[Federal Register Volume 70, Number 92 (Friday, May 13, 2005)]
[Rules and Regulations]
[Pages 25688-25719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9401]



[[Page 25687]]

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

Part V





Environmental Protection Agency





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



40 CFR Part 52



Approval and Promulgation of Air Quality Implementation Plans; Final 
Rules

  Federal Register / Vol. 70, No. 92 / Friday, May 13, 2005 / Rules and 
Regulations  

[[Page 25688]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[RME NO. R03-OAR-2004-DC-0009, R03-OAR-2004-DC-0010; FRL-7910-3]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, Virginia; 1-Hour Ozone Attainment 
Plans, Rate-of-Progress Plans, Contingency Measures, Transportation 
Control Measures, VMT Offset, and 1990 Base Year Inventory

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the District of Columbia (the District), the State of 
Maryland and the Commonwealth of Virginia. These revisions include the 
1996-1999 and 1999-2005 rate-of-progress (ROP) plans, changes to the 
1990 base year inventory, a contingency measures plan, certain 
transportation control measures (TCMs), and a demonstration that each 
SIP contains any necessary transportation control measures to offset 
any growth in emissions from growth in vehicle miles traveled (VMT) and 
to demonstrate ROP and attainment of the 1-hour national ambient air 
quality standard (NAAQS) for ozone. These revisions also include the 
District's and Virginia's attainment plan for the Washington, DC severe 
1-hour ozone nonattainment area (the Washington area). The intended 
effect of this action with respect to the following SIP revisions, all 
of which were submitted to satisfy the SIP requirements of 1-hour ozone 
nonattainment areas classified as severe, is to: approve the 
District's, Maryland's and Virginia's modeling demonstration, which 
includes the analysis based upon photochemical grid modeling, that the 
Washington area will attain the 1-hour ozone NAAQS; approve the 
District's, Maryland's and Virginia's post-1996 ROP plans, 1990 base 
year inventory revisions, TCMs, VMT offset and contingency measures SIP 
revisions; approve the District's and Virginia's attainment plans for 
the Washington area; and, determine that Maryland's SIP for the 
Washington area contains adopted control measures and determine that 
these measures fully satisfy the emission reductions relevant to 
attainment of the 1-hour ozone NAAQS.

DATES: Effective Date: This final rule is effective on June 13, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID Number R03-OAR-2004-DC-0010. All documents 
in the docket are listed in the RME index at http://www.docket.epa.gov/rmepub/. Once in the system, select ``quick search,'' then key in the 
appropriate RME identification number. Although listed in the 
electronic docket, some information is not publicly available, i.e., 
confidential business information (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 
for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. 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; the Maryland Department of the Environment, 1800 Washington 
Boulevard, Suite 705, Baltimore, Maryland 21230; 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:

I. Background

A. Summary

    On January 12, 2005 (70 FR 2085), EPA published a notice of 
proposed rulemaking (NPR) for the District, the State of Maryland and 
the Commonwealth of Virginia (the States). The NPR proposed approval of 
the 1996-1999 and 1999-2005 ROP plans, changes to the 1990 base year 
inventory, a contingency measures plan, certain TCMs, and a 
demonstration that each SIP contains sufficient transportation control 
measures to offset any growth in emissions from growth in VMT as 
necessary to demonstrate ROP and attainment of the 1-hour NAAQS for 
ozone.
    Tables 1 and 2 identify the initial submittal dates and the dates 
on which the States's submitted amendments for these plans and measures 
covered by our January 12, 2005 NPR:
---------------------------------------------------------------------------

    \1\ Maryland SIP revision submittals labeled as 97-04 and 99-12.

                               Table 1.--Post 1996-1999 ROP Plans From the States
----------------------------------------------------------------------------------------------------------------
                                                  DC                     MD \1\                     VA
----------------------------------------------------------------------------------------------------------------
Initial submittal dates..............  November 10, 1997......  December 24, 1997......  December 19, 1997.
Amended submittal dates..............  May 25, 1999...........  May 20, 1999...........  May 25, 1999.
----------------------------------------------------------------------------------------------------------------

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

    \2\ Maryland's identifiers for these SIP revision submittals are 
SIP revisions numbers 03-05 and 04-01.

   Table 2.--Attainment Plan, 1999-2005 ROP Plans, Contingency Measures Plan, Amendments to the 1990 Base Year
                                         Inventory, and VMT Offset Plans
----------------------------------------------------------------------------------------------------------------
                                                  DC                     MD \2\                     VA
----------------------------------------------------------------------------------------------------------------
Initial submittal dates..............  September 5, 2003......  September 2, 2003......  August 19, 2003.
Amended submittal dates..............  February 25, 2004......  February 24, 2004......  February 25, 2004.
----------------------------------------------------------------------------------------------------------------


[[Page 25689]]

    Hereafter, the SIP revisions listed in Table 2 of this document 
will be called the ``February 2004 SIP revisions.'' The States'' 
February 2004 SIP revisions include the post 1999-2005 ROP plans, the 
VMT Offset SIPs, revisions to the 1990 base year emissions inventory, 
and the contingency measures plans for ROP and attainment for the 
Washington area.\3\ The February 2004 SIP revisions additionally 
include certain TCMs, namely those TCMs identified in Appendix J of the 
SIP revision submittals.
---------------------------------------------------------------------------

    \3\ In this document a SIP revision which demonstrates the 
state's SIP contains any necessary transportation control measures 
to offset any growth in emissions from growth in VMT needed to 
demonstrate ROP and attainment of the 1-hour NAAQS for ozone is 
termed a ``VMT offset SIP.''
---------------------------------------------------------------------------

    The February 2004 SIP revisions also included the States' revised 
attainment plans for the Washington area. The States had initially 
submitted an attainment plan for the Washington area in 1998 with later 
supplements. These initial attainment plans were the subject of two 
earlier rulemaking actions, 66 FR 586, January 3, 2001, and 68 FR 
19106, April 17, 2003. The dates of submittal are shown in Table 3 
which repeats the information found in Table 2 of both the January 3, 
2001 and April 17, 2003 final rules.

                            Table 3.--Previous Attainment Demonstrations Submissions
----------------------------------------------------------------------------------------------------------------
                                                  DC                     MD \4\                     VA
----------------------------------------------------------------------------------------------------------------
Initial submittal dates..............  April 24, 1998.........  April 29, 1998.........  April 29, 1998.
Amendment dates......................  October 27, 1998.......  August 17, 1998........  August 18, 1998.
Supplemental dates...................  February 16, 2000......  February 14, 2000......  February 9, 2000.
Supplemental dates...................  March 22, 2000.........  March 31, 2000.........  March 31, 2000.
----------------------------------------------------------------------------------------------------------------

    Hereafter those revisions listed in Table 3 will be called the 
``pre-2001 SIP revisions'' attainment plan.'' \5\ Hereafter we refer to 
the collective grouping of those SIP revisions listed in Tables 1 and 3 
of this document as the ``pre-2001 SIP revisions.''
---------------------------------------------------------------------------

    \4\ Maryland's identifiers for the February 14, 2000 and March 
31, 2002 submittals are SIP revisions numbers 00-01 and No. 00-02.
    \5\ Only a commitment to revise the motor vehicle emissions 
budgets (MVEBs) found in the March 2000 SIP revisions listed in 
Table 3 of this document were subject to the January 3, 2001 and 
April 17, 2003 final rules. The portion of these SIP revisions 
related to MVEBs for years after 2005 (``outyear budgets'') was not 
subject to these actions.
---------------------------------------------------------------------------

    In their February 2004 SIP revisions, each of the States 
resubmitted to EPA the attainment plan contained in its prior SIP 
revisions' attainment plan along with additional elements required for 
a severe area attainment plan, such as a post-1999 ROP plan and the VMT 
offset SIPs, a contingency measures plan to augment the previously 
submitted 1996-1999 ROP plan and contingency measures plan, 
respectively, as well as other SIP elements not included in the 
previous SIP revisions' attainment plan.
    We proposed action on these attainment plans in a separate NPR 
published in the Federal Register on February 9, 2005 (70 FR 6796). In 
our February 9, 2005, NPR, we also proposed approval of the attainment 
plan SIP revisions submitted by the District and Virginia.
    In our February 9, 2005, NPR, with respect to the State of 
Maryland's attainment plan for the Washington area, we proposed 
approval 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 would issue a final rule on Maryland's 
attainment plan. In the alternative, we proposed to disapprove the 
attainment plan SIP revision submitted by the State of Maryland for the 
Washington area and to issue a protective finding for the attainment 
plan which would allow the motor vehicle emissions budgets (MVEBs) 
identified in the attainment plan SIP to be used for demonstrating 
transportation conformity purposes. EPA has taken a final action on the 
Maryland's attainment plan for the Washington area in a separate final 
rule which is published elsewhere in today's Federal Register. In that 
final rule, EPA is disapproving the Maryland's attainment plan for the 
Washington area because Maryland failed to submit the required fee 
program, and, pursuant to 40 CFR 93.120(a), and issuing a protective 
finding to the February 2004 SIP revisions' attainment plan. As we 
explain in that rule, the protective finding will allow Maryland to use 
the MVEBs contained in the disapproved SIP for transportation 
conformity purposes pursuant to 40 CFR 93.120. In this rule we are 
approving the modeling demonstration, which includes an analysis based 
upon photochemical grid modeling (the modeled demonstration of 
attainment and adjunct weight-of-evidence (WOE) analysis), contained in 
the District's, Maryland's and Virginia's February 2004 SIP revisions. 
We also determine that based upon this modeled demonstration of 
attainment and adjunct WOE analysis Maryland's submitted SIP for the 
Washington area contains adopted control measures that fully satisfy 
the emission reduction requirements relevant to the Washington area 
attaining the 1-hour ozone NAAQS by November 15, 2005. This 
determination supports issuance of the protective finding for 
transportation conformity purposes pursuant to 40 CFR 93.120.

B. Relationship to Past SIP Revisions and Litigation

1. Prior SIP Revisions
    During 1998, the States submitted an attainment plan for the 
Washington area and supplemented these submittals on the dates listed 
in Table 3 of this document. These 1998 and 2000 calendar year 
revisions cumulatively constituted the attainment plan for the 
Washington area which at the time was classified as being in 
``serious'' nonattainment of the 1-hour ozone NAAQS. In the aggregate 
these attainment plans consisted of a photochemical modeling 
demonstration and adjunct WOE analyses that demonstrated attainment of 
the ozone NAAQS; projected emissions inventories showing that the 
States collectively had adopted sufficient measures to support the 
demonstration of attainment; attainment year MVEBs; and a commitment to 
conduct and submit a mid-course review to EPA by a date certain. As 
noted previously, the March 2000 SIP revisions consisted of a 
commitment to revise the MVEBs one-year after EPA released the MOBILE6 
model and the outyear budgets. These pre-2001 SIP revisions' attainment 
plans were submitted to demonstrate that the Washington area would 
attain the 1-hour ozone NAAQS by no later than November 15, 2005. On 
January 3, 2001, EPA approved the pre-2001 SIP revisions and extended 
the attainment date for the Washington area (then a

[[Page 25690]]

serious nonattainment area) until November 15, 2005.
2. January 3, 2001 Final Rule Vacated
    A petition for review challenging the January 3, 2001 final 
approval was filed by the Sierra Club. The petition alleged, among 
other things, that EPA could not lawfully extend the attainment date of 
a serious ozone nonattainment area past November 15, 1999 without 
reclassifying the area as severe nonattainment, could not approve a SIP 
for an area with a 2005 attainment date unless the plan provides for 
ROP reductions after 1999 and could not approve a SIP that does not 
include contingency measures. On July 2, 2002, the U.S. Court of 
Appeals for the District of Columbia Circuit (the Court of Appeals) 
issued an opinion to vacate our rule extending the attainment date and 
approving the attainment plans and 1996-1999 ROP plans. Among other 
things, the Court of Appeals found that EPA had no authority to extend 
the attainment date of a serious ozone nonattainment area without 
reclassifying the area as severe nonattainment, and could not approve a 
SIP for an area with a 2005 attainment date unless the plan provides 
for ROP reductions until the attainment date. See Sierra Club v. 
Whitman, 294 F.3d 155, 160-163 (D.C. Cir. 2002). The Court of Appeals 
also found that EPA could not approve the pre-2001 SIP revisions 
because a contingency measures plan, which is required under section 
172(c)(9) of the Act, is one of the elements listed under section 
172(c) as a requirement for a revised SIP for an area in nonattainment. 
See Id. at 164.
3. Nonattainment Area Plan Requirements
    Under section 172(c) of the Act, a revised SIP for an area in 
nonattainment must also include elements such as an attainment 
demonstration and all reasonably available control measures (RACM), 
reasonable further progress toward attainment, an emissions inventory, 
and new source permitting programs. Under section 182(d), a revised SIP 
for an area in severe ozone nonattainment must include reasonably 
available control technology (RACT) on, and new source review (NSR) 
permitting of, major stationary sources of nitrogen oxides 
(NOX) emissions and volatile organic compound (VOC) 
emissions with a potential to emit of 25 tons per year (TPY) or 
greater; new source permitting offset ratios of 1.3 to 1 or greater; a 
VMT Offset SIP; a ROP plan to achieve a 15 percent reduction in VOC 
emissions by 1996; plans for achieving an average of a 3 percent per 
year ROP reductions after 1996 through the attainment date; and a SIP 
revision to impose the penalty fees specified in section 185 of the 
Act.
    EPA believes Sierra Club v. Whitman, 294 F.3d 155, can be read to 
require that before we can approve the overall revised SIP for the 
nonattainment area we must approve all of the elements applicable to 
the area under sections 172(c) and 182 of the Act. In this document, 
the overall SIP for the nonattainment area will be termed the 
``attainment plan.''
    Under section 182 of the Act, a demonstration that the SIPs for a 
nonattainment area, as revised, will provide for attainment of the 1-
hour ozone NAAQS by November 15, 2005 is a separate component of the 
overall attainment plan. See 42 U.S.C. 7511a(c)(2)(A). Such a 
demonstration for a severe ozone nonattainment area must be based upon 
photochemical grid modeling (or similarly effective method) and must 
show that the submitted demonstration relies upon or contains adopted 
control measures that fully satisfy the emission reduction requirements 
relevant to demonstrating attainment of the 1-hour ozone NAAQS by 
November 15, 2005. Id.
4. Washington Area Reclassified to Severe Nonattainment
    On January 24, 2003 (68 FR 3410), EPA reclassified the Washington 
area to severe nonattainment because the area failed to attain 1-hour 
ozone NAAQS by the November 15, 1999 statutory attainment date for 
serious areas. This action made the area subject to the additional 
requirements applicable to severe areas under section 182(d) of the 
Act. On April 17, 2003 (68 FR at 19107), EPA conditionally approved the 
pre-2001 SIP revisions (the history of litigation on the April 17, 2003 
conditional approval will be discussed in a later paragraph of this 
document titled ``April 17, 2003 Final Rule Vacated and Withdrawn'').
5. Recent SIP Revision Actions
    In the months that followed the January 24, 2003 reclassification 
of the Washington area to severe nonattainment and the April 17, 2003 
conditional approval, the States submitted the SIP revisions necessary 
to satisfy the requirements of section 182(d) of the Act for severe 
areas and EPA's conditional approval, with the exception of Maryland 
which failed to submit a SIP revision for the section 185 penalty fee 
program. These SIP revisions included February 2004 SIP revisions. The 
February 2004 SIP revisions contained the attainment plan which 
consists of: (1) A photochemical modeling demonstration and adjunct WOE 
analyses to demonstrate attainment of the ozone NAAQS by no later than 
November 15, 2005; (2) projected emissions inventories showing that the 
States, including Maryland, collectively had adopted sufficient 
measures to support the demonstration of attainment; (3) attainment 
year MVEBs; and (4) a commitment to conduct and submit a mid-course 
review to EPA by a date certain.\6\ In their February 2004 SIP 
revisions, each of the States resubmitted to EPA the attainment plan 
contained in the State's pre-2001 SIP revisions' attainment plan along 
with additional elements required for a severe area attainment plan, 
such as a 1999-2005 ROP plan, and a contingency measures plan to 
augment the previously submitted 1996-1999 ROP plan and contingency 
measures plan, respectively, as well as other SIP elements not included 
in the pre-2001 SIP revisions' attainment plan.
---------------------------------------------------------------------------

    \6\ The February 2004 SIP revisions did not need to contain a 
commitment to revise the MVEBs one-year after EPA released the 
MOBILE6 model because the MVEBs in these plans were developed using 
MOBILE6.
---------------------------------------------------------------------------

6. April 17, 2003 Final Rule Vacated and Withdrawn
    A petition for review challenging the April 17, 2003 final 
conditional approval 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 plan did not meet 
the requirements of the Act. On February 3, 2004, the Court of Appeals 
issued an opinion to vacate our rule conditionally approving the 
attainment plans and 1996-1999 ROP plans insofar as that Court found 
that our grant of conditional approval was defective. The Court of 
Appeals denied the petition for review in all other respects. See 
Sierra Club v. EPA, 356 F.3d 296, 301-07 (D.C. Cir. 2004). On April 23, 
2004, the Court of Appeals issued its mandate thereby relinquishing 
jurisdiction over the 1996-1999 ROP plans and the attainment plan SIP 
revisions, and remanding them back to EPA.\7\
---------------------------------------------------------------------------

    \7\ On April 16, 2004, the Court of Appeals issued an order 
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, No. 03-1084, 2004 WL 877850 (DC Cir. 
Apr. 16, 2004).

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

[[Page 25691]]

    Effective as of the April 23, 2004 date the Court of Appeals issued 
its mandate for its February 3, 2004 ruling, all three States withdrew 
their pre-2001 SIP revisions' attainment plan 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). By the time the three 
States withdrew the pre-2001 SIP revisions' attainment plan, they had 
already submitted revised attainment plan SIP revisions with an 
analysis that the SIPs contained all RACM, post-1999 ROP plans 
demonstrating ROP for 2002 and 2005, VMT offset plans and contingency 
measures plans that superceded the earlier submissions. The States, in 
their February 2004 SIP submissions, submitted not only this new 
material, but resubmitted all of the previously withdrawn pre-2001 SIP 
revisions' attainment plan.\8\ The newly submitted materials along with 
the resubmitted pre-2001 SIP revisions' attainment plan, form a single 
comprehensive package. EPA is taking final action today on both the 
newly submitted and resubmitted materials, which we collectively refer 
to as the February 2004 SIP revisions.
---------------------------------------------------------------------------

    \8\ With one exception: the ``outyear budgets,'' which were 
contained in the March 31, 2002 SIP revision on which EPA had never 
proposed to take action, were not resubmitted.
---------------------------------------------------------------------------

7. District Court Action
    The Sierra Club filed a complaint in the United States District 
Court for the District of Columbia (District Court) claiming that 
because the Court of Appeals vacated and remanded the conditional 
approval of the pre-2001 SIP revisions' attainment demonstration and 
the 1996-1999 ROP plans, EPA had an unfulfilled nondiscretionary duty 
to complete final action on those SIP revisions. On April 7, 2005, the 
District Court issued an order enjoining EPA to ``complete final 
approval and disapproval action, in accordance with 42 U.S.C. 
7410(k)(2), (3), on the state implementation plan submittals for the 
Washington area identified at 66 FR 586, 586 (January 3, 2001).'' 
Sierra Club v. Johnson, C.A. No. 04-2163 (JR) (April 7, 2005). The 
District Court's decision took note ``that the states formally withdrew 
their pre-2001 submissions (except for the [ROP plans]) after the D.C. 
Circuit's Sierra Club III remand,'' Id., slip op. at 7, but disputed 
that ``these withdrawals removed EPA's duty to act,'' stating that `` 
`withdrawal' of pre-2001 SIPs could [not] push back the deadlines 
established by Congress.''
    EPA does not dispute that withdrawal of a SIP cannot push back a 
statutory deadline established by Congress. However, EPA disagrees that 
it can act on a SIP submittal formally withdrawn by a state. We note, 
however, that such a withdrawal is not without consequence, as 
withdrawal of required SIP revision puts a state in jeopardy of 
sanctions predicated upon a failure to submit the required SIP. However 
in this case, as described in this document, the States resubmitted the 
materials comprising their withdrawn pre-2001 SIP revisions' attainment 
plan as part of the February 2004 SIP submissions. EPA therefore will 
take action on what the District Court termed the ``pre-2001 
submissions,'' \9\ as follows:
---------------------------------------------------------------------------

    \9\ The District Court used the term ``pre-2001 submissions'' 
and ``pre-2001 SIPs'' which consists of what in this document we 
call ``the pre-2001 SIP revisions' attainment demonstration'' and 
``the 1996-1999 ROP plan.''
---------------------------------------------------------------------------

    (1) In this final rule which
    (a) approves all of the control measures and other constituents 
needed to approve Maryland's severe area attainment plan (except for a 
Section 185 fee program), including all control measures need to fully 
satisfy the emissions reductions relevant to attainment of the 1-hour 
ozone NAAQS;
    (b) approves all of the control measures and other constituents 
needed to approve the District's and Virginia's severe area attainment 
plan;
    (c) approves the 1996-1999 ROP plan for the District, Maryland and 
Virginia;
    (d) approves Maryland's modeled demonstration of attainment and 
adjunct weight of evidence analyses; and
    (e) approves the District's and Virginia's modeled demonstrations 
of attainment and adjunct weight of evidence analyses and the 
District's and Virginia's attainment plans, which include their pre-
2001 SIP revisions' attainment plan, as resubmitted and subsumed by 
their February 2004 SIP revisions;
    (2) Another final rule, which is published elsewhere in today's 
Federal Register, which disapproves Maryland's pre-2001 SIP revisions' 
attainment plan as resubmitted and subsumed by Maryland's February 2004 
SIP revisions' attainment plan based upon Maryland's failure to submit 
the required 185 fee program, and issues a protective finding on the 
SIP, based upon our determination that the SIP contains all of the 
control measures necessary to demonstrate attainment. That protective 
finding will allow Maryland to use the MVEBs contained in the 
disapproved SIP for transportation conformity purposes pursuant to 40 
CFR 93.120.

II. The Relationship of Past SIP Revisions, February 2004 SIP Revisions 
and the April 17, 2003 Conditional Approval

A. The Twelve Conditions for Approval

    On April 17, 2003, EPA had conditionally approved the pre-2001 SIP 
revisions subject to the following 12 conditions:
    (1) Revise the 1996-1999 portion of the ROP plans to include a 
contingency plan containing adopted measures;
    (2) Revise the contingency plan containing those adopted measures 
implemented for the failure of the Washington area to attain the one-
hour ozone standard for serious areas by November 15, 1999;
    (3) Revise the ROP plans to include a contingency plan containing 
adopted measures for the post-1999 ROP plans;
    (4) Revise the attainment demonstration to include a contingency 
plan containing adopted measures to be implemented if the Washington 
area does not attain the one-hour ozone standard by November 15, 2005;
    (5) Revise the ROP plans to demonstrate emission reductions of 
ozone precursors of an average of 3 percent per year from November 15, 
1999 to the November 15, 2005;
    (6) Revise the attainment demonstration to include a revised RACM 
analysis;
    (7) Revise the major stationary source threshold to 25 tons per 
year;
    (8) Revise RACT rules to include the lower major source 
applicability threshold;
    (9) Revise new source review offset requirements to require an 
offset ratio of at least 1.3 to 1.
    (10) Submit a SIP revision that identifies and adopts specific 
enforceable transportation control strategies and transportation 
control measures to offset any growth in emissions from growth in 
vehicle miles traveled or number of vehicle trips if required under 
section 182(d)(1) of the Act;
    (11) Submit the section 185 penalty fee SIP consisting of the 
penalty fee requirement of Act sections 182(d)(3) and 185 for major 
sources of VOC and NOX should the area fail to attain by 
November 15, 2005;
    (12) Update the Washington area severe attainment demonstration to 
reflect revised MOBILE6-based motor vehicle emissions budgets, 
including revisions to the attainment modeling/weight of evidence 
demonstration and adopted control measures, as necessary, to show that 
the SIP continues to demonstrate attainment by November 15, 2005.

