------------------------------------------------
                                                          VOC      NOX
          Row                     Description            tons/    tons/
                                                          day      day
------------------------------------------------------------------------
1.....................  1990 VOC ROP Inventory........    578.7    869.3
2.....................  Adjusted 1990 Base Year VOC       455.5    N/R *
                         Inventory for 1996.
3.....................  VOC Emissions eliminated          123.2      N/R
                         through 1996 by Tier 0 FMVCP/
                         Phase 2 RVP Programs.
4.....................  VOC Reductions from RACT Rule       0.1    N/A *
                         Corrections.
5.....................  Required 15 Percent VOC            68.3      N/R
                         Reduction.
7.....................  Adjusted 1990 Base Year           433.7    778.5
                         Inventory for 1999.
8.....................  Fleet Turnover Correction          21.8     90.8
                         (FTC) for 1999.
9.....................  Required ROP Reduction for          4.3     62.3
                         1999--1% VOC & 8% NOX.
11....................  Adjusted 1990 Base Year           420.5    756.7
                         Inventory for 2002.
12....................  FTC for 2002..................     13.2     21.8
13....................  Required ROP Reduction for          0.0     68.1
                         2002--0 % VOC and 9 % NOX.
14....................  2002 Target Level.............    347.7    626.3
15....................  Adjusted 1990 Base Year VOC       412.1    735.6
                         Inventory for 2005.
16....................  FTC for 2005..................      8.4     21.1
17....................  Required ROP VOC Reduction for      0.0     66.2
                         2005--0% VOC & 9 % NOX.
18....................  2005 Target Level.............    339.3   539.0
------------------------------------------------------------------------
* N/R means not required, and N/A means not applicable.

3. What Control Strategies Are the District, Maryland and Virginia 
Including in the Post 1999-2005 ROP Plan?
    The post 1999-2005 ROP plan describes the emission reduction 
credits that the Washington area jurisdictions are claiming toward 
their 9 percent reduction requirements. We can credit reductions for 
the ROP requirement for rules promulgated by the EPA and for state 
measures we have approved as SIP revisions. The control measures used 
in the post 1999-2005 ROP plan for the Washington area are listed in 
Tables 9 and 10 of this document and described in more detail in the 
TSD for this rulemaking. The control measures include all those in the 
post 1996-1999 portion of the plan, plus additional measures. Table 9 
lists those measures credited in the 1996-1999 ROP that continue to 
produce benefits in the post-1999 period. There are several reasons why 
a post 1996-1999 measure can also be credited in the post-1999 period. 
First, the uncontrolled baseline is computed from the1990 levels, not 
the 1999 levels. Thus, if a source category emits at a rate of one ton 
of pollutant per 10 units of activity (e.g., VMT or millions of British 
Thermal Units heat input) and had a 1990 activity level of 100 units, 
the source would have baseline emissions of 10 tons. If the source 
categories activity level was projected to grow to 130 units by 1999 
and 140 units by 2002, the projected uncontrolled emissions would be 13 
tons in 1999 and 14 tons in 2002. If this source category was 
controlled at a 50 percent control, that is, required to emit at a rate 
of a half ton per unit of activity by some date before 1999, then the 
projected, controlled emissions would be 6.5 tons in 1999 and 7 tons in 
2002. The reductions would be the projected uncontrolled emissions 
minus the controlled emissions. The reductions would be 6.5 tons for 
1999 and 7 tons for 2002.
    Another way a measure included in the post 1996-1999 ROP plan can 
produce additional emission reduction benefits after 1999 is when 
increasing portions of the source category are subject to more 
stringent standards over time. This is true of mobile source controls 
under the FMVCP and NLEV programs and for EPA's nonroad mobile source 
standards. As time passes, more and more of the source category is made 
of newer vehicles or engines that were manufactured to meet the most 
recent emission standards. For instance, in the case of on-road mobile 
sources, the emission factor computed using the MOBILE emission factor 
model declines for future years. Once again, reductions are computed by 
subtracting a future controlled projected emissions from uncontrolled 
emissions. The future year uncontrolled emissions assume only the FMVCP 
in place as of 1990 (termed ``Tier 0 FMVCP''), the ``Phase 2 RVP'' 
standards issued mandated for 1992, and other programs in place in 
1990.

[[Page 2093]]

The future year controlled programs include all the creditable programs 
issued or adopted since 1990 such as the Tier 1 and 2 FMVCP 
standards,\9\ federal heavy duty on-road diesel engine standards, 
reformulated gasoline, the enhanced inspection maintenance programs, 
and the National Low Emission Vehicle program. Because the same future 
year VMT is used for both the projected uncontrolled and controlled 
cases, the reductions are net of growth in VMT.
---------------------------------------------------------------------------

    \9\ The MOBILE model automatically keeps track of when which 
program is required and thus does not compute any credit for Tier 2 
for the 2002 year but will for a 2005 year which is after the 2004 
model year.

  Table 9.--VOC and NOX Emission Reductions Eligible for Credit in the
 Post 1999-2005 ROP Plan From Measures in the 1996-1999 ROP Plan for the
                             Washington Area
                               [Tons/day]
------------------------------------------------------------------------
                                 2002 reductions       2005 reductions
           Measure           -------------------------------------------
                                 VOC        NOX        VOC        NOX
------------------------------------------------------------------------
Tiers 1 & 2 FMVCP,                 56.0       44.9       80.5       85.8
 Reformulated Gasoline (On-
 road), Federal Heavy Duty
 Diesel Engines rule, NLEV &
 Enhanced Inspection and
 Maintenance................
Reformulated Gasoline               2.7  .........        2.9
 (Nonroad/Off-road).........
Surface Cleaning/Decreasing.        4.1  .........        4.4
Autobody Refinishing........        9.3  .........        9.8
AIM.........................       16.7  .........       17.5
Consumer Products...........        4.1  .........        4.3
Seasonal Open Burning Ban...        7.4        1.6        7.4        1.6
Graphic Arts................        3.8  .........        4.0
Landfill Regulations........        2.4  .........        2.5
Non-CTG RACT to 50 TPD--MD/         1.5  .........        1.5
 VA/DC......................
Stage I Enhancement.........        1.5  .........        1.6
Expanded State Point Source         2.4  .........        2.5
 Regulation to 25 TPD.......
Stage II Vapor Recovery            15.1  .........       15.1
 Nozzles....................
RFG refueling benefits......        2.6  .........        2.3
Non-road Gasoline Engines          22.2  .........       26.6
 Rule.......................
Non-road Diesel Engines.....  .........       14.9  .........       22.1
State NOX RACT/beyond RACT..  .........      203.8  .........      279.4
                             ------------
    Total Creditable              151.8      265.2      182.9      388.9
     Reductions.............
------------------------------------------------------------------------

