[Federal Register Volume 76, Number 126 (Thursday, June 30, 2011)]
[Proposed Rules]
[Pages 38334-38340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16376]



40 CFR Part 52

EPA-R03-OAR-2010-0475; FRL-9426-3]

Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, and Virginia; 2002 Base Year Emission 
Inventory, Reasonable Further Progress Plan, Contingency Measures, 
Reasonably Available Control Measures, and Transportation Conformity 
Budgets for the Washington, DC Area 1997 8-Hour Moderate Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: EPA is proposing to approve State Implementation Plan (SIP) 
revisions submitted by the District of Columbia, the State of Maryland, 
and the Commonwealth of Virginia (the States). These revisions pertain 
to the 2002 base year emissions inventory, the reasonable further 
progress (RFP) plan, RFP contingency measure, and reasonably available 
control measure (RACM) requirements of the Clean Air Act (CAA) for the 
Washington, DC area moderate 1997 8-hour ozone nonattainment area 
(Washington Area). EPA is also proposing to approve the transportation 
conformity motor vehicle emissions budgets (MVEBs) associated with this 
revision. EPA is proposing to approve the SIP revisions because they 
satisfy the emission inventory, RFP, RACM, RFP contingency measures, 
and transportation conformity requirements for areas classified as 
moderate nonattainment for the 1997 8-hour ozone national ambient air 
quality standard (NAAQS) and demonstrate further progress in reducing 
ozone precursors. This action is being taken under the CAA.

DATES: Written comments must be received on or before August 1, 2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0475 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2010-0475, Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-0475. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index.

[[Page 38335]]

Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in http://www.regulations.gov or in 
hard copy during normal business hours at the Air Protection Division, 
U.S. Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the State submittal are 
available at the District of Columbia Department of the Environment, 
Air Quality Division, 51 N Street, NE., Fifth Floor, Washington, DC 
20002; the Maryland Department of the Environment, 1800 Washington 
Boulevard, Suite 705, Baltimore, Maryland 21230; and the Virginia 
Department of Environmental Quality, 629 East Main Street, Richmond, 
Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 814-2181, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The following is provided to aid in locating 
information in this document.

Table of Contents

I. What is the background of this action?
II. What is EPA's evaluation of the revision?
III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia
IV. What action is EPA proposing?
V. Statutory and Executive Order Reviews

I. What is the background of this action?

    In 1997, EPA revised the health-based NAAQS for ozone, setting it 
at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA 
set the 8-hour ozone standard based on scientific evidence 
demonstrating that ozone causes adverse health effects at lower ozone 
concentrations and over longer periods of time, than was understood 
when the pre-existing 1-hour ozone standard was set. EPA determined 
that the 8-hour standard would be more protective of human health, 
especially children and adults who are active outdoors, and individuals 
with a pre-existing respiratory disease, such as asthma.
    On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to 
the 8-hour ozone standard. These actions became effective on June 15, 
2004. Among those nonattainment areas is the Washington Area. The 
Washington Area includes the District of Columbia (the District); 
Arlington, Fairfax, Loudoun, and Prince William Counties and the cities 
of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in 
Virginia (the Northern Virginia area) and Calvert, Charles, Frederick, 
Montgomery, and Prince George's Counties in Maryland. Pursuant to Phase 
1 of the 1997 8-hour ozone implementation rule (Phase 1 rule), 
published on April 30, 2004 (69 FR 23951), an area was classified under 
Subpart 2 of the CAA based on its 8-hour design value if that area had 
a 1-hour design value at or above 0.121 ppm (the lowest 1-hour design 
value in Table 1 of Subpart 2). Based on this criterion, the Washington 
Area was classified under Subpart 2 as a moderate nonattainment area. 
See 40 CFR 81.309, 81.321, and 81.347.
    These designations triggered the CAA's section 110(a)(1) 
requirement that states must submit attainment demonstrations for their 
nonattainment areas to EPA by no later than three years after the 
promulgation of a NAAQS. Accordingly, EPA's Phase 1 specifies that 
states must submit attainment demonstrations for their nonattainment 
areas to the EPA by no later than three years from the effective date 
of designation, that is, by June 15, 2007.
    On November 29, 2005 (70 FR 71612), as revised on June 8, 2007 (72 
FR 31727), EPA published the Phase 2 final rule for implementation of 
the 1997 8-hour standard (Phase 2 rule). The Phase 2 rule addressed the 
RFP control and planning obligations as they apply to areas designated 
nonattainment for the 1997 8-hour ozone NAAQS.
    Among other things, the Phase 1 and 2 rules outline the SIP 
requirements and deadlines for various requirements in areas designated 
as moderate nonattainment. The rules further require that modeling and 
attainment demonstrations, reasonable further progress plans, 
reasonably available control measures, projection year emission 
inventories, motor vehicle emissions budgets, and contingency measures 
were all due by June 15, 2007 (40 CFR 51.908(a), (c)).
    Section 182(b)(1) of the CAA and EPA's 1997 8-hour ozone 
implementation rule (40 CFR 51.910) require each 8-hour ozone 
nonattainment area designated moderate and above to submit an emissions 
inventory and RFP Plan for review and approval into its SIP.