[[Page 25692]]

    In the February 3, 2003 (68 FR 5246) proposed rule for the April 
17, 2003 final conditional approval, we proposed conditional approval 
of the pre-2001 SIP revisions if the State committed to correct 
condition numbers (1) through (3), (6) and (12). EPA revised the 
conditional approval to include condition numbers (4), (5), and (7) 
through (11) in response to comment which stated that EPA could not 
fully approve the pre-2001 SIP revisions because the pre-2001 SIP 
revisions did not cover all of the required severe area SIP components. 
EPA agreed with the comment to the extent that condition numbers (4), 
(5), and (7) through (11) were applicable severe area requirements that 
precluded full approval. See 68 FR at 19121, April 17, 2003.
    Conditions (1) and (2) were elements needed to correct deficiencies 
in the SIP required for a serious nonattainment area.
    Conditions (4) through (11) are SIP elements required as a 
consequence of the reclassification of the Washington area to severe 
nonattainment.
    Conditions (3) through (6) were required to correct deficiencies in 
the pre-2001 SIP revisions because the pre-2001 SIP revisions included 
a demonstration that the Washington area would attain the 1-hour ozone 
standard by November 15, 2005.
    We conditioned approval on item (12) under EPA's policy related to 
the transition from our prior mobile source emissions factor model, 
MOBILE5, to the newer model, MOBILE6.

B. How the States Have Addressed the Twelve Conditions

    In this section we will discuss how the States have addressed the 
twelve conditions. EPA had already approved many of the States' SIP 
revisions for the control measures needed to support the attainment 
plan, the ROP plans and the contingency measure plan by the time we 
published the NPRs on January 12, 2005 (70 FR 2085) and February 9, 
2005 NPR (70 FR 6796) for the States' 1996-1999 ROP plans and the 
February 2004 SIP revisions including the resubmitted pre-2001 SIP 
revisions' attainment plan. In this document we will not reiterate the 
specifics of such approvals but will provide details on the approval of 
control measures which were not approved at the time of the January 12, 
2005 and February 9, 2005 NPRs.
1. Conditions 1 to 4--Contingency Measures
    At the time of the January 12, 2005 NPR for the contingency 
measures plan, EPA had approved all the contingency measures except 
each of the States' architectural and industrial maintenance coatings 
rules (AIM coatings rules), and the District's motor vehicle 
refinishing, consumer products, solvent cleaning and portable fuels 
container rules.
    On May 2, 2005, the Regional Administrator signed final rules 
approving the District's, Maryland's and Virginia's AIM coatings rules. 
Those final actions have been published in a recent Federal Register or 
shortly will be published in the Federal Register.
    On December 23, 2004 (69 FR 76855), December 28, 2004 (69 FR 
77642), December 29, 2004 (69 FR 77906) and December 29, 2004 (69 FR 
77903), EPA approved, respectively, the District's motor vehicle 
refinishing, consumer products, solvent cleaning and portable fuels 
container rules.
    In this final rule, EPA is approving the States's contingency 
measures plans for the Washington area. These contingency measure plans 
provide sufficient contingency measures to meet our 3 percent (relative 
to baseline emissions for the Washington area) reduction for all of the 
relevant years for which the States need contingency measures. Our 
basis for determining that the States' contingency measures plans get 
the required reductions is discussed in detail in section V. 
``Contingency Measures Plans'' of the January 12, 2005 NPR (70 FR at 
2087-2095) and in our response to comments under sections III. D. 
``Comment on the Contingency Measures Plans'' of this document.
    EPA finds that the actions cited in the preceding four paragraphs 
fulfilled conditions (1) through (4).
2. Condition 5--Post-1999 ROP
    At the time of the January 12, 2005 NPR for the ROP plans and the 
February 9, 2005 NPR on the attainment demonstration, EPA had approved 
all the control measures except each of the States' AIM coatings rules, 
the District's portable fuels container rule, the TCMs submitted with 
the 1996-1999 and post-1999 ROP plans and Maryland's and Virginia's 
nonregulatory measures SIP revisions.
    As noted previously, EPA has approved the States' AIM coatings 
rules and the District's portable fuel containers rule. In this action, 
EPA is approving the TCMs submitted with the 1996-1999 and post-1999 
ROP plans.
    On May 2, 2005, the Regional Administrator signed a final rule 
approving Maryland's and Virginia's nonregulatory measures SIP 
revision. That final action has been published in a recent Federal 
Register or shortly will be published in the Federal Register.
    In this final rule EPA is approving the States' 1996-1999 and post-
1999 ROP plans. Our basis for determining that the States' ROP plans 
get the required post-1996 ROP reductions of 3 percent per year 
(averaged over consecutive 3-year periods) is discussed in detail in 
section IV. ``Post 1996-1999 and Post 1999-2005 ROP Plans'' of the 
January 12, 2005 NPR (70 FR at 2087-2095) and in our response to 
comments under sections III. A. ``Comment on the ROP Plans and 
NOX Substitution'' and B. ``Comment on the Transportation 
Demand Model (TDM) Used in the Plans'' of this document.
    EPA finds that the actions cited in the preceding four paragraphs 
fulfilled condition (5).
3. Condition 6--RACM
    For the reasons cited in our February 9, 2005 NPR, EPA believes 
that the States' attainment demonstration in the February 2004 SIP 
revisions demonstrated that no remaining RACM remain to be adopted for 
the Washington area. We received no adverse comment on this aspect of 
the proposal and find that the States have fulfilled condition 5 by 
adoption of all the measures necessary to demonstrate attainment as 
expeditiously as practicable.
4. Conditions 7 to 9--New Source Review and RACT Thresholds
    EPA has approved 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 77647, December 28, 2004; 69 FR 
56170, September 20, 2004; and 69 FR 48150, August 9, 2004, for the 
District, Maryland, and Virginia, respectively. For each of the three 
States, EPA has fully approved a SIP revision to implement RACT for 
major sources of VOC and NOX with major source size 
definition of 25 tons/year. See 69 FR 77647, December 28, 2004; 69 FR 
56170, September 20, 2004; and 69 FR 48150, August 9, 2004, for the 
District, Maryland, and Virginia, respectively. EPA finds that the 
States have fulfilled conditions (7) through (9).
5. Condition 10--VMT Offset SIP
    In this final rule EPA is approving the States' VMT Offset SIP 
revisions which fulfills condition (10). Our basis for determining that 
the States' VMT Offset SIP meets the Act's requirements is discussed in 
detail in section VI. ``Vehicle Miles Traveled (VMT) Offset SIP and 
Transportation Control Measures (TCMs)'' of the January 12,

[[Page 25693]]

2005 NPR (70 FR at 2098) and in our response to comments under section 
III. C. ``Comment on the VMT Offset SIP'' of this document.
6. Condition 11--the Section 185 Penalty Fee SIP
    On December 28, 2004 (69 FR 77639) and on December 29, 2004 (69 FR 
77909), EPA approved the District's and Virginia's section 185 penalty 
fee SIP revisions, respectively, and thus, believes that the District 
and Virginia have fulfilled condition (11). To date, Maryland has not 
submitted a section 185 penalty fee SIP revision. For the lack of a 
section 185 penalty fee SIP revision, EPA is disapproving Maryland's 
attainment plan with a protective finding which will allow the MVEBs 
contained in Maryland's 2004 SIP revisions to be used for 
transportation conformity purposes pursuant to 40 CFR 93.120. That 
disapproval is published elsewhere in today's Federal Register.
7. Condition 12--MOBILE6-Based Attainment Plan Budgets
    In their February 2004 SIP revisions, the States adopted MOBILE6-
based 2005 attainment year MVEBs. The final version of the 2005 
attainment year MVEBs was contained in the February 2004 SIP revisions 
identified in Table 2 of this document. These MVEBs are area-wide MVEBs 
which cover the entire Washington area.
    In this final rule EPA is approving the District's and Virginia's 
attainment plan for the Washington area, namely the attainment plans 
contained in the February 2004 SIP revisions which subsumes the 
resubmitted pre-2001 SIP revisions' attainment plan. We are also 
approving the final revision of the 2005 attainment year MVEBs for the 
District and Virginia found in the February 2004 SIP revisions 
identified in Table 2 of this document. EPA would have been able to 
approve Maryland's attainment plan for the Washington area had Maryland 
submitted a section 185 penalty fee program. We could not approve the 
District's and Virginia's attainment plan without determining that the 
three States collectively have adopted enough measures in their SIPs to 
demonstrate that the area as a whole will attain the 1-hour ozone NAAQS 
by no later than November 15, 2005. Such a finding is necessary because 
this is an interstate area and any potential emissions shortfall would 
have to be addressed collectively before any State's attainment plan 
could be approved.
    For the reasons stated in our February 9, 2005 NPR, the recently 
approved control measures discussed previously in this final action and 
given in our responses in this final action to comments received on 
that proposed rule, EPA believes that the States collectively have 
adopted enough measures in their SIPs to demonstrate that the area will 
attain the 1-hour ozone NAAQS by no later than November 15, 2005 with 
the MVEBs found in the February 2004 SIP revisions identified in Table 
2 of this document. EPA believes that Maryland, in combination with the 
District and Virginia, adopted sufficient measures and have fully 
satisfied the emissions reduction requirements necessary to ensure that 
attainment of the 1-hour ozone NAAQS will be attained by no later than 
November 15, 2005. EPA believes that the States, including Maryland, 
have satisfied condition (12) since they have demonstrated that the 
attainment plans have been revised to reflect MOBILE6-based MVEBS and 
have included the necessary revisions to the modeled demonstration of 
attainment and adjunct WOE analyses and have adopted control measures 
showing that the SIP continues to demonstrate attainment by November 
15, 2005.
    Therefore, in this final rule, EPA is approving the District's, 
Maryland's, and Virginia's modeled demonstrations of attainment and 
adjunct WOE analyses and the District's and Virginia's attainment 
plans. EPA is also determining that the attainment plan for Maryland 
contains adopted control measures that fully satisfy the emission 
reduction requirement relevant to attainment of the 1-hour ozone NAAQS. 
EPA is therefore approving the modeled demonstration of attainment and 
adjunct WOE analyses contained in Maryland's February 2004 SIP 
revisions which includes the analysis based upon photochemical grid 
modeling demonstrating timely attainment of the 1-hour ozone standard. 
In addition, EPA is therefore issuing Maryland's 2004 SIP revisions' 
attainment plan--a protective finding which will allow the MVEBs 
contained in Maryland's 2004 SIP revisions to be used for 
transportation conformity purposes pursuant to 40 CFR 93.120.
    EPA concludes that once we issue our approval of the District's and 
Virginia's February 2004 SIP revisions the District and Virginia will 
have cured the deficiencies we identified in their pre-2001 SIP 
revisions through the various SIP revisions that they have submitted 
since April 17, 2003. In the case of Maryland, EPA concludes that all 
of the deficiencies except the section 185 penalty fee SIP revision 
will have been cured for Maryland's pre-2001 SIP revisions by the 
various SIP revisions submitted since April 17, 2003 once we issue our 
approval of:
    (1) Maryland's 1996-1999 and 1999-2005 ROP plans,
    (2) the changes to the 1990 base year inventory, the contingency 
measures plan, TCMs,
    (3) the modeled demonstration of attainment which includes the 
analysis based upon photochemical grid modeling and adjunct WOE 
analyses that Maryland's submitted SIP for the Washington area contains 
adopted control measures that fully satisfy the emission reduction 
requirements to provide for attainment of the 1-hour ozone NAAQS in the 
Washington area by November 15, 2005.

III. Comment Received on the ROP plans, VMT Offset SIP and Contingency 
Measures Plan and EPA's Response

    We received comments adverse to the proposed approval of the ROP, 
VMT offset, contingency measures, and attainment plans. A summary of 
these adverse comments, and our responses, follows.

A. Comment on the ROP plans and NOX Substitution

    Comment: We received a comment asserting that the ROP plans do not 
meet the requirement of demonstrating a nine percent reduction in VOC 
emissions from 1999 to 2002 and a further nine percent from 2002 to 
2005 because the NOX substitution in the ROP plans is 
impermissible. The comment asserts that the ROP plans do not meet 
section 182(c)(2)(c) of the Act because they do not show that a nine 
percent reduction in NOX emissions will result in the same 
reduction in ozone concentration as a nine percent reduction in VOC 
emissions. The comment claims that EPA's own guidance requires 
photochemical grid modeling to show equivalent changes in ozone 
concentrations.
    The comment also asserts that EPA's reliance on our December 1993 
NOX Substitution Guidance is flawed because the plain 
language of the Act requires proof of equivalent benefits of 
NOX substitution. The comment also asserts that because the 
1999-2005 ROP plan relies solely upon NOX reductions the 
plans do not meet the requirement of section 182(c)(2)(C) because the 
plan does not provide for some percentage of VOC reduction during each 
period. The comment claims that the Act requires some non-zero 
percentage reduction in VOC emissions for any ROP period.
    The comment asserts that the Act requires the ROP plans to have VOC 
reductions by November 15, 2002 to

[[Page 25694]]

prevent a net increase in VOC emissions by the 2002 milestone date, 
which would offset the progress achieved by the nine percent 
NOX reductions. The comment asserts that while the ROP plans 
do provide for such reductions, EPA cannot approve the 1999-2005 ROP 
plans because they do not provide for all of these reductions by the 
2002 milestone date.
    Response: NOX Substitution in General. The EPA believes 
States have the opportunity to substitute NOX reductions for 
required VOC reductions under certain circumstances. The opportunity 
for NOX substitution originates in section 182(c)(2)(C) of 
the Act which specifically allows NOX emissions reductions 
to be substituted for VOC reductions required under section 
182(c)(2)(B) for reasonable further progress (RFP), sometimes called 
ROP.
    EPA issued guidance to the States on how to implement the 
NOX substitution provisions for the post-1996 ROP plans in 
December 1993 (the December 1993 NOX Substitution Guidance). 
The guidance allows States to substitute NOX emission 
reductions for VOC emission reductions if that substitution is 
consistent with the demonstration of attainment in the SIP. The modeled 
demonstration of attainment in the SIP establishes the overall 
reductions of VOC and/or NOX reductions required for 
attainment in the attainment year. The ROP plan is a tool to phase in 
emission reductions between the time the plan is prepared and the 
attainment date. When substituting NOX for VOC in post-1996 
ROP plans, we are mindful that if too many NOX reductions 
are substituted for VOC reductions, the modeled demonstration of 
attainment may no longer be valid. Our December 1993 NOX 
Substitution Guidance allows substitution on a percentage basis (i.e., 
one percent of NOX emissions reductions can be substituted 
for one percent of VOC emissions reductions).
    Results of the Application of EPA's December 1993 NOX Substitution 
Guidance in the Washington Area. EPA believes that NOX 
substitution as applied to the Washington area based on our December 
1993 NOX Substitution Guidance yields ROP plans that result 
in reductions in ozone concentrations that are better than those which 
would have resulted from ROP plans relying upon an equal percent of VOC 
reductions.
    Applying our December 1993 NOX Substitution Guidance to 
the Washington area we substitute one percent of VOC ROP reductions 
with one percent of NOX reductions. One percent of 
NOX represents a larger quantity of emissions reduction than 
does one percent of VOC. This is the case because ROP reductions are 
computed from baseline emissions, which are defined in section 
182(b)(2)(B) of the Clean Air Act to be ``the total amount of actual 
VOC or NOX emissions from all anthropogenic sources in the 
area during the calendar year 1990,'' excluding the emissions that 
would be eliminated by the programs specified in sections 182(b)(1)(C) 
and (D) of the Act. The reduction of baseline emissions by the programs 
specified in sections 182(b)(1)(C) and (D) yields the adjusted 1990 
base year inventory for each milestone year (which is discussed further 
in the January 5, 2005 technical support document (TSD) \10\). The 
adjusted 1990 base year inventory is the baseline from which the 
necessary ROP reductions are computed. Section 182(c)(2) of the Act 
requires that a set percentage of reductions in baseline emissions be 
achieved every three years after 1996 until the area's attainment date. 
To determine the reductions in tons required for any given ROP 
milestone year, the percentage is multiplied by the adjusted 1990 base 
year inventory for that milestone year. For example, in the case of the 
Washington area, the ``Adjusted 1990 Base Year Inventory for 2005'' for 
VOC is 412.1 tons per day (TPD), and, thus, a one percent ROP reduction 
equates to 4.1 TPD. For NOX emissions the ``Adjusted 1990 
Base Year Inventory for 2005'' is 735.6 TPD, and, thus, a one percent 
ROP reduction equates to 7.4 TPD.
---------------------------------------------------------------------------

    \10\ Technical Support Document for Approval and Promulgation of 
Air Quality Implementation Plans; District of Columbia, Maryland, 
and Virginia; Post-1996 Rate-of-Progress Plan, Contingency Measures, 
Transportation Control Measures, 1990 Base Year Inventory Changes, 
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment 
Area, January 5, 2005
---------------------------------------------------------------------------

    The States only modeled changes in anthropogenic (man-made) 
emissions to see how sensitive the Washington area was to changes in 
VOC and to NOX emission reductions. They did not model 
changes in biogenic emissions which are VOC emissions from plants. The 
air quality model responds to changes in emission between the 1990 base 
year inventory and the emissions resulting from the control strategy to 
be modeled.\11\
---------------------------------------------------------------------------

    \11\ For a summary of the photochemical grid modeling for the 
Washington area refer to the February 9, 2005 (70 FR 6796) NPR, and, 
for a discussion in depth, see Technical Support Document for 
Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, and Virginia; Attainment 
Demonstration for the Metropolitan Washington, DC Nonattainment 
Area, dated January 31, 2005.
---------------------------------------------------------------------------

    The States used the results of this sensitivity modeling 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 parts per billion (ppb) (0.114 ppb/ton of 
NOX); a similar analysis for VOC emissions indicated that a 
one ton reduction in VOC emissions would result in a peak ozone 
concentration reduction of 0.029 ppb (0.029 ppb/ton of VOC reduced). 
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 would reduce ozone concentrations by 1 ppb. That is, 
NOX reductions in the Washington area have greater ozone 
reducing potential than an equivalent amount of VOC reductions. 
Therefore, substituting a percentage of VOC reductions with an equal 
percentage of NOX reductions should result in greater ozone 
concentration reduction than if the substitution were not done.
    The 1990 base year VOC inventory for the Washington area is 
comprised of 578.7 TPD of anthropogenic emissions and of 376.5 TPD 
biogenic emissions for a total of 955.2 TPD of VOC. The 1990 base year 
NOX inventory (all of which is anthropogenic) for the 
Washington area is 869.3 TPD of NOX. Given that 39 percent 
(376.5/955.2) of the VOC emissions inventory is biogenic emissions, it 
is not surprising that reductions in anthropogenic VOC emissions would 
show less ozone response than an equal percentage reduction in 
anthropogenic NOX emissions. The NOX emissions 
are all anthropogenic, and, a one percent reduction in NOX 
emissions equates to more tons of emission reduction than does one 
percent reduction of the anthropogenic VOC emissions.
    This is not to say VOC reductions are not beneficial towards 
attainment, but rather that reductions in anthropogenic VOC emissions 
are not as effective on a TPD or ROP percentage basis as NOX 
reductions. However, the States are free to fashion their attainment 
demonstrations and ROP plans to include whatever mix of VOC and 
NOX reductions they choose, so long as the plans demonstrate 
timely attainment and timely ROP in accordance with the requirements of 
the Clean Air Act.
    The following table compares a 9 percent reduction in baseline VOC 
emissions by each post-1996 milestone year to the chosen levels of 
NOX substitution in the ROP plans in terms

[[Page 25695]]

of TPD reductions and of ozone concentration decreases resulting from 
these reductions.

                          Table 4.--Results of NOX Substitution in the Washington Area
----------------------------------------------------------------------------------------------------------------
                           Milestone year                                 1999           2002           2005
----------------------------------------------------------------------------------------------------------------
9 percent reduction in VOC baseline emissions (TPD)................           39             37.8           37.1
Ozone Concentration Change to 9 percent VOC (at 0.029 ppb/ton                  1.1            1.1            1.1
 rounded to nearest tenth).........................................
Percent NOX reduction Substituted (percent of baseline NOX                     8              9              9
 emissions)........................................................
Substituted NOX Reductions (TPD)...................................           62.8           68.1           66.2
Ozone Concentration Change to Substituted NOX Reductions ( 0.114               7.2            7.8            7.5
 ppb/ton rounded to nearest tenth).................................
----------------------------------------------------------------------------------------------------------------

    Technical and Practical Reasons for our December 1993 
NOX Substitution Guidance. The modeling performed for 
demonstration of attainment basically establishes the relationship 
between emission reductions--either of VOC, NOX, or both--
and ozone reductions. This relationship is established for the 
attainment year. As noted previously, the modeled attainment 
demonstration establishes the overall VOC and/or NOX 
emission targets that are consistent with attainment of the standard in 
the attainment year. When EPA determines that a demonstration of 
attainment is approvable, i.e., it demonstrates that the relevant area 
will timely attain the NAAQS, we are making an implicit corollary 
conclusion that the mix of VOC and/or NOX control measures 
included in the area's demonstration of attainment is sufficient for 
timely attainment.
    The post-1996 ROP plan requirement is used to phase-in emission 
reductions between the time of plan adoption and the attainment date. 
EPA does not require modeling of interim years for the purpose of 
trying to update the NOX/VOC/ozone relationship for a number 
of reasons, including the following that are provided in our December 
1993 NOX Substitution Guidance:
    a. The strong likelihood that optimum ``exchange'' rates vary from 
year to year and across a geographic area as an area's emissions 
distribution and atmospheric chemistry change over time;
    b. Uncertainty in modeling analyses, particularly when attempting 
to ascertain responses from small percentage perturbations in 
emissions; and
    c. Resource limitations associated with modeling specific control 
measures during interim years before attainment dates.
    EPA continues to believe in the validity of this guidance and in 
the reasoning set forth therein as it relates to NOX 
substitution under the post-1996 ROP plan requirements.
    Legal Rationale for EPA's December 1993 NOX Substitution 
Guidance. The comment focuses exclusively upon the phrase ``result in a 
reduction in ozone concentrations at least equivalent to that which 
would result from the amount of VOC emission reductions required* * * 
'' to the exclusion of remaining language of section 182(c)(2)(C). The 
comment would completely ``write-out'' of the statutory text provisions 
such as ``in lieu of the demonstration required under subparagraph (B), 
a demonstration to the satisfaction of the Administrator * * * '' and 
``in accord with such guidance [the substitution guidance required by 
section 182(c)(2)(C)] a lesser percentage of VOCs may be accepted as an 
adequate demonstration * * * '' (emphases added). In the plain text of 
the statute Congress explicitly and affirmatively granted EPA broad 
discretion as to what sort of demonstration is acceptable on this 
technical and science-driven issue. See, e.g., Sierra Club v. EPA, 294 
F.3d at 162-163.
    In addition, EPA still stands behind its legal rationale underlying 
the interpretation of ``equivalency'' that appears in our December 1993 
NOX Substitution Guidance in section 4. In that guidance, 
the basis for equivalency is the ability of a given control strategy 
(i.e., any particular mix of NOX and VOC emission 
reductions) to effect attainment of the ozone NAAQS by the designated 
attainment year (December 1993 NOX Substitution Guidance, p. 
2). Further, as we previously set out, the NOX emission 
reductions credited toward ROP may be limited to the amount of 
NOX reductions required in the demonstration of attainment.
    In allowing a combination of NOX and VOC controls or the 
substitution of NOX emissions reductions for VOC emissions 
reductions, section 182(c)(2)(C) of the statute states that the 
resulting reductions ``in ozone concentrations'' must be ``at least 
equivalent'' to that which would result from the 3 percent VOC 
reductions required as a demonstration of ROP under section 
182(c)(2)(B).\12\ The second sentence of section 182(c)(2)(C) requires 
EPA to issue guidance ``concerning the conditions under which 
NOX control may be substituted for [or combined with] VOC 
control.'' In particular, the Agency has been authorized by Congress to 
address in the guidance the appropriate amounts of VOC control and 
NOX control needed, in combination, ``in order to maximize 
the reduction in ozone air pollution.'' Further, the Act explicitly 
provides that the guidance may permit ROP demonstrations that allow a 
lower percentage of VOC emission reductions as long as compensating 
NOX reductions are achieved. In light of the language in the 
Act evidencing Congressional intent under this subsection to maximize 
the opportunity for ozone reductions, EPA believes that section 
182(c)(2)(C) confers on the Agency the discretion to select, for 
purposes of determining ``at least equivalent'' reductions, a 
percentage of NOX emission reductions that is reasonably 
calculated to achieve the statutorily required ozone reduction and 
attainment progress goals intended by Congress. See Chevron U.S.A., 
Inc. v. NRDC, 467 U.S. 837, 842-44 (1984), Sierra Club v. EPA, 294 F.3d 
at 162-163.
---------------------------------------------------------------------------

