[Federal Register: February 3, 2003 (Volume 68, Number 22)]
[Proposed Rules]
[Page 5246-5263]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03fe03-12]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DC052-7005, MD143-3096, VA152-5062; FRL-7445-8]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress
Plans and One-Hour Ozone Attainment Demonstrations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is proposing to conditionally approve the 1-hour ozone
attainment demonstration and the 1996-1999 rate-of-progress (ROP) plans
for the Metropolitan Washington DC ozone nonattainment area (the
Washington area) submitted by the District of Columbia's Department of
Health (DoH), by the Maryland Department of the Environment (MDE) and
by the Virginia Department of Environmental Quality (VA DEQ), including
enforceable commitments submitted by the District of Columbia, Virginia
and Maryland as part of the 1-hour attainment demonstration plan to
perform a mid-course review and to submit revised motor vehicle
emissions budgets. We are also proposing to clarify what occurs if we
issue a final conditional approval of any of these SIPs based on a
State commitment to revise the SIP's 2005 motor vehicle emissions
budgets in the future. If this occurs, the 2005 motor vehicle emissions
budgets in the conditionally approved SIP will apply for transportation
conformity purposes only until the budgets are revised consistent with
the commitment and we have found the new budgets adequate. Once we have
found the revised budgets adequate, then they would apply instead of
the previous conditionally approved 2005 budgets. In the
[[Page 5247]]
alternative, the EPA is also proposing to disapprove the Washington
area attainment demonstration with a protective finding for the 2005
motor vehicle emissions budgets and/or the 1996-1999 ROP plan with a
protective finding for the 1999 motor vehicle emissions budgets.
DATES: Written comments must be received on or before March 5, 2003.
ADDRESSES: Comments may be mailed to Makeba Morris, Chief, Air Quality
Planning and Information Services Branch, Mailcode 3AP21 U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air Protection Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103;
District of Columbia Department of Public Health, Air Quality Division,
51 N Street, NE., Washington, DC 20002; Maryland Department of the
Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland
21230, Baltimore, Maryland 21224; and Virginia Department of
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.
FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 814a-2179,
or by e-mail at cripps.christopher@epa.gov.
SUPPLEMENTARY INFORMATION: The use of ``we,'' ``us,'' or ``our'' in
this document refers to EPA.
This SUPPLEMENTARY INFORMATION section is organized to address the
following questions:
I. What Action Is the EPA Proposing Today?
II. Background
A. What Is the Washington Nonattainment Area?
B. What Previous Action Has Been Taken on These SIP Revisions?
C. What Is the Time Frame for Taking Action on These Washington
Area SIP Revisions?
D. What Is the Impact of the Reclassification of the Washington
Area to Severe Ozone Nonattainment?
E. What Is the Purpose of the Action EPA Is Taking Today?
III. Attainment Demonstrations
A. What Is the Basis for the Attainment Demonstration SIP?
B. What Is the Framework for Proposing Action on the Attainment
Demonstration SIPs?
C. The EPA's Review and Analysis of the District's, Maryland's
and Virginia's Submittals Against the EPA's Framework for Proposing
Action on the Attainment Demonstration SIPs
IV. Rate-of-Progress Plans
A. What Agencies and Organizations Developed the 1996-1999 ROP
Plan for the Area?
B. What Are the Rate-of-progress Requirements Applicable to the
Washington Area?
C. How Is the 3 Percent per Year 1996-1999 Reduction Calculated?
D. Nonattainment Area-Wide Plan--Apportionment of Reduction
Needs
E. What Control Strategies Are the District, Maryland and
Virginia Including in the 1996-1999 ROP Plan?
F. What Are the Total Reductions in the 1996--1999 ROP plan?
V. Applicability of Revised Motor Vehicle Emissions Budgets
A. What Is the Background on Transportation Conformity?
B. What Is the EPA Proposing Today Regarding Clarification of
the Applicability of Revised Motor Vehicle Emissions Budgets?
C. How Does the 18-Month Clock Apply With Respect to These
Budgets Revisions?
D. What Are the Budgets in the Plans?
E. What Is the Status of the 1999 Motor Vehicle Emission Budgets
Contained in the 1996-1999 ROP Plan for the Area?
VI. What Is the Basis for the Proposed Actions?
A. Conditional Approval
B. Disapproval in the Alternative
C. Proposed Protective Findings
VII. Proposed Action
A. The District of Columbia--Rate-of-Progress Plan
B. The District of Columbia--Attainment Demonstration
C. The State of Maryland--Rate-of-Progress Plan
D. The State of Maryland--Attainment Demonstration
E. The Commonwealth of Virginia--Rate-of-Progress Plan
F. The Commonwealth of Virginia--Attainment Demonstration
G. Applicability of Revised Motor Vehicle Emissions Budgets
VIII. Statutory and Executive Order Reviews
I. What Action Is the EPA Proposing Today?
The EPA is proposing conditional approval of the 1996-1999 ROP
plans and the one-hour attainment demonstrations submitted by the DoH,
MDE and VADEQ for the Washington area. The following tables identify
submittal dates and amendment dates for the 1996-1999 ROP plans and the
attainment demonstrations:
Table 1.--1996-1999 ROP Plans
----------------------------------------------------------------------------------------------------------------
DC MD VA
----------------------------------------------------------------------------------------------------------------
Initial submittal dates......... November 10, 1997.. December 24, 1997.. December 19, 1997.
Amendment dates................. May 25, 1999....... May 20, 1999....... May 25, 1999.
----------------------------------------------------------------------------------------------------------------
Table 2.--Attainment Demonstrations
----------------------------------------------------------------------------------------------------------------
DC MD 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.
(MD SIP No. 00-01).
Supplemental dates.............. March 22, 2000..... March 31, 2000 (MD March 31, 2000.
SIP No. 00-02).
----------------------------------------------------------------------------------------------------------------
Hereafter, the SIP revisions in the preceding Table submitted in
April 1998 will be called the ``1998 Plans;'' those submitted in
February 2000 will be called the ``February 2000 plans;'' and those
submitted in March 2000 will be called the ``March 2000 plans.''
As noted elsewhere in this document, the EPA is also proposing in
the alternative to disapprove these SIPs if we do not finalize the
conditional approval of these SIPs.
[[Page 5248]]
II. Background
A. What Is the Washington Nonattainment Area?
The Washington area is comprised of the entire District of Columbia
(the District), a portion of Maryland (namely, Calvert, Charles,
Frederick, Montgomery, and Prince George's Counties), and a portion of
Virginia (namely, Alexandria, Arlington County, Fairfax, Fairfax
County, Falls Church, Manassas, Manassas Park, Prince William County,
and Stafford County).
B. What Previous Action Has Been Taken on These SIP Revisions?
On January 3, 2001 (66 FR 586), the EPA approved the 1996-1999 ROP
plans, an attainment date extension and the attainment demonstrations
for the Washington, DC area. A petition for review of that final rule
was filed. On July 2, 2002, the United States Courts of Appeals for the
District of Columbia Circuit (the Circuit Court) ruled on the petition
and vacated our January 3, 2001, approval of the attainment
demonstration, 1996-1999 ROP plan and extension of the attainment date.
See Sierra Club v. Whitman, 294 F.3d 155, 163 (D.C. Cir. 2002). With
respect to the attainment date extension, the Court found that the
plain language of Clean Air Act ``sets a deadline without an exception
for setbacks owing to ozone transport.'' Id. at 161. The Circuit Court
said that the EPA was without authority to extend the Washington, DC
area's attainment deadline unless it also ordered the area to be
reclassified as a ``severe'' area. The Circuit Court also found that
the attainment demonstration and ROP plan were deficient because
neither SIP revision contained approved contingency measures as
required by sections 172(c)(9) and 182(c)(9) of the Clean Air Act
(CAA). Id. at 164. Furthermore, the Circuit Court determined that in
addition to a nine percent reduction in baseline emissions from 1996 to
1999, an area with an attainment date in 2005 must submit a ROP plan
that demonstrates additional ROP to 2005. Id. at 163. The Washington
area's 1996-1999 ROP plan demonstrated ROP only through 1999. Lastly,
although the Circuit Court upheld the EPA's definition of RACM
``[b]ecause the statutory provision is ambiguous and the EPA's
construction of the term `RACM' is reasonable'', the Court remanded
this matter to the EPA to determine which measures, if any, are RACM to
be implemented by the States in this case because the final rule did
not present any determination on whether certain measures tendered as
possible RACM in the notice of proposed rulemaking (64 FR 70460) met
EPA's RACM definition. Id. at 162-63.
In response to the Circuit Court's ruling, on January 24, 2003 the
EPA published a final action (68 FR 3410) determining that the
Washington area failed to attain the serious ozone nonattainment
deadline of November 15, 1999, and reclassifying the Washington area to
severe ozone nonattainment.
C. What Is the Time Frame for Taking Action on These Washington Area
SIP Revisions?
Under the CAA, the EPA is required to approve or disapprove a
State's submission no later than 12 months after the submission is
determined or deemed complete. On November 13, 2002, the Sierra Club
filed a complaint in the United States District Court for the District
of Columbia (District Court) against the EPA (Sierra Club v. Whitman,
No. 1:02CV02235(JR)) claiming, among other things, that the EPA had not
issued a final action on several SIP revisions (those listed in Tables
1 and 2 of this document) submitted by the District, Maryland and
Virginia for the Washington area. On December 18, 2002, the District
Court issued an order directing the EPA to publish, by February 3,
2003, a notice of proposed rulemaking on these SIP revisions and to
publish by April 17, 2003, a final rule on these SIP revisions. This
notice of proposed rulemaking complies with the Court's Order to
publish a proposed notice by February 3, 2003.
D. What Is the Impact of the Reclassification of the Washington Area to
Severe Ozone Nonattainment?
The reclassification to severe nonattainment imposes additional
requirements on the Washington area including, among other things, CAA-
mandated control measures, a fee program for major sources and ROP
plans (an additional 9 percent reduction in base line emissions between
1999 and 2005). These new requirements, as well as all of the
requirements for a severe ozone nonattainment SIP, must be submitted to
the EPA by the date established in the reclassification final rule. (68
FR 3410).
Section 172(c)(9) of the CAA requires that specific measures must
be undertaken if an area fails to make reasonable further progress, or
to attain the NAAQS by the attainment date. Furthermore, such measures
must be included in the SIP as contingency measures to take effect
without further action by the State or the Administrator. As noted
previously, the Circuit Court ruled that sections 172(c)(9) and
182(c)(9) of the CAA require that contingency measures must be included
as an integral element in the attainment demonstration and ROP SIPs for
the Washington area. The Court further determined that EPA lacked the
authority to approve attainment demonstration and ROP SIPs without
contingency measures. Therefore, the jurisdictions in the Washington
area have committed to submit to the EPA those measures that qualify as
contingency measures due to the failure of the Washington area to
attain the ozone standard for serious areas by November 15, 1999. They
have also committed to submit contingency measures for failure to meet
the 1999 ROP milestone if we find that the area has not achieved the
required reductions. The contingency measures for the 1999 ROP
milestone and the contingency measures for failure to attain by 1999
could be the same measures. These measures need to provide for at least
a 3 percent reduction in base line emissions and be fully adopted rules
or measures that can be implemented without further action by the
States or EPA after November 15, 1999. Such contingency measures must
also meet all of the EPA's guidance and policy relating to contingency
measures.
