[Federal Register Volume 80, Number 69 (Friday, April 10, 2015)]
[Rules and Regulations]
[Pages 19206-19220]
[FR Doc No: 2015-07957]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0132;
FRL-9925-27-Region-3]

Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, and Virginia; Attainment Demonstration
for the 1997 8-Hour Ozone National Ambient Air Quality Standard for the
Washington, DC-MD-VA Moderate Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the
attainment demonstration and associated contingency measures and motor
vehicle emission budgets (MVEBs) for the Washington, DC-MD-VA, moderate
ozone nonattainment area (Washington Area) for the 1997 8-hour ozone
National Ambient Air Quality Standard (NAAQS) as submitted by the
District of Columbia, the State of Maryland, and the Commonwealth of
Virginia as revisions to each of their State Implementation Plans
(SIPs). EPA has determined that each of the three SIP revisions
including specifically the attainment demonstration, contingency
measures and MVEBs meet the applicable requirements of the Clean Air
Act (CAA or Act), and EPA is approving each revision.

DATES: This final rule is effective on May 11, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2013-0132. All documents in
the docket are listed in the www.regulations.gov Web site. Although
listed in the electronic docket, some information is not publicly
available, i.e., confidential business information (CBI) or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
www.regulations.gov or in hard copy for public inspection during normal
business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the State submittal are available at the
District of Columbia. Department of the Environment, Air Quality
Division, 1200 1st Street NE., 5th Floor, Washington, DC 20002; the
Maryland Department of the Environment, 1800 Washington Boulevard,
Suite 705, Baltimore, Maryland 21230; and the Virginia Department of
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215)
814-2179, or by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    The District of Columbia, the State of Maryland, and the
Commonwealth of Virginia submitted formal SIP revisions on June 12,
2007, June 4, 2007, and June 12, 2007, respectively (hereafter the June
2007 SIP revisions). These June 2007 SIP revisions were submitted to
address CAA requirements for the 1997 ozone NAAQS and included the 2002
base year emissions inventory, the 15 percent reasonable further
progress plan (RFP) (15% RFP plan), RFP contingency measures, an
attainment demonstration to show attainment of the 1997 ozone NAAQS by
June 15, 2010, a reasonably available control measures (RACM) analysis,
and contingency measures for failure to attain. In addition, the
submission included the transportation conformity 2008, 2009, and 2010
year MVEBs associated with the RFP plan, the attainment demonstration
and contingency measures, respectively. The District of Columbia
Department of the Environment (DDOE), the Maryland Department of the
Environment (MDE), and the Virginia Department of Environmental Quality
(VADEQ) (hereafter referred to as the three States) jointly developed
the June 2007 SIP revisions.\1\
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    \1\&thnsp;The three States developed and submitted the
“Plan to Improve Air Quality in the Washington, DC-MD-VA
Region, State Implementation Plan (SIP) for 8-Hour Ozone Standard,
Moderate Area SIP” (hereafter the Washington Area 8-hour ozone
plan).
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    These elements of the Washington Area 8-hour ozone plan were
required for the Washington Area by sections 172(c), 182(a), and
182(b)(1) of the CAA due to the classification of the Washington Area
as a moderate ozone nonattainment area under the 1997 ozone NAAQS. The
boundaries of the Washington Area are defined in the tables for
“1997 8-Hour Ozone NAAQS (Primary and Secondary)” in 40 CFR
81.309, 81.321 and 81.347.\2\
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    \2\&thnsp;Effective July 20, 2012 (77 FR 30088, May 21, 2012),
EPA designated and classified nonattainment areas under the 2008
ozone NAAQS codified at 40 CFR 50.15 for most areas of the country
including the Washington Area. The Washington Area was designated as
nonattainment and classified as marginal nonattainment. The
boundaries of the ozone nonattainment area classified as moderate
under the 1997 ozone NAAQS are the same as those of the ozone
nonattainment area classified as marginal under the 2008 ozone
NAAQS. See 40 CFR 81.309, 81.321 and 81.347. Hereafter, when
referring to the Washington Area in relation to SIP requirements
required solely due to the 2008 ozone NAAQS, the term
“Washington 2008 Ozone Nonattainment Area” will be used.
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    On September 11, 2011 (76 FR 58116), EPA approved portions of the
June 2007 SIP revisions for the three States including the 2002 base
year emissions inventory, 15% RFP plan and associated MVEBs for 2008,
RFP contingency measures, and the RACM analysis. In this rulemaking
action, EPA is approving the remaining portions of the June 2007 SIP
revisions for the 1997 ozone NAAQS including the attainment
demonstration, the contingency measures, and the associated 2009 and
2010 year MVEBs.\3\ In a March 20, 2013 notice of proposed rulemaking
(the March 20, 2013 NPR), EPA proposed to approve these remaining
elements of the June 2007 SIP revisions. 78 FR 17161.

The initial comment period closed on May 9, 2013 (78 FR 27160);
however, EPA reopened the comment period until June 10, 2013. In this
final rule, EPA is approving the portions of the June 2007 SIP
revisions which we proposed for approval in the March 20, 2013 NPR: the
attainment demonstration, contingency measures, and 2009 and 2010 year
MVEBs.
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    \3\&thnsp;The attainment demonstration was required under 40 CFR
51.908 to demonstrate attainment of the 1997 ozone NAAQS by the
applicable attainment date of June 15, 2010 (the June 2010
attainment date).
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II. Summary of SIP Revision

    The June 2007 SIP revisions addressed the attainment demonstration
required under 40 CFR 51.908, contingency measures, and the associated
2009 and 2010 year MVEBs for the 1997 ozone NAAQS for the Washington
Area. Specific requirements for CAA attainment demonstrations,
contingency measures and MVEBs for the 1997 ozone NAAQS and the
rationale for EPA's proposed action were explained in the NPR and will
not be restated here.

III. Attainment Status Based Upon Recent Air Quality Data

    Since the March 20, 2013 NPR, the three States have submitted and
certified complete ambient air quality monitoring (AQ data) for the
entire 2013 ozone monitoring season. EPA has released the final
2011-2013 design values and posted these at http://www.epa.gov/airtrends/values.html. The 2011-2013 design values show the
Washington Area continues to attain the 1997 ozone NAAQS. Table 1 shows
these design values for monitors in the Washington Area in parts per
billion (ppb) ozone. These design values in Table 1 demonstrate that
the Washington Area continues to meet the 1997 ozone NAAQS.

                   Table 1-Actual Monitored Design Values (DVs) for 2011 to 2013 Period
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                                      Site data                                                 DV (ppb)
----------------------------------------------------------------------------------------------------------------
              AIRS ID                       Site name               County/City          State   2011-2013
----------------------------------------------------------------------------------------------------------------
11-001-0041............  River Terrace..........  .......................       DC               72
11-001-0043............  McMillan...............  .......................       DC               79
24-009-0010............  Calvert................  Calvert Co.............       MD               77
24-017-0010............  Southern MD............  Charles Co.............       MD               77
24-021-0037............  Frederick Municipal      Frederick Co...........       MD               74
                                      Airport.
24-031-3001............  Rockville..............  Montgomery Co..........       MD               74
24-033-0030............  HU-Beltsville..........  Prince George's Co.....       MD               76
24-033-8003............  PG Equestrian Center...  Prince George's........       MD               81
24-033-8003............  Beltsville.............  Prince George's........       MD               72
51-013-0020............  Aurora Hills...........  Arlington County.......       VA               79
51-059-0030............  Franconia..............  Fairfax County.........       VA               79
51-107-1005............  Ashburn................  Loudoun County.........       VA               71
51-153-0009............  Long Park..............  Prince William County..       VA               69
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    EPA has also examined available 2014 ozone season AQ data. EPA
notes that this AQ data is preliminary. EPA examined the data entered
into EPA's Air Quality System (AQS) available as of February 10, 2015.
It has not undergone all the quality assurance/quality control review
and certification necessary to be used for regulatory purposes, and as
of February 10, 2015 may not cover the entire 2014 ozone season for the
Washington Area which ended October 31, 2014. See Table D-3
“Ozone Monitoring Season by State” in appendix D to 40 CFR
part 58.
    The highest preliminary design value in the Washington Area for the
2012-2014 period is 76 ppb which is meeting the 1997 ozone NAAQS.
Until the 2014 AQ data is quality assured and certified, this design
value is preliminary and subject to change. However, the preliminary
data indicates that the Washington Area continues to attain the 1997
ozone NAAQS. For the March 20, 2013 NPR, EPA prepared a technical
support document (February 26, 2013 TSD) which is in the docket for
this rulemaking and is available online at www.regulations.gov as
document number
EPA-R03-OAR-2013-0132-0006.
    EPA has also prepared a supplement to the February 26, 2013 TSD,
“Supplement to Technical Support Document for Approval and
Promulgation of Air Quality Implementation Plans; District of Columbia,
Maryland and Virginia; Attainment Demonstration for the 1997 8-Hour
Ozone National Ambient Air Quality Standard for the Washington, DC-MD-
VA Moderate Nonattainment Area,” dated February 12, 2015 (TSD
Supplement);&thnsp;\4\ this TSD Supplement provides additional analysis
of the 2013 and 2014 AQ data. The TSD Supplement and other documents
concerning the 2013 and 2014 AQ data have been added to the docket for
this action and are available online at www.regulations.gov at docket
number EPA-R03-OAR-2013-0132.
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    \4\&thnsp;The February 26, 2013 TSD is titled “Technical
Support Document for Approval and Promulgation of Air Quality
Implementation Plans; District of Columbia, Maryland and Virginia;
Attainment Demonstration for the 1997 8-Hour Ozone National Ambient
Air Quality Standard for the Washington, DC-MD-VA Moderate
Nonattainment Area,” dated February 26, 2013 and is in the
docket for this rulemaking as document number
EPA-R03-OAR-2013-0132-0006.
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IV. Comments Received on the 2010 Attainment Demonstration, MVEBs, and
Contingency Measures and EPA's Responses