    \12\ Equivalent means: ``equal in value, force, amount, effect 
or significance,'' or ``corresponding in effect or function; nearly 
equal; virtually identical.'' Black's Law Dictionary, Eighth 
Edition, 2004. (emphasis added).
---------------------------------------------------------------------------

    As we have previously stated, when we determine that a 
demonstration of attainment is approvable, we are making an implicit 
corollary conclusion that the mix of VOC and/or NOX control 
measures included in the area's demonstration of attainment is 
sufficient for timely attainment.
    As additional evidence that Congress was concerned with getting 
more than minimal reductions in ozone concentrations through 
substitution, EPA notes that the ROP demonstration described in section 
182(c)(2)(B) focuses on reductions of a specified quantity of VOC 
emissions per year (similarly, the 15 percent ROP reductions required 
for

[[Page 25696]]

moderate ozone nonattainment areas focuses on reductions of that 
specific quantity of VOC emissions per year). By contrast, the 
alternative ROP demonstration in section 182(c)(2)(C) allows flexible 
VOC/NOX emission reduction strategies, but only so long as 
the overall quantitative reduction in ozone concentrations is 
equivalent to the amount which, for serious ozone nonattainment areas, 
Congress initially determined must be met (i.e., the ozone 
concentrations achieved by VOC reductions of 3 percent per year) in 
order to ensure expeditious progress towards attainment. In this regard 
the House Committee Report states: ``NOX reductions may not 
be substituted for VOC reductions in a manner that delays attainment of 
the ozone standard or that results in lesser annual reductions in ozone 
concentration than provided for in the demonstration of attainment.'' 
H.R. Rep. No. 490, 101st Cong., 2d Sess. 239 (1990).
    Additional support for EPA's view that our December 1993 
NOX Substitution Guidance's focus on the NOX and 
VOC reductions necessary for attainment is consistent with 
Congressional intent is found in section 182(g), which waives the 
requirement for a milestone demonstration for a milestone that 
coincides with an area's attainment date for an area that attains the 
standard by that date.
    EPA disagrees with the comment that EPA's ``Guidance on the Post-
1996 Rate-of-Progress Plan and Attainment Demonstration'' (corrected 
version as of 2/18/94) specifies a different test, that is, a modeled 
showing of equivalency, than does EPA's December 15, 1993 
NOX Substitution Guidance. In section 4.1 of the ``Guidance 
on the Post-1996 Rate-of-Progress Plan and Attainment Demonstration,'' 
EPA restated the equivalency test set forth in sections 2 and 3 of our 
December 1993 NOX Substitution Guidance.
    With regard to the photochemical grid modeling. section 4.1 of the 
``Guidance on the Post-1996 Rate-of-Progress Plan and Attainment 
Demonstration'' reads:

    Section 182(c)(2)(C) states that actual NOX emission 
reductions which occur after 1990 can be used to meet post-1996 
emission reduction requirements, provided that such reductions meet 
the criteria outlined in EPA's December 15, 1993 NOX 
Substitution Guidance. The condition for meeting the rate-of-
progress requirement is that the sum of all creditable VOC and 
NOX emission reductions must equal 3 percent per year 
averaged over each applicable milestone period. The percent VOC 
reduction is determined from the VOC rate-of-progress inventory and 
the percent NOX reduction is determined from the 
NOX rate-of-progress inventory. In addition, the overall 
VOC and NOX reductions must be consistent with the area's 
modeled attainment demonstration. In other words, the NOX 
emission reductions creditable toward the rate-of-progress plan 
cannot be greater than the cumulative reductions dictated by the 
modeled attainment demonstration.

    This portion of the 1994 guidance merely summarizes, and does not 
alter, the guidance provided in our December 1993 NOX 
Substitution Guidance. With regard to the photochemical grid modeling, 
section 2 of our December 1993 NOX Substitution Guidance 
specifies that the provision for NOX substitution recognizes 
that a VOC-only control pathway may not be the most effective approach 
for effecting attainment in all areas. Consequently, NOX 
reductions are placed on a near equal footing with VOC through 
substitution. The December 1993 NOX Substitution Guidance 
establishes two conditions pursuant to both the substitution and RFP 
provisions in the Act. The first condition requires that control 
strategies incorporating NOX emission reduction measures 
must demonstrate that the ozone NAAQS will be attained within time 
periods mandated by the Act. This condition reflects the Title I 
provision for photochemical grid modeling demonstrations (section 
182(c)). The second condition, addressed in section 3 of the guidance, 
maintains the requirement for periodic emission reductions in order to 
realize progress toward attainment. Flexibility is introduced by 
allowing VOC and NOX reductions rather than VOC reductions 
alone. A third condition exists in which the periodic emission 
reductions must be consistent with the modeled demonstration of 
attainment.
    In both cases, the guidance refers to the photochemical grid 
modeling that is necessary for the modeled demonstration of attainment 
and that establishes the NOX/VOC/ozone relationship at the 
attainment date. Neither our December 1993 NOX Substitution 
Guidance nor the ``Guidance on the Post-1996 Rate-of-Progress Plan and 
Attainment Demonstration'' require a modeled demonstration of 
equivalence for an interim period for the reasons discussed previously.
    The 1999-2005 ROP Plans Provide for Any Required NOX and 
VOC Reductions by 2002 in a Timely Manner. Section 182(c)(2)(C) of the 
Act states that ``[t]he revision may contain, in lieu of the 
demonstration required under subparagraph (B), a demonstration to the 
satisfaction of the Administrator that the applicable implementation 
plan, as revised, provides for reductions of VOCs and [NOX] 
(calculated according to the creditability provisions of subsection 
(b)(1)(C) and (D) of this section) * * * that would result in reduction 
in ozone concentrations equivalent to that which would result from the 
amount of VOC reductions required under subparagraph (B).'' The salient 
provisions of the demonstration of ``subparagraph B'', that is, section 
182(c)(2)(B) of the Act, are: (1) The requirement to reduce baseline 
emissions by an average of 3 percent per year averaged over each three-
year period after 1996, and (2) the reductions creditable towards ROP 
must meet the same creditability requirements as for the 15 percent 
reduction by 1996 requirement of section 182(b)(1)(A).
    Our post-1996 guidance implements section 182(c)(2)(B) by requiring 
that the area demonstrate that milestone year emissions with the ROP 
control strategies will be less than the target level of emissions.\13\ 
Because the target level is determined by reducing 1990 baseline 
emissions and because the future year projected inventory with all the 
ROP control strategies must reflect estimated growth in emissions 
activities, this demonstration accounts for growth between 1990 and the 
milestone year. Section 182(c)(2)(B) does not contain the phrase 
``accounting for growth after 1990'' which is found in section 
182(b)(1)(A). Nevertheless, EPA has inferred that the 3 percent 
reduction requirement of section 182(c)(2)(B) must be net of growth. 
EPA's interpretation is sound when considering relevant provisions of 
the statute as a whole because: (1) Section 182(b)(1)(A) contains a 
statement, ``accounting for growth after 1990,'' of Congressional 
intent regarding ROP and growth under section 182; and (2) the last 
sentence of section 182(c)(2)(B) allows creditable VOC reductions 
between 1990 and 1996 that are in excess of those needed to meet the 15 
percent reduction by 1996 requirement to count towards post-1996 ROP. 
Reductions under section 182(b)(1)(A) are excess only to the extent 
they are net of growth.
---------------------------------------------------------------------------

    \13\ ``Guidance on the Post '96 Rate-of-Progress Plan (RPP) and 
Attainment Demonstration'' (Corrected version of February 18, 1994).
---------------------------------------------------------------------------

    EPA believes that in section 182(c)(2)(C) Congress granted EPA even 
greater discretion as to the composition of the demonstration required 
by section 182(c)(2)(C). As noted previously in other portions of this 
response, section 182(c)(2)(C) allows a post-1996 ROP demonstration 
``in lieu of'' that required under section 182(c)(2)(B). This 
demonstration must be ``to the

[[Page 25697]]

satisfaction of EPA,'' and allows that a ``lesser percentage of VOCs 
may be accepted'' in accordance with the guidance that the EPA was 
required to issue.
    Thus, EPA was granted discretion regarding the content of the ROP 
demonstration allowable under section 182(c)(2)(C). For instance, 
section 182(c)(2)(C) does not use the phrase ``accounting for growth 
after 1990.'' However, EPA's December 1993 NOX Substitution 
Guidance is based upon the use of the future inventories used in the 
photochemical grid modeling to account for growth in emissions related 
activities, and thus reflect emissions reductions that are net of 
growth. Furthermore, section 182(c)(2)(C) does not require that the 
plan providing for reductions of VOC and NOX provide for 
reductions in ``baseline emissions.'' EPA's guidance for demonstrations 
of ROP under section 182(c)(2)(C) reflects many of the same features in 
our guidance implementing section 182(c)(2)(B): A ROP plan calculates 
target levels by reducing 1990 baseline emissions by a set percentage 
for each ROP period; and, EPA chose to require that NOX 
substitution be net of growth.\14\ EPA believes that these features are 
reasonable in order to address a scenario where the demonstration of 
post-1996 ROP for an area for one ROP milestone year, say 1999, relies 
a mixture of VOC and NOX control and then relies upon all 
VOC reductions for the subsequent 2002 milestone. EPA believes that the 
claim that the Act requires some non-zero percentage of reductions in 
VOC baseline emissions in ROP demonstrations pursuant to section 
182(c)(2)(C) or provides, that such a percentage reduction net of 
growth requirements required by section 182(c)(2)(B) is not supported 
by the plain text of the statute. The Act allows NOX 
substitution with lesser VOC reductions and doesn't prohibit 9 percent 
NOX substitution and zero percent VOC. Therefore, we believe 
that we can approve a ROP plan which provides for 9 percent 
NOX reductions and no specific level of VOC reductions. 
EPA's interpretation is reasonable given the broad discretion afforded 
by section 182(c)(2)(C) on these matters.
---------------------------------------------------------------------------

    \14\ Section 1.1 of ``Guidance on the Post '96 Rate-of-Progress 
Plan (RPP) and Attainment Demonstration'' (Corrected version of 
February 18, 1994).
---------------------------------------------------------------------------

    EPA's December 1993 NOX Substitution Guidance focuses on 
progress towards reducing the levels of NOX and VOC needed 
for attainment. In that guidance, EPA caps the NOX emission 
reductions to be consistent with those in the modeled demonstration of 
attainment.
    For the reasons discussed previously in this response, EPA believes 
that the Act allows approval of a ROP Plan even when a ROP milestone is 
met with out any reduction in VOC baseline emissions for the milestone 
year. The Act allows EPA to accept a ``lesser percentage of VOC.'' EPA 
believes that ``lesser percentage'' can mean, consistent with the plain 
language of the Act, any percentage less than the average 3 percent per 
year prescribed by section 182(c)(2)(B), including zero percent. EPA 
previously has approved ROP plans under section 182(c)(2) that relied 
solely upon NOX reductions without regard to VOC reductions. 
See 69 FR 42880, July 19, 2004 (proposed at 69 FR 25348, May 6, 2004) 
and 64 FR 13348, March 18, 1999 (proposed by 63 FR 45172, August 25, 
1998).
    As to the growth in VOC emissions ``offsetting'' the 9 percent 
NOX reductions, the comment fails to realize that a ROP plan 
meeting the 9 percent reduction requirement for some milestone year, 
say 1999, prior to the attainment date, say 2005, using only VOC 
reductions, would not be required to offset any growth in 
NOX emissions. EPA believes that such a ROP plan would meet 
the requirements of section 182(c)(2)(B), even if the area needed 
significant NOX reductions for attainment, as long as all 
the reductions were creditable and the ROP plan otherwise met the Act 
and EPA's guidance. Nothing in section 182(c)(2)(C) requires the 
converse--that the ROP plan must ensure that a 9 percent NOX 
reduction is not ``offset'' by changes in VOC emissions.
    It is worthwhile to note that the 1999-2005 ROP plans in the 
February 2004 SIP revisions do in fact provide for a reduction in VOC 
emissions. The 1999-2005 ROP plans in the February 2004 SIP revisions 
project that controlled VOC emissions by November 15, 2002 will be 
372.3TPD. This is significantly less than both the 1990 VOC ROP 
Inventory of 578.7 TPD and the 1990 baseline emissions, reduced by 
reductions from noncreditable measures (the ``Adjusted 1990 Base Year 
Inventory for 2002''), of 420.5 TPD. The 1999-2005 ROP plans in the 
February 2004 SIP revisions project that controlled VOC emissions by 
November 15, 2005 will be 331.6 TPD. This is significantly less than 
the 1990 baseline emissions, reduced by reductions from noncreditable 
measures (the ``Adjusted 1990 Base Year Inventory for 2005''), of 412.1 
TPD.\15\ Therefore, the 1999-2005 ROP plans do provide for VOC 
reductions by the 2002 and 2005 milestone years, and, provide for a net 
reduction in VOC emissions by these dates. However, EPA has concluded 
that the States' 1999-2005 ROP plans meet section 182(c)(2) of the Act 
because the States' 1999-2005 ROP plans demonstrate a 9 percent 
reduction in baseline NOX emissions by 2002 and a further 9 
percent reduction in baseline NOX emissions by 2005 and can 
be approved based upon these reductions in baseline NOX 
emissions.
---------------------------------------------------------------------------

    \15\ Table IX. A-1 ``Demonstration of ROP'' and 2002 and Table 
V. D-3 ``2005 ROP Target Levels'' of ``Technical Support Document 
for Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, and Virginia; Post-1996 Rate-of-
Progress Plan, Contingency Measures, Transportation Control 
Measures, 1990 Base Year Inventory Changes, and VMT Offset SIP for 
the Metropolitan Washington, DC Nonattainment Area,'' dated January 
5, 2005.
---------------------------------------------------------------------------

    EPA has concluded that the States' NOX measures are 
sufficient to achieve a 9 percent reduction in NOX baseline 
emissions by November 15, 2002. Because ROP is demonstrated through the 
use of a 9 percent reduction in NOX emissions by 2002, EPA 
believes that there is no requirement for the plan to have a target 
level of VOC emissions for the 2002 milestone year for the reasons 
discussed previously in this response. Therefore, EPA believes that the 
plan cannot be deficient for not achieving any set reduction in VOC 
baseline emissions (net of growth) by November 15, 2002--no such 
requirement exists.

B. Comment on the Transportation Demand Model (TDM) Used in the Plans

    Comment: We received a comment asserting that the TDM used to 
project the mobile source emissions does not properly predict traffic 
volumes in the Washington area on roadways. The comment alleges that 
the inaccuracies are significant enough that the results cannot form a 
basis for predicting future motor vehicle emissions or the emission 
cuts needed to meet ROP targets, or to show that the SIP contains 
sufficient transportation control measures to offset any growth in 
emissions from growth in vehicle miles traveled or numbers of vehicle 
trips in the nonattainment area.
    Response: EPA disagrees with this comment. EPA's conformity 
regulation requires that for serious, severe, and extreme ozone 
nonattainment areas (if their metropolitan planning area contains an 
urbanized area population over 200,000), the estimates of regional 
transportation-related emissions, which support conformity 
determinations, must be made at a minimum using network-based TDMs 
according to

[[Page 25698]]

procedures and methods that are available and in practice, and which 
are supported by current and available documentation. 40 CFR 93.122(b). 
These network-based travel models must at a minimum satisfy the certain 
requirements, including a requirement that network-based travel models 
must be validated against observed counts (peak- and off-peak, if 
possible) for a base year that is not more than 10 years prior to the 
date of the conformity determination. Model forecasts must be analyzed 
for reasonableness and compared to historical trends and other factors, 
and the results must be documented. 40 CFR 93.122(b)(1)(i); 62 FR 
43793, August 15, 1997.
    Even though this regulation applies to network-based travel models 
used for conformity determinations, it represents EPA's determination 
as to acceptable practices and was issued through notice and comment 
rulemaking. The conformity regulation's adequacy provisions (40 CFR 
93.118(e)) require that MVEBs in control strategy SIP revisions be the 
product of interagency consultation between air quality planning 
agencies and transportation planning agencies. Therefore, EPA believes 
that it is reasonable to assume that the transportation planning 
agencies will want the MVEBs to be developed using the same network 
models currently in use at the time the MVEBs are developed. This is 
indeed the case for the February 2004 SIP revisions. The TDM model used 
for development of the February 2004 SIP revisions was based upon the 
execution of the COG/TPB's Version 2.1/TP+ travel forecasting 
process.\16\ See page B-10 of Appendix B to the February 2004 SIP 
revisions.\17\
---------------------------------------------------------------------------

    \16\ COG is the Metropolitan Washington Council of Governments. 
The TPB is the National Capital Region Transportation Planning 
Board.
    \17\ The ``Version 2.1/TP+'' model is also called Version 2.1/
TP+, Release C in ``COG/TPB Travel Forecasting Model Version 2.1/
TP+, Release C Calibration Report,'' Metropolitan Washington Council 
of Governments, December 23, 2002.
---------------------------------------------------------------------------

    EPA believes that only one of the six modeling criteria of section 
93.122 of the conformity rule is implicated by the comment. This 
criterion is that validation must be against observed counts for base 
year not more than 10 years prior to conformity determination. The 
comment does not allege that the validation of the model was made 
against data that was more than 10 years old. Rather, the commenter 
alleges the model results are not ``reasonable.''
    EPA disagrees with this comment, and, we specifically disagree with 
certain factual allegations made therein. For instance, on page 15 of 
the supporting documentation to the comment, the commenter claimed that 
``the [Transportation Research Board (TRB) review] committee found that 
8 of 33 facility type traffic volume classes had percent Root Mean 
Square Error (RMSE) values that were unacceptable.'' The TRB review 
committee actually stated that ``for 8 of 33 facility type traffic 
volume classes, RMSE values were marginally acceptable * * *'' \18\ EPA 
concludes that the claim that the review committee found the model 
results unacceptable is not borne out by the factual record.
---------------------------------------------------------------------------

    \18\ Letter from David J. Forkenbrock, Chair, Transportation 
Research Board's Committee for Review of Travel Demand Modeling by 
the Metropolitan Washington Council of Governments to Peter Shapiro, 
Chairman, National Capital region Transportation Planning Board, 
dated, September 3, 2003.
---------------------------------------------------------------------------

    The supporting documentation for this comment asserted that the 
TDMs on average underestimated traffic on the 20 highest volume freeway 
links by 26 percent, and on the 10 highest volume arterials by 41 
percent as demonstrated by ``the comparison of simulated to observed 
traffic data for over 11,000 links grouped by traffic volume class and 
facility type.'' The same claim was made to the TPB during the 
development of the FY 2005-2010 Transportation Improvement Program for 
the Washington Metropolitan Region. The TPB responded by concluding 
that the analysis in the comment did not support the conclusion. 
Specifically the TPB stated: (1) That the commenter did not understand 
the TPB's data upon which the conclusion was made; (2) that there are 
many factors which lead to differences between observed data and model 
outputs; (3) that the RMSE for the model declines with volume, i.e, 
there is less error associated with higher volumes; (4) that the ``20 
highest freeway links'actually represent only five roadway segments in 
the region because freeway links are directionally coded and these 
links are split between interchanges resulting in four links per these 
five highway segment; (5) that the comment focuses only on a few values 
at the high-end of the volumes ranges, but draws the mistaken 
conclusion that the model underestimates volumes for the regional 
highway network links with the highest ``observed'' volumes; (6) that 
the ``observed date'' for the 11,000 link segments of the regional 
highway network, do not represent actual traffic counts but rather 
represent factored estimates of average daily traffic volumes based on 
continuous traffic counts taken at a very limited number of permanent 
counting stations, and; (7) that ``observed'' volumes on the ``20 
highest freeway links'' are either factored estimates of average daily 
or are ``uncounted manual'' estimates.\19\
---------------------------------------------------------------------------

    \19\ ``FY 2005-2010 Transportation Improvement Program for the 
Washington Metropolitan Region National Capital Region,'' 
Transportation Planning Board and the Metropolitan Washington 
Council of Governments, dated November 17, 2004, pp. 260 to 262.
---------------------------------------------------------------------------

    EPA notes that the supporting documentation cited by the comment is 
for the COG/TPB Travel Forecasting Model, Version 2.1D Draft 
50. The TDM model actually used for development of the 
February 2004 SIP revisions actually was the COG/TPB's Version 2.1/TP+ 
travel forecasting process. See Appendix B to the February 2004 SIP 
revisions, p. B-10. Version 2.1/TP+ model was validated using year 2000 
data. See ``COG/TPB Travel Forecasting Model Version 2.1/TP+, Release C 
Calibration Report,'' Metropolitan Washington Council of Governments, 
December 23, 2002, p. 9-1. The conclusion in the validation report was 
that VMT is shown to be overestimated by about 8 percent, screenlines 
estimates are high by 17 percent overall, and the RMSE is about 51 
percent, but the model performs well in other capacities (transit 
estimation, restrained speeds, trip distribution pattern. COG/TPB's 
Version 2.1 travel forecasting process represented the continuation of 
a multi-year models development plan that was formulated in FY-93 in 
response to the Federal Clean Air Act Amendments of 1990 and the 
Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991. Id., 
p. 1-1. For instance, the validation report states that the ratio of 
estimated to observed transit trips was 0.95 which means that overall 
the TDM predictions were only 5 percent less than the observed values. 
For transit trips, the ratio was 0.93 or 7 percent less. The overall 
ratio of estimated to observed VMT for the entire model domain was 1.08 
which is equivalent to the TDM over-predicting VMT by 8 percent. For 
the Washington area, the TDM over predicted VMT by 9 percent overall. 
Overall, the Version 2.1/TP+ TDM model used for the February 2004 SIP 
revisions over predicted VMT by facility type by 13 percent. See ``COG/
TPB Travel Forecasting Model Version 2.1/TP+, Release C Calibration 
Report,'' Metropolitan Washington Council of Governments, December 23, 
2002, Ex. 9-1 through 9-12.
    While the Version 2.1/TP+ TDM model under-predicts VMT on some 
highway segments it over predicts on most others. EPA believes that the 
claim made in the comment that the TDM

[[Page 25699]]

systematically underestimates traffic and therefore that the SIP 
revisions ``necessarily understate emission reductions needed'' to 
achieve required rates of progress, attainment or the VMT offset 
requirements is not supported by the facts. In actuality, the model 
generally overestimated VMT, as we have noted.
    In a letter to the TPB, the TRB noted that in the four decades of 
experience with the use of travel demand models in transportation 
planning there are few universally accepted guidelines or standards of 
practice for these models and their application, and any assessment of 
these models, their performance, and the current state of 
transportation demand modeling practices relies primarily upon 
professional experience and judgement.\20\ Given that TDMs are 
constantly undergoing refinement, and that models can always be 
improved, EPA believes we need not hold up the approval process until a 
hypothetical ``best model'' is eventually, if ever, developed. For 
these reasons, EPA disagrees with the comment. We conclude that the TDM 
model used in the SIP revisions is acceptable and that the SIP 
revisions can be approved.
---------------------------------------------------------------------------

    \20\ Letter from David J. Forkenbrock, to Christopher Zimmerman, 
Chairman, National Capital Region Transportation Planning Board, 
dated, May 10, 2004.
---------------------------------------------------------------------------