E. What Is the Purpose of the Action EPA Is Taking Today?
This proposed conditional approval is directed at issuing a final
action on the previously submitted attainment demonstration and 1996-
1999 ROP plan SIPs and associated RACM and contingency measures that
now apply to the Washington area as elements required by classification
as a severe ozone nonattainment area. In this case, the EPA could not
approve a SIP that is not consistent with the principle in the CAA that
attainment must be achieved as expeditiously as practicable but no
later than November 15, 2005, the new attainment date provided under
the statute. Furthermore, the EPA cannot fully approve the previously
submitted serious area attainment demonstration because it lacks
contingency measures, RACM and motor vehicle emission budgets that are
consistent with a severe attainment deadline. Similarly, the EPA cannot
fully approve the previously submitted 1996-1999 ROP plan because it
lacks contingency measures.
Under section 110(k)(4) of the CAA, the EPA ``may approve a plan
revision based on a commitment of the State to adopt specific
enforceable measures by a date certain, but not later than 1 year after
the date of approval of the plan revision. Any such conditional
approval
[[Page 5249]]
shall be treated as a disapproval if the State fails to comply with
such commitment.'' The EPA is proposing to conditionally approve these
SIP submissions as a severe area attainment demonstration and the 1996-
99 portion of the Washington area's ROP obligation on the basis of the
commitments from the affected jurisdictions. EPA believes that this
action is appropriate because the attainment date for the Washington
area, which will be reclassified as severe effective March 25, 2003 (68
FR 3410), will be November 15, 2005, and because the States have
committed in accordance with section 110(k)(4) to submit revisions to
remedy the inadequacies with the RACM and contingency measure aspects
of the attainment demonstration and the 1996-99 ROP plans. Since the
Court viewed the contingency measures as an element of an attainment
demonstration and ROP plan, and rejected EPA's argument that
contingency measures were a separate SIP submission, EPA believes it is
appropriate to proceed on the basis of a commitment to deal with that
aspect of the attainment plan and ROP plan. Similarly, the RACM
demonstration is merely another element of the attainment demonstration
and EPA believes that it is appropriate to proceed with a conditional
approval on the basis of a commitment regarding the RACM demonstration.
As a consequence of the reclassification to severe, the Washington area
will need to submit additional SIP revisions concerning other matters,
such as the 1999-2005 ROP obligation and new NSR requirements, but EPA
believes that it can proceed on the SIPs before it as a severe area
attainment demonstration plan and a 1996-1999 ROP plan without those
additional SIP submissions.
III. Attainment Demonstrations
A. What Is the Basis for the Attainment Demonstration SIP?
1. CAA Requirements
The Clean Air Act (CAA) requires the EPA to establish national
ambient air quality standards (NAAQS or standards) for certain
widespread pollutants that cause or contribute to air pollution that is
reasonably anticipated to endanger public health or welfare. See
sections 108 and 109 of the CAA. In 1979, the EPA promulgated the 1-
hour 0.12 parts per million (ppm) ground-level ozone standard. 44 FR
8202 (February 8, 1979). Ground-level ozone is not emitted directly by
sources. Rather, emissions of nitrogen oxides (NOX) and
volatile organic compounds (VOCs) react in the presence of sunlight to
form ground-level ozone. Emissions of NOX and VOC are
referred to as precursors of ozone.
An area exceeds the 1-hour ozone standard each time an ambient air
quality monitor records a 1-hour average ozone concentration above
0.124 ppm. An area is violating the standard if, over a consecutive
three-year period, more than three exceedances are expected to occur at
any one monitor. The CAA, as amended in 1990, required the EPA to
designate as nonattainment any area that was violating the 1-hour ozone
standard, generally based on air quality monitoring data from the
three-year period from 1987-1989. CAA section 107(d)(4); 56 FR 56694
(Nov. 6, 1991). The CAA further classified these areas, based on the
area's design value, as marginal, moderate, serious, severe or extreme.
CAA section181(a). Marginal areas were suffering the least significant
air pollution problems while the areas classified as severe and extreme
had the most significant air pollution problems. The control
requirements and dates by which attainment needs to be achieved vary
with the area's classification. Marginal areas are subject to the
fewest mandated control requirements and have the earliest attainment
date. Severe and extreme areas are subject to more stringent planning
requirements but are provided more time to attain the standard. Serious
areas are required to attain the 1-hour standard by November 15, 1999,
and severe areas are required to attain by November 15, 2005, or
November 15, 2007. The Washington area was classified as a serious
nonattainment area with an attainment date of November 15, 1999. On
January 24, 2003, the EPA published a final rule (68 FR 3410)
reclassifying the area to severe ozone nonattainment, with an
attainment date of November 15, 2005.
Under section 182(c)(2) and (d) of the CAA, serious and severe
areas were required to submit by November 15, 1994, demonstrations of
how they would attain the 1-hour standard and how they would achieve
reductions in VOC emissions of 9 percent for each three-year period
until the attainment year (rate-of-progress or ROP). (In some cases,
NOX emission reductions can be substituted for the required
VOC emission reductions.) Today, in this proposed rule, the EPA is
proposing action on the attainment demonstration SIP submitted by DoH,
the MDE and the VADEQ for the Washington area.
In general, an attainment demonstration SIP includes a modeling
analysis component showing how the area will achieve the standard by
its attainment date and the control measures necessary to achieve those
reductions. Another component of the attainment demonstration SIP is
motor vehicle emissions budgets for transportation conformity purposes.
Transportation conformity is a process for ensuring that States
consider the effects of emissions associated with new or improved
federally-funded roadways on attainment of the standard. As described
in section 176(c)(2)(A) of the CAA, attainment demonstrations must
include the estimates of motor vehicle emissions that are consistent
with attainment, which then act as budgets for the purposes of
determining whether transportation plans and projects conform to the
attainment SIP.\1\
---------------------------------------------------------------------------
\1\ Under the CAA, the District of Columbia has the same
attainment planning authorities and responsibilities as any of the
50 States.
---------------------------------------------------------------------------
2. What Are the Components of a Modeled Attainment Demonstration?
The EPA allows that States may rely upon a modeled attainment
demonstration supplemented with additional evidence to demonstrate
attainment.\2\ In order to have a complete modeling demonstration
submission, States should have submitted the required modeling analysis
and identified any additional evidence that the EPA should consider in
evaluating whether the area will attain the standard.
---------------------------------------------------------------------------
\2\ EPA issued guidance on the air quality modeling that is used
to demonstrate attainment with the 1-hour ozone NAAQS. See U.S. EPA,
(1991), Guideline for Regulatory Application of the Urban Airshed
Model, EPA-450/4-91-013, (July 1991). (A copy may be found on EPA's
web site at http://www.epa.gov/ttn/scram/ (file name:
``UAMIVGUIDE'')). See also U.S. EPA, (1996), Guidance on Use of
Modeled Results to Demonstrate Attainment of the Ozone NAAQS, EPA-
454/B-95-007, (June 1996). A copy may be found on EPA's web site at
http://www.epa.gov/ttn/scram/ (file name: ``O3TEST'').
---------------------------------------------------------------------------
The EPA addressed the sufficiency of the modeling demonstration to
attain by November 15, 2005, in its previous notices regarding the
Washington area attainment demonstration. See 64 FR 70460, December 16,
1999, and 66 FR 586, January 3, 2001. Since the Circuit Court did not
address issues regarding the adequacy of the modeling demonstration,
EPA believes that it may approve that modeling demonstration at this
time. EPA incorporates by reference herein its prior proposal, the
comments submitted thereon, and its response to those comments. EPA is
not reprinting that discussion here but will address any further
comments submitted in response to this re-proposal of its approval of
the modeling demonstration showing attainment of the Washington area by
November 2005.
[[Page 5250]]
B. What Is the Framework for Proposing Action on the Attainment
Demonstration SIPs?
In addition to the modeling analysis, the EPA has identified the
following key elements which must be present in order for the EPA to
approve or conditionally approve the 1-hour attainment demonstration
SIPs. These elements are first listed in this section and then
described in detail.
CAA Measures and Measures Relied on in the Modeled Attainment
Demonstration--This includes adopted and submitted rules for all
previously required CAA mandated measures for the specific area
classification, including contingency measures should the are fail to
attain by the required date, and RACM. This also includes measures that
may not be required for the area classification but that the State
relied on in the SIP submission for attainment and ROP plans on which
the EPA is proposing to take action on today.
NOX reductions consistent with the modeling
demonstration: Motor vehicle emissions budgets--Motor vehicle emissions
budgets that EPA can determine to be consistent with the underlying
purpose of the applicable CAA requirements.
Tier 2/Sulfur program benefits where needed to demonstrate
attainment--Inclusion of reductions expected from the EPA's Tier 2
tailpipe and low sulfur-in-fuel standards in the attainment
demonstration and the motor vehicle emissions budgets.
Mid-course review--An enforceable commitment to conduct a mid-
course review and evaluation based on air quality and emission trends.
The mid-course review would show whether the adopted control measures
are sufficient to reach attainment by the area's attainment date, or
that additional control measures are necessary.
1. CAA Measures and Measures Relied on in the Modeled Attainment
Demonstration
The Washington area needs to achieve substantial reductions from
its 1990 emissions levels in order to attain. The EPA believes the
Washington area needs all of the measures required under the CAA for
its former serious nonattainment classification to attain the 1-hour
ozone NAAQS. The District, Maryland and Virginia have adopted the
control measures required under the CAA for the former serious area
classification as well as additional control measures within the local
modeling domain that were relied on for purposes of the modeled
attainment demonstration.
The Washington area attainment demonstration does not contain a
RACM analysis which the Circuit Court held was required under section
172(c)(1) of the CAA. In its January 3, 2001, approval of the
Washington area nonattainment demonstration and 1996-1999 ROP plan (66
FR 607), the EPA posited that a state must ``consider all potentially
available measures to determine whether they were reasonably available
for implementation in the area, and whether they would advance the
attainment date''. Furthermore, the EPA determined that states may
``reject measures as not being RACM because they would not advance the
attainment date, would cause substantial widespread and long-term
adverse impacts, or would be economically or technologically
infeasible.'' Although the Circuit Court vacated the EPA's January 3,
2001, approval of the Washington area's attainment demonstration and
1996-1999 ROP plan, the Circuit Court upheld the EPA's definition of
RACM. See Sierra Club v. Whitman, 294 F.3d at 162-63. However, the
Circuit Court found that the EPA had not determined whether any
measures for the Washington area fell within the EPA's definition and
remanded the matter to the EPA to determine which measures, if any, are
to be implemented as RACM. Id. at 163.