II. What is EPA's evaluation of the revision?

    The District of Columbia Department of the Environment (DDOE), the 
Maryland Department of the Environment (MDE), and the Virginia 
Department of Environmental Quality (VADEQ) worked together to develop 
a joint plan for the Washington Area to address the attainment 
demonstration, 2002 base year emissions inventory, the RFP plan, RFP 
contingency measure, and RACM requirements. This plan, entitled ``Plan 
to Improve Air Quality in the Washington, DC-MD-VA Region, State 
Implementation Plan (SIP) for 8-Hour Ozone Standard, Moderate Area 
SIP,'' will be referred to as ``the Washington Area 8-hour ozone plan'' 
throughout this document. The Washington Area 8-hour ozone plan was 
submitted to the EPA as a SIP revision by DDOE on June 12, 2007, by MDE 
on June 4, 2007, and by VADEQ on June 12, 2007. These SIP revisions 
also establish a MVEB for 2008 for the Washington Area. These SIP 
revisions were subject to notice and comment by the public and the 
States addressed the comments received on the proposed SIPs. All 
sections of these SIP submittals, with the exception of the attainment 
demonstration, will be discussed in this rulemaking. The attainment 
demonstration sections of the SIP submittals will be discussed in a 
separate rulemaking.

A. Base Year Emissions Inventory

    An emissions inventory, required by section 172(c)(3) of the CAA, 
is a comprehensive, accurate, current inventory of actual emissions 
from all sources. For ozone nonattainment areas, the emissions 
inventory needs to contain volatile organic compound (VOC) and oxides 
of nitrogen (NOX) emissions because these pollutants are 
precursors to ozone formation. EPA recommended 2002 as the base year 
emissions inventory, and is therefore the starting point for 
calculating RFP. A summary of the Washington Area 2002 base year VOC 
and NOX emissions inventories is included in Table 1, below.

  Table 1--Washington Area 2002 Base-Year VOC Emissions in Tons per Day
             Emission source  category                 VOC        NOX
Point.............................................      12.91      220.6
Stationary Area...................................     192.64      24.25
Non-Road Mobile...................................     125.79      85.72
On-Road Mobile....................................     116.94     266.65

[[Page 38336]]

    Total (excluding Biogenics)...................     448.28     597.22
Biogenics.........................................     314.74       3.07

EPA reviewed the 2002 base year inventory for the Washington Area and 
determined that the procedures, methodologies, and results used to 
develop the Washington Area 2002 base year inventory are approvable.

