[Federal Register Volume 70, Number 26 (Wednesday, February 9, 2005)]
[Proposed Rules]
[Pages 6796-6811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2508]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME NO. R03-OAR-2004-DC-0010; FRL-7870-8]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, Virginia; Metropolitan Washington DC 1-
Hour Ozone Attainment Demonstration Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve the attainment demonstration State 
Implementation Plan (SIP) revisions submitted by the Commonwealth of 
Virginia and the District of Columbia for the Metropolitan Washington, 
D.C. severe 1-hour ozone nonattainment area (the Washington area). EPA 
is proposing to approve the attainment demonstration SIP revisions 
submitted by the State of Maryland for the Washington area contingent 
upon the State submitting an approvable SIP revision for certain 
penalty fees, required by the Clean Air Act (the Act), prior to the 
time EPA issues a final rule on Maryland's attainment demonstration. In 
the alternative, EPA is proposing to disapprove the attainment 
demonstration SIP revision submitted by the State of Maryland for the 
Washington area. In the event we issue a final rule disapproving 
Maryland's attainment demonstration for the State's failure to satisfy 
the Act's penalty fee provisions, EPA is also proposing to issue a 
protective finding to preclude a ``conformity freeze'' pursuant to the 
transportation conformity rule. These revisions are being proposed in 
accordance with the Act.

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

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R03-OAR-2004-DC-0010 by one of the following 
methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. Agency Website: 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].

[[Page 6797]]

    D. Mail: R03-OAR-2004-DC-0010, 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 R03-OAR-2004-DC-0010. 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 websites 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 an 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 the term ``the States'' or of the term ``the three 
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?
    B. What Previous Action Has EPA Taken on Attainment 
Demonstrations for the Washington Area?
    C. What Agencies and Organizations Developed the Attainment 
Demonstration for the Washington Area?
    D. What Is the Time Frame for Taking Action on These Washington 
Area SIP Revisions?
III. The Requirements of an Attainment Demonstration and Framework 
for Approving the Attainment Demonstration SIP
    A. What Is the Basis for the Attainment Demonstration SIP?
    B. What Are the Requirements of a Modeled Attainment 
Demonstration?
    C. What Are the Requirements for Reasonably Available Control 
Measures?
    D. What Is the Framework for Proposing Action on the Attainment 
Demonstration SIPs?
IV. EPA's Review and Analysis of the Attainment Demonstration
    A. The Modeling Demonstration
    B. How Has RACM Been Satisfied?
    C. The District's, Maryland's and Virginia's Submittals To 
Satisfy EPA's Framework for Proposing Action on Attainment 
Demonstration SIPs
V. MVEBs and a Protective Finding
    A. What MVEBs Currently Apply in the Washington Area?
    B. Will EPA Initiate a Separate Adequacy Review for the 2005 
MVEBs in the Attainment Demonstration Plans Submitted in February of 
2004?
    C. What Are the 2005 Budgets in the Attainment Demonstration?
    D. What Effect Will This Action Have on Motor Vehicle Emissions 
Budgets for the Washington Area?
    E. What Effects Might This Action Have on Transportation 
Planning in the Washington Area?
    F. What Would Be the Basis for Issuing a Protective Finding?
VI. Proposed Actions
VII. Statutory and Executive Order Reviews

I. The Action EPA Is Proposing Today

    The EPA is proposing approval of the attainment demonstration SIP 
revisions submitted by the District of Columbia (the District), and the 
Commonwealth of Virginia for the Washington area. In the case of the 
State of Maryland, EPA is proposing to approve the attainment 
demonstration SIP revision for the Washington area contingent upon 
Maryland submitting an approvable SIP revision to satisfy the section 
185 of the Act for certain penalty fees, prior to the time EPA issues a 
final rule on the attainment demonstration; and, in the alternative, 
EPA is proposing to disapprove the attainment demonstration SIP 
revision submitted by the State of Maryland for the Washington area. In 
the event we issue a final rule disapproving Maryland's attainment 
demonstration for the State's failure to satisfy the Act's section 185 
penalty fee provisions, EPA is proposing to issue a protective finding 
for the 2005 motor vehicle emissions budgets to preclude a ``conformity 
freeze'' pursuant to the transportation conformity rule, and is 
proposing to limit the duration such disapproval is in effect for only 
as long as the Maryland SIP lacks the section 185 penalty fee 
requirements or as long as those penalty fee requirements remain 
applicable under the Act. The following table identifies the submittal 
dates and amendment dates for these plans:

                             Table 1.--Attainment Demonstration and VMT Offset Plans
----------------------------------------------------------------------------------------------------------------
                                             DC                       MD \1\                       VA
----------------------------------------------------------------------------------------------------------------
Initial submittal dates........  September 5, 2003          September 2, 2003          August 19, 2003.

[[Page 6798]]

 
Amended submittal dates........  February 25, 2004          February 19, 2004          February 25, 2004.
----------------------------------------------------------------------------------------------------------------
\1\ Maryland SIP revisions 03-05 and 04-01.

    Hereafter the SIP revisions listed in Table 1 of this document will 
be called the ``2004 SIP Revisions.'' The 2004 SIP revisions include an 
attainment demonstration and 2005 attainment motor vehicle emissions 
budgets (MVEBs) for purposes of transportation conformity.
    The States' 2004 SIP revision submittals also included the post 
1999-2005 rate of progress (ROP) plans, the VMT Offset SIPs, revisions 
to the 1990 base year emissions inventory, certain transportation 
control measures (TCMs) (namely those TCMs identified in Appendix J of 
the SIP revision submittals), a suite of nonregulatory control 
measures, and the contingency measures plans for both ROP and 
attainment for the Washington area. Those revisions are the subjects of 
separate rulemaking actions. On December 23, 2004 (69 FR 76889), EPA 
proposed approval of the suite of nonregulatory control measures. On 
January 12, 2005 (70 FR 2085), EPA published a notice of proposed 
rulemaking (NPR) regarding the post 1999-2005 ROP plan, the VMT Offset 
SIP, revisions to the 1990 base year emissions inventory, certain TCMs, 
and the contingency measures plans for both ROP and attainment. The NPR 
published on January 12, 2005 also proposed approval of the States' 
post 1996-1999 ROP plans for the Washington area. (See 70 FR 2085, 
January 12, 2005)

II. Background

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

    The Metropolitan Washington severe 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 Attainment Demonstrations for 
the Washington Area?

    On January 3, 2001 (66 FR 586), the EPA approved the States' post 
1996-1999 ROP plans, earlier versions of their attainment demonstration 
plans (those submitted during 1998 and 2000, which have been withdrawn 
by the states and superceded by the plans that are the subject of this 
rulemaking) and an attainment date extension for the Washington area. A 
petition for review of that final rule was filed by the Sierra Club. 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 (DC Cir. 2002) (``Sierra Club 
I''). With respect to the attainment date extension, 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 SIP revision 
contained approved contingency measures as required by sections 
172(c)(9) and 182(c)(9) of the Act. Id. at 164. Furthermore, the Court 
determined that in addition to a 9 percent reduction in baseline 
emissions post 1996-1999, an area with an attainment date in 2005 must 
include a ROP plan that demonstrates additional ROP to 2005. Id. at 
163. Lastly, although the Court upheld the EPA's definition of 
reasonably available control measures (RACM), the Court remanded this 
matter to the EPA to determine which measures, if any, are RACM to be 
implemented by the States in this case. Id. at 162-63.
    On January 24, 2003 (68 FR 3410), EPA published a final action 
determining that the Washington area failed to attain the November 15, 
1999 ozone attainment deadline for serious areas and reclassifying the 
Washington area to severe ozone nonattainment. On April 17, 2003 (68 FR 
19106), EPA conditionally approved the States' 1996-1999 ROP plans and 
earlier versions (those submitted during 1998 and 2000) of the 
attainment demonstration plans, contingent upon the States fulfilling 
commitments they made to submit the additional elements required of 
those SIP revisions for a severe area. A petition for review of that 
final rule was filed by the Sierra Club. The petition alleged, among 
other things, that EPA could not lawfully conditionally approve the 
SIPs due to a lack of specificity in the States' commitment letters, 
that EPA should require the 1996-1999 ROP to be revised to use the 
latest mobile sources emission factor model and that the photochemical 
grid modeling supporting the attainment demonstration did not meet the 
requirements of the CAA. On February 3, 2004, the Court issued an 
opinion to vacate our rule conditionally approving the attainment 
demonstrations and 1996-1999 ROP plans insofar as that the court found 
our grant of conditional approval defective. The Court denied the 
petition for review in all other respects. See Sierra Club v. EPA, 356 
F.3d at 301-07 (DC Cir. 2004) (``Sierra Club II'').\2\ On April 23, 
2004, the Court issued its mandate thereby relinquishing jurisdiction 
over the 1996-1999 ROP plans and the attainment demonstration SIP 
revisions, and remanding them back to EPA.
---------------------------------------------------------------------------

    \2\ On April 16, 2004, the Court issued an order slightly 
revising the February 3, 2004, opinion to address a petition for 
rehearing filed by the Sierra Club, but otherwise leaving its 
decision to vacate and remand the conditional approval to EPA 
intact. Sierra Club v. EPA, 356 F.3d 296, 301-304 (DC Cir. 2004), 
amended by No. 03-1084, 2004 WL 877850 (DC Cir. Apr. 16, 2004).
---------------------------------------------------------------------------

    Effective as of the April 23, 2004 date the Court issued its 
mandate for its February 3, 2004 ruling, all three States withdrew 
their attainment demonstration SIP revisions which had been submitted 
during 1998 and 2000, specifically the SIP revisions listed in Table 2 
of the April 17, 2003, final rule (68 FR 19107). The States withdrew 
these earlier versions of the attainment demonstration SIP revisions 
because the they had submitted revised attainment demonstration SIP 
revisions with a RACM analysis, post-1999 ROP plans demonstrating ROP 
for 2002 and 2005, VMT offset plans and contingency measures plans that 
superceded the earlier submissions.