With respect to contingency measures, the Washington area
attainment demonstration does not contain a contingency plan that
identifies those measures that will be implemented should the area not
attain the standard by November 15, 2005. Section 172(c)(9) of the CAA
requires that specific measures must be undertaken if an area fails to
make reasonable further progress, or to attain the NAAQS by the
attainment date. Furthermore, such measures must be included in the SIP
as contingency measures to take effect without further action by the
State or the Administrator. As noted previously, the Circuit Court
ruled that sections 172(c)(9) and 182(c)(9) of the CAA require that
contingency measures must be included as an integral element in the
attainment demonstration and ROP SIPs for the Washington area. The
Circuit Court further determined that EPA lacked the authority to
approve the Washington area attainment demonstration and ROP SIPs
without contingency measures. Therefore, the jurisdictions in the
Washington area have committed to submit to the EPA adopted contingency
measures to be implemented if the Washington area does not attain the
1-hour ozone standard by November 15, 2005. These measures need to
provide for at least a 3 percent reduction in base line emissions and
be fully adopted rules or measures that can be implemented without
further action by the States or EPA after November 15, 2005. The
contingency measures must also meet all of the EPA's guidance and
policy relating to contingency measures.
2. NOX Reductions Consistent With the Modeling Demonstration
The EPA completed final rulemaking on the NOX SIP Call
on October 27, 1998, which required States to address transport of
NOX and ozone to other States. To address transport, the
NOX SIP Call established NOX emissions budgets
for 23 jurisdictions that are intended to reduce emissions in upwind
States that significantly contribute to nonattainment problems.
Emission reductions that will be achieved through the EPA's
NOX SIP Call will reduce the levels of ozone and ozone
precursors entering nonattainment areas at their boundaries. For
purposes of developing attainment demonstrations, States define local
modeling domains that include both the nonattainment area and nearby
surrounding areas. The ozone levels at the boundary of the local
modeling domain are reflected in modeled attainment demonstrations and
are referred to as boundary conditions. The 1-hour attainment
demonstration for the Washington area relies, in part, on the
NOX SIP Call reductions for purposes of determining the
boundary conditions of the modeling domain. Emission reductions assumed
in the attainment demonstrations are modeled to occur both within the
State and in upwind States; thus, intrastate reductions as well as
reductions in other States impact the boundary conditions. If States
assume control levels and emission reductions other than those of the
NOX SIP Call within their State but outside of the modeling
domain, States must also adopt control measures to achieve those
reductions in order to have an approvable plan.
Accordingly, States in which the nonattainment areas are located
will not be required to adopt measures outside the modeling domain to
achieve the NOX SIP Call budgets prior to the time that all
States are required to comply with the NOX SIP Call. If the
reductions from the NOX SIP Call do not occur as planned,
States will need to revise their SIPs to add additional local measures
or obtain interstate reductions, or both, in order to provide
sufficient reductions needed for attainment.
[[Page 5251]]
3. Motor Vehicle Emissions Budgets
The EPA believes that attainment demonstration SIPs must
necessarily estimate the motor vehicle emissions that will be produced
in the attainment year and demonstrate that this emissions level, when
considered with emissions from all other sources, is consistent with
attainment. This estimate of motor vehicle emissions is used to
determine the conformity of transportation plans and programs to the
SIP, as described by CAA section 176(c)(2)(A). For transportation
conformity purposes, these estimates of motor vehicle emissions are
known as the motor vehicle emissions budgets. The EPA believes that
appropriately identified motor vehicle emissions budgets are a
necessary part of an attainment demonstration SIP. A SIP cannot
effectively demonstrate attainment unless it identifies the level of
motor vehicle emissions that can be allowed while still demonstrating
attainment.
4. Tier 2/Sulfur Program Benefits
On February 10, 2000 (65 FR 6698), the EPA published a final rule
promulgating a major, comprehensive program designed to significantly
reduce emissions from passenger cars and light trucks (including sport-
utility vehicles, minivans, and pickup trucks) and to reduce sulfur in
gasoline. Under this program, automakers would produce vehicles
designed to have very low emissions when operated on low-sulfur
gasoline, and oil refiners would provide that cleaner gasoline
nationwide.
The final rule was supported by 1-hour ozone modeling and
monitoring information that support the EPA's conclusion that the Tier
2/Sulfur program is necessary to help areas attain the 1-hour NAAQS.
See 64 FR 35112, June 30, 1999, and 64 FR 57827, October 27, 1999.
Under the final rule, NOX and VOC emission reductions (as
well as other reductions not directly relevant for attainment of the 1-
hour ozone standard) would occur beginning in the 2004 ozone season.
Nationwide, the Tier 2/Sulfur program is projected to result in
emissions reductions of NOX per year of approximately
856,000 tons per year by 2007 and 1,236,000 tons by 2010 tons (65 FR at
6698).
In the October 27, 1999, supplemental notice (64 FR at 57830), the
EPA reported that the EPA's regional ozone modeling indicated that 17
metropolitan areas for which the 1-hour standard applies need the Tier
2/Sulfur program reductions to help attain the 1-hour ozone standard.
The Washington area whose attainment demonstration the EPA is proposing
to conditionally approve today is included on that list.
The EPA issued a memorandum that provides estimates of the
emissions reductions associated with the Tier 2/Sulfur program
proposal.\3\ The memorandum provides the tonnage benefits for the Tier
2/Sulfur program in 2007 on a county-by-county basis for all counties
within many serious and severe nonattainment areas and the 2005 tonnage
benefits for the Tier 2/Sulfur program for each county for three areas.
---------------------------------------------------------------------------
\3\ Memorandum, ``1-Hour Ozone Attainment Demonstrations and
Tier 2/Sulfur Rulemaking'' from Lydia Wegman, Office of Air Quality
Planning and Standards and Merrylin Zaw-Mon, Office of Mobile
Sources to the Air Division Directors, Regions I-IV, issued November
8, 1999. A copy of this memorandum may be found on the EPA's web
site at http://www.epa.gov/oms/transp/traqconf.htm.
---------------------------------------------------------------------------
The EPA also issued a memorandum which explains the connection
between the Tier 2/Sulfur program, motor vehicle emissions budgets for
conformity determinations, and timing for SIP revisions to account for
the Tier 2/Sulfur program benefit.\4\ This memorandum explains that
conformity analyses in serious and severe ozone nonattainment areas can
begin including Tier 2/Sulfur program benefits once the EPA's Tier 2
rule is promulgated, provided that the attainment demonstration SIPs
and associated motor vehicle emissions budgets include the Tier 2
benefits. The motor vehicle emissions budgets in the February 2000
plans include Tier 2 benefits.
---------------------------------------------------------------------------
\4\ Memorandum, ``Guidance on Motor Vehicle Emissions Budgets in
One-Hour Ozone Attainment Demonstrations'', from Merrylin Zaw-Mon,
Office of Mobile Sources, to Air Division Directors, Regions I-VI,
issued November 3, 1999. A copy of this memorandum may be found on
the EPA's web site at http://www.epa.gov/oms/transp/traqconf.htm.
---------------------------------------------------------------------------
The District, Maryland and Virginia need to revise their motor
vehicle emissions budgets in their attainment demonstration SIPs using
the MOBILE6 model because the motor vehicle emissions budgets in the
February 2000 plans to include the effects of the Tier 2/Sulfur
program, which can not be accurately reflected with the MOBILE5 model.
In addition, the budgets need to be revised using MOBILE6 even in an
area that does not need the Tier 2/Sulfur program for attainment but
decide to include its benefits in the motor vehicle emissions budgets
anyway.
When we first proposed action on the attainment demonstration for
the Washington area (64 FR 70460, December 16, 1999), the District,
Maryland and Virginia needed to submit an enforceable commitment in the
near term to revise their motor vehicle emissions budgets if the
budgets include the effects of the Tier 2/Sulfur program within one
year after the EPA's release of MOBILE6. When we released the Tier 2
guidance and policy in November 1999, we could not forecast the MOBILE6
release date in relation to final action on the attainment
demonstration SIP revisions. Such release date could have been over
one-year past the time we approved the attainment demonstration for an
area, and therefore, a conditional approval would not have been a
suitable approval option. Therefore, at that time, approval of an
enforceable commitment would ensure the requirement to revise the motor
vehicle emissions budgets could be enforced in court by the EPA or
citizens. The enforceable commitment was to be submitted to the EPA
along with the other commitments discussed elsewhere in this document,
or alternatively, as part of the SIP revision that modified the motor
vehicle emission inventories and budgets to include the Tier 2/Sulfur
program benefits needed in order for the EPA to approve the SIP
submittal. The MOBILE6 model was released on January 29, 2002 (67 FR
4254). Now that MOBILE6 has been released, the EPA may issue a
conditional approval based on a State's commitment to expeditiously
revise and submit not later than one-year after the EPA issues a
conditional approval to the EPA an updated attainment demonstration SIP
that reflects revised MOBILE6-based motor vehicle emissions budgets.
5. Mid-Course Review
A mid-course review (MCR) is a reassessment of modeling analyses
and more recent monitored data to determine if a prescribed control
strategy is resulting in emission reductions and air quality
improvements needed to attain the ambient air quality standard for
ozone as expeditiously as practicable but by no later than the
statutory dates. The EPA believes that an enforceable commitment to
perform a MCR is a critical element of the WOE analysis for the
attainment demonstration on which the EPA is proposing to take action
today. The State of Maryland, the Commonwealth of Virginia and the
District submitted an enforceable commitment to perform a MCR as
described here. However, an enforceable commitment to perform and
submit a MCR is meaningless outside of the context of an approved
attainment demonstration. For this reason, our conditional approval of
the attainment
[[Page 5252]]
demonstration includes the enforceable commitment to perform a mid-
course review.
C. The EPA's Review and Analysis of the District's, Maryland's and
Virginia's Submittals Against the EPA's Framework for Proposing Action
on Attainment Demonstration SIPs
This section provides a review of Maryland's, Virginia's and the
District's submittals and an analysis of how these submittals satisfy
the frame work previously discussed.
As noted previously, the EPA addressed the sufficiency of the
modeling demonstration of attainment in its previous notices regarding
the Washington area attainment demonstration and incorporated by
reference its prior proposal, the comments submitted thereon, and its
response to those comments. See 64 FR 70460, December 16, 1999, and 66
FR 586, January 3, 2001. EPA is not reprinting that discussion here but
will address any further comments submitted in response to this re-
proposal of its approval of the modeling demonstration showing
attainment of the Washington area by November 2005.
1. CAA Measures and Measures Relied on in the Current SIP Submission
Table 3 contains a summary of the CAA required ozone SIP elements
for serious areas and any additional measures included in the
attainment demonstration.
Table 3.--Control Measures in the 1-Hour Ozone 1996-1999 ROP Plan and Attainment Plans for the Metropolitan
Washington Nonattainment Area
----------------------------------------------------------------------------------------------------------------
Credited in 1996--1999 Credited in attainment
Control measure Type of measure ROP plan plan
----------------------------------------------------------------------------------------------------------------
Enhanced Inspection & Maintenance... Approved SIP........... Yes.................... Yes.
Federal Motor Vehicle Control Federal................ Tier 1................. Tier 1 and 2.
program.
NLEV................................ Approved SIP opt-in.... Yes.................... Yes \1\.
Reformulated Gasoline (Phase 1 & 2). State opt-in........... Phase 1................ Phase 2.
Transportation Control Measures Approved SIP........... Yes.................... Yes.
(TCM).
Federal Non-road Gasoline Engine Federal................ Yes.................... Yes.
standards.