C. Comment on the VMT Offset SIP

    Comment: We received a comment asserting that the SIP revisions are 
deficient because they do not contain sufficient TCMs to offset growth 
in emissions from growth in VMT or in trip numbers. The comment alleges 
that the Act requires the SIP to offset any growth in emissions due to 
growth in VMT or in trip numbers be offset rather than a showing that 
overall motor vehicle emissions are expected to decline. The comment 
implies that the VMT offset provisions apply to both VOC and 
NOX emissions.
    Response: The VMT Offset Provision Applies Only to VOC Increases. 
As an initial matter EPA believes that the VMT offset provision applies 
only to increases of VOC emissions. As explicitly stated in the 
proposed rulemaking for the General Preamble for the Implementation of 
Title I of the Clean Air Act Amendments of 1990, 57 FR 13498 at 13521, 
Apr. 16, 1992, EPA has consistently interpreted the VMT offset 
requirements of the Act, set forth in section 182, to apply only to VOC 
emissions. See, e.g., 60 FR 38718 at 38721, July 28, 1995; 60 FR 48896 
at 48898-48899, September 21, 1995. As we explain, EPA disagrees with 
the commenter's assertion that the VMT offset SIP revisions are 
deficient because these revisions do not address growth in 
NOX emissions.
    Section 182(d)(1)(A) of the Act provides that ``any growth in 
emissions'' from growth in VMT must be offset. EPA believes that in the 
plain language of the Act Congress intended that this offset 
requirement be limited to VOC emissions. First, section 182(d)(1)(A)'s 
requirement that a State's adopted TCMs comply with the ``periodic 
emissions reduction requirements'' of subsections 182(b) and (c) the 
Act, indicates that the VMT offset SIP requirement is VOC-specific, and 
NOX emissions are not required to be offset.
    Section 182(c)(2)(B), which requires reasonable further progress 
demonstrations for serious ozone nonattainment areas, provides that 
such demonstrations will result in VOC emissions reductions; thus, the 
only ``periodic emissions reduction requirement'' of section 
182(c)(2)(B) is VOC-specific. In fact, it is only in section 
182(c)(2)(C)--a provision not referenced in section 182(d)(1)(A)--that 
Congress provided States the authority to submit demonstrations 
providing for reductions of VOC and NOX emissions in lieu of 
the SIP otherwise required by section 182(c)(2)(B).
    Moreover, the 15 percent periodic reduction requirement of section 
182(b)(1)(A)(i) applies only to VOC emissions, while only the separate 
``annual'' reduction requirement applies to both VOC and NOX 
emissions. We believe that Congress did not intend the terms ``periodic 
emissions reductions'' and ``annual emissions reductions'' to be 
synonymous, and that the former does not include the latter. In section 
176(c)(3)(A)(iii) of the Act, Congress required that conformity SIPs 
``contribute to annual emissions reductions'' consistent with section 
182(b)(1) (and thus achieve NOX emissions reductions), but 
did not cross reference the 15 percent periodic reduction requirement. 
Conversely, section 182(d)(1)(A) refers to the periodic emissions 
reduction requirements of the Act, but does not refer to annual 
emissions reduction requirements that require NOX 
reductions. Consequently, we interpret the requirement that VMT Offset 
SIPs comply with periodic emissions reduction requirements of the Act 
to mean that only VOC emissions are subject to section 182(d)(1)(A) in 
severe ozone nonattainment areas.
    Finally, we note that where Congress intended section 182 ozone SIP 
requirements to apply to NOX as well as VOC emissions, it 
specifically extended applicability to NOX. Thus, references 
to ozone or emissions in general in section 182 do not on their own 
implicate NOX. For example, in section 182(a)(2)(C), the Act 
requires States to issue preconstruction permits for new or modified 
stationary sources ``with respect to ozone.'' Congress clearly did not 
believe this reference to ozone alone was sufficient to subject 
NOX emissions to the permitting requirement, since it was 
necessary to enact section 182(f)(1) of the Act, which specifically 
extends the permitting requirement to major stationary sources of 
NOX. Since section 182(d)(1)(A) does not specifically 
identify NOX emissions requirements in addition to the VOC 
emissions requirements identified in the provision, EPA does not 
believe States are required to offset NOX emissions from VMT 
growth in their section 182(d)(1)(A) SIPs.
    The VMT Offset Provision in Section 182 Does Not Apply as Claimed 
in Comments. EPA has consistently explained that the purpose of the VMT 
offset requirement is to maintain motor vehicle VOC emissions beneath a 
``ceiling level'' established through modeling of mandated 
transportation-related controls, so that VOC emission reductions 
resulting from such measures are not cancelled out by growth in motor 
vehicle emissions. See, e.g., 57 FR 13498 at 13521-13523, April 16, 
1992; 61 FR 51214, October 1, 1996; 61 FR 53624, October 15, 1996; and 
66 FR 57247 at 57247-57248, November 14, 2001.
    The VMT offset provision of section 182(d)(1) of the Act requires 
that states submit by November 15, 1992 specific enforceable TCMs and 
transportation control strategies to offset any growth in emissions 
from growth in VMT or number of vehicle trips and to attain reductions 
in motor vehicle emissions sufficient, in combination with other 
measures, to allow total emissions in the sever nonattainment area to 
comply with the ROP and attainment requirements of the Act.
    As discussed in the General Preamble, EPA believes that section 
182(d)(1)(A) of the Act requires the State to ``offset any growth in 
emissions'' from growth in VMT, but not, as the comment suggests, all 
emissions resulting from VMT growth. See 57 FR at 13522-13523. As we 
explained in response to similar comments objecting to our application 
of the General Preamble's approach when approving other SIPs, the 
purpose is to prevent a growth in motor vehicle emissions from 
canceling out the emission reduction benefits of the federally mandated 
programs in the Act.

[[Page 25700]]

See 60 FR at 48898; 60 FR at 38720-38721. The baseline for emissions is 
the 1990 level of vehicle emissions and the subsequent reductions in 
emission levels required to reach attainment with the NAAQS for ozone. 
Thus, the anticipated benefits from the mandated measures such as the 
Federal motor vehicle pollution control program, lower Reid vapor 
pressure, enhanced inspection and maintenance and all other motor 
vehicle emission control programs are included in the ceiling line 
calculations used by the States in the VMT Offset SIP. Chapter 10 of 
the February 2004 SIP revisions, shows how emissions will decline 
substantially and will not begin to rise over the ceiling established 
by the mandated controls. Emission reductions are expected every year 
through the year 2005.
    Our approach is consistent with the purposes Congress had in 
enacting section 182(d)(1)(A). The ceiling line level decreases from 
year to year as the state implements various control measures, and the 
decreasing ceiling line prevents an upturn in mobile source emissions. 
Dramatic increases in VMT that could wipe out the benefits of motor 
vehicle emission reduction measures will not be allowed and will 
trigger the required implementation of TCMs. This prevents mere 
preservation of the status quo, and ensures emissions reductions 
despite an increase in VMT or number of vehicle trips. To prevent 
future growth changes from adversely impacting emissions from motor 
vehicles, states are required under section 182(c)(5) of the Act to 
track actual VMT and to periodically demonstrate that the actual VMT is 
equal to or less than the projected VMT, with TCMs required to offset 
VMT that is above the projected levels. Under the commenter's approach 
to section 182(d)(1)(A), the States would have to offset VMT growth 
even while vehicle emissions are declining. Although the statutory 
language could arguably be read to require offsetting any VMT growth, 
EPA believes that the language can also be reasonably and appropriately 
read so that only actual emissions increases resulting from VMT growth 
need to be offset. The statute by its own terms requires offsetting of 
``any growth in emissions from growth in [VMT].'' 42 U.S.C. 
7511a(d)(1). EPA has reasonably and consistently interpreted the VMT 
offset provision of the Act to require that states adopt, and submit to 
EPA for approval into their SIPs, TCMs or transportation control 
strategies sufficient to at least offset ``growth in [VMT] or numbers 
of vehicle trips,'' but only if the VMT growth would result in actual 
emissions increases from mobile sources. Our consistent historic 
interpretation of the language of section 182(d)(1)(A) is entitled to 
deference. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-44 (1984). 
See also U.S. v. Mead, 533 U.S. 218, 227-35 (2001).
    Given the susceptibility of the statutory language to these two 
alternative interpretations, EPA believes it is the Agency's role in 
administering the statute to take the interpretation most reasonable in 
light of the practical implications of such interpretation, and the 
purposes and intent of the statutory scheme as a whole. In the context 
of the intricate planning requirements Congress established in title I 
to bring areas towards attainment of the ozone standard, and in light 
of the absence of any discussion of this aspect of the VMT Offset 
provision by the Congress as a whole (either in floor debate or in the 
Conference Report), EPA has consistently concluded that the appropriate 
interpretation of section 182(d)(1)(A) requires offsetting VMT growth 
only when such growth would result in actual emissions increases.\21\
---------------------------------------------------------------------------

    \21\ As noted previously, EPA has applied this interpretation 
since the enactment of the 1990 amendments to the Clean Air Act 
adding section 182(d)(1)(A), and in response to adverse comments 
submitted on other rulemaking actions. See, e.g., 60 FR 48898 (final 
approval of Illinois' SIP) and 60 FR 39720-39721 (final approval of 
Indiana's SIP); 66 FR 57247 at 57247-57248, November 14, 2001 (final 
approval of Texas SIP).
---------------------------------------------------------------------------

    When growth in VMT and vehicle trips would otherwise cause an 
upturn in emissions from motor vehicles, this upturn must be prevented. 
The emissions level at the point of upturn becomes a ceiling on motor 
vehicle emissions. This requirement applies to projected emissions in 
the years between the submission of the SIP revision and the attainment 
demonstrations. The ceiling level is defined, therefore, up to the 
point of upturn, as motor vehicle emissions that would occur in the 
ozone season of that year, with VMT growth, if all measures for that 
area in that year were implemented by the Act. When this curve begins 
to turn up due to growth in VMT or vehicle trips, the ceiling becomes a 
fixed value. The ceiling line would include the effects of federal 
measures such as new motor vehicle standards, phase II Reid vapor 
pressure (RVP) controls, and reformulated gasoline, as well as the 
statutorily-mandated SIP requirements. For the reasons outlined in the 
February 9, 2005 NPR (70 FR 2085), EPA believes that the February 2004 
SIP revisions fulfill the first element.
    Under EPA's approach, the second element, which requires the VMT 
offset SIP to comply with the 15 percent ROP requirement of the Act, 
was due on November 15, 1993 for areas initially classified as severe 
nonattainment. November 15, 1993 is the same date on which the 15 
percent ROP SIP itself was due under section 182(b)(1) of the Act. For 
areas initially classified as severe nonattainment, EPA believes it was 
reasonable to extend the deadline for this VMT offset element from 
November 15, 1992 to the date on which the entire 15 percent SIP was 
due, as this allows states to develop the comprehensive strategy to 
address the 15 percent requirement and assure that the TCMs elements 
required under section 182(d)(1)(A) are consistent with the remainder 
of the 15 percent demonstration. Indeed, EPA believes that only upon 
submittal of the broader 15 percent plan can a state have had the 
necessary opportunity to coordinate its VMT strategy with its 15 
percent plan. In the case of the Washington area, the second element 
has been fulfilled because the 15 percent ROP plans were approved long 
before the area was reclassified to severe nonattainment. See 64 FR 
42629, August 5, 1999; 65 FR 44686, July 19, 2000; and, 65 FR 59727, 
October 6, 2000.
    The third element, which requires the VMT offset SIP to comply with 
the post-1996 ROP and attainment requirements of the Act, was due on 
November 15, 1994, the statutory deadline for those broader 
submissions. For areas initially classified as severe nonattainment, 
EPA believes it is reasonable to similarly extend the deadline for this 
VMT element to the date on which the post-1996 ROP and attainment SIPs 
are due for the same reason it is reasonable to extend the deadline for 
the second element.\22\ First, it is arguably impossible for a state to 
make the showing required by section 182(d)(1)(A) for the third element 
until the broader demonstrations have been developed by the State. 
Moreover, allowing states to develop the comprehensive strategy to 
address post-1996 ROP plans and attainment by providing a fuller 
opportunity to assure that the TCMs elements comply with the broader 
ROP plans and attainment demonstrations, will result in a better 
program for reducing emissions in the long term. In the case of the 
Washington area, EPA believes the third element has

[[Page 25701]]

been fulfilled for the reasons outlined in the February 9, 2005 NPR (70 
FR 2085) and this document because EPA is approving the 1996-1999 and 
1999-2005 ROP plans and the modeled demonstration of attainment. EPA 
thus finds that the SIPs contain all measures necessary to provide for 
timely attainment and ROP, and therefore that no additional TCMs will 
be necessary to meet those requirements.
---------------------------------------------------------------------------

    \22\ In the case of the Washington area, the post-1999 portions 
of the post-1996 ROP plan required under section 182(c)(2) were in 
fact due on the same as the VMT offset SIP. See 68 FR 3410, January 
24, 2003.
---------------------------------------------------------------------------

D. Comment on the Contingency Measures Plans

    Comment 1: We received a comment asserting that EPA cannot approve 
the contingency measures which were identified in the SIP revisions to 
address the Washington area's the failure to attain by November 15, 
1999. The comment claims that, because these measures in the plan 
required further action by the States, these contingency measures do 
not meet the CAA's requirement that the measures take effect without 
further action by the State or EPA after the failure to attain. The 
comment also claims the contingency measures do not meet EPA's own 
guidance which requires contingency measures to achieve reductions no 
later than the year after the one in which the failure is identified 
because these contingency measures identified by the SIP revision were 
not implemented until 5 to 6 years after the failure to attain.
    Response 1: EPA disagrees with the comment that the contingency 
plan for the failure of the Washington serious ozone nonattainment area 
to attain by November 15, 1999 cannot be approved. The comment does not 
address the factual situation for the Washington area where the SIP did 
not contain a contingency measures plan consisting of fully adopted 
measures until the submission of the February 2004 SIP revisions and 
submission of the various adopted rules identified as the contingency 
measures that is the contingency measures implemented in response to 
the failure of the Washington area to attain the 1-hour ozone NAAQS by 
November 15, 1999.
    Prior to our January 12, 2004 NPR (70 FR 2085), EPA had recognized 
that the SIP of each of the Washington area States did not contain 
contingency measures to address the failure to attain (FTA) the ozone 
NAAQS by November 15, 1999 (the ``contingency measures for 1999 FTA''). 
In the January 12, 2004 NPR (70 FR at 2087), we provided a brief 
history of the severe area SIP revisions by noting that EPA had 
previously conditionally approved the post-1996 ROP plans and those 
versions of the attainment plans submitted during 1998 and 2000, 
contingent upon the States fulfilling commitments they made to submit 
the additional elements required of SIPs for a severe area within one 
year. One of the conditions for approval in the April 17, 2003 final 
conditional approval (68 FR 19106) was that the States had to revise 
the Washington area severe attainment plan to include a contingency 
plan containing those adopted measures that qualify as contingency 
measures to be implemented for the failure of the Washington area to 
attain the one-hour ozone standard for serious areas by November 15, 
1999; that is, the States had to submit SIP revisions to add the 
contingency measures for 1999 FTA. 68 FR at 19106. In the NPR for the 
April 17, 2003 final conditional approval, EPA noted that the States in 
the Washington area had committed to submit to the EPA those measures 
that qualify as contingency measures due to the failure of the 
Washington area to attain the ozone standard for serious areas by 
November 15, 1999. 68 FR at 5248, February 3, 2003. In the February 3, 
2003 NPR, EPA also recounted that our January 3, 2001 approval (66 FR 
586) of the post-1996 ROP plans and those versions of the attainment 
plans submitted during 1998 and 2000 had been vacated by the Court of 
Appeals. The Court of Appeals determined that EPA lacked the authority 
to approve attainment plan and ROP SIPs without contingency measures. 
Sierra Club v. Whitman, 294 F.3d at 164. EPA had noted that the post-
1996 ROP plans and those versions of the attainment plans submitted 
during 1998 and 2000 covered by the January 3, 2001 final rule ``[did] 
not specify any specific measures as contingency measures.'' 66 FR at 
615-616, January 3, 2001. EPA also agreed with comment that the lawn/
garden measure identified in the contingency plan as a contingency 
measure was insufficient. Therefore, EPA believes that prior to 
submittal of the February 2004 SIP revisions and the SIP revisions 
containing the adopted rules for the contingency measures the 
Washington area States had not submitted the necessary SIP revisions 
for the contingency measures for 1999 FTA.
    EPA has interpreted the requirement that contingency measures must 
``take effect without further action by the State or the 
Administrator'' to mean that no further rulemaking activities, such as 
public hearings or legislative review, by the State or the EPA should 
be needed to implement the contingency measures. See 57 FR at 13512, 
April 16, 1992; section 9.0 of ``Guidance for Growth Factors, 
Projections, and Control Strategies for the 15 Percent Rate-of-Progress 
Plans,'' (EPA-452/R-93-002, March 1993). EPA has required that 
contingency measures must be fully adopted rules or measures but do not 
have to be implemented unless and until they are triggered by a failure 
to either meet a milestone or attain the NAAQS. See section 5.6 of 
``Guidance on the Post '96 Rate-of-Progress Plan (RPP) and Attainment 
Demonstration'' (Corrected version of February 18, 1994).
    The States did not have adopted contingency measures to implement 
without further action by the States on the effective date of EPA's 
determination that the Washington area failed to attain by 1999. If EPA 
were to now disapprove the contingency measures plan because the States 
needed to take further action after the 1999 FTA in order to implement 
the contingency measures to address the 1999 FTA, the States would have 
to adopt and submit SIP revisions consisting of a revised contingency 
measures plan and adopted control measures, and, EPA would have to 
approve those SIP revisions in order to prevent or lift sanctions 
required by section 179 of the Act. This would be an impossibility 
since the relevant 1999 date has long since passed. In short, the 
States and EPA would have to undertake rulemaking actions on those 
remedial SIP revisions, and those rulemakings would suffer the same 
fate that the commenter's claim make the measures we approve today 
supposedly defective--we would have to disapprove them because they 
were not implementable prior to the States' failure to attain in 1999. 
The commenter would have EPA produce an endlessly looping, absurd 
result, namely, the States would be left in a position where no SIP 
revision would be able to lift sanctions because the States cannot go 
back in time to adopt measures that were not adopted by a deadline in 
the past. The fact that the States failed to adopt and submit these 
measures in a timely fashion should not preclude EPA from approving 
them now that they have been adopted, implemented, and submitted.
    EPA further disagrees with the comment that the contingency 
measures needed to address the contingency measures for 1999 FTA are 
inadequate because these measures do not meet EPA's guidance which 
requires contingency measures to achieve reductions no later than the 
year after the one in which the failure is identified. Once again, the 
commenter would have EPA produce an absurd

[[Page 25702]]

result. Because the States cannot go back in time to implement measures 
that were not implemented by a deadline in the past, if EPA were to 
disapprove the contingency measures for 1999 FTA for the reason 
advanced in the comment, the States again would be left in the 
situation where no SIP revisions or measures could be approved to halt 
or lift sanctions. Any further SIP revisions to address the contingency 
measures for 1999 FTA would suffer the same defect of timeliness. Given 
this impossibility EPA believes that it is appropriate and beneficial 
to the environment to belatedly get the reductions contemplated by the 
1999 FTA contingency measures.
    EPA agrees that our guidance and policy requires contingency 
measures, once triggered, to achieve reductions no later than the year 
after the one in which the failure is identified. However, this 
guidance applies to contingency measures that meet the requirement that 
the measures can be ``implemented without further action'' by the state 
or EPA. EPA expects that certain actions, such as notification of 
sources, modification of permits, etc., would probably be needed before 
a measure could be implemented effectively needed to affect full 
implementation of the contingency measures and expect such actions to 
occur within 60 days after EPA notifies the State of its failure. See 
57 FR at 13512, April 16, 1992. EPA considers that in the case of a 
failure to attain, the State is notified of a failure to attain only 
once EPA has published the notice in the Federal Register pursuant to 
section 181(b)(2)(B) that EPA has determined that the area has failed 
to attain by the statutory attainment date, and that such notification 
is effective on the effective date of the Federal Register publication. 
Under section 181, such a notification can be published no later than 
May 15th of the year following the attainment date and still be timely 
under the Act. For a November 15, 1999 attainment date, the one-year 
period for implementation of the contingency measures for 1999 FTA 
could well have started May 15, 2000.
    For the Washington area, EPA's determination that the area had 
failed to attain by the serious attainment date of November 15, 1999 
was in fact effective March 24, 2003. 68 FR 3410, January 24, 2003. In 
the case of the Washington area, the States adopted and implemented by 
January 1, 2005 all the measures identified in the plan as addressing 
the contingency measures for 1999 FTA. See Table X. B-1 Summary of 
Benefits from Measures 7.4.11, 7.4.12 and 7.4.14 of the January 5, 2005 
TSD.\23\ Arguably, the one-year period after the States were notified 
of the failure to attain ended March 24, 2004, but as discussed 
previously, the States needed to first adopt the measures that would be 
used as the contingency measures for 1999 FTA before the measures could 
be implemented. The comment offers no suggestion on how the States 
might retroactively obtain emission reductions in 2004 (or for that 
matter 2000) for measures that the States did not adopt and implement 
until after that time.
---------------------------------------------------------------------------

    \23\ ``Technical Support Document for Approval and Promulgation 
of Air Quality Implementation Plans; District of Columbia, Maryland, 
and Virginia; Post-196 Rate-of-Progress Plan, Contingency Measures, 
Transportation Control Measures, 1990 Base Year Inventory Changes, 
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment 
Area,'' dated January 5, 2005.
---------------------------------------------------------------------------

    As pointed out by the Court of Appeals in Sierra Club v. EPA, 356 
F.3d 296, with respect to the reclassification of the area to severe 
nonattainment status due to the its failure to attain the 1-hour ozone 
NAAQS by November 15, 1999, this commenter ``challenged EPA's decision 
to extend the States' final deadline for submitting revised SIPs 
complying with the Act's requirements for severe areas, including post-
1999 ROP plans, to March 1, 2004.'' 356 F.3d at 308-09.
    The Court of Appeals acknowledged that ``the deadline for filing 
severe area SIP components including post-1999 ROP plans had already 
passed long before reclassification took place. Indeed, the statutory 
deadline for such submittals was November 15, 1994.'' Id. at 309. 
Citing to a prior decision, Sierra Club v. Whitman, 285 F.3d 63 (D.C. 
Cir. 2002), the Court reiterated that `` `The relevant provisions of 
the Clean Air Act * * * contain no language suggesting that Congress 
intended to give EPA the unusual ability to implement rules 
retroactively,' '' in upholding EPA's reliance on the discretion 
conferred by section 182(i) of the CAA to adjust applicable statutory 
deadlines, other than attainment dates, when it reclassifies an 
attainment area.
    Similarly, EPA believes that it would be arbitrary and capricious 
to impose a retroactive obligation on the States that can never be 
fulfilled, resulting in sanctions that could never be lifted. It would 
be especially egregious for EPA to put the States in that position 
since the States' failure to submit contingency measures or to even 
realize that the November 15, 1999 attainment date pertained to the 
Washington area was due to their reliance on published EPA 
guidance.\24\ The failure to begin implementation of contingency 
measures in 2000, upon a March 24, 2003 EPA finding that the area 
failed to attain in November 1999, cannot be cured by a state 
rulemaking that occurred before March 24, 2003; there was no such 
rulemaking then, it does not exist now, and it never can be. After 
March 24, 2003, the States could complete their respective state 
rulemaking processes to develop the missing contingency measures. They 
have done so, and all those measures have been implemented.
---------------------------------------------------------------------------

    \24\ See, Memorandum dated July 16, 1998, from Richard Wilson, 
Acting Assistant Administrator for Air and Radiation, ``Extension of 
Attainment Dates for Downwind Areas.''
---------------------------------------------------------------------------

    In this action EPA is acting on SIP revisions that, with respect to 
the contingency measures for 1999 FTA, identify additional measures 
that the States have implemented subsequent to November 15, 1999 
attainment date for serious areas. EPA concludes that in the 
circumstances of this case it is appropriate and consistent with the 
statute to approve these contingency measures that have now been 
implemented.
    Comment 2: We received a comment asserting that the contingency 
plan for 2005 cannot rely on measures already adopted and in place or 
to be in place before the 2005 attainment and ROP deadline. The comment 
claims that the Act requires that contingency measures must be 
additional measures that will be triggered by the attainment or 
milestone failure, that is, the Act provision is prospective, not 
retrospective. In support of their argument, the comment cites 
language, ``to be undertaken in the event the area fails,'' from the 
legislative history for the 1990 amendments to the Act.
    Response 2: EPA believes that its interpretation of the contingency 
measure provisions of the Act applicable to severe nonattainment areas 
is a reasonable interpretation of the Act because reductions from these 
contingency measures are continuing in nature. Sections 172(c)(9) and 
182(c)(9) of the Act direct that a state's revised SIP shall include 
``specific measures to be undertaken'' if an ROP or attainment 
milestone is missed, and that the contingency measures are ``to take 
effect in any such case without further action by the State or the 
Administrator.'' 42 U.S.C. 7502(c)(9), 7511a(c)(9) (emphasis added).
    EPA has consistently stated that any rule or measure that meets the 
creditability requirements of section 182(b)(1)(C) and (D), that would 
achieve real, permanent, enforceable reductions, and that is not 
already required as a part of the relevant ROP or attainment