    EPA received comments adverse to the proposed approval of the
attainment demonstration, MVEBs and contingency measures from the June
2007 SIP revisions. A summary of these adverse comments and EPA
responses follows.
    Comment: EPA received comments asserting that EPA must disapprove
the attainment demonstrations in the June 2007 SIP revisions because
the 2010-2012 AQ data demonstrates that the Washington Area is
not attaining the 1997 ozone NAAQS. The commenter asserts that 40 CFR
51.112(a) provides that attainment demonstrations should be done with
air quality modeling and with “data bases” such as EPA's
ambient air quality monitoring database, AQS. The commenter concludes
that the three States' attainment demonstration SIPs are therefore not
adequate to attain and maintain the 1997 ozone NAAQS. The commenter
cites Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 30-31 (1983) to support its claim that
failure to consider the 2010-2012 AQ data would amount to a final
rule that is arbitrary and capricious because “[T]he

agency must . . . examine the relevant data and articulate a
satisfactory explanation for its action.” Id. Finally, a
commenter stated that the weight of evidence demonstration in EPA's
March 20, 2013 NPR is not rational because 2010-2012 AQ data is
more representative of real world conditions.
    Response: EPA disagrees with the commenter's assertion that EPA
must disapprove the attainment demonstrations submitted in June 2007
based upon the results of the 2010-2012 AQ data. EPA did in fact
consider some air quality data beyond the 1997 ozone NAAQS June 15,
2010 attainment date. EPA considered 2009-2011 air quality data
when proposing approval of the three States' June 2007 SIP revisions
which are the subject of this rulemaking. See Table 2 “Modeled
Predicted 2009 Design Values versus Actual Monitored Design
Values” and Table 3 “Actual Monitored Design Values 2009 to
2011” in the February 26, 2013 TSD in the docket for this action
(Docket ID#: EPA-R03-OAR-2013-0132). EPA
examined the actual monitored ozone design values through 2011 while
evaluating the three States' attainment demonstrations and concluded
that the overall trend of ozone air quality in the Washington Area was
improving. Because EPA concluded the trend was improving and because
the Washington Area attained the 1997 ozone NAAQS by the attainment
date of June 15, 2010, EPA determined that the 3 States' June 2007 SIP
revisions adequately demonstrated attainment of the ozone standard by
the attainment date and EPA proposed to approve the demonstrations. 78
FR at 17165. As discussed in Section III of this rulemaking action, EPA
has examined ozone design values for the Washington Area for
2011-2013 and has examined preliminary monitoring data from 2014
which demonstrate the Washington Area continues to attain the 1997
ozone NAAQS and demonstrate the overall ozone design value trend is
decreasing from 2003 to 2014. See also the TSD Supplement. Thus, EPA
has considered relevant data and disagrees with the commenter that EPA
must disapprove the attainment demonstrations from the June 2007 SIP
revisions due to the 2010-2012 data for the Washington Area.
    The CAA is very prescriptive in section 110(k)(3) concerning under
what conditions EPA must approve a SIP revision: “[t]the
Administrator shall approve such [SIP revision] submittal as a whole if
it meets all of the applicable requirements of this chapter”
(with emphasis added). As relevant to the moderate area attainment plan
for the Washington Area, section 182(b)(1)(A)(i) requires that:
“By no later than 3 years after November 15, 1990, the State
shall submit a revision to the applicable implementation plan to
. . . provide for such specific annual reductions in
emissions of volatile organic compounds and oxides of nitrogen as
necessary to attain the national primary ambient air quality standard
for ozone by the attainment date applicable under this chapter.”
(Emphasis added.)
    The applicable attainment date for areas classified as moderate
like the Washington Area for the 1997 ozone NAAQS was no later than
June 15, 2010 pursuant to Table 1 of 40 CFR 51.903(a) (i.e., six years
after the June 15, 2004 effective date of nonattainment designation for
8-hour NAAQS). See 69 FR 23858 (April 30, 2004). Application of 40 CFR
51.908(d) results in a de facto attainment date by the close of
calendar year 2009, which included the last complete ozone monitoring
season prior to June 15, 2010. See 69 FR at 23951 and 23989 (stating
that the determination of attainment for an area with an attainment
date in May 2010 would be based on AQ data from 2007, 2008 and 2009).
CAA sections 172 and 182 require the SIPs for the Washington Area to
demonstrate attainment with the 1997 ozone NAAQS but do not require the
plan to address continued maintenance of the standard after the
attainment date. That requirement is specified as a component of
redesignation in CAA section 107(d)(3)(E) and is detailed in section
175A(a). Thus, a state is not required to develop a plan to maintain
the standard until such time as it has air quality meeting the NAAQS
and is seeking redesignation to attainment.
    The attainment demonstrations submitted by the three States
addressed all of the applicable requirements for such plans in CAA
sections 172 and 182 as explained in the March 20, 2013 NPR. In
addition, the Washington Area did in fact attain the 1997 ozone NAAQS
by its attainment date of June 15, 2010. See 77 FR 11739 (February 28,
2012). A violation of the NAAQS for the period 2010-2012, which
is after the attainment date, is not determinative of whether the plan
was adequate for showing that the standard would be met by the
attainment date, and EPA disagrees with the commenter that the SIP must
be disapproved now on the basis of that data. Because EPA based
approval of the attainment demonstrations partially on the overall
improving ozone air quality trends in addition to the fact that the
Area attained by its attainment date, EPA notes that the area continued
to meet the 1997 ozone NAAQS based on its design value for
2008-2010, 2009-2011, and 2011-2013. Preliminary data
from 2014 also indicate that it is likely that the Washington Area is
meeting the 1997 ozone NAAQS for the period of 2012-2014. Thus,
EPA disagrees that EPA must disapprove the June 2007 SIP revisions
after considering the 2010-2012 data suggested by commenter
because the Washington Area's attainment by the attainment date plus
overall trend of attaining the 1997 ozone NAAQS supports approval.
    Comment: EPA received comments asserting that EPA should exercise
caution in approving the attainment demonstrations from the June 2007
SIP revisions because the ambient air quality monitoring data through
2012 indicated that air quality has degraded over time as indicated by
ozone concentrations in the DC area having steadily increased over
time. The commenters assert that such degradation is not consistent
with the goal in the CAA of moving towards redesignation to attainment
of the 1997 ozone NAAQS. The comments state that the worsening air
quality for the Washington Area after 2009 for the 1997 ozone NAAQS
casts doubt about the improvement in air quality through 2009 being due
to permanent and enforceable reductions from the implementation of the
applicable implementation plan and applicable Federal air pollutant
control regulations which the commenter asserts is necessary for
redesignation of the Washington Area to attainment for the 1997 ozone
NAAQS pursuant to section 107 of the CAA.5&thnsp;6 One
commenter noted that the design value for the Washington Area rose as
follows: 0.080 parts per million (ppm) for 2007 to 2009, 0.081 ppm for
2008 to 2010, 0.082 ppm for 2009 to 2011, and 0.087 ppm for 2010 to
2012.
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    \5\&thnsp;The comments cite section 107(d)(3)(E)(iii) which is
one of the prerequisites to redesignation to attainment from
nonattainment.
    \6\&thnsp;The comments assert that the violation based upon the
2010 to 2012 AQ data was recorded despite the implementation by the
three States of all control programs and contingency measures
committed to in the attainment SIP and full implementation of Clean
Air Interstate Rule (CAIR).
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    Response: The attainment demonstration provisions of the Act do not
require the state to demonstrate that the measures adopted to attain
the standard will ensure continued maintenance of the NAAQS. Also, as
the commenter notes in the comments, the issue of whether reductions
are due to permanent and enforceable emission reductions is aligned
with redesignation for a specific standard and with one of