Federal Non-road Heavy Duty diesel Federal................ Yes.................... Yes.
engine standards.
Rail Road Locomotive Controls....... Federal................ No..................... Yes.
NOX RACT............................ Approved SIP........... Yes.................... Yes.
Non-CTG RACT to 50 tpy.............. Approved SIP........... Yes.................... Yes.
VOC Point Source Regulations to 25 Approved SIP........... Yes.................... Yes.
tons/year \2\.
Stage II Vapor Recovery \3\ &....... Approved SIP........... Yes.................... Yes.
On-board Refueling Vapor Federal
Recovery (ORVR).
AIM Surface Coatings................ Federal................ Yes.................... Yes.
Consumer & commercial products...... Federal................ Yes.................... Yes.
Autobody refinishing................ Federal/State.......... Yes.................... Yes.
Surface Cleaning/Degreasing......... Approved SIP........... Yes.................... Yes.
Open Burning Ban \2\................ Approved SIP........... Yes.................... Yes.
Stage I Vapor Recovery \4\.......... Approved SIP........... Yes.................... Yes.
Graphic Arts........................ Approved SIP........... Yes.................... Yes.
Heavy Duty Diesel Engines (On-road). Federal................ No..................... Yes.
Beyond RACT NOX Requirements on Approved SIP........... No..................... Yes.
Utilities.
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ To the extent NLEV not superceded by Tier 2.
\2\ Maryland and Virginia only.
\3\ Reduction credits calculated for Maryland and Virginia only. The District required implementation of Stage
II in 1985 for most sources, and has claimed no reductions since 1990. (The District's Stage II regulation was
amended after 1990 to comply with the requirements for Stage II controls set forth in the 1990 amendments to
the Clean Air Act. The EPA has approved the District's rule into the SIP.
\4\ Reductions in only in those additional areas in Maryland and Virginia that were added to the Metropolitan
Washington DC area after 1990.
The MDE, VADEQ and DoH have submitted all measures relied on in the
attainment demonstration and all required measures except RACM and
specific contingency measures. All submitted measures have been
approved to date with the exception of Transportation Control Measures
(TCMs), which are as part of the Washington area attainment
demonstration and 1996-1999 ROP plan that the EPA is proposing to
conditionally approve in this document. TCMs are strategies to both
reduce vehicle miles traveled (VMT) and decrease the amount of
emissions per VMT. The CAA classifies TCMs as programs for improved
transit, traffic flow, fringe parking facilities for multiple occupancy
transit programs, high occupancy or share-ride programs, and support
for bicycle and other non-automobile transit. The TCMs for Virginia and
Maryland included projects programmed between fiscal years 1994-1999 in
the transportation improvement plan (TIP) under the Congestion
Mitigation and Air Quality (CMAQ) Improvement Program and funded for
implementation in the Washington area. The specific projects that
Virginia and Maryland are claiming credit for and the estimated
benefits are listed in Appendix H of the 1996-1999 ROP plan and
Appendix J of the February 2000 plans. TCMs are considered acceptable
measures for states to use to achieve reductions and EPA has determined
that the VOC and NOX reductions attributable to these
measures are creditable for the 1996-1999 ROP plan and attainment
demonstration.
The EPA is also proposing to conditionally approve the attainment
demonstration based on the District, Maryland and Virginia having
committed to submit contingency measures that will be implemented if
the area fails to attain the ozone standard by November 15, 2005. In
addition, the District, Maryland and Virginia have committed to
submitting to the EPA an appropriate RACM analysis and any revisions to
the attainment demonstration necessitated by such an analysis,
including revised emissions budgets as applicable.
[[Page 5253]]
2. NOX Reductions Consistent With the Modeling Demonstration
Inside the Baltimore-Washington modeling domain, the District,
Maryland and Virginia modeled only the measures indicated in Table 3.
The only NOX control measure beyond CAA requirements was an
additional level of control beyond RACT at large stationary sources of
NOX in the District's and Maryland's portion of the
Washington area. The status of all measures was discussed in the
preceding section of this document.
3. Motor Vehicle Emissions Budgets
As discussed in section III.B.3 of this document, the motor vehicle
emissions budgets are the estimate of motor vehicle emissions in the
attainment year that when considered with emissions from all other
sources is consistent with attainment. The attainment demonstrations
for the Washington area contain levels of modeled emissions that the
EPA concludes demonstrate attainment once transport from upwind areas
is addressed. The basis for this conclusion will not be altered if the
Washington area can demonstrate that the level of nonattainment area
emissions in 2005 is equal to or less than the 1999 control strategy
levels contained in the attainment demonstrations considering growth.
Thus, Maryland, Virginia and the District have demonstrated that
revised motor vehicle emissions budgets for 2005 in the attainment
demonstrations for the Washington area are adequate by showing that
overall emissions including the revised motor vehicle emissions budgets
when considered with emissions from all other sources are less than the
1999 control strategy levels. In the February 2000 plans, the States
submitted such a demonstration. The EPA has reviewed these submittals
and found that all measures upon which the States relied are now in the
approved SIP.
The EPA has interpreted the general adequacy criteria with respect
to the 1-hour ozone attainment demonstrations to require the motor
vehicle emissions budgets to include the effects of all motor vehicle
controls, including Federal measures and the mobile source control
measures assumed in the NOX SIP Call, that will be in place
in the attainment year. Therefore, the revised motor vehicle emissions
budgets presumptively must include all currently promulgated Federal
measures and State SIP measures and opt-ins shown in Table 4.
Table 4.--On-Road Mobile Source Control Measures Contributing to Attainment of the 1-Hour Ozone NAAQS in the
Washington Nonattainment Area in 2005
----------------------------------------------------------------------------------------------------------------
In the 2005 motor
Control measure Implementation Assumed in local modeling vehicle emissions
year demonstration? budget?
----------------------------------------------------------------------------------------------------------------
Federal Motor Vehicle Control Program
(FMVCP):
Tier 1............................. 1994 Tier 1 FMVCP only........ Yes.
Tier 2............................. 2004 ......................... Yes.
High enhanced I/M (CAA Mandate)........ 1997 Yes...................... Yes.
Reformulated Gasoline (State Opt-in):
Phase I............................ 1995 Yes...................... Yes.
Phase II........................... 2000 No....................... Yes.
Clean Fuel Fleets/National Low 1999 No....................... Yes.
Emissions Vehicles (NLEV).
Federal Heavy-duty Diesel Vehicle (HDV) 2004 No....................... Yes.
2 gm std.
----------------------------------------------------------------------------------------------------------------
4. Tier 2/Sulfur Program Benefits
The EPA concludes that based on the modeling and WOE that the
Washington area would not need any additional emission reductions
beyond those contained in the area attainment demonstration to ensure
attainment of the ozone NAAQS by 2005. Like other areas that rely, in
part or in full, on Tier 2 reductions in order to demonstrate
attainment, the Washington area attainment demonstration was revised in
the February 2000 plans to estimate the effects of Tier 2 according to
our policy. However, as noted, this was done with the MOBILE5 model
which is inaccurate and must be redone with the MOBILE6 model.
The EPA is proposing to conditionally approve the attainment
demonstration SIP revisions which include the commitment found in
section 9.1.1.2 of the March 2000 plans for the Washington area because
the State of Maryland, Commonwealth of Virginia and the District of
Columbia have committed to revise and submit to the EPA by April 17,
2004, an updated attainment demonstration SIP that reflects revised
MOBILE6-based motor vehicle emissions budgets, including revisions to
the attainment modeling and/or weight of evidence demonstration, as
necessary, to demonstrate that the SIP continues to demonstrate
attainment by November 15, 2005.
5. Mid-Course Review (MCR)
In accordance with the provisions of section III.B.5. of this
document, the EPA must receive an enforceable commitment to include a
MCR from each of the three Washington area States before their
attainment demonstrations can be approved. Virginia, Maryland and the
District submitted these commitments on February 9, 14 and 22, 2000,
respectively. The EPA has concluded that the enforceable commitments
found in February 2000 plans are acceptable. However, an enforceable
commitment to perform a mid-course review is meaningless outside of the
context of an approved attainment demonstration. For this reason, our
proposal to conditionally approve the attainment demonstration includes
the enforceable commitment to perform and submit the MCR contained
within the February 2000 plans.
IV. Rate-of-Progress Plans
A. What Agencies and Organizations Developed the 1996-1999 ROP Plan for
the Washington Area?
The District of Columbia, Virginia and Maryland must demonstrate
reasonable further progress (RFP) for the Washington area. These
jurisdictions, under the auspices of the Metropolitan Washington Air
Quality Committee (MWAQC) (with the assistance of the Metropolitan
Washington Council of Governments) collaborated on a coordinated 1996-
1999 ROP plan for the Washington area. The MWAQC includes state and
local elected officials and representatives of the DC
[[Page 5254]]
Department of Health, the Maryland Department of the Environment, the
Virginia Department of Environmental Quality and the National Capital
Region Transportation Planning Board (TPB). The Act provides for
interstate coordination for multi-state nonattainment areas. Because
ROP requirements such as the 1996-1999 ROP plan establish emission
budgets for transportation improvement plans, municipal planning
organizations have historically been involved in air quality planning
in the Washington area. The MWAQC ensures consultation with the TPB
during the development of the 1996-1999 ROP plan and emission budgets.
As explained below, the regional 1996-1999 ROP plan determined the
regional target level, regional projections of growth and finally the
total amount of creditable reductions required under the 9 percent
requirement in the Washington area. The District of Columbia, Maryland
and Virginia agreed to apportion this total amount of required
creditable reductions among themselves. Although the plan was developed
by a regional approach, each jurisdiction is required to submit its
portion of the 1996-1999 ROP plan to the EPA as a revision to its SIP.
B. What Are the Rate-of-Progress Requirements Applicable to the
Washington Area?
The CAA requires that serious and above ozone nonattainment areas
develop plans to reduce area-wide VOC emissions after 1996 by 3 percent
per year until the year of the attainment date required for that
classification of nonattainment area. In addition, section 172(c)(9) of
the CAA requires the SIP to provide for specific measures to be
undertaken if an area fails to make reasonable further progress. The
Washington area is classified as a serious ozone nonattainment area
with an attainment date of November 15, 1999. However, the EPA
published its final rule reclassifying the Washington area to severe
ozone nonattainment effective March 25, 2003. The statutory attainment
date for severe areas is November 15, 2005. As a serious area, the 3
percent per year requirement is expressed as an average over
consecutive 3-year periods; thus, the requirement is a 9 percent
reduction by 1999. However, the Circuit Court ruling on the EPA's
approval of the Washington area attainment demonstration and 1996-1999
ROP plan indicated that in addition to a nine percent reduction in
baseline emissions from 1996 to 1999, an area with an attainment date
in 2005 must submit a ROP plan for the Washington area that
demonstrates additional ROP to 2005. 294 F. 3d at 163. The Federal
Register notice reclassifying the Washington area to severe ozone
nonattainment imposes additional requirements on the Washington area
including, among other things, ROP plans that achieve an additional 18
percent reduction in base line emissions between 1999 and 2005. These
new requirements, as well as all of the requirements for a severe ozone
nonattainment SIP, must be submitted to the EPA by the date established
in the reclassification final rule. This proposed action is confined to
the 1996-1999 ROP requirements for a severe ozone nonattainment area
that are currently pending before the Agency.
