
[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Rules and Regulations]
[Pages 58116-58120]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23967]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0475; FRL- 9466-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving State Implementation Plan (SIP) revisions 
submitted by the District of Columbia, the State of Maryland, and the 
Commonwealth of Virginia (the States). These revisions pertain to the 
2002 base year emissions inventory, the reasonable further progress 
(RFP) plan, RFP contingency measure, and reasonably available control 
measure (RACM) requirements of the Clean Air Act (CAA) for the 
Washington, DC-MD-VA moderate 1997 8-hour ozone nonattainment area (the 
Washington Area). EPA is also approving the 2008 transportation 
conformity motor vehicle emissions budgets (MVEBs) associated with this 
revision. EPA is approving the SIP revisions because they satisfy the 
emission inventory, RFP, RACM, RFP contingency measures, and 
transportation conformity requirements for areas classified as moderate 
nonattainment for the 1997 8-hour ozone national ambient air quality 
standard (NAAQS) and demonstrate further progress in reducing ozone 
precursors. This action is being taken under the CAA.

DATES: Effective Date: This final rule is effective on October 20, 
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2010-0475. All documents in the docket are listed in 
the http://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 http://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: Maria A. Pino, (215) 814-2181, or by 
e-mail at pino.maria@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On June 30, 2011 (76 FR 38334), EPA published a notice of proposed 
rulemaking (NPR) for the District of Columbia, the State of Maryland, 
and the Commonwealth of Virginia. The NPR proposed approval of the 2002 
base year emissions inventory, the RFP plan, RFP contingency measure, 
and RACM analysis for the Washington, DC-MD-VA moderate 1997 8-hour 
ozone

[[Page 58117]]

nonattainment area. These SIP elements were part of 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'' (the Washington Area 8-hour ozone plan), which the District of 
Columbia Department of the Environment (DDOE), the Maryland Department 
of the Environment (MDE), and the Virginia Department of Environmental 
Quality (VADEQ) developed jointly. The Washington Area 8-hour ozone 
plan was formally submitted to EPA as a SIP revision by DDOE on June 
12, 2007, by MDE on June 4, 2007, and by VADEQ on June 12, 2007. The 
NPR also proposed approval of the transportation conformity 2008 MVEBs 
associated with this revision.

II. Summary of SIP Revision

    The SIP revision addresses emissions inventory, RACM, RFP, and RFP 
contingency measures requirements for the 1997 8-hour ozone NAAQS for 
the Washington, DC-MD-VA 1997 8-hour moderate ozone nonattainment area. 
The SIP revision also establishes MVEBs for 2008. Other specific 
requirements of the Washington Area 8-hour ozone plan and the rationale 
for EPA's proposed action are explained in the NPR and will not be 
restated here. No public comments were received on the NPR.

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

    In 1995, Virginia adopted legislation that provides, subject to 
certain conditions, for an environmental assessment (audit) 
``privilege'' for voluntary compliance evaluations performed by a 
regulated entity. The legislation further addresses the relative burden 
of proof for parties either asserting the privilege or seeking 
disclosure of documents for which the privilege is claimed. Virginia's 
legislation also provides, subject to certain conditions, for a penalty 
waiver for violations of environmental laws when a regulated entity 
discovers such violations pursuant to a voluntary compliance evaluation 
and voluntarily discloses such violations to the Commonwealth and takes 
prompt and appropriate measures to remedy the violations. Virginia's 
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and 
information about the content of those documents that are the product 
of a voluntary environmental assessment. The Privilege Law does not 
extend to documents or information (1) That are generated or developed 
before the commencement of a voluntary environmental assessment; (2) 
that are prepared independently of the assessment process; (3) that 
demonstrate a clear, imminent and substantial danger to the public 
health or environment; or (4) that are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the 
Attorney General provided a legal opinion that states that the 
Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege 
to documents and information ``required by law,'' including documents 
and information ``required by Federal law to maintain program 
delegation, authorization or approval,'' since Virginia must ``enforce 
Federally authorized environmental programs in a manner that is no less 
stringent than their Federal counterparts.* * *'' The opinion concludes 
that ``[r]egarding Sec.  10.1-1198, therefore, documents or other 
information needed for civil or criminal enforcement under one of these 
programs could not be privileged because such documents and information 
are essential to pursuing enforcement in a manner required by Federal 
law to maintain program delegation, authorization or approval.''
    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that 
``[t]o the extent consistent with requirements imposed by Federal 
law,'' any person making a voluntary disclosure of information to a 
State agency regarding a violation of an environmental statute, 
regulation, permit, or administrative order is granted immunity from 
administrative or civil penalty. The Attorney General's January 12, 
1998 opinion states that the quoted language renders this statute 
inapplicable to enforcement of any Federally authorized programs, since 
``no immunity could be afforded from administrative, civil, or criminal 
penalties because granting such immunity would not be consistent with 
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and 
Immunity statutes will not preclude the Commonwealth from enforcing its 
program consistent with the Federal requirements. In any event, because 
EPA has also determined that a state audit privilege and immunity law 
can affect only state enforcement and cannot have any impact on Federal 
enforcement authorities, EPA may at any time invoke its authority under 
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to 
enforce the requirements or prohibitions of the state plan, 
independently of any state enforcement effort. In addition, citizen 
enforcement under section 304 of the CAA is likewise unaffected by 
this, or any, state audit privilege or immunity law.