the redesignation criteria in section 107(d)(3)(E). EPA does note,
however, that increased ambient ozone levels are not necessarily
associated with the measures in the SIP not being permanent and
enforceable. Rather, air quality is based on a complicated mix of
factors that include, but go beyond the level of emissions. Other
factors include air temperature, wind patterns, and emissions from
upwind sources outside of the nonattainment area. For that reason, it
is not unusual that an area's design value can vary year-to-year and
that for some years it may be higher than for an earlier year. The
design value did show a slight increase between the 2009 design value
and the 2011 design value and then had a more significant jump for the
2012 design value. However, the 2013 design value was lower than that
for 2012 and met the 1997 NAAQS and preliminary data indicates that the
2014 design value will also be lower than that for 2012 and will also
meet the 1997 ozone NAAQS.
    If the states choose to submit a request to redesignate the
Washington Area, they will need to demonstrate that they have met the
requirements of section 107(d)(3)(E), including the requirement that
the improvements in air quality are due to permanent and enforceable
reductions in emissions; however, as EPA has explained, that issue is
not relevant for determining whether the area demonstrated that it
would attain the 1997 NAAQS by the applicable attainment date.
    Comment: Another commenter asserts that EPA cannot approve the
attainment demonstrations from the June 2007 SIP revisions because
neither the SIP submittals nor EPA provide any analysis pursuant to CAA
section 110(l). Specifically, the commenters claim there is no analysis
of whether or not EPA's approval of the attainment demonstrations for
the 1997 ozone NAAQS will interfere with any applicable requirements
regarding the 2008 ozone NAAQS and the 2010 nitrogen dioxide
(NO2) NAAQS.\7\ The commenter claims because the attainment
demonstrations in the June 2007 SIP revisions do not require any
additional emission reductions, the attainment demonstrations may
interfere with attaining the 2008 ozone NAAQS as expeditiously as
practicable;&thnsp;\8\ the commenter specifically asserts that
requiring additional nitrogen oxide (NOX) emission
reductions for the attainment demonstrations will result in more
expeditious attainment of and in reasonable further progress for the
2008 ozone NAAQS and result in implementation of RACM. The commenter
also asserts that EPA must conduct this analysis and provide the public
with an opportunity to review and comment on this analysis.
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    \7\&thnsp;These are codified at 40 CFR 50.15 and 40 CFR 50.11,
respectively.
    \8\&thnsp;The commenter cited section 172(a)(2) for the
proposition that attainment dates are to be the date by which
attainment can be achieved as expeditiously as practicable. Because
EPA is implementing the 1997 and 2008 ozone NAAQS under
“subpart 2” (sections 181 through 185B) by classifying
all ozone nonattainment areas under both these NAAQS under section
181, EPA notes that the proper citation for this proposition should
be section 181(a)(1) and 40 CFR 51.1103 (implementing the 2008 ozone
NAAQS under section 181) which requires attainment of the ozone
NAAQS be “as expeditiously as practicable” but no later
than the date provided in Table 1 of 40 CFR 51.1103.
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    Response: EPA disagrees that a CAA section 110(l) analysis is
required for the purpose suggested by the commenter. Section 110(l)
prohibits approval of a SIP revision “if the revision would
interfere with any applicable requirement concerning attainment and
reasonable further progress . . . and any other applicable
requirement of this chapter.” EPA notes that our approval of the
June 2007 SIP revisions does not remove any SIP requirements nor reduce
any requirements in the three States' SIPs. Thus, EPA disagrees that
EPA cannot approve the 2007 SIP revisions without a section 110(l)
analysis.
    However, even though EPA believes a section 110(l) analysis is not
required here as no applicable requirements are being removed or
reduced, EPA does note that the volatile organic compounds (VOC) and
NOX reductions achieved to attain the 1997 ozone NAAQS for
the Washington Area will also provide benefits for attaining and/or
maintaining the 2008 ozone NAAQS, and NOX reductions will
provide benefits for attaining and/or maintaining the 2010
NO2 NAAQS. Thus, EPA finds our approval of the June 2007 SIP
revisions will not interfere with the requirements applicable for those
other two NAAQS. EPA also disagrees with the commenter's assertion that
the three States' attainment demonstrations may interfere with
attaining the 2008 ozone NAAQS as no additional NOX
reductions are required because the pollutants reduced in the
Washington Area in its attaining the 1997 ozone NAAQS are the same
pollutants that need to be regulated for the 2008 ozone NAAQS.
    The commenter does not make any specific claim regarding the
analysis for the 2010 NO2 NAAQS, but rather simply asserts
that a section 110(l) analysis was not done. EPA notes that no part of
the Washington Area has been designated as nonattainment for the 2010
NO2 NAAQS. See 77 FR 9532 (February 17, 2012) and 40 CFR
81.309, 81.321 and 81.347. Therefore, no part of the Washington Area is
subject to “Part D” planning requirements (such as sections
172(b), 172(c), 181 or 182) for the 2010 NO2 NAAQS because
these “Part D” requirements apply only to SIPs required for
nonattainment areas. EPA notes that the affected States have all made
SIP submissions to address the applicable requirements in section
110(a)(1) and (2) for the 2010 NO2 NAAQS. The commenter does
not suggest nor is EPA aware of anything in the attainment
demonstration submissions for the 1997 ozone NAAQS that would undercut
or undermine the requirements in the section 110 SIPs submitted for the
2010 NO2 NAAQS.
    The commenter's claim regarding interference with the 2008 ozone
NAAQS also ignores the structure of the statute. Under the CAA, EPA is
required to periodically review and revise as necessary the NAAQS. When
EPA revises a NAAQS, a planning cycle begins for that new NAAQS. EPA is
first required to designate areas and, for those areas designated
nonattainment, a time clock for submission of plans to address
nonattainment begins at the time of designation. EPA designated areas
for the 2008 ozone NAAQS effective June 2012, and nonattainment area
SIPs for that standard are generally due in June 2015. The
interpretation set forth by the commenter ignores that structure and
instead suggests that once a new NAAQS is promulgated, the state must
demonstrate any time it revises its SIP that such revisions will also
fulfill requirements applicable for the new standard (e.g., demonstrate
attainment, meet RACM). In other words, the commenter is reading
section 110(l) to supersede the more prescriptive and descriptive
provisions in Part D of title I of the CAA that govern nonattainment
area planning. It is untenable to read that much detail and meaning
into the word “interfere.” EPA's reasonable interpretation
is that this provision means that a plan cannot undermine or impede
applicable requirements for the same or other NAAQS.\9\ And, in this
circumstance, the reductions relied on for attainment of the 1997 ozone
NAAQS will not undermine or impede progress toward meeting the newer
NAAQS because it regulates the same pollutants that need to be
regulated for

the 2008 ozone NAAQS and the 2010 NO2 NAAQS. Any further
reductions needed for attaining the 2008 ozone NAAQS will be addressed
through the attainment planning process provided in Part D of title I
of the CAA for the 2008 ozone NAAQS.
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    \9\&thnsp;See also Webster's Ninth New Collegiate Dictionary,
defining “interfere” as “to interpose in a way
that hinders or impedes.”
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    Comment: Another commenter claims that because the air quality in
the Washington Area does not meet either the 1997 and 2008 ozone NAAQS,
one cost-effective and expeditious method to deal with this problem is
to impose an emission limit of 0.07 pounds per million British thermal
units (lb/mmbtu) on each coal-burning electric generating unit (EGU)
and each coal fired unit at the Capitol Heat Plant in the Washington
Area.\10\ The commenter claims such a limit is a reasonably available
control measure and cited court decisions, EPA preamble text and other
documents to support this conclusion.\11\ The commenter suggests
various specifics related to such a limit such as applicability,
prohibition of inter-unit averaging, averaging periods, compliance
dates and other details. The commenter also suggested limits for
“ammonia slip” because states need to assume that ammonia
is a fine particulate matter (PM2.5) precursor.
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    \10\&thnsp;EPA assumes the commenter is referring to the Capitol
Power Plant which is located in Washington, DC which provides steam
and chilled water used to heat and cool buildings throughout the
U.S. Capitol campus.
    \11\&thnsp;Regarding suggested NOX control measures,
the commenter cites for support generically to EPA's Cross State Air
Pollution Rule, 76 FR 48208, 48282 (August 8, 2011), which addresses
interstate transport of emissions for the 1997 ozone NAAQS and to
Appalachian Power v. EPA, 135 F.3d 791, 819 (D.C. Cir. 1998) which
addressed NOX limits on EGUs under Title IV of the CAA.
The commenter also cites to NRDC v. EPA, 706 F.3d 428 (D.C. Cir.
2013) (remanding PM2.5 implementation rule) in support of
the comment that EPA should require ammonia control measures.
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    Response: As an initial matter, EPA does not have authority under
the CAA to condition approval of the attainment demonstrations in the
2007 June SIP revisions upon adoption of a specific measure such as the
NOX limit suggested by the commenter for EGUs or any ammonia
slip requirement. Under the cooperative federalism structure of the SIP
program designed by Congress, the states have the authority to choose
the measures needed for attainment of the NAAQS. See Train v. Natural
Resources Defense Council, 421 U.S. 60, 79 (1975) (stating “so
long as the ultimate effect of a State's choice of emission limitations
is compliance with the national standards for ambient air, the State is
at liberty to adopt whatever mix of emission limitations it deems best
suited to its particular situation”); Union Electric Co. v. EPA,
427 U.S. 246, 269 (1976) (finding Congress via section 110
“plainly left to the states the power to determine which sources
would be burdened by regulations and to what extent”). See also
Virginia v. EPA, 108 F.3d 1397, 1407-08 (D.C. Cir. 1997) (stating
EPA cannot question the wisdom of a state's choices of emission
limitations for a SIP if the plan satisfies the standards of section
110(a)(2)).
    The commenter appears to be claiming that the identified
NOX control measures for EGUs and the Capitol Power Plant
and an ammonia slip requirement must be adopted by the states in order
to meet the RACM requirement in CAA section 172. Because EPA previously
approved the States' RACM portions of the June 2007 SIP revisions on
September 20, 2011 (76 FR 58116), this issue as raised now by the
commenter has not been timely raised and no further response is
necessary. However, EPA further notes that EPA's longstanding
interpretation of the RACM requirement in CAA section 172 involves an
evaluation of whether the measures will advance the attainment date by
one year. See Sierra Club v. EPA, 314 F.3d 735, 744-745 (5th Cir.
2002) and Sierra Club v. EPA, 294 F.3d, 155, 162 (D.C. Cir. 2002). See
also 57 FR 13498, 13560 (April 16, 1992); 44 FR 20372, 20374 (April 4,
1979). Notably, the attainment date for the Washington Area (June 15,
2010) has passed and the Area is in fact attaining the 1997 ozone NAAQS
as mentioned previously. Thus, at this juncture, the NOX or
ammonia control measures suggested by the commenter are not ones that
could advance the attainment date of the Washington Area and would not
qualify as RACM, even if EPA were evaluating RACM for the 1997 ozone
NAAQS for the Area.
    Comment: EPA received comments that assert EPA cannot approve the
attainment demonstrations in the June 2007 SIP revisions because 40 CFR
51.112(a) provides that attainment demonstrations must demonstrate that
the measures, rules, and regulations contained in it are adequate to
provide for the timely attainment and maintenance of the national
standard that it implements. The commenters also claim that 40 CFR
51.908(d) further supports the claim that the attainment demonstration
SIP must provide for maintenance as part of attainment demonstrations
because it requires implementation of all control measures needed for
attainment no later than the beginning of the attainment year ozone
season. The commenters assert that the language of “no later
than” does not allow for this requirement to stop after the
attainment year ozone season, and the plain language of this regulation
provides for control measures needed for attainment after the
attainment year.
    Response: For the reasons provided in the March 20, 2013 NPR and in
this final rule, EPA has determined that the modeled attainment
demonstration in the June 2007 SIP revisions and supporting analyses
show that measures, rules and regulations contained in the June 2007
SIP revisions provide for timely attainment of the 1997 ozone NAAQS.
EPA disagrees with the commenter that EPA cannot approve the attainment
demonstrations because the demonstrations do not provide for
maintenance of the 1997 ozone NAAQS. The regulatory provision cited by
the commenter, 40 CFR 51.112(a), was first promulgated in 1986, prior
to enactment of the CAA Amendments of 1990. This provision establishes
broad principles applicable to “control strategy” SIPs and
both attainment demonstrations and maintenance plans are types of
control strategy SIPs. Under the CAA, as amended in 1990, those two
SIPs are addressed separately in the Act, and the Act establishes
separate timeframes for submission of those two SIPs. Specifically,
maintenance SIPs are now specifically required under CAA section 175A
as a prerequisite to redesignation of an area to attainment with the
NAAQS under section 107(d)(3) of the CAA and thus are to be submitted
after an area has attained the NAAQS. Thus, EPA applies 40 CFR
51.112(a) in the context of the control strategy SIP under review and
consistent with the structure of the Act. For example, maintenance
plans need not project timely attainment because an area must have
actually attained a NAAQS before a maintenance plan can support a
redesignation request under section 107(d)(3)(E). Similarly, as
discussed in an earlier response to comment, attainment demonstrations
are due several years after designation as nonattainment and are for
the purpose of demonstrating how an area will attain the NAAQS
“by” a specific date but are not required to address air
quality after the attainment date. In other words, consistent with the
structure of the Act, EPA does not read 40 CFR 51.112(a) to require an
attainment demonstration to demonstrate maintenance of a NAAQS nor to
require a maintenance plan to demonstrate attainment of the NAAQS.
    The commenter's interpretation that 40 CFR 51.908(d) supports a
requirement that attainment demonstrations must include a demonstration
of maintenance of the NAAQS beyond the attainment date is also
misplaced. The sole purpose of this regulatory provision was to make
clear