The ROP plans were to be submitted by November 15, 1994, and the
first 9 percent reductions were required to be achieved within 9 years
after enactment, that is, by November 15, 1999. This 9 percent
reduction requirement is a continuation of the requirement for a 15
percent reduction in VOC by 1996. For the 1996-1999 ROP plan, the Act
allows the substitution of NOX emissions reductions for VOC
emission reductions where equivalent air quality benefits are achieved
as determined using the applicable EPA guidance. The 9 percent VOC/
NOX reduction required by November 15, 1999, is a
demonstration of reasonable further progress in the Washington area.
Our assessment of the 1996-1999 ROP plan is limited to whether or not
the 9 percent reduction requirement is met.
C. How Is the 3 Percent per Year 1996-1999 Reduction Calculated?
A 1996-1999 ROP plan consists of a plan to achieve a target level
of emissions. There are several important emission inventories and
calculations associated with the plan. These include: The base year
emission inventory, future year projection inventories, and target
level calculations.
The EPA addressed the sufficiency of the 1996-1999 ROP plan base
year emission inventory, future year projection inventories, and target
level calculations in its previous notices regarding the Washington
area attainment demonstration. See 65 FR 58243, September 28, 2000, and
65 FR 62658, October 19, 2000. Since the Circuit Court did not address
issues regarding the adequacy of the base year emission inventory,
future year projection inventories, and target level calculations, the
EPA believes that it may approve these calculations at this time. EPA
incorporates by reference herein its prior proposal, the comments
submitted thereon, and its response to those comments. EPA is not
reprinting that discussion here but will address any further comments
submitted in response to this re-proposal of its approval of the base
year emission inventory, future year projection inventories, and target
level calculations.
D. Nonattainment Area-Wide Plan--Apportionment of Reduction Needs
The EPA must determine whether or not the Washington area 9 percent
requirement has been met. In general, the emission reduction from a
measure is the difference between the future year projected
uncontrolled emissions and the future year controlled emissions, or is
equal to a percentage of the future year projected uncontrolled
emissions. For on-road mobile sources, the emission reductions from a
measure or suite of measures are determined by the difference of
projected future year emissions with and without new control measures.
The Washington area 1996-1999 ROP plan apportions among the
District, Maryland and Virginia the amount of creditable emission
reductions that each must achieve in order for the nonattainment area
to achieve, as a region, the required 9 percent reduction in VOC net of
growth. The 1996-1999 ROP plan identifies the amount of creditable
emission reductions that each state must achieve for the nonattainment
area-wide plan to get a 9 percent reduction accounting for any growth
in emissions from 1990 to 1999. The District of Columbia, Maryland and
Virginia each committed to achieving the necessary NOX and
VOC reductions, found in Table 5.
[[Page 5255]]
Table 5.--Emission Reduction Commitments for the Washington Area Through 1999
[tons/day]
----------------------------------------------------------------------------------------------------------------
District of
Columbia Maryland Virginia Area total
----------------------------------------------------------------------------------------------------------------
Total VOC reduction by 1999................................. 10.6 63.7 57.2 131.5
Total NOX reduction by 1999................................. 7.2 96.8 46.6 150.6
----------------------------------------------------------------------------------------------------------------
The required VOC and NOX emission reductions for each
jurisdiction have been apportioned using a ratio of the regional
reduction requirement to the claimed creditable measures for the
nonattainment area. This result was then multiplied by each
jurisdiction's total creditable measures to determine its emission
reduction requirement. The EPA has determined that this apportionment
of the emission reduction needed for ROP is approvable because the Act
provides for interstate planning of SIPs, and because all three
jurisdictions have committed to achieving, in the aggregate, sufficient
reductions to achieve the 9 percent requirement in the entire
nonattainment area.
E. What Control Strategies Are the District, Maryland and Virginia
Including in the 1996-1999 ROP Plan?
The 1996-1999 ROP plan describes the emission reduction credits
that the Washington area jurisdictions are claiming toward their 9
percent reduction requirement. We can credit reductions for the ROP
requirement for rules promulgated by the EPA and for state measures in
the approved SIP.
Transportation Control Measures (TCMs): TCMs are strategies to both
reduce VMT and decrease the amount of emissions per VMT. The CAA
classifies as TCMs programs for improved transit, traffic flow, fringe
parking facilities for multiple occupancy transit programs, high
occupancy or share-ride programs, and support for bicycle and other
non-automobile transit. The 1996-1999 ROP plans for Virginia and
Maryland included TCM projects programmed between fiscal years 1994-
1999 in the transportation improvement plan (TIP) under the Congestion
Mitigation and Air Quality (CMAQ) Improvement Program and funded for
implementation in the Washington area. The specific projects that
Virginia and Maryland are claiming credit for and the estimated
benefits are listed in Appendix H of the 1996-1999 ROP plan and
Appendix J of the February 2000 plans. TCMs are considered acceptable
measures for states to use to achieve reductions and EPA has determined
that the VOC and NOX reductions attributable to these
measures are creditable for the 1996-1999 ROP plan and attainment
demonstration.
The 1996-1999 ROP plan control measures for the Washington area are
listed in Table 3 of this document and described in more detail in the
TSD for this rulemaking.
F. What Are the Total Reductions in the 1996-1999 ROP Plan?
Tables 6, 7 and 8 summarize the VOC and NOX creditable
measures in Maryland's, Virginia's and the District's 1996-1999 ROP
plan for the Washington area.
Table 6.--Creditable VOC Emission Reductions in the 1996-1999 ROP Plan
for the Metropolitan Washington Area
[tons/day]
------------------------------------------------------------------------
District
Measure of Columbia Maryland Virginia
------------------------------------------------------------------------
Tier 1 FMVCP..................... 1.4 5.5 5.9
RFG Refueling Benefits........... 0.0 0.9 0.7
NLEV............................. 0.2 0.6 1.3
Reformulated Gasoline (on/off 2.2 7.9 8.0
road)...........................
Surface Cleaning/Degreasing...... 0.0 2.9 0.0
Autobody Refinishing............. 0.5 3.8 2.7
AIM.............................. 1.6 6.6 5.6
Consumer Products................ 0.6 2.2 1.9
Seasonal Open Burning Ban........ 0.0 3.7 2.6
Graphic Arts..................... 0.9 1.0 1.5
Landfill Regulations............. 0.0 0 0.3
Non-CTG RACT to 50 TPY........... 0.0 0.4 0.4
RACT on Additional Sources 25 TPY and <50 TPY.......
Stage II Vapor Recovery.......... 0.0 8.9 7.9
Stage I Enhancement (excluding 0.0 0.9 0.3
Loudoun County, VA).............
Non-road Gasoline Engines Rule... 0.9 6.3 6.8
TCMs............................. 0.0 0.1 0.1
Enhanced I/M..................... 3.9 18.0 17.9
--------------
Total Creditable Reductions.. 11.8 70.0 63.9
------------------------------------------------------------------------
[[Page 5256]]
Table 7.--Creditable NOX Emission Reductions in the 1996-1999 ROP Plan
for the Metropolitan Washington Area
[tons/day]
------------------------------------------------------------------------
District of
Measure Columbia Maryland Virginia
------------------------------------------------------------------------
Enhanced I/M..................... 2.4 14.8 16.9
Tier 1........................... 2.5 13.7 14.7
NLEV............................. .2 0.3 1.5
Reformulated Gasoline (on-road).. 0.0 0.1 0.1
Non-road Gasoline Engines........ -0.1 -0.4 -0.5
Non-road Diesel Engines.......... 0.4 3.7 3.2
State NOX RACT................... 2.1 67.9 12.0
Open Burning Ban................. 0 0.8 0.6
TCMs............................. 0 0.2 0.2
--------------
Total Creditable Reductions.. 7.5 101.1 48.7
------------------------------------------------------------------------
Table 8.--Creditable Emission Reductions Versus Reduction Needs for the 1996-1999 ROP Plan for the Metropolitan
Washington Area
[tons/day]
----------------------------------------------------------------------------------------------------------------
District of
Columbia Maryland Virginia Area-wide
----------------------------------------------------------------------------------------------------------------
VOC Reductions in Plan...................................... 11.8 70.0 63.9 145.7
Commitment/Area-wide Needs.................................. 10.6 63.7 57.2 131.5
Surplus..................................................... 1.2 6.3 6.7 14.2
NOX Reductions in Plan...................................... 7.5 101.1 48.7 157.3
Commitment/Area-wide Needs.................................. 7.2 96.8 46.6 150.6
Surplus..................................................... 0.3 4.3 2.1 6.7
----------------------------------------------------------------------------------------------------------------
Section 172(c)(9) of the CAA requires that specific measures must
be undertaken if an area fails to make reasonable further progress, or
to attain the NAAQS by the attainment date. Furthermore, such measures
must be included in the SIP as contingency measures to take effect
without further action by the State or the Administrator. As noted
previously, the Circuit Court ruled that sections 172(c)(9) and
182(c)(9) of the CAA require that contingency measures must be included
as an element in the attainment demonstration and ROP SIPs for the
Washington area. The Court further determined that EPA lacked the
authority to approve attainment demonstration and ROP SIPs without
contingency measures. Therefore, the jurisdictions in the Washington
area have committed to submit contingency measures that will be
implemented should EPA notify the Washington area jurisdictions that
the area did not achieve the required 9 percent reductions by November
15, 1999. These measures need to provide for a 3 percent reduction in
base line emissions and be fully adopted rules or measures that can
implemented without further action by the States or EPA after November
15, 1999. Such contingency measures must also meet all of the EPA's
guidance and policy relating to contingency measures.
V. Applicability of Revised Motor Vehicle Emissions Budgets
A. What Is the Background on Transportation Conformity?
1. What Is Transportation Conformity?
Transportation conformity is a Clean Air Act (CAA) requirement for
metropolitan planning organizations and the U.S. Department of
Transportation to ensure that federally supported highway and transit
activities are consistent with (``conform to'') the SIP. Conformity to
a SIP means that an action will not cause or contribute to new
violations; worsen existing violations; or delay timely attainment. The
conformity requirements are established by CAA section 176(c). We
issued the transportation conformity rule (40 CFR part 93) to implement
this CAA requirement.
2. What Are Motor Vehicle Emissions Budgets?
As described in CAA section 176(c)(2)(A), attainment demonstrations
necessarily include estimates of motor vehicle emissions to help areas
reach attainment. These estimates act as a budget or ceiling for
emissions from motor vehicles, and are used in conformity to determine
whether transportation plans and projects conform to the attainment
SIP. In order for transportation plans and projects to conform,
estimated emissions from transportation plans and projects must not
exceed the emission budgets contained in the attainment demonstration.
3. Which Motor Vehicle Emissions Budgets Usually Apply?
According to the transportation conformity rule, motor vehicle
emissions budgets in a submitted SIP apply for conformity purposes even
before we have approved the SIP, under certain circumstances. First,
there must not be any other approved SIP motor vehicle emissions
budgets that have been established for the same time frame and with
respect to the same CAA requirements. For example, if there is already
an approved attainment demonstration SIP that establishes motor vehicle
emissions budgets for the attainment date, and the State submits a
revision to those motor vehicle emissions budgets, the newly submitted
budgets do not apply for conformity purposes until we have approved
them into the SIP.