    The post 1999-2005 ROP plan for the Washington area also includes 
additional emission reduction measures beyond those included in the 
post 1996-1999 ROP plan. All the States have adopted limits on certain 
architectural and industrial maintenance (AIM) coatings that are more 
stringent than the limits required under the Federal regulations for 
AIM coatings. The post 1999-2005 ROP plan also includes Virginia's rule 
for solvent cleaning operations which is based on the Federal maximum 
achievable control technology (MACT) standard for chlorinated solvent 
vapor degreasers. The States each have issued rules that regulate VOC 
emissions from portable fuel containers by setting standards for the 
design and construction of these containers.
    The post 1999-2005 ROP plan also relies upon VOC emission 
reductions from emissions standards promulgated by EPA for several 
categories of nonroad mobile sources. These categories are:
    (a) Spark ignition outboard, personal water craft and jetboat 
engines (OB/PWC) and stern drive and inboard engines;
    (b) Large spark-ignition engines such as those used in forklifts 
and airport ground-service equipment;
    (c) Recreational vehicles using spark-ignition engines such as off-
highway motorcycles, all-terrain vehicles, and snowmobiles; and
    (d) Recreational marine diesel engines.
    The 1999-2005 ROP plan also relies upon additional TCMs which are 
strategies to both reduce VMT and decrease the amount of emissions per 
VMT, and are considered an essential element of control strategies for 
nonattainment areas.
    The post 1999-2005 ROP plan also relies upon certain voluntary non-
regulatory measures as an alternative to traditional ``command and 
control'' regulatory approaches. Voluntary emission reduction program 
measures have the potential to encourage new, untried and cost-
effective approaches to reduce emissions. Under EPA's guidance, 
voluntary emission reduction program measures can be approved if the 
State retains enforceable responsibility for the amount of emission 
reductions associated with the voluntary measures and meets certain 
other obligations.
    The post 1999-2005 ROP plan's control measures for the Washington 
area are listed in Table 10 of this document and described in more 
detail in the TSD for this rulemaking.

[[Page 2094]]



   Table 10.--VOC and NOX Emission Reductions From Measures in the 1999-2005 ROP Plan for the Washington Area
                                                   [Tons/day]
----------------------------------------------------------------------------------------------------------------
                                                                         2002 Reductions       2005 Reductions
        Line                         Measure                -------------------------------------------
                                                                         VOC        NOX        VOC        NOX
----------------------------------------------------------------------------------------------------------------
1............................  Measures in 1996-1999 ROP plan (from       151.8      265.2      182.9      388.9
                                Table 9).
2............................  State Portable Fuel Container Rules--        0.9  .........        2.4
                                MD/VA.
3............................  State Solvent Cleaning Rules.........  .........  .........        9.0
4............................  EPA's Non-road Engines and vehicles    .........        0.6  .........        0.5
                                rule--Large Spark Ignition Engine
                                Rule.
5............................  EPA's Non-road Engines and vehicles          1.3  .........        3.1
                                rule--Spark Ignition Marine Engines.
6............................  TCMs in 2004 SIP Revisions...........        0.3        0.5        0.3        0.7
7............................  State AIM Rules......................  .........  .........       12.3
8............................  Voluntary Measures...................  .........  .........       3.19        .19
9............................  State Portable Fuel Container Rules--  .........  .........        0.2
                                DC.
                              ----------------------------------------
    Total....................  Reductions...........................      154.3      266.3     213.39     390.29
----------------------------------------------------------------------------------------------------------------

4. What Are the Creditable Reductions in the Post 1999-2005 ROP Plan?
    EPA can only credit reductions in a ROP plan required by section 
182(c)(2) if those reductions meet the creditability requirements of 
sections 182(b)(1)(C) and (D) of the Act. One restriction for 
creditability is that the reduction has to result from a rule 
promulgated by EPA, from a permit issued pursuant to Title V of the 
Act, or from a rule that EPA has approved into the applicable SIP(s) 
(See 302(q) of the Act).
    All of the reductions from national rules (all those in Table 9 as 
well as those listed on lines 4 and 5 of Table 10) for which the States 
seek credit in their post 1996-1999 and post 1999-2005 ROP plans have 
been promulgated by EPA. All of the reductions from State rules 
included in Table 9 and in lines 2 and 3 of Table 10 for which the 
States seek credit in their post 1996-1999 and post 1999-2005 ROP plans 
have been approved into the applicable SIP.
    As for the rest of the State measures, EPA can only credit the ROP 
plan with reductions from a measure approved into the applicable SIP, 
and, hence, can only issue a final rule approving the ROP plan after or 
concurrently with our approval of state measures projected to generate 
sufficient reductions to demonstrate ROP. However, EPA can propose 
approval of an ROP plan if we have proposed approval of enough measures 
to generate the reductions needed to demonstrate ROP. EPA has already 
proposed approval for all the measures listed in Table 10. The TCMs in 
the 1996-1999 ROP plan and the 2004 SIP revisions are being proposed 
for approval in this notice of proposed rulemaking. The status of each 
of the remaining items is as follows:
    EPA proposed approval of the Maryland and Virginia State AIM rules 
on May 25, 2004 (69 FR 29674) and June 7, 2004 (69 FR 31780), 
respectively. For the measures listed in Table 11, a notice of proposed 
rulemaking (NPR) has been published in the Federal Register.

