[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Proposed Rules]
[Pages 45735-45752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18482]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2014-0148; FRL-9914-71-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, and Virginia; Approval of the
Redesignation Requests and Maintenance Plan of the Washington, DC-MD-VA
Nonattainment Area for the 1997 Annual Fine Particulate Matter Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the requests from the District of Columbia (the District), the
State of Maryland (Maryland), and the Commonwealth of Virginia
(Virginia) (collectively ``the States'') to redesignate to attainment
their respective portions of the Washington, DC-MD-VA nonattainment
area (hereafter ``the Washington Area'' or ``the Area'') for the 1997
annual fine particulate matter (PM2.5) National Ambient Air
Quality Standard (NAAQS or standard). EPA is also proposing to approve
as a revision to their respective State Implementation Plans (SIPs) the
common maintenance plan submitted by the States to show maintenance of
the 1997 annual PM2.5 NAAQS through 2025 for the Washington
Area. The Washington Area maintenance plan includes motor vehicle
emissions budgets (MVEBs) for PM2.5 and nitrogen oxides
(NOX) for the Area for the 1997 annual PM2.5
standard, which EPA is proposing to approve for transportation
conformity purposes. These actions are being taken under the Clean Air
Act (CAA).
DATES: Written comments must be received on or before September 5,
2014.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0148 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2014-0148, Cristina Fern[aacute]ndez,
Associate Director, Office of Air Quality 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
[[Page 45736]]
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-
2014-0148. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at 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 www.regulations.gov or email. The
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 email comment
directly to EPA without going through www.regulations.gov, your email
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
www.regulations.gov index. 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 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
submittals are available at District of Columbia, Department of the
Environment, Air Quality Division, 1200 1st Street NE., 5th floor,
Washington, DC 20002; Maryland Department of the Environment, 1800
Washington Boulevard, Suite 705, Baltimore, Maryland 21230; and
Virginia Department of Environmental Quality, 629 East Main Street,
Richmond, Virginia 23219, respectively.
FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. EPA's Requirements
A. Criteria for Redesignation to Attainment
B. Requirements of a Maintenance Plan
III. Summary of Proposed Actions
IV. Effects of Recent Court Decisions on Proposed Actions
A. Effect of the Supreme Court and DC Circuit Court's Decisions
Regarding EPA's CSAPR
B. Effect of the January 4, 2013 DC Circuit Court Decision
Regarding PM2.5 Implementation under Subpart 4 of Part D
of Title I of the CAA
V. EPA's Analysis of States' SIP Submittals
A. Requests for Redesignation
B. Maintenance Plan
C. Transportation Conformity Determination
VI. Proposed Actions
VII. Statutory and Executive Order Reviews
I. Background
The first air quality standards for PM2.5 were
established on July 16, 1997 (62 FR 38652, July 18, 1997). EPA
promulgated an annual standard at a level of 15 micrograms per cubic
meter ([mu]g/m\3\), based on a three-year average of annual mean
PM2.5 concentrations (the 1997 annual PM2.5
standard). In the same rulemaking action, EPA promulgated a 24-hour
standard of 65 [mu]g/m\3\, based on a three-year average of the 98th
percentile of 24-hour concentrations.
On January 5, 2005 (70 FR 944, 1014), EPA published air quality
area designations for the 1997 PM2.5 standards. In that
rulemaking action, EPA designated the Washington Area as nonattainment
for the 1997 annual PM2.5 standard. The Washington Area
includes the entire District of Columbia; Arlington, Fairfax, Loudoun,
and Prince William Counties and the cities of Alexandria, Fairfax,
Falls Church, Manassas, and Manassas Park in Virginia; and Charles,
Frederick, Montgomery, and Prince George's Counties in Maryland. See 40
CFR 81.309, 81.321, and 81.347.
On October 17, 2006 (71 FR 61144), EPA retained the annual average
standard at 15 [mu]g/m\3\, but revised the 24-hour standard to 35
[mu]g/m\3\, based again on the three-year average of the 98th
percentile of 24-hour concentrations (the 2006 24-hour PM2.5
standard). On November 13, 2009 (74 FR 58688), EPA published
designations for the 2006 24-hour PM2.5 standard, which
became effective on December 14, 2009. The Washington Area was not
designated as a nonattainment area for the 2006 24-hour
PM2.5 NAAQS.
In response to legal challenges of the 2006 annual PM2.5
standard, the United States Court of Appeals for the District of
Columbia (DC Circuit Court) remanded this standard to EPA for further
consideration. See American Farm Bureau Federation and National Pork
Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009).
However, given that the 1997 annual and the 2006 annual
PM2.5 standards are essentially identical, attainment of the
1997 annual PM2.5 standard would also indicate attainment of
the remanded 2006 annual PM2.5 standard. Since the
Washington Area is designated nonattainment only for the 1997 annual
PM2.5 NAAQS, today's proposed rulemaking action addresses
the redesignation to attainment only for this standard.
On January 12, 2009 (74 FR 1146), EPA determined that the entire
Washington Area had attained the 1997 annual PM2.5 standard,
based on 2004-2006 and 2005-2007 quality-assured, quality-controlled,
and certified ambient air quality monitoring data. Pursuant to 40 CFR
51.1004(c), this ``clean data'' determination suspended the
requirements for each of the States to submit for their jurisdiction of
the Washington Area an attainment demonstration and associated
reasonably available control measures (RACM), a reasonable further
progress (RFP) plan, contingency measures, and other planning SIP
revisions related to the attainment of the 1997 annual PM2.5
NAAQS until such time as: (1) The Area is redesignated to attainment
for the standard, at which time the requirements no longer apply; or
(2) EPA determines that the Area has again violated the standard, at
which time such plans are required to be submitted by the States.
Subsequently, on January 10, 2012 (77 FR 1411), EPA determined,
pursuant to section 179(c), that the entire Washington Area had
attained the 1997 annual PM2.5 NAAQS by its statutory
attainment date of April 5, 2010.
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 in
developing a combined document to address the requirements for
redesignation of the Washington Area for the 1997 annual
PM2.5 NAAQS. The States also
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developed a common maintenance plan as a revision to their respective
SIPs to ensure continued attainment of the 1997 annual PM2.5
standard in the Washington Area throughout 2025. The 1997 annual
PM2.5 redesignation requests and maintenance plans for the
Washington Area were submitted to EPA by DDOE on June 3, 2013, by MDE
on July 10, 2013, and by VADEQ on June 3, 2013. The emissions
inventories included in the Washington Area maintenance plans were
subsequently supplemented by the States to provide for emissions
estimates of VOC and ammonia. The supplemental inventories were
submitted to EPA on July 22, 2013 by DDOE, on July 26, 2013 by MDE, and
on July 17, 2013 by VADEQ. In addition, the maintenance plan includes
the 2017 and 2025 PM2.5 and NOx MVEBs used for
transportation conformity purposes for the entire Washington Area for
the 1997 annual PM2.5 NAAQS.
II. EPA's Requirements
A. Criteria for Redesignation to Attainment
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation providing that: (1) EPA determines that the
area has attained the applicable NAAQS; (2) EPA has fully approved the
applicable implementation plan for the area under section 110(k); (3)
EPA determines that the improvement in air quality is due to permanent
and enforceable reductions in emissions resulting from implementation
of the applicable SIP and applicable Federal air pollutant control
regulations and other permanent and enforceable reductions; (4) EPA has
fully approved a maintenance plan for the area as meeting the
requirements of section 175A of the CAA; and (5) the state containing
such area has met all requirements applicable to the area under section
110 and part D.
EPA has provided guidance on redesignation in the ``State
Implementation Plans; General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990,'' (57 FR 13498, April 16,
1992) (the ``General Preamble'') and has provided further guidance on
processing redesignation requests in the following documents: (1)
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992 (hereafter the ``1992 Calcagni
Memorandum''); (2) ``State Implementation Plan (SIP) Actions Submitted
in Response to Clean Air Act (CAA) Deadlines,'' Memorandum from John
Calcagni, Director, Air Quality Management Division, October 28, 1992;
and (3) ``Part D New Source Review (Part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994.
B. Requirements of a Maintenance Plan
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least 10 years after approval of a
redesignation of an area to attainment. Eight years after the
redesignation, the state must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation, as EPA deems
necessary to assure prompt correction of any future PM2.5
violations.
The 1992 Calcagni Memorandum provides additional guidance on the
content of a maintenance plan. The memorandum states that a maintenance
plan should address the following provisions: (1) An attainment
emissions inventory; (2) a maintenance demonstration showing
maintenance for 10 years; (3) a commitment to maintain the existing
monitoring network; (4) verification of continued attainment; and (5) a
contingency plan to prevent or correct future violations of the NAAQS.
III. Summary of Proposed Actions
EPA is proposing to take several rulemaking actions related to the
redesignation of the Washington Area to attainment for the 1997 annual
PM2.5 NAAQS. First, EPA is proposing to find that the States
meet the requirements for redesignation of the Washington Area for the
1997 annual PM2.5 NAAQS under section 107(d)(3)(E) of the
CAA. Second, EPA is proposing to approve the Washington Area's
maintenance plan for the Area as a revision to the District, Virginia,
and Maryland SIPs for the 1997 annual PM2.5 NAAQS. The
approval of a maintenance plan is one of the CAA criteria for
redesignation of the Area to attainment. The Washington Area
maintenance plan is designed to ensure continued attainment of the 1997
annual PM2.5 standard in the entire Area for 10 years after
redesignation, until 2025. Third, EPA is proposing to approve the MVEBs
for PM2.5 and NOX emissions for the 1997 annual
PM2.5 standard, which are included as part of the Washington
Area's maintenance plan. EPA previously determined that the Washington
Area has attained the 1997 annual PM2.5 NAAQS. In this
rulemaking action, EPA is proposing to find that the Area continues to
attain the standard.
IV. Effect of Recent Court Decisions on Proposed Actions
In this proposed rulemaking action, EPA considers the effects of
three legal decisions on this redesignation. EPA first considers the
effects of the D.C. Circuit and U.S. Supreme Court's decisions in EME
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), rev'd,
No. 12-1182 (S. Ct. April 29, 2014). The Supreme Court reversed the
D.C. Circuit decision vacating and remanding the Cross-State Air
Pollution Rule (CSAPR). Second, EPA is considering the effect of the
January 4, 2013, D.C. Circuit decision remanding to EPA the ``Final
Clean Air Fine Particle Implementation Rule'' (72 FR 20586, April 25,
2007) and the ``Implementation of the New Source Review (NSR) Program
for Particulate Matter Less than 2.5 Micrometers (PM2.5)''
final rule (73 FR 28321, May 16, 2008) (collectively, ``1997
PM2.5 Implementation Rule''). Natural Resources Defense
Council (NRDC) v. EPA, 706 F.3d 428 (D.C. Cir. 2013).
A. Effect of the Supreme Court and D.C. Circuit's Decisions Regarding
EPA's CSAPR
EPA has considered the recent decisions from the U.S. Supreme Court
and the D.C. Circuit Court regarding EPA's CSAPR, and has concluded
that the decisions do not alter the Agency's proposal to redesignate
the Washington Area from nonattainment to attainment for the 1997
annual PM2.5 NAAQS. EPA promulgated CSAPR (76 FR 48208,
August 8, 2011) to replace the Clean Air Interstate Rule (CAIR), which
has been in place since 2005. See 76 FR 59517. Both CSAPR and CAIR
require significant reductions in emissions of SO2 and
NOX from electric generating units (EGUs) to limit the
interstate transport of these pollutants and the ozone and fine
particulate matter they form in the atmosphere. The DC Circuit Court
initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), but ultimately remanded the rule to EPA without vacatur to
preserve the environmental benefits provided by CAIR, North Carolina v.