C. What Agencies and Organizations Developed the Attainment 
Demonstration for the Washington Area?

    The District, Virginia and Maryland must collectively demonstrate

[[Page 6799]]

attainment of the 1-hour ozone NAAQS in the Washington area buy no 
later than November 15, 2005. These jurisdictions, under the auspices 
of the Metropolitan Washington Air Quality Committee (MWAQC), with the 
assistance of the Metropolitan Washington Council of Governments (COG), 
collaborated on a coordinated attainment demonstration for the 
Washington area. The MWAQC includes state and local elected officials 
and representatives of the DC 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 Act provides for interstate 
coordination for multi-state nonattainment areas. Because an attainment 
demonstration establishes motor vehicle emission budgets (MVEBs) for 
transportation improvement plans, the municipal planning organizations 
(MPO), which is mainly the TPB, have historically been involved in air 
quality planning in the Washington area. Although the plan was 
developed by a regional approach, the District, Maryland and Virginia 
are each required to submit the attainment demonstration to the EPA as 
a revision to its SIP.

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

    Under the CAA, the EPA is to take final action on a State's 
submission no later than 12 months after the submission is determined 
or deemed complete. On May 3, 2004, EPA issued a letter to each of the 
three States deeming the States' February 2004 SIP revisions complete. 
EPA must conduct a comment period of thirty-days on the content of our 
proposed action for the attainment demonstration SIP revisions before 
issuing a final rule. Before issuing a final rule, EPA must consider 
and prepare a response to all relevant public comments received during 
the comment period. In the event we issue any final rule to disapprove, 
EPA must also forward such a final rule to the Office of Management and 
Budget (OMB) for review. EPA's believes we have sufficient time to 
accomplish these tasks and complete rulemaking on the States' 
attainment demonstration SIPs for the Washington area by May 3, 2005.

III. The Requirements of an Attainment Demonstration and Framework for 
Approving the Attainment Demonstration SIP

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

    The Act requires EPA to establish national ambient air quality 
standards (NAAQS or standards) for certain widespread pollutants that 
cause or contribute to air pollution that is reasonably anticipated to 
endanger public health or welfare. In 1979, EPA promulgated the 1-hour 
0.12 parts per million (ppm) ground-level ozone standard. See 44 FR 
8202, Feb. 8, 1979. Ground-level ozone is not emitted directly by 
sources. Rather, emissions of nitrogen oxides (NOX) and 
volatile organic compounds (VOCs) react in the presence of sunlight to 
form ground-level ozone. NOX and VOC are referred to as 
precursors of ozone. An area exceeds the 1-hour ozone standard each 
time an ambient air quality monitor records a 1-hour average ozone 
concentration above 0.124 ppm. An area is violating the standard if, 
over a consecutive three-year period, more than three exceedances are 
expected to occur at any one monitor. The CAA, as amended in 1990, 
required EPA to designate as nonattainment any area that was violating 
the 1-hour ozone standard, generally based on air quality monitoring 
data from the three-year period from 1987-1989. See Section 107(d)(4) 
of the Act; 56 FR 56694, Nov. 6, 1991. The CAA further required that 
ozone nonattainment areas be classified based on the area's design 
value, as marginal, moderate, serious, severe or extreme. See section 
181(a) of the Act. The control requirements and dates by which 
attainment needs to be achieved vary with the area's classification. 
Marginal areas are subject to the fewest mandated control requirements 
and have the earliest attainment date. Severe and extreme areas are 
subject to more stringent planning requirements but are provided more 
time to attain the standard. Serious areas are required to attain the 
1-hour standard by November 15, 1999 and severe areas are required to 
attain by November 15, 2005 or November 15, 2007.
    Under section 182(c)(2) and (d) of the CAA, states with 
nonattainment areas classified as severe are required to submit 
demonstrations of how they would attain the 1-hour standard and how 
they would achieve the 9 percent ROP reduction in VOC emissions for 
each three-year period until the attainment year (in some cases, 
NOX emission reductions can be substituted for the required 
VOC emission reductions). The Washington area is classified as severe 
and its attainment date is November 15, 2005. As stated previously, EPA 
is proposing action on the attainment demonstration SIPs submitted by 
the District, Maryland, and Virginia as part of the SIP revision 
submittals listed in Table 1.
    In general, an attainment demonstration SIP includes a modeling 
analysis component showing how the area will achieve the standard by 
its attainment date and the control measures necessary to achieve those 
reductions. Attainment demonstration SIP also establish and identify 
MVEBs for transportation conformity purposes. Transportation conformity 
is a process for ensuring that States consider the effects of emissions 
associated with new or improved federally-funded roadways on attainment 
of the standard. As described in section 176(c)(2)(A) of the Act, 
attainment demonstrations necessarily include the estimates of motor 
vehicle emissions that are consistent with attainment, which then act 
as a budget or ceiling for the purposes of determining whether 
transportation plans and projects conform to the attainment SIP.

B. What Are the Requirements of a Modeled Attainment Demonstration?

    The EPA provides that States may rely upon a modeled attainment 
demonstration supplemented with additional evidence to demonstrate 
attainment. In order to have a complete modeling demonstration 
submission, States submit the required modeling analysis and identify 
any additional evidence that EPA should consider in evaluating whether 
the area will attain the standard. The EPA issued guidance on the air 
quality modeling that is used to demonstrate attainment with the 1-hour 
ozone NAAQS. See U.S. EPA, (1991), Guideline for Regulatory Application 
of the Urban Airshed Model, EPA-450/4-91-013, (July 1991). See also 
U.S. EPA, (1996), Guidance on Use of Modeled Results to Demonstrate 
Attainment of the Ozone NAAQS, EPA-454/B-95-007, (June 1996). While the 
CAA section 182(c) requires that the attainment demonstration for 
serious and severe areas ``must be based upon photochemical grid 
modeling,'' the phrase ``based upon'' does not necessarily require that 
attainment demonstrations ``rest solely on grid modeling.'' See Sierra 
Club II at 301-07 (upholding EPA's approval of the modeling from the 
earlier versions of the Washington area attainment demonstration plans 
submitted during 1998 and 2000, which is identical to the modeling 
contained in the plans that are

[[Page 6800]]

the subject of this rulemaking \3\). When the modeling does not 
conclusively demonstrate attainment, additional analyses may be 
presented to help determine whether the area will attain the standard. 
As with other predictive tools, there are inherent uncertainties 
associated with modeling and its results. For example, there are 
uncertainties in some of the modeling inputs, such as the 
meteorological and emissions data bases for individual days and in the 
methodology used to assess the severity of an exceedance at individual 
sites. The EPA's guidance recognizes these limitations, and provides a 
means for considering other evidence to help assess whether attainment 
of the NAAQS is likely. The process by which this is done is called a 
weight of evidence (WOE) determination. Under a WOE determination, the 
State can rely on and EPA will consider factors such as other modeled 
attainment tests (e.g., a rollback analysis); other modeled outputs 
(e.g., changes in the predicted frequency and pervasiveness of 
exceedances and predicted changes in the design value); actual observed 
air quality trends; estimated emissions trends; analyses of air quality 
monitored data; the responsiveness of the model predictions to further 
controls; and, whether there are additional control measures that are 
or will be approved into the SIP but were not included in the modeling 
analysis.
---------------------------------------------------------------------------

    \3\ EPA believes that the States were not required to redo the 
photochemical modeling. The 2004 SIP revisions provide for a greater 
percent reduction from the base year emissions than did the 
reductions in the superceded 1998 and 2000 SIP revisions, which form 
the basis for the photochemical grid modeling analysis. It is 
important to note that the modeling demonstration analyses predict 
that the Washington area will attain the 1-hour ozone standard by 
November 15, 2005 even without any of the severe area measures 
submitted with the superceding 2004 SIP revisions.
---------------------------------------------------------------------------

    In 1999, EPA issued additional guidance that makes further use of 
model results for base case and future emission estimates to predict a 
future design value. This guidance describes the use of an additional 
component of the WOE determination, which requires, under certain 
circumstances, additional emission reductions that are or will be 
approved into the SIP, but that were not included in the modeling 
analysis, that will further reduce the modeled design value. When 
reviewing a SIP, EPA must make a reasonable determination that the 
control measures adopted more likely than not will lead to attainment. 
See ``Guidance for Improving Weight of Evidence Through Identification 
of Additional Emission Reductions, Not Modeled.'' U.S. Environmental 
Protection Agency, Office of Air Quality Planning and Standards, 
Emissions, Monitoring, and Analysis Division, Air Quality Modeling 
Group, Research Triangle Park, NC 27711, November 1999.
    The EPA's 1996 modeling guidance also recognizes a need to perform 
a mid-course review (MCR) as a means for addressing uncertainty in the 
modeling results. Because of the uncertainty in long term projections, 
an attainment demonstration that relies on WOE needs to contain 
provisions for periodic review of monitoring, emissions, and modeling 
data to assess the extent to which refinements to emission control 
measures are needed. The MCR requirement is discussed further in 
subsequent sections of this document.

C. What Are the Requirements for Reasonably Available Control Measures?

    Section 172(c)(1) of the Act requires SIPs to contain RACM, 
including reasonably available control technology (RACT), as 
expeditiously as practicable. EPA has provided guidance interpreting 
the RACM requirements of section 172(c)(1) of the Act. See 57 FR 13498, 
13560, April 16, 1992. In that guidance, EPA indicates that potentially 
available control measures, which would not advance the attainment date 
for an area, would not be considered RACM under the Act. EPA concludes 
that a measure would not be reasonably available if it would not 
advance attainment. EPA's guidance also indicates that states should 
consider all potentially available measures to determine whether they 
are reasonably available for implementation in the area, including 
whether or not they would advance the attainment date. Further, the 
guidance calls for states to indicate in their SIP submittals whether 
measures considered are reasonably available or not, and if so the 
measures must be adopted as RACM. Finally, the guidance indicates that 
states could reject potential RACM measures either because they would 
not advance the attainment date, would cause substantial widespread and 
long-term adverse impacts, or for various reasons related to local 
conditions, such as economics or implementation concerns. See 
``Guidance on the Reasonably Available Control Measures (RACM) 
Requirement and Attainment Demonstration Submissions for Ozone 
Nonattainment Areas,'' John S. Seitz, Director, Office of Air Quality 
Planning and Standards. November 30, 1999. The EPA guidance with regard 
to the implementation of the RACM requirements of Section 172(c)(1) has 
been upheld in Sierra Club I, 294 F.3d at 163.