Second, submitted SIP motor vehicle emissions budgets cannot be
used before we have approved the SIP unless we have found that the
submitted SIP motor
[[Page 5257]]
vehicle emissions budgets are adequate for conformity purposes. Our
process for determining adequacy is explained at 40 CFR 93.118(e) and
the EPA's May 14, 1999, memo entitled, ``Conformity Guidance on
Implementation of March 2, 1999, Conformity Court Decision.''
For more details about the applicability of submitted and approved
budgets, see 61 FR 36117 (July 9, 1996) and 62 FR 43783 (August 15,
1997).
B. What Is the EPA Proposing Today Regarding Clarification of the
Applicability of Revised Motor Vehicle Emissions Budgets?
We are proposing to clarify this proposal with regard to
applicability of revised budgets under a conditional approval of the
attainment demonstration SIPs for the Washington area. The following
discussion addresses this issue specifically pertaining to the motor
vehicle emissions budgets in the attainment demonstration for the
Washington area.
1. How Are We Proposing to Clarify the Applicability of Revised
Budgets?
In this notice, we are proposing to clarify what occurs if we issue
a conditional approval of any of the February 2000 plans based on a
State commitment to revise the 2005 motor vehicle emissions budgets for
the Washington area in the future. If this occurs, the approved SIP
motor vehicle emissions budgets will apply for conformity purposes only
until the revised motor vehicle emissions budgets have been submitted
and we have found the submitted motor vehicle emissions budgets to be
adequate for conformity purposes.
In other words, when the State submits revised motor vehicle
emissions budgets as they have committed, those revised motor vehicle
emissions budgets will apply for conformity purposes as soon as we have
found those motor vehicle emissions budgets to be adequate for
conformity purposes and our adequacy finding is effective. The revised
motor vehicle emissions budgets would then replace the motor vehicle
emissions budgets in the conditionally approved attainment
demonstration SIP, provided that (as we expect) the revised motor
vehicle emissions budgets are submitted as a revision to part of the
attainment demonstration SIP and are established for the same year as
those in the approved SIP.
2. Why Are We Proposing to Clarify the Applicability of Revised
Budgets?
In this notice of proposed rulemaking, we are proposing that for
reasons described in section III.C. we would not conditionally approve
the attainment demonstration SIPs unless the States commit to revise
the SIPs' budgets in the future. As described in prior sections of this
preamble, the motor vehicle emissions budgets must be revised using
MOBILE6 because the attainment year budgets that would be conditionally
approved reflect the benefits of our Tier 2/Sulfur regulation. The
budgets might also be revised as a result of the RACM analysis the area
has committed to complete.
Since we are proposing to approve attainment year motor vehicle
emissions budgets only because the States have committed to revise
them, we want our approval of the budgets to last only until adequate
revised budgets are submitted pursuant to the commitments. We believe
the revised motor vehicle emissions budgets should apply as soon as we
find them adequate; we do not believe it is appropriate to wait until
we have fully approved the revised attainment demonstration SIP. This
is because we already know that once we have confirmed that the revised
motor vehicle emissions budgets are adequate, they will be more
appropriate than the originally approved budgets for conformity
purposes.
In addition, we know now that the area cannot estimate accurately
the benefits of the Tier 2 program until they revise the budgets using
the MOBILE6 model. We are proposing to conditionally approve motor
vehicle emissions budgets based on interim approximations of Tier 2
benefits only because the States are committing to recalculate the
budgets using MOBILE6 in a timely fashion.
Finally, we know now that if the area identifies any additional
mobile source RACM, the budgets, as revised to include those measures,
will more accurately reflect the emissions levels necessary to
demonstrate attainment. If we do not clarify our proposed conditional
approval of the motor vehicle emissions budgets, States will revise
their budgets as they have committed, but they will not be able to
start using them quickly for conformity purposes. This would defeat the
purpose of our original requirements for the budgets to be revised
quickly. In contrast, according to this proposal, the revised budgets
could be used for conformity after we have completed our adequacy
review process, which we have committed to complete within 90 days
after revisions are submitted, provided they are adequate.
This notice does not propose any change to the existing
transportation conformity rule or to the way it is normally implemented
with respect to other submitted and approved SIPs, which do not contain
commitments to revise the motor vehicle emissions budgets.
C. How Does the 18-Month Clock Apply With Respect to These Budget
Revisions?
Section 93.104(e)(2) of the conformity rule requires conformity of
the transportation plan and transportation improvement program (TIP) to
be redetermined within 18 months following the date of a State's
initial submission of each SIP establishing a budget.
As described at 60 FR 44792 (August 29, 1995), the first submission
of a given type of SIP that establishes a motor vehicle emissions
budget (e.g., an ozone attainment demonstration) starts the 18-month
clock for redetermining conformity. However, the 18-month clock is
unaffected by subsequent changes to that submitted SIP.
Therefore, the revisions to the attainment demonstration SIPs to
reflect MOBILE6 or any additional RACM will not start a new 18-month
clock. Of course, whenever conformity is determined in the future (in
accordance with the 18-month clock or for any other reason), the
demonstration must use whatever motor vehicle emissions budgets are
applicable at that time. If an initial submission starts the 18-month
clock but then is changed and the revised motor vehicle emissions
budgets are found adequate, any subsequent conformity determination
must use the new, adequate budgets.
Section 93.104(e)(3) also requires conformity of the transportation
plan and TIP to be redetermined 18 months following our approval of a
SIP that establishes or revises a budget. If we conditionally approve
an ozone attainment demonstration, an 18-month clock will be started on
the effective date of our conditional approval. A subsequent conversion
of the conditional approval to full approval will not start another 18-
month clock, unless the motor vehicle emissions budgets we are
approving have changed since the conditional approval.
D. What Are the Budgets in the Plans?
The motor vehicle emissions budgets in the 1996-1999 ROP plan and
attainment demonstrations are area-wide budgets for the entire
Washington area. The motor vehicle emissions budgets for 1999 in the
1996-1999 ROP plan are 196.4 tons per day of NOX and 128.5
tons per day of VOC. The motor vehicle emissions budgets for 2005 in
the attainment demonstration are 101.8
[[Page 5258]]
tons per day for VOC and 161.8 tons per day of NOX.
E. What Is the Status of the 1999 Motor Vehicle Emission Budgets
Contained in the 1996-1999 ROP Plan for the Area?
We are proposing to conditionally approve the 1996-1999 ROP plan
for the area including the 1999 motor vehicle emission budgets, or in
the alternative, to disapprove this SIP with a protective finding. It
should be noted that the 1999 budgets in the ROP plan do not have to be
revised using MOBILE6 since these budgets were established for a year
prior to the implementation of the Tier 2/sulfur regulations.
VI. What Is the Basis for the Proposed Actions?
A. Conditional Approval
In the previous sections of this document, the EPA has presented
our analysis of the 1996-1999 ROP plan and attainment demonstration
plans submitted for the Washington area. The EPA has concluded that
these submittals will be fully approvable once several deficiencies are
corrected. Two of these deficiencies were identified by the Circuit
Court, namely that the 1996-1999 ROP plan and the attainment
demonstration lack contingency measures, and the attainment
demonstration lacks an analysis showing that all RACM have been adopted
for implementation in the Washington area. A third deficiency we have
identified with the attainment demonstration is the lack of revised
MOBILE6-based motor vehicle emissions budgets, including revisions to
the attainment modeling and/or weight of evidence demonstration, as
necessary, to show that the SIP continues to demonstrate attainment by
November 15, 2005.
To cure these deficiencies and allow for full approval of the SIPs
the States must undertake the actions set forth below. For contingency
measures related to the attainment demonstration, the States need to
identify which measures have been implemented since the area failed to
attain by November 15, 1999. In addition, because the Washington area
will on March 25, 2003, become a severe nonattainment area, the
attainment demonstration for the Washington area must also include
contingency measures if the area fails to attain by November 15, 2005.
For the 1996-1999 ROP plan contingency requirement, the area needs to
identify those adopted measures that qualify as contingency measures to
be implemented if EPA notifies the states that the Washington area did
not achieve the required 9 percent rate of progress reductions by
November 15, 1999.
The deficiencies in the SIPS are due to the actual (or potential)
lack of certain enforceable measures in the SIPs. Under section
110(k)(4) of the CAA, the EPA ``may approve a plan revision based on a
commitment of the State to adopt specific enforceable measures by a
date certain, but not later than 1 year after the date of approval of
the plan revision. Any such conditional approval shall be treated as a
disapproval if the State fails to comply with such commitment.''
The EPA concludes that the SIP revisions identified in the section
of this document entitled ``I. What action is the EPA proposing
today?'' can be conditionally approved because each of the States has
committed to all of the following:
(1) Submit to the EPA by April 17, 2004, a contingency plan
containing those adopted measures that qualify as contingency measures
due to the failure of the Washington area to attain the one-hour ozone
standard for serious areas by November 15, 1999, and also those adopted
measures that qualify as contingency measures to be implemented if EPA
notifies the states that the Washington area did not achieve the
required 9 percent rate of progress reductions by November 15, 1999.
(2) Revise and submit to the EPA by April 17, 2004, an updated
attainment demonstration SIP that reflects revised MOBILE6-based motor
vehicle emissions budgets, including revisions to the attainment
modeling and/or weight of evidence demonstration, as necessary, to show
that the SIP continues to demonstrate attainment by November 15, 2005.
(3) Submit to the EPA by April 17, 2004, adopted contingency
measures to be implemented if the Washington area does not attain the
one-hour ozone NAAQS by November 15, 2005.
(4) Submit to the EPA by April 17, 2004, an appropriate RACM
analysis for the Washington area, along with any revisions to the
attainment demonstration SIP necessitated by such analysis, should
there be any.
These commitments are embodied in the following letters:
(1) A letter, dated January 14, 2003, from Richard F. Pecora,
Secretary, Maryland Department of the Environment, to Donald S. Welsh,
Regional Administrator, EPA. Region III.
(2) A letter, dated January 14, 2003, from Robert G. Burnley,
Director, Virginia Department of Environmental Quality, to Donald S.
Welsh, Regional Administrator, EPA. Region III.
(3) A letter, dated January 14, 2003, from Theodore J. Gordon,
Senior Deputy Director for Environmental Health Science and Regulation,
Government of the District of Columbia Department of Health, to Donald
S. Welsh, Regional Administrator, EPA. Region III.
These letters contain the commitments that are acceptable in form
and substance to comply with sections 110(k)(3) and (4) of the Act.
Although each of the Washington area States has committed to
submitting the RACM analysis, the contingency measures and the 2005
revised mobile vehicle emissions budgets to EPA by April 17, 2004,
these three things are among the severe area SIP elements required by
the reclassification of the Washington area to severe ozone
nonattainment. Therefore, as a practical matter, these three elements
will have to be submitted to EPA consistent with the schedule for
submission of the severe area SIP revisions to EPA. Under the schedule
set forth in the final rule reclassifying the Washington area, each of
the three Washington area States must submit all of the severe area SIP
revisions no later than March 1, 2004. (See 68 FR 3410).