B. Adjusted Base Year Inventory, 2008 RFP Target Levels

    The process for determining the emissions baseline from which the 
RFP reductions are calculated is described in section 182(b)(1) of the 
CAA and 40 CFR 51.910. This baseline value has been determined to be 
the 2002 adjusted base year inventory. Sections 182(b)(1)(B) and (D) 
require the exclusion from the base year inventory of emissions 
benefits resulting from the Federal Motor Vehicle Control Program 
(FMVCP) regulations promulgated by January 1, 1990 and the Reid Vapor 
Pressure (RVP) regulations promulgated June 11, 1990 (55 FR 23666). The 
FMVCP and RVP emissions reductions are determined by the state using 
EPA's on-road mobile source emissions modeling software, MOBILE6. The 
FMVCP and RVP emission reductions are then removed from the base year 
inventory by the state, resulting in an adjusted base year inventory. 
The emission reductions needed to satisfy the RFP requirement are then 
calculated from the adjusted base year inventory. These reductions are 
then subtracted from the adjusted base year inventory to establish the 
emissions target for the RFP milestone year (2008).
    For moderate areas like the Washington Area, the CAA specifies a 15 
percent reduction in ozone precursor emissions over an initial 6-year 
period. In the Phase 2 Rule (70 FR 71612), EPA interpreted this 
requirement for areas that were also designated nonattainment and 
classified as moderate or higher for the 1-hour ozone standard. In the 
Phase 2 Rule, EPA provided that an area classified as moderate or 
higher that has the same boundaries as an area, or is entirely composed 
of several areas or portions of areas, for which EPA fully approved a 
15 percent plan for the 1-hour NAAQS, is considered to have met the 
requirements of section 182(b)(1) of the CAA for the 8-hour NAAQS. In 
this situation, a moderate nonattainment area is subject to RFP under 
section 172(c)(2) of the CAA and shall submit, no later than 3 years 
after designation for the 8-hour NAAQS, a SIP revision that meets the 
requirements of 40 CFR 51.910(b)(2). The RFP SIP revision must provide 
for a 15 percent emission reduction (either NOX and/or VOC) 
accounting for any growth that occurs during the 6-year period 
following the baseline emissions inventory year, that is, 2002-2008.
    The Washington nonattainment area under the 1-hour ozone standard 
was classified as severe. For the 1-hour ozone NAAQS, EPA fully 
approved the 15 percent ROP plans for the Washington, DC 1-hour severe 
ozone nonattainment area on August 5, 1999 (64 FR 42600), July 44686), 
and October 6, 2000 (65 FR 59727). Therefore, according to the Phase 2 
Rule, the RFP plan for the Washington Area may use either 
NOX or VOC emissions reductions (or both) to achieve the 15 
percent emission reduction requirement.
    According to section 182(b)(1)(D) of the CAA, emission reductions 
that resulted from the FMVCP and RVP rules promulgated prior to 1990 
are not creditable for achieving RFP emission reductions. Therefore, 
the 2002 base year inventory must be adjusted by subtracting the VOC 
and NOX emission reductions that are expected to occur 
between 2002 and the future milestone years due to the FMVCP and RVP 
    The States set out the calculations for the adjusted base year 
inventory and 2008 RFP target levels. The Washington Area 2002 
anthropogenic base year inventory is shown in Table 2, below.

     Table 2--Washington Area 2002 Anthropogenic Base Year Inventory
                           [Ozone season tpd]
                 Source category                      VOC         NOX
Point............................................      12.91      220.6
Area.............................................     192.64       24.25
Nonroad..........................................     125.79       85.72
On-Road..........................................     116.94      266.65
    Total........................................     448.28      597.22

The States calculated the non-creditable emission reductions between 
2002 and 2008 by modeling its 2002 and 2008 motor vehicle emissions 
with all post-1990 CAA measures turned off, and calculating the 
difference, as shown below in Table 3.

       Table 3--Washington Area Non-Creditable Emission Reductions
                           [Ozone season tpd]
                  Source category                      VOC        NOX
(i) 2002 On-Road..................................     166.55     308.24
(ii) 2008 On-Road.................................     154.10     276.63
Non-creditable Reductions (i)-(ii)................      12.45      31.61

    The State's calculations of the Washington Area 2002 VOC inventory 
adjusted to 2008 and the VOC target level for 2008 are summarized in 
Table 4, below.

       Table 4--Washington Area 2008 RFP Target Level Calculations
                           [Ozone season tpd]
              Description                       Formula           VOC
A--2002 Rate-Of Progress Base Year       ....................     448.28
B--FMVCP/RVP Reductions Between 2002     ....................      12.45
 And 2008.
C--2002 Adjusted Base Year Inventory     A-B.................     435.83
 Relative To 2008.
D--RFP Ratio...........................  ....................        15%
E--Emissions Reductions Required         C * D...............      65.37
 Between 2002 & 2008.
F--Target Level for 2008...............  C - E...............     370.45

    The States elected to meet RFP in the Washington Area using only 
VOC reductions. A moderate 8-hour ozone nonattainment area with an 
approved 15 percent ROP plan under the 1-hour standard can use 
reductions from VOC or NOX or a combination of either.

C. Projected Inventories and Determination of RFP

    The States described the methods used for developing its 2008 

[[Page 38337]]

VOC and NOX inventories and developed projected uncontrolled 
and controlled 2008 VOC and NOX emissions. EPA reviewed the 
procedures used to develop the projected inventories and found them to 
be reasonable.
    Projected controlled 2008 emissions for the Washington Area are 
summarized in Table 5, below.