[[Page 25703]]

demonstration SIP, can be adopted as a contingency measure. See 
``Guidance on the Post-1996 Rate-of-Progress Plan and Attainment 
Demonstration'' (corrected version as of 2/18/94), section 5.6.
    Congress, in the Act, did not define the terms ``to take effect'' 
and ``to be undertaken.'' The terms ``to take effect'' and ``to be 
undertaken'' could imply a purely prospective action that excludes the 
possibility of contingency measure implementation prior to an area's 
failure to meet an ROP milestone or attainment date. If we were to read 
the CAA this way, the only acceptable contingency measure would be 
those that are adopted but not implemented. Under that reading, the 
states could adopt the contingency measures but hold their 
implementation in reserve to meet the contingency measure requirement. 
If we read the Act to allow adopted and implemented measures that 
continue to result in emissions reductions in years subsequent to their 
implementation to serve as contingency measures, provided that those 
measures' emission reductions are not needed to demonstrate expeditious 
attainment and/or ROP, the states could implement the contingency 
measures early and would achieve the environmental benefits prior to 
the triggering of the contingency requirement. Nothing in the language 
of sections 172(c)(1), 172(c)(9) or 182(c)(9) prohibits this 
interpretation. Implemented contingency measures achieve continuing 
emissions reductions. We reasonably interpret the term ``to take 
effect'' and ``to be undertaken,'' as used in sections 172(c)(9) and 
182(c)(9) of the Act, to allow as contingency measures, measures 
implemented prior to the failure to achieve an ROP or attainment 
milestone, that will continue to achieve emissions reductions after the 
plan fails, so long as those measures are not needed to demonstrate 
expeditious attainment and/or ROP. As noted previously, this 
interpretation is a longstanding exercise of EPA's authority to 
construe a statutory scheme it is entrusted to administer, by filling 
the gap left by Congress's failure to define the terms ``to take 
effect'' and ``to be undertaken.'' See generally, U.S. v. Mead Corp., 
553 U.S. at 227-35; Chevron U.S.A, Inc. v. NRDC, 467 U.S. 837, 842-45 
(1984).\25\
---------------------------------------------------------------------------

    \25\ The commenter's appeal to the legislative history does not 
add to its argument, since the quoted language reiterates, but does 
not elaborate, explain or expound upon, the statutory text.
---------------------------------------------------------------------------

    EPA believes that allowing early reductions to be used as 
contingency measures comports with a primary purpose of the Act--the 
aim of ensuring that nonattainment areas reach NAAQS compliance in an 
efficient manner and achieving additional emissions reductions that 
will improve air quality. The contingency plan allows the Washington 
area to include sufficient contingency measures to ensure that ``upon 
implementation of such measures, additional emissions reductions of up 
to 3 percent of the emissions in the adjusted base year inventory (or 
such lesser percentage that will cure the identified failure) would be 
achieved in the year following the year in which the failure has been 
identified.'' See 57 FR at 13511, April 16, 1992.
    The emissions reductions from the measures in the Washington area 
contingency plan are not available for any other use so long as the 
measures remain in the SIP as contingency measures. A failure to attain 
or failure to demonstrate ROP will result in these emissions reductions 
being applied toward attainment or ROP (depending on which milestone is 
not being met). Even though these measures are already implemented, the 
continuing reduction credits are, in effect, set aside to be applied in 
the event that attainment or ROP is not achieved. These credits are 
immediately available, without further action by the States. We note 
that measures that have already been implemented clearly meet CAA 
section 172(c)(9) requirement that contingency measures take effect 
without further action by the State or Administrator. EPA believes that 
it would be illogical and counterproductive to penalize nonattainment 
areas that are taking extra step of implementing contingency measures 
prior to a failure to achieve a ROP or attainment milestone, to further 
insure that the area will comply with the CAA's mandate that states 
attain the NAAQS as ``expeditiously as practicable.'' 42 U.S.C. 
7502(c)(1). As we have noted previously, ``There are a number of 
benefits to allowing and even encouraging the early implementation of 
contingency measures. The chief benefit is that their emission 
reductions and thus their public health benefit are realized early. 
Another is that it allows states to build uncredited cushions into 
their attainment and RFP demonstrations, a cushion which makes actual 
failures to make progress or attain less likely.'' 67 FR 48718, 48731, 
July 25, 2002.
    The standard advocated by the comment would allow EPA to approve 
the contingency measure plan only if the measures were scheduled for 
implementation in the event of a future failure to make a ROP target or 
attain the NAAQS. EPA believes that the States could correct a 
disapproval issued pursuant the standard advocated by the comment by 
amending the contingency measure rules themselves to replace the 
current requirement for compliance by a date certain with a requirement 
to comply by some date(s) in future to be determined only upon a ROP or 
attainment failure. Such a revision would not interfere with ROP or 
attainment because EPA believes that the reductions from the measures 
in the contingency plan to address a ROP failure or a failure to attain 
by November 15, 2005 must go beyond the emissions reductions needed to 
demonstrate ROP and timely attainment (i.e., they are ``surplus''). 
Although this result might arguably comply with the statute as the 
commenter suggests, it would actually be detrimental for air quality as 
the measures would not be producing emissions reductions currently as 
under the submitted SIP.
    The comment alleges that if an area fails to meet a progress or 
attainment deadline, the measures already in effect are insufficient, 
thus warranting the implementation of additional controls which the 
comment claims should be the contingency measures. Yet, the comment 
fails to recognize that if the area fails to attain on time, such 
failure would have been worse in the absence of the contingency 
measures. Likewise, if an area has an ROP shortfall, such shortfall 
would have been larger in the absence of the contingency measures.
    EPA has approved many contingency measure plans relying upon early 
implementation of contingency measures. See, e.g., 67 FR 60590, 
September 26, 2002. EPA's interpretation that early implemented 
contingency measures meet the requirements of the Act was upheld in 
Louisiana Environmental Action Network v. EPA, 382 F.3d 575 (5th Cir. 
2004), though the court found that the particular measure at issue did 
not qualify as a contingency measure for other reasons.
    Comment 3: We received a comment that the Act requires a set of 
contingency measures to address any failure to meet ROP requirements 
for the 2002-2005 period, that is separate from those required for 
failure to attain. The comment claims that the requirement for 
contingency measures to address post-1996 milestone failures is 
explicitly set out in the Act as an additional mandate in addition to 
the requirement for contingency measures to address attainment 
failures. The comment further claims that the 2005 ROP deadline here 
could precede the attainment date if, in the case of an area which 
qualifies for one or both of the 1-

[[Page 25704]]

year attainment date extensions allowed by the Act.
    Response 3: EPA disagrees that section 182(c)(9) of the Act 
necessarily adds anything substantive to the requirement of section 
172(c)(9) other than a requirement that the contingency plan be able to 
address a milestone failure pursuant to section 182(g). EPA first notes 
that neither section 182(c)(9) nor 172(c)(9) of the Act specify how 
many contingency measures are needed or the magnitude of emissions 
reductions that must be provided by these measures. The Act is totally 
silent on this issue. EPA rejected the interpretation that the Act 
requires states to adopt sufficient contingency measures to make up for 
a shortfall resulting from the failure where none of the state measures 
produce any expected reductions. We thus rejected an interpretation 
where the state would have to adopt ``double'' the measures needed to 
satisfy the applicable emissions reduction requirements because EPA 
believes that this would be an unreasonable requirement given the 
difficulty many States will already have in identifying and adopting 
sufficient measures to meet ROP and other requirements, let alone 
contingency measures. See 57 FR at 13510-13512, April 16, 1992.
    Instead, EPA believes that the contingency measures should, at a 
minimum, ensure that an appropriate level of emissions reduction 
progress continues to be made if attainment or ROP is not achieved and 
additional planning by the state is needed. Therefore, EPA has 
interpreted the Act to require states with moderate and above ozone 
nonattainment areas to include sufficient contingency measures so that, 
upon implementation of such measures, additional emissions reductions 
of up to 3 percent of the emissions in the adjusted base year inventory 
\26\ (or such lesser percentage that will cure the identified failure) 
would be achieved in the year following the year in which the failure 
has been identified. This ``additional'' reduction would ensure that 
progress toward attainment occurs at a rate similar to that specified 
under the ROP requirements for moderate areas (i.e., 3 percent per 
year), and that the state would achieve these reductions while 
conducting additional control measure development and implementation as 
necessary to correct the shortfall in emissions reductions and/or to 
adopt newly required measures resulting from reclassification to a 
higher classification, in the case of a moderate or serious area, or to 
meet the 3 percent per year requirements specified by section 
181(b)(4)(A) of the Act for severe areas that fail to attain. Under 
this approach, the State would have 1 year to modify its SIP and take 
other corrective action needed to ensure that milestones are achieved 
and that ROP toward attainment continues. See 57 FR at 13510-13512, 
April 16, 1992.
---------------------------------------------------------------------------

    \26\ The adjusted base year inventory is that inventory 
specified by the provisions under section 182(b)(1)(B).
---------------------------------------------------------------------------

    Section 182(c)(9) provides that ``[i]n addition to the contingency 
provisions required under section [172(c)(9)] * * * the plan revision 
[for serious and above nonattainment areas] shall provide for the 
implementation of specific measures to be undertaken if the area fails 
to meet any applicable milestone.'' Section 172(c)(9) requires 
contingency measures for failure of an area to ``make reasonable 
further progress, or to attain'' the NAAQS. As clarified by section 
182(g)(1) of the Act, the ``applicable milestones'' for serious, and 
above, nonattainment areas, such as the Washington area, which is a 
severe nonattainment area, are those tied to the ROP plan percent 
emission reductions. The commenter urges EPA to interpret sections 
172(c)(9) and 182(c)(9) to require not only that there be contingency 
measures in the SIP tied to the ROP milestones for the Washington area, 
but that these contingency measures must be different from the measures 
required under 172(c)(9).
    We believe, however, that 182(c)(9) merely adds milestones for 
serious and above areas that must be included as triggers for 
contingency measures, and does not impose any requirement for a state 
to adopt contingency measures in addition to those being used in the 
contingency plan required by section 172(c)(9), provided that such 
measures will generate reductions in all the relevant years.\27\ Thus a 
state may specify the same contingency measure to be used for failure 
to attain the NAAQS as for failure to meet an ROP milestone, in a year 
for which the measure produces emission reductions. Of course, if a 
measure is triggered for failure to meet a milestone in an early year 
the area would have to submit an additional measure to be available in 
the event of a later failure to meet a subsequent milestone or 
demonstrate attainment. Since the plain language of the statute 
supports this interpretation, and nothing in the statute prohibits this 
interpretation, EPA's interpretation of how these two contingency 
measure provisions relate to each other is entitled to deference. See 
U.S. v. Mead Corp., 553 U.S. 218 (2001); Chevron U.S.A, Inc. v. NRDC, 
467 U.S. 837 (1984).
---------------------------------------------------------------------------

    \27\ We note that if a serious or above nonattainment area fails 
to meet an applicable milestone, the contingency measures will not 
even necessarily be triggered. A state may opt to be reclassified to 
the next higher classification or to adopt an economic incentive 
program in lieu of implementing the measures in its contingency 
plan. 42 U.S.C. 7511a(g)(3).
---------------------------------------------------------------------------

    Comment 4: We received a comment asserting that the contingency 
plan does not meet EPA's guidance because the plan does not contain a 
commitment for timely adoption of additional measures if the 3 percent 
contingency plan is not adequate to correct a failure to attain or 
achieve an ROP milestone.
    Response 4: While EPA's guidance does specify that the States to 
backfill a contingency measures plan after the need for the measures is 
triggered neither the statute nor the guidance contains the sort of 
commitment claimed by the comment.
    ``Any implemented measures (that are not needed for the rate-of-
progress requirements or for the attainment demonstration) would need 
to be backfilled only to the extent they are used to meet a milestone * 
* *. The State would be required to adopt new contingency measures as 
part of the process of developing their new SIP for their new 
classification.'' See section 5.6 of ``Guidance on the Post '96 Rate-
of-Progress Plan (RPP) and Attainment Demonstration'' (Corrected 
version of February 18, 1994). ``Within 1 year of the triggering of a 
contingency requiring the early implementation of control measures, the 
State must submit a revision to the SIP containing whatever additional 
measures will be needed to backfill the SIP with replacement measures 
to cure any eventual shortfall that would occur as the result of the 
early use of the contingency measure.'' See 57 FR at 13511, April 16, 
1992.
    The commitment discussed in the General Preamble (57 FR 13498 at 
13511-31512, April 16, 1992) was to an annual tracking program--not a 
commitment to backfill the plan with new measures. As interpreted in 
the general preamble, EPA does not believe that contingency measures 
are required to completely fill any shortfall caused by a failure. This 
will be filled by the revised plan required to cure the failure.
    Comment 5: We received a comment asserting that the contingency 
plan must contain some NOX reductions since the ROP and 
attainment plans rely upon NOX reductions as well as VOC 
reductions.
    Response 5: With regard to the need for NOX contingency 
measures, EPA disagrees with the comment that the contingency plan must 
contain NOX

[[Page 25705]]

contingency measures simply because the ROP and attainment plans rely 
upon NOX reductions. As to contingency measures to address a 
failure to in the ROP plans, the Act creates a clear command that VOC 
reductions presumptively meet the ROP requirements applicable to 
moderate, serious and worse areas. Section 182(b)(1)(A) requires a ROP 
plan for a 15 percent reduction in baseline VOC emissions. EPA has 
never interpreted the Act to allow NOX substitution in the 
15 percent plan for an area which is subject to subpart 2 of part D to 
Title I of the Act and which is not already covered by a 15 percent ROP 
plan. See, section 1.1 of ``Guidance on the Post-1996 Rate-of-Progress 
Plan and Attainment Demonstration'' (corrected version as of 2/18/94); 
see, 68 FR at 32826, June 2, 2003 (waiving the VOC reduction 
requirement would require ``absurd results;'' ``We believe that absurd 
results will happen only rarely in those cases where application of the 
requirement in that area would thwart the intent of Congress in 
enacting the relevant provisions of the [Act].'' Absurd results would 
require a showing that ``future VOC reductions required under subpart 2 
for a particular area would actually cause ozone to increase more than 
a de minimis amount,'' and, ``it would not be sufficient for the area 
to show that VOC reductions would be less beneficial than 
NOX reductions.'') See 68 FR at 32833, June 2, 2003. Section 
182(c)(2)(B) requires ROP reductions averaging 3 percent per year 
reduction in baseline VOC emissions. Section 182(c)(2)(C) authorizes 
EPA to accept ROP plans containing a lesser percentage of VOC 
reductions plan if the that substitutes NOX reductions in 
accordance with EPA's guidance.
    The comment claims EPA's policy and guidance requires SIPs to 
provide for contingency reductions in NOX where the SIP for 
the area relies on NOX substitution in lieu of or in 
addition to VOC reductions. In support of this position, the commenter 
quotes a footnote in the General Preamble, 57 FR 13498, April 16, 1992. 
However, EPA believes our interpretation of the Act set forth in later 
guidance allows just the opposite, namely, that the contingency 
measures for both ROP and attainment failures can provide for at least 
some VOC reductions where the attainment plan relies on VOC and 
NOX reductions even if the ROP plan relies on all 
NOX reductions. See ``Guidance on Issues Related to 15 
Percent Rate-of-Progress Plans,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation to the Regional 
Division Directors, August 23, 1993.\28\ This later guidance provides 
that NOX contingency reductions can be substituted for VOC 
contingency reductions, but plainly does not preclude all of the 
contingency reductions from being achieved through VOC control.
---------------------------------------------------------------------------

    \28\ Reissued in Appendix D to ``Guidance on the Post-1996 Rate-
of-Progress Plan and Attainment Demonstration'' (corrected version 
as of 2/18/94).
---------------------------------------------------------------------------

    Where a ROP plan relies upon 9 percent NOX reduction to 
demonstrate ROP pursuant to section 182(c)(2)(C) of the Act for one or 
more milestone years after 1996, EPA believes that a milestone failure 
caused by a shortage of NOX reductions can be filled by VOC 
reductions. Under EPA's guidance for NOX substitution, the 
VOC contingency reductions would in essence change the plan from one 
relying upon 9 percent NOX reductions to a plan relying upon 
a mixture of NOX and VOC percentage reductions. For 
instance, a 1 percent failure would change in such a ROP plan from 9 
percent NOX to 8 percent NOX and at least 1 
percent VOC.
    EPA believes that the Washington area attainment plans demonstrate 
attainment through a strategy of VOC and NOX control. 
Therefore, inclusion of VOC measures in the contingency measures plan 
is proper to address a failure to attain.
    Comment 6: We received a comment alleging that all of the emission 
reductions from the continency measures are not ``surplus'' because 
neither EPA nor the States have quantified the total VOC and 
NOX reductions needed to attain by November 15, 2005. The 
comment further claims that the use of a WOE approach in the modeled 
demonstration of attainment is incapable of identifying the precise 
level of emission reductions needed for attainment and thus does not 
support the claim that there are ``surplus'' reductions in the SIP that 
can be used for ``contingency'' purposes.
    Response 6: The photochemical grid modeling runs used in the SIP 
revisions which were the subject of the April 17, 2003 final rule (68 
FR 19106) are the same as those photochemical grid modeling runs used 
in the February 2004 SIP revisions which are the subject of this final 
rule. The WOE analytical methods and/or analyses that support the 
modeled demonstration of attainment in the February 2004 SIP revisions, 
which are the subject of this final rule, include the same WOE 
analytical methods and/or analyses that supported the modeled 
demonstration of attainment which were the subject of the April 17, 
2003 final rule (68 FR 19106). This issue has been litigated by the 
commenter and conclusively decided in EPA's favor. See Sierra Club v. 
EPA, 356 F.3d at 304-307. In addition, as noted in section IV. A. 2. of 
the January 31, 2005 TSD prepared for the February 9, 2005 NPR (70 FR 
6796) the States provided additional WOE in the form of the results of 
EPA's photochemical grid modeling performed for the Tier 2 final rule. 
See, sections VI. A. 1. and 2. of ``Technical Support Document for 
Approval and Promulgation of Air Quality Implementation Plans; District 
of Columbia, Maryland, and Virginia; Attainment Demonstration for the 
Metropolitan Washington, DC Nonattainment Area,'' dated January 31, 
2005.
    As discussed elsewhere in response to comment, EPA believes that 
the States' use of photochemical grid modeling with an adjunct WOE 
analysis demonstrates timely attainment and meets the statutory 
requirements of the Act and constitutes a modeled demonstration of 
attainment. Specifically, EPA incorporates by reference the responses 
to comment in section IV. A. ``Comment on the Attainment Demonstration 
Modeling'' of the preamble to this final rule. In the TSD prepared for 
the NPR for this final rule, EPA concluded that without the reductions 
from the contingency measures the SIP contained sufficient creditable 
measures to achieve emissions levels in the Washington area of 331 TPD 
of VOC emissions and 491 TPD of NOX emissions.\29\
---------------------------------------------------------------------------

    \29\ Table IV.F-1 Relative Reductions on page A-27 of 
``Technical Support Document for Approval and Promulgation of Air 
Quality Implementation Plans; District of Columbia, Maryland, and 
Virginia; Attainment Demonstration for the Metropolitan Washington, 
DC Nonattainment Area,'' dated January 31, 2005.
---------------------------------------------------------------------------

    These overall emissions levels of 331 TPD of VOC and 491 TPD of 
NOX are still less than the levels used in the photochemical 
grid modeling which assumed levels of 360 TPD of VOC emissions and of 
over 500 TPD of NOX emissions, and are sufficient to support 
the WOE demonstration.\30\ The WOE demonstration builds upon the 
photochemical grid modeling by considering other photochemical grid 
modeling results, and the overall change in emissions from the 1990 
base year to the 2005 attainment year. EPA concludes that attainment is

[[Page 25706]]

demonstrated without reliance upon the reductions from the contingency 
measures and therefore the reductions from the contingency measures are 
surplus for the purposes of attainment.
---------------------------------------------------------------------------

    \30\ Table IV.F-1 Relative Reductions on page A-27 of 
``Technical Support Document for Approval and Promulgation of Air 
Quality Implementation Plans; District of Columbia, Maryland, and 
Virginia; Attainment Demonstration for the Metropolitan Washington, 
DC Nonattainment Area,'' dated January 31, 2005.
---------------------------------------------------------------------------

    Comment 7: We received a comment asserting that the SIP cannot rely 
on the reformulated gasoline (RFG) program as a ``contingency'' measure 
to address the area's failure to attain by 1999, because the RFG 
program became mandated by the Act once the Washington area missed the 
1999 attainment deadline. The comment claims that contingency measures 
are measures that must be in addition to those mandated by the Act. The 
comment also claims that RFG was never intended as a contingency 
measure and, thus, contrary to EPA's assertion, it is hardly a 
``penalty'' to the nonattainment area to disallow contingency credit 
for a measure that was never intended as a contingency measure, and 
that was implemented at a time when the area was already years behind 
schedule in adopting adequate ROP and attainment plans. The comment 
further asserts that if the RFG program is a permissible contingency 
measure the agency's guidance would obligate the states to ``backfill'' 
the measure with one year assuring equivalent reductions and that the 
states have not done so.
    Response 7: EPA agrees with the comment to the extent that it 
raises questions about whether RFG can be used as a contingency measure 
after an area is reclassified to severe nonattainment. The RFG 
requirement is required under Title II of the Act once an area is 
reclassified to severe nonattainment. However, EPA believes that 
whether or not RFG is a contingency measure is not a deciding factor 
whether EPA approve the contingency measures plan in this case because 
the plan contains other sufficient measures to fulfill the requirement. 
EPA concludes that the contingency measures plan is approvable even 
without considering RFG to be a contingency measure and thus EPA is not 
responding to the allegations that RFG can not be considered a 
contingency measure in this case.