Notwithstanding the April 17, 2004, commitment date, failure of the
States to submit these three elements by March 1, 2004, can have
repercussions. If EPA makes a finding that any of the Washington area
States have failed to submit any of the required severe area SIP
elements by March 1, 2004, or if EPA makes a finding that any of the
required submittals is incomplete in accordance with section
110(k)(1)(B) and 40 CFR part 51, Appendix V, section 179(a) provides
for the imposition of two sanctions. See section 179(a) of the CAA and
40 CFR 52.31. Under EPA's sanctions regulations, 40 CFR 52.31, the
first sanction would be 2:1 offsets for sources subject to the new
source review requirements under section 173 of the CAA unless the EPA
has determined the State has submitted the required SIP revisions
meeting the completeness criteria section 110(k)(1)(B) and of 40 CFR
part 51. If 6 months after the first sanction is imposed EPA has not
determined that State has submitted the required SIP revisions meeting
the completeness criteria section 110(k)(1)(B) and of 40 CFR part 51,
the second sanction will apply. The second sanction is a limitation on
the receipt of Federal highway funds.
However, as discussed previously in this document, because the
commitment letter recites April 17, 2004, as the
[[Page 5259]]
controlling date for submission of the RACM analysis, the contingency
measures and the 2005 revised mobile vehicle emissions budgets, any
conditional approval issued pursuant to this proposed rulemaking shall
convert to a disapproval only if the State fails to make the required
submissions by April 17, 2004. If EPA disapproves a required SIP, such
as an attainment demonstration SIP, section 179(a) provides for the
imposition of two sanctions. In the event of a disapproval the two
sanctions would be imposed in accordance with the EPA's sanctions
regulation, 40 CFR 52.31, and in the same order as described in the
preceding paragraph.
B. Disapproval in the Alternative
The EPA believes that the proposed conditional approval is
consistent with sections 110(k)(3) and (4) of the Act and with rulings
by the Circuit Court and the District Court cited previously in this
document. We also believe that the proposed conditional approval is the
most reasonable of the legally supported alternatives for allowing the
Washington area to deal with the situation created by the two court
rulings adverse to EPA. However, EPA is well aware that its past
actions with respect to this area have been controversial and have
resulted in separate actions in two different Federal courts. EPA is
also well aware that it is under a District Court-ordered deadline to
publish its final action on the Washington area attainment
demonstration and ROP SIPs by no later than April 17, 2003. Because EPA
anticipates that the proposed conditional approvals may receive adverse
comment, we are also proposing in the alternative to disapprove either
or both the attainment demonstration and ROPs SIPs. EPA believes that
the proposed disapproval in the alternative is a prudent step to take
to preserve the court-ordered schedule in the event that we cannot
issue a timely final conditional approval for both the attainment
demonstration and ROP SIP revisions.
In the event that we cannot issue a final conditional approval with
respect to the attainment demonstration SIP revision, we propose to
disapprove those submissions due to the following deficiencies: (1)
Lack of contingency measures; (2) lack of an analysis showing that all
RACM have been adopted for implementation in the Washington area; and,
(3) lack of revised MOBILE6-based motor vehicle emissions budgets,
including revisions to the attainment modeling and/or weight of
evidence demonstration, as necessary, to show that the SIP continues to
demonstrate attainment by November 15, 2005. With respect to the 1996-
1999 ROP plan, in the event that we cannot issue a final conditional
approval, we propose to disapprove the submissions because they lack
contingency measures. As explained in the following paragraphs at VI.C.
the EPA is proposing that disapproval of either the attainment
demonstration or the 1996-1999 ROP plan will be made with a protective
finding regarding their respective motor vehicle emissions budgets.
C. Proposed Protective Findings
Under the conformity rule if EPA disapproves any submitted control
strategy implementation plan revision (with or without a protective
finding), the conformity status of the transportation plan and
transportation improvement plan (TIP) shall lapse on the date that
highway sanctions as a result of the disapproval are imposed on the
nonattainment area under section 179(b)(1) of the Clean Air Act.\5\ No
new transportation plan, TIP, or project may be found to conform until
another control strategy implementation plan revision fulfilling the
same Clean Air Act requirements is submitted and conformity to this
submission is determined. See 40 CFR 93.120(a).
---------------------------------------------------------------------------
\5\ Under the conformity rule the term ``control strategy
implementation plan revisions'' includes ROP and attainment
demonstrations, or, more generally, those implementation plans which
contain specific strategies for controlling the emissions of and
reducing ambient levels of pollutants in order to satisfy CAA
requirements for demonstrations of reasonable further progress and
attainment (CAA sectons 182(b)(1), 182(c)(2)(A), 182(c)(2)(B),
187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and
192(b), for nitrogen dioxide).
---------------------------------------------------------------------------
When the EPA disapproves a control strategy SIP the EPA has to
determine whether to issue a protective finding. If the EPA does not
issue a protective finding then the conformity freeze established by
section 93.120(a)(2) of the conformity rule will occur on the effective
date of the disapproval. See 40 CFR 93.120(a)(2).
Alternatively, when disapproving a control strategy implementation
plan revision, the EPA would give a protective finding where a
submitted plan contains adopted control measures or written commitments
to adopt enforceable control measures that fully satisfy the emissions
reductions requirements relevant to the statutory provision for which
the implementation plan revision was submitted, such as reasonable
further progress or attainment. See 40 CFR 93.120(a)(3).
In the preamble to the conformity rule, EPA explained the
implications of a disapproval of a ROP plan or attainment demonstration
and how a protective finding works. When disapproving a control
strategy SIP revision the EPA may give the SIP a protective finding. If
the EPA disapproves a SIP but gives a protective finding, the motor
vehicle emissions budget in the disapproved SIP could still be used to
demonstrate conformity. There would be no adverse conformity
consequences unless highway sanctions were imposed, as is the case with
respect to all other SIP planning failures. Highway sanctions would be
imposed two years following the EPA's disapproval if the SIP deficiency
had not been remedied. The conformity of the plan and TIP would lapse
once highway sanctions were imposed. The EPA will make a protective
finding only if a submitted SIP contains adopted control measures or
commitments to adopt measures that fully satisfy the emissions
reductions requirements relevant to the statutory provision for which
the SIP was submitted, such as ROP. That is, the EPA will give such a
submitted SIP a protective finding if it contains enough emissions
reduction measures to achieve its purpose of either demonstrating ROP
or attainment. The EPA will not make a protective finding with respect
to a SIP that does not contain emission reduction measures or
commitments adequate to achieve the required ROP or attainment. See 62
FR at 43796, August 15, 1997.
The EPA is proposing that based on the analysis discussed in
section IV of this document that the 1996-1999 ROP plan meets the ROP
requirement by providing enough reductions with the adopted measures to
have achieved the 9 percent reduction requirement. The EPA believes
that the ROP plan meets the requirement for a protective finding,
however, the EPA will take final action with respect to this protective
finding only if it finalizes the disapproval in the alternative option
proposed in this document.
Likewise, the EPA is proposing that, based on the analysis
discussed previously in this document, the attainment demonstration has
demonstrated that the Washington area will attain the ozone NAAQS no
later than November 15, 2005, by providing enough reductions with the
adopted measures to demonstrate attainment. The EPA believes that the
attainment demonstration meets the requirement for a protective
finding, however, the EPA will take final action with respect to this
protective finding only if it finalizes the disapproval in the
alternative option proposed in this document.
[[Page 5260]]
Under this proposed protective finding the mobile source budgets
that were established in the 1996-1999 ROP plan and attainment
demonstration plans will be in effect for transportation planning and
conformity purposes and can be used until such time that highway
sanctions as required in accordance with 40 CFR 52.31 and would apply
two years after the disapproval of the ROP plan, unless EPA takes final
action to approve a revised plan correcting the deficiency within 2
years of EPA's findings. The 1999 mobile emissions budgets in the 1996-
1999 ROP plan which would remain in place under the proposed protective
finding are 196.8 tons of NOX and 128.5 tons for VOC. The
2005 mobile emissions budgets in the attainment demonstration which
would remain in place under the proposed protective finding are 101.8
tons of NOX and 161.8 tons for VOC.
VII. Proposed Action
A. The District of Columbia--Rate-of-Progress Plan
EPA is proposing conditional approval of the District of Columbia's
1996-1999 ROP plan SIP revision for the Washington area which was
submitted on November 3, 1997, and supplemented on May 25, 1999, and
the transportation control measures in Appendix H of the May 25, 1999,
submittal, because the District has committed to submit to the EPA by
April 17, 2004, (a date that will not be later than 1 year after the
date of approval of the plan revision) a contingency plan containing
those adopted measures that qualify as contingency measures to be
implemented if EPA notifies the states that the Washington area did not
achieve the required 9 percent rate of progress reductions by November
15, 1999.
With respect to the 1996-1999 ROP plan, in the event that we cannot
issue a final conditional approval, we propose in the alternative to
disapprove the District of Columbia's 1996-1999 ROP plan SIP because it
lacks contingency measures. The EPA is proposing disapproval in the
alternative with a protective finding with respect to the 1999 ROP
motor vehicle emissions budgets.
B. The District of Columbia--Attainment Demonstration
EPA is proposing conditional approval of the revisions to the State
Implementation Plan submitted by the District of Columbia on April 24,
1998, October 27, 1998, and February 16, 2000, and only section 9.1.1.2
of the March 22, 2000, SIP supplement dealing with a commitment to
revise the 2005 attainment motor vehicle emissions budgets within one-
year of the EPA's release of the MOBILE6 model. EPA is proposing
conditional approval because the District has committed to:
(1) Submit to the EPA by April 17, 2004, a contingency plan
containing those adopted measures that qualify as contingency measures
due to the failure of the Washington area to attain the one-hour ozone
standard for serious areas by November 15, 1999;
(2) Revise and submit to the EPA by April 17, 2004, an updated
attainment demonstration SIP that reflects revised MOBILE6-based motor
vehicle emissions budgets, including revisions to the attainment
modeling and/or weight of evidence demonstration, as necessary, to show
that the SIP continues to demonstrate attainment by November 15, 2005;
(3) Submit to the EPA by April 17, 2004, adopted contingency
measures to be implemented if the Washington area does not attain the
one-hour ozone NAAQS by November 15, 2005; and
(4) Submit to the EPA by April 17, 2004, a revised RACM analysis
and any revisions to the attainment demonstration SIP as necessitated
by such analysis should there be any.
In the alternative, the EPA is proposing to disapprove the State
Implementation Plan submitted by the District of Columbia on April 24,
1998, October 27, 1998, and February 16, 2000, and only section 9.1.1.2
of the March 22, 2000, SIP supplement, due to the following
deficiencies: (1) Lack of contingency measures; (2) lack of an analysis
showing that all RACM have been adopted for implementation in the
Washington area; and, (3) lack of revised MOBILE6-based motor vehicle
emissions budgets, including revisions to the attainment modeling and/
or weight of evidence demonstration, as necessary, to show that the SIP
continues to demonstrate attainment by November 15, 2005. The EPA is
proposing disapproval with a protective finding with respect to the
2005 attainment motor vehicle emissions budgets.