                                         Table 11.--NPR Signature Dates
----------------------------------------------------------------------------------------------------------------
                                               Line number in
                   Measure                         table 9                    Date/Citation of NPR
----------------------------------------------------------------------------------------------------------------
State AIM Rule--DC...........................               7  12/27/04 (69 FR 77149).
Voluntary Measures...........................               8  12/23/04 (69 FR 76889).
State Portable Fuel Container Rules--DC......               9  12/29/04 (69 FR 77970).
----------------------------------------------------------------------------------------------------------------

5. How Does the Post 1999-2005 ROP Plan Demonstrate ROP?
    The post 1999-2005 plan demonstrates that the Washington area meets 
the post 1999-2005 ROP requirement of the Act by showing that the ROP 
plan will generate sufficient emission reductions to reduce the 
projected uncontrolled 2002 or 2005 emissions to less than or equal to 
a target level of emissions for that year which represents a 9 percent 
reduction in baseline emissions. The 2002 and 2005 NOX 
target levels are 626.3 and 539.0 tons/day of NOX, 
respectively. (See Table 8 of this document.) These target levels each 
represent a 9 percent reduction in baseline NOX emissions.
    The 2002 and 2005 uncontrolled NOX emissions are 880.1 
and 880.8 tons/day, respectively. Thus, the required NOX 
reductions for 2002 are 880.1 minus the target level of 626.3, that is, 
253.8 tons/day of NOX emissions. The required NOX 
reductions for 2005 are 880.8 minus the target level of 539.0, that is, 
341.8 tons/day of NOX emissions. The measures listed in 
Table 9 achieve sufficient reductions to enable the area to achieve the 
2002 and 2005 NOX target levels. As discussed in section IV. 
E. of this document, these measures are fully creditable towards ROP.
    While not a factor in our evaluation for approval, EPA notes that 
the post 1999-2005 ROP plan also demonstrates reasonable further 
progress for VOC emissions for 2002 and 2005 in a more generic manner 
pursuant to section 172(c)(2) of the Act. This is evidenced by the 
numerous VOC reduction measures in the plan. With the exception of the 
voluntary measures (the approval of which has been proposed in a 
separate proposed rulemaking) and the TCMs (the approval of which is 
also proposed in this document), the bulk of these measures are part of 
the measures identified in the contingency plan to address the failure 
to attain by November 15, 1999. As will be discussed in succeeding 
sections of this document, the approval of the contingency measure plan 
and the ROP demonstration required by section 182(c)(2) is contingent 
upon approval of these measures. The attainment demonstration relies on 
VOC as well as NOX emission reductions in both the 
photochemical modeling and weight of

[[Page 2095]]

evidence portions of the demonstration. Therefore, reductions in VOC 
emissions constitute progress towards attainment. However, EPA believes 
that the average 3 percent per year ROP requirement of section 
182(c)(2) has been demonstrated by NOX reductions alone.
    EPA has approved ROP plans under section 182(c)(2) that relied 
solely upon NOX reductions without regard to VOC reductions. 
See 69 FR 42880, July 19, 2004 (proposed at 69 FR 25348, May 6, 2004) 
and 64 FR 13348, March 18, 1999 (proposed by 63 FR 45172, August 25, 
1998).
    EPA concludes that the post 1999-2005 ROP plan in the 2004 SIP 
revisions does demonstrate ROP of at least a nine (9) percent reduction 
in NOX baseline emissions in the Washington area for each of 
the 1999-2002 and 2002-2005 periods. Therefore, EPA believes that we 
can approve the post 1999-2005 ROP plans submitted by the States for 
the Washington area on the basis of the NOX reductions 
alone.

F. Do the Post 1996-1999 and Post 1999-2005 ROP Plans for the 
Washington Area Meet the Requirements for NOX Substitution?

1. Relationship to the Attainment Demonstration
    In order to determine whether the post 1996-1999 and post 1999-2005 
ROP plans satisfy EPA's guidance and the Act regarding NOX 
substitution, we had to examine and evaluate certain aspects of the 
attainment demonstration plan that the States have also submitted for 
the Washington area. For purposes of proposing approval of the post 
1996-1999 and post 1999-2005 ROP plans, EPA's review of the attainment 
demonstration was limited to whether the photochemical grid modeling 
showed that NOX reductions are useful in reducing ozone 
concentrations, that the ROP plan substitutes no more NOX 
reductions than assumed in the attainment demonstration, and whether 
the attainment demonstration attained within time periods mandated by 
the Act. EPA also examined the attainment demonstration to ensure that 
the attainment demonstration did not rely upon the measures identified 
in the contingency plan in the event the Washington area fails to 
attain by November 15, 2005 or fails to achieve post 1996 ROP or a post 
1996 ROP milestone. As discussed in Section V. of this document, the 
continency plan relies upon early implementation of contingency 
measures. EPA had to ensure that the attainment demonstration did not 
rely upon these measures in order to propose approval of the 
contingency plan for failure to attain by November 15, 2005. The 
attainment demonstration SIPs submitted by the States for the 
Washington area are the subject of a separate rulemaking that does 
address all of the required elements.
    EPA concludes that the 2004 SIP revisions demonstrate that the 
relative reduction in ozone precursor emissions from the entire 
inventory is greater than that used in the photochemical grid modeling 
for the Washington area and that the weight of evidence shows that the 
measures creditable towards the 2005 milestone year will result in 
attainment by no later than November 15, 2005. Furthermore, we have 
determined that this demonstration does not depend upon any measures in 
the contingency measure plan, and that the States have used the latest 
planning assumptions for emissions estimates for all source categories. 
EPA also concludes that the attainment demonstration modeling shows 
that NOX reductions are beneficial towards reducing ozone in 
the Washington area and that with all the measures in the ROP plan the 
Washington area will attain by November 15, 2005. EPA further finds 
that the post 1996-1999 and post 1999-2005 ROP plans substitute fewer 
NOX reductions than those needed for attainment by November 
15, 2005. EPA, therefore, concludes that the post 1996-1999 and post 
1999-2005 ROP plans for the Washington area meet EPA's guidance and the 
Act for NOX substitution, and can be approved. A detailed 
description of our analysis of the local modeling and weight of 
evidence and its relationship to NOX substitution is 
provided in the TSD prepared in support of this rulemaking action. That 
TSD also includes our detailed evaluation of how the post 1996-1999 and 
post 1999-2005 ROP plans satisfy the Act's and our guidance for 
NOX substitution. A copy of the TSD is available in the E-
Docket for this rulemaking and upon request from the EPA Regional 
Office listed in the Addresses section of this document.