to states the date by which all measures relied on for purpose of
demonstrating attainment must be in place. Specifically, they must be
implemented by the beginning of the final ozone season before the
attainment date. The provision says or implies nothing beyond that
simple requirement. This is further supported by the discussion in the
preamble to the final rule promulgating this provision to implement the
1997 ozone NAAQS in which EPA consistently spoke only of the analysis
needed to demonstrate timely attainment of the ozone NAAQS requirements
and never of any need to demonstrate “maintenance” of the
ozone NAAQS. See 70 FR 71612, 71615, 71626-71627 (November 29,
2005) (“Phase 2” final rule for implementation of 1997
ozone NAAQS). EPA referenced sections 172(c), 182(b), and 182(c) as the
applicable CAA provisions regarding attainment demonstrations for the
1997 ozone NAAQS and did not cite or discuss the maintenance plan
provision in section 175A. Id.
    Comment: EPA received comments asserting that the SIP for the
Washington Area relies on CAIR to address the “transport”
problem and note that CAIR was remanded after the June 2007 SIP
revisions were submitted. The commenters assert that because reduction
of transported emissions still depend on the remanded CAIR, key
modeling assumptions made for the attainment demonstrations in the June
2007 SIP revisions are questionable. These comments assert that EPA's
own modeling analysis for the Cross State Air Pollution Rule (CSAPR)
indicates that transported pollution and ozone precursors from upwind
jurisdictions play a significant role in the Washington region and that
up to 75 percent of the ozone pollution in the Washington Area comes
from states outside of the nonattainment area.\12\ These commenters
state that the three States relied on emissions reductions in upwind
states to meet the 1997 ozone NAAQS. The commenters state that despite
attempts by EPA, the full benefits of a replacement rule have not been
realized and state it is premature to approve the attainment
demonstrations without a viable transport strategy in place. The
comments conclude that the burden remains on EPA to persevere to
replace CAIR so that further reductions are made to minimize
contributions from upwind states. The comments suggested EPA could use
CAA section 110(k)(5) to initiate a SIP call to merge addressing
transport for the 1997 ozone NAAQS with addressing transport for the
2008 ozone NAAQS. The commenters conclude that EPA's proposed action to
fully approve the attainment demonstrations from the June 2007 SIP
revisions without sufficiently addressing transport should not proceed
and that a partial approval should be granted at most of such things as
the MVEBs.
---------------------------------------------------------------------------

    \12\&thnsp;CSAPR was issued by EPA to replace CAIR and to help
states reduce air pollution and attain CAA standards. See 76 FR
48208 (August 8, 2011) (final rule). CSAPR requires substantial
reductions of SO2 and NOX emissions from EGUs
in 28 states in the Eastern United States that significantly
contribute to downwind nonattainment of the 1997 PM2.5
and ozone NAAQS and 2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    Response: EPA disagrees with the commenters that it is premature to
approve the attainment demonstrations from the June 2007 SIP revisions
for the 1997 ozone NAAQS due to concerns raised by the commenters
regarding CAIR and transport of pollution. CAIR, as relied on for
purposes of the attainment demonstration (and as described in more
detail below) was being implemented through the attainment date. As
provided in our earlier responses to comments, attainment
demonstrations are required to demonstrate that an area will attain the
NAAQS “by” a specific date, and EPA does not review such
SIPs to determine whether they will show continued maintenance of the
NAAQS. EPA is unclear about what the commenters are suggesting
regarding a SIP Call-i.e., whether they are suggesting that EPA
issue a SIP Call for the SIPs for the Washington DC Area or whether
they are make a broader suggestion that EPA issue a new SIP Call rule.
In either case, the comment is not relevant to the present rule. The
issue in this present rulemaking is whether EPA should approve specific
SIP submissions pending before the Agency and not whether EPA should
issue a SIP Call for the already-approved SIPs for the Washington DC
area. Nor, does this rulemaking action purport to address the broader
issue of whether EPA should issue a new “SIP Call” rule
requiring upwind states to address transported pollution for any NAAQS.
    Although not relevant for purposes of whether the attainment
demonstration demonstrates attainment by the attainment date, EPA notes
that EPA also disagrees with the characterization by the commenter that
the transport rules are not reducing transported emissions. Despite the
litigation regarding CAIR and CSAPR, the rules are providing a
continuous mandate to states to address upwind transport as described
in this response.
    CAIR was promulgated May 12, 2005 (70 FR 25162) and required 28
states and the District of Columbia to adopt and submit revisions to
their SIPs to eliminate sulfur dioxide (SO2) and
NOX emissions from EGUs that contribute significantly to
downwind nonattainment of the 1997 PM2.5 and ozone NAAQS.
The three States developed their attainment demonstrations for the June
2007 SIP revisions after CAIR was promulgated and being implemented in
Maryland, Virginia, and the District of Columbia. CAIR was remanded to
EPA in 2008, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir.
2008), but it was not vacated and implementation of the program
continued for most areas. EPA subsequently promulgated CSAPR to replace
CAIR and address transport for the 1997 ozone NAAQS. 76 FR 48208
(August 8, 2011). Implementation of CSAPR was scheduled to begin on
January 1, 2012, when CSAPR would have superseded the CAIR program.
However, numerous parties filed petitions for review of CSAPR, and on
December 30, 2011, the D.C. Circuit issued an order staying CSAPR
pending resolution of the petitions and directing EPA to continue to
administer CAIR. EME Homer City Generation, L.P. v. EPA, No.
11-1302 (D.C. Cir. Dec. 30, 2011), Order at 2.
    In 2012, the D.C. Circuit issued a decision in EME Homer City
Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), vacating CSAPR
and ordering EPA to continue administering CAIR pending the
promulgation of a valid replacement. On April 29, 2014, the Supreme
Court reversed the D.C. Circuit's decision on CSAPR and remanded the
case to the D.C. Circuit for further proceedings. EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014). After the Supreme Court
decision, EPA filed a motion to lift the stay on CSAPR and asked the
D.C. Circuit to toll CSAPR's compliance deadlines by three years, so
that the Phase 1 emissions budgets apply in 2015 and 2016 (instead of
2012 and 2013), and the Phase 2 emissions budgets apply in 2017 and
beyond (instead of 2014 and beyond). On October 23, 2014, the D.C.
Circuit granted EPA's motion. EME Homer City Generation, L.P. v. EPA,
No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA issued an
interim final rule to clarify how EPA will implement CSAPR consistent
with the D.C. Circuit's order granting EPA's motion requesting lifting
the stay and tolling the rule's deadlines. 79 FR 71663 (December 3,
2014) (interim final rulemaking).
    Throughout the litigation described previously in this rulemaking
action, EPA continued to implement CAIR