C. The State of Maryland--Rate-of-Progress Plan
EPA is proposing conditional approval of the State of Maryland's
1996-1999 ROP plan SIP revision for the Washington area which was
submitted on December 24, 1997, and supplemented on May 20, 1999, and
the transportation control measures in Appendix H of the May 25, 1999,
submittal because Maryland has committed to submit to the EPA by April
17, 2004, a contingency plan containing those adopted measures that
qualify as contingency measures to be implemented if EPA notifies the
states that the Washington area did not achieve the required 9 percent
rate of progress reductions by November 15, 1999.
With respect to the 1996-1999 ROP plan, in the event that we cannot
issue a final conditional approval, we propose in the alternative to
disapprove the State of Maryland's 1996-1999 ROP plan SIP because it
lacks contingency measures. The EPA is proposing disapproval in the
alternative with a protective finding with respect to the 1999 ROP
motor vehicle emissions budgets.
D. The State of Maryland--Attainment Demonstration
EPA is proposing conditional approval of the revisions to the State
Implementation Plan submitted by the State of Maryland on April 29,
1998, August 17, 1998, and February 14, 2000, and the transportation
control measures in Appendix J of the February 9, 2000, submittal and
only section 9.1.1.2 of the March 31, 2000, SIP supplement dealing with
a commitment to revise the 2005 attainment motor vehicle emissions
budgets within one-year of the EPA's release of the MOBILE6 model. EPA
is proposing conditional approval because Maryland has committed to:
(1) Submit to the EPA by April 17, 2004, a contingency plan
containing those adopted measures that qualify as contingency measures
due to the failure of the Washington area to attain the one-hour ozone
standard for serious areas by November 15, 1999;
(2) Revise and submit to the EPA by April 17, 2004, an updated
attainment demonstration SIP that reflects revised MOBILE6-based motor
vehicle emissions budgets, including revisions to the attainment
modeling and/or weight of evidence demonstration, as necessary, to show
that the SIP continues to demonstrate attainment by November 15, 2005;
(3) Submit to the EPA by April 17, 2004, adopted contingency
measures to be implemented if the Washington area does not attain the
one-hour ozone NAAQS by November 15, 2005; and
(4) Submit to the EPA by April 17, 2004, a revised RACM analysis
and any revisions to the attainment demonstration SIP as necessitated
by such analysis should there be any.
In the alternative, the EPA is proposing to disapprove the State
Implementation Plan submitted by the State of Maryland on April 29,
1998,
[[Page 5261]]
August 17, 1998, and February 14, 2000, and the transportation control
measures in Appendix J of the February 9, 2000, submittal and only
section 9.1.1.2 of the March 31, 2000 SIP supplement due to the
following deficiencies: (1) Lack of contingency measures; (2) lack of
an analysis showing that all RACM have been adopted for implementation
in the Washington area; and, (3) lack of revised MOBILE6-based motor
vehicle emissions budgets, including revisions to the attainment
modeling and/or weight of evidence demonstration, as necessary, to show
that the SIP continues to demonstrate attainment by November 15, 2005.
The EPA is proposing disapproval with a protective finding with respect
to the 2005 attainment motor vehicle emissions budgets.
E. The Commonwealth of Virginia--Rate-of-Progress Plan
EPA is proposing conditional approval of the Commonwealth of
Virginia's 1996-1999 ROP plan SIP revision for the Washington area
which was submitted on December 19, 1997, and supplemented on May 25,
1999, and the transportation control measures in Appendix H of the May
25, 1999, submittal because Virginia has committed to submit to the EPA
by April 17, 2004, a contingency plan containing those adopted measures
that qualify as contingency measures to be implemented if EPA notifies
the states that the Washington area did not achieve the required 9
percent rate of progress reductions by November 15, 1999.
With respect to the 1996-1999 ROP plan, in the event that we cannot
issue a final conditional approval, we propose in the alternative to
disapprove the Commonwealth of Virginia's 1996-1999 ROP plan SIP
because it lacks contingency measures. The EPA is proposing disapproval
in the alternative with a protective finding with respect to the 1999
ROP motor vehicle emissions budgets.
F. The Commonwealth of Virginia--Attainment Demonstration
EPA is proposing conditional approval of the revisions to the State
Implementation Plan submitted by the Commonwealth of Virginia on April
29, 1998, August 18, 1998, and February 9, 2000, and the transportation
control measures in Appendix J of the February 9, 2000, submittal, and
only section 9.1.1.2 of the March 31, 2000, SIP supplement dealing with
a commitment to revise the 2005 attainment motor vehicle emissions
budgets within one-year of the EPA's release of the MOBILE6 model. EPA
is proposing conditional approval because Virginia has committed to:
(1) Submit to the EPA by April 17, 2004, a contingency plan
containing those adopted measures that qualify as contingency measures
due to the failure of the Washington area to attain the one-hour ozone
standard for serious areas by November 15, 1999;
(2) Revise and submit to the EPA by April 17, 2004, an updated
attainment demonstration SIP that reflects revised MOBILE6-based motor
vehicle emissions budgets, including revisions to the attainment
modeling and/or weight of evidence demonstration, as necessary, to show
that the SIP continues to demonstrate attainment by November 15, 2005;
(3) Submit to the EPA by April 17, 2004, adopted contingency
measures to be implemented if the Washington area does not attain the
one-hour ozone NAAQS by November 15, 2005; and
(4) Submit to the EPA by April 17, 2004, a revised RACM analysis
and any revisions to the attainment demonstration SIP as necessitated
by such analysis should there be any.
In the alternative, the EPA is proposing to disapprove the State
Implementation Plan submitted by the Commonwealth of Virginia on April
29, 1998, August 18, 1998, and February 9, 2000, and the transportation
control measures in Appendix J of the February 9, 2000, submittal, and
only section 9.1.1.2 of the March 31, 2000, SIP supplement due to the
following deficiencies: (1) Lack of contingency measures; (2) lack of
an analysis showing that all RACM have been adopted for implementation
in the Washington area; and, (3) lack of revised MOBILE6-based motor
vehicle emissions budgets, including revisions to the attainment
modeling and/or weight of evidence demonstration, as necessary, to show
that the SIP continues to demonstrate attainment by November 15, 2005.
The EPA is proposing disapproval with a protective finding with respect
to the 2005 attainment motor vehicle emissions budgets.
G. Applicability of Revised Motor Vehicle Emissions Budgets
In this notice, we are proposing to clarify what occurs if we issue
a conditional approval of any of the February 2000 plans based on a
State commitment to revise the 2005 motor vehicle emissions budgets for
the Washington area in the future. If this occurs, the conditionally
approved 2005 motor vehicle emissions budgets will apply for conformity
purposes only until the revised motor vehicle emissions budgets have
been submitted and we have found the submitted motor vehicle emissions
budgets to be adequate for conformity purposes.
The EPA is soliciting public comments on the issues discussed in
this document and any other relevant issues regarding the attainment
demonstration for the Washington area. These comments will be
considered before taking final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA Regional Office listed in the ADDRESSES section of
this document. A more detailed description of the state submittal and
the EPA's evaluation are included in a Technical Support Document (TSD)
prepared in support of this rulemaking action. A copy of the TSD is
available upon request from the EPA Regional Office listed in the
ADDRESSES section of this document.
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information (1) that are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that are required by law.
On January 12, 1997, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege law, Va. Code sec. 10.1-1198, precludes granting a privilege
to documents and
[[Page 5262]]
information ``required by law,'' including documents and information
``required by Federal law to maintain program delegation, authorization
or approval,'' since Virginia must ``enforce Federally authorized
environmental programs in a manner that is no less stringent than their
Federal counterparts. * * *'' The opinion concludes that ``[r]egarding
Sec. 10.1-1198, therefore, documents or other information needed for
civil or criminal enforcement under one of these programs could not be
privileged because such documents and information are essential to
pursuing enforcement in a manner required by Federal law to maintain
program delegation, authorization or approval.''
Virginia's Immunity law, Va. Code sec. 10.1-1199, provides that
``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1997 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
Therefore, the EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
the EPA has also determined that a State audit privilege and immunity
law can affect only State enforcement and cannot have any impact on
Federal enforcement authorities, the EPA may at any time invoke its
authority under the Clean Air Act, including, for example, sections
113, 167, 205, 211 or 213, to enforce the requirements or prohibitions
of the State plan, independently of any State enforcement effort. In
addition, citizen enforcement under section 304 of the Clean Air Act is
likewise unaffected by this, or any, State audit privilege or immunity
law.
VIII. Statutory and Executive Order Reviews
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 13045
Executive Order entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it does not involve decisions intended to mitigate environmental health
or safety risks.
C. Executive Order 13132
Executive Order entitled ``Federalism'' (64 FR 43255, August 10,
1999) revokes and replaces Executive Orders 12612 (Federalism) and
12875 (Enhancing the Intergovernmental Partnership). Executive Order
13132 requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
Federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
Federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. Thus, the requirements of section 6 of the Executive Order do
not apply to this rule.
D. Executive Order 13175
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
E. Executive Order 13211
This action is also not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001). This action merely
approves state law as meeting Federal requirements and imposes no
additional requirements beyond those imposed by state law.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This proposed rule will not have a significant impact on
a substantial number of small entities because conditional approvals of
SIP submittals under section 110 and subchapter I, part D of the CAA do
not create any new requirements but simply approve requirements that
the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Clean Air
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of state action. The Clean Air
Act forbids EPA
[[Page 5263]]
to base its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing state requirements applicable to small
entities. Federal disapproval of the state submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, I certify that
this proposed disapproval action does not have a significant impact on
a substantial number of small entities because it does not remove
existing requirements nor does it substitute a new Federal requirement.
The EPA's alternative proposed disapproval of the State request
under section 110 and subchapter I, part D of the Act would not affect
any existing requirements applicable to small entities. Any pre-
existing Federal requirements would remain in place after this
disapproval. Federal disapproval of the State submittal does not affect
State-enforceability. Moreover EPA's disapproval of the submittal would
not impose any new Federal requirements. Therefore, I certify that the
proposed disapproval would not have a significant impact on a
substantial number of small entities.
G. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that this proposed approval action does not
include a Federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This Federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Sections 202 and 205 do not apply to the proposed disapproval
because the proposed disapproval of the SIP submittal would not, in and
of itself, constitute a Federal mandate because it would not impose an
enforceable duty on any entity. In addition, the Act does not permit
EPA to consider the types of analyses described in section 202 in
determining whether a SIP submittal meets the CAA. Finally, section 203
does not apply to the proposed disapproval because it would affect only
the District of Columbia, the State of Maryland and the Commonwealth of
Virginia, which are not small governments.
H. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
EPA believes that VCS are inapplicable to this action. Today's
proposed action does not require the public to perform activities
conducive to the use of VCS.
This proposed rule regarding the 1-hour ozone attainment
demonstration and the 1996-1999 ROP plan for the Washington area does
not impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: January 24, 2003.
James J. Burke,
Acting Regional Administrator, Region III.
[FR Doc. 03-2333 Filed 1-31-03; 8:45 am]
BILLING CODE 6560-50-P