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Proposed Rule

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

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

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: Fernandez.cristina@epa.gov.

C. Mail: EPA-R03-OAR-2014-0148, Cristina Fernández, 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 Start Printed Page 45736deliveries 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.

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FOR FURTHER INFORMATION CONTACT:

Emlyn Vélez-Rosa, (215) 814-2038, or by e-mail at velez-rosa.emlyn@epa.gov.

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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 (μg/m3), 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 μg/m3, 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 μg/m3, but revised the 24-hour standard to 35 μg/m3, 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 Start Printed Page 45737developed 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 Start Printed Page 45738staying 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.

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.Start Printed 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.

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 Start Printed Page 45740for 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.

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.

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).

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.

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) Start Printed Page 45741requirements 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).

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 Start Printed Page 45742annual 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.

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.

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).

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.Start Printed 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

Monitor site IDLocationAnnual design valuesPreliminary 2013 data *
2008-20102009-20112010-2012
11-001-0041Washington, DC11.210.610.49.1
11-001-0042Washington, DC11.210.510.38.5
11-001-0043Washington, DC10.810.310.19.5
24-031-3001Montgomery County, Maryland10.310.210.57.7
24-033-0025Prince George's County, Maryland11.510.810.8**
24-033-0030Prince George's County, Maryland10.010.810.88.8
24-033-8003Prince George's County, Maryland9.99.18.88.1
51-013-0020Arlington County, Virginia10.810.19.98.7
51-059-0030Fairfax County, Virginia10.39.69.38.1
51-107-1005Loudoun County, Virginia10.39.59.58.3
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 Start Printed Page 45744to 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 Start Printed Page 45745part 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)

LocationYearEmissions (tpy)
PM2.5SO2NOXVOCAmmonia
District portion20021,0773,59715,40115,877407
20071,6912,15613,1481,508381
Changes614−1,441−2,253−14,369−26
Maryland portion200212,825169,789109,04198,6265,174
200712,088178,82791,27211,3974,021
Changes−7379,038−17,769−87,229−1,153
Virginia portion20028,27749,97575,91092,7252,371
20076,94410,45760,82612,1531,802
Changes−1,333−39,518−15,084−80,572−569
Washington Area200222,179235,165188,548207,2287,952
200720,724191,441165,24725,0586,204
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, Start Printed Page 457462012 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

Unit ID2002 Emissions (tpy)2007 Emissions (tpy)Emissions reductions (%)
SO2NOXSO2NOXSO2NOX
36,2281,58203910097.53
410,9752,349111199.9995.27
Total17,2033,931115099.9996.18

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

FacilityUnit ID2002 NOX Emissions2007 NOX EmissionsEmissions reduction
Pounds per million British thermal units (lbs/MMBTU)tpylbs/MMBTUtpyPercentage (%)
Chalk Point10.5626,3370.4464,88522.9
20.5606,7550.4504,83528.4
30.1568460.13653836.4
40.1691,1690.12842663.6
Dickerson10.4662,1210.3431,64522.5
20.4982,4440.3341,64432.7
30.4712,6610.3381,65837.7
Morgantown10.50410,0140.1913,09769.0
20.5018,6050.3606,32126.5
Potomac River10.3797590.32648336.3
20.4167890.28744443.7
30.4181,5450.25441273.4
40.4151,4430.23448166.6
50.3981,4740.24551665.0
Total46,96227,38642.7
Start Printed 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

LocationYearEmissions (tpy)
PM2.5SO2NOXVOCAmmonia
District portion20021563768,8274,913383
2007272687,5123,362195
Changes116−308−1315−1551−188
Maryland portion200284189447,64020,4952,035
20071,75731947,27918,449929
Changes916−575−361−2,046−1,106
Virginia portion20027271,56241,10818,4961,827
20071,42222036,84815,703777
Changes695−1,342−4,260−2,793−1,050
Washington Area20021,7252,83397,57543,9044,246
20073,45260791,63937,5141,901
Changes1,727−2,226−5,936−2,345−2,345

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 Start Printed Page 45748determined 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

Pollutants/Year200720172025Reductions 2007-2017Reductions 2007-2025
PM2.520,72418,65418,010−2,070−2,714
SO2191,44133,31533,287−158,125−158,153
NOX165,24790,79974,504−74,448−90,743
VOC114,23592,59284,762−21,643−29,473
Ammonia6,2045,9225,670−282−534

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).Start Printed 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 µg/m3 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 µg/m3 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 Start Printed Page 45750the 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

YearMVEB for PM2.5 on-road emissions (tpy)MVEB for NOX on-road emissions (tpy)
20171,78741,709
20251,35027,400

Table 8—Tier 2 On-road MVEBs for the Washington Area for the 1997 PM2.5 NAAQS

YearMVEB for PM2.5 on-road emissions (tpy)MVEB for NOX on-road Emissions (tpy)
20172,14450,051
20251,58632,880

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 Start Printed Page 45751EPA'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 § 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 Start Printed Page 45752in 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.

Start List of Subjects

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
End List of Subjects Start Authority

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

End Authority Start Signature

Dated: July 17, 2014.

William C. Early,

Deputy Regional Administrator, Region III.

End Signature End Supplemental Information

Footnotes

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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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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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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4.  PM10 refers to particulates nominally 10 micrometers in diameter or smaller.

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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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6.  I.e., attainment demonstration, RFP, RACM, milestone requirements, contingency measures.

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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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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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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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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).

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11.  See, e.g., Assoc. of Irritated Residents v. EPA et al., 423 F.3d 989 (9th Cir. 2005).

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[FR Doc. 2014-18482 Filed 8-5-14; 8:45 am]

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