V. Contingency Measure Plan

    Sections 172(c)(9) and 182(c)(9) of the Act require that SIPs 
contain additional contingency measures that will take effect without 
further action by the state or EPA if an area fails to attain the 
standard by the applicable date, or fails to meet ROP deadlines. The 
Act does not specify how many contingency measures are needed or the 
magnitude of emissions reductions that must be provided by these 
measures. However, EPA provided our initial guidance interpreting the 
contingency measure requirements of 172(c)(9) and 182(c)(9) in the 
April 16, 1992, General Preamble for Implementation of the Act (See 57 
FR 13498 at 13510, April 16, 1992). Our interpretation is based upon 
the language in sections 1872(c)(9) and 1829(c)(9) in conjunction with 
the control measures requirements of sections 172(c), 182(b) and 
182(c)(2)(B), the reclassification and failure to attain provisions of 
section 181(b) and other provisions. In the April 16, 1992 initial 
guidance EPA indicated that states with moderate and above ozone 
nonattainment areas should include sufficient contingency measures so 
that, upon implementation of such measures, additional emission 
reductions of up to 3 percent of the emissions in the adjusted base 
year inventory (or such lesser percentage that will cure the identified 
failure) would be achieved in the year following the year in which the 
failure has been identified. The State must show that the contingency 
measures can be implemented with minimal further action on their part 
and with no additional rulemaking actions. In subsequent guidance, EPA 
opined that contingency measures could be implemented early, that is, 
be implemented prior to the milestone or attainment date.\10\
---------------------------------------------------------------------------

    \10\ See Memorandum dated August 13, 1993, From G.T. Helms, 
Chief, Ozone/Carbon Monoxide Programs Branch, to Air Branch Chief, 
Regions I-X, entitled ``Early Implementation of Contingency Measures 
for Ozone and Carbon Monoxide (CO) Nonattainment Areas.''
---------------------------------------------------------------------------

A. What Are the Contingency Measures Implemented To Address the Failure 
To Attain by November 15, 1999 and for the 1996-1999 ROP Plan?

    The 2004 SIP revisions identify two groups of measures that have 
been implemented since November 15, 1999. The first of these measures 
is phase 2 of the RFG program. By opting into the reformulated gasoline 
program, the States ensured that the further benefits of the program 
would be implemented on January 1, 2000. Such implementation would be 
earlier than what would have occurred had RFG been implemented in the 
area due to reclassification. Under section 181 of the Act, EPA has no 
enforceable duty to reclassify an area sooner than 6 months after the 
attainment date.
    EPA bases the determination of failure to attain upon air quality 
monitoring data and thus must have ozone season data for the attainment 
year in hand. States are required to report air quality data at least 
quarterly and each report is due no later than 90 days after the end of 
the quarterly reporting period (40

[[Page 2096]]

CFR 58.35). Thus the earliest EPA would be assured to have data for the 
first portion (April-June) of the Washington Area's April to October 
ozone season would have been September 1999. Under section 211(k) of 
the Act, the RFG program becomes effective in an area one year after 
the effective date of the reclassification to severe. At the earliest, 
the RFG program would have been required in the fall of 2000, and at 
the latest spring of 2001. By opting into the RFG program, the 
Washington Area States assured that the additional benefits of the 
second phase of the RFP program would be implemented without any 
further action by the States or EPA on January 1, 2000. EPA believes it 
is illogical to penalize nonattainment areas that are taking extra 
steps, such as implementing contingency measures prior to a deadline, 
to comport with the CAA's mandate that such states achieve NAAQS 
compliance as ``expeditiously as practicable.'' EPA has applied this 
guideline to situations where the reductions occurred prior to the 
attainment deadline. See, e.g., 67 FR 61786, October 2, 2002.
    The second phase of the RFG program was implemented prior to EPA's 
January 24, 2003 rule which determined that the Washington area failed 
to attain the 1-hour ozone NAAQS by November 15, 1999 and which 
reclassified it to severe nonattainment. EPA believes, however, the 
fact that the measure was implemented prior to the effective date of 
the reclassification should not render it ineligible for use as a 
contingency measure. After all, if a measure implemented prior to the 
attainment date can count towards the failure-to-attain contingency 
requirement, then surely this measure, which was implemented shortly 
after the attainment deadline, can count towards the failure-to-attain 
by November 15, 1999 contingency requirement.
    The second group of measures are additional measures implemented 
after November 15, 1999, but before November 15, 2005. These additional 
measures are the States AIM coatings, portable fuel container (PFC) and 
solvent cleaning rules discussed in Section IV. E. of this document. A 
summary of the expected benefits from these measures is presented in 
Table 12.

                                         Table 12.--Contingency Measures
----------------------------------------------------------------------------------------------------------------
                                                   VOC
                  Measure                      reductions                    Implementation date
                                               (tons/day)
----------------------------------------------------------------------------------------------------------------
Solvent Cleaning Operations--VA............             9.0  January 1, 2005.
Portable fuel containers rule--MD..........             1.7  January 1, 2004.
Portable fuel containers rule--VA..........             0.7  January 1, 2005.
AIM coatings rule--DC......................             1.1  January 1, 2005.
AIM coatings rule--MD......................             6.2  January 1, 2005.
AIM coatings rule--VA......................             5.0  January 1, 2005.
                                            -----------------
    Total..................................            23.7
                                            =================
3 percent of 1999 baseline emissions.......            13.0  3 percent of 433.7 TPD VOC.
----------------------------------------------------------------------------------------------------------------

    While these additional measures were not adopted as contingency 
measures before the Washington area was reclassified to severe 
nonattainment (or before November 15, 1999) and then implemented to 
take effect without any further action by the States or EPA after the 
area failed to attain, EPA believes that the adoption of these 
additional measures also fulfill the contingency measure requirement 
for a serious area. The SIPs applicable to the Washington area did not 
identify contingency measures prior to the reclassification, and, the 
ultimate remedy for such a defect would be to implement additional 
measures over and above those in the applicable SIP. These measures 
were adopted and made enforceable after the March 1, 2003 effective 
date that of EPA final rule reclassifying the Washington area to severe 
nonattainment for failing to attain the ozone NAAQS. (See, 68 FR 3410, 
January 24, 2003.) The adopted rules implementing the measures require 
compliance before the severe area attainment date of November 15, 2005.
    In the General Preamble (57 FR 13498 at 13510, April 16, 1992), we 
stated that the contingency measure would need to achieve reductions in 
the year following the year in which the failure has been identified. 
In the January 24, 2003 final rule, EPA issued the determination that 
the Washington area had failed to attain by November 15, 1999. Thus, 
under the guidance in the General Preamble the measures should have 
been implemented no later than one year from March 1, 2003, the 
effective date of the January 24, 2003 final rule. However, the States 
have adopted the additional rules to fulfill the contingency measure 
requirement, these measures have been implemented on the dates shown in 
Table 12, and the measures have been submitted as SIP revisions. EPA 
believes that it would serve no purpose to disapprove the contingency 
measure plan simply because the measures were not implemented by March 
1, 2004, since the remedy would require yet another rule adoption 
process which cannot cure the problem of having missed a deadline that 
is nearly two years in the past.
    As discussed in Section IV. E. of this document, EPA has not yet 
approved all these contingency measures. The States have calculated the 
amount of VOC or NOX reductions that are required to meet 
the 3 percent contingency requirement relative to the 1999 adjusted 
base year inventory. The amount of VOC reduction needed is 13.0 tons 
per day (433.7 x 0.03). EPA has already approved the first three 
measures listed in Table 12 into the Maryland or Virginia SIP. The 
reductions from these three measures total 11.4 of the needed 13 tons 
per day. However, we can propose approval of the contingency plan if 
EPA has proposed approval of the measures in that plan. As indicated in 
Section IV. E. of this document, EPA has already proposed approval of 
all these measures.
    EPA is proposing to approve the contingency plan as containing 
adopted and implemented measures to address the Washington area's 
failure to attain by November 15, 1999 and for the 1996-1999 ROP plan. 
Any final action to approve the contingency plan can only occur 
concurrently with or after approval of all the measures as SIP 
revisions.