 Table 5--Washington Area 2008 Projected Controlled VOC & NOX Emissions
                                                       VOC        NOX
             Emission source  category              emissions  emissions
                                                      (tpd)      (tpd)
Point.............................................      13.98     229.36
Area..............................................     181.59      26.93
Nonroad...........................................      92.48      76.91
Mobile............................................      70.98     160.30
    Total.........................................     358.84     493.22

    To determine if 2008 RFP is met in the Washington Area, the total 
projected controlled emissions must be compared to the target levels 
calculated in Section B of this notice. As shown below in Table 6, the 
total VOC emission projections meet the 2008 RFP emission target. 
Therefore, the 2008 RFP in the Washington Area is demonstrated.

 Table 6--Determination of Whether RFP Is Met in 2008 in the Washington
                         Description                           emissions
A--Total 2008 Projected Controlled Emissions.................     358.84
B--Target Level for 2008.....................................     370.45
RFP met if A < B.............................................        Yes

D. Control Measures and Emission Reductions for RFP

    To meet the RFP requirement for the Washington Area, the States 
used a combination of area source control, nonroad mobile, and on-road 
mobile measures.
    The area source measures the States used to meet 2008 RFP in the 
Washington Area include the mobile repair and refinishing rule, phase I 
of the portable fuel containers rule, the architectural and industrial 
maintenance (AIM) coatings rule, phase I of the reformulated consumer 
products rule, and the solvent cleaning operations rule. Area source 
2008 emission reductions are 30.98 tpd VOC and 0 tpd NOX.
    Nonroad measures include phase I and II emissions standards for 
gasoline-powered nonroad utility engines, the Federal non-road diesel 
engines rule, Federal emissions standards for spark ignition marine 
engines, Federal emissions standards for large spark ignition engines, 
and Federal reformulated gasoline use in nonroad motor vehicles and 
equipment. Using EPA's NONROAD model, the States calculated emission 
reductions from these measures to be 36.91 tpd VOC and 11.68 tpd 
NOX. EPA reviewed the procedures that the State's used to 
develop its projected inventories, including the use of the NONROAD 
model, and found them to be reasonable.
    On-road mobile measures include high-tech vehicle inspection and 
maintenance (enhanced I/M), Federal tier I vehicle emission standards 
and new Federal evaporative test procedures, the national low emission 
vehicle (NLEV) program, tier 2 vehicle standards, and the heavy duty 
diesel engine (HDDE) rule. On-road 2008 emission reductions that the 
States calculated using EPA's MOBILE model are 6.19 tpd VOC and 29.67 
tpd NOX. EPA reviewed the procedures that the States used to 
develop the projected inventories, including the use of the MOBILE 
model, and found them to be reasonable.
    Additional measures include national standards for locomotives, 
transportation control measures (TCMs) and vehicle technology, fuel, or 
maintenance measures, and a voluntary bundle. Table 7 summarizes the 
VOC emission reductions that the States claimed in the Washington Area 
8-hour ozone plan to meet RFP in the Washington Area. While many of the 
emission control measures used to meet RFP also resulted in 
NOX emission reductions, the States elected to meet RFP in 
the Washington Area using only VOC reductions.

    Table 7--VOC Control Measures and 2008 Emission Reductions in the
                             Washington Area
                       Control measure                         VOC (tpd)
Area Sources Measures........................................      30.98
Nonroad Measures (NONROAD Model).............................      36.91
Onroad Measures (MOBILE Model)...............................       6.19
Locomotive Standards.........................................       0.05
Transportation Control Measures..............................       0.19
Voluntary Bundle.............................................       0.19
    Total....................................................      74.51

E. Contingency Measures for Failure To Meet RFP

    Section 172(c)(9) of the CAA requires a state with a moderate or 
above ozone nonattainment area to include sufficient additional 
contingency measures in its RFP plan in case the area fails to meet 
RFP. The same provision of the CAA also requires that the contingency 
measures must be fully adopted control measures or rules. Upon failure 
to meet an RFP milestone requirement, the state must be able to 
implement the contingency measures without any further rulemaking 
activities. Upon implementation of such measures, additional emission 
reductions of at least 3 percent of the adjusted 2002 baseline 
emissions must be achieved. For more information on contingency 
measures, see the April 16, 1992 General Preamble (57 FR 13512) and the 
November 29, 2005 Phase 2 8-hour ozone implementation rule (70 FR 
    To meet the requirements for contingency emission reductions, EPA 
allows states to use NOX emission reductions to substitute 
for VOC emission reductions in their contingency plans. However, the 
States chose to use only VOC reductions to meet the contingency measure 
requirement in the Washington Area. The States calculated the 
contingency VOC reduction for the Washington Area as shown in Table 8, 
below. The RFP contingency requirement may be met by including in the 
RFP plan a demonstration of 18 percent VOC & NOX RFP. The 
additional 3 percent reduction above the 15 percent requirement must be 
attributed to specific measures.