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

    In addition to the modeling analysis and RACM, the EPA has 
identified the following key elements which must be present in order 
for the EPA to approve the 1-hour attainment demonstration SIPs. In the 
following section of this document, these elements are first listed 
(and briefly described), and then each is subsequently described in 
more detail.
    CAA Measures and Measures Relied on in the Modeled Attainment 
Demonstration--In order for EPA to approve the attainment plan, the SIP 
must include approved rules for all measures mandated by the Act for 
the specific area's classification, including contingency measures 
should the area fail to attain by the required date, and RACM. Measures 
that may not be specifically mandated under the Act for the Washington 
area's severe classification, but that the States relied on in the 
attainment demonstration plan for which we are proposing approval must 
also be SIP approved.
    NOX reductions consistent with the modeling demonstration--On 
January 10, 1997 (62 FR 1420), EPA began the process to issue a SIP 
call to require States to implement the reductions in nitrogen oxides 
(NOX) necessary to address the ozone transport problem by 
publishing a notice of intent that articulated this goal. On November 
7, 1997 (62 FR 60319), published the NPR for the NOX SIP 
call. The EPA published a final rulemaking for the NOX SIP 
Call on October 27, 1998 (63 FR 57356). The 1-hour attainment 
demonstration for the Washington area relies, in part, on the 
NOX SIP Call reductions for purposes of determining the 
boundary conditions of the modeling domain.
    Motor vehicle emissions budgets (MVEBs)--The attainment plan must 
establish and identify MVEBs determined by EPA be consistent with the 
attainment strategy.
    Tier 2/Sulfur program benefits where needed to demonstrate 
attainment--The attainment plan includes the reductions expected from 
the EPA's Tier 2 tailpipe and low sulfur-in-fuel standards which are 
assumed in the attainment demonstration and accounted for in the MVEBs.
    Mid-Course Review (MCR)--The attainment plan includes an 
enforceable commitment to conduct a MCR and evaluation based on air 
quality and emission trends. Such a MCR would show whether the adopted 
control measures are sufficient to reach

[[Page 6801]]

attainment by the area's attainment date, or that additional control 
measures are necessary.
    Contingency Measures--The attainment plan for a serious or worse 
area must include specific measures to reduce emissions if the area 
fails to make reasonable further progress, or to attain the national 
primary ambient air quality standard by the attainment date.
1. CAA Measures and Measures Relied on in the Modeled Attainment 
Demonstration
    The States must adopt the control measures and other mandated 
programs required under the CAA for a given area's classification. 
Further, the States may adopt control measures that go beyond those 
measures mandated by the CAA because additional emission reductions are 
needed to demonstrate attainment. For purposes of fully approving a 
State's attainment SIP, that State needs to submit rules, as SIP 
revisions, for all VOC and NOX controls within the local 
modeling domain that were relied on for purposes of the modeled 
attainment demonstration. EPA must approve all of the VOC and 
NOX reduction measures relied on for attainment (as well as 
all the measures required to demonstrate ROP and the ROP plans 
themselves), in order for EPA to issue a final rule fully approving the 
attainment plan as meeting section 182(c)(2) of the CAA. The 
information in Table 2 is a summary of the CAA requirements that must 
be met for each severe nonattainment area for the 1-hour ozone NAAQS. 
These requirements are specified in section 182 of the CAA.

 Table 2.--CAA Requirements for 1-Hour Ozone Areas Classified as Severe
                     With an Attainment Date of 2005
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
--New Source Review (NSR) for major sources of volatile organic
 compounds (VOC) and nitrogen oxides (NOX) requires an offset ratio of
 1.3:1 and a major source size applicability definition of 25 tons per
 year (tpy) sources.
--Reasonably Available Control Technology (RACT) for major sources VOC
 and NOX with a major source size definition of 25 tpy sources.
--Enhanced Inspection and Maintenance (I/M) program.
--15 percent volatile organic compound reduction (VOC) plans.
--Emissions inventory.
--Emission statements.
--Attainment demonstration/RACM.
--3 percent per year ROP plan through attainment date.
--Clean fuel fleet program or a substitute measure ( e.g., national low
 emission vehicle program (NLEV).
--Enhanced Monitoring--Photochemical Assessment Monitoring Stations
 (PAMS).
--Stage II vapor recovery.
--Contingency Measures for failure to attain/failure to make ROP.
--VMT Offset SIP.
--The SIP revision to enforce the penalty fees pursuant to CAA section
 185.
------------------------------------------------------------------------

    As explained previously, the applicable case law for the Washington 
area requires that the post-1996 plan for an area with an attainment 
date of November 15, 2005 must demonstrate ROP through November 15, 
2005. See Sierra Club I, 294 F.3d at 163. In addition, EPA can only 
approve an ROP or attainment demonstration if EPA also approves a plan 
containing contingency measures to be implemented in the event the area 
fails to demonstrate ROP or attain the standard (the contingency 
measures plan). Under the Sierra Club II, the elements for the 
Washington area that need to be approved prior to or concurrently with 
the attainment demonstration include specific enforceable measures to 
offset growth in vehicle emissions (commonly referred to as the VMT 
offset SIP), RACT for additional major sources, the attainment 
demonstration to show attainment by no later than November 15, 2005, 
changes to the new source review (NSR) permitting programs to increase 
the offset ratio to a minimum of 1.3 to 1 and lower the major source 
applicability threshold to 25 tons per year, and a plan to enforce the 
penalty fees pursuant to section 185 of the Act (commonly referred to 
as the section 185 penalty fee SIP). Sierra Club II, 356 F.3d at 301.
    As we discuss later in this document, the SIP revision to enforce 
the penalty fees pursuant to CAA section 185 is the only element for 
which we believe any one of the three States may have a deficiency, 
since we have not received a submission from Maryland meeting this 
requirement. The SIP revision to enforce the penalty fees pursuant to 
CAA section 185 is not a control measure to demonstrate timely 
attainment. Nor is it a contingency measure of either the attainment 
demonstration or any ROP plan. We have concluded that all of the other 
elements have already been approved into the States' SIPs or have been 
proposed for approval with an anticipated final approval date on or 
before the anticipated final approval date for this rulemaking.
2. NOX Reductions Consistent With the Modeling Demonstration
    On January 10, 1997 (62 FR 1420), EPA began the process to issue a 
SIP call to require States to implement the reductions in 
NOX necessary to address the ozone transport problem by 
publishing a notice of intent that articulated this goal. On November 
7, 1997 (62 FR 60319), published the NPR for the NOX SIP 
call. The EPA published a final rulemaking for the NOX SIP 
Call on October 27, 1998 (63 FR 57356). To address transport, the 
NOX SIP Call established NOX emissions budgets 
for 23 jurisdictions to reduce emissions in upwind States that 
significantly contribute to nonattainment problems. The emission 
reductions achieved through the states' plans (submitted and approved 
by EPA pursuant to the NOX SIP Call) reduce the levels of 
ozone and ozone precursors entering nonattainment areas at their 
boundaries.
    For purposes of developing attainment demonstrations, States define 
local modeling domains that include both the nonattainment area and 
nearby surrounding areas. The ozone levels at the boundary of the local 
modeling domain are reflected in modeled attainment demonstrations and 
are referred to as boundary conditions. The 1-hour attainment 
demonstration for the Washington area relies, in part, on the 
NOX SIP Call reductions for purposes of determining the 
boundary conditions of the modeling domain. Emission reductions assumed 
in the attainment demonstrations are modeled to occur both within the 
State and in upwind States; thus, intrastate reductions as well as 
reductions in other States impact the boundary conditions.
3. Motor Vehicle Emissions Budgets (MVEBs)
    The attainment demonstration SIPs must identify the motor vehicle 
emissions that will be produced in the attainment year and demonstrate 
that this emissions level, when considered with emissions from all 
other sources, is consistent with attainment. These estimates of motor 
vehicle emissions are known as the MVEBs, and are used to determine the 
conformity of transportation plans and programs to the SIP, as 
described by CAA section 176(c)(2)(A). The EPA believes that 
appropriately identified MVEBs are a necessary part of an attainment 
demonstration SIP.
4. Tier 2/Sulfur Program Benefits
    On February 10, 2000 (65 FR 6698), EPA published a final rule 
promulgating a major, comprehensive program

[[Page 6802]]

designed to significantly reduce emissions from passenger cars and 
light trucks (including sport-utility vehicles, minivans, and pickup 
trucks) and to reduce sulfur in gasoline. Under this program, 
automakers would produce vehicles designed to have very low emissions 
when operated on low-sulfur gasoline, and oil refiners would provide 
that cleaner gasoline nationwide.
    The final rule was supported by 1-hour ozone modeling and 
monitoring information that support the EPA's conclusion that the Tier 
2/Sulfur program is necessary to help areas attain the 1-hour NAAQS. 
See 64 FR 35112, June 30, 1999 and 64 FR 57827, October 27, 1999. Under 
the final rule, NOX and VOC emission reductions (as well as 
other reductions not directly relevant for attainment of the 1-hour 
ozone standard) would occur beginning in the 2004 ozone season.
5. Mid-Course Review
    A mid-course review (MCR) is a reassessment of modeling analyses 
and more recent monitored data to determine if the prescribed control 
strategy is on track to achieve the emission reductions and air quality 
improvements needed to attain the 1-hour NAAQS for ozone as 
expeditiously as practicable but by no later than the statutory dates. 
The three States have each submitted an enforceable commitment to 
perform a MCR as part of their attainment demonstration plans.
6. Contingency Measures
    The SIP for a serious or worse area must include specific measures 
to be undertaken if the area fails to make reasonable further progress, 
or to attain the national primary ambient air quality standard by the 
attainment date and provide for the implementation of specific measures 
to be undertaken if the area fails to meet any applicable milestone. 
See CAA sections 172(c)(9) and 182(c)(9). The three States have each 
submitted a contingency measures plan for the attainment 
demonstrations. EPA has proposed to approve those contingency measures 
plans. See 70 FR 2085, January 12, 2005.