[[Page 2097]]

B. What Measures Are in the Contingency Measures Plan for the Post 
1999-2005 ROP Plans and for Failure To Attain by November 15, 2005?

1. Measures in the Plan
    The States have identified a number of fully adopted measures which 
can be implemented with minimal further action on their part and with 
no additional rulemaking actions to fill the contingency plan in the 
event the Washington area has a failure to make ROP or fails to attain 
by November 15, 2005. These measures include:
    (a) The District's rule for solvent cleaning operations rules which 
are based on the Federal maximum achievable control technology (MACT) 
standard for chlorinated solvent vapor degreasers and thus require 
higher levels of technology than required previous District 
requirements;
    (b) The District's and Maryland's rules for consumer products that 
set more stringent limits than the otherwise applicable Federal rules;
    (c) The District's and Virginia's rules covering refinishing 
operations of motor vehicles. These rules set more stringent VOC 
control standards for these operations than otherwise applicable 
Federal regulations. The main difference in the state rules versus the 
federal rule is that the federal rule regulates only the VOC content of 
the repair coatings whereas the state rules also require the use of 
high transfer-efficiency painting methods (e.g., high volume low 
pressure spray guns), and controls on emissions from equipment (e.g., 
spray gun) cleaning, housekeeping activities (e.g., use of sealed 
containers for clean-up rags), and operator training; and
    (d) Post 2005 reductions from the portable fuel containers rules in 
all three States. The reductions from Virginia's, Maryland's and the 
District's rules are credited towards the ROP and attainment plans only 
to the extent the measure produces benefits by January 1, 2005 and 
November 15, 2005. The measure will accrue additional benefits after 
November 15, 2005 as additional old containers are replaced by ones 
meeting the new requirements. These additional benefits are credited 
towards the contingency plan.
2. Early Implementation Schedule
    The measures in the contingency measure plan will be implemented 
upon a fixed schedule whether or not EPA issued a finding of failure 
that the Washington area failed achieve a post 1999 ROP milestone or 
fails to attain by November 15, 2005. All of the rules except 
Maryland's portable fuel containers regulation will take effect January 
1, 2005. Maryland's portable fuel containers regulation took effect 
January 1, 2003. Thus, all of the rules can be implemented without 
further action by the State or EPA.
    In guidance issued in 1993, we allow the use of surplus reductions 
that have already been achieved before the failure has been identified 
to serve as contingency measures in the year after the failure for 
attainment and ROP plans. If an area then fails to meet a milestone 
which triggers the implementation of contingency measures, the state 
would have one year to backfill the contingency measure. (See 57 FR 
13498, 13511, April 16, 1992).
    The States have not used the VOC reductions on which the 
contingency measure plan relies in either the attainment demonstration 
or post 1996-1999 and post 1999-2005 ROP plans. The attainment 
demonstration relies upon a total of over 210 TPD reduction in VOC 
emissions. Given that the contingency measures are about 6 percent of 
the total number of reductions and given that the implementation date 
of January 1, 2005, EPA believes that these contingency measures are 
not reasonably available control measures (RACM) because they would not 
advance the attainment date from the 2005 ozone season to the 2004 
ozone season. Therefore, the early implemented contingency measures are 
surplus to the attainment demonstration. A summary of the expected 
benefits from these measures is presented in Table 13.

                                         Table 13.--Contingency Measures
----------------------------------------------------------------------------------------------------------------
                                                   VOC
                  Measure                      Reductions                 Implementation date/remark
                                               (tons/day)
----------------------------------------------------------------------------------------------------------------
Solvent Cleaning Operations--DC............             2.7  January 1, 2005.
Motor Vehicle Refinishing--DC..............             0.6  January 1, 2005.
Motor Vehicle Refinishing--VA..............             2.0  January 1, 2005.
Consumer Products--MD......................             2.9  January 1, 2005.
Consumer Products--DC......................             1.1  January 1, 2005.
Portable fuel containers rule--DC..........             0.3  Post 2005 benefits only.
Portable fuel containers rule--MD..........             1.5  Post 2005 benefits only.
Portable fuel containers rule--VA..........             1.7  Post 2005 benefits only.
                                            -----------------
        Total..............................            12.8
                                            =================
3 percent of 2002 baseline emissions.......            12.6  3 percent of 420.5 TPD VOC
----------------------------------------------------------------------------------------------------------------

3. Approval Status
    EPA can only approve the contingency plan after or concurrently 
with EPA's approval of any State contingency measures rules into the 
applicable SIP. However, we can propose approval of the contingency 
measure plan once EPA has proposed approval of the state contingency 
measures into the applicable SIP.
    EPA has already published final or proposed rules in the Federal 
Register to approve all of the measures in the contingency plan for the 
Washington area. The status of each measure in the contingency plan is 
briefly described in the following table.

             Table 14.--Contingency Measure Approval Status
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Measures Approved into SIPs:
    Consumer Products--MD..............  Approved--12/09/03, 68 FR
                                          68523.
    State Portable Fuel Containers--VA.  Approved--07/08/04, 69 FR
                                          31893.