   Table 8--Washington Area 2008 RFP Contingency Measure Target Level
          Description                Formula           VOC        NOX
A--2002 Rate-Of Progress Base  ...................     448.28     597.22
 Year Inventory.
B--FMVCP/RVP Reductions        ...................      12.45      31.61
 Between 2002 and 2008.

[[Page 38338]]

C--2002 Adjusted Base Year     A - B..............     435.83     565.61
 Inventory Relative To 2008.
D--RFP Ratio.................  ...................        15%          0
E--RFP Emissions Reductions    C * D..............      65.37          0
 Required Between 2002 & 2008.
F--Contingency Percentage....  ...................       0.3%       2.7%
G--Contingency Emission        C * F..............       1.31      15.27
 Reduction Requirements.
H--Contingency Measure Target  C - E - G..........     369.15     550.34
 Level for 2008.

    To determine if the States meet the three percent contingency 
measure requirement for the Washington Area, the total projected 
controlled emissions must be compared to the contingency measure target 
levels calculated above. As shown below in Table 9, the total VOC and 
NOX emission projections meet the 2008 contingency measure 
targets. Therefore, the States have met the contingency measure 
requirement for the Washington Area.

 Table 9--Evaluation of the Washington Area 2008 RFP Contingency Measure
                    Description                     VOC (tpd)  NOX (tpd)
A--Total 2008 Projected Controlled Emissions......     358.84     493.22
B--Contingency Measure Target Level for 2008......     369.15     550.34
Contingency measure requirement met if A < B......        Yes        Yes

F. RACM Analysis and Determination

    Pursuant to section 172(c)(1) of the CAA, states are required to 
implement all RACM as expeditiously as practicable for each 
nonattainment area. Specifically, section 172(c)(1) states the 
following: ``In general--Such plan provisions shall provide for the 
implementation of all reasonably available control measures as 
expeditiously as practicable (including such reductions in emissions 
from existing sources in the area as may be obtained through the 
adoption, at a minimum, of reasonably available control technology) and 
shall provide for attainment of the national primary ambient air 
quality standards.'' Furthermore, in EPA's Phase 2 Rule, EPA describes 
how states must include a RACM analysis with their attainment 
demonstration (70 FR 71659). The purpose of the RACM analysis is to 
determine whether or not reasonably available control measures exist 
that would advance the attainment date for nonattainment areas. Control 
measures that would advance the attainment date are considered RACM and 
must be included in the SIP. RACM are necessary to ensure that the 
attainment date is achieved ``as expeditious as practicable.'' RACM is 
defined by the EPA as any potential control measure for application to 
point, area, on-road and nonroad emission source categories that meets 
the following criteria:
     The control measure is technologically feasible;
     The control measure is economically feasible;
     The control measure does not cause ``substantial 
widespread and long-term adverse impacts;''
     The control measure is not ``absurd, unenforceable, or 
impracticable;'' and
     The control measure can advance the attainment date by at 
least one year.
    The States evaluated 322 potential stationary, area, nonroad, and 
mobile source control measures against the RACM criteria. Several 
measures would have provided some emission reductions. However, the 
States determined that none of the mandatory measures would achieve 
reductions in the 2008 ozone season. Therefore, the States concluded 
that there are no RACM appropriate to advance the Washington Area's 
attainment date.
    EPA has reviewed the States' analysis. To meet the RACM 
requirement, the States must demonstrate that it has adopted all RACM 
necessary to move the Washington Area toward attainment as 
expeditiously as practicable and to meet all RFP requirements. As 
demonstrated above in section IV of this document, the States have met 
the RFP requirements for the Washington Area.
    The States evaluated all source categories that could contribute 
meaningful emission reductions, and compiled an extensive list of 
potential control measures. Furthermore, the States considered the time 
needed to develop and adopt regulations and the time it would take to 
see the benefit from these measures. While the States found that the 
measures could not be used to advance the Washington Area's attainment 
date, the State's determined that many of the measures were useful and 
would be considered for future SIPs for the Washington Area. Therefore, 
EPA concurs with the States' conclusion that there are no RACM that 
would have advanced the 2010 attainment date for the Washington Area.