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). After
[[Page 45738]]
staying the implementation of CSAPR on December 20, 2011 and
instructing EPA to continue to implement CAIR in the interim, on August
21, 2012, the D.C. Circuit Court issued a decision to vacate CSAPR,
with further instruction to continue administering CAIR ``pending the
promulgation of a valid replacement.'' EME Homer City Generation L.P.
v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). On April 29, 2014, the Supreme
Court reversed the opinion of the D.C. Circuit Court and remanded the
matter to the D.C. Circuit Court for further proceedings. EPA v. EME
Homer City Generation, L.P., No. 12-1182 (S. Ct. April 29, 2014).
In their submissions, the States do not rely on either CAIR or
CSAPR for emission reductions that contributed to the Washington Area's
attainment of the 1997 annual PM2.5 NAAQS, nor do the States
rely on either of the rules to show maintenance of the standard in the
Area for 10 years following redesignation. However, because CAIR was
promulgated in 2005 and incentivized sources and states to begin
achieving early emission reductions, the air quality data examined by
EPA in issuing a final determination of attainment for the Washington
Area in 2009 (January 12, 2009, 74 FR 1146) and the air quality data
from the Area since 2005 necessarily reflect reductions in emissions
from upwind sources as a result of CAIR. Nonetheless, in this case EPA
believes that it is appropriate to redesignate the Washington Area.
Modeling conducted by EPA during the CSAPR rulemaking process, which
used a baseline emissions scenario that ``backed out'' the effects of
CAIR, see 76 FR at 48223, projected that the counties in the Washington
Area would have PM2.5 annual design values \1\ below the
level of the 1997 annual PM2.5 standard for 2012 and 2014
without taking into account emissions reductions from CAIR or CSAPR.
See Appendix B of EPA's ``Air Quality Modeling Final Rule Technical
Support Document,'' (Pages B-38, B-46, and B-61), which is available in
the docket for this proposed rulemaking action. In addition, the 2010-
2012 quality-assured, quality-controlled, and certified monitoring data
for the Washington Area confirms that 2012 PM2.5 annual
design values for each monitoring site in the Area remained well below
the 1997 annual PM2.5 NAAQS, and thus the entire Area
continued to attain the standard in 2012. See Table 1 of this proposed
rulemaking action for the Washington Area's monitoring data for 2010-
2012.
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\1\ As defined in 40 CFR part 50, Appendix N, section (1)(c). A
monitoring site's design value is compared to the level of the 1997
annual PM2.5 NAAQS to determine compliance with the
standard.
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The status of CSAPR is not relevant to these redesignations. CSAPR
was promulgated in June 2011, and the rule was stayed by the D.C.
Circuit Court just six months later, before the trading programs it
created were scheduled to go into effect. Therefore, the Washington
Area's attainment of the 1997 annual PM2.5 standard cannot
have been a result of any emission reductions associated with CSAPR. In
sum, neither the current status of CAIR nor the current status of CSAPR
affects any of the criteria for proposed approval of these
redesignation requests for the Washington Area.
B. Effect of the January 4, 2013 D.C. Circuit Court Decision Regarding
PM2.5 Implementation Under Subpart 4 of Part D of Title I of
the CAA
1. Background
On January 4, 2013, in Natural Resources Defense Council v. EPA,
the D.C. Circuit Court remanded to EPA the 1997 PM2.5
Implementation Rule. Natural Resources Defense Council (NRDC) v. EPA,
706 F.3d 428 (D.C. Cir. 2013). The D.C. Circuit Court found that EPA
erred in implementing the 1997 PM2.5 NAAQS pursuant to the
general implementation provisions of subpart 1 of Part D of Title I of
the CAA (subpart 1), rather than the particulate-matter-specific
provisions of subpart 4 of Part D of Title I (subpart 4).
Prior to the January 4, 2013 decision, states had worked towards
meeting the air quality goals of the 1997 annual PM2.5 NAAQS
in accordance with EPA regulations and guidance derived from subpart 1.
Subsequent to this decision, in rulemaking that responds to the D.C.
Circuit Court's remand, EPA took this history into account by proposing
to set a new deadline for any remaining submissions that may be
required for moderate nonattainment areas as a result of the Court's
decision regarding subpart 4. On June 2, 2014 (79 FR 31566), EPA
finalized the ``Identification of Nonattainment Classification and
Deadlines for Submission of SIP Provisions for the 1997
PM2.5 NAAQS and 2006 PM2.5 NAAQS'' rule (the
PM2.5 Subpart 4 Classification and Deadline Rule). The rule
identifies the classification under subpart 4 for areas currently
designated nonattainment for the 1997 annual and/or 2006 24-hour
PM2.5 standards and sets a new deadline for states to submit
attainment-related and other SIP elements required for these areas
pursuant to subpart 4. The rule also identifies EPA guidance that is
currently available regarding subpart 4 requirements. The
PM2.5 Subpart 4 Classification and Deadline Rule specifies
December 31, 2014 as the deadline for the states to submit any
additional attainment-related SIP-elements that may be needed to meet
the applicable requirements of subpart 4 for areas currently designated
nonattainment for the 1997 annual and/or 2006 24-hour PM2.5
NAAQS and to submit SIPs addressing the nonattainment NSR requirements
in subpart 4. Therefore, as explained in detail in the following
section, any additional attainment-related SIP elements that may be
needed for the Washington Area to meet the applicable requirements of
subpart 4 were not due at the time that the District, Maryland, and
Virginia submitted their redesignation requests for the Washington
Area. The District, Maryland, and Virginia submitted their requests for
redesignating the Washington Area for the 1997 annual PM2.5
NAAQS on June 3, 2013, July 10, 2013, and June 3, 2013 respectively.
2. Proposal on This Issue
EPA has considered the effect of the D.C. Circuit Court's January
4, 2013 ruling and the PM2.5 Subpart 4 Nonattainment
Classification and Deadline Rule on the Washington Area's redesignation
requests. In this proposed rulemaking action, EPA is proposing to
determine that the D.C. Circuit Court's January 4, 2013 decision does
not prevent EPA from redesignating the Washington Area to attainment.
Even in light of the D.C. Circuit Court's decision, redesignation for
the Area is appropriate under the CAA and EPA's longstanding
interpretations of the CAA provisions regarding redesignation. EPA
first explains its longstanding interpretation that requirements that
are imposed, or that become due, after a complete redesignation request
is submitted for an area that is attaining the standard, are not
applicable for purposes of evaluating a redesignation request. Second,
EPA then shows that, even if EPA applies the subpart 4 requirements to
the Washington Area redesignation requests and disregards the
provisions of its 1997 annual PM2.5 implementation rule
recently remanded by the D.C. Circuit Court, the States' requests for
redesignation of the Area still qualify for approval. EPA's discussion
takes into account the effect of the D.C. Circuit Court's ruling and
the proposed PM2.5 Subpart 4 Classification and Deadline
Rule on the Area's maintenance plan, which EPA views as approvable when
subpart 4 requirements are considered.
[[Page 45739]]
a. Applicable Requirements Under Subpart 4 for Purposes of Evaluating
the Washington Area's Redesignation Requests
With respect to the 1997 PM2.5 Implementation Rule, the
D.C. Circuit Court's January 4, 2013 ruling rejected EPA's reasons for
implementing the PM2.5 NAAQS solely in accordance with the
provisions of subpart 1, and remanded that matter to EPA, so that it
could address implementation of the 1997 annual PM2.5 NAAQS
under subpart 4, in addition to subpart 1. For the purposes of
evaluating the States' redesignation requests for the Washington Area,
to the extent that implementation under subpart 4 would impose
additional requirements for areas designated nonattainment, EPA
believes that those requirements are not ``applicable'' for the
purposes of CAA section 107(d)(3)(E), and thus EPA is not required to
consider subpart 4 requirements with respect to the redesignation of
the Washington Area. Under its longstanding interpretation of the CAA,
EPA has interpreted section 107(d)(3)(E) to mean, as a threshold
matter, that the part D provisions which are ``applicable'' and which
must be approved in order for EPA to redesignate an area include only
those which came due prior to a state's submittal of a complete
redesignation request. See 1992 Calcagni Memorandum. See also ``State
Implementation Plan (SIP) Requirements for Areas Submitting Requests
for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO)
National Ambient Air Quality Standards (NAAQS) on or after November 15,
1992,'' Memorandum from Michael Shapiro, Acting Assistant
Administrator, Air and Radiation, September 17, 1993 (Shapiro
memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459,
12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri,
(68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d
537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking
applying this interpretation and expressly rejecting Sierra Club's view
that the meaning of ``applicable'' under the statute is ``whatever
should have been in the plan at the time of attainment rather than
whatever actually was in the plan and already implemented or due at the
time of attainment'').\2\ In this case, at the time that States
submitted their redesignation requests, the requirements under subpart
4 were not due.
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\2\ Applicable requirements of the CAA that come due subsequent
to the area's submittal of a complete redesignation request remain
applicable until a redesignation is approved, but are not required
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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EPA's view that, for purposes of evaluating the redesignation of
the Washington Area, the subpart 4 requirements were not due at the
time the States submitted the redesignation requests is in keeping with
the EPA's interpretation of subpart 2 requirements for subpart 1 ozone
areas redesignated subsequent to the D.C. Circuit Court's decision in
South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir.
2006). In South Coast, the D.C. Circuit Court found that EPA was not
permitted to implement the 1997 8-hour ozone standard solely under
subpart 1, and held that EPA was required under the statute to
implement the standard under the ozone-specific requirements of subpart
2 as well. Subsequent to the South Coast decision, in evaluating and
acting upon redesignation requests for the 1997 8-hour ozone standard
that were submitted to EPA for areas under subpart 1, EPA applied its
longstanding interpretation of the CAA that ``applicable
requirements,'' for purposes of evaluating a redesignation, are those
that had been due at the time the redesignation request was submitted.
See, e.g., Proposed Redesignation of Manitowoc County and Door County
Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those
actions, EPA therefore did not consider subpart 2 requirements to be
``applicable'' for the purposes of evaluating whether the area should
be redesignated under section 107(d)(3)(E).
EPA's interpretation derives from the provisions of section
107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be
redesignated, a state must meet ``all requirements `applicable' to the
area under section 110 and part D.'' Section 107(d)(3)(E)(ii) provides
that the EPA must have fully approved the ``applicable'' SIP for the
area seeking redesignation. These two sections read together support
EPA's interpretation of ``applicable'' as only those requirements that
came due prior to submission of a complete redesignation request.
First, holding states to an ongoing obligation to adopt new CAA
requirements that arose after the state submitted its redesignation
request, in order to be redesignated, would make it problematic or
impossible for EPA to act on redesignation requests in accordance with
the 18-month deadline Congress set for EPA action in section
107(d)(3)(D). If ``applicable requirements'' were interpreted to be a
continuing flow of requirements with no reasonable limitation, states,
after submitting a redesignation request, would be forced continuously
to make additional SIP submissions that in turn would require EPA to
undertake further notice-and-comment rulemaking actions to act on those
submissions. This would create a regime of unceasing rulemaking that
would delay action on the redesignation request beyond the 18-month
timeframe provided by the CAA for this purpose.