IV. EPA's Review and Analysis of the Attainment Demonstration

A. The Modeling Demonstration

    The following is a summary of our analysis of the local modeling 
and WOE. A more detailed description of the District's and the state 
submittals and EPA's evaluation are included in a Technical Support 
Document (TSD) prepared in support of this rulemaking action. A copy of 
the TSD is available upon request from the EPA Regional Office listed 
in the ADDRESSES section of this document and is included in the E-
Docket for this rulemaking.
1. Analysis of the Modeling for the Local Modeling Domain
    The CAA requires that serious areas and above perform photochemical 
grid modeling to help determine the emission reductions of VOC and 
NOX necessary to achieve the attainment of the 1-hour ozone 
standard. Maryland, Virginia and the District of Columbia fulfilled 
this requirement through the application of the Urban Airshed Model, 
Version 4 (UAM-IV) for the Washington area and through the use of the 
modeling results from the ozone transport assessment group (OTAG) 
application of the Urban Airshed Model, Version 5 (UAM-V). The ozone 
attainment demonstration for the Washington area contains local scale 
modeling that fulfills EPA recommended modeling procedures. It is noted 
that Maryland, Virginia and the District modeled two episodes rather 
than the three recommended by EPA. EPA modeling guidance specifies that 
a total of three episodes be modeled from at least two meteorological 
regimes. Given the severe nature of the episodes modeled, even if one 
more episode was modeled, the two episodes that were modeled (July 15-
16, 1991 & July 18-20, 1991), due to their severity, would almost 
certainly be the controlling episodes in the determination of the 
emission reductions needed in the Washington area for attainment. The 
two episodes that were modeled also represent the most frequently 
occurring meteorological conditions conducive to high ozone in the 
Washington area. It should also be pointed out that three episodes were 
analyzed in the design value rollback analysis performed using the 
modeling results from EPA's NOX SIP Call Supplemental Notice 
of Proposed Rulemaking (SNPR) (63 FR 25901, May 11, 1998).
    When the emission inventory with the control strategy is modeled, 
peak ozone concentration is reduced by approximately 22 parts per 
billion (ppb) from the modeled peak concentrations in the 1988 and 1991 
base cases. The attainment year inventory used in the photochemical 
grid modeling was based upon a 29 percent reduction in NOX 
emissions and a 32 percent reduction in VOC emissions. When the average 
modeled ozone reduction is applied to the peak measured concentration 
for July 16 (137 ppb) and July 19 (132 ppb), the resulting 
concentrations are 115 ppb and 110 ppb, respectively. This indicates 
attainment for these days. However, when the modeled ozone reduction is 
applied to the peak monitored level on July 20 (178 ppb), the resulting 
concentration is 156 ppb. Because the ozone forming potential rank is 
very high for July 20, 1991 (12th most severe day out of a 46 year 
period covered by that study with an average reoccurrence of once every 
4-5 years) this type of day is not likely to occur often enough to be a 
major causative factor for nonattainment, especially since the emission 
controls modeled in this attainment demonstration should eliminate 
ozone exceedances for all but the most meteorologically severe days.
    EPA's analysis of model performance indicates that the local 
modeling for the Washington area systematically over-predicts ozone 
concentrations. The local 1991 base case modeling predicts peak 
concentrations in the Washington area of 167-198 ppb while ozone 
monitors in the same area during the same time period show peak 
concentrations ranging from 132 ppb to 178 ppb. This indicates that the 
model is over-predicting the actual ozone concentrations by an average 
of 19 percent. When model over-prediction (approximately 19 percent) is 
accounted for in both of the July 1991 episodes, the local scale 
modeled peak concentrations become 120 ppb for July 16th, 111 ppb for 
July 19th and 142 ppb for July 20th. The adjusted peak concentration 
for two out of the three primary episode days indicates attainment. The 
adjusted concentration for July 20th does not indicate attainment at 
142 ppb. However, a concentration of 142 ppb on July 20, 1991 is only 5 
ppb greater than the concentration that would be consistent with 
attainment (137 ppb) according to EPA's alternative attainment test 
guidance.\4\ Furthermore, when the area's design value in the base 
modeling period (1991) is adjusted for the air quality improvement 
predicted in the attainment year by the local-scale modeling, according 
to the screening test described in EPA's guidance entitled ``Draft 
Guidance on the Use of Models and Other Analyses in Attainment 
Demonstrations for the 8-Hour Ozone NAAQS'', the result is a 2005 
projected design value of 119 ppb. These local-scale modeling results 
are close enough to attainment to warrant the consideration of weight-
of-evidence arguments that support the demonstration of attainment.
---------------------------------------------------------------------------

    \4\ Guidance on Use of Modeled Results to Demonstrate Attainment 
of the Ozone NAAQS, EPA-454/B-95-007, (June 1996).

---------------------------------------------------------------------------

[[Page 6803]]

2. Weight of Evidence (WOE) Analyses
    A WOE determination is a diverse set of technical analyses 
performed to assess the confidence one has in the modeled results and 
to help assess the adequacy of a proposed strategy when the outcome of 
local scale modeling is close to attainment.
    The three States provided WOE arguments in their attainment 
demonstration plans to further corroborate that it is likely their 
attainment demonstrations contained sufficient local measures for the 
Washington area to attain the 1-hour ozone standard by the statutory 
date of November 15, 2005. In the 2004 SIP revisions, the States 
augmented with additional evidence the same WOE analysis used in the 
now superceded and withdrawn attainment demonstration plans submitted 
during 1998 and 2000 (the court in Sierra Club II upheld EPA's use of 
this particular WOE analysis. See 356 F.3d at 307) This additional 
evidence includes a demonstration that the 2004 SIP revisions provide 
for a larger percent reduction of 1990 base line emissions than the now 
withdrawn attainment demonstration plans submitted during 1998 and 
2000. The States and the District used EPA-developed design value 
adjustment factors based on regional scale modeling performed for the 
NOX SIP Call SNPR. These adjustment factors were used to 
adjust the 1996 area design values. The analysis showed all area 
adjusted design values below the level needed for attainment (124 ppb).
    Because the local modeling for the Washington area showed some peak 
concentrations above levels deemed consistent with attainment, we 
conducted an analysis to determine what additional local emission 
reductions, if any, would be needed to support ozone attainment in the 
Washington area. Our analysis determined that the Washington area would 
not need any additional emission reductions beyond those contained in 
the area attainment demonstration plan to ensure attainment of the 1-
hour ozone NAAQS.
    The States evaluated the effect of the changes to the base year and 
future inventories have on the relative reduction in emissions provided 
by the controlled 2005 attainment year emissions in comparison to that 
percentage change modeled in the photochemical grid modeling. EPA has 
reviewed this analysis, and determined that the percent reduction from 
the base year emissions provided by the ROP plan is greater than the 
reductions assumed in the photochemical grid modeling as follows:
    (a) A 38 percent reduction in 1990 NOX emissions by 2005 
from on-road mobile sources whereas the photochemical grid modeling 
assumed a 25 percent reduction;
    (b) A 67 percent reduction in 1990 VOC emissions by 2005 from on-
road mobile sources whereas the photochemical grid modeling assumed a 
50.8 percent reduction;
    (c) An overall 43.5 percent reduction in 1990 NOX 
emissions by 2005 from all sources (point plus area plus nonroad plus 
on-road) whereas the photochemical grid modeling assumed an overall 
33.1 percent reduction; and
    (d) An overall 42.8 percent reduction in 1990 VOC emissions by 2005 
from all sources (point plus area plus nonroad plus on-road) whereas 
the photochemical grid modeling assumed an overall 31.7 percent 
reduction.
    These changes result from inclusion of all the measures in the Post 
1996-1999 and Post 1999-2005 ROP plans. The projected 2005 year 
NOX emissions levels resulting from measures for which EPA 
is proposing to credit towards the 2005 target of the ROP plans is 
491.4 tons/day versus a 2005 ROP target level of 539 tons/day of 
NOX. EPA has proposed to approve the ROP plans. See 70 FR 
2085, January 12, 2005.
    EPA believes that where a State relies on changes in emissions from 
the base year to an attainment or maintenance year inventory to 
estimate using photochemical grid modeling relative changes in 
monitored ozone levels, the State may rely upon a previous 
photochemical modeling analysis when the State demonstrates that the 
relative emission reductions between the base year and the attainment 
or maintenance year are the same or greater using MOBILE6 than they 
were using MOBILE5. In any case, if using the latest planning 
assumptions for emissions estimates results in changes to other 
emissions categories (e.g., point or area emissions), the demonstration 
would apply to the entire inventory, rather than just the on-road 
mobile inventory. See Joint Memorandum dated January 18, 2002, From 
John S. Seitz, Director, Office of Air Quality Planning & Standards, 
and Margo Tsirigotis Oge, Director of Office of Transportation and Air 
Quality, ``Policy Guidance for the Use of MOBILE6 in SIP Development 
and Transportation Conformity''. EPA concludes that the 2004 SIP 
revisions demonstrate that the reduction in emissions by 2005 relative 
to the 1990 base year emissions are far greater than that assumed in 
the photochemical grid modeling and thus the States may rely upon the 
prior modeling analysis.
3. Attainment and Transport
    Boundary condition sensitivity modeling was performed for the 
Washington area using OTAG Base 1C and Run I boundary conditions. The 
OTAG Base 1C boundary conditions reflect the boundary conditions that 
will result from the implementation of all Clean Air Act mandated 
controls. OTAG Run I boundary conditions closely approximate the 
boundary conditions that will result from CAA measures and the 
additional emission reductions anticipated from the NOX SIP 
Call. The Washington area model runs with OTAG Base 1C boundary 
conditions were compared to the runs with OTAG Run I boundary 
conditions. The model run with OTAG Run I boundary conditions show a 5 
to 10 ppb reduction in peak ozone concentrations in areas with modeled 
peak concentrations above 124 ppb. A 5 to 10 ppb increase in ozone 
concentrations would increase projected design values based upon local 
modeling over 124 ppb and would increase future predicted exceedances 
beyond the range consistent with attainment. The District's, Maryland's 
and Virginia's submittals for the Washington area demonstrate 
attainment of the 1-hour ozone standard by including in their analysis 
the reduction of ozone and ozone precursor transport that will result 
from regional NOX controls.
4. Control Strategies in the Attainment Demonstration
    The attainment demonstration describes the emission reduction 
credits that the Washington area jurisdictions are claiming toward 
their attainment demonstration. Just as for ROP plans, we can credit 
reductions in the attainment demonstration for rules promulgated by the 
EPA and for state measures approved into SIP. The control measures used 
in the attainment demonstration for the Washington area are listed in 
Table 3 of this document and described in more detail in the TSD for 
this rulemaking.