which led to significant reductions in emissions of SO2 and
NOX from EGUs. However, on December 31, 2014, EPA sunset
CAIR's provisions, and implementation of CSAPR began on January 1, 2015
in accordance with our interim final rule. 79 FR 71663. Now that
implementation of CSAPR has begun, the emission reductions in
SO2 and NOX from implementation of CAIR at EGUs
will continue through CSAPR implementation. See 76 FR 48208.
    Comment: One commenter asserts that EPA has changed its position on
whether or not EPA could approve the attainment demonstrations from the
June 2007 SIP revisions for the Washington Area as well as other ozone
nonattainment areas under the 1997 ozone NAAQS. The commenter claims
that at one time EPA stated that it could not approve the attainment
demonstration portions of the June 2007 SIP revisions because the
modeling was based on CAIR; the commenter links the uncertainty about
CAIR to doubts about assurances that the 1997 ozone NAAQS would be
attained. The commenter asserts that EPA's proposed approval relies
upon the same modeling which continues to be based on CAIR (which was
remanded to EPA) and claims the change in policy seems to be based on
ambient air quality monitoring data which allowed EPA to declare that
the Washington Area attained the 1997 ozone NAAQS. The commenter claims
EPA should not approve an attainment demonstration that relies on
modeling which was based in part on CAIR.
    Response: As explained previously in response to a prior comment,
EPA sunset its implementation of CAIR on December 31, 2014 and is now
implementing CSAPR pursuant to the Supreme Court's upholding of CSAPR
as a means to address transport of pollution for the 1997 ozone NAAQS,
pursuant to the D.C. Circuit's lifting the stay on CSAPR, and pursuant
to our interim final rule which provided clarification that CSAPR would
be implemented as of January 1, 2015. During the litigation in the D.C.
Circuit over CAIR and CSAPR, EPA continued to review and evaluate SIPs
such as the June 2007 SIP revisions in accordance with CAA
requirements. EPA disagrees that it “changed its position”
on the approvability of the attainment demonstrations from the June
2007 SIP revisions. During the pendency of litigation concerning CAIR
and CSAPR, EPA merely exercised caution in reviewing data which relied
upon CAIR, and EPA proposed approval of the June 2007 SIP revisions
when EPA concluded reliance upon data related to CAIR was appropriate
given the litigation in the D.C. Circuit. However, as mentioned
previously, EPA continued to implement CAIR during the litigation in
the D.C. Circuit, and emission reductions of SO2 and
NOX from EGUs occurred through CAIR. The States
appropriately relied on CAIR and CAIR emission reductions in the June
2007 SIP revisions. EPA believes that continued and further reductions
will occur with CSAPR. While the air quality data for the Washington
Area has changed and improved generally over time, the air quality data
presently indicates the Washington Area is attaining the 1997 ozone
NAAQS and the Washington Area did attain by its attainment date of June
15, 2010 when EPA was implementing CAIR.
    As explained in the March 20, 2013 NPR, in the February 26, 2013
TSD, in the TSD Supplement, and in response to prior comments, EPA
based our decision to approve the attainment demonstrations upon the
fact that the Washington Area did in fact attain the 1997 ozone NAAQS
by the required June 15, 2010 attainment date and upon our evaluation
that the Area continues to attain the 1997 ozone NAAQS. EPA believes
the attainment demonstrations are in accordance with CAA requirements
in sections 172 and 182 and believes the improving air quality data
supports our decision to approve these attainment demonstrations for
the 1997 ozone NAAQS. Thus, for the reasons detailed in the March 20,
2013 NPR and in this rulemaking action, EPA finds the attainment
demonstration in accordance with CAA requirements, and EPA disagrees
with commenters that any concerns with CAIR prevent our approval of
these attainment demonstrations.
    Comment: One commenter noted that although speedy approval of SIPs
is desirable, at this juncture, approval of the attainment
demonstrations from the June 2007 SIP revisions sends the wrong message
to states and the public. The commenter claims that approval will not
force state actions to address the 1997 and 2008 ozone NAAQS and
therefore will result in continuation of unhealthy air for citizens of
the Washington Area.
    Response: EPA disagrees with the commenter that action on the SIP
“sends the wrong message” to the public. Under the CAA,
states are required to develop plans for each NAAQS and EPA is required
to act on such submittals. Thus, to the extent the commenter is
suggesting that EPA not act on the submission, such inaction is not
allowed under the CAA. See CAA section 110(k)(1)–(3). The
commenter's claim that action on an attainment SIP for the 1997 NAAQS
will not force action by the state on a SIP for the 2008 NAAQS or will
“continue” unhealthy air is misguided. The 2008 ozone NAAQS
is a separate NAAQS with a separate statutory schedule for state
adoption and submission of SIPs. EPA's action on a SIP required to
address the 1997 ozone NAAQS has no effect on the obligation of the
state to adopt rules and plans to meet the 2008 ozone NAAQS. In
addition, SIPs for the 2008 ozone NAAQS are not yet due. Although, the
attainment SIP for the 1997 ozone NAAQS is not intended to demonstrate
how the state will meet the tighter 2008 ozone NAAQS, the reductions
achieved by the attainment SIP will also provide benefits for that
newer 2008 ozone standard.
    Comment: One commenter asserted that if the proposed 2008 SIP
Requirements Rule moves forward as currently written and the 1997 ozone
NAAQS is entirely revoked, EPA could consider a process similar to that
conducted during transition from the 1-hour standard to the 1997 8-hour
standard. Under such process, the Washington Area's
“moderate” area requirements under the 1997 standard could
be continued under the 2008 standard, at least until the region is
designated “attainment” for the 1997 standard, as suggested
in CAA section 172(e).
    Response: This comment addresses the substance of a separate rule
for implementing the 2008 ozone NAAQS and is not related to whether EPA
should approve the attainment demonstration addressed in this action
rulemaking. EPA will address in the final action on that separate rule
concerning implementation of the 2008 ozone NAAQS, the issue of how
long the requirements applicable for the 1997 NAAQS remain in place as
areas transition to implementation of the 2008 ozone NAAQS.
    Comment: Several commenters noted that because of the determination
of attainment by the attainment date and clean data determination for
the Washington Area issued on February 28, 2012, EPA will not have to
reclassify the Washington Area under the 1997 ozone NAAQS and that the
three States are not required to submit any planning SIPs related to
attainment of the 1997 ozone NAAQS standard unless a violation of the
standard occurs. The commenters assert that violation of the 1997 ozone
NAAQS has occurred and called for action by EPA. These commenters
asserted that section 110(k)(5) requires EPA to issue a SIP call
because the attainment demonstrations in the June 2007 SIP revisions
are inadequate to

maintain the 1997 ozone NAAQS in the Washington Area. EPA received
other comments that suggested EPA merge the SIP call requirement in
section 110(k)(5) under the 1997 ozone NAAQS with requirements under
the 2008 ozone NAAQS. One commenter asserted that in addition to
section 110(k)(5), EPA could use section 110(k)(6) to correct prior
actions when EPA finds a previously approved SIP inadequate. One
commenter speculated that EPA has not moved with an action under
section 110(k)(5) perhaps because the area has been designated
nonattainment for the 2008 ozone standard.
    Response: The comments do not address EPA's action on the
attainment demonstration, but instead suggest that EPA take additional
rulemaking pursuant to CAA section 110(k)(5) or 110(k)(6) and thus are
outside the scope of this rulemaking action. EPA notes that although
the 2012 design value was violating the 1997 ozone NAAQS, the area is
attaining that NAAQS based on the 2013 design value and preliminary
data from 2014 indicates that it is continuing to meet the 1997 ozone
NAAQS.
    Comment: EPA received comments claiming that EPA should promptly
revoke the determination of attainment EPA issued for the Washington
Area on February 28, 2012 (77 FR 11739) based on the 2010 to 2012 air
quality data showing a violation of the 1997 ozone NAAQS.
    Response: The comments do not address this action on the attainment
demonstration, but instead suggest that EPA take additional rulemaking
action to revoke our prior clean data determination for the Washington
Area; thus the comments are outside the scope of this rulemaking
action. As discussed previously, EPA notes that based on air quality
data from 2011 to 2013 and on preliminary data from 2012 to 2014, the
Washington Area is attaining the 1997 ozone NAAQS and thus currently
has clean data for the 1997 ozone NAAQS.
    Comment: EPA received comments claiming that EPA explained in its
proposed approval of the Washington Area attainment demonstrations from
the June 2007 SIP revisions that the actual monitored values from the
attainment year confirm the model over-predicted ozone concentrations
by 0.002 ppm (2 ppb) and also claiming that the actual design values
upon which EPA based these findings of model over-prediction are from
years that are not representative of the same kind of meteorology
chosen for the modeling. The commenter claims that the attainment year
period was cooler and wetter and would be expected to generate less
ozone. The commenter asserts that the design values for the Washington
Area have increased for four straight years now that data from 2009 is
not included in the design value calculation. The commenter notes that
the most recent air quality data indicates the model-predicted ozone
values are just as likely to be correct rather than an over-prediction.
In addition, the commenter notes that EPA also cited a descending trend
in ozone values as weight of evidence that the modeling over-predicts
ozone for the region. Now that design values no longer include 2009
ozone season data, the commenter claims design value trends are
increasing and do not show continued attainment of the 1997 ozone
NAAQS. These comments conclude that EPA must disapprove the attainment
demonstration based on the current values.
    Response: As EPA has explained previously, the issue for approving
the attainment demonstration is not whether the area has continued to
maintain the NAAQS several years following the attainment date, but
rather whether the modeled attainment demonstration demonstrated that
the area would attain by its attainment date. For the reasons provided
in the proposed rule and this final rule, EPA has determined that the
attainment demonstrations in the June 2007 SIP revisions show
attainment by the Area's attainment date of June 15, 2010. Furthermore,
monitored attainment, including the 2009 design value, support that the
Washington Area attained the standard by its attainment date.
    EPA notes that in the March 20, 2013 NPR, EPA stated that the
modeling conducted by the three States for the June 2008 SIP revisions
over predicted 2009 ozone design values relative to the actual
monitored 2009 to 2011 design values for most cases and always for four
monitors for which the modeled design values were in the range of 82 to
87 ppb. See 78 FR at 17164. EPA also stated in the March 20, 2013 NPR
that the modeling in the three States' June 2007 SIP revisions over
predicted 2009 predicted design values when compared to actual
monitored design values since 2009. Id. EPA compared the modeled design
values to the actual design values based upon air quality data in Table
2, “Modeled Predicted 2009 Design Values versus Actual Monitored
Design Values” in the February 26, 2013 TSD. This comparison
showed that the actual attainment year design values were below the
model predicted values, but more significantly were below the 1997
ozone NAAQS of 84 ppb.\13\
---------------------------------------------------------------------------

    \13\&thnsp;The 1997 ozone NAAQS as codified at 40 CFR 50.10 is
0.08 ppm, but EPA's interpretation (and under the interpretation in
Appendix I to 40 CFR part 50) of the 1997 ozone NAAQS after
considering the number of significant figures requires a design
value equal to or greater than 0.085 ppm (85 ppb) to be a violation.
---------------------------------------------------------------------------

    At the time EPA issued the March 20, 2013 NPR, EPA did not have
certified 2012 or 2013 data. When EPA proposed in 2013 to approve the
attainment demonstrations in the June 2007 SIP revisions, EPA
considered the overall downward trend in monitored ozone air quality in
the Washington Area and that the Area attained the 1997 ozone NAAQS by
the attainment date applicable under section 181 of the CAA. While the
2010-2012 air quality design value does show an increase over the
design values EPA previously considered, EPA continues to believe the
air quality data for the Washington Area supports our approval of the
June 2007 SIP revisions as the 2011-2013 AQ data (and the
2012-2014 AQ data based upon the preliminary 2014 data) shows the
Washington Area is attaining the 1997 ozone NAAQS.
    EPA agrees with the commenters that weather plays an important role
in ozone formation. However, EPA believes that these considerations do
not require EPA to disapprove the attainment demonstrations in the June
2007 SIP revisions. None of the design values predicted in the modeling
from the three States in the June 2007 SIP revisions were above 87 ppb.
Therefore, as explained in the February 26, 2013 TSD, a weight of
evidence demonstration could be considered and was considered by EPA.
The three States presented downward trends in design values (through
2006 as the States submitted the SIP in 2007), in numbers of
exceedances, in nitrogen dioxide and carbon monoxide levels, and in
emissions levels, as well as a decrease in the spatial extent of
nonattainment in the Washington area and a decrease in the number of
days the 1997 ozone NAAQS was exceeded when the maximum temperature
exceeded 90 degrees Fahrenheit. For the proposed approval in the March
20, 2013 NPR, EPA also considered monitored ozone design values for
years after 2006 which declined from an area-wide maximum 91 ppb for
the 2004-2006 period to 80 ppb for the 2007-2009 (the
effective applicable attainment period). At best, EPA believes that a
modeled attainment demonstration with a supporting weight of evidence
demonstration is a prediction about future events. For attainment

demonstrations, EPA has recommended using model predictions in a
relative rather than absolute sense and using weight of evidence to
lessen the problems posed by less than ideal model performance on
individual days by anchoring the future predicted concentrations to
real ambient values and to address associated uncertainties in model
results and projections.\14\ In addition, EPA believes that the form of
the 1997 8-hour ozone NAAQS necessitates such an attainment test.\15\
---------------------------------------------------------------------------