Second, a fundamental premise for redesignating a nonattainment
area to attainment is that the area has attained the relevant NAAQS due
to emission reductions from existing controls. Thus, an area for which
a redesignation request has been submitted would have already attained
the NAAQS as a result of satisfying statutory requirements that came
due prior to the submission of the request. Absent a showing that
unadopted and unimplemented requirements are necessary for future
maintenance, it is reasonable to view the requirements applicable for
purposes of evaluating the redesignation request as including only
those SIP requirements that have already come due. These are the
requirements that led to attainment of the NAAQS. To require, for
redesignation approval, that a state also satisfy additional SIP
requirements coming due after the state submits its complete
redesignation request, and while EPA is reviewing it, would compel the
state to do more than is necessary to attain the NAAQS, without a
showing that the additional requirements are necessary for maintenance.
In the context of this redesignation, the timing and nature of the
D.C. Circuit Court's January 4, 2013 decision in NRDC v. EPA and EPA's
PM2.5 Subpart 4 Nonattainment Classification and Deadline
Rule compound the consequences of imposing requirements that come due
after the redesignation requests are submitted. The States submitted
their redesignation requests for the 1997 annual PM2.5 NAAQS
on June 3, 2013 and July 10, 2013, which is prior to the deadline by
which the Washington Area is required to meet the applicable
requirements pursuant to subpart 4.
To require the States' fully-completed and pending redesignation
requests for the 1997 annual PM2.5 NAAQS to comply now with
requirements of subpart 4 that the D.C. Circuit Court announced only in
January 2013 and for which the deadline to comply has not yet come,
would be to give retroactive effect to such requirements and provide
the States a unique and earlier deadline
[[Page 45740]]
for compliance solely on the basis of submitting their respective
redesignation requests for the Washington Area. The D.C. Circuit Court
recognized the inequity of this type of retroactive impact in Sierra
Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),\3\ where it upheld the
D.C. Circuit Court's ruling refusing to make retroactive EPA's
determination that the St. Louis area did not meet its attainment
deadline. In that case, petitioners urged the D.C. Circuit Court to
make EPA's nonattainment determination effective as of the date that
the statute required, rather than the later date on which EPA actually
made the determination. The D.C. Circuit Court rejected this view,
stating that applying it ``would likely impose large costs on States,
which would face fines and suits for not implementing air pollution
prevention plans . . . even though they were not on notice at the
time.'' Id. at 68. Similarly, it would be unreasonable to penalize the
States by rejecting their redesignation request for an area that is
already attaining the 1997 annual PM2.5 standard and that
met all applicable requirements known to be in effect at the time of
the requests. For EPA now to reject the redesignation requests solely
because the States did not expressly address subpart 4 requirements
which have not yet come due, would inflict the same unfairness
condemned by the D.C. Circuit Court in Sierra Club v. Whitman.
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\3\ Sierra Club v. Whitman was discussed and distinguished in a
recent D.C. Circuit Court decision that addressed retroactivity in a
quite different context, where, unlike the situation here, EPA
sought to give its regulations retroactive effect. National
Petrochemical and Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C.
Cir. 2010), rehearing denied 643 F.3d 958 (D.C. Cir. 2011), cert
denied 132 S. Ct. 571 (2011).
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b. Subpart 4 Requirements and Washington Area's Redesignation Request
Even if EPA were to take the view that the D.C. Circuit Court's
January 4, 2013 decision requires that, in the context of pending
redesignations for the 1997 annual PM2.5 standard, subpart 4
requirements were due and in effect at the time the States submitted
their redesignation requests, EPA proposes to determine that the
Washington Area still qualifies for redesignation to attainment for the
1997 annual PM2.5 standard. As explained subsequently, EPA
believes that the redesignation requests for the Washington Area,
though not expressed in terms of subpart 4 requirements, substantively
meets the requirements of that subpart for purposes of redesignating
the Area to attainment.
With respect to evaluating the relevant substantive requirements of
subpart 4 for purposes of redesignating the Washington Area, EPA notes
that subpart 4 incorporates components of subpart 1, which contains
general air quality planning requirements for areas designated as
nonattainment. See section 172(c). Subpart 4 itself contains specific
planning and scheduling requirements for coarse particulate matter
(PM10) \4\ nonattainment areas, and under the D.C. Circuit
Court's January 4, 2013 decision in NRDC. v. EPA, these same statutory
requirements also apply for PM2.5 nonattainment areas. EPA
has longstanding general guidance that interprets the 1990 amendments
to the CAA, making recommendations to states for meeting the statutory
requirements for SIPs for nonattainment areas. See the General
Preamble. In the General Preamble, EPA discussed the relationship of
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart
1 requirements were to an extent ``subsumed by, or integrally related
to, the more specific PM10 requirements'' (57 FR 13538,
April 16, 1992). The subpart 1 requirements include, among other
things, provisions for attainment demonstrations, RACM, RFP, emissions
inventories, and contingency measures.
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\4\ PM10 refers to particulates nominally 10
micrometers in diameter or smaller.
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For the purposes of these redesignation requests, in order to
identify any additional requirements which would apply under subpart 4,
consistent with EPA's April 25, 2014 PM2.5 Subpart 4
Nonattainment Classification and Deadline Rule, EPA is considering the
Washington Area to be a ``moderate'' PM2.5 nonattainment
area. As EPA explained in its April 25, 2014 rule, section 188 of the
CAA provides that all areas designated nonattainment areas under
subpart 4 are initially classified by operation of law as ``moderate''
nonattainment areas, and will remain moderate nonattainment areas
unless and until EPA reclassifies the area as a ``serious''
nonattainment area. Accordingly, EPA believes that it is appropriate to
limit the evaluation of the potential impact of subpart 4 requirements
to those that would be applicable to moderate nonattainment areas.
Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment
areas and include the following: (1) An approved permit program for
construction of new and modified major stationary sources (section
189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B));
(3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative
milestones demonstrating RFP toward attainment by the applicable
attainment date (section 189(c)).
The permit requirements of subpart 4, as contained in section
189(a)(1)(A), refer to and apply the subpart 1 permit provisions
requirements of sections 172 and 173 to PM10, without adding
to them. Consequently, EPA believes that section 189(a)(1)(A) does not
itself impose for redesignation purposes any additional requirements
for moderate areas beyond those contained in subpart 1.\5\ In any
event, in the context of redesignation, EPA has long relied on the
interpretation that a fully approved nonattainment NSR program is not
considered an applicable requirement for redesignation, provided the
area can maintain the standard with a prevention of significant
deterioration (PSD) program after redesignation. A detailed rationale
for this view is described in a memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, dated October 14, 1994, entitled,
``Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment.'' See also rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain,
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
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\5\ The potential effect of section 189(e) on section
189(a)(1)(A) for purposes of evaluating these redesignation requests
is discussed in this rulemaking action.
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With respect to the specific attainment planning requirements under
subpart 4,\6\ when EPA evaluates a redesignation request under either
subpart 1 or 4, any area that is attaining the PM2.5
standards is viewed as having satisfied the attainment planning
requirements for these subparts.
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\6\ I.e., attainment demonstration, RFP, RACM, milestone
requirements, contingency measures.
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For redesignations, EPA has for many years interpreted attainment-
linked requirements as not applicable for areas attaining the standard.
In the General Preamble, EPA stated that, ``The requirements for RFP
will not apply in evaluating a request for redesignation to attainment
since, at a minimum, the air quality data for the area must show that
the area has already attained. Showing that the State will make RFP
towards attainment will, therefore, have no meaning at that point.''
The General Preamble also explained that, ``[t]he section 172(c)(9)
[[Page 45741]]
requirements are directed at ensuring RFP and attainment by the
applicable date. These requirements no longer apply when an area has
attained the standard and is eligible for redesignation. Furthermore,
section 175A for maintenance plans . . . provides specific requirements
for contingency measures that effectively supersede the requirements of
section 172(c)(9) for these areas.'' Id. EPA similarly stated in its
1992 Calcagni Memorandum that, ``The requirements for reasonable
further progress and other measures needed for attainment will not
apply for redesignations because they only have meaning for areas not
attaining the standard.''
It is evident that even if we were to consider the D.C. Circuit
Court's January 4, 2013 decision in NRDC v. EPA to mean that
attainment-related requirements specific to subpart 4 should be imposed
retroactively \7\ or prior to December 31, 2014 and, thus, were due
prior to the States' redesignation requests, those requirements do not
apply to an area that is attaining the 1997 annual PM2.5
NAAQS, for the purpose of evaluating a pending request to redesignate
the area to attainment. EPA has consistently enunciated this
interpretation of applicable requirements under section 107(d)(3)(E)
since the General Preamble was published more than twenty years ago.
Courts have recognized the scope of EPA's authority to interpret
``applicable requirements'' in the redesignation context. See Sierra
Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
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\7\ As EPA has explained previously, we do not believe that the
D.C. Circuit Court's January 4, 2013 decision should be interpreted
so as to impose these requirements on the states retroactively.
Sierra Club v. Whitman, supra.
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Moreover, even outside the context of redesignations, EPA has
viewed the obligations to submit attainment-related SIP planning
requirements of subpart 4 as inapplicable for areas that EPA determines
are attaining the 1997 annual PM2.5 standard. EPA's prior
``Clean Data Policy'' rulemakings for the PM10 NAAQS, also
governed by the requirements of subpart 4, explain EPA's reasoning.
They describe the effects of a determination of attainment on the
attainment-related SIP planning requirements of subpart 4. See
``Determination of Attainment for Coso Junction Nonattainment Area,''
(75 FR 27944, May 19, 2010). See also Coso Junction Proposed
PM10 Redesignation, (75 FR 36023, 36027, June 24, 2010);
Proposed and Final Determinations of Attainment for San Joaquin
Nonattainment Area (71 FR 40952, 40954-55, July 19, 2006 and 71 FR
63641, 63643-47, October 30, 2006). In short, EPA in this context has
also long concluded that to require states to meet superfluous SIP
planning requirements is not necessary and not required by the CAA, so
long as those areas continue to attain the relevant NAAQS.
Elsewhere in this notice, EPA proposes to determine that the
Washington Area has attained and continues to attain the 1997 annual
PM2.5 NAAQS. Under its longstanding interpretation, EPA is
proposing to determine here that the Washington Area meets the
attainment-related plan requirements of subparts 1 and 4 for the 1997
annual PM2.5 NAAQS. Thus, EPA is proposing to conclude that
the requirements to submit an attainment demonstration under
189(a)(1)(B), a RACM determination under section 172(c)(1) and section
189(a)(1)(c), a RFP demonstration under 189(c)(1), and contingency
measure requirements under section 172(c)(9) are satisfied for purposes
of evaluating these redesignation requests.
c. Subpart 4 and Control of PM2.5 Precursors
The D.C. Circuit Court in NRDC v. EPA remanded to EPA the two rules
at issue in the case with instructions to EPA to re-promulgate them
consistent with the requirements of subpart 4. EPA in this section
addresses the D.C. Circuit Court's opinion with respect to
PM2.5 precursors. While past implementation of subpart 4 for
PM10 has allowed for control of PM10 precursors
such as NOX from major stationary, mobile, and area sources
in order to attain the standard as expeditiously as practicable,
section 189(e) of the CAA specifically provides that control
requirements for major stationary sources of direct PM10
shall also apply to PM10 precursors from those sources,
except where EPA determines that major stationary sources of such
precursors ``do not contribute significantly to PM10 levels
which exceed the standard in the area.''