G. Transportation Conformity Budgets

    Transportation conformity is required by CAA section 176(c). EPA's 
conformity rule requires that transportation plans, programs and 
projects conform to state air quality implementation plans and 
establishes the criteria and procedure for determining whether or not 
they do. Conformity to a SIP means that transportation activities will 
not produce new air quality violations, worsen existing violations, or 
delay timely attainment of the national ambient air quality standards. 
The criteria by which EPA determines whether a SIP's MVEBs are adequate 
for conformity purposes are outlined in 40 CFR 93.118(e)(4). The 
process for determining the adequacy of submitted SIP budgets is 
described in 40 CFR 93.118(f).
    States must establish VOC and NOX MVEBs for each of the 
milestone years up to the attainment year and submit the mobile budgets 
to EPA for approval. Upon adequacy determination or approval by EPA, 
states must conduct transportation conformity analysis for their 
Transportation Improvement Programs (TIPs) and long range 
transportation plans to ensure highway vehicle emissions will not 
exceed relevant MVEBs. Failure to demonstrate such transportation 
conformity lapses results in freezing of Federal highway funds and all 
Federal highway projects in the lapsed area.
    The States discuss transportation conformity in Section 8.0 of the 
Washington Area 8-hour ozone plan. The States describe their methods 
and provide detailed input parameters used in modeling the inventories 
in Appendices E1 and E2 of the Washington Area 8-hour ozone plan. In 
the Washington Area, the Metropolitan Washington Air Quality Committee 
(MWAQC) consults with the Transportation Planning Board (TPB) to 
establish mobile source emissions

[[Page 38339]]

budgets. The Washington Area MVEB for the 2008 RFP is based on the 
projected 2008 mobile source emissions, accounting for all mobile 
control measures. The budgets are equal to the projected 2008 on-road 
mobile source emission inventories minus reductions from transportation 
control measures. The MVEBs for the 2008 RFP are shown in Table 10, 

                Table 10--Washington Area 2008 RFP MVEBs
                                                       VOC        NOX
                                                      (tpd)      (tpd)
(A) Projected Controlled Mobile Emissions.........      70.98     160.30
(B) Transportation Control Measures...............       0.19       0.49
(A)-(B)...........................................      70.79     159.81
MVEB (rounded to nearest 0.1 tpd).................      70.8      159.8

    For budgets to be approvable, they must meet, at a minimum, EPA's 
adequacy criteria (40 CFR 93.118(e)(4)). In a September 4, 2009 Federal 
Register notice, EPA notified the public that EPA found that the 2008 
RFP MVEBs in the Washington Area 8-hour ozone plan are adequate for 
transportation conformity purposes (74 FR 45853). As a result of EPA's 
finding, the States must use the MVEBs from the Washington Area 8-hour 
ozone plan for future conformity determinations for the 1997 8-hour 
ozone standard.

    In addition to the budgets being adequate for transportation 
conformity purposes, EPA found the procedures the States used to 
develop the MVEBs to be reasonable. Because the 2008 RFP MVEBs are 
adequate for transportation conformity purposes and the methods the 
States used to develop them are correct, the 2008 RFP budgets are 

III. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia

    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, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information required by Federal law to maintain program delegation, 
authorization or approval,'' since Virginia must ``enforce Federally 
authorized environmental programs in a manner that is no less stringent 
than their Federal counterparts * * *.'' The opinion concludes that 
``[r]egarding 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, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, 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 CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

IV. What action is EPA proposing?

    EPA has reviewed the 2002 base year emissions inventory; the 2008 
ozone projected emission inventory; the 2008 RFP plan; RFP contingency 
measures; RACM analysis; and 2008 transportation conformity budgets 
contained in the Washington Area 8-hour ozone plan, and found that 
those elements fully addressed the CAA's requirements. Therefore, EPA 
is proposing approval of those elements, which were submitted to EPA as 
a SIP revision by DDOE on June 12, 2007, by MDE on June 4, 2007, and by 
VADEQ on June 12, 2007. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);

[[Page 38340]]

     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule pertaining to the 2002 base year 
emissions inventory, the 2008 ozone projected emission inventory, the 
2008 RFP plan; RFP contingency measures, RACM analysis, and 2008 
transportation conformity budgets for the Washington Area does not have 
tribal implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the SIP is not approved to apply in Indian 
country located in the state, and EPA notes that it will not impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: June 15, 2011.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2011-16376 Filed 6-29-11; 8:45 am]