[[Page 6804]]



  Table 3.--2002 and 2005 VOC and NOX Emission Reductions From Measures in the Attainment Demonstration for the
                                                 Washington Area
                                                   [Tons/Day]
----------------------------------------------------------------------------------------------------------------
                                                                 2002 reductions            2005 reductions
         Line No.                      Measure             -----------------------------------------------------
                                                                VOC          NOX           VOC           NOX
----------------------------------------------------------------------------------------------------------------
1........................  Tiers 1 & 2 FMVCP, Reformulated         56.0         44.9         80.5          85.8
                            Gasoline (On-road), Federal
                            Heavy Duty Diesel Engines
                            rule, NLEV & Enhanced
                            Inspection and Maintenance.
2........................  Reformulated Gasoline (Nonroad/          2.7  ...........          2.9   ............
                            Off-road).
3........................  Surface Cleaning/Decreasing....          9.3  ...........          9.8   ............
4........................  Autobody Refinishing...........          9.3  ...........          9.8   ............
5........................  AIM............................         16.7  ...........         17.5   ............
6........................  Consumer Products..............          4.1  ...........          4.3   ............
7........................  Seasonal Open Burning Ban......          7.4          1.6          7.4           1.6
8........................  Graphics Arts..................          3.8  ...........          4.0   ............
9........................  Landfill Regulations...........          2.4  ...........          2.5   ............
10.......................  Non-CTG RACT to 50 tons/yr MD/           1.5  ...........          1.5   ............
                            VA/DC.
11.......................  Stage I Enhancement............          1.5  ...........          1.6   ............
12.......................  Expanded State Point Source              2.4  ...........          2.5   ............
                            Regulation/VOC RACT to 25 tpy.
13.......................  Stage II Vapor Recovery Nozzles         15.1  ...........         15.1   ............
14.......................  RFG refueling benefits.........          2.6  ...........          2.3   ............
15.......................  Non-road Gasoline Engines Rule.         22.2  ...........         26.6   ............
16.......................  Non-road Diesel Engines........  ...........         14.9  ............         22.1
17.......................  State NOX RACT/beyond RACT.....  ...........        203.8  ............        279.4
18.......................  State Portable Fuel Container            0.9  ...........          2.4   ............
                            Rules--MD/VA.
19.......................  State Solvent Cleaning Rules--   ...........  ...........          9.0   ............
                            VA.
20.......................  EPA's Non-road Engines and       ...........          0.6  ............          0.5
                            vehicles rule--Large Spark
                            Ignition Engine Rule.
21.......................  EPA's Non-road Engines and               1.3  ...........          3.1   ............
                            vehicles rule--Spark Ignition
                            Marine Engines.
22.......................  TCMs in 2004 SIP Revisions.....          0.3          0.5          0.3           0.7
23.......................  State AIM Rules................  ...........  ...........         12.3   ............
24.......................  Voluntary Measures Bundle......  ...........  ...........          3.19           .19
25.......................  State Portable Fuel Container    ...........  ...........          0.2   ............
                            Rules--DC.
                                                           --------------
                            Total Reductions..............        154.3        266.3        213.39        390.29
----------------------------------------------------------------------------------------------------------------

5. Creditable Reductions in the Attainment Demonstration
    As stated previously, emissions reductions may be credited in an 
attainment demonstration from rule in the ``applicable implementation 
plan,'' from a rule promulgated by EPA, or from a permit issued 
pursuant to Title V of the Act. The term ``applicable implementation 
plan'' is defined in section 302(q) of the Act to mean the SIP approved 
by EPA. All of the reductions from national rules for which the States 
seek credit in the attainment demonstration have been promulgated by 
EPA. All of the reductions from State rules listed in lines 1 through 
21 of Table 3 for which the States seek credit in the attainment 
demonstration have been approved into the applicable SIPs. As for the 
rest of the State measures, EPA may only credit the attainment 
demonstration with reductions from a measure approved into the 
applicable SIP, and, hence, can only issue a final rule approving the 
attainment plan after or concurrently with EPA's approval of the state 
measures projected to generate sufficient reductions to demonstrate 
attainment. However, EPA may propose approval of an attainment 
demonstration if we have proposed approval of the measures which are 
projected to generate sufficient reductions to demonstrate attainment. 
EPA has already proposed approval for all the measures listed in Table 
3 as follows:
    (a) 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;
    (b) EPA proposed approval of the District's AIM rule on December 
27, 2004 (69 FR 77149);
    (c) EPA proposed approval of the Maryland and Virginia Voluntary 
Measures on December 23, 2004 (69 FR 76889);
    (d) EPA proposed approval of the District's Portable Fuel Container 
Rules rule on December 29, 2004 (69 77970); and
    (e) EPA proposed approval of transportation control measures (TCMs) 
Maryland's, Virginia's and the District's SIPs on January 12, 2005 (70 
FR 2085).

B. How Has RACM Been Satisfied?

    The 2004 SIP Revisions address the RACM requirement in several 
ways. First, the 2004 SIP Revisions contain an analysis that no 
remaining RACM remain. Secondly, the 2004 SIP Revisions detail the 
control measures in the SIP and the projected benefits from the 
measures in the SIP in conjunction with those federal measures 
promulgated by EPA.
1. How Did the States Analyze Measures?
    The analyses submitted by the States as part of the 2004 SIP 
revisions addresses the RACM requirement. The States first analyzed 
each measure in terms of economic and technological feasibility. If a 
measure was determined to be either economically or technologically 
infeasible, the States did not consider the measure further. If the 
States concluded that the measure was feasible, the States compared 
estimated benefits against a de minimis threshold of 0.1 tons per day 
(tons/day). The States then considered whether the measure could be 
implemented in time to advance the attainment date. For the

[[Page 6805]]

first step in determining whether a measure might advance the 
attainment date, the States determined whether the measure could 
achieve reductions by May 2004. For those measures that the States 
concluded be implemented by May 2004, the States determined if the 
aggregate reductions from these measures would advance the attainment 
date.
How Did the States Determine Economic Reasonableness?
    The State analysis rejected measures that were not technologically 
and/or economic ally feasible based upon whether or not they would 
cause widespread and substantial adverse impacts or would require 
intensive resources/costs to implement, thereby placing an undue burden 
on the affected sources and/or state without commensurate environment 
benefits to reduce ozone.
    The States screened measures for economic feasibility by comparing 
the cost effectiveness of a potential measure versus the cost 
effectiveness of RACT for stationary sources and versus the cost 
effectiveness of those emission mitigation measures (commonly referred 
to as transportation emission reduction measures or TERMS) adopted in 
the transportation improvement plans in order to demonstrate 
conformity. The States concluded that the cost effectiveness threshold 
for RACT and TERMS less than $10,000 per ton of emissions reductions. 
However, to ensure consideration of some measures that exceed this 
threshold, the States established a cut-off of $20,000 per ton. The 
States established a 0.1 tons/day cutoff to exclude an otherwise 
feasible measure on the grounds that a large number of these would be 
necessary to advance the attainment date and thus would pose an undue 
burden to implement.
    The States' analysis process eliminated measures that were 
technically infeasible in the Washington area. The States also 
eliminated each measure that either was not determined to be cost-
effective, or that would produce a less than 0.1 tons/day reduction.
How Did the States Determine if Measures Would Advance the Attainment 
Date?
    The States then considered whether the measure could be implemented 
in time to advance the attainment date. For the first step in 
determining whether a measure might advance the attainment date, the 
States determined whether the measure could deliver reductions by May 
2004 (the beginning of the last ozone season before the attainment year 
of 2005). The States eliminated any measure that could not do so on the 
grounds that it would not reduce the potential for exceedances during 
the 2004 ozone season. The next step in determining whether a measure 
might advance the attainment date, the State estimated the benefits of 
each measure which had not been eliminated and totaled the estimated 
benefits for all of these remaining measures. The States then 
considered whether these measures in the aggregate would provide 
sufficient reductions to advance the attainment date.
    The photochemical grid modeling analysis assumed a 32 percent 
reduction in VOC emissions and a 29 percent reduction in NOX 
emissions relative to the 1990 base year anthropogenic emissions. The 
revised 1990 base year anthropogenic emissions inventories are 869.3 
tons/day of NOX and 578.7 tons/day of VOC emissions. 
Reducing these by 29 and 32 percent, respectively, would yield 
emissions levels of 617.2. tons/day of NOX and 393.5 tons/
day of VOC emissions. The reductions (relative to the 1990 base year 
emissions) needed to achieve these levels are 252.1 tons/day of 
NOX and 185.2 tons/day of VOC.
    The Post-1996 ROP plan for 1999-2005 projects that the measures in 
the ROP plan would result in emissions levels of 373.3 tons/day of VOC 
and 614.3 tons/day of NOX emissions and be sufficient to 
achieve the relative reduction in emissions modeled as part of the 
photochemical grid modeling sometime before November 15, 2002. In other 
words, the measures supporting the ROP plan would be in place before 
the start of the 2003 ozone season.
    EPA has concluded, based upon the Urban Airshed Model modeling in 
the attainment demonstration that the Washington area is significantly 
affected by transport of ozone precursors from a number of upwind 
States (63 FR 57356, October 27, 1998). Under the final NOX 
SIP call rule such significant contribution would not likely be 
mitigated prior to May 2004 when the states upwind of the Washington 
area were required to implement measures to eliminate their downwind 
contribution to ozone nonattainment. The Washington area relies on 
background reductions of transported ozone to attain the 1-hour ozone 
standard. Therefore, advancing the attainment date for the Washington 
area would require sufficient additional reductions within the 
Washington area to fully mitigate the significant transport component.
    The States have quantified the transport impact in their 
photochemical grid modeling. The States performed boundary condition 
sensitivity modeling for the Washington area using various boundary 
conditions reflecting the conditions that will result from the 
implementation of only the Clean Air Act mandated controls versus those 
that closely approximate the boundary conditions that will result from 
the additional emission reductions anticipated from the NOX 
SIP call. The model run with boundary conditions approximating the 
NOX SIP call show a 5 to 10 ppb reduction in peak ozone 
concentrations in areas with modeled peak concentrations above 124 ppb 
in comparison with the model run without the NOX SIP call.
    In their RACM analysis the States used the locally derived 
sensitivity modeling analysis results to determine that a one ton 
reduction in NOX emissions within the Washington area would 
result in a peak ozone concentration reduction of 0.114 ppb; a similar 
analysis for VOC emissions yielding a result that a one ton reduction 
in VOC emissions would result in a peak ozone concentration reduction 
of 0.029 ppb. The States concluded that emissions reductions of 34.0 
tons/day of VOC or 8.8 tons/day NOX would have to be 
required within the Washington area in order to mitigate 1 ppb of the 
transported contribution. The States used these thresholds to determine 
if potential RACM (which had passed the technically and economically 
feasible ``test'' in the aggregate) would be sufficient to offset 1 ppb 
of transported ozone and ozone precursors.
3. What Measures Did the States Consider and What Did the States 
Conclude?
    Stationary Source Control Measures--The stationary source controls 
that were considered included the adoption of additional levels of 
NOX controls on large stationary sources beyond the rules 
already approved into the SIPs or the RACT rule changes required by the 
reclassification of the area to severe nonattainment. The States 
concluded that the necessary regulations could not be promulgated in 
time to deliver benefits by May 2004.
    Area Source Control Measures--The area source controls that were 
considered included airport congestion pricing, measures to reduce 
aircraft idling at airports, adoption of rules to reduce emissions from 
small bakeries, banning road paving and traffic marking activities on 
ozone action days, various regulations to require low emission asphalt, 
furnaces and water heaters, control of locomotive idling or incentives 
to repower locomotives,