EPA's 1997 PM2.5 Implementation Rule, remanded by the
D.C. Circuit Court, contained rebuttable presumptions concerning
certain PM2.5 precursors applicable to attainment plans and
control measures related to those plans. Specifically, in 40 CFR
51.1002, EPA provided, among other things, that a state was ``not
required to address VOC [and ammonia] as . . . PM2.5
attainment plan precursor[s] and to evaluate sources of VOC [and
ammonia] emissions in the State for control measures.'' EPA intended
these to be rebuttable presumptions. EPA established these presumptions
at the time because of uncertainties regarding the emission inventories
for these pollutants and the effectiveness of specific control measures
in various regions of the country in reducing PM2.5
concentrations. EPA also left open the possibility for such regulation
of VOC and ammonia in specific areas where that was necessary.
The D.C. Circuit Court in its January 4, 2013 decision made
reference to both section 189(e) and 40 CFR 51. 1002, and stated that,
``In light of our disposition, we need not address the petitioners'
challenge to the presumptions in [40 CFR 51.1002] that volatile organic
compounds and ammonia are not PM2.5 precursors, as subpart 4
expressly governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
Elsewhere in the D.C. Circuit Court's opinion, however, the D.C.
Circuit Court observed ``Ammonia is a precursor to fine particulate
matter, making it a precursor to both PM2.5 and
PM10. For a PM10 nonattainment area governed by
subpart 4, a precursor is presumptively regulated. See 42 U.S.C.
7513a(e) [section 189(e)].'' Id. at 21, n.7.
For a number of reasons, EPA believes that its proposed
redesignation of the Washington Area for the 1997 annual
PM2.5 NAAQS is consistent with the D.C. Circuit Court's
decision on this aspect of subpart 4. While the D.C. Circuit Court,
citing section 189(e), stated that ``for a PM10 area
governed by subpart 4, a precursor is `presumptively regulated,''' the
D.C. Circuit Court expressly declined to decide the specific challenge
to EPA's 1997 PM2.5 Implementation Rule provisions regarding
ammonia and VOC as precursors. The D.C. Circuit Court had no occasion
to reach whether and how it was substantively necessary to regulate any
specific precursor in a particular PM2.5 nonattainment area,
and did not address what might be necessary for purposes of acting upon
a redesignation request.
However, even if EPA takes the view that the requirements of
subpart 4 were deemed applicable at the time the state submitted the
redesignation request, and disregards the 1997 PM2.5
Implementation Rule's rebuttable presumptions regarding ammonia and VOC
as PM2.5 precursors, the regulatory consequence would be to
consider the need for regulation of all precursors from any sources in
the area to demonstrate attainment and to apply the section 189(e)
provisions to major stationary sources of precursors. In the case of
the Washington Area, EPA believes that doing so is consistent with
proposing redesignation of the Area for the 1997 annual
PM2.5 standard. The Washington Area has attained the 1997
[[Page 45742]]
annual PM2.5 standard without any specific additional
controls of VOC and ammonia emissions from any sources in the Area.
Precursors in subpart 4 are specifically regulated under the
provisions of section 189(e), which requires, with important
exceptions, control requirements for major stationary sources of
PM10 precursors.\8\ Under subpart 1 and EPA's prior
implementation rule, all major stationary sources of PM2.5
precursors were subject to regulation, with the exception of ammonia
and VOC. Thus, EPA must address here whether additional controls of
ammonia and VOC from major stationary sources are required under
section 189(e) of subpart 4 in order to redesignate the Washington Area
for the 1997 annual PM2.5 NAAQS. As explained subsequently,
EPA does not believe that any additional controls of ammonia and VOC
are required in the context of these redesignations.
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\8\ Under either subpart 1 or subpart 4, for purposes of
demonstrating attainment as expeditiously as practicable, a state is
required to evaluate all economically and technologically feasible
control measures for direct PM emissions and precursor emissions,
and adopt those measures that are deemed reasonably available.
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In the General Preamble, EPA discusses its approach to implementing
section 189(e). See 57 FR 13538-13542. With regard to precursor
regulation under section 189(e), the General Preamble explicitly stated
that control of VOC under other CAA requirements may suffice to relieve
a state from the need to adopt precursor controls under section 189(e).
See 57 FR 13542. EPA in this rulemaking action proposes to determine
that the States' SIPs have met the provisions of section 189(e) with
respect to ammonia and VOC as precursors. This proposed determination
is based on our findings that: (1) The Washington Area contains no
major stationary sources of ammonia; and (2) existing major stationary
sources of VOC are adequately controlled under other provisions of the
CAA regulating the ozone NAAQS.\9\ In the alternative, EPA proposes to
determine that, under the express exception provisions of section
189(e), and in the context of the redesignation of the Washington Area,
which is attaining the 1997 annual PM2.5 standard, at
present ammonia and VOC precursors from major stationary sources do not
contribute significantly to levels exceeding the 1997 annual
PM2.5 standard in the Area. See 57 FR 13539-42.
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\9\ The Washington Area has reduced VOC emissions through the
implementation of various control programs including VOC Reasonably
Available Control Technology (RACT) regulations and various onroad
and nonroad motor vehicle control programs.
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EPA notes that its 1997 PM2.5 Implementation Rule
provisions in 40 CFR 51.1002 were not directed at evaluation of
PM2.5 precursors in the context of redesignation, but at SIP
plans and control measures required to bring a nonattainment area into
attainment for the 1997 annual PM2.5 NAAQS. By contrast,
redesignation to attainment primarily requires the nonattainment area
to have already attained due to permanent and enforceable emission
reductions, and to demonstrate that controls in place can continue to
maintain the standard. Thus, even if we regard the D.C. Circuit Court's
January 4, 2013 decision as calling for ``presumptive regulation'' of
ammonia and VOC for PM2.5 under the attainment planning
provisions of subpart 4, those provisions in and of themselves do not
require additional controls of these precursors for an area that
already qualifies for redesignation. Nor does EPA believe that
requiring the States to address precursors differently than they have
already, would result in a substantively different outcome.
Although, as EPA has emphasized, its consideration here of
precursor requirements under subpart 4 is in the context of a
redesignation to attainment, EPA's existing interpretation of subpart 4
requirements with respect to precursors in attainment plans for
PM10 contemplates that states may develop attainment plans
that regulate only those precursors that are necessary for purposes of
attainment in the area in question, i.e., states may determine that
only certain precursors need be regulated for attainment and control
purposes.\10\ Courts have upheld this approach to the requirements of
subpart 4 for PM10.\11\ EPA believes that application of
this approach to PM2.5 precursors under subpart 4 is
reasonable. Because the Washington Area has already attained the 1997
annual PM2.5 NAAQS with its current approach to regulation
of PM2.5 precursors, EPA believes that it is reasonable to
conclude in the context of this redesignation that there is no need to
revisit the attainment control strategy with respect to the treatment
of precursors. Even if the D.C. Circuit Court's decision is construed
to impose an obligation, in evaluating these redesignation requests, to
consider additional precursors under subpart 4, it would not affect
EPA's approval here of the States' requests for redesignation of the
Washington Area for the 1997 annual PM2.5 NAAQS. In the
context of a redesignation, the Area has shown that it has attained the
standard. Moreover, the States have shown and EPA is proposing to
determine that attainment of the 1997 annual PM2.5 NAAQS in
the Area is due to permanent and enforceable emissions reductions on
all precursors necessary to provide for continued attainment of the
standard (see section V.A.3 of this rulemaking notice). It follows
logically that no further control of additional precursors is
necessary. Accordingly, EPA does not view the January 4, 2013 decision
of the D.C. Circuit Court as precluding redesignation of the Washington
Area to attainment for the 1997 annual PM2.5 NAAQS at this
time. In summary, even if, prior to the date of the redesignation
request submittal, the States were required to address precursors for
the Washington Area under subpart 4 rather than under subpart 1, as
interpreted in EPA's remanded 1997 PM2.5 Implementation
Rule, EPA would still conclude that the Washington Area had met all
applicable requirements for purposes of redesignation in accordance
with section 107(d)(3(E)(ii) and (v).
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\10\ See, e.g., ``Approval and Promulgation of Implementation
Plans for California--San Joaquin Valley PM10
Nonattainment Area; Serious Area Plan for Nonattainment of the 24-
Hour and Annual PM10 Standards,'' (69 FR 30006, May 26,
2004) (approving a PM10 attainment plan that impose
controls on direct PM10 and NOX emissions and
did not impose controls on SO2, VOC, or ammonia
emissions).
\11\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423
F.3d 989 (9th Cir. 2005).
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V. EPA's Analysis of the States' SIP Submittals
EPA is proposing several rulemaking actions for the Washington
Area: (1) To redesignate the Area to attainment for the 1997 annual
PM2.5 NAAQS; (2) to approve into the District, Maryland and
Virginia SIPs the associated maintenance plan for the 1997 annual
PM2.5 NAAQS; and (3) to approve the 2017 and 2025
PM2.5 and NOX MVEBs for the Washington Area for
transportation conformity purposes. EPA's proposed approvals of the
redesignation request and maintenance plan for the 1997 annual
PM2.5 NAAQS are based upon EPA's determination that the Area
continues to attain the 1997 annual PM2.5 NAAQS, which EPA
is proposing in this rulemaking action, and that all other
redesignation criteria have been met for the Washington Area. The
following is a description of how the States' submittals satisfy the
requirements of sections 107(d)(3)(E) and 175A of the CAA for the 1997
annual PM2.5 NAAQS for the Washington Area.
[[Page 45743]]
A. Requests for Redesignation
1. Attainment of the 1997 Annual PM2.5 NAAQS
EPA has previously determined that the Washington Area has attained
the 1997 annual PM2.5 NAAQS. As noted earlier, on January
12, 2009 (74 FR 1146), EPA determined that the entire Washington Area
had attained the 1997 annual PM2.5 standard, based on 2004-
2006 and 2005-2007 quality-assured, quality-controlled, and certified
ambient air quality monitoring data. Pursuant to 40 CFR 51.2004(c),
this ``clean data'' determination for the Area suspended the
requirements for each of the States to submit for their jurisdiction of
the Washington Area an attainment demonstration and associated RACM, a
RFP plan, contingency measures, and other planning SIPs related to the
attainment of the 1997 annual PM2.5 NAAQS until the Area is
redesignated to attainment for the standard or EPA determines that the
Area has again violated the standard, at which time such plans are
required to be submitted. Then, on January 10, 2012 (77 FR 1411), EPA
determined, pursuant to section 179(c), that the entire Washington Area
had attained the 1997 annual PM2.5 NAAQS by its statutory
attainment date of April 5, 2010. This determination was based on 2007-
2009 quality-assured, quality-controlled, and certified ambient air
quality monitoring data. The basis and effect of these determinations
of attainment for the 1997 annual PM2.5 NAAQS were discussed
in the proposed (73 FR 62945, October 22, 2008 and 76 FR 68378,
November 4, 2011) and final rulemaking notices (74 FR 1146, January 12,
2009 and 77 FR 1411, January 10, 2012) for each action.
The States' redesignation request submittals included the historic
monitoring data for the annual PM2.5 monitoring sites in the
Washington Area. The historic monitoring data shows that the Washington
Area has attained and continues to attain the 1997 annual
PM2.5 NAAQS. The States assure that all PM2.5
monitoring data for the Washington Area has been quality-assured,
quality-controlled, and certified by the States in accordance with 40
CFR 58.10. Furthermore, EPA has thoroughly reviewed the most recent
ambient air quality monitoring data for PM2.5 in the Area,
as submitted by the States and recorded in EPA's Air Quality System
(AQS). The PM2.5 quality-assured, quality-controlled, and
state-certified 2008-2012 air quality data shows that the Washington
Area continues to attain the 1997 annual PM2.5 NAAQS. The
Area's PM2.5 annual design values for the 2008-2010, 2009-
2011, and 2010-2012 monitoring periods as well as preliminary data for
2013 are provided in Table 1.