III. Final Action

    EPA is approving the 2002 base year emissions inventory; the 2008 
ozone projected emission inventory; the 2008 RFP plan; RFP contingency 
measures; RACM analysis; and 2008 transportation conformity budgets for 
the Washington, DC-MD-VA 1997 8-hour moderate ozone nonattainment area, 
and the Washington Area 8-hour ozone plan, which were submitted to EPA 
as a SIP revision by DDOE on June 12, 2007, by MDE on June 4, 2007, and 
by VADEQ on June 12, 2007. The SIP revision satisfies the requirements 
for 1997 8-hour ozone NAAQS nonattainment areas classified as moderate 
and demonstrates further progress in reducing ozone precursors.

IV. 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:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or

[[Page 58118]]

safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this 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 November 21, 2011. 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, pertaining to the 2002 base year emissions 
inventory, the 2008 ozone projected emission inventory, the 2008 RFP 
plan; RFP contingency measures, RACM analysis, and 2008 transportation 
conformity budgets for the Washington, DC-MD-VA 1997 8-hour moderate 
ozone nonattainment area, 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: August 31, 2011.
W.C. Early,
Acting, Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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 Sec.  52.470, the table in paragraph (e) is amended by adding at 
the end of the table, the entries for Reasonable Further Progress Plan 
(RFP), Reasonably Available Control Measures and Contingency Measures; 
2002 Base Year Inventory for VOC, NOX and CO; and 2008 RFP 
Transportation Conformity Budgets for the Washington DC-MD-VA 1997 8-
hour Ozone Moderate Nonattainment Area. The amendments read as follows:


Sec.  52.470  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory  SIP         Applicable           State                                Additional
            revision                geographic area    submittal date   EPA approval date        explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Reasonable Further Progress Plan  Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 (RFP), Reasonably Available       1997 8-hour ozone                    page number where
 Control Measures, and             moderate                             the document
 Contingency Measures.             nonattainment area.                  begins].
2002 Base Year Inventory for      Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 VOC, NOX, and CO.                 1997 8-hour ozone                    page number where
                                   moderate                             the document
                                   nonattainment area.                  begins].
2008 RFP Transportation           Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 Conformity Budgets.               1997 8-hour ozone                    page number where
                                   moderate                             the document
                                   nonattainment area.                  begins].
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.474 is amended by revising the section heading and by 
adding paragraph (d) to read as follows:


Sec.  52.474  Base Year Emissions Inventory.

* * * * *
    (d) EPA approves as a revision to the District of Columbia State 
Implementation Plan the 2002 base year emissions inventories 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. This submittal consists of the 
2002 base year point, area, non-road mobile, and on-road mobile source 
inventories in area for the following pollutants: volatile organic 
compounds (VOC), carbon monoxide (CO) and nitrogen oxides 
(NOX).

0
4. Section 52.476 is amended by adding paragraphs (e) and (f) to read 
as follows:


Sec.  52.476  Control strategy: ozone.

* * * * *
    (e) EPA approves revisions to the District of Columbia State 
Implementation Plan consisting of the 2008 reasonable further progress 
(RFP) plan, reasonably available control measures, and 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.
    (f) EPA approves the following 2008 RFP motor vehicle emissions 
budgets (MVEBs) for the Washington, DC-MD-

[[Page 58119]]

VA 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
----------------------------------------------------------------------------------------------------------------
Rate of Progress Plan...............            2008             70.8            159.8   September 21, 2009 (74
                                                                                          FR 45853), published
                                                                                          September 4, 2009.
----------------------------------------------------------------------------------------------------------------

Subpart V--Maryland

0
5. In Sec.  52.1070, the table in paragraph (e) is amended by adding at 
the end of the table, the entries for Reasonable Further Progress Plan 
(RFP), Reasonably Available Control Measures and Contingency Measures; 
2002 Base Year Inventory for VOC, NOX and CO; and 2008 RFP 
Transportation Conformity Budgets for the Washington DC-MD-VA 1997 8-
hour Ozone Moderate Nonattainment Area. The amendments read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (e)* * *