[[Page 2098]]

 
    State Portable Fuel Containers--MD.  Approved--06/29/04, 69 FR
                                          38848.
    Motor Vehicle Refinishing--VA......  Approved--06/24/04, 69 FR
                                          35253.
Measures Proposed for Approval into
 SIPs:
    Motor Vehicle Refinishing--DC......  12/23/04, 69 FR 77688.
    Solvent Cleaning--DC...............  12/29/04, 69 FR 77971.
    Consumer Products--DC..............  12/28/04, 69 FR 77688.
    State Portable Fuel Container        12/29/04, 69 FR 77970.
     Rules--DC.
------------------------------------------------------------------------

4. Conclusion
    EPA is proposing to approve the contingency plan as containing 
adopted and implemented measures to address the contingency measure 
requirements in the event the Washington area fails to attain the 1-
hour ozone NAAQS by November 15, 2005 and for any future failures to 
achieve ROP or a ROP milestone. Any final approval is contingent upon 
approval of sufficient State measures to achieve the 3 percent of 
baseline emission requirement. To have sufficient measures to achieve 
the 3 percent of baseline emission requirement, EPA will have 
promulgate final rules approving all of the measures listed in Tables 
12 and 13.

VI. Vehicle Miles Traveled (VMT) Offset SIP and Transportation Control 
Measures (TCMs)

A. What Is a VMT Offset SIP?

    Section 182(d)(1)(A) of the Act requires states containing ozone 
nonattainment areas classified as severe, pursuant to section 181(a) of 
the Act, to adopt transportation control strategies and TCMs to offset 
increases in emissions resulting from growth in VMT or numbers of 
vehicle trips and to obtain reductions in motor vehicle emissions as 
necessary (in combination with other emission reduction requirements) 
to comply with the Act's ROP milestones and attainment demonstration 
requirements. Our interpretation of section 182(d)(1)(A) is discussed 
in the April 16, 1992, General Preamble (57 FR 13498). Section 
182(d)(1)(A) of the Act specifies submission of the VMT Offset SIP by 
November 15, 1992, for any severe and above ozone nonattainment area. 
However, EPA has concluded that section 182(i) of the Act authorizes 
EPA to adjust applicable deadlines (other than attainment dates) to the 
extent such adjustment is necessary or appropriate to assure 
consistency among the required submissions of new requirements 
applicable to an area which has been reclassified. In the final rule 
reclassifying the Washington area to severe nonattainment, EPA 
established the submission deadline of March 1, 2004 for the section 
182(d)(1) SIP revision as EPA set for all the other new SIP revision 
elements applicable to reclassified area. See 68 FR 3410 at 3422, 
January 24, 2004.

B. EPA's Analysis of VMT Offset SIP in the 2004 SIP Revisions

    In the ``General Preamble'' EPA explained how States are to 
demonstrate that the VMT requirement is satisfied. Sufficient measures 
must be adopted so projected motor vehicle VOC emissions will stay 
beneath a ``ceiling level'' established through modeling of mandated 
transportation-related controls. When growth in VMT and vehicle trips 
would otherwise cause a motor vehicle emissions upturn, this upturn 
must be prevented, or offset, by TCMs. If projected total motor vehicle 
emissions during the ozone season in one year are not higher than 
during the previous ozone season due to the control measures in the 
SIP, the VMT Offset requirement is satisfied. In order to make these 
projections, a curve of vehicle emissions is modeled to represent the 
effects of required reductions from the following mandatory programs: 
an enhanced performance standard vehicle I/M program, Phase 2 RVP, RFG, 
and the FMVCP. (See 57 FR 13498 at 13521-13523, April 16, 1992.) As 
described in the General Preamble, the purpose of section 182(d)(1)(A) 
of the Act is to prevent growth in motor vehicle emissions from 
negating the emissions reduction benefits of the federally mandated 
programs in the Act. EPA believes it is appropriate to interpret the 
VMT Offset SIP provisions of the Act to account for how States can 
practicably comply with each of the provision's elements.
    A detailed description of the States' VMT offset SIPs for the 
Washington area and our evaluation of how those SIPs satisfy the 
applicable requirements of the Act and EPA's guidance is provided in 
the TSD prepared in support of this rulemaking. That TSD is available 
in the E-Docket of this rulemaking and from the EPA Regional Office 
listed in Addresses section of this document.
    The States' plans show, and EPA's evaluation confirms, that the 
modeled curve for the Washington area does not turn upward (indicating 
the control programs are offsetting increases in emission from growth 
in VMT). Therefore, no TCMs would be necessary to offset emissions from 
growth in VMT under section 182(d)(1)(A). However, the District, 
Maryland and Virginia have chosen to include certain TCMs as measures 
to help meet the ROP and attainment requirements.

C. What TCMs Are Part of the SIP?

    Typical TCMs included in the plans are bicycle racks on buses and 
at transit stations, park-and-ride lots, additional bus shelters, 
additional bicycle lanes, purchase of compressed natural gas buses to 
replace diesel fueled buses, and additional/improved side walks to 
encourage walking. The TCMs also include outfitting 866 buses with 
continuously regenerating filters and the use of ultra-low sulfur 
diesel fuel. The TCMs are described in more detail in Appendix H of the 
revised plan document, entitled, ``Revised State Implementation Plan 
(SIP) Revision, Phase I Attainment Plan for the Washington DC-MD-VA 
Nonattainment Area'' dated April 16, 1999 (``April 1999 Post-1996 
Plan''). This plan was submitted as a SIP revision on May 25, 1999, May 
20, 1999, and on May 25, 1999 by the District, Maryland and Virginia, 
respectively. Further TCMs in the February 19, 2004 plan, are described 
in section 7.5 and Appendix G of that document. The February 19, 2004 
plan was submitted as a SIP revision on February 24, 2004 by Maryland, 
and on February 25, 2004 by the District and Virginia.
    EPA concludes that the States have submitted sufficient TCMs to 
meet the requirement of section 182(d)(1)(A) of the Act. EPA is 
proposing to approve the VMT Offset SIP submitted by the States on the 
dates listed in Table 2 of this document.

[[Page 2099]]

VII. Motor Vehicle Emissions Budgets (MVEBs)

A. Background on Transportation Conformity

1. What Is Transportation Conformity?
    Transportation conformity is a 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 the CAA and our conformity rule, control strategy 
SIPs such as ROP plans and attainment demonstrations, and maintenance 
plan SIPs, must establish and identify MVEBs to ensure areas continue 
to demonstrate ROP and reach attainment. These MVEBs are ``ceilings'' 
for emissions from motor vehicles, and are used in conformity analyses 
to determine whether transportation plans and projects conform to the 
attainment, ROP, and maintenance SIPs. In order for transportation 
plans and projects to conform, estimated emissions from transportation 
plans and projects must not exceed the applicable MVEBs contained in 
attainment demonstration, ROP or maintenance plans.
3. Which Motor Vehicle Emissions Budgets Usually Apply?
    According to the transportation conformity rule, MVEBs in a 
submitted SIP may apply for conformity purposes even before we have 
approved the SIP, under certain circumstances. The MVEBs in a submitted 
SIP cannot be used before we have approved the SIP or until and unless 
we have found the MVEBs of the submitted SIP 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'' 
as amended by 69 FR 40004, July 1, 2004. (See 61 FR 36117, July 9, 
1996; 62 FR at 43783-43784, August 15, 1997; and 69 FR 40004 at 400038, 
July 1, 2004 for more details about the applicability of submitted and 
approved budgets.)