Table 1--Washington Area's 2008-2012 Annual Design Values and 2013 Preliminary Monitoring Data for the 1997 Annual PM2.5 NAAQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual design values
Monitor site ID Location ------------------------------------------------------------ Preliminary 2013
2008-2010 2009-2011 2010-2012 data *
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11-001-0041............................... Washington, DC.............. 11.2 10.6 10.4 9.1
11-001-0042............................... Washington, DC.............. 11.2 10.5 10.3 8.5
11-001-0043............................... Washington, DC.............. 10.8 10.3 10.1 9.5
24-031-3001............................... Montgomery County, Maryland. 10.3 10.2 10.5 7.7
24-033-0025............................... Prince George's County, 11.5 10.8 10.8 **
Maryland.
24-033-0030............................... Prince George's County, 10.0 10.8 10.8 8.8
Maryland.
24-033-8003............................... Prince George's County, 9.9 9.1 8.8 8.1
Maryland.
51-013-0020............................... Arlington County, Virginia.. 10.8 10.1 9.9 8.7
51-059-0030............................... Fairfax County, Virginia.... 10.3 9.6 9.3 8.1
51-107-1005............................... Loudoun County, Virginia.... 10.3 9.5 9.5 8.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: EPA AQS Preliminary Design Value Reports (AMP480) dated March 18, 2014, available in the docket for this rulemaking action.
Notes: * Corresponds to quality-assured, quality-controlled available monitoring data up to date for 2013. ** Monitoring site 24-033-0025 in
Bladensburg, Maryland was permanently shutdown on December 30, 2011.
The Washington Area's recent monitoring data supports EPA's
previous determinations that the Area has attained the 1997 annual
PM2.5 NAAQS. In addition, as discussed subsequently with
respect to the Washington Area's maintenance plan, the States have
committed to continue monitoring ambient PM2.5
concentrations in accordance with 40 CFR part 58. Thus, EPA is
proposing to determine that the Washington Area continues to attain the
1997 annual PM2.5 NAAQS.
2. The States Have Met All Applicable Requirements Under Section 110
and Part D of the CAA and Have Fully Approved SIPs Under Section 110(k)
for the Washington Area
In accordance with section 107(d)(3)(E)(v) of the CAA, the SIP for
the 1997 annual PM2.5 standard for each of the jurisdictions
of the Washington Area must be fully approved under section 110(k) and
all the requirements applicable to the Area under section 110 of the
CAA (general SIP requirements) and part D of Title I of the CAA (SIP
requirements for nonattainment areas) must be met.
a. Section 110 General SIP Requirements
Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control measures, means, or techniques, provisions for the
establishment and operation of appropriate devices necessary to collect
data on ambient air quality, and programs to enforce the limitations.
The general SIP elements and requirements set forth in section
110(a)(2) include, but are not limited to the following: (1) A SIP
submittal that has been adopted by the state after reasonable public
notice and hearing; (2) provisions for establishment and operation of
appropriate procedures needed to monitor ambient air quality; (3)
implementation of a source permit program; provisions for the
implementation of Part C requirements (PSD); (4) provisions for the
implementation of Part D requirements for NSR permit programs; (5)
provisions for air pollution modeling; and (6) provisions for public
and local agency participation in planning and emission control rule
development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain certain
measures to prevent sources in a state from significantly contributing
to air quality problems in another state. To implement this provision
for various NAAQS, EPA has required certain states
[[Page 45744]]
to establish programs to address transport of air pollutants in
accordance with the NOX SIP Call (63 FR 57356, October 27,
1998), amendments to the NOX SIP Call (64 FR 26298, May 14,
1999 and 65 FR 11222, March 2, 2000), and CAIR (70 FR 25162, May 12,
2005). However, section 110(a)(2)(D) requirements for a state are not
linked with a particular nonattainment area's designation and
classification in that state. EPA believes that the requirements linked
with a particular nonattainment area's designation and classifications
are the relevant measures to evaluate in reviewing a redesignation
request. The transport SIP submittal requirements, where applicable,
continue to apply to a state regardless of the designation of any one
particular area in the state. Thus, EPA does not believe that these
requirements are applicable requirements for purposes of redesignation.
In addition, EPA believes that the other section 110(a)(2) elements
not connected with nonattainment plan submissions and not linked with
an area's attainment status are not applicable requirements for
purposes of redesignation. The Washington Area will still be subject to
these requirements after it is redesignated. EPA concludes that the
section 110(a)(2) and part D requirements which are linked with a
particular area's designation and classification are the relevant
measures to evaluate in reviewing a redesignation request, and that
section 110(a)(2) elements not linked to the area's nonattainment
status are not applicable for purposes of redesignation. This approach
is consistent with EPA's existing policy on applicability of conformity
(i.e., for redesignations) and oxygenated fuels requirement. See
Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174,
October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain,
Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida,
final rulemaking (60 FR 62748, December 7, 1995). See also, the
discussion on this issue in the Cincinnati, Ohio redesignation (65 FR
at 37890, June 19, 2000), and in the Pittsburgh-Beaver Valley,
Pennsylvania redesignation (66 FR at 53099, October 19, 2001).
EPA has reviewed the States' SIPs and has concluded that they all
meet the general SIP requirements under section 110(a)(2) of the CAA to
the extent they are applicable for purposes of redesignation. EPA has
previously approved provisions of the States' SIPs addressing section
110(a)(2) requirements, including provisions addressing
PM2.5. See (76 FR 20237, April 4, 2011 for the District; 76
FR 62635, October 11, 2011 for Virginia; and 76 FR 72624, November 25,
2011 for Maryland). These requirements are, however, statewide
requirements that are not linked to the PM2.5 nonattainment
status of the Washington Area. Therefore, EPA believes that these SIP
elements are not applicable requirements for purposes of reviewing the
States' redesignation requests for the 1997 annual PM2.5
NAAQS for the Washington Area.
b. Subpart 1 Requirements
Subpart 1 sets forth the basic nonattainment plan requirements
applicable to PM2.5 nonattainment areas. Under section 172,
states with nonattainment areas must submit plans providing for timely
attainment and must meet a variety of other requirements. The General
Preamble discusses the evaluation of these requirements in the context
of EPA's consideration of a redesignation request. The General Preamble
sets forth EPA's view of applicable requirements for purposes of
evaluating redesignation requests when an area is attaining the
standard. See (57 FR 13498, April 16, 1992).
On April 3, 2008, April 4, 2008, and April 8, 2008, Maryland, the
District, and Virginia, respectively, submitted separately an
attainment plan for their respective portions of the Washington Area
for the 1997 annual PM2.5 NAAQS. As noted previously, on
January 12, 2009 (74 FR 1146), EPA determined that the entire
Washington Area had attained the 1997 annual PM2.5 standard,
based on 2004-2006 and 2005-2007 quality-assured, quality-controlled,
and certified ambient air quality monitoring data. Pursuant to 40 CFR
51.2004(c), upon EPA's clean data determination for the Area, the
requirements for each of the States to submit for their jurisdiction of
the Washington Area an attainment demonstration and associated RACM, a
RFP plan, contingency measures, and other planning SIPs related to the
attainment of the 1997 annual PM2.5 NAAQS were suspended
until the Area is redesignated to attainment for the standard or EPA
determines that the Area has again violated any of the standards, at
which time such plans are required to be submitted. Thus, because
attainment has been reached for the Area for the 1997 annual
PM2.5 NAAQS and the Area continues to attain the standard,
no additional measures are needed to provide for attainment. Therefore,
the requirements of section 172(c)(1), 172(c)(2), 172(c)(6), and
172(c)(9) are no longer considered to be applicable for purposes of
redesignation of the Washington Area for this standard.
The requirement under section 172(c)(3) for each State was not
suspended by EPA's clean data determination for the 1997 annual
PM2.5 NAAQS for the Washington Area. Section 172(c)(3) of
the CAA requires submission of a comprehensive, accurate, and current
inventory of actual emissions. For purposes of the PM2.5
NAAQS, this emissions inventory should address not only direct
emissions of PM2.5, but also emissions of all precursors
with the potential to participate in PM2.5 formation, i.e.,
SO2, NOX, VOC, and ammonia. In October 2012, EPA
approved in separate rulemaking actions the 2002 emissions inventories
submitted by the States with each of the attainment plans for the 1997
annual PM2.5 NAAQS to satisfy the requirements of section
172(c)(3) for the Washington Area. See (77 FR 60626, October 4, 2012
for Virginia; 77 FR 61513, October 10, 2012 for Maryland; and 77 FR
65630, October 30, 2012 for the District). The 2002 comprehensive
emissions inventories for the 1997 annual PM2.5 standard
submitted by the States with their respective attainment plans for the
Washington Area included emissions estimates that cover the general
source categories of point sources, area sources, onroad mobile
sources, and nonroad mobile sources for each of the jurisdictions in
the Area. The pollutants that comprise the States' 2002 emissions
inventories for the Area are PM2.5, NOX,
SO2, VOC, and ammonia. An evaluation for each submittal of
the States' 2002 comprehensive emissions inventories for the Washington
Area is provided in the Technical Support Documents (TSDs) prepared by
EPA for the separate rulemaking actions. See Docket ID No. EPA-R03-OAR-
2010-0152 (District), EPA-R03-OAR-2010-0140 (Maryland), and EPA-R03-
OAR-2010-0151 (Virginia).
Section 172(c)(4) of the CAA requires the identification and
quantification of allowable emissions for major new and modified
stationary sources in an area, and section 172(c)(5) requires source
permits for the construction and operation of new and modified major
stationary sources anywhere in the nonattainment area. EPA has
determined that, since PSD requirements will apply after redesignation,
areas being redesignated need not comply with the requirement that a
nonattainment NSR program be approved prior to redesignation, provided
that the area demonstrates maintenance of the NAAQS without
[[Page 45745]]
part D NSR. A more detailed rationale for this view is described in a
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, entitled, ``Part D New Source Review
Requirements for Areas Requesting Redesignation to Attainment.''
Maryland and Virginia have SIP-approved PSD programs in place which
will regulate major new and modified stationary sources of
PM2.5 in the Washington Area. See (77 FR 45949, August 2,
2012, for Maryland and 79 FR 10377, February 25, 2014, for Virginia).
Maryland and Virginia's PSD programs for PM2.5 will become
effective in the Washington Area upon redesignation to attainment. The
District lacks a SIP-approved PSD program; however it is subject to a
Federal Implementation Plan (FIP) which incorporates EPA's PSD
permitting requirements of 40 CFR 51.21 into the District's SIP. See 40
CFR 52.499.
Section 172(c)(7) of the CAA requires the SIP to meet the
applicable provisions of section 110(a)(2). As noted previously, EPA
finds the States' SIPs meet the requirements of section 110(a)(2) that
are applicable for purposes of redesignation.
Section 175A requires a state seeking redesignation to attainment
to submit a SIP revision to provide for the maintenance of the NAAQS in
the area ``for at least 10 years after the redesignation.'' In
conjunction with the redesignation requests for the Washington Area,
the States submitted a common maintenance plan to show continued
attainment of the 1997 annual PM2.5 NAAQS in the Washington
Area for at least 10 years after redesignation, throughout 2025. The
States are requesting that EPA approve this plan as a revision to each
of their SIPs to meet the requirement of CAA section 175A. Once
approved, the Washington Area's maintenance plan will ensure that the
States SIPs meet the requirements of the CAA regarding maintenance of
the 1997 annual PM2.5 NAAQS for the Area. EPA's analysis of
the maintenance plan is provided in section V.B. of this rulemaking
action.