E. Comment Received Regarding the TSD and EPA's Response

    We received the following comments on our evaluation of the credits 
from the States' AIM coatings rules which was in our January 12, 2005 
TSD prepared for the January 12, 2005 NPR. A summary of these comments 
that we received on our evaluation of the credits from the States' AIM 
coatings rules for the Washington area and our responses follows.
    Comment: We received one set of comments that were critical of the 
baseline per capita emission factor EPA used to evaluate the States' 
emission reductions claims for the States' AIM coatings rules. 
Specifically, these comments took issue with the pre-control baseline 
value of 4.5 pounds per person per year (lbs/p/yr) that EPA used. These 
comments also took issue with the 6.7 lbs/p/yr emission factor which 
was used by the States and which is found in ``Procedures for the 
Preparation of Emission Inventories for Carbon Monoxide and Precursors 
of Ozone'' (EPA-450/4-91-016), May 1991. These comments noted that EPA 
has issued another document under EPA's ongoing Emission Inventory 
Improvement Program with yet another per capita emission factor of 5.7 
lbs/p/yr. In summary, the comments questioned if any of the baseline 
per capita emission factors (6.7, 5.7, or 4.5 lbs/p/yr) published by 
EPA is based upon the best currently available data. These comments 
supported EPA's use of the most recent California Air Resources Board 
(CARB) survey data for deriving the best estimate of the post-control 
per capita emission factor to be realized from the promulgation of the 
District's, Maryland's and Virginia's rules modeled upon the Ozone 
Transport Commission's Model AIM coatings rule. These comments advocate 
the position that the CARB surveys provide the best available data 
under federal data quality criteria and asserts that the California 
pre-control total emissions should be similar on a per person basis to 
the rest of the country. The commenter examined the pre-control 
baseline used by CARB and assert that the baseline per capita emissions 
factor for VOC emissions from AIM coatings in California before 
controls should be 6.3 lbs/p/yr. The commenter states that this 6.3 
lbs/p/yr factor is based upon CARB's data for VOC emissions from AIM 
coatings for the years 1975 through 2004. The comments note that the 
first significant AIM controls were not adopted in California until 
1984, and, conclude that 1980 is an acceptable year to use as a 
baseline year. The comments state: California reports that in 1980, 
according to its surveys, there were 148,579,090 pounds of VOC emitted 
from AIM coatings; the population of California in 1980 according to 
the U.S. Census Bureau was 23,668,000 people, and thus this yields a 
pre-control baseline of 6.3 lbs/p/yr. The commenter therefore urges EPA 
to evaluate the benefits from the States' AIM coatings rules using a 
pre-control baseline of 6.3 lbs/p/yr.
    We received a second set of comments supporting the States' 
analysis of the reduction credits from the States' AIM coatings rules 
but critical of EPA's reliance upon CARB data to determine a per capita 
emission factor after application of the States's AIM coatings rules. 
These comments assert that because California has had more restrictive 
VOC limits for architectural coatings for over a decade, VOC emissions 
for architectural and industrial maintenance coatings in California 
were already significantly lower than the States' pre-rule emissions.
    Response: The States' Contingency Measures, ROP and Attainment 
Plans Are Still Approvable. EPA has considered both set of comments and 
analyzed the sufficiency of the contingency measures, ROP and 
attainment plans by considering the baseline emission factors and 
reduction calculation methodologies advocated by each set of comments, 
as well as the baseline emission factors and reduction calculation 
methodology contained in our January 5, 2005 TSD that was prepared for 
the January 12, 2005 (70 FR 2085) NPR.\31\ EPA concludes that the 
contingency measures, ROP and attainment plans are approvable 
regardless of whether we use the baseline emission factor and reduction 
calculation methodology advocated by each set of comments, or whether 
we use the baseline emission factors and reduction calculation 
methodology contained in our January 5, 2005 TSD.
---------------------------------------------------------------------------

    \31\ ``Technical Support Document for Approval and Promulgation 
of Air Quality Implementation Plans; District of Columbia, Maryland, 
and Virginia; Post-1996 Rate-of-Progress Plan, Contingency Measures, 
Transportation Control Measures, 1990 Base Year Inventory Changes, 
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment 
Area,'' dated January 5, 2005.
---------------------------------------------------------------------------

    EPA has evaluated the effect that changing the 1990 per capita 
emission factor for the AIM coatings source category might have on the 
contingency measures implemented to address the failure of the 
Washington area to attain in 1999, the 1999-2005 ROP plans, and the 
attainment demonstration plans. EPA has determined that regardless of 
which of the 1990 per capita emission factors and reduction calculation 
methodologies--be it that advocated by the first set of comments, or 
that advocated by the second set of comments, or that found in our 
technical support for the January 12, 2005 (70 FR 2085) NPR--the States 
secure sufficient VOC reductions to meet the needs of the contingency

[[Page 25707]]

measures plan for failure to attain in 1999, the 1999-2005 ROP plans or 
attainment plans. As noted in the January 12, 2005 NPR, the States 
computed that the reductions needed to address the 1999 failure to 
attain contingency requirement was at least 13.0 TPD.\32\ Of these 13.0 
TPD, 11.4 would be filled by the solvent cleaning and portable fuels 
containers rules. The States' AIM coatings rules would thus have to 
provide at least 1.6 TPD of reductions to ensure that the contingency 
plan is approvable. EPA has evaluated the effects that changing the 
1990 per capita emission factor and reduction methodologies for the AIM 
coatings source category might have on the contingency plan for failure 
to attain by 1999. The States ascribed 12.3 tons per day reduction from 
the States' AIM coatings rules. EPA arrived at a value of over 16 tons 
per day using the 4.5 pounds per capita emission factor.\33\ EPA 
concludes that the States' contingency plans are still approvable.
---------------------------------------------------------------------------

    \32\ See Table 12. Contingency Measures in the NPR for this 
action (70 FR 2085 at 2096, January 12, 2005).
    \33\ The comments advocating the 6.3 pounds per capita emission 
factor did not advocate by what percentage this value would be 
reduced by the 1998 Federal AIM coatings rule, EPA assumed for the 
purposes of this analysis that the Federal AIM coatings rule would 
result in the same post-rule per capita emission factor.
---------------------------------------------------------------------------

    There is no effect on the approvability of the 1999-2005 ROP plans 
because any change in the 1990 per capita emission factor for the AIM 
coatings source category or the method to determine reduction from the 
States' AIM coatings rules will only affect VOC emission reductions. 
EPA proposed approval of the 1999-2005 ROP plans based solely upon a 
showing that the plans provided for a minimum 9 percent reduction in 
baseline NOX emissions by the 2002 milestone and a further 9 
percent by 2005. As discussed elsewhere in this document in response to 
comment, EPA is approving the 1999-2005 ROP plans based upon these 
NOX reductions alone.
    With respect to the demonstration of attainment, EPA evaluated the 
overall change in VOC emissions relative to 1990 base year emissions 
which would result from using the 4.5 or the 6.3 pounds per capita 
emission factor. The results were an overall relative reduction in VOC 
emissions of 45 percent in 1990 VOC emissions by 2005 from all sources 
(point plus area plus nonroad plus on-road). The States' credit claims 
corresponded to a projected overall 42.8 percent reduction in 1990 VOC 
emissions by 2005 from all sources (point plus area plus nonroad plus 
on-road). 70 FR at 6803, February 9, 2005. EPA concludes that the 
States' estimate of the overall relative reduction in VOC emissions is 
conservative relative to the use of either the 4.5 or the 6.3 emission 
factors. EPA concludes that using either baseline the States get at 
least the reductions they claimed and needed to demonstrate timely 
attainment, to meet the ROP requirements, and to provide for sufficient 
reduction for the contingency plan. EPA concludes that the issues 
raised in the comments do not change the approvability of the 
attainment plans.
    After considering the comments received during the public comment 
period, EPA's analysis indicates that the reduction claims in the 
February 2004 SIP revisions are supported using the alternative per 
capita base line emission factors in the record in that the States' 
reduction claims are less than the other methods. EPA is neither 
approving nor disapproving the States' method nor promoting an 
alternative method. EPA's analysis in support of this rulemaking is to 
determine if any information received during the comment period would 
give cause for us to reconsider our proposed approval. Regardless of 
which of the baseline emission factors or methods that have been 
proffered by the commenters or by EPA is used to calculate VOC emission 
reductions for the States' AIM coatings rules, we have determined that 
the States' ROP, attainment and contingency measures plans for the 
Washington area demonstrate ROP, provide sufficient VOC reductions to 
satisfy the need for implemented contingency measures set by EPA's 
guidance and demonstrate attainment. Therefore, EPA is approving the 
States' SIP revisions.\34\ Further details of EPA's analysis can be 
found in the supplemental TSD prepared for this final rule.\35\
---------------------------------------------------------------------------

    \34\ As noted elsewhere in this doucment, EPA is not approving 
Maryland's attainment plan for the Washington area but is making a 
finding that Maryland's attainment plan, in conjunction with those 
of the District and Virginia, contains control measures that ``fully 
satisfy the emission reduction requirements relevant to * * * 
attainment.''
    \35\ ``Supplement to the Technical Support Document for Approval 
and Promulgation of Air Quality Implementation Plans; District of 
Columbia, Maryland, Virginia; 1-Hour Ozone Attainment Plans, Rate-
of-Progress Plans, Contingnecy Measures, Transportation Control 
Measures, VMT Offset, and 1990 Base Year Inventory,'' dated May 3, 
2005.
---------------------------------------------------------------------------

    A determination of the best baseline from which to estimate the 
reductions from the States' AIM rules is not essential for this final 
rule because, as stated earlier, regardless of whether those reductions 
are calculated as proposed by EPA or as advocated by either of the 
commenters, the States' ROP, attainment and contingency measures plans 
demonstrate ROP, provide sufficient VOC reductions to satisfy the need 
for implemented contingency measures, and demonstrate attainment.
    However, EPA recognizes the need to resolve conclusively how to 
determine the amount of VOC emission reductions achieved from the 
implementation of AIM coatings rules in a given ozone nonattainment 
area. This remains an issue of concern to the states, the regulated 
sector, and other interested parties. Therefore, EPA intends to conduct 
a separate process to solicit further comment, information and 
recommendations from all interested parties as to how to determine the 
amount of VOC emission reductions achieved from the implementation of 
AIM coatings rules in a given ozone nonattainment area.
    EPA's Policy on Changes in Inventory Methods. EPA is clarifying its 
proposal in the NPR (70 FR 2085) that EPA was not proposing that the 
District, Maryland and Virginia change the ROP plans to reflect a new 
1990 per capita emission factor for the AIM source category prepared 
for this action, but rather intended to verify that the ROP plans were 
adequate without using the reduction methodology upon which the States 
relied.
    EPA acknowledges that emissions factors, as well as inventory 
calculation methodologies, are continually being improved. In general, 
EPA has not required changes to submitted SIPs that result from changes 
in factors and methodologies that occur after the SIP is submitted. 
With respect to the 15 percent plan due in November 1993, in section 
2.4 of ``Guidance on the Adjusted Base Year Emissions Inventory and the 
1996 Target for 15 Percent Rate-of-Progress Plans'' (EPA-452/R-92-005) 
EPA stated: ``If other significant changes occur in emissions factors 
or methodologies before which time it is impossible for states to make 
adjustments to their 15 percent calculations and associated control 
strategies, then EPA may require states to make corrections to the base 
year emissions inventory, as well as to the adjusted base year 
inventory and the 1996 target level of emissions.'' This guidance 
discussed the then pending transition from the MOBILE4.1 model to the 
MOBILE5 model but only prospectively, by requiring that emissions 
values calculated using MOBILE4.1 would have to be recalculated using 
MOBILE5 before

[[Page 25708]]

submittal of the final ROP plans in November 1993.
    Likewise with respect to the post-1996 ROP plans, EPA has advised 
the states when changes in emissions factors or in methodologies for 
developing emissions inventories would force revisions to the 
inventories or plans. Changes would be necessary if they occurred 
before the plan was submitted. ``However, if such changes occur after 
November 15, 1991, but prior to November 15, 1994, a serious or above 
area may be required to make corrections to the base year inventory and 
attainment year projection inventory for purposes of developing the 3 
percent rate-of-progress demonstration. If such changes occur after 
November 15, 1994, EPA will advise on when it would be appropriate for 
the states to make corrections in future supplements to this General 
Preamble.'' 57 FR at 13517 (April 16, 1992). In the context of the 
guidance, ``November 15, 1994'' would mean the date by which the post-
1996 plan was due. In the case of the Washington area, the 1996-1999 
ROP plans were due on November 15, 1994 because the area was serious 
nonattainment area, and the 1999-2005 ROP plans were due by March 1, 
2004, which was the date established in our final rule reclassifying 
the Washington area to severe nonattainment. See 68 FR 3410 at 3422, 
January 24, 2003.
    From the States' perspective, the baseline per capita emission 
factor of 4.5 pounds per person per year (lbs/p/yr) for the AIM 
coatings source category could be seen as a change in factors and 
methodologies which occurred after the SIP is submitted. As for the 
1996-1999 ROP plans, EPA notes that the plan was projected to have a 
surplus of 14 tons per day in VOC emission reductions. Nor did EPA 
propose that the States do so in the NPR (70 FR 2085) prepared for this 
action. Indeed, to require the States to revise completed plans every 
time a new emission factor or changed methodology is announced would 
lead to significant costs and potentially endless delays in the 
approval processes. In the case of the 1996-1999 ROP plans, any 
possible claim that EPA required a ``changed methodology'' would have 
to accept that the ``changed methodology'' came to light years after 
the 1996-1999 ROP plans were submitted. For the policy reasons stated 
previously, EPA has not required the States revise their 1996-1999 ROP 
plans for the Washington area.
    Additional Response to the Second Set of Comments. EPA further 
believes that the second set of comments misstates the role CARB data 
played in the EPA's estimate of the OTC rule reduction. EPA used data 
from CARB to ascertain an end point for the OTC rule (post-OTC rule per 
capita emission factor) not a 1990 baseline factor. EPA did so in order 
to evaluate the States' reduction claims using methods other than those 
used by the States for the reasons stated in the January 12, 2005 (70 
FR 2085) NPR.

IV. Comment Received on the Attainment Demonstration and EPA's Response

    We received the following additional comments adverse to the 
proposed approval of the attainment plans. In addition to comments that 
are unique to the attainment plan (set forth in sections IV. A. and IV. 
B of this document), we also received a number of comments identical to 
those submitted in relation to the ROP plans, VMT Offset SIPs, and 
contingency measure plans, to which we responded in section III of this 
document. We have set forth in this section of this document each 
comment we received relevant to the attainment demonstrations and plans 
and respond separately to it even if that comment is identical to a 
comment to which we responded in section III. A summary of these 
additional adverse comments that we received on our proposed action to 
approve the attainment plans for the Washington area and our responses 
follows.

A. Comment on the Attainment Demonstration Modeling

    Comment: We received a comment asserting that the SIP does not 
demonstrate attainment as required by the Act. The comment alleges that 
attainment is not demonstrated using photochemical grid modeling, or 
other analytical tool which EPA has determined to be at least as 
effective, that the WOE approach does not satisfy the CAA's requirement 
to assure attainment as expeditiously as practicable or the CAA's 
requirement for a modeled demonstration of attainment, that EPA 
provides no evidence that the core assumption underlying its WOE 
approach--i.e., that ozone will be reduced in the same proportion as 
emissions--is valid. The comment alleges that such an assumption 
conflicts with EPA's own repeated findings that the relationship 
between ozone formation and precursor emissions is nonlinear, and 
cannot be accurately predicted by means other than photochemical grid 
models. The comment also asserts that the photochemical grid model used 
in the modeled demonstration of attainment and WOE analysis is not 
based upon a photochemical grid model that represents sound science and 
that meets current regulations and guidance. Therefore, the comment 
claims EPA cannot approve the WOE determination.
    Response: Attainment Is Demonstrated Using Photochemical Grid 
Modeling, the Woe Approach Satisfies the Act Requirements. The 
photochemical grid modeling runs used in the pre-2001 SIP revisions' 
attainment plan are the same as those photochemical grid modeling runs 
used in the February 2004 SIP revisions which are the subject of this 
final rule. The WOE analytical methods and/or analyses that support the 
modeled demonstration of attainment in the February 2004 SIP revisions, 
which are the subject of this final rule, include the same WOE 
analytical methods and/or analyses that supported the modeled 
demonstration of attainment which were the subject of the April 17, 
2003 final rule (68 FR 19106). In addition, as noted in section IV. A. 
2. of the January 31, 2005 TSD prepared for the February 9, 2005 NPR 
(70 FR 6796) the States provided additional WOE in the form of the 
results of EPA's photochemical grid modeling performed for the Tier 2 
final rule. See, sections VI. A. of ``Technical Support Document for 
Approval and Promulgation of Air Quality Implementation Plans; District 
of Columbia, Maryland, and Virginia; Attainment Demonstration for the 
Metropolitan Washington, DC Nonattainment Area,'' dated January 31, 
2005.
    EPA had received a comment from the same commenter alleging the 
same deficiencies of WOE for the same photochemical grid modeling runs 
and some of the same adjunct WOE analyses when EPA conditionally 
approved the pre-2001 SIP revisions' attainment plan. Specifically the 
commenter had alleged that photochemical grid modeling shows that the 
Washington area will not attain the ozone standard by the November 2005 
attainment date and because the WOE analysis used by EPA to conclude 
that the Washington area has demonstrated attainment by November 2005 
is not authorized by the Act or by EPA rules. The commenter had claimed 
that the modeling demonstration and WOE used in the attainment 
demonstration for the Washington area do not meet requirements of 
section 182(c) of the [Act] and EPA's own regulations for photochemical 
grid modeling and other analytical methods, that the WOE is an 
alternative method to photochemical grid modeling which has not been 
shown to be equally effective to the Urban Airshed Model (UAM), and 
that

[[Page 25709]]

WOE is a proscribed rollback method. See 68 FR 19106 at 19111/3, April 
17, 2003.
    The claim in the comment from the same commenter received during 
the public comment period for this rulemaking ``that ozone will be 
reduced in the same proportion as emissions'' merely restates the claim 
that the WOE approach relies upon ``'proportional''' rollback. 
Likewise, the comment on this rulemaking assert that the modeled 
demonstration of attainment does not meet the CAA's requirement for a 
modeled demonstration of attainment or that attainment is not 
demonstrated using a photochemical grid model and that WOE does not 
demonstrate timely attainment simply restate, with less specificity, 
comment made by the same commenter on our April 17, 2003 final rule, 68 
FR 19106. See 68 FR 5246, February 3, 2003.
    EPA provided responses to these comments in our April 17, 2003 
final rule (68 FR 19106) and incorporates our responses in the April 
17, 2004 final rule by reference, particularly those in response to 
``comment 1'' on pages 19111 to 19112 of the April 17, 2003 final rule. 
See 68 FR 19112-19115, April 17, 2003.
    Furthermore, this commenter's assertions that EPA's use of 
photochemical grid modeling with an adjunct WOE analysis does not 
demonstrate timely attainment, violates statutory requirements of the 
Act and does not constitute a ``modeled demonstration of attainment,'' 
encompasses all those issues related to WOE that the commenter has 
restated in this rulemaking, and were briefed and litigated to 
conclusion in a suit brought by the commenter against EPA. See Sierra 
Club v. EPA, 356 F.3d at 304-07; see also Initial Opening Brief of 
Petitioner Sierra Club, Docket No. 03-1084 (June 23, 2003), pp. 25-37; 
Final Reply Brief of Petitioner Sierra Club, Docket No. 03-1084 
(September 22, 2003), pp. 8-19. The Court of Appeals' decision 
upholding the very same photochemical grid modeling and WOE that is at 
issue herein (as resubmitted by the States and supplemented with an 
analysis of the effects of the Tier 2 rule that strengthened the 
conclusion of the WOE analysis), is binding on both EPA and the 
commenter. After extensively analyzing the record, the Court of Appeals 
resolved the commenter's claims in EPA's favor with respect to the 
Urban Airshed Model-IV (UAM-IV) and the WOE analysis, stating:

    ``[P]hotochemical modeling [using the UAM-IV] is the primary 
basis for the attainment demonstration,'' while the [WOE] ``is 
merely an adjunct for assessing the photochemical grid modeling. * * 
* '' [T]hat analysis was employed to ensure that the model achieved 
its statutory purpose: determining whether the SIPs actually 
``provide for attainment of the ozone national ambient air quality 
standard by the applicable attainment date.'' 42 U.S.C. 
7511a(c)(2)(A). And the adjustments appear well-suited to that end, 
as they do no more than correct for the model's over-prediction of 
ozone levels as compared to actual observations, and for its 
reliance on a base day that appears to be a statistical outlier. 
See, Sierra Club v. EPA, 356 F.3d at 306.

    Res judicata bars re-litigation not only of matters determined in a 
previous litigation but also ones that a party could have raised. * * * 
Collateral estoppel further bars parties from re-litigating issues of 
law or fact resolved in prior cases between those parties. * * * (When 
a court determines an issue of fact or law that is actually litigated 
and necessary to its judgment, that conclusion binds the same parties 
in a subsequent action.).'' Appalachian Power Co. v. EPA, 251 F.3d 
1026, 1033-34 (D.C. Cir. 2001) (internal citations and quotations 
omitted). While EPA believes that the commenter is precluded from re-
litigating the binding holding of the court in Sierra Club v. EPA with 
respect to the validity of WOE analyses, EPA reiterates that, as 
articulated and explained in the April 17, 2004 final conditional 
approval rule at 68 FR 19112-19115, April 17, 2003, WOE in general as a 
supplement to photochemical grid modeling, and Washington Area WOE 
analysis in particular (as upheld by the Court of Appeals), is a valid 
tool for demonstrating attainment with the NAAQS. The Washington Area 
WOE analysis demonstrates that the Washington Area will timely attain 
the 1-hour ozone NAAQS for all the reasons previously explained in the 
April 17, 2004 final conditional approval.
    EPA continues to believe that the commenter is wrong on the law, as 
EPA's use of WOE as an analytical adjunct to photochemical grid 
modeling has been successfully litigated to conclusion several times. 
Each time the Court of Appeals has upheld both EPA's interpretation of 
the Act to allow supplemental analysis to photochemical grid modeling 
to demonstrate attainment, and EPA's determination that each of the WOE 
analyses at issue, including the core of the WOE analysis at issue in 
the conditional approval and in this current rulemaking, was valid. See 
356 F.3d at 304-07; Environmental Defense v. EPA, 369 F.3d 193, 203-07 
(2d Cir. 2004); BCCA Appeal Group v. EPA, 348 F.3d 817, 203-09 (5th 
Cir. 2003). Accord, 1000 Friends of Maryland v. Browner, 265 F.3d 216, 
234 (4th Cir. 2001).
    The Amendments to Appendix W Do Not Preclude Use of UAM-IV. EPA 
disagrees that the use of the UAM-IV for photochemical grid modeling 
represents a reason to disapprove the attainment plan even though UAM-
IV is no longer on the list of refined models that are preferred or 
recommended for use in regulatory applications. EPA notes that no other 
photochemical grid models for modeling urban areas are on the preferred 
list found in Appendix A to Appendix W to 40 CFR part 51, even though 
the Act reflects a clear preference, or, in the case of serious and 
worse areas, essentially mandates that a modeled demonstration of 
attainment be based on photochemical grid modeling. 42 U.S.C. 
7511a(c)(2)(A); (j)(1)(B). All photochemical grid models for modeling 
ozone in urban areas are on EPA's list of alternative models which is 
now posted on the internet as opposed to being issued as Appendix B to 
Appendix W to 40 CFR part 51.
    Nothing in the Appendices to 40 CFR part 51 indicate that EPA may 
no longer rely on UAM-IV modeling, or that other photochemical grid 
models are mandated for use in lieu of UAM-IV. The ``[s]imulation of 
ozone formation and transport is a highly complex and resource 
intensive exercise. Control agencies with jurisdiction over areas with 
ozone problems are encouraged to use photochemical grid models, such as 
the Models-3/Community Multi-scale Air Quality (CMAQ) modeling system * 
* * to evaluate the relationship between precursor species and ozone.'' 
See section 6.2.1.a. ``Choice of Models for Multi-source Applications'' 
in Appendix W to 40 CFR part 51 (emphases added); see also 68 FR at 
18457-18458, April 15, 2003.
    Explicitly, the ``[d]etermination of acceptability of a model is a 
Regional Office responsibility. Where the Regional Administrator finds 
that an alternative model is more appropriate than a preferred model, 
that model may be used subject to the recommendations of this 
subsection. This finding will normally result from a determination that 
(1) a preferred air quality model is not appropriate for the particular 
application; or (2) a more appropriate model or analytical procedure is 
available and applicable. (emphasis added). See section 3.2.2 in 
Appendix W to 40 CFR part 51. See 68 FR at 18452, April 15, 2003.
    In this case, the States had submitted the pre-2001 SIP revisions' 
attainment plan which demonstrated that the States had sufficient 
measures in the SIP to demonstrate that the Washington area

[[Page 25710]]

would attain the 1-hour ozone NAAQS no later then November 15, 2005. 
EPA acknowledged that the SIP could not be fully approved at that time 
because the States had not demonstrated that all RACM had been adopted 
and the plan lacked certain other elements which we initially 
identified in our February 3, 2003 proposed conditional approval. See 
68 FR 5246, February 3, 2003. All that adoption of additional rules as 
RACM would have done to the attainment plan would be to strengthen the 
WOE that the area would timely attain or advance the date by which the 
area would attain. Of the other elements noted as needing revision 
under the conditional approval, the only one which could possibly have 
implicated the modeling demonstration was a proposed condition that 
required the States to commit to revise and submit to the EPA by April 
17, 2004, an updated attainment plan SIP that reflects revised MOBILE6-
based MVEBs, including revisions to the attainment modeling and/or WOE 
demonstration, as necessary, to demonstrate that the SIP continues to 
demonstrate attainment by November 15, 2005. See 68 FR at 5253, 5258, 
5260-5261, February 3, 2003. We included this condition in our April 
17, 2003 (68 FR 19106) final rule conditionally approving the pre-2001 
SIP revisions' attainment plan.
    The States readily agreed to this condition because, in their pre-
2001 SIP revisions' attainment plan, the States had included a 
commitment to revise the 2005 attainment MVEBs within one-year of the 
EPA's release of the MOBILE6 model. See 66 FR at 631-632 (regulatory 
text for 40 CFR 52.476(c), 52.1076(g) and 52.2428(d)), January 3, 2001. 
By the time we issued the April 17, 2003 conditional approval EPA had 
released the MOBILE6 model and its implementing guidance. That guidance 
does not mandate redoing the entire modeling demonstration due to a 
change in the MVEBs.\36\ EPA reasonably believes that the Act does not 
mandate a revision to the photochemical grid modeling due to a change 
in the MVEBs, and, this interpretation has been upheld on review. See 
1000 Friends of Maryland v. Browner, 265 F.3d 216 (4th Cir. 2001). EPA 
concludes that where MVEBs are changed the state must analyze the 
impacts of such change on the modeled attainment demonstration, but 
that the state need not rerun the entire model.
---------------------------------------------------------------------------