[[Page 6806]]

expanding RACT rules to areas outside the Washington area. The States 
concluded that only the episodic restriction on road paving and traffic 
marking activities on ozone action days and the locomotive idling 
measures passed the initial criteria of economic and technical 
feasibility, exceeded the 0.1 tons/day threshold, and could be 
implemented by May 2004. The States estimated the benefits from these 
measures to see if these measures along with others would provide 
sufficient reductions to advance the attainment date.
    Non-Road Mobile Control Measures--The States considered a variety 
of potential nonroad mobile source control measures such as requiring 
existing equipment be retrofitted, requiring the use of low-
NOX fuel by agricultural and other nonroad equipment, 
offering cash rewards to owners to scrap older, higher-emitting 
equipment, awarding preference in government contracts for lawn 
maintenance to bidders using low-emission equipment, or develop a 
voluntary program to reduce idling by airport ground service equipment. 
Most of the measures were determined not to be RACM because the 
measures did not meet the economic feasibility threshold or would not 
deliver benefits by May 2004. The States concluded that two measures--
awarding preference in government contracts for lawn maintenance to 
bidders using low-emission equipment, and developing a voluntary 
program to reduce idling by airport ground service equipment--passed 
the initial criteria of economic and technical feasibility, exceeded 
the 0.1 tons/day threshold, and the could be implemented by May 2004. 
The States estimated the benefits from these measures to see if these 
measures along with others would provide sufficient reductions to 
advance the attainment date.
    On-Road Mobile Control Measures--The States considered over 100 
potential on-road mobile source control measures. The States considered 
measures that fall into the following general categories: Alternative 
fuel vehicles; bicycle and pedestrian improvements; early retirement of 
older motor vehicles; land use and development changes; transit 
improvements; employer based programs; traffic flow improvements; 
outreach and education; parking restrictions; market-based/economic 
incentive-based program; low emission vehicle standards; and other 
measures such as trip reduction ordinances, and highway ramp metering. 
The States considered various measures to increase the numbers of 
advanced technology vehicles, such as additional low emission buses for 
the transit system. The States considered traffic system and traffic 
flow improvements such as additional HOV lanes, allowing the use of 
right-turn-on-red, and installation of round-abouts (traffic circles) 
instead of traffic lights. The States considered land use measures such 
as incentives for mixed use at transit centers, in-fill development and 
zoning changes to allow neighborhood retail outlets in residential 
areas. The States considered various market strategies such as a fee on 
every commuter parking space in the area, annual surcharge on gasoline 
powered vehicles in the area, cash for clunkers, commuter choice 
programs, voluntary cash-out subsidies, a VMT tax, congestion pricing 
and free parking for carpools. The States considered various outreach 
programs including an employer outreach program to encourage 
implementation of alternative commuting and a mass marketing campaign 
aimed at increasing transit usage and ridesharing. The States 
considered transit improvements such as flat fare for transit, bus 
service expansion, or providing for ``queue jumps by transit buses at 
over-capacity signalized intersections.\5\ The States concluded that a 
number of measures passed the initial criteria of economic and 
technical feasibility, exceeded the 0.1 tons/day threshold, and could 
be implemented by May 2004. These measures were: (1) Telecommuting 
centers--including marketing activity, commuter and employer 
information and assistance; (2) government actions--ozone action day 
similar to snow day--implement a liberal leave policy for local, state 
and federal employees on code red ozone action days, permitting 
employees to work from home or take unscheduled leave; (3) integrated 
rideshare--to provide transit, park & ride, and telecenter information 
to all commuters on a match list; (4) permit right turn on red to 
reduce vehicle idling time by permitting right turn on red, where 
safety allows; (5) employer outreach (private sector) to provide 
regional outreach to encourage large private-sector employers to 
voluntarily implement alternative commute strategies to reduce vehicle 
trips to work sites; (6) mass marketing campaign marketing effort 
involving business-to-business advertising campaign in print media and 
on world wide web to increase transit, ridesharing and other travel 
demand management programs; (7) transit prioritization--queue jumps to 
provide queue jumps for buses at over-capacity signalized intersections 
throughout the region. For these measures, the States estimated the 
benefits and aggregated the results to see if these measures along with 
others would provide sufficient reductions to advance the attainment 
date.
---------------------------------------------------------------------------

    \5\ A ``queue jump'' allows a bus to use a shoulder or other 
designated lane to bypass intersection queues (line of other 
vehicles) and move forward towards the stop line.
---------------------------------------------------------------------------

    The estimated aggregate benefits from all of the measures described 
in the preceding paragraphs that passed the economic and technical 
feasibility test, exceeded the 0.1 tons/day threshold, and could be 
implemented by May 2004 was 5.1 tons/day of VOC and 3.4 tons/day of 
NOX reductions. The States concluded that these measures in 
the aggregate would not advance the attainment date even if implemented 
collectively. This is because 5.1 tons/day of VOC and 3.4 tons/day of 
NOX do not not equal or exceed the 34.0 tons/day VOC or 8.8 
tons/day NOX emission reductions necessary to mitigate1 ppb 
of transported ozone.
4. What Is EPA's Analysis of the RACM Demonstration?
    EPA believes the States' process is sound and reasonable. The first 
logical step is to screen-out infeasible measures. As for the cost-
effectiveness threshold EPA finds the States' cutoff is reasonable. EPA 
has recognized that cost-effectiveness is a factor in determining what 
emission limitation is RACT. EPA has provided guidance to allow States 
to set de minimis levels for exemption of small emissions units from 
NOX RACT rules. Part of this determination was the cost-
effectiveness of controls. EPA used a cut-off of $1,300 per ton reduced 
as a cut-off.\6\ The States started with a $8,000 to $10,000 per ton 
cutoff. Secondly, the States have recognized that the TERMS which are 
adopted as part of the transportation conformity analysis reflect a 
judgement of what the agency responsible for funding transportation 
related considers economically reasonable. By doubling the $10,000 per 
ton threshold to a $20,000 per ton cut-off the States considered more 
measures to be presumptively reasonable.
---------------------------------------------------------------------------

    \6\ See the memorandum entitled ``De Minimis Values for 
NOX RACT'' G. T. Helms, Group Leader, Ozone Policy and 
Strategies Group (MD-15), to the Air Branch Chiefs, Region I--X, 
dated January 1, 1995.
---------------------------------------------------------------------------

    EPA agrees with the states that part of the determination as to 
whether measures advance the attainment date has to consider the need 
to mitigate ozone transport from upwind areas. EPA finds that the 
States have been conservative when determining that a suite of measures 
(that pass the initial

[[Page 6807]]

feasibility and reasonableness tests) in the aggregate will not advance 
the attainment date if the total reductions are not projected to reduce 
peak ozone concentration by 1 ppb. After all, EPA believes the local 
photochemical grid modeling analyses indicate that 5 to 10 ppb in peak 
ozone concentrations is attributable to upwind emissions that will be 
mitigated by the NOX SIP call. The States' 1ppb ``contribute 
to attainment significance threshold'' is only one-fifth that size and 
less than one-one-hundredth of the 1-hour ozone NAAQS. Given that 
reductions of 34.0 tons/day of VOC or 8.8 tons/day of NOX 
are needed to reduce peak ozone concentrations in the Washington area 
by 1 ppb, EPA believes the 0.1 tons/day reduction threshold for 
eliminating measures is also reasonable.
    For those measures which the States concluded passed the initial of 
economic and technical feasibility criteria, EPA concurs that these 
measures are not RACM. The total estimated benefits are far less than 
the 34.0 tons/day of VOC or 8.8 tons/day of NOX emission 
reductions necessary to mitigate 1 ppb of transported ozone and are 
small in comparison with the reductions needed to achieve attainment 
(252.1 tons/day of NOX and 185.2 tons/day of VOC).
    The States have adopted rules to reduce emission from many of the 
area VOC source categories. These rules include solvent cleaning 
operations, lithographic printing operations, open burning, and 
landfills. The recently adopted measures to regulate or further 
regulate architectural and industrial maintenance coatings, solvent 
cleaning operations and portable fuel containers will provide 
additional emission reductions of ozone precursors. Under the November 
30, 1999 guidance EPA needs to consider whether the State's 
implementation schedules are as expeditiously as practicable. Given 
that the implementation/compliance dates for these States' measures 
have already past, EPA cannot realistically require the States to 
implement the measures any more quickly.
    The photochemical grid modeling analysis assumed a 32 percent 
reduction in VOC emissions and a 29 percent reduction in NOX 
emissions relative to the 1990 base year anthropogenic emissions. The 
revised 1990 base year anthropogenic emissions inventories are 869.3 
tons/day of NOX and 578.7 tons/day of VOC emissions. 
Reducing these by 29 and 32 percent, respectively, would yield 
emissions levels of 617.2 tons/day of NOX and 393.5 tons/day 
of VOC emissions. The Post-1996 ROP plan for 1999-2005 projects that 
the measures in the ROP plan would result in emissions levels of 614.3 
tons/day of NOX and 373.3 tons/day of VOC, and be sufficient 
to achieve the relative reduction in emissions modeled as part of the 
photochemical grid modeling sometime before November 15, 2002. In other 
words, the measures supporting the ROP plan would be in place before 
the start of the 2003 ozone season. EPA concludes that the SIPs 
provided for sufficient reductions to advance the attainment date where 
it not for transported emissions due to be mitigated at the start of 
the 2004 ozone season under the NOX SIP Call.
    The EPA, therefore, concludes that the States have adopted all 
RACM.