Section 176(c) of the CAA requires states to establish criteria and
procedures to ensure that Federally supported or funded projects
conform to the air quality planning goals in the applicable SIP. The
requirement to determine conformity applies to transportation plans,
programs, and projects that are developed, funded or approved under
title 23 of the United States Code (U.S.C.) and the Federal Transit Act
(transportation conformity) as well as to all other Federally supported
or funded projects (general conformity). State transportation
conformity SIP revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement and enforceability
which EPA promulgated pursuant to its authority under the CAA. EPA
interprets the conformity SIP requirements as not applying for purposes
of evaluating a redesignation request under CAA section 107(d) because
state conformity rules are still required after redesignation, and
Federal conformity rules apply where state rules have not been
approved. See Wall v. EPA, 265 F. 3d 426 (6th Cir. 2001) (upholding
this interpretation) and (60 FR 62748, December 7, 1995) (discussing
Tampa, Florida). Thus, for purposes of redesignating to attainment the
Washington Area for the 1997 annual PM2.5 NAAQS, EPA
determines that the States have met all the applicable SIP requirements
under part D of Title I of the CAA.
c. The States Have Fully Approved Applicable SIPs Under Section 110(k)
of the CAA
For purposes of redesignation to attainment for the 1997 annual
PM2.5 NAAQS, EPA has fully approved all applicable
requirements of the States SIPs for the Washington Area in accordance
with section 110(k) of the CAA.
3. Permanent and Enforceable Reductions in Emissions
For redesignating a nonattainment area to attainment, section
107(d)(3)(E)(iii) requires EPA to determine that the air quality
improvement in the area is due to permanent and enforceable reductions
in emissions resulting from implementation of the SIP and applicable
Federal air pollution control regulations and other permanent and
enforceable reductions. In making this demonstration, the States have
considered changes in emissions between 2002, a year showing
nonattainment for the 1997 annual PM2.5 standard in the
Washington Area, and 2007, one of the years for which the Washington
Area monitored attainment for the standard. A summary of the emissions
reductions for PM2.5, NOX, SO2, VOC,
and ammonia from 2002 to 2007 for the Washington Area is provided in
Table 2.
Table 2--Comparison of 2002 Nonattainment Year and 2007 Attainment Year Emissions Inventories for the Washington Area, in Tons Per Year (tpy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emissions (tpy)
Location Year -------------------------------------------------------------------------------
PM2.5 SO2 NOX VOC Ammonia
--------------------------------------------------------------------------------------------------------------------------------------------------------
District portion.......................... 2002........................ 1,077 3,597 15,401 15,877 407
2007........................ 1,691 2,156 13,148 1,508 381
Changes..................... 614 -1,441 -2,253 -14,369 -26
Maryland portion.......................... 2002........................ 12,825 169,789 109,041 98,626 5,174
2007........................ 12,088 178,827 91,272 11,397 4,021
Changes..................... -737 9,038 -17,769 -87,229 -1,153
Virginia portion.......................... 2002........................ 8,277 49,975 75,910 92,725 2,371
2007........................ 6,944 10,457 60,826 12,153 1,802
Changes..................... -1,333 -39,518 -15,084 -80,572 -569
Washington Area........................... 2002........................ 22,179 235,165 188,548 207,228 7,952
2007........................ 20,724 191,441 165,247 25,058 6,204
Changes..................... -1,455 -43,724 -23,301 -182,170 -1,748
--------------------------------------------------------------------------------------------------------------------------------------------------------
As explained earlier, the States submitted their 2002 emissions
inventories with their respective attainment plans for the 1997 annual
PM2.5 NAAQS, which EPA approved in their SIPs to satisfy the
requirement of section 172(c)(3) for the Washington Area. See (77 FR
60626, October 4, 2012 for Virginia; 77 FR 61513, October 10,
[[Page 45746]]
2012 for Maryland; and 77 FR 65630, October 30, 2012 for the District).
An evaluation for each submittal of the States' 2002 comprehensive
emissions inventories for the Washington Area is provided in the
Technical Support Documents (TSDs) prepared by EPA for the separate
rulemaking actions. See Docket ID No. EPA-R03-OAR-2010-0152 (District),
EPA-R03-OAR-2010-0140 (Maryland), and EPA-R03-OAR-2010-0151 (Virginia).
The 2007 emissions inventories were provided as part of the States'
redesignation requests and maintenance plan submittals, and then were
supplemented by the States to include emissions estimates of ammonia
and VOC. EPA has evaluated the 2007 emissions inventories as part of
this rulemaking action. EPA's analysis of the 2007 emissions
inventories is provided in the TSD dated March 17, 2014, available in
the docket for this rulemaking action at www.regulations.gov.
The reduction in emissions and the corresponding improvement in air
quality from 2002 to 2007 in the Washington Area can be attributed to a
number of State and Federal control measures that have been implemented
by the States in recent years. Point source emissions of
PM2.5, SO2, and NOX are dominated in
the Washington Area by the emissions from power plants (i.e.,
stationary sources containing electric generating units (EGUs)). There
are six power plants located in the Washington Area: (1) The Possum
Point Power Station in Fairfax, Virginia; (2) the Potomac River Power
Station in Alexandria, Virginia; (3) the Chalk Point Generating Plant,
in Prince George's County, Maryland; (4) the Dickerson Generating
Plant, in Montgomery County, Maryland; (5) the Morgantown Generating
Plant, in Charles County, Maryland; and (6) the Benning Road Generating
Station in the District.
Significant improvement in the Washington Area's air quality is due
to permanent emissions reductions resulting from EGUs as a result of
two Federal consent orders. A Federal consent decree with the Virginia
Electric and Power Company (VEPCO), signed on April 17, 2003, required
two boilers (units 3 and 4) in the Possum Point Power Station in
Fairfax, Virginia to switch from burning coal to natural gas and to
limit their combined emissions of NOX by May 2003. The
consent decree established a combined emissions limit of 219 tons of
NOX in any 365 days, rolled daily. The required control
measures resulted in significant emissions reductions of NOX
and SO2, as summarized in Table 3. This requirement was
codified in a Federally enforceable permit issued by VADEQ on October
5, 2001, under the SIP-approved provisions of Article 8 and 9 of 9VAC5
Chapter 80 (Permits for Stationary Sources).
Table 3--Reductions of NOX and SO2 Emissions From 2002 to 2007 in the Possum Point Power Station
----------------------------------------------------------------------------------------------------------------
2002 Emissions (tpy) 2007 Emissions (tpy) Emissions reductions (%)
Unit ID -----------------------------------------------------------------------------
SO2 NOX SO2 NOX SO2 NOX
----------------------------------------------------------------------------------------------------------------
3................................. 6,228 1,582 0 39 100 97.53
4................................. 10,975 2,349 1 111 99.99 95.27
-----------------------------------------------------------------------------
Total......................... 17,203 3,931 1 150 99.99 96.18
----------------------------------------------------------------------------------------------------------------
Additionally, in a joint Federal-State consent order, Mirant Mid-
Atlantic agreed to significantly reduce emissions in four of the power
plants located in the Washington Area: Chalk Point Generating Plant,
Dickerson Generating Plant, Morgantown Generating Plant, and Potomac
River Generating Station. Reductions of NOX emissions
resulting from the consent decree are summarized in Table 4.
Table 4--Reductions of NOX Emissions From 2002 to 2007 in the Mirant Mid-Atlantic Facilities in the Washington
Area
----------------------------------------------------------------------------------------------------------------
2002 NOX Emissions 2007 NOX Emissions Emissions
---------------------------------------------------- reduction
Pounds per ------------
million
Facility Unit ID British
thermal tpy lbs/MMBTU tpy Percentage
units (lbs/ (%)
MMBTU)
----------------------------------------------------------------------------------------------------------------
Chalk Point....................... 1 0.562 6,337 0.446 4,885 22.9
2 0.560 6,755 0.450 4,835 28.4
3 0.156 846 0.136 538 36.4
4 0.169 1,169 0.128 426 63.6
Dickerson......................... 1 0.466 2,121 0.343 1,645 22.5
2 0.498 2,444 0.334 1,644 32.7
3 0.471 2,661 0.338 1,658 37.7
Morgantown........................ 1 0.504 10,014 0.191 3,097 69.0
2 0.501 8,605 0.360 6,321 26.5
Potomac River..................... 1 0.379 759 0.326 483 36.3
2 0.416 789 0.287 444 43.7
3 0.418 1,545 0.254 412 73.4
4 0.415 1,443 0.234 481 66.6
5 0.398 1,474 0.245 516 65.0
-----------------------------------------------------------------------------
Total......................... ........... ........... 46,962 ........... 27,386 42.7
----------------------------------------------------------------------------------------------------------------
[[Page 45747]]
Additionally, a variety of Federal vehicle control programs have
contributed to reduced onroad emissions of PM2.5,
NOX, and SO2 in the Washington Area between 2002
and 2007. EPA's Federal Tier 1 New Vehicle Emission and New Federal
Evaporative Emission Standards Rule established motor vehicle emission
standards, which were phased in beginning with model year 1994. See 40
CFR 86, subpart A. The benefits of this program are reflected in the
2002 base year and the 2007 attainment year emissions inventories. This
Federally implemented program affects light duty vehicles and light
duty trucks. The regulations require more stringent exhaust emission
standards as well as a uniform level of evaporative emission controls.
Under the National Low Emission Vehicle Program, automobile
manufacturers agreed to comply with tailpipe standards that were more
stringent than EPA could mandate prior to model year 2004. See 40 CFR
86, subpart R. The program was in place nationwide for model year 2001,
and the benefits of this program are reflected in the 2002 base year
and the 2007 attainment year emissions inventories.
The Tier 2 Motor Vehicle Emission Rule was promulgated by EPA on
February 10, 2000 (65 FR 6698) and requires more stringent tailpipe
emissions standards for all passenger vehicles, including sport utility
vehicles, minivans, vans, and pick-up trucks. This rule also requires
lower levels of sulfur in gasoline, which ensured the effectiveness of
low emission control technologies in vehicles and reduced harmful air
pollution. The tailpipe standards required passenger vehicles to be 77
to 95 percent cleaner than those built before the rule was promulgated
and the sulfur standards reduced the sulfur content of gasoline up to
90 percent by 2006. The benefits of this program are reflected in the
2007 attainment year emissions inventory.
The Heavy Duty Diesel Engine Rules are Federal rules that required
truck manufacturers to comply with more stringent tailpipe standards by
2004 (65 FR 59896, October 6, 2000) and 2007 (66 FR 5002, January 18,
2001). The 2007 rule also mandated use of ultra-low sulfur diesel fuel
to enable modern pollution control technology on trucks and buses.
Refineries began producing the cleaner-burning diesel fuel for use in
highway vehicles beginning June 1, 2006. The benefits of this program
are reflected in the 2007 attainment year emissions inventory.