    \36\ 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.''
---------------------------------------------------------------------------

    In this case EPA believes that disapproving the February 2004 SIP 
revisions based on alleged defects in the modeling demonstration for 
the reason cited in the comment would be arbitrary and capricious 
because in the February 3, 2003 notice of proposed rulemaking (68 FR 
5246) EPA did not propose to require that the States redo the 
photochemical grid modeling. Because, as of February 3, 2003, the 
changes to Appendix W to 40 CFR part 51 had not been issued, only, 
proposed,\37\ EPA believes that it would not have been appropriate to 
disapprove the SIP revisions in the April 17, 2003 final rule which was 
the final action issued pursuant to the February 3, 2003 NPR. We 
believe that it would not be appropriate to disapprove the SIP 
revisions now because the States have relied on the same photochemical 
grid modeling analysis for the February 2004 SIP revisions as they 
previously did.
---------------------------------------------------------------------------

    \37\ The final rule amending Appendix W was signed on April 2, 
2003, nearly two months after the proposed conditional approval.
---------------------------------------------------------------------------

    In addition, the modeled demonstration of attainment does not 
depend solely upon the UAM-IV modeling results. The WOE contained in 
the February 2004 SIP revisions relied upon EPA's modeling conducted 
for the NOX SIP call and the Tier 2 rulemaking. These 
modeling rules relied upon photochemical grid modeling that used the 
UAM-V and/or the CAMx models. See, 63 FR 57356 at 57381, 
October 27, 1998; ``Technical Support Document for the Tier 2/Gasoline 
Sulfur Ozone Modeling Analyses,'' EPA420-R-99-031, December 1999. The 
UAM-V and the CAMx models are among those listed on the 
replacement for what was formerly Appendix B of the Guideline on Air 
Quality Models (Appendix W to 40 CFR Part 51). ``The models listed in 
this section are: ADAM, ADMS, AFTOX, ASPEN, CAMx, CMAQ, 
DEGADIS, HGSYSTEM, HOTMAC, HYROAD, OZIPR, OBODM, Panache, PLUVUEII, 
REMSAD, SCIPUFF, SDM, SLAB, UAM-V.'' (See http://www.epa.gov/scram001/tt22.htm#altmod, last checked April 6, 2005). For these reasons, EPA 
believes the Regional Administrator appropriately and reasonably 
exercised the discretion afforded by Appendix W to allow the continued 
use of the UAM-IV modeling results in this particular case.
    Furthermore, the law is well established that res judicata bars re-
litigation not only as to all matters actually determined in prior 
litigation, but also as to all matters that might have been determined. 
See, e.g., Appalachian Power, supra, at 1033-34; Natural Resources 
Defense Council, Inc. v. Thomas, 838 F.2d 1224, 1235 (D.C. Cir. 1988). 
EPA proposed to remove UAM-IV as obsolete on April 21, 2001. 65 FR 
21506. EPA proposed the conditional approval based on WOE. See 68 FR 
5246, February 3, 2003. As noted previously, EPA took final action to 
remove UAM-IV as obsolete on April 15, 2003, 68 FR 18440, two days 
before final action on the conditional approval, April 17, 2003. See 68 
FR at 19121. The commenter did not raise the issue that UAM-IV was no 
longer a preferred model listed in Appendix A of Appendix W to 40 CFR 
51 in its comments on the conditional approval, and in the subsequent 
litigation over that EPA action, although it could have, although the 
commenter had raised the general issue that the modeling demonstration 
and WOE used in the modeled demonstration of attainment for the 
Washington area did not meet requirements of section 182(c) of the Act 
and EPA's own regulations for photochemical grid modeling and other 
analytical methods.\38\ See 68 FR at 19111, April 17, 2003. Res 
judicata would bar raising the UAM-IV claim now as it could have been 
litigated in the suit over EPA's conditional approval. Nevertheless, 
and without waiving its contention that res judicata and/or collateral 
estoppel bar litigation of the UAM-IV claim, for the reasons stated 
previously in this response, EPA believes: (1) The Regional 
Administrator appropriately and reasonably exercised the discretion 
afforded by Appendix W to allow the continued use of the UAM-IV 
modeling results in this particular case, (2) EPA's guidance is 
reasonable and is not a

[[Page 25711]]

proportional rollback, (3) WOE and the photochemical grid modeling used 
to demonstrate attainment is consistent with the Act and EPA 
regulations.
---------------------------------------------------------------------------

    \38\ The fact that EPA had not finalized its proposed removal of 
UAM-IV as an approved model was no bar to raising this issue in the 
litigation over the Conditional Approval. Section 307(d)(7)(B) of 
the Act specifically allows, if certain conditions are met, for 
comment on a rule after the comment period was closed if ``it was 
impracticable to raise such objection within such time or if the 
grounds for such objection arose after the period for public 
comments (but within the time specified for judicial review. * * * 
'' Although EPA's proposal clearly demonstrated its intention to 
remove the UAM-IV as a preferred model three years prior to the 
opening of the comment period on the Conditional Approval, EPA's 
final action on the UAM-IV occurred just two days prior to the 
Conditional Approval, thereby arising within the time period 
specified by Section 307(d)(7)(B). Importantly, the commenter did 
not invoke this administrative reconsideration provision of the Act 
at the time of the conditional approval. Had the Court of Appeals 
not vacated and remanded the conditional approval for reasons 
entirely unrelated to the WOE analysis issue, the commenter would 
not have been afforded opportunity to attempt add to the record on 
WOE.
---------------------------------------------------------------------------

B. Comment On the MVEBs

    Comment: We received a comment that EPA cannot approve the MVEBs in 
the attainment plan SIP because the NOX budgets are 70 tons 
per day higher than those in the previous attainment SIP budget for the 
same year. The comment claims that the MVEBs in the previous attainment 
plan were inadequate because that SIP did not demonstrate attainment 
with photochemical grid modeling as required by the Act and did not 
include all reasonably available transportation control measures. The 
comment asserts that because the MVEBs in the previous attainment plan 
were inadequate EPA cannot approve the NOX MVEBs that are 70 
tons per day higher and that EPA does not demonstrate, with 
photochemical grid modeling as required by the Act, how it can assure 
attainment in 2005 with such a major increase in allowable motor 
vehicle emissions.
    Response: EPA disagrees with the comment that the MVEBs in the SIP 
revisions are inadequate. EPA had proposed to conditionally approve the 
previous attainment plan and in the alternative to disapprove the 
attainment plan with a protective finding that would allow the MVEBs to 
be used for transportation conformity purposes. Our proposed protective 
finding was based upon our conclusion that the pre-2001 SIP revisions' 
attainment plan, which were the subject to the February 3, 2003 notice 
of proposed rulemaking, had demonstrated that the Washington area will 
attain the 1-hour ozone NAAQS no later than November 15, 2005, by 
providing enough reductions with adopted measures to demonstrate 
attainment. See 68 FR at 5259, February 3, 2003. Our final conditional 
approval was granted on the basis that the pre-2001 SIP revisions' 
attainment plan did demonstrate attainment with photochemical grid 
modeling as required by the Act. We granted a conditional, rather than 
a full approval solely on the basis that the pre-2001 SIP revisions' 
attainment plan lacked some adopted measures required by an attainment 
plan for a severe ozone nonattainment area. See 68 FR 19106 (April 17, 
2003). While the conditional approval itself was vacated, our 
determination that the modeled demonstration of attainment in the pre-
2001 SIP revisions' attainment plan demonstrated attainment with 
photochemical grid modeling as required by the Act was specifically 
upheld. Sierra Club v. EPA, 356 F.3d at 304-307.
    The conditional approval was predicated in part upon the States 
revising and submitting to the EPA by April 17, 2004, SIP revisions 
constituting an update to the attainment plan incorporating MOBILE6-
based MVEBs. Further, the States would need to include in the submittal 
revisions to the attainment modeling and/or WOE demonstration, as 
necessary, to show that the SIP would continue to demonstrate 
attainment by November 15, 2005. See 68 FR at 5258, February 3, 2003.
    EPA acknowledged at the time of the conditional approval the 
possibility that the MVEBs in the pre-2001 SIP revisions' attainment 
plan might not have included all RACM or all adopted transportation 
control strategies and TCMs to offset increases in emissions resulting 
from growth in VMT or numbers of vehicle trips and to obtain reductions 
in motor vehicle emissions as necessary (in combination with other 
emission reduction requirements) to comply with the CAA's ROP 
milestones and attainment demonstration requirements. We had 
conditioned approval of the pre-2001 SIP revisions' attainment plan 
upon the States adopting any remaining RACM and any required TCMs. See 
68 FR at 19106-19107, 19129-19130 (April 17, 2004).
    For the reasons outlined in our notices of proposed rulemakings, 
and in conjunction with response to comments elsewhere in this 
document, EPA has concluded that the SIP revisions now before us 
demonstrate that all RACM has been adopted and that the SIP contains 
all necessary transportation control strategies and TCMs to offset 
increases in emissions resulting from growth in VMT or numbers of 
vehicle trips and to obtain reductions in motor vehicle emissions as 
necessary (in combination with other emission reduction requirements) 
to demonstrate attainment and ROP.
    EPA disagrees that the ``70'' ton per day increase from the mobile 
sector is the only relevant criterion for analyzing the impact of the 
MVEBs. MVEBs exist in the context of the attainment plan and do not in 
and of themselves determine whether an area will attain the NAAQS. 
MVEBs merely are the amount of motor vehicle emissions allowed by a 
control strategy SIP which consists of, among other things the 
estimated further reductions from adopted rules affecting all source 
categories including stationary and area sources in the States' SIPs or 
promulgated by EPA. A change in the MVEBs higher or lower cannot, in a 
vacuum, lead to a conclusion as to whether an area is still on track to 
attain the NAAQS. Rather, the MVEBs must be considered in context, as 
follows:
    EPA first addressed the sufficiency of the attainment plan in our 
first round of rulemaking on the pre-2001 SIP revisions' attainment 
plan. See 68 FR at 5249 (February 3, 2003) (citing 64 FR 70460 
(December 16, 1999); 66 FR 586 (January 3, 2001).
    In the December 16, 1999 NPR we noted that the ``1998 SIP 
revisions'' did not contain adequate MVEBs.\39\ In the December 16, 
1999 (64 FR 70460), NPR, we also stated that:
---------------------------------------------------------------------------

    \39\ The ``1998 SIP revisions'' are those submittals listed in 
Table 3 of this document which were submitted during calendar year 
1998.

    [A] motor vehicle emissions budget is 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 EPA concludes demonstrate attainment once 
transport from upwind areas is addressed. The basis for this 
conclusion will not be altered if the Washington area States can 
demonstrate that the level of nonattainment area emissions in 2005 
is equal to or less than the 1999 control strategy levels contained 
---------------------------------------------------------------------------
in the attainment demonstrations considering growth. 64 FR at 70473.

    In other words, we required the States to revise the MVEBs and to 
demonstrate that the SIP contained enough measures that when considered 
with the revised 2005 MVEBs, the overall emissions levels in 2005, 
taking into account growth through 2005, were less than or equal to the 
levels of emissions assumed in the photochemical grid modeling. In the 
TSD for the December 16, 1999 NPR we noted that the photochemical grid 
modeling performed for the area had assumed local emissions levels of 
360 TPD of VOC emissions and over 500 TPD of NOX 
emissions.\40\ These were the local emissions levels the 1998 SIP 
revisions projected the Washington area would have by 1999. The pre-
2001 SIP revisions' attainment plans were submitted to fulfill these 
and other prerequisites for approval proposed in

[[Page 25712]]

the December 16, 1999 NPR. On January 3, 2001, we approved the pre-2001 
SIP revisions' attainment plans.\41\ In the TSD for that rulemaking, we 
concluded that the creditable measures upon which the pre-2001 SIP 
revisions' attainment plan relied were projected to achieve emissions 
levels of 356.7 TPD of VOC emissions and 403 TPD of NOX 
emissions.\42\ The pre-2001 SIP revisions' attainment plan contained 
MVEBs of 101.8 TPD of VOC emissions and 161.8 TPD of NOX 
emissions. See 66 FR at 590, January 3, 2001. The pre-2001 SIP 
revisions' attainment plans were later conditionally approved on April 
17, 2004, 68 FR 19106, one condition of the approval being that the 
States revise the budgets using the MOBILE6 model and revise, as 
necessary, the attainment modeling and/or WOE demonstration to show 
that the SIP continues to demonstrate attainment by November 15, 2005. 
In the TSD prepared for this final rule, EPA concluded that even with 
the higher MVEBs the SIP contained sufficient creditable measures 
applying to all source categories to achieve overall emissions levels 
in the Washington area of 331 TPD of VOC and 491 TPD of 
NOX.\43\ Even though the February 2004 SIP revisions 
contained the higher, 234.7 TPD of NOX MVEBs (and lower 
motor vehicle VOC emissions budgets of 97.4 TPD) than the pre-2001 SIP 
revisions' attainment plan (101.8 TPD for VOC and 161.8 TPD for 
NOX), the overall emissions levels from all sources of 331 
TPD of VOC and 491 TPD of NOX are still less than the levels 
used in the photochemical grid modeling. Because the overall VOC and 
NOX emissions are less than both the 360 TPD of VOC and over 
500 TPD of NOX used in the photochemical grid modeling, EPA 
concludes that the 70 ton increase in the NOX MVEB will not 
adversely impact the Washington area's ability to timely attain the 
one-hour ozone NAAQS.
---------------------------------------------------------------------------

    \40\ ``Technical Support Document for the One-Hour Ozone 
Attainment Demonstrations submitted by the State of Maryland, 
Commonwealth of Virginia and the District of Columbia for the 
Metropolitan Washington, DC Ozone Nonattainment Area (DC039-2019, 
VA090-5036, MD073-3045),'' dated November 30, 1999. See also, 
``Technical Support Document for Approval and Promulgation of Air 
Quality Implementation Plans; District of Columbia, Maryland, and 
Virginia; Post-1996 Rate-of-Progress Plan, Contingency Measures, 
Transportation Control Measures, 1990 Base Year Inventory Changes, 
and VMT Offset SIP for the Metropolitan Washington, DC Nonattainment 
Area,'' dated January 5, 2005.
    \41\ That rule was vacated by the Court of Appeals for reasons 
unrelated to the adequacy of the modeled demonstration of 
attainment. See Sierra Club v. Whitman, 294 F.3d at 163.
    \42\ Table II--Summary of Creditable Measures in ``Supplement to 
Technical Support Document for the One-Hour Ozone Attainment 
Demonstrations, Attainment Date Extension and Post-1996 Rate-of-
Progress Plans submitted by the State of Maryland, Commonwealth of 
Virginia and the District of Columbia for the Metropolitan 
Washington, DC Ozone Nonattainment Area and Commitment to Revise 
Motor Vehicle Budgets for the Metropolitan Washington, DC Ozone 
Nonattainment Area (DC-2025, VA-5052, MD-3064),'' dated December 15, 
2000.
    \43\ Table IV. F-1 Relative Reductions on page A-27 of 
``Technical Support Document for Approval and Promulgation of Air 
Quality Implementation Plans; District of Columbia, Maryland, and 
Virginia; Attainment Demonstration for the Metropolitan Washington, 
DC Nonattainment Area,'' dated January 31, 2005.
---------------------------------------------------------------------------

    Comment: We received a comment claiming that EPA cannot approve the 
MVEBs in the attainment plan because the attainment plan is based on a 
``flawed WOE analysis'' and relies on an outdated photochemical model 
and thus the modeled demonstration of attainment does not accurately 
identify the mobile source budgets required to ensure timely 
attainment.
    Response: EPA disagrees with the comment. As explained elsewhere in 
the response to comments portion of this document, EPA believes that 
the both WOE analysis and the photochemical grid model upon which the 
States relied meets the requirements of the Act, and EPA's regulations 
and guidance. Therefore, EPA believes that the MVEBs consistent with 
the attainment modeling would not be defective based upon any alleged 
defects in the modeling.
    Comment: We received a comment asserting that the photochemical 
modeling runs for the modeled demonstration of attainment assumed motor 
vehicle NOX emissions of 161.8 tons per day instead of the 
motor vehicle NOX emissions budgets of 234.7 tons per day in 
the attainment plan. The comment states that because EPA has found that 
emissions projections determined using MOBILE6 are more accurate than 
the MOBILE5 values relied on in the photochemical grid modeling runs 
the States should have rerun the photochemical grid model with the 
MOBILE6 values. The comment contends that the demonstration of 
attainment is flawed because the demonstration assumes that 2005 ozone 
levels will be no different even though NOX emissions will 
be more than 72 tons per day higher than assumed in the photochemical 
grid modeling runs and that because this conclusion of no increase in 
2005 ozone levels is based not on photochemical grid modeling, but on 
the conclusion that ozone levels in 2005 will be determined not by 
actual 2005 emission levels but by the relative reduction in emissions 
between the baseline and 2005. The comment claims that this assumption 
is invalid because ozone levels do not respond in linear fashion to 
emission changes and claim that EPA does not demonstrate, with 
photochemical grid modeling as required by the Act, how it can assure 
attainment in 2005 with such a major increase in allowable motor 
vehicle emissions. The comment further alleges that this approach would 
allow any absolute increase in projected 2005 emissions over the level 
used in the photochemical grid modeling, as long as the ``relative 
increase over baseline emissions is the same or less.''
    Response: EPA disagrees with the comment because the comment assume 
that in this case the overall emissions levels in the Washington area 
in 2005 will be higher than those assumed in the photochemical grid 
modeling for the attainment year because the MVEB for NOX 
will be higher.
    We have noted previously that the photochemical grid modeling 
performed for the area had assumed local emissions levels of 360 TPD of 
VOC emissions and over 500 TPD of NOX emissions in the 
attainment year. In the TSD prepared for the February 9, 2005 NPR 
(which is the notice of proposed rulemaking published for this final 
rule), EPA concluded that even with the higher MVEBs the SIP would 
contain sufficient creditable measures applicable to all source 
categories to achieve emissions levels in the Washington area of 331 
TPD of VOC and 491 TPD of NOX.\44\ Even though the February 
2004 SIP revisions contained the higher 234.7 TPD NOX, MVEB 
(and a lower VOC MVEB of 97.4 TPD) than the pre-2001 SIP revisions' 
attainment plan (101.8 TPD for VOC and 161.8 TPD for NOX), 
the overall emissions levels of 331 TPD of VOC and 491 TPD of 
NOX are still less than the levels assumed in the 
photochemical grid modeling. Therefore in the attainment year, 
notwithstanding an increase in mobile source NOX emissions, 
there is a decrease in overall emissions in the attainment year, not an 
increase as implied by the commenter.
---------------------------------------------------------------------------

    \44\ Table IV. F-1 Relative Reductions on page A-27 of 
``Technical Support Document for Approval and Promulgation of Air 
Quality Implementation Plans; District of Columbia, Maryland, and 
Virginia; Attainment Demonstration for the Metropolitan Washington, 
DC Nonattainment Area,'' dated January 31, 2005.
---------------------------------------------------------------------------

    The comment that EPA's policy would allow any absolute increase in 
projected 2005 emissions over the level used in the photochemical grid 
modeling, as long as the ``relative increase over baseline emissions is 
the same or less,'' is irrelevant because as discussed in the preceding 
paragraph the overall emissions levels for the Washington area in 2005 
are projected to be less than the overall levels assumed in the 
photochemical grid modeling used in the demonstration of attainment. 
That is, the February 2004 SIP revisions achieve emissions levels less 
than that assumed in the photochemical grid modeling for the attainment 
year and a greater relative emissions reduction between the 1990 
baseline and 2005 attainment year. The

[[Page 25713]]

photochemical grid modeling for the Washington area shows that VOC and 
NOX reductions, along or in combination, that go beyond 
those assumed in the attainment year will result in additional 
reduction in ozone concentrations. While ozone may not respond linearly 
to reductions, the photochemical grid modeling for this area indicates 
that ozone concentration does respond directionally to a reduction in 
ozone precursors (a decrease in the ozone precursors VOC and 
NOX will result in a decrease, not an increase in ozone 
concentration, albeit not necessarily a proportional decrease). 
Therefore the demonstration that this SIP will result in emissions 
levels of ozone precursors at levels less than that assumed in the 
photochemical grid modeling for the attainment year, along with a 
showing of a greater relative emissions reduction, only adds to the WOE 
that attainment is demonstrated.
    EPA also believes that an upward revision of the MVEBs, which is 
more than offset by other emissions reductions from other source 
categories, does not mandate a new photochemical grid modeling 
demonstration. EPA believes that, if an ozone attainment plan relied on 
changes in emissions from the base year to an attainment or maintenance 
year inventory to estimate via photochemical grid modeling the relative 
changes in monitored ozone levels, that the attainment plan SIP 
revision with revised MVEBs continues to demonstrate attainment of the 
ozone NAAQS showing that the relative emission reductions between the 
base year and the attainment are the same or greater using MOBILE6 than 
they were using MOBILE5, and that projected emissions levels for the 
attainment year are lower than those assumed in the modeling 
demonstration. The Washington area attainment plan relies upon the use 
of the photochemical modeling results in a relative manner, and, the 
attainment plan shows a greater relative emission reduction with the 
MOBILE6-based base year and attainment year MVEBs. 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 
has reasonably interpreted the Act not to require new photochemical 
grid modeling for every revision of a SIP. While section 182(c)(2)(A) 
requires demonstrations of attainment for serious and above areas be 
based upon photochemical grid modeling (or something equivalent), the 
Act only establishes a time frame for the initial submittal of the 
attainment demonstration and does not explicitly require new modeling 
in connection with every SIP revision. The Act simply requires that the 
demonstration of attainment be based upon photochemical grid modeling 
and demonstrate attainment of the ozone NAAQS. See 1000 Friends of 
Maryland v. Browner, 265 F.3d 216 (4th Cir. 2001) (``Nothing in 
[section 182(c)(2)(A)] prohibits the use of previously performed 
modeling if that modeling can show that the plan as revised will allow 
the area to reach attainment'').
    Comment: We received a comment asserting that photochemical grid 
modeling runs and WOE analysis relied on by EPA in its 2001 approval of 
the attainment plan assumed that motor vehicle NOX emissions 
would be 161.8 tons per day and that neither EPA nor the States ever 
proclaimed that were any surplus emission reductions under that 
scenario. The comment contends that the photochemical grid modeling 
runs showed continued nonattainment even with motor vehicle emissions 
at that level and therefore EPA cannot find that motor vehicle 
NOX emissions more than 72 tons per day higher than those 
assumed in the photochemical grid modeling runs are consistent with 
timely attainment.
    Response: As discussed elsewhere in this document in section IV. A. 
``Comment on the Attainment Demonstration Modeling,'' EPA disagrees 
that the photochemical grid modeling runs showed continued 
nonattainment even with motor vehicle NOX emissions at 161.8 
TPD. This issue has previously been litigated by the commenter and 
conclusively decided in EPA's favor. See Sierra Club v. EPA, 356 F.3d 
at 304-307. As noted in our response to previous comments on the MVEBs, 
EPA has concluded that the MVEBs must be analyzed in the context of the 
entire SIP, and in that context EPA even with the higher MVEBs the SIP 
contains sufficient creditable measures applicable to all source 
categories to achieve overall emissions levels consistent with 
attainment in a demonstration based on the submitted photochemical grid 
modeling.

C. Comment on the ROP Plans and NOX Substitution

    Comment: We received a comment asserting the ROP plans do not meet 
the requirements to demonstrate a nine percent reduction in VOC 
emissions from 1999 to 2002 and a further nine percent from 2002 to 
2005 because the NOX substitution in the ROP plans is 
impermissible. The comment asserts that the plan does not meet section 
182(c)(2)(c) of the Act because the plan does not show that a nine 
percent reduction in NOX emissions will result in the same 
reduction in ozone concentration as a nine percent reduction in VOC 
emissions. The comment asserts that EPA's reliance on our December 1993 
NOX Substitution Guidance is flawed because the plain 
language of the Act requires proof of actual equivalent benefits of 
NOX substitution.
    The comment also asserts that because the ROP plans for each of the 
1999 to 2005 periods rely solely upon NOX reductions the 
plans do not meet the requirement of section 182(c)(2)(C) because the 
plan does not provide for some percentage of VOC reduction during each 
period. The comment claims that the Act requires some non-zero 
percentage reduction in VOC emissions for any ROP period. Finally, the 
comment asserts that the Act requires the ROP plan to have VOC 
reductions by November 15, 2002 to prevent a net increase in VOC 
emissions by the 2002 milestone date, which would offset the progress 
achieved by the nine percent NOX reductions. The comment 
notes that the plan provides for such reductions but asserts that EPA 
cannot approve the ROP plans because the plan does not provide for all 
of these reductions by the 2002 milestone date.
    Response: EPA disagrees with the comment and incorporates by 
reference the response found in section III. A. ``Comment on the ROP 
plans and NOX Substitution'' of this document.