C. The District's, Maryland's and Virginia's Submittals To Satisfy 
EPA's Framework for Proposing Action on Attainment Demonstration SIPs

1. CAA Measures and Measures Relied on in the Modeled Attainment 
Demonstration
    Table 2 contains a summary of the CAA required ozone SIP elements 
for severe areas. The following paragraphs discuss the approval status 
of the elements listed in Table 2.
    (a) NSR--For each of the three States, EPA has either approved or 
proposed for approval a SIP revision to implement the severe area NSR 
requirements in the Washington area for both VOC and NOX 
including an offset ratio of 1.3:1 and a major source applicability 
definition of 25 tons/year. See 69 FR 77690, December 28, 2004; 69 FR 
56170, September 20, 2004; and 69 FR 48150, August 9, 2004, for the 
District, Maryland, and Virginia, respectively.
    (b) RACT--For each of the three States, EPA has fully approved a 
SIP revision to implement Reasonably Available Control Technology 
(RACT) for major sources of VOC and NOX with major source 
size definition of 25 tons/year. See 69 FR 77690, December 28, 2004; 69 
FR 56170, September 20, 2004; and 69 FR 48150, August 9, 2004, for the 
District, Maryland, and Virginia, respectively.
    (c) Enhanced I&M--For each of the three States, EPA has fully 
approved a SIP revision to implement an Enhanced Inspection and 
Maintenance (I/M) program in the Washington area. See 64 FR 31498, June 
11, 1999; 64 FR 47670, September 1, 1999; and 64 FR 58340, October 29, 
1999.
    (d) 15 Percent Plans--For each of the three States, EPA has fully 
approved a SIP revision for the 15 percent volatile organic compound 
reduction (VOC) rate-of-progress plan for the Washington area. See 64 
FR 42629, August 5, 1999;65 FR 44686, July 19, 2000; and, 65 FR 59727, 
October 6, 2000.
    (e) Base Year Inventories--For each of the three States, EPA has 
fully approved a SIP revision consisting of a 1990 base year emissions 
inventory for the Washington area. See 63 FR 36864, July 8, 1998. On 
January 12, 2005 (70 FR 2085), EPA published a proposed rule approving 
amendments to the base year inventories.
    (f) Emission Statements--For each of the three States, EPA has 
fully approved a SIP revision to require emission statements in the 
Washington area. See 59 Fed. Reg. 51517, October 12, 1994; 60 Fed. Reg. 
21451, May 2, 1995; and, 60 Fed. Reg. 27889, May 26, 1995.
    (g) RACM--In section IV. B. of this document, we provide our 
analysis and determination that the SIP revisions submitted by the 
District, Maryland and Virginia satisfy the RACM requirement.
    (h) Modeled Attainment Demonstration--In section IV. A. of this 
document, we provide our analysis and determination that the modeled 
demonstration of attainment for the Washington area submitted by the 
District, Maryland and Virginia satisfies the Act and applicable 
guidance. Furthermore, the District, Maryland and Virginia have adopted 
and submitted sufficient measures to support that attainment 
demonstration, and the weight of evidence and relative reduction tests.
    (i) Post 1996--2005 ROP Plans--On January 12, 2005 (70 FR 2085), 
EPA published a proposed rule to approve SIP revisions consisting of 
both a post 1996 to 1999 ROP plan and a post 1999-2005 ROP plan from 
the District, Maryland and Virginia for the Washington area.
    (j) NLEV--For each of the three States, EPA has fully approved a 
SIP revision which substituted NLEV for the clean fuel fleet program 
the Washington area. See, 65 FR 44981, July 20, 2000 and 64 FR 72564, 
December 28, 1999.
    (k) PAMS--For each of the three States, EPA has fully approved a 
SIP revision to implement the photochemical assessment monitoring 
stations (PAMS) in the Washington area. See, 60 FR 47081, September 11, 
1995.
    (l) Stage II Vapor Recovery--For each of the three States, EPA has 
fully approved a SIP revision to fully implement Stage II vapor 
recovery in the Washington area. See, 59 FR 29730, June 9, 1994; 59 FR 
32353, June 23, 1994; and, 64 FR 57777, October 27, 1999.
    (m) VMT Offset SIP--For each of the three States, on January 12, 
2005 (70 FR 2085), EPA published a NPR proposing

[[Page 6808]]

to approve SIP revisions including the VMT Offset SIPs.
    (n) 185 Penalty Fee SIPs--On January 12, 2005 (70 FR 2085), EPA 
published a NPR proposing to approve the District's and Virginia's SIP 
revisions to enforce the penalty fees pursuant to CAA section 185 in 
the Washington area if the area fails to attain the 1-hour ozone NAAQS 
by November 15, 2005 (or by any attainment date extension granted 
pursuant to section 181 of the CAA). On May 21, 2004, EPA issued a 
finding that Maryland failed to submit a SIP revision to implement 
section 185 of the CAA. See, 69 FR 29236, May 21, 2004.
2. NOX Reductions Consistent With the Modeling Demonstration
    Inside the Baltimore-Washington modeling domain, the District, 
Maryland and Virginia modeled only the measures indicated in Table 3. 
The only NOX control measure beyond CAA requirements was an 
additional level of control beyond RACT at large stationary sources of 
NOX in the District's and Maryland's portion of the 
Washington area. As explained previously, all of the measures in Table 
3 have been Federally promulgated, approved as SIP revisions, or have 
been proposed for approval as SIP revisions.
3. Motor Vehicle Emissions Budgets
    As discussed previously, the MVEBs are the estimate of motor 
vehicle emissions in the attainment year that, when considered with 
emissions from all other sources, is consistent with attainment. The 
attainment demonstrations for the Washington area contain levels of 
modeled emissions that the EPA concludes demonstrate attainment once 
transport from upwind areas is addressed. The States have demonstrated 
that revised MVEBs for 2005 in the attainment demonstration for the 
Washington area are adequate by showing that overall emissions 
reductions (including those resulting in the 2005 MVEBs), when 
considered with emissions reductions from all other sources by 2005, 
are greater than the relative reduction assumed in the modeling 
demonstration.
    The EPA has interpreted the general adequacy criteria with respect 
to the 1-hour ozone attainment demonstrations to require the motor 
vehicle emissions budgets to include the effects of all motor vehicle 
controls, including federal measures and the mobile source control 
measures assumed in the NOX SIP Call, that will be in place 
in the attainment year. Therefore, the revised motor vehicle emissions 
budgets presumptively must include all currently promulgated federal 
measures and state SIP measures and opt-ins shown in Table 4.

    Table 4.--On-Road Mobile Source Control Measures Contributing to
   Attainment of the 1-Hour Ozone NAAQS in the Washington Area in 2005
------------------------------------------------------------------------
                                                    In the 2005 motor
       Control measure          Implementation      vehicle emissions
                                     year                budget?
------------------------------------------------------------------------
Federal Motor Vehicle Control
 Program (FMVCP):
    Tier 1...................              1994  Yes.
    Tier 2...................              2004  Yes.
High enhanced I/M (CAA                     1997  Yes.
 Mandate).
Reformulated Gasoline (State
 Opt-in):
    Phase I..................              1995  Yes.
    Phase II.................              2000  Yes.
Clean Fuel Fleets Substitute--             1999  Yes.
 National Low Emissions
 Vehicles (NLEV).
Federal Heavy-duty Diesel                  2004  Yes.
 Vehicle (HDV) 2 gm std.
------------------------------------------------------------------------

4. Tier 2/Sulfur Program Benefits
    The EPA concludes that based on the modeling and WOE that the 
Washington area would not need any additional emission reductions 
beyond those contained in the area attainment demonstration to ensure 
attainment of the ozone NAAQS by 2005. Like other areas that rely, in 
part or in full, on Tier 2 reductions in order to demonstrate 
attainment, the States developed the Washington area attainment 
demonstration in the 2004 SIP revisions with the MOBILE6 model.
5. Mid-Course Review (MCR)
    The EPA requires receipt of an enforceable commitment to include a 
MCR from each of the three Washington area States before their 
attainment demonstrations can be approved. The three States submitted 
these commitments in section 10.8 of the 2004 SIP revisions. The EPA 
has concluded that the enforceable commitments found in section 10.8 of 
the 2004 SIP revisions are approvable.

    Note: On December 16, 2004, the District of Columbia and the 
Commonwealth of Virginia each submitted a MCR for the Washington 
area. On December 20, 2004, the State of Maryland submitted a MCR 
for the Washington area.

6. Contingency Measures
    On January 12, 2005 (70 FR 2085), EPA published a NPR proposing 
approval of the three States contingency measures plans for the 
Washington area to address any potential failure to attain by the 
severe area attainment deadline of November 15, 2005 as well as any 
failures to demonstrate ROP.

V. MVEBs and a Protective Finding

    A set of MVEBs only apply and may be used for purposes of 
transportation conformity once they have either been SIP-approved or 
found adequate by EPA. 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. First, there 
must not be any other SIP-approved MVEBs that have been established for 
the same time frame and with respect to the same CAA requirements. 
Second, MVEBs in submitted SIPs may not be used before we have approved 
the SIP unless we have found that the submitted SIP's MVEBs are 
adequate for conformity purposes. Our process for determining adequacy 
is explained at 40 CFR 93.118(e) and the EPA's May 14, 1999 memo 
entitled, ``Conformity Guidance on Implementation of March 2, 1999 
Conformity Court Decision'' both as amended by 69 FR 40004, July 1, 
2004. For more details about the applicability of submitted and 
approved budgets, see 61 FR 36117, July 9, 1996; 62 FR at 43783-43784, 
August 15, 1997; and 69 FR 40004 at 400038, July 1, 2004.

[[Page 6809]]

A. What MVEBs Currently Apply in the Washington Area?

    As stated elsewhere in this document, EPA's approvals of the1996-
1999 ROP plan and the earlier versions of the attainment demonstration 
SIP revisions (those submitted during 1998 and 2000) 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 those earlier versions of the 
attainment demonstration SIP revisions 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 percent 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 and 2005 
attainment year MVEBs 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 superceded the MVEBs in the 
15 percent ROP plan because these 2005 budgets cover a later year and 
are more stringent. (See 40 CFR 93.118)

B. Will EPA Initiate a Separate Adequacy Review for the 2005 MVEBs in 
the Attainment Demonstration Plans Submitted in February of 2004?

    The EPA shall not initiate a separate adequacy review of the 2005 
attainment budgets of the attainment plans submitted by the three 
States in February of 2004. In this notice of proposed rulemaking, EPA 
is initiating the process of reviewing the adequacy of the 2005 MVEBs 
in the attainment demonstration SIP revisions listed in Table 1 of this 
document simultaneously with our action to approve or disapprove these 
SIP revisions. We are seeking public comments on this proposed rule 
including the adequacy of the MVEBs and will accept such comments 
provided they are submitted by as specified in the DATES and ADDRESSES 
sections of this document. We will not hold a separate comment period 
on the adequacy of these budgets through a separate adequacy process 
under the conformity rule pursuant to 40 CFR 93.118(f)(1)(i) and (ii). 
Subsequent to the close of the public comment period specified in the 
DATES of this document, we will indicate whether the 2005 MVEBs in the 
attainment demonstration revisions are adequate and thus can be used 
for conformity either: (1) In EPA's final rulemaking on these plans; or 
(2), prior to any final action, pursuant to 40 CFR 93.118(f)(1)(iii) 
through (v) and 93.118(f)(2)(iii), by informing the District, Maryland 
and Virginia in writing and by announcing the adequacy finding by 
publishing a notice of adequacy status in the Federal Register. We will 
address all comments germane to the adequacy of the MVEBs either in our 
final rulemaking action or in response to comments in the docket for 
any separate adequacy finding. See 40 CFR 93.118(f) and 69 FR 40004 at 
40041, July 1, 2004.