The States have implemented enhanced vehicle emissions inspection
and maintenance (enhanced I/M) programs. See 64 FR 31498 (June 11,
1999) for the District; 64 FR 58340, (October 29, 1999) for Maryland;
and 64 FR 47670 (September 1, 1999) for Virginia. These regional I/M
programs are stricter than the basic programs, as required under
sections 182 and 202 of the CAA. Enhanced I/M procedures include the
use of On Board Diagnostic (OBD) system evaluations, a wider range of
vehicles tested, and may include a dynamometer (treadmill) test that
checks the car's emissions under driving conditions. The benefits of
these I/M programs are reflected in the 2002 base year and the 2007
attainment year emissions inventories.
The reductions in emissions from the onroad sector between 2002 and
2007 are presented in Table 5. These emissions estimates were derived
using the Motor Vehicle Emissions Simulator (MOVES2010a) and the most
recent planning assumptions as provided by the Metropolitan Washington
Council of Governments, Transportation Planning Board (MWCOG/TBP).
Table 5--Changes in Onroad Mobile Emissions of Direct PM2.5 and Precursors From 2002 to 2007 in the Washington Area, in tpy
--------------------------------------------------------------------------------------------------------------------------------------------------------
Emissions (tpy)
Location Year ----------------------------------------------------------------------------------------------
PM2.5 SO2 NOX VOC Ammonia
--------------------------------------------------------------------------------------------------------------------------------------------------------
District portion.................. 2002................. 156 376 8,827 4,913 383
2007................. 272 68 7,512 3,362 195
Changes.............. 116 -308 -1315 -1551 -188
Maryland portion.................. 2002................. 841 894 47,640 20,495 2,035
2007................. 1,757 319 47,279 18,449 929
Changes.............. 916 -575 -361 -2,046 -1,106
Virginia portion.................. 2002................. 727 1,562 41,108 18,496 1,827
2007................. 1,422 220 36,848 15,703 777
Changes.............. 695 -1,342 -4,260 -2,793 -1,050
Washington Area................... 2002................. 1,725 2,833 97,575 43,904 4,246
2007................. 3,452 607 91,639 37,514 1,901
Changes.............. 1,727 -2,226 -5,936 -2,345 -2,345
--------------------------------------------------------------------------------------------------------------------------------------------------------
EPA believes that the States have adequately demonstrated that the
observed air quality improvement in the Washington Area is due to
permanent and enforceable reductions in emissions resulting from
implementation of Federal and State-adopted measures.
B. Maintenance Plan
As required by section 175A of the CAA, the States submitted a
common maintenance plan as a revision to their respective SIPs to
ensure continued attainment of the 1997 annual PM2.5
standard in the Washington Area throughout 2025. The Washington Area's
maintenance plan for the1997 annual PM2.5 standard was
submitted to the EPA by DDOE on June 3, 2013, by MDE on July 10, 2013,
and by VADEQ on June 3, 2013. As part of the maintenance demonstration
the SIP revision includes a 2007 attainment emissions inventory, a 2017
interim emissions inventory, and a 2025 end year maintenance plan
emissions inventory. The emissions inventories were subsequently
supplemented by the States to provide for emissions estimates of VOC
and ammonia as part of the 2007, 2017 and 2025 emissions inventories.
The supplemental inventories were submitted to EPA on July 22, 2013 by
DDOE, on July 26, 2013 by MDE, and on July 17, 2013 by VADEQ. EPA's
analysis for proposing approval of the Washington Area's maintenance
plan is provided in this section.
1. Attainment Emissions Inventory
An attainment inventory is comprised of the emissions during the
time period associated with the monitoring data showing attainment. The
States
[[Page 45748]]
determined that the appropriate attainment inventory year for the
maintenance plan is 2007, one of the years in the period during which
the Area monitored attainment of the 1997 annual PM2.5
NAAQS. The 2007 attainment emissions inventory contains primary
PM2.5 emissions (including condensables), SO2,
NOX, VOC, and ammonia for point, area, nonroad, and onroad
source categories.
For the emissions estimates of the point, area, and nonroad
categories of the 2007 attainment emissions inventory, the States
submitted version 3 of the 2007 emissions inventory developed through
the Mid-Atlantic Regional Air Management Association (MARAMA) regional
process. The 2007 onroad source estimates were developed by MWCOG/TBP
using EPA's MOVES 2010a model. More information on the development of
the onroad emissions can be found on the States' TSD submitted as part
of their redesignation request submittals.
EPA has reviewed the inventory and the documentation provided by
the States and found the 2007 attainment emissions inventory submitted
with the Washington Area's maintenance plan to be approvable. For more
information on EPA's analysis of the 2007 emissions inventory, see
EPA's TSD dated March 17, 2014, available in the docket for this
rulemaking action at www.regulations.gov.
2. Maintenance Demonstration
Section 175A requires a state seeking redesignation to attainment
to submit a SIP revision to provide for the maintenance of the NAAQS in
the area ``for at least 10 years after the redesignation.'' EPA has
interpreted this as a showing of maintenance ``for a period of ten
years following redesignation.'' Where the emissions inventory method
of showing maintenance is used, its purpose is to show that emissions
during the maintenance period will not increase over the attainment
year inventory. See 1992 Calcagni Memorandum, pages 9-10.
For a demonstration of maintenance, emissions inventories are
required to be projected to future dates to assess the influence of
future growth and controls; however, the demonstration need not be
based on modeling. See Wall v. EPA, supra; Sierra Club v. EPA, supra.
See also 66 FR 53099-53100 and 68 FR 25430-32. The States use
projection inventories to show that the Washington Area will remain in
attainment and developed projection inventories for an interim year of
2017 and a maintenance plan end year of 2025 to show that future
emissions of NOX, SO2, and direct
PM2.5 will remain at or below the attainment year 2007
emissions levels throughout the Area through the year 2025.
The States used the 2017 and 2025 emissions projections developed
through the MARAMA regional planning process as the 2017 interim year
and the 2025 maintenance plan end year emissions inventories. For more
details on emissions projections, methodologies, and growth, see
MARAMA's ``Technical Support Document for the Development of the 2013/
2017/2020 Emission Inventories for Regional Air Quality Modeling in the
Northeast/Mid-Atlantic Region'' (MARAMA 2017 TSD) and the ``Technical
Support Document for the Development of the 2025 Emission Inventory for
PM2.5 Nonattainment Counties in the MANE-VU Region, January
2012'' (MARAMA 2025 TSD), respectively, which were included in the
States submittals and are available in the docket for this rulemaking
action at www.regulations.gov. After reviewing the supporting
documentation provided for developing the projected emissions
inventories, EPA has determined that the 2017 and 2025 emissions
inventories for the Washington Area are approvable.
A summary of the emissions inventories for the Washington Area for
the 2007 attainment year, the 2017 interim year, and the 2025
maintenance plan end year is provided in Table 6. The inventories show
that, between 2007 and 2025, the Area is projected to reduce
SO2 emissions by 155,071 tpy, NOX emissions by
14,811 tpy, VOC emissions by 29,473 tpy, and ammonia emissions by 534
tpy. Thus, the emissions inventories show that the Washington Area will
continue to maintain the 1997 annual PM2.5 standards during
the maintenance period.
Table 6--Comparison of 2007 Attainment Year and 2017 and 2025 Projected Emissions Inventories for the Washington Area, in tpy
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reductions 2007- Reductions 2007-
Pollutants/Year 2007 2017 2025 2017 2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
PM2.5.................................................... 20,724 18,654 18,010 -2,070 -2,714
SO2...................................................... 191,441 33,315 33,287 -158,125 -158,153
NOX...................................................... 165,247 90,799 74,504 -74,448 -90,743
VOC...................................................... 114,235 92,592 84,762 -21,643 -29,473
Ammonia.................................................. 6,204 5,922 5,670 -282 -534
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point, nonroad, and onroad emission projections for 2017 and 2025
include a variety of control strategies that will reduce emissions of
PM2.5, NOX, and SO2 in the Area. Many
of these programs are Federal programs that are enforced on a regional
or national level. In cases where the programs are delegated programs
or State programs, the States commit to the continuation of each
program to ensure that reductions assumed in 2017 and 2025 will be
achieved.
As explained earlier, EGUs are the primary point sources of
PM2.5, SO2, and NOX emissions in the
Washington Area. The States have implemented various Federally-
enforceable measures in the Washington Area to reduce emissions from
EGUs. The VEPCO Federal consent decree has reduced significantly
emissions of NOX and SO2 at the Possum Point
Power Station, in Fairfax County, Virginia. The fuel switch from coal
to natural gas required by the consent decree was made in the 2003-2004
timeframe. Two other permitting actions affected the emissions of
SO2 and NOX from the Potomac River Power Station,
in Alexandria, Virginia. The first was a state operating permit issued
on July 31, 2008 by Virginia's Air Pollution Control Board limiting the
facility's primary PM2.5 emissions to 207 tpy, the
SO2 emissions to 3,813 tpy, and the NOX emissions
to 3,700 tpy. On July 29, 2010, a second state operating permit was
issued, further limiting the facility to 890 tons of NOX per
ozone season (May 1 through September 30).
[[Page 45749]]
The Maryland Healthy Air Act (HAA) regulations became effective on
July 16, 2007 and were approved by EPA into the Maryland SIP on
September 4, 2008 (73 FR 51599). The HAA requires reductions in
NOX and SO2 emissions from large coal burning
power plants in Maryland. Specifically, this program limits emissions
from the Chalk Point Generating Plant, the Dickerson Generating Plant,
and the Morgantown Generating Plant, all of which are coal fired power
plants located within the Maryland portion of the Washington Area.
Emission reductions from the HAA are phased: The first phase required
reductions in the 2009-2010 timeframe and the second phase required
controls by 2012-2013. At full implementation, the HAA was projected to
reduce NOX emissions by approximately 75 percent from 2002
levels and SO2 emissions by approximately 85 percent from
2002 levels.
As a condition of an operating permit, two EGUs in the Pepco Energy
Services, Inc. located within the Area permanently ceased operation by
December 17, 2012. The permit condition became Federally enforceable as
part of a SIP revision that was approved by EPA on February 2, 2012 (77
FR 5191). Closure of the two large, uncontrolled oil-fired turbines
will result in SO2 and NOX reductions. Additional
Federal and State measures have been implemented in the Area to reduce
emissions from the mobile source sector, including: EPA's Nonroad
Diesel Rule, EPA's 2007 Heavy-duty Highway Rule, EPA's Tier 1 Federal
Motor Vehicle Emission Standards, EPA's Tier 2 Vehicle and Gasoline
Sulfur Program, and States' enhanced vehicle emissions I/M programs.
3. Monitoring Network
The District, Maryland, and Virginia operate a PM2.5 air
quality monitoring network in the Washington Area that is significantly
more robust than required by EPA's monitoring regulations in 40 CFR
part 58. Furthermore, the Washington Area's maintenance plan includes
the States' commitment to continue to operate and maintain its
PM2.5 air quality monitoring network, consistent with EPA's
monitoring requirements, as necessary to demonstrate ongoing compliance
with the 1997 annual PM2.5 NAAQS. In accordance with the
requirements of 40 CFR part 58, the States will consult with EPA prior
to making any necessary changes to the PM2.5 monitoring
network in the Area and will continue to submit quality-controlled,
quality-assured monitoring data.
4. Verification of Continued Attainment
The States have the legal authority to implement and enforce
specified measures to attain and implement the 1997 annual
PM2.5 NAAQS, as required by section 110(a)(2) of the CAA.
The States commit to continue implementing the necessary control
measures that will assure maintenance of the 1997 annual
PM2.5 NAAQS throughout the 10 year period following
redesignation. Additionally, each of the States will acquire ambient
and source emission data to track attainment and maintenance. As
explained subsequently, as a contingency measure the States will track
progress of the maintenance demonstration by periodically evaluating
the projected emission inventories, based on annual and periodic
inventories. See section V.B.5 of this proposed rulemaking action.