B. What Motor Vehicle Emissions Budgets Currently Apply in the 
Washington Area?

    As stated elsewhere in this document, EPA's approvals of the 1996-
1999 ROP plan and the earlier versions (those submitted during 1998 and 
2000) of the attainment demonstration SIP revisions were vacated by the 
court. Therefore, the MVEBs in these SIP revisions are not currently in 
the approved SIP. EPA had issued adequacy findings for the MVEBs in the 
post 1996-1999 ROP plan and the earlier versions of the attainment 
demonstration SIP revisions (those submitted during 1998 and 2000) 
prior to our January 3, 2001 final approval (66 FR 586) of those SIPs. 
(See 64 FR 43698, August 11, 1999, and 65 FR 36439, June 8, 2000.) Even 
though EPA issued findings of adequacy on these budgets, EPA has always 
interpreted the transportation conformity rule such that a final 
rulemaking action approving a control strategy or maintenance plan SIP 
renders any prior adequacy determination made for budgets related to 
that particular control strategy or maintenance plan SIP of no further 
force or effect. Instead, the final rulemaking on the SIPs governs 
which budgets apply for conformity purposes. We also interpret our 
transportation conformity rule to mean that once a SIP approval is 
vacated the prior adequacy determination on the vacated budgets is not 
resurrected.
    Therefore, the only MVEBs in the approved SIPs for the Washington 
area are those for VOC in the approved 15% ROP plan for 1996. (See 64 
FR 42629, August 5, 1999; 65 FR 44686, July 19, 2000; and 65 FR 59727, 
October 6, 2000.) However, on December 16, 2003 (68 FR 70012), EPA made 
a finding of adequacy for the 2005 ROP motor vehicle emission budgets 
in the SIP revisions submitted by Virginia, Maryland and the District 
of Columbia on August 19, 2003, September 2, 2003, and September 5, 
2003, respectively (the December 16, 2003 finding of adequacy). In 
accordance with the transportation conformity rule, once found 
adequate, these 2005 MVEBs superseded the motor vehicle emissions 
budgets in the 15 percent ROP plan because these 2005 budgets cover a 
later year and are more stringent. (See 40 CFR 93.118)

C. What Effect Will This Action Have on Motor Vehicle Emissions Budgets 
for the Washington Area?

    This action proposes to approve the post 1996-1999 ROP plan for the 
Washington area and its 1999 MVEBs into the District of Columbia, 
Maryland and Virginia SIPs. This action also proposes to approve the 
1999-2005 ROP plan and its 2002 and 2005 MVEBs as revisions to the 
District of Columbia, Maryland and Virginia SIPs. A subsequent final 
action to approve of the 2005 budgets in the 1999-2005 ROP plan will 
supersede the December 16, 2003 finding of adequacy.
    Likewise, by this proposed rulemaking, EPA is also initiating the 
adequacy process under 40 CFR 93.118(f) for the 2005 budgets in the 
1999-2005 ROP plan submitted by Maryland on February 24, 2004 and by 
the District and Virginia on February 25, 2004. Should EPA make a final 
adequacy finding on these 2005 ROP budgets, prior to taking a final 
action to approve them as SIP revisions, that adequacy finding would 
supersede the December 16, 2003 adequacy finding, and thus make the 
2005 budgets in the 1999-2005 ROP plans submitted by Maryland on 
February 24, 2004 and by the District and Virginia on February 25, 2004 
the applicable 2005 ROP budgets.

D. What Are the NVEBs Identified in the ROP Plan for the Washington 
Area?

    The motor vehicle emissions budgets for 1999 in the 1996-1999 ROP 
plan are 128.5 tons per day of VOC and 196.4 tons per day of 
NOX. The motor vehicle emissions budgets in the 1999-2005 
ROP plan are:
    (1) For 2002, 125.2 tons per day for VOC and 290.3 tons per day of 
NOX; and
    (2) For 2005, 97.4 tons per day for VOC and 234.7 tons per day of 
NOX.

VIII. Prerequisites for Approval of the Post 1996-1999 and Post 1999-
2005 ROP Plans

    Approval of the ROP plans for the Washington area also requires 
approval of the associated contingency plans. Therefore, EPA is 
proposing to approve the post 1996-1999 ROP plans, the post 1999-2005 
ROP plans and the contingency measures plans submitted by the District, 
Maryland and Virginia for the Washington area. Approval of the ROP 
plans requires previous or concurrent SIP-approval of all the emission 
reduction measures upon which the ROP demonstrations rely. Likewise, 
approval of the contingency measure plans requires prior or concurrent 
SIP approval of the measures in those plans. With respect to other ROP 
plans, all of the measures are either Federal measures that have been 
promulgated by EPA or state measures that have been approved by EPA as 
SIP revisions into the District's, Maryland's and Virginia's SIPs. 
However, as

[[Page 2100]]

discussed in section V. of this document, not all of the contingency 
measures have been finally approved at this time. EPA has, however, at 
least proposed approval of all of these measures. Final approval of the 
post 1996-1999 ROP plans, the post 1999-2005 ROP plans and the 
contingency measures plan cannot be granted unless and until EPA has 
fully approved these contingency measures into the applicable SIPs.

IX. Proposed Actions

A. The District of Columbia--Post 1996-1999 Rate-of-Progress Plan and 
TCMs

    EPA is proposing approval of the District of Columbia's 1996-1999 
ROP plan SIP revision for the Washington area which was submitted on 
November 3, 1997, as supplemented on May 25, 1999, and the TCMs in 
Appendix H of the May 25, 1999 submittal. Final approval is contingent 
upon final approval of the contingency measure plan in the 2004 SIP 
revisions.

B. The District of Columbia--1990 Base Year Inventory Revisions

    EPA is proposing approval of the revision to the 1990 Base Year 
Emissions Inventory submitted by the District of Columbia on September 
5, 2003 as supplemented on February 25, 2004.