    \14\&thnsp;See “Guidance on the Use of Models and Other
Analyses for Demonstrating Attainment of Air Quality Goals for
Ozone, PM2.5 and Regional Haze,” EPA-454/
B-07-002, dated April 2007 (2007 Modeling Guidance for
Ozone, PM2.5 and Regional Haze), which is available at
http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf and is also included in the docket for this action and
available online at www.regulations.gov in docket number
EPA-R03-OAR-2013-0132.
    \15\&thnsp;See 2007 Modeling Guidance for Ozone,
PM2.5, and Regional Haze.
---------------------------------------------------------------------------

    In general, EPA does not consider the monitored ambient air quality
data for periods after the attainment date to be particularly
dispositive when acting on an attainment demonstration due under
section 182(b). As explained previously in response to prior comments,
EPA must approve a SIP submission such as an attainment SIP if the SIP
submission meets applicable requirements in CAA sections 172 and 182.
If an area does attain by its applicable attainment date, EPA has no
authority to reclassify the area even if the area subsequently violates
the ozone NAAQS.\16\ EPA believes this evinces a preference for actual
air quality results over modeled predictions, and we believe that EPA
must place great weight upon monitored attainment by the statutorily
required attainment date when evaluating an attainment demonstration
for compliance with CAA requirements.
---------------------------------------------------------------------------

    \16\&thnsp;As noted previously, when an area does not attain by
its applicable attainment date, the area is subject to
reclassification or other provisions pursuant to section 182(b) of
the CAA.
---------------------------------------------------------------------------

    As noted in response to other comments, EPA believes that an
attainment demonstration required under sections 172 and 182(b) need
not demonstrate maintenance of the ozone NAAQS after the applicable
attainment date and need only demonstrate timely attainment by the
attainment date. While the commenters raise concerns for maintenance of
the 1997 ozone NAAQS based on the 2010-2012 design value for the
Washington Area, the 2011-2013 design values (and preliminary
data for 2012-2014) show attainment with the 1997 ozone NAAQS as
mentioned previously. EPA did not in the March 20, 2013 NPR propose any
sort of finding regarding sufficiency of any state's SIP with regards
to maintenance of the 1997 ozone NAAQS in the Washington Area. In
addition, maintenance of the 1997 ozone NAAQS is not a requirement for
our approval of an attainment SIP required by CAA sections 172 and 182
as discussed previously in response to a prior comment and will be
addressed in a separate SIP if the Washington Area seeks redesignation.
    Finally, EPA believes that section 110(k)(5) provides a separate
remedy, outside the scope of this rulemaking action, via a “SIP
call” which provides the necessary authority to require remedial
action through additional measures for a SIP where an ozone
nonattainment area attains the ozone NAAQS by the applicable attainment
date under section 181 but later violates that ozone NAAQS. See 64 FR
70205, 70206 (December 16, 1999) (final SIP call rule for Birmingham,
Alabama marginal 1-hour ozone nonattainment area to address inadequacy
of a SIP) and 79 FR 27830, 27832 (May 15, 2014) (proposed SIP call for
the New York-New Jersey-Long Island moderate 1997 8-hour ozone
nonattainment area).
    Comment: EPA received a comment that it is arbitrary and capricious
for the attainment demonstration modeling to only model for design
values at monitoring stations. The commenter states that the whole
metropolitan DC area is designated nonattainment, not just the tiny
area covered by the monitoring stations. The commenter states that the
NAAQS apply everywhere and that people are located throughout the
Washington Area, not just at the monitoring stations. The commenter
claims the model is capable of having a receptor grid that provides
design values for the entire Washington Area and that by looking at
design values at the monitoring station, EPA is deliberately ignoring
an important aspect of the problem, that is whether the SIP provides
people throughout the Washington Area with air that contains ozone
below the health-based limit in the NAAQS.
    Response: EPA disagrees with the comment that it was arbitrary and
capricious for the attainment demonstration modeling to only model for
design values at monitoring stations and not for the entire Washington
Area. The three States' attainment demonstration modeling was in
accordance with EPA's 2007 Modeling Guidance for Ozone,
PM2.5, and Regional Haze and considered appropriate data. As
an initial matter, the performance of the air quality model used in a
SIP submission can only be assessed by comparison of the model
predicted ozone concentrations for the baseline year in the vicinity of
any air quality monitors in place with the actual monitored ozone
concentrations recorded at air quality monitors in place during the
baseline year. EPA's 2007 Modeling Guidance for Ozone,
PM2.5, and Regional Haze in section 2.0 provides for using
the modeling results in a relative sense, that is, the ratio, called a
“relative response factor” (RRF), of the model's future to
current (baseline) predictions at monitors is used to determine if
attainment is predicted.\17\ In section 2.4 of that guidance, EPA
explained its reasons for using the models in a relative sense. These
RRFs are used to estimate concentrations at existing monitoring sites
by multiplying a modeled RRF at locations “near” each
monitor by the observation-based, monitor-specific,
“baseline” design value. The resulting predicted
“future concentrations” are compared to the NAAQS as part
of the modeled attainment test and attainment demonstration.
---------------------------------------------------------------------------

    \17\&thnsp;The 2007 Modeling Guidance for Ozone,
PM2.5 and Regional Haze is included in the docket for
this action as an attachment to docket item
EPA-R03-OAR-2013-0132-0006.
---------------------------------------------------------------------------

    While the 2007 Modeling Guidance for Ozone, PM2.5, and
Regional Haze recommends a test, the “unmonitored area
analysis,” which provides estimates of future year values in
unmonitored areas, the guidance notes this test is particularly needed
in nonattainment areas where the ozone monitoring network just meets or
minimally exceeds the size of the network required to report data to
AQS. EPA asserts that the Washington Area's monitoring network is not
such a network.
    The air quality monitoring network in the Washington Area far
exceeds the minimum required under 40 CFR part 58. The Washington Area
is part of the larger Washington-Arlington-Alexandria
(DC-VA-MD-WV) Metropolitan Statistical Area (MSA)
(known as the Washington-A-A MSA). Under Table D-2 of
appendix D of 40 CFR part 58, the absolute minimum monitoring network
for the Washington-A-A MSA based upon its population would be 3
ozone monitors, but the Washington-A-A MSA in fact contains 15
ozone monitors of which 13 are in the designated nonattainment area.
Consistent with the factors found in section 4.1(b) of appendix D of 40
CFR part 58, the additional monitors in the Washington Area are located
based on a variety of reasons such as providing for more than one
maximum concentration site within the MSA, characterizing

population exposure, and addressing factors including geographic size,
population density, and complexity of terrain and meteorology in the
MSA as well as air pollution transport.\18\ Given the extensive size
and coverage of the Washington Area monitoring network and the factors
considered for the size of the network, EPA disagrees with the comment
that it was arbitrary and capricious for the attainment demonstration
modeling to only model for design values at monitoring stations and not
consider the entire Washington Area. The three States' attainment
demonstration modeling considered appropriate data from monitors in the
Washington Area, which EPA reviewed in accordance with the 2007
Modeling Guidance for Ozone, PM2.5, and Regional Haze. EPA
has explained in the March 20, 2013 NPR and in this rulemaking that the
June 2007 SIP revisions including the attainment demonstration modeling
meet CAA requirements for attainment plans in sections 172 and 182.
---------------------------------------------------------------------------

    \18\&thnsp;Additionally, the monitors in the Washington Area are
located to measure areas of expected highest concentration downwind
of urban cores, to “background” concentrations entering
an area, and to represent some spatial scale to reflect
neighborhoods.
---------------------------------------------------------------------------

    Comment: EPA received comments that it is arbitrary and capricious
to approve the attainment demonstrations in the June 2007 SIP revisions
because, the commenter claims, the Area actually attained because of
the “recession” or weather. A commenter also stated that
recent 2010 and 2012 AQ data shows that 2009 was perhaps an
“outlier year” with regards to ozone formation and that the
attainment demonstration must model 2012 meteorological conditions (and
not 2002 conditions), or model even warmer meteorological conditions to
demonstrate that the emission limits and other nonattainment SIP
provisions will attain the NAAQS. The commenter also stated that the
attainment demonstration must consider climate change.
    Response: EPA disagrees that these comments provide a basis to
disapprove the attainment demonstrations in the June 2007 SIP
revisions. The overarching concerns that seem to be raised by the
commenter are that meteorology less conducive to ozone formation in
2009 resulted in attainment and that the attainment demonstration did
not adequately account for meteorological variability.\19\
---------------------------------------------------------------------------

    \19\&thnsp;The commenter also cites to “climate
change” without any explanation, but EPA presumes it is being
raised as part of the more general argument regarding meteorological
variability.
---------------------------------------------------------------------------

    First, meteorological variability is addressed in the form of the
1997 ozone NAAQS. In choosing the form of the 1997 ozone NAAQS as the
3-year average of the fourth highest daily maximum 8-hour average ozone
concentration, the EPA Administrator adopted the Clean Air Scientific
Advisory Committee's recommendation that “a more robust,
concentration-based form would minimize . . . instability and
provide some insulation from the impacts of extreme meteorological
events that are conducive to [ozone] formation.” See 62 FR 38856,
38868 (July 18, 1997). The form of the 1997 ozone NAAQS is intended to
minimize the effect of not only those years with more extreme
meteorological events conducive to ozone formation but also those years
with more meteorological events not conducive to ozone formation. Thus,
EPA does not agree that meteorological conditions for any one year are
the basis for an area meeting or not meeting the NAAQS.
    Second, EPA notes that as an adjunct to the modeled attainment
demonstration, the three States did assess for the June 2007 SIP
revisions the potential effects of meteorological variations on the
results of the modeled attainment test. The future year model-predicted
ozone design value was determined by the three States by multiplying a
baseline ozone design value derived from ambient air quality monitoring
by the model-derived RRF.20&thnsp;21 This future year model-
predicted ozone design value therefore directly depends upon the value
of the baseline design value. The three States assessed the performance
of air quality modeling by inputting meteorological data such as wind
patterns and temperatures for 2002 and relevant emissions for 2002 and
comparing the results to the actual monitored ozone concentrations for
each day modeled.
---------------------------------------------------------------------------