 
----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory  SIP         Applicable           State                                Additional
            revision                geographic area    submittal date   EPA approval date        explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Reasonable Further Progress Plan  Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 (RFP), Reasonably Available       1997 8-hour ozone                    page number where
 Control Measures, and             moderate                             the document
 Contingency Measures.             nonattainment area.                  begins]..
2002 Base Year Inventory for      Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 VOC, NOX, and CO.                 1997 8-hour ozone                    page number where
                                   moderate                             the document
                                   nonattainment area.                  begins].
2008 RFP Transportation           Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 Conformity Budgets.               1997 8-hour ozone                    page number where
                                   moderate                             the document
                                   nonattainment area.                  begins].
----------------------------------------------------------------------------------------------------------------


0
6. Section 52.1075 is amended by adding paragraph (k) to read as 
follows:


Sec.  52.1075  Base Year Emissions Inventory.

* * * * *
    (k) EPA approves as a revision to the Maryland State Implementation 
Plan the 2002 base year emissions inventories 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. This submittal consists of the 2002 base year point, area, non-
road mobile, and on-road mobile source inventories in area for the 
following pollutants: volatile organic compounds (VOC), carbon monoxide 
(CO) and nitrogen oxides (NOX).

0
7. Section 52.1076 is amended by adding paragraphs (u) and (v) to read 
as follows:


Sec.  52.1076  Control strategy plans for attainment and rate-of-
progress: Ozone.

* * * * *
    (u) EPA approves revisions to the Maryland State Implementation 
Plan consisting of the 2008 reasonable further progress (RFP) plan, 
reasonably available control measures, and 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.
    (v) EPA approves the following 2008 RFP motor vehicle emissions 
budgets (MVEBs) 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:

                  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
----------------------------------------------------------------------------------------------------------------
Rate of Progress Plan...............            2008             70.8            159.8   September 21, 2009 (74
                                                                                          FR 45853), published
                                                                                          September 4, 2009.
----------------------------------------------------------------------------------------------------------------

Subpart VV--Virginia

0
8. In Sec.  52.2420, the table in paragraph (e) is amended by adding at 
the end of the table, the entries for Reasonable Further Progress Plan 
(RFP), Reasonably Available Control Measures and Contingency Measures; 
2002 Base Year Inventory for VOC, NOx and CO; and 2008 RFP 
Transportation Conformity Budgets for the Washington DC-MD-VA 1997 8-
hour Ozone Moderate Nonattainment Area. The amendments read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e)* * *

[[Page 58120]]



----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory  SIP         Applicable           State                                Additional
            revision                geographic area    submittal date   EPA approval date        explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Reasonable Further Progress Plan  Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 (RFP), Reasonably Available       1997 8-hour ozone                    page number where
 Control Measures, and             moderate                             the document
 Contingency Measures.             nonattainment area.                  begins].
2002 Base Year Inventory for      Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 VOC, NOx, and CO.                 1997 8-hour ozone                    page number where
                                   moderate                             the document
                                   nonattainment area.                  begins].
2008 RFP Transportation           Washington DC-MD-VA         6/12/07  9/20/11 [Insert
 Conformity Budgets.               1997 8-hour ozone                    page number where
                                   moderate                             the document
                                   nonattainment area.                  begins].
----------------------------------------------------------------------------------------------------------------


0
9. Section 52.2425 is amended by revising the section heading and by 
adding paragraph (e) to read as follows:


Sec.  52.2425  Base Year Emissions Inventory.

* * * * *
    (e) EPA approves as a revision to the Virginia State Implementation 
Plan the 2002 base year emissions inventories 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. This submittal consists of the 2002 base year point, area, non-
road mobile, and on-road mobile source inventories in area for the 
following pollutants: volatile organic compounds (VOC), carbon monoxide 
(CO) and nitrogen oxides (NOX).

0
10. Section 52.2428 is amended by adding paragraphs (f) and (g) to read 
as follows:


Sec.  52.2428  Control Strategy: Carbon monoxide and ozone.

* * * * *
    (f) EPA approves revisions to the Virginia State Implementation 
Plan consisting of the 2008 reasonable further progress (RFP) plan, 
reasonably available control measures, and 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.
    (g) EPA approves the following 2008 RFP motor vehicle emissions 
budgets (MVEBs) 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:

                  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
----------------------------------------------------------------------------------------------------------------
Rate of Progress Plan...............            2008             70.8            159.8   September 21, 2009 (74
                                                                                          FR 45853), published
                                                                                          September 4, 2009.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-23967 Filed 9-19-11; 8:45 am]
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