D. Comment on the Transportation Demand Model (TDM) Used in the Plans

    Comment: We received a comment asserting that the TDM used to 
project the mobile source emissions does not properly predict traffic 
volumes in the Washington area on roadways. The comment alleges that 
the inaccuracies are significant enough that the results cannot form a 
basis for predicting future motor vehicle emissions or the emission 
cuts needed to demonstrate attainment of the 1-hour ozone NAAQS by 
November 15, 2005.
    Response: EPA disagrees with the comment and incorporates by 
reference the response found in section III. B. ``Comment on the 
Transportation Demand Model (TDM) Used in the plans'' of the this 
document.

E. Comment on the VMT Offset SIP

    Comment: We received a comment asserting that the SIP revisions are

[[Page 25714]]

deficient because they do not contain sufficient transportation control 
measures (TCMs) to offset growth in emissions from growth in vehicle 
miles traveled (VMT) or in trip numbers. The comment alleges that the 
Act requires that the SIP offset any growth in emissions due to growth 
in VMT or in trip numbers not a showing that overall motor vehicle 
emissions are expected to decline.
    Response: EPA disagrees with the comment and incorporates by 
reference the response found in section III. C. ``Comment on the VMT 
Offset SIP'' of this document.

F. Comment on the Contingency Measures Plans

    Comment 1: We received a comment asserting that EPA cannot approve 
the contingency measures which were identified in the SIP revisions to 
address the Washington area's failure to attain by November 15, 1999. 
The comment claims that, because these measures in the plan required 
further action by the States, these contingency measures do not meet 
the CAA's requirement that the measures take effect without further 
action by the State or EPA after the failure to attain. The comment 
also claims the contingency measures do not meet EPA's own guidance 
which requires contingency measures to achieve reductions no later than 
the year after the one in which the failure is identified because these 
contingency measures identified by the SIP revision were not 
implemented until 5 to 6 years after the failure to attain.
    Response 1: EPA disagrees with the comment and incorporates by 
reference the response to the comment labeled ``comment 1'' found in 
section III. D. ``Comment on the Contingency Measures Plans'' of this 
document.
    Comment 2: We received a comment asserting that the contingency 
plan for 2005 cannot rely on measures already adopted and in place or 
to be in place before the 2005 attainment and ROP deadline. The comment 
claims that the Act requires that contingency measures must be 
additional measures that will be triggered by the attainment or 
milestone failure, that is, the Act provision is prospective, not 
retrospective.
    Response 2: EPA disagrees with the comment and incorporates by 
reference the response to the comment labeled ``comment 2'' found in 
section III. D. ``Comment on the Contingency Measures Plans'' of this 
document.
    Comment 3: We received a comment that the Act requires a set of 
contingency measures to address any failure to meet ROP requirements 
for the 2002-2005 period, that is separate from those required for 
failure to attain. The comment claims that the requirement for 
contingency measures to address post-1996 milestone failures is 
explicitly set out in the Act as an additional mandate in addition to 
the requirement for contingency measures to address attainment 
failures. The comment further claims that the 2005 ROP deadline here 
could precede the attainment date if, in the case of an area which 
qualifies for one or both of the 1-year attainment date extensions 
allowed by the Act.
    Response 3: EPA disagrees with the comment and incorporates by 
reference the response to the comment labeled ``comment 3'' found in 
section III. D. ``Comment on the Contingency Measures Plans'' of this 
document.
    Comment 4: We received a comment asserting that the contingency 
plan does not meet EPA's guidance because the plan does not contain a 
commitment for timely adoption of additional measures if the 3 percent 
contingency plan is not adequate to correct a failure to attain or 
achieve an ROP milestone.
    Response 4: EPA disagrees with the comment and incorporates by 
reference the response to the comment labeled ``comment 4'' found in 
section III. D. ``Comment on the Contingency Measures Plans'' of this 
document.
    Comment 5: We received a comment asserting that the contingency 
plan must contain some NOX reductions since the ROP and 
attainment plans rely upon NOX reductions as well as VOC 
reductions.
    Response 5: EPA disagrees with the comment and incorporates by 
reference the response to the comment labeled ``comment 5'' found in 
section III. D. ``Comment on the Contingency Measures Plans'' of this 
document.
    Comment 6: We received a comment alleging that all of the emission 
reductions from the continency measures are not ``surplus'' because 
neither EPA nor the States have quantified the total VOC and 
NOX reductions needed to attain by November 15, 2005. The 
comment further claims that the use of a WOE approach in the modeled 
demonstration of attainment is incapable of identifying the precise 
level of emission reductions needed for attainment and thus does not 
support the a claim that there are ``surplus'' reductions in the SIP 
that can be used for ``contingency'' purposes.
    Response 6: EPA disagrees with the comment and incorporates by 
reference the response to the comment labeled ``comment 6'' found in 
section III. D. ``Comment on the Contingency Measures Plans'' of this 
document.
    Comment 7: We received a comment asserting that the SIP cannot rely 
on the reformulated gasoline program (RFG program) as a ``contingency'' 
measure to address the area's failure to attain by 1999, because the 
RFG program became mandated by the Act once the Washington area missed 
the 1999 attainment deadline. The comment claims that contingency 
measures are measures in addition to those mandated by the Act. The 
comment also claims that RFG was never intended as a contingency 
measure and, thus, contrary to EPA's assertion, it is hardly a 
``penalty'' to the nonattainment area to disallow contingency credit 
for a measure that was never intended as a contingency measure, and 
that was implemented at a time when the area was already years behind 
schedule in adopting adequate ROP and attainment plans. The comment 
further asserts that if the RFG program is a permissible contingency 
measure the agency's guidance would obligate the states to ``backfill'' 
the measure with one year assuring equivalent reductions and that the 
states have not done so.
    Response 7: EPA incorporates by reference the response to the 
comment labeled ``comment 7'' found in section III. D. ``Comment on the 
Contingency Measures Plans'' of this document.

G. Comment on Protective Finding

    We also received comment adverse to issuing a protective finding in 
concert with a disapproval of the Maryland attainment plan. Because we 
are not issuing a protective finding in this final rule, we do not 
address this comment in this document. Our response to these comment 
adverse to issuing a protective finding are addressed in the final rule 
disapproving Maryland's attainment plan with a protective finding that 
is published elsewhere in today's Federal Register.

V. Other Matters

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the

[[Page 25715]]

Commonwealth and takes prompt and appropriate measures to remedy the 
violations. Virginia's Voluntary Environmental Assessment Privilege 
Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from 
disclosure documents and information about the content of those 
documents that are the product of a voluntary environmental assessment. 
The Privilege Law does not extend to documents or information (1) that 
are generated or developed before the commencement of a voluntary 
environmental assessment; (2) that are prepared independently of the 
assessment process; (3) that demonstrate a clear, imminent and 
substantial danger to the public health or environment; or (4) that are 
required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts. * * * '' The opinion 
concludes that ``[r]egarding [section] 10.1-1198, therefore, documents 
or other information needed for civil or criminal enforcement under one 
of these programs could not be privileged because such documents and 
information are essential to pursuing enforcement in a manner required 
by Federal law to maintain program delegation, authorization or 
approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
state agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the Clean Air Act, including, for example, sections 113, 167, 205, 211 
or 213, to enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the Clean Air Act is likewise 
unaffected by this, or any, state audit privilege or immunity law.

VI. Final Actions

A. The District of Columbia--1996-1999 ROP Plan

    EPA is approving as a revision to the District's SIP the District 
of Columbia's 1996-1999 ROP plan SIP revision for the Washington area 
which was submitted on November 3, 1997, as supplemented on May 25, 
1999. EPA is approving the 1999 MVEBs of 128.5 tons per day of VOC and 
196.4 tons per day of NOX established and identified in the 
Post 1996-1999 ROP plan.

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

    EPA is approving as a revision to the District's SIP the revision 
to the 1990 Base Year Emissions Inventory submitted by the District of 
Columbia on September 5, 2003 as supplemented on February 25, 2004.

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

    EPA is approving as a revision to the District's SIP the District 
of Columbia's post 1999-2005 ROP plan SIP revision for the Washington 
area which was submitted on September 5, 2003 as supplemented on 
February 25, 2004 and the TCMs in Appendix J of the February 25, 2004 
submittal. EPA is approving the 2002 MVEBs of 125.2 tons per day for 
VOC and 290.3 tons per day of NOX and the 2005 MVEBs of 97.4 
tons per day for VOC and 234.7 tons per day of NOX 
established and identified in the Post 1999-2005 ROP Plan.

D. The District of Columbia--VMT Offset SIP

    EPA is approving as a revision to the District's SIP the District 
of Columbia VMT Offset SIP revision for the Washington area which was 
submitted on September 5, 2003, as supplemented on February 25, 2004.

E. The District of Columbia--Contingency Measure Plan

    EPA is approving as a revision to the District's SIP the District 
of Columbia's contingency measure plan SIP revision for the Washington 
area which was submitted on September 5, 2003, as supplemented on 
February 25, 2004.

F. The District of Columbia--Attainment Demonstration and Plan

    EPA is approving as a revision to the District's SIP the modeled 
demonstration of attainment and adjunct WOE analyses that the 
Washington area will attain the 1-hour ozone NAAQS by November 15, 2005 
and the District's 1-hour ozone attainment plan for the Washington area 
both of which were submitted on September 5, 2003 as supplemented on 
February 25, 2004. EPA is approving the 2005 MVEBs of 97.4 tons per day 
for VOC and 234.7 tons per day of NOX established and 
identified in the attainment plan.

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

    EPA is approving as a revision to the State of Maryland's SIP 
Maryland's post 1996-1999 ROP plan SIP revision for the Washington area 
which was submitted on December 24, 1997, as supplemented on May 20, 
1999, and the TCMs in Appendix H of the May 20, 1999 submittal. EPA is 
approving the 1999 MVEBs of 128.5 tons per day of VOC and 196.4 tons 
per day of NOX established and identified in the Post 1996-
1999 ROP plan.

H. Maryland--1990 Base Year Inventory Revisions

    EPA is approving as a revision to the State of Maryland's SIP the 
revision to the 1990 Base Year Emissions Inventory submitted by 
Maryland on September 2, 2003 as supplemented on February 24, 2004.

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

    EPA is approving as a revision to the State of Maryland's SIP 
Maryland's post 1999-2005 ROP plan SIP revision for the Washington area 
which was submitted on September 2, 2003 as supplemented on February 
24, 2004 and the TCMs in Appendix J of the February 24, 2004 submittal. 
EPA is approving the 2002 MVEBs of 125.2 tons per day for VOC and 290.3 
tons per day of NOX and the 2005 MVEBs of 97.4 tons per day 
for VOC and 234.7 tons per day of NOX established and 
identified in the Post 1999-2005 ROP Plan.

[[Page 25716]]

J. Maryland--VMT Offset SIP

    EPA is approving as a revision to the State of Maryland's SIP 
Maryland's VMT Offset SIP revision for the Washington area which was 
submitted on September 2, 2003 as supplemented on February 24, 2004

K. Maryland--Contingency Measure Plan

    EPA is approving as a revision to the State of Maryland's SIP 
Maryland's contingency measure plan SIP revision for the Washington 
area which was submitted on September 3, 2003, as supplemented on 
February 24, 2004.

L. Maryland--Modeled Demonstration of Attainment and Determination That 
Maryland's Submitted SIP Contains Measures That Fully Satisfy the 
Emission Reduction Requirements Relevant to Attainment

    EPA is approving as a revision to the State of Maryland's SIP the 
modeled demonstration of attainment and adjunct WOE analyses that the 
Washington area will attain the 1-hour ozone NAAQS by November 15, 
2005, which was submitted on September 2, 2003 as supplemented on 
February 24, 2004. EPA is issuing a determination that Maryland's 
submitted SIP for the Washington area contains adopted control measures 
that fully satisfy the emission reduction requirements relevant to 
attainment of the 1-hour ozone NAAQS in the Washington area by November 
15, 2005.

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

    EPA is approving as a revision to the Commonwealth of Virginia's 
SIP Virginia's post 1996-1999 ROP plan SIP revision for the Washington 
area which was submitted on December 29, 1997, as supplemented on May 
25, 1999, and the TCMs in Appendix H of the May 25, 1999 submittal. EPA 
is approving the 1999 MVEBs of 128.5 tons per day of VOC and 196.4 tons 
per day of NOX established and identified in the Post 1996-
1999 ROP plan.

N. Virginia--1990 Base Year Inventory Revisions

    EPA is approving as a revision to the Commonwealth of Virginia's 
SIP Virginia's revision to the 1990 Base Year Emissions Inventory which 
was submitted on August 19, 2003 as supplemented on February 25, 2004.

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

    EPA is approving as a revision to the Commonwealth of Virginia's 
SIP Virginia's post 1999-2005 ROP plan SIP revision for the Washington 
area which was submitted on August 19, 2003 as supplemented on February 
25, 2004 and the TCMs in Appendix J of the February 25, 2004 submittal. 
EPA is approving the 2002 MVEBs of 125.2 tons per day for VOC and 290.3 
tons per day of NOX and the 2005 MVEBs of 97.4 tons per day 
for VOC and 234.7 tons per day of NOX established and 
identified in the Post 1999-2005 ROP Plan.

P. Virginia--VMT Offset SIP

    EPA is approving as a revision to the Commonwealth of Virginia's 
SIP Virginia's VMT Offset SIP revision for the Washington area which 
was submitted on August 19, 2003, as supplemented on February 25, 2004.

Q. Virginia--Contingency Measure Plan

    EPA is approving as a revision to the Commonwealth of Virginia's 
SIP Virginia's contingency measure plan SIP revision for the Washington 
area which was submitted on August 19, 2003, as supplemented on 
February 25, 2004.

R. Virginia--Attainment Demonstration and Plan

    EPA is approving as a revision to the Commonwealth of Virginia's 
SIP the modeled demonstration of attainment and adjunct WOE analyses 
that the Washington area will attain the 1-hour ozone NAAQS by November 
15, 2005 and Virginia's SIP Virginia's 1-hour ozone attainment plan for 
the Washington area both of which were submitted on August 19, 2003 as 
supplemented on February 25, 2004. EPA is approving the 2005 MVEBs of 
97.4 tons per day for VOC and 234.7 tons per day of NOX 
established and identified in the attainment plan.

VII. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not 
have tribal implications because it will not have a substantial direct 
effect on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action also does not have Federalism implications because it does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action merely approves a state rule implementing a Federal 
requirement, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (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. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides

[[Page 25717]]

that before a rule may take effect, the agency promulgating the rule 
must submit a rule report, which includes a copy of the rule, to each 
House of the Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by July 12, 2005. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action to approve the District's and Virginia's 
base year inventory revision, ROP, VMT Offset, contingency measure and 
attainment plans, MVEBs and TCMs, Maryland's base year inventory 
revision, TCMs, and ROP, VMT Offset and contingency measure plan, and 
Maryland's modeled demonstration of attainment and demonstration that 
its submitted SIP for the Washington area contains adopted control 
measures that fully satisfy the emissions reductions requirements 
relevant to attainment of the 1-hour ozone NAAQS may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 3, 2005.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart J--District of Columbia

0
2. In Sec.  52.470, the table in paragraph (e) is amended by adding at 
the end of the table, the entries for 1996-1999 Rate-of-Progress Plan, 
1990 Base Year Inventory Revisions, Post 1999-2005 Rate-of-Progress 
Plan and Transportation Control Measures (TCMs) in Appendix J, VMT 
Offset SIP, Contingency Measure Plan and 1-hour Ozone Modeled 
Demonstration of Attainment and Attainment Plan to read as follows:


Sec.  52.470  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                        Applicable
    Name of non-regulatory SIP        geographic or          State       EPA approval date        Additional
             revision               nonattainment area  submittal date                           explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
1996-1999 Rate-of-Progress plan    Washington 1-hour        11/3/1997,  5/13/05............  1999 motor vehicle
 SIP.                               ozone                    5/25/1999  [Insert page number   emissions budgets
                                    nonattainment.                       where the document   of 128.5 tons per
                                                                         begins].             day (tpy) of VOC
                                                                                              and 196.4 tpy of
                                                                                              NOX.
1990 Base Year inventory           Washington 1-hour         9/5/2003,  5/13/05............  ...................
 Revisions,.                        ozone                    2/25/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
1999-2005 Rate-of-Progress Plan    Washington 1-hour         9/5/2003,  5/13/05............  Only the TCMs in
 SIP Revision and the               ozone                    2/25/2004  [Insert page number   Appendix J of the
 Transportation Control Measures    nonattainment area.                  where the document   2/25/2004
 (TCMs) in Appendix J.                                                   begins].             revision, 2002
                                                                                              motor vehicle
                                                                                              emissions budgets
                                                                                              (MVEBs) of 125.2
                                                                                              tons per day (tpy)
                                                                                              for VOC and 290.3
                                                                                              tpy of NOX, and,
                                                                                              2005 MvEBs of 97.4
                                                                                              tpy for VOC and
                                                                                              234.7 tpy of NOX.
VMT Offset SIP Revision..........  Washington 1-hour         9/5/2003,  5/13/05............  ...................
                                    ozone                    2/25/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
Contingency Measure Plan.........  Washington 1-hour         9/5/2003,  5/13/05............  ...................
                                    ozone                    2/25/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
1-hour Ozone Modeled               Washington 1-hour         9/5/2003,  5/13/05............  2005 motor vehicle
 Demonstration of Attainment and    ozone                    2/25/2004  [Insert page number   emissions budgets
 Attainment Plan.                   nonattainment area.                  where the document   of 97.4 tons per
                                                                         begins].             day (tpy) for VOC
                                                                                              and 234.7 tpy of
                                                                                              NOX.
----------------------------------------------------------------------------------------------------------------

Subpart V--Maryland

0
3. In Sec.  52.1070, the table in paragraph (e) is amended by adding at 
the end of the table, the entries for 1996-1999 Rate-of-Progress Plan 
and Transportation Control Measures (TCMs) in Appendix H, 1990 Base 
Year Inventory Revisions, Post 1999-2005 Rate-of-Progress Plan and 
Transportation Control Measures (TCMs) in Appendix J, VMT Offset SIP, 
Contingency Measure Plan and Modeled Demonstration of Attainment to 
read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (e)* * *

[[Page 25718]]



----------------------------------------------------------------------------------------------------------------
                                        Applicable
    Name of non-regulatory SIP        geographic or          State       EPA approval date        Additional
             revision               nonattainment area  submittal date                           explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
1996-1999 Rate-of-Progress Plan    Washington DC 1-        12/20/1997,  5/13/05............  Only the TCMs in
 SIP and the Transportation         hour ozone               5/20/1999  [Insert page number   Appendix H of the
 Control Measures (TCMs) in         nonattainment area.                  where the document   5/20/1999
 Appendix H.                                                             begins].             revision, 1999
                                                                                              motor vehicle
                                                                                              emissions budgets
                                                                                              of 128.5 tons per
                                                                                              day (tpy) of VOC
                                                                                              and 196.4 tpy of
                                                                                              NOX.
1990 Base Year Inventory           Washington DC 1-          9/2/2003,  5/13/05............
 Revisions.                         hour ozone               2/24/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
1999-2005 Rate-of-Progress Plan    Washington DC 1-          9/2/2003,  5/13/05............  Only the TCMs in
 SIP Revision and the               hour ozone               2/24/2004  [Insert page number   Appendix J of the
 Transportation Control Measures    nonattainment area.                  where the document   2/24/2004
 (TCMs) in Appendix J.                                                   begins].             revision, 2002
                                                                                              motor vehicle
                                                                                              emissions budgets
                                                                                              (MVEBs) of 125.2
                                                                                              tons per day (tpy)
                                                                                              for VOC and 290.3
                                                                                              tpy of NOX, and,
                                                                                              2005 MVEBs of 97.4
                                                                                              tpy for VOC and
                                                                                              234.7 tpy of NOX.
VMT Offset SIP Revision..........  Washington DC 1-          9/2/2003,  5/13/05............
                                    hour ozone               2/24/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
Contingency Measure Plan.........  Washington, DC Area       9/2/2003,  5/13/05............
                                                             2/24/2004  [Insert page number
                                                                         where the document
                                                                         begins].
1-hour Ozone Modeled               Washington DC 1-          9/2/2003,  5/13/05............
 Demonstration of Attainment.       hour ozone               2/24/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
----------------------------------------------------------------------------------------------------------------


0
4. Section 52.1073 is revised by adding paragraph (f) to read as 
follows:


Sec.  52.1073  Approval status.

* * * * *
    (f) EPA is issuing a determination that Maryland's submitted SIP 
for the Washington area contains adopted control measures that fully 
satisfy the emission reduction requirements relevant to attainment of 
the 1-hour ozone NAAQS in the Washington area by November 15, 2005.

Subpart VV--Virginia

0
5. In Sec.  52.2420, the table in paragraph (e) is amended by adding at 
the end of the table, the entries for 1996-1999 ROP Plan and 
Transportation Control Measures (TCMs) in Appendix H, 1990 Base Year 
Inventory Revisions, Post 1999-2005 Rate-of-Progress Plan and 
Transportation Control Measures (TCMs) in Appendix J, VMT Offset SIP, 
Contingency Measure Plan and 1-hour Ozone Modeled Demonstration of 
Attainment and Attainment Plan to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e)* * *

----------------------------------------------------------------------------------------------------------------
                                        Applicable
    Name of non-regulatory SIP        geographic or          State       EPA approval date        Additional
             revision               nonattainment area  submittal date                           explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
1996-1999 Rate-of-Progress Plan    Washington 1-hour       12/29/2003,  5/13/05............  Only the TCMs in
 SIP and the Transportation         ozone                    5/25/1999  [Insert page number   Appendix H of the
 Control Measures (TCMs) in         nonattainment area.                  where the document   5/25/1999
 Appendix H.                                                             begins].             revision, 1999
                                                                                              motor vehicle
                                                                                              emissions budgets
                                                                                              of 128.5 tons per
                                                                                              day (tpy) of VOC
                                                                                              and 196.4 tpy of
                                                                                              NOX.
1990 Base Year Inventory           Washington 1-hour        8/19/2003,  5/13/05............  ...................
 Revisions.                         ozone                    2/25/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
1999-2005 Rate-of-Progress Plan    Washington 1-hour        8/19/2003,  5/13/05............  Only the TCMs in
 SIP Revision and the               ozone                    2/25/2004  [Insert page number   Appendix J of the
 Transportation Control Measures    nonattainment area.                  where the document   2/25/2004 the
 (TCMs) in Appendix J.                                                   begins].             revision, 2002
                                                                                              motor vehicle
                                                                                              emissions budgets
                                                                                              (MVEBs) of 125.2
                                                                                              tons per day (tpy)
                                                                                              for VOC and 290.3
                                                                                              tpy of NOX, and,
                                                                                              2005 MVEBs of 97.4
                                                                                              tpy for VOC and
                                                                                              234.7 tpy of NOX.
VMT Offset SIP Revision..........  Washington 1-hour        8/19/2003,  5/13/05............  ...................
                                    ozone                    2/25/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].

[[Page 25719]]

 
Contingency Measure Plan.........  Washington 1-hour        8/19/2003,  5/13/05............  ...................
                                    ozone                    2/25/2004  [Insert page number
                                    nonattainment area.                  where the document
                                                                         begins].
1-hour Ozone Modeled               Washington 1-hour        8/19/2003,  5/13/05............  2005 motor vehicle
 Demonstration of Attainment and    ozone                    2/25/2004  [Insert page number   emissions budgets
 Attainment Plan.                   nonattainment area.                  where the document   of 97.4 tons per
                                                                         begins].             day (tpy) for VOC
                                                                                              and 234.7 tpy of
                                                                                              NOX.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 05-9401 Filed 5-12-05; 8:45 am]
BILLING CODE 6560-50-P