    \20\&thnsp;Attainment of the 1997 ozone NAAQS is determined
using a design value, which is the 3-year annual fourth-highest
daily maximum 8-hour average ozone concentrations at each monitoring
location. For modeling for attainment demonstrations, EPA has
concluded that modeled RRFs should be applied to an average of
annual fourth-highest daily maximum 8-hour average ozone
concentrations including those of the baseline modeling year, which
is 2002 for the 1997 ozone NAAQS for the Washington Area.
    \21\&thnsp;EPA discusses RRFs in the 2007 Modeling Guidance for
Ozone, PM2.5, and Regional Haze. EPA also discussed the
use of RRFs in response to another comment in this rulemaking.
---------------------------------------------------------------------------

    EPA believes that, in practice, the choice of the “baseline
design value” can be critical to the determination of the
estimated future year design values. EPA's 2007 Modeling Guidance for
Ozone, PM2.5, and Regional Haze noted several possible
methods for computing a baseline design value and recommended using the
average of the three design values for three successive three-year
periods which include the baseline inventory year, which was 2002 for
the Washington Area. According to information in the June 2007 SIP
revisions, the three States were concerned that weighting the 2002
concentrations three times in the calculation could place too much (or
too little) weight on that individual year's meteorology and would not
necessarily reflect climate variability which has a significant impact
on future design value projections. The three States used two
additional methods for computing a baseline design value in order to
assess the effect on future design value projections. These
computations and the resulting future model-predicted attainment year
design values are discussed in section 10.5.9 “Alternative Design
Value Calculation Techniques” of the three States' 2007
attainment demonstration plan document dated May 23, 2007 (hereafter
the May 23, 2007 plan document) and Section III. C. “Weight of
Evidence Demonstration” and Appendix A of the February 26, 2013
TSD.\22\ For most, but not all, monitoring sites, a baseline design
value computed as the 3-year average of the annual fourth-highest daily
maximum 8-hour average ozone concentration over the period 2001 to 2003
produced the highest baseline design value for each monitor and
therefore the highest future year model-predicted design
value.23&thnsp;24 By considering these alternate baseline
design values, the three States assessed meteorological variability as
reflected in ozone design values or other averaged annual fourth-
highest daily maximum 8-hour average ozone concentrations that included
monitoring data for the 2002 baseline modeling year.
---------------------------------------------------------------------------

    \22\&thnsp;The May 23, 2007 plan document and the February 26,
2013 TSD are included in the docket for this rulemaking action and
are available online at www.regulations.gov.
    \23\&thnsp;EPA used monitored design values based upon 2001 to
2003 monitoring data to classify the Washington Area as moderate
ozone nonattainment for the 1997 ozone NAAQS. See 69 FR 23858, 23864
(April 30, 2004).
    \24\&thnsp;EPA's recommended method for determining baseline
design value was to average the monitored design values determined
for three successive periods: 2000 to 2002; 2001 to 2003, and 2002
to 2004 which weights the 2002 data by a factor of 3, 2001 and 2003
data each by a factor of 2, and 2000 and 2004 data each by a factor
of one. The last method computed a simple average of the annual
fourth-highest daily maximum 8-hour average ozone concentrations
over the period 2000 through 2004 (inclusive) which weights each
year's value equally.
---------------------------------------------------------------------------

    Thus, EPA concludes the three States considered meteorological
variability in conducting its attainment demonstrations, and we
assessed the

three States' modeling when reviewing and proposing to approve the June
2007 SIP revisions because the revisions meet CAA requirements. EPA
therefore disagrees with the commenter that our approval of the
attainment demonstrations is arbitrary or capricious because attainment
of the 1997 ozone NAAQS may have occurred due to influences from
meteorological variability not otherwise addressed by the standard and
the attainment demonstrations.\25\
---------------------------------------------------------------------------

    \25\&thnsp;The commenter also claims that attainment is due to
“the recession,” but provides no support for this claim
and therefore EPA provides no further response to the unsupported
claim.
---------------------------------------------------------------------------

    Furthermore, to the extent the commenters are suggesting that the
modeled attainment demonstration is defective because it was based on
2002 meteorological conditions and not those from 2009 or a later year,
EPA disagrees. Congress set explicit deadlines for submission of the
attainment demonstration SIP due under section 182(b)(1), and the
attainment demonstrations for the 1997 ozone NAAQS were required to be
submitted by June 15, 2007. Thus, it was not feasible nor possible for
the states to use meteorological conditions from future years for
purposes of the attainment demonstration.
    The States' choice of 2002 meteorological conditions was inherently
reasonable and is well supported in Chapter 10 and Appendix G of the
three States' May 23, 2007 plan document.\26\ EPA designated
nonattainment areas for the 1997 ozone NAAQS generally using 2001 to
2003 AQ data. See 69 FR 23858 (April 30, 2004).\27\ Thus, the 2002
meteorological data represented meteorological conditions
contemporaneous with the data used to designate and classify the
Washington Area under the 1997 ozone NAAQS. Moreover, the 2007
attainment demonstration was based upon modeling the entire 2002 ozone
season. For that reason alone, it was reasonable for the States to rely
on the meteorological data for the same year.
---------------------------------------------------------------------------

    \26\&thnsp;The May 23, 2007 plan document is included in the
docket for this rulemaking action and is available online at
www.regulations.gov.
    \27\&thnsp;See e.g. 69 FR at 23860 (“In making
designations and classifications, we use the most recent 3 years of
monitoring data. Therefore, today's designations and classifications
are generally based on monitoring data collected in 2001-2003
although other relevant years of data may have been used in certain
circumstances”).
---------------------------------------------------------------------------

    However, the States supported their selection of 2002 meteorology
based upon a qualitative analysis and a quantitative analysis.\28\ The
quantitative analysis analyzed the entire Ozone Transport Region (OTR)
and considered ozone and meteorological data for a seven year period
(1997-2003) to capture the full range of OTR ozone episode
characteristics and to insure statistical significance of the recent
episode characteristics.\29\ The qualitative analysis describes each
2002 high ozone episode in terms of the weather patterns (movement of
warm or cold fronts, air movement patterns-speed and direction of
wind), cloud cover, temperature patterns, and locations of higher and
lower ozone concentrations for each episode day. The analysis of
regional ozone episode conditions over the OTR concluded that regional
ozone episode conditions can be reasonably well described by a set of
five different episode types each associated with a unique set of
distinguishing characteristics. Data from the 2002 ozone season were
analyzed within the framework of the five identified episode types with
respect to frequencies of occurrence of each type and characteristics
of the ozone and meteorological conditions within each type in 2002.
The analysis noted one difference between 2002 and the other years in
that the frequency of exceedances of the 1997 ozone NAAQS at one or
more monitoring sites within the OTR occurred more frequently than the
average of the other years, namely 1997-2001 plus 2003. There
were 71 exceedance days during the May-September season in 2002
as compared to an average of 55 days per season during these other
years. This analysis concluded that while ozone exceedances were more
frequent during 2002, this higher than average exceedance rate in 2002
is by itself not an indication of any lack of representativeness of the
2002 exceedance events. In addition, not only did the 2002 ozone season
have more days during which the 1997 ozone NAAQS was exceeded, but the
fourth highest daily maximum values for the ozone monitors were higher
during the 2002 ozone season than in any of the years 2000 through
2004, inclusive. In this time period, monitored fourth highest daily
maximum concentrations exceeded 100 ppb (0.100 ppm) only during 2002.
Such values over 100 ppb were recorded at nine of 17 monitors then in
operation.\30\ Such values of the fourth highest daily maximum
concentrations have not been recorded since.\31\ EPA finds the States'
use of data from 2002 reasonable, well documented and supported. In
contrast, the commenter has provided no support for the allegation that
our approval of the attainment demonstrations is arbitrary or
capricious based on the three States' use of 2002 data for the
attainment demonstration instead of a subsequent year.
---------------------------------------------------------------------------

    \28\&thnsp;These documents are provided in Appendix G of
Attachment 2 of the May 23, 2007 plan document and docketed as
document item ID#
EPA-R03-OAR-2013-0132-0005 under
“state submittal: Appendix G Attainment Modeling Demonstration
and Documentation (Part 1)” in the docket for this rulemaking
action.
    \29\&thnsp;See Attachment 2 to Appendix G and Chapter 10 of the
May 23, 2007 plan document which is docket item
EPA-R03-OAR-2013-0132-0005 in the
docket for this rulemaking action.
    \30\&thnsp;See the ozone monitor value reports for 2000 through
2004 attached to the TSD Supplement or the column labeled
“Annual 4th Highest 8-Hour Ozone (ppm)” in the table
titled “Design Value-BY 2002” on page 1, Appendix
G Attachment 11, of the May 23, 2007 plan document (the attachment
titled “state submittal: Appendix G Attainment Modeling
Demonstration and Documentation (Part 4)” under document ID
EPA-R03-OAR-2013-0132-0005 in the
docket available at www.regulations.gov.
    \31\&thnsp;EPA believes that air quality monitoring data (number
of exceedances or highest recorded values) cannot be used as a
surrogate for meteorological conditions when comparing years after
2004 to years before 2004 because the NOX SIP call
drastically reduced NOX emissions from EGUs in the years
after 2004. See 75 FR 45210, 45214, columns 2 and 3 (August 2, 2010)
(discussing the change in ozone air quality since the
2001-2003 time period used to designate and classify 1997
ozone nonattainment areas within the rulemaking for the
NOX SIP call).
---------------------------------------------------------------------------

    To the extent the commenters are suggesting that the States must
remodel using meteorological conditions for years long after the 2007
submittal date (and after the attainment date), EPA notes that is
neither mandated by the statute nor reasonable. Congress imposed
deadlines on the States that clearly envisioned an end to the
preparation of the attainment demonstration and did not establish any
requirement for states to submit new, revised attainment demonstrations
in the absence of a call from EPA pursuant to CAA section 110(k)(6) to
do so or to submit a new attainment demonstration for a new, future
attainment date based on a failure to attain by the attainment
date.\32\
---------------------------------------------------------------------------

    \32\&thnsp;This does not preclude a State by its own choice from
updating a previously submitted attainment demonstration.
---------------------------------------------------------------------------

V. Final Action

    EPA is approving the attainment demonstrations, contingency
measures, and associated 2009 and 2010 year MVEBs for the Washington
Area which were submitted to EPA as SIP revisions by the three States
in the June 2007 SIP revisions based on a determination that they meet
applicable requirements in the CAA.