C. What Are the 2005 Budgets in the Attainment Demonstration?

    The 2005 MVEBS in the attainment demonstration are area-wide 
budgets covering the entire Washington area. The MVEBs for 2005 are 
97.4 tons/day of VOC and 234.7 tons/day of NOX.

D. What Effect Will This Action Have on MVEBs for the Washington Area?

    This proposed action would approve the 2005 MVEBs in the attainment 
demonstration into the District of Columbia and Virginia SIPs. In the 
case of Maryland, this action proposes to either: approve the 
attainment demonstration, contingent upon Maryland submitting an 
approvable section 185 penalty fee SIP in time for EPA to approve it 
prior to the time we must issue our final action on the attainment 
demonstration; or, in the alternative, to disapprove the Maryland 
attainment demonstration with a protective finding for the 2005 
attainment MVEBs. A protective finding is a determination by EPA that a 
submitted control strategy implementation plan revision contains 
adopted control measures that fully satisfy the emissions reductions 
requirements relevant to the statutory provision for which the 
implementation plan revision was submitted, such as attainment.

E. What Effects Might This Action Have on Transportation Planning in 
the Washington Area?

    If EPA disapproves an attainment demonstration SIP revision (with 
or without a protective finding), the conformity status of the 
transportation plan and transportation improvement plan (TIP) will 
lapse on the date that highway sanctions as a result of the disapproval 
are imposed on the nonattainment area under section 179(b)(1) of the 
CAA.\7\ No new transportation plan, TIP, or project may be found to 
conform until another control strategy implementation plan revision 
fulfilling the same CAA requirements is submitted and conformity to 
this submission is determined.
---------------------------------------------------------------------------

    \7\ The finding that EPA issued to the State of Maryland on May 
21, 2004 (69 FR 29236) for failure to submit the 185 fee SIP was 
effective June 21, 2004. So long as the section 185 fee provision 
remains an applicable requirement in the Washington area, the 
conformity status of the transportation plan and TIP will lapse on 
the date that highway sanctions are imposed pursuant to this finding 
(40 CFR 93.120(b)).
---------------------------------------------------------------------------

    Under section 93.120(a)(2) of the conformity rule (40 CFR 
93.120(a)(2)), a final disapproval of an attainment demonstration 
without a protective finding would result in a ``conformity freeze.'' 
Under a ``conformity freeze,'' only projects in the first three years 
of the currently conforming transportation plan and TIP may be found to 
conform. This means that beginning on the effective date of a 
disapproval without a protective finding, no transportation plan, TIP, 
or project not in the first three years of the currently conforming 
transportation plan and TIP may be found to conform until another 
control strategy implementation plan revision fulfilling the attainment 
demonstration requirement is submitted, EPA finds its MVEBs adequate 
pursuant to 40 CFR 93.118 or approves the submission, and conformity to 
the implementation plan revision is determined. A disapproval with a 
protective finding for the 2005 motor vehicle emissions budgets does 
not create a ``conformity freeze'' but a lapse would still occur at the 
same time the highway sanctions would be imposed for a SIP-related 
failure.

[[Page 6810]]

F. What Would Be the Basis for Issuing a Protective Finding?

    In the preamble to the 1997 amendments to the conformity rule (62 
FR 43780, August 15, 1997), EPA explained the implications of a 
disapproval of an attainment demonstration and how a protective finding 
works. The recent revisions to the conformity rule have not altered 
those explanations. When disapproving a control strategy SIP revision 
the EPA may give the SIP revision a protective finding. If the EPA 
disapproves a SIP but gives a protective finding, the MVEBs in the 
disapproved SIP could still be used to demonstrate conformity. There 
would be no adverse conformity consequences unless highway sanctions 
were imposed, as is the case with respect to all other SIP planning 
failures. As discussed previously, highway sanctions would be imposed 
two years following the EPA's disapproval if the SIP deficiency had not 
been remedied. The conformity of the plan and TIP would lapse once 
highway sanctions were imposed.
    If the EPA does not issue a protective finding then a conformity 
freeze would occur on the effective date of the disapproval. See 40 CFR 
93.120(a)(2).
    The EPA may confer a protective finding only if a submitted SIP 
contains adopted control measures that fully satisfy the emissions 
reductions requirements relevant to the statutory provision for which 
the SIP was submitted, such as demonstrating attainment. That is, the 
EPA will give such an attainment demonstration SIP submission a 
protective finding if it contains enough emissions reduction measures 
to achieve its purpose of demonstrating attainment. See 40 CFR 
93.120(a)(3). See also 62 FR 43796, August 15, 1997.
    The sole reason EPA is proposing disapproval of the Maryland 
attainment demonstration is the lack of a section 185 penalty fee SIP 
revision to cover the Maryland portion of the Washington area. The 
presence or absence of a section 185 penalty fee SIP revision does not 
impact the ability of the area to attain by the attainment date because 
the penalty fees imposed pursuant to section 185 of the CAA are 
authorized only after EPA determines that area has failed to attain the 
1-hour NAAQS by the applicable deadline. Moreover, the section 185 
penalty fee requirements do not, in and of themselves, guarantee any 
further reductions in emissions. Therefore, the effects, if any, that 
these penalty fees will have on emissions will not occur before the 
applicable attainment date and have not been relied upon in the 
attainment demonstration for the Washington area.
    The EPA is proposing that the attainment plans submitted by the 
three States demonstrate that the Washington area will attain the 1-
hour ozone NAAQS no later than November 15, 2005. The EPA believes that 
the attainment demonstration SIP submitted by the State of Maryland 
meets the requirement for a protective finding, however, the EPA will 
take final action with respect to this protective finding only if it 
finalizes the disapproval in the alternative option proposed for 
Maryland's attainment demonstration SIP.

VI. Proposed Actions

    A. District of Columbia--EPA is proposing approval of the District 
of Columbia's 1-hour ozone attainment plan for the Washington area 
which was submitted on September 5, 2003 as supplemented on February 
25, 2004. Final approval of the attainment plan is contingent upon 
final approval of the ROP plans, TCMs, VMT offset SIP and contingency 
measures plan which EPA proposed for approval on January 12, 2005 (70 
FR 2085).
    B. Maryland--EPA is proposing approval of Maryland's 1-hour ozone 
attainment plan for the Washington area which was submitted on 
September 2, 2003 as supplemented on February 24, 2004. Final approval 
of the attainment plan is contingent upon final approval of the ROP 
plans, TCMs, VMT offset SIP and contingency measures plan which EPA 
proposed for approval on January 12, 2005 (70 FR 2085). In addition, 
final approval is contingent upon the State of Maryland's submittal of 
an approvable section 185 fee SIP in time for EPA to approve it prior 
to the time we take final action on the attainment plan.
    In the alternative, EPA is proposing to disapprove Maryland's 1-
hour ozone attainment plan for the Washington area which was submitted 
on September 2, 2003 as supplemented on February 24, 2004 for its 
failure to include provisions to implement the section 185 penalty fee 
provisions of the Clean Air Act. In conjunction with this alternative 
proposed disapproval, EPA is also proposing to grant a protective 
finding for the MVEBs of Maryland's 1-hour attainment plan such that 
they could still be used for purposes of transportation conformity.
    C. Virginia--EPA is proposing approval of Virginia's 1-hour ozone 
attainment plan 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 the contingency measure plan in the 
2004 SIP revisions. Final approval of the attainment plan is contingent 
upon final approval of the ROP plans, TCMs, VMT offset SIP and 
contingency measures plan which EPA proposed for approval on January 
12, 2005 (70 FR 2085).

D. Motor Vehicle Emissions Budgets

    EPA is proposing to approve the MVEBs established and identified in 
the 1-hour ozone attainment plans for the Washington area submitted by 
the District, Maryland and Virginia on the dates as provided in this 
document. The attainment plan MVEBs for 2005 are 97.4 tons/day of VOC 
and 234.7 tons/day of NOX . In the case of the State of 
Maryland, EPA is proposing, in the alternative, to disapprove the 
attainment plan for its failure to include provisions to implement the 
section 185 penalty fee provisions the Clean Air Act. In conjunction 
with this alternative proposed disapproval, EPA is also proposing to 
grant a protective finding for the MVEBs of the attainment plan such 
that they could still be used for purposes of transportation 
conformity.
    EPA is also initiating the adequacy process under 40 CFR 93.118(f) 
for the 2005 budgets in the attainment 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.

VII. 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 the 
proposed approvals in this proposed rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The proposed 
disapproval in the alternative will not affect any existing state 
requirements applicable to small entities. Federal disapproval of

[[Page 6811]]

the state submittal does not affect its state-enforceability. Moreover, 
EPA's disapproval of the submittal does not impose a new Federal 
requirement. Therefore, the Administrator certifies that this proposed 
disapproval action does not have a significant impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 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 (UMRA) of 
1995 (Pub. L. 104-4). Sections 202 and 205 of UMRA do not apply to the 
proposed disapproval because the proposed disapproval of the SIP 
submittal would not, in and of itself, constitute a Federal mandate 
because it would not impose an enforceable duty on any entity. In 
addition, the Act does not permit EPA to consider the types of analyses 
described in section 202 in determining whether a SIP submittal meets 
the CAA. Finally, section 203 does not apply to the proposed 
disapproval because it would affect only the District of Columbia, the 
State of Maryland and the Commonwealth of Virginia, which are not small 
governments. 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, and 
Virginia's 1-hour ozone attainment plan demonstration for the 
Washington area; and to approve Maryland's 1-hour ozone attainment plan 
demonstration for the Washington area, and in the alternative, to 
disapprove Maryland's 1-hour ozone attainment plan demonstration for 
the Washington area with a protective finding for the 2005 motor 
vehicle emissions budgets 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 31, 2005.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. 05-2508 Filed 2-8-05; 8:45 am]
BILLING CODE 6560-50-P