C. The District of Columbia--Post 1999-2005 Rate-of-Progress Plan and 
TCMs

    EPA is proposing approval of the District of Columbia's post 1999-
2005 ROP plan SIP revision for the Washington area which was submitted 
on September 5, 2003 as supplemented on February 25, 2004 and the TCMs 
in Appendix J of the February 25, 2004 submittal. Final approval is 
contingent upon final approval of the contingency measure plan in the 
2004 SIP revisions.

D. The District of Columbia--VMT Offset SIP

    EPA is proposing to determine that the District of Columbia has 
adopted sufficient TCMs to address growth in VMT and number of vehicle 
trips as required under section 182(d)(1)(A).

E. The District of Columbia--Contingency Measure Plan

    EPA is proposing approval of the District of Columbia's contingency 
measure plan SIP revision for the Washington area which was submitted 
on September 5, 2003, as supplemented on February 25, 2004. Final 
approval is contingent upon final approval of enough measures in the 
contingency measure plan to represent a 3 percent reduction of the 2002 
baseline emissions and final approval of the following measures 
identified by the District of Columbia as measures in the plan: The 
District's rules for consumer products, motor vehicle refinishing, AIM, 
solvent cleaning and portable fuel containers.

F. Maryland--Post 1996-1999 Rate-of-Progress Plan and TCMs

    EPA is proposing approval of Maryland's post 1996-1999 ROP plan SIP 
revision for the Washington area which was submitted on December 24, 
1997, as supplemented on May 20, 1999, and the TCMs in Appendix H of 
the May 20, 1999 submittal. Final approval is contingent upon final 
approval of the contingency measure plan in the 2004 SIP revision.

G. Maryland--1990 Base Year Inventory Revisions

    EPA is proposing approval of the revision to the 1990 Base Year 
Emissions Inventory submitted by Maryland on September 2, 2003 as 
supplemented on February 24, 2004.

H. Maryland--Post 1999-2005 Rate-of-Progress Plan and TCMs

    EPA is proposing approval of Maryland's post 1999-2005 ROP plan SIP 
revision for the Washington area which was submitted on September 2, 
2003 as supplemented on February 24, 2004 and the TCMs in Appendix J of 
the February 24, 2004 submittal. Final approval is contingent upon 
final approval of the contingency measure plan in the 2004 SIP 
revisions.

I. Maryland--VMT Offset SIP

    EPA is proposing to determine that Maryland has adopted sufficient 
TCMs to address growth in VMT and number of vehicle trips as required 
under section 182(d)(1)(A).

J. Maryland--Contingency Measure Plan

    EPA is proposing approval of Maryland's contingency measure plan 
SIP revision for the Washington area which was submitted on September 
3, 2003, as supplemented on February 24, 2004. Final approval is 
contingent upon final approval of enough measures in the contingency 
measure plan to represent the 3 percent reduction of the 2002 baseline 
emissions and of the following measures identified by Maryland as 
measures in the plan: Maryland's rules for consumer products, AIM, and 
portable fuel containers.

K. Virginia--Post 1996-1999 Rate-of-Progress Plan and TCMs

    EPA is proposing approval of Virginia's post 1996-1999 ROP plan SIP 
revision for the Washington area which was submitted on December 29, 
1997, as supplemented on May 25, 1999, and the TCMs in Appendix H of 
the May 25, 1999 submittal. Final approval is contingent upon final 
approval of the contingency measure plan in the 2004 SIP revisions.

L. Virginia--1990 Base Year Inventory Revisions

    EPA is proposing approval of the revision to the 1990 Base Year 
Emissions Inventory submitted by Virginia on August 19, 2003 as 
supplemented on February 25, 2004.

M. Virginia--Post 1999-2005 Rate-of-Progress Plan and TCMs

    EPA is proposing approval of Virginia's post 1999-2005 ROP plan SIP 
revision for the Washington area which was submitted on August 19, 2003 
as supplemented on February 25, 2004 and the TCMs in Appendix J of the 
February 25, 2004 submittal. Final approval is contingent upon final 
approval of the contingency measure plan in the 2004 SIP revisions.

N. Virginia--VMT Offset SIP

    EPA is proposing to determine that Virginia has adopted sufficient 
transportation control measures necessary to address growth in VMT and 
number of vehicle trips as required under section 182(d)(1)(A).

O. Virginia--Contingency Measure Plan

    EPA is proposing approval of Virginia's contingency measure plan 
SIP revision for the Washington area which was submitted on August 19, 
2003, as supplemented on February 25, 2004. Final approval is 
contingent upon final approval of enough measures in the contingency 
measure plan to represent the 3 percent reduction of the 2002 baseline 
emissions and of the following measures identified by Virginia as 
measures in the plan: Virginia's rules for motor vehicle refinishing, 
AIM, solvent cleaning and portable fuel containers.

P. Motor Vehicle Emissions Budgets

    EPA is proposing to approve the MVEBs established and identified in 
the Post 1996-1999 and Post 1999-2005 ROP Plans for the Washington area 
submitted by the District, Maryland and Virginia on the dates as 
provided in this document. The MVEBs for 1999 in the 1996-1999 ROP plan 
are 128.5 tons per day of VOC and 196.4 tons per day of NOX. 
The MVEBs in the 1999-2005 ROP plan are:
    (1) For 2002, 125.2 tons per day for VOC and 290.3 tons per day of 
NOX; and

[[Page 2101]]

    (2) For 2005, 97.4 tons per day for VOC and 234.7 tons per day of 
NOX.
    EPA is also initiating the adequacy process under 40 CFR 93.118(f) 
for the 2005 budgets in the 1999-2005 ROP plans. EPA will not be 
initiating a separate adequacy process. Persons wishing to comment on 
the adequacy of these MVEBs should do so at this time.
    EPA is soliciting public comments on all these proposed actions and 
the associated issues discussed in this document. These comments will 
be considered before taking final actions.

X. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 
This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (15 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4). This proposed rule also does 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), nor will it 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 proposes to approve 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. This 
proposed rule also is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997), because it is not economically significant. In 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This proposed rule to approve the District of Columbia's, Maryland's 
and Virginia's post 1996-1999 and post 1999-2005 ROP plans, changes to 
the 1990 base year inventory, a contingency measures plan, certain 
transportation control measures (TCMs), and a demonstration that each 
SIP contains sufficient transportation control measures to offset 
growth in vehicle miles traveled (VMT) as necessary to demonstrate ROP 
and attainment of the 1-hour national ambient air quality standard 
(NAAQS) for the Metropolitan Washington, DC 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 5, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-617 Filed 1-11-04; 8:45 am]
BILLING CODE 6560-50-M