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 §&thnsp;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 approved SIP,
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. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
    &sbull; 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);
    &sbull; does not impose an information collection burden under
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    &sbull; 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.);
    &sbull; does not contain any unfunded mandate or significantly
or uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
    &sbull; does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
    &sbull; is not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
    &sbull; is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
    &sbull; 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
    &sbull; 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 rule 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a “major rule” as defined by 5
U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate

circuit by June 9, 2015. Filing a petition for reconsideration by the
Administrator of this final rule does not affect the finality of this
action for the purposes of judicial review nor does it extend the time
within which a petition for judicial review may be filed, and shall not
postpone the effectiveness of such rule or action. This action
approving the attainment demonstrations, contingency measures, and
associated 2009 and 2010 year MVEBs for the Washington Area for the
1997 ozone NAAQS may not be challenged later in proceedings to enforce
its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: March 13, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52-APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart J-District of Columbia

0
2. In §&thnsp;52.470, the table in paragraph (e) is amended by
adding the entries for Attainment Demonstration Contingency Measure
Plan and 8-hour Ozone Modeled Demonstration of Attainment and
Attainment Plan for the 1997 ozone national ambient air quality
standards to reads as follows:

§&thnsp;52.470  Identification of plan.

* * * * *
    (e)* * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable      State submittal
            revision              geographic area          date        EPA approval date  Additional explanation
----------------------------------------------------------------------------------------------------------------

*         *         *&
emsp;        *         *&em
   sp;        *         *
Attainment Demonstration         Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2010 motor vehicle
 Contingency Measure Plan.        VA 1997 8-Hour                        Federal Register   emissions budgets of
                                  Ozone                                 citation].         144.3 tons per day
                                  Nonattainment                                            (tpd) NOX.
                                  Area.
8-hour Ozone Modeled             Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2009 motor vehicle
 Demonstration of Attainment      VA 1997 8-Hour                        Federal Register   emissions budgets of
 and Attainment Plan for the      Ozone                                 citation].         66.5 tons per day
 1997 ozone national ambient      Nonattainment                                            (tpd) for VOC and
 air quality standards.           Area.                                                    146.1 tpd of NOX.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.476 is amended by adding paragraphs (h) and (i) to read
as follows:

§&thnsp;52.476  Control strategy: ozone.

* * * * *
    (h) EPA approves revisions to the District of Columbia State
Implementation Plan consisting of the attainment demonstration required
under 40 CFR 51.908 demonstrating attainment of the 1997 ozone NAAQS by
the applicable attainment date of June 15, 2010 and the failure to
attain contingency measures for the Washington, DC-MD-VA 1997 8-hour
ozone moderate nonattainment area submitted by the Acting Director of
the District of Columbia Department of the Environment on June 12,
2007.
    (i) EPA approves the following 2009 attainment demonstration and
2010 motor vehicle emissions budgets (MVEBs) for the Washington, DC-MD-
VA 1997 8-hour ozone moderate nonattainment area submitted by the
Acting Director of the District of Columbia Department of the
Environment on June 12, 2007:

                  Transportation Conformity Emissions Budgets for the Washington, DC-MD-VA Area
----------------------------------------------------------------------------------------------------------------
                                                                                Effective date of
  Type of control strategy SIP          Year            VOC (TPD)          NOX (TPD)      adequacy determination
                                                                                or SIP approval
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.......               2009               66.5              146.1  February 22, 2013 (78
                                                                                FR 9044), published
                                                                                February 7, 2013.
Contingency Measures Plan......               2010  .................              144.3  February 22, 2013 (78
                                                                                FR 9044), published
                                                                                February 7, 2013.
----------------------------------------------------------------------------------------------------------------

Subpart V-Maryland

0
4. In §&thnsp;52.1070, the table in paragraph (e) is amended by
adding the entries for Attainment Demonstration Contingency Measure
Plan and 8-hour Ozone Modeled Demonstration of Attainment and
Attainment Plan for the 1997 ozone national ambient air quality
standards . The added text reads as follows:

§&thnsp;52.1070  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable      State submittal
            revision              geographic area          date        EPA Approval date  Additional explanation
----------------------------------------------------------------------------------------------------------------

*         *         *&
emsp;        *         *&em
   sp;        *         *
Attainment Demonstration         Washington, DC-MD- June 4, 2007.....  4/10/15 [Insert    2010 motor vehicle
 Contingency Measure Plan.        VA 1997 8-Hour                        Federal Register   emissions budgets of
                                  Ozone                                 citation].         144.3 tons per day
                                  Nonattainment                                            (tpd) NOX.
                                  Area.
8-hour Ozone Modeled             Washington, DC-MD- June 4, 2007.....  4/10/15 [Insert    2009 motor vehicle
 Demonstration of Attainment      VA 1997 8-Hour                        Federal Register   emissions budgets of
 and Attainment Plan for the      Ozone                                 citation].         66.5 tons per day
 1997 ozone national ambient      Nonattainment                                            (tpd) for VOC and
 air quality standards.           Area.                                                    146.1 tpd of NOX.
----------------------------------------------------------------------------------------------------------------

0
5. Section 52.1076 is amended by adding paragraphs (aa) and (bb) to
read as follows:

§&thnsp;52.1076  Control strategy plans for attainment and rate-
of-progress: Ozone.

* * * * *
    (aa) EPA approves revisions to the Maryland State Implementation
Plan consisting of the attainment demonstration required under 40 CFR
51.908 demonstrating attainment of the 1997 ozone NAAQS by the
applicable attainment date of June 15, 2010 and the failure to attain
contingency measures for the Washington, DC-MD-VA 1997 8-hour ozone
moderate nonattainment area submitted by the Secretary of the Maryland
Department of the Environment on June 4, 2007.
    (bb) EPA approves the following 2009 attainment demonstration and
2010 motor vehicle emissions budgets (MVEBs) for the Washington,
DC-MDVA 1997 8-hour ozone moderate nonattainment area submitted
by the Secretary of the Maryland Department of the Environment on June
4, 2007:

                  Transportation Conformity Emissions Budgets for the Washington, DC-MD-VA Area
----------------------------------------------------------------------------------------------------------------
                                                                                Effective date of
  Type of control strategy SIP          Year            VOC (TPD)          NOX (TPD)      adequacy determination
                                                                                or SIP approval
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.......               2009               66.5              146.1  February 22, 2013 (78
                                                                                FR 9044), published
                                                                                February 7, 2013.
Contingency Measures Plan......               2010  .................              144.3  February 22, 2013 (78
                                                                                FR 9044), published
                                                                                February 7, 2013.
----------------------------------------------------------------------------------------------------------------

Subpart VV-Virginia

0
6. In §&thnsp;52.2420, the table in paragraph (e) is amended by
adding the entries for Attainment Demonstration Contingency Measure
Plan and 8-hour Ozone Modeled Demonstration of Attainment and
Attainment Plan for the 1997 ozone national ambient air quality
standards to reads as follows:

§&thnsp;52.2420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable      State submittal
            revision              geographic area          date        EPA Approval date  Additional explanation
----------------------------------------------------------------------------------------------------------------

*         *         *&
emsp;        *         *&em
   sp;        *         *
Attainment Demonstration         Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2010 motor vehicle
 Contingency Measure Plan.        VA 1997 8-Hour                        Federal Register   emissions budgets of
                                  Ozone                                 citation].         144.3 tons per day
                                  Nonattainment                                            (tpd) NOX.
                                  Area.
8-hour Ozone Modeled             Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2009 motor vehicle
 Demonstration of Attainment      VA 1997 8-Hour                        Federal Register   emissions budgets of
 and Attainment Plan for the      Ozone                                 citation].         66.5 tons per day
 1997 ozone national ambient      Nonattainment                                            (tpd) for VOC and
 air quality standards.           Area.                                                    146.1 tpd of NOX.
----------------------------------------------------------------------------------------------------------------

0
7. Section 52.2428 is amended by adding paragraphs (j) and (k) to read
as follows:

§&thnsp;52.2428  Control Strategy: Carbon monoxide and ozone.

* * * * *
    (j) EPA approves revisions to the Virginia State Implementation
Plan consisting of the attainment demonstration required under 40 CFR
51.908 demonstrating attainment of the 1997 ozone NAAQS by the
applicable attainment date of June 15, 2010 and the failure to attain
contingency measures for the Washington, DC-MD-VA 1997 8-hour ozone
moderate nonattainment area submitted by the Director of the Virginia
Department of Environment Quality on June 12, 2007.
    (k) EPA approves the following 2009 attainment demonstration and
2010 motor vehicle emissions budgets (MVEBs) for the Washington,
DC-MDVA 1997 8-hour ozone moderate

nonattainment area submitted by the Director of the Virginia Department
of Environment Quality on June 12, 2007:

                  Transportation Conformity Emissions Budgets for the Washington, DC-MD-VA Area
----------------------------------------------------------------------------------------------------------------
                                                                                Effective date of
  Type of control strategy SIP          Year            VOC (TPD)          NOX (TPD)      adequacy determination
                                                                                or SIP approval
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.......               2009               66.5              146.1  February 22, 2013 (78
                                                                                FR 9044), published
                                                                                February 7, 2013.
Contingency Measures Plan......               2010  .................              144.3  February 22, 2013 (78
                                                                                FR 9044), published
                                                                                February 7, 2013.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-07957 Filed 4-9-15; 8:45 am]
 BILLING CODE 6560-50-P