Furthermore, the States will prepare and submit to EPA every three
years a comprehensive PM2.5 emissions inventory, as required
by EPA's Air Emissions Reporting Requirements (AERR).
5. Contingency Measures
Section 175A of the CAA requires that a maintenance plan include
such contingency measures as EPA deems necessary to ensure that the
States will promptly correct a violation of the 1997 annual
PM2.5 NAAQS that occurs in the Washington Area after
redesignation. The maintenance plan should identify the events that
would ``trigger'' the adoption and implementation of a contingency
measure(s), the contingency measure(s) that would be adopted and
implemented, and the schedule indicating the time frame by which the
state would adopt and implement the measure(s).
The Washington Area maintenance plan outlines the procedures for
the adoption and implementation of contingency measures that will
further reduce emissions in the Area, should a violation of the 1997
annual PM2.5 NAAQS occur. The States' contingency measures
will be implemented if any of the following triggering events occur:
The total actual annual emissions of NOX, SO2 or
primary PM2.5 exceed the levels of the 2007 attainment year
emissions inventory; an exceedance of the 1997 annual PM2.5
standard, that is, an annual average for one year at any EPA-approved
monitor in the Area of 15.0 [micro]g/m\3\ or greater; or a violation of
the 1997 annual PM2.5 standard, that is, a 3-year average of
the annual average at any EPA-approved monitor in the Area of 15.0
[micro]g/m\3\ or greater.
Should actual emissions inventory data for any future year of the
maintenance period indicate that the Washington Area's total emissions
of NOX, SO2, or primary PM2.5 exceed
the levels of the Area's 2007 attainment emissions inventory, the
States would commence an audit to determine whether inventory
refinements are needed. This audit may include, but would not be
limited to, a determination that the appropriate models, control
strategies, monitoring strategies, planning assumptions, industrial
throughput, and production data were used in the emissions estimates
for both the 2007 attainment year and the future year in question. The
results of this audit will be provided to EPA. If the States find that
this audit does not reconcile the estimated emissions exceedances, then
each of the States commit to implement one or more of the contingency
measures, as necessary so that the future actual emissions estimates
for the Washington Area do not continue to exceed the levels of the
2007 attainment emissions inventory.
Additionally, if an annual exceedance of the standard occurs in the
Area, each of the States commit to implementing one of the contingency
measures, as described subsequently, which apply to their individual
jurisdictions, to garner additional emission reductions for air quality
improvement. If a violation of the standard occurs in the Area, each of
the States commit to implementing two or more of the contingency
measures. The States' contingency measures consist of the following
state regulations or control programs: PM2.5 RACM
determination, NOX RACM determination, SO2 RACM
determination (for the District and Virginia portions of the Area),
nonroad diesel emission reduction strategies, low sulfur home heating
oil requirements (for the District and Maryland portions of the Area),
alternative fuel and diesel retrofit programs for fleet vehicle
operations, and wet suppression upgrade requirements in concrete
manufacturing. If a RACM determination is selected as a contingency
measure and the analysis shows that no control measures are
economically and technically feasible, then the State would consider an
alternative contingency measure from the options listed.
The States commit to a schedule for adoption and implementation of
any contingency measure following three months from when an exceedance
or violation of the 1997 annual PM2.5 standard is
determined, based on the air quality assured data; or an exceedance of
actual emissions from the levels of
[[Page 45750]]
the 2007 attainment emissions inventory is determined, as concluded by
an audit. After this 3-month period, the selected contingency measure
must be adopted by the State within six months, and implemented within
six months of adoption. Compliance with the regulation, or full program
implementation, must be achieved within 12 months of adoption.
C. Transportation Conformity Determinations
Section 176(c) of the CAA requires Federal actions in nonattainment
and maintenance areas to ``conform to'' the goals of SIPs. This means
that such actions will not cause or contribute to violations of a
NAAQS, worsen the severity of an existing violation, or delay timely
attainment of any NAAQS or any interim milestone. Actions involving
Federal Highway Administration (FHWA) or Federal Transit Administration
(FTA) funding or approval are subject to the transportation conformity
rule (40 CFR Part 93, subpart A). Under this rule, metropolitan
planning organizations (MPOs) in nonattainment and maintenance areas
coordinate with state air quality and transportation agencies, EPA, and
the FHWA and FTA to demonstrate that their long range transportation
plans and transportation improvement programs (TIP) conform to
applicable SIPs. This is typically determined by showing that estimated
emissions from existing and planned highway and transit systems are
less than or equal to the MVEBs contained in the SIP.
The Washington Area's maintenance plan includes MVEBs for
PM2.5 and NOX for the 1997 annual
PM2.5 NAAQS. The MVEBs were submitted for the years 2017 and
2025 for the 1997 PM2.5 NAAQS, consistent with the emissions
inventories in the Washington Area. The combined maintenance plan did
not provide emission budgets for SO2, VOC, and ammonia
because it concluded, consistent with the presumptions regarding these
precursors in the Transportation Conformity Rule at 40 CFR
93.102(b)(2)(v), which predated and was not disturbed by the litigation
on the 1997 PM2.5 Implementation Rule, that emissions of
these precursors from motor vehicles are not significant contributors
to the Area's PM2.5 air quality problem. EPA issued
conformity regulations to implement the 1997 annual PM2.5
NAAQS in July 2004 and May 2005 (69 FR 40004, July 1, 2004 and 70 FR
24280, May 6, 2005). Those actions were not part of the final rule
recently remanded to EPA by the D.C. Circuit Court in NRDC v. EPA, No.
08-1250 (January 4, 2013), in which the D.C. Circuit Court remanded to
EPA the 1997 PM2.5 Implementation Rule because it concluded
that EPA must implement that NAAQS pursuant to the PM-specific
implementation provisions of subpart 4, rather than solely under the
general provisions of subpart 1. That decision does not affect EPA's
proposed approval of the MVEBs for the Washington Area.
The Washington Area maintenance plan includes a tiered approach for
MVEBs to be applied to all future transportation conformity
determinations and analyses for the 1997 annual PM2.5 NAAQS.
Shown in Table 7 and Table 8 are the MVEBs from the Washington Area
maintenance plan. The Tier 1 MVEBs shown in Table 7 will be the
applicable MVEBs after the adequacy findings are effective. The Tier 2
MVEBs shown in Table 8 adds a twenty percent (20%) transportation
buffer to the mobile emissions inventory projections for
PM2.5 and NOX in 2017 and 2025. The Tier 2 MVEBs
will become effective if it is determined that technical uncertainties
primarily due to model changes and to vehicle fleet turnover, which may
affect future motor vehicle emissions inventories, lead to motor
vehicle emissions estimates above the Tier 1 MVEBs. This determination
will be made through the interagency consultation process and fully
documented within the first conformity analysis that uses the Tier 2
MVEBs.
Table 7--Tier 1 On-road MVEBs for the Washington Area for the 1997 PM2.5
NAAQS
------------------------------------------------------------------------
MVEB for PM2.5 on-road MVEB for NOX on-road
Year emissions (tpy) emissions (tpy)
------------------------------------------------------------------------
2017........ 1,787 41,709
2025........ 1,350 27,400
------------------------------------------------------------------------
Table 8--Tier 2 On-road MVEBs for the Washington Area for the 1997 PM2.5
NAAQS
------------------------------------------------------------------------
MVEB for PM2.5 on-road MVEB for NOX on-road
Year emissions (tpy) Emissions (tpy)
------------------------------------------------------------------------
2017........ 2,144 50,051
2025........ 1,586 32,880
------------------------------------------------------------------------
EPA's substantive criteria for determining adequacy of MVEBs are
set out in 40 CFR 93.118(e)(4). Additionally, to approve the MVEBs, EPA
must complete a thorough review of the SIP revision, in this case the
Washington Area maintenance plan, and conclude that with the projected
level of motor vehicle and all other emissions, the SIP revision will
achieve its overall purpose, in this case providing for maintenance of
the 1997 annual PM2.5 NAAQS. EPA's process for determining
adequacy of a MVEB consists of three basic steps: (1) Providing public
notification of a SIP submission; (2) providing the public the
opportunity to comment on the MVEB during a public comment period; and
(3) EPA taking action on the MVEB.
On February 5, 2013, EPA initiated an adequacy review of the MVEBs
for the 1997 annual PM2.5 NAAQS that the Maryland, Virginia,
and the District included in their maintenance plan submittals. As
such, separate notices of the submission of these MVEBs were posted on
the adequacy Web site (http://epa.gov/otaq/stateresources/transconf/currsips.htm). The public comment period closed on March 7, 2014. There
were no public comments received. EPA is acting on making these
adequacy findings final through separate notices of adequacy. EPA has
reviewed the MVEBs and found them consistent with the redesignation
requests and maintenance plans and that the budgets meet the criteria
for adequacy and approval. Therefore, EPA is proposing to approve the
2017 and 2025 PM2.5 and NOX MVEBs for the
Washington Area for transportation conformity purposes. Additional
information pertaining to the review of the MVEBs can be found in
[[Page 45751]]
EPA's TSD dated February 11, 2014, available on line at
www.regulations.gov, Docket ID No. EPA-R03-OAR-2014-0148.
VI. 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 that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) 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.
VII. Proposed Actions
EPA is proposing to approve the requests submitted by the District
of Columbia, the Commonwealth of Virginia, and the State of Maryland to
redesignate from nonattainment to attainment their respective portions
of the Washington Area for the 1997 annual PM2.5 NAAQS. EPA
has evaluated the States' redesignation requests and determined that
they meet the redesignation criteria set forth in section 107(d)(3)(E)
of the CAA for the 1997 annual PM2.5 standard. EPA believes
that the monitoring data demonstrate that the Washington Area is
attaining and will continue to attain the 1997 annual PM2.5
NAAQS. EPA is also proposing to approve the common maintenance plan for
the Washington Area submitted by the States as revisions to their
respective SIPs for the 1997 annual PM2.5 standard because
the plan meets the requirements of CAA section 175A for the standard.
Furthermore, EPA is proposing to approve the 2017 and 2025
PM2.5 and NOX MVEBs submitted by the Washington
Area for transportation conformity purposes. Final approval of the
redesignation requests would change the official designations of the
Washington Area, from nonattainment to attainment as found at 40 CFR
part 81, for each of the States for the 1997 annual PM2.5
NAAQS, and would incorporate into the States SIPs the maintenance plan
ensuring continued attainment of the 1997 annual PM2.5 NAAQS
in the Area for the next 10 years, until 2025. EPA is soliciting public
comments on the issues discussed in this document. These comments will
be considered before taking final action.
VIII. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of the maintenance plan under CAA section
107(d)(3)(E) are actions that affect the status of geographical area
and do not impose any additional regulatory requirements on sources
beyond those required by state law. A redesignation to attainment does
not in and of itself impose any new requirements, but rather results in
the application of requirements contained in the CAA for areas that
have been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the Act 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 and the CAA. 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.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described
[[Page 45752]]
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 rulemaking action, in which EPA is
proposing approval of the redesignation requests and maintenance plan
submitted by the District of Columbia, the Commonwealth of Virginia,
and the State of Maryland for the 1997 annual PM2.5
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
40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen oxides,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 17, 2014.
William C. Early,
Deputy Regional Administrator, Region III.
[FR Doc. 2014-18482 Filed 8-5-14; 8:45 am]
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