
[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Proposed Rules]
[Pages 58206-58210]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24098]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2010-0986; FRL-9468-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to make two determinations regarding the 
Washington, DC-MD-VA moderate 8-hour ozone nonattainment area (the 
Washington Area). First, EPA is proposing to make a determination that 
the Washington Area has attained the 1997 8-hour ozone National Ambient 
Air Quality Standard (NAAQS). This proposed determination is based upon 
complete, quality assured, and certified ambient air monitoring data 
that show the area has monitored attainment of the 1997 8-hour ozone 
NAAQS for the 2007-2009 and 2008-2010 monitoring periods. If this 
proposal becomes final, the requirement for this area to submit an 
attainment demonstration, reasonably available control measures (RACM), 
a reasonable further progress (RFP) plan, and contingency measures 
related to attainment of the 1997 8-hours ozone NAAQS shall be 
suspended for so long as the area continues to attain the 1997 8-hour 
ozone NAAQS. Although these requirements are suspended, EPA is not 
precluded from acting upon these elements at any time if submitted to 
EPA for review and approval. Second, EPA is also proposing to determine 
that the Washington Area has attained the 1997 8-hour ozone NAAQS by 
its attainment date of June 15, 2010. These actions are being taken 
under the Clean Air Act (CAA).

DATES: Written comments must be received on or before October 20, 2011.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0986 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2010-0986, Cristina Fernandez, Associate 
Director, Office of Air Quality Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-0986. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

[[Page 58207]]


FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 814-2181, or by 
e-mail at pino.maria@epa.gov.

SUPPLEMENTARY INFORMATION: For detailed information regarding this 
proposal, EPA prepared a Technical Support Document (TSD). The TSD can 
be viewed at http://www.regulations.gov. The following outline is 
provided to aid in locating information in this action.

I. What is EPA proposing?
II. What is the background for these actions?
III. What are the effects of these actions?
IV. What is EPA's analysis of the relevant air quality data?
V. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia
VI. Proposed Actions
VII. Statutory and Executive Order Reviews

I. What is EPA proposing?

    Pursuant to sections 181(b)(2)(A) and 179(c) of the CAA, EPA is 
proposing to determine that the Washington Area attained the 1997 8-
hour ozone NAAQS by its attainment date, June 15, 2010. This proposed 
determination is based upon complete, quality assured, and certified 
ambient air monitoring data for the 2007-2009 monitoring period that 
show the area has monitored attainment of the 1997 8-hour ozone NAAQS 
during this monitoring period. Complete, quality assured, and certified 
ambient air monitoring data for the 2008-2010 monitoring period shows 
continued attainment.
    EPA is also proposing to make a determination that the Washington 
Area has attained the 1997 8-hour ozone NAAQS. This proposed 
determination is based upon complete, quality assured, and certified 
ambient air monitoring data that show the area has monitored attainment 
of the 1997 8-hour ozone NAAQS for the 2007-2009 and 2008-2010 
monitoring periods. Once this proposal is final, the requirement for 
this area to submit an attainment demonstration, reasonably available 
control measures, a reasonable further progress plan, and contingency 
measures related to attainment of the 1997 8-hours ozone NAAQS shall be 
suspended for so long as the area continues to attain the 1997 8-hour 
ozone NAAQS. Although these requirements are suspended, EPA is not 
precluded from acting upon these elements at any time if submitted to 
EPA for review and approval. The District of Columbia, the State of 
Maryland, and the Commonwealth of Virginia submitted these SIP elements 
for the Washington Area to EPA for review and approval in June 2007.
    On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour 
ozone standard of 0.075 parts per million (ppm). On January 6, 2010, 
EPA again addressed this 2008 revised standard and proposed to set the 
primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm, 
rather than at 0.075 ppm. EPA is working to complete reconsideration of 
the standard and thereafter will proceed with attainment/nonattainment 
area designations. This proposed rulemaking relates only to a 
determination of attainment for the 1997 8-hour ozone standard and is 
not affected by the ongoing process of reconsidering the 2008 standard. 
This action addresses only the 1997 8-hour ozone standard of 0.08 ppm, 
and does not address any subsequently revised 8-hour ozone standard.

II. What is the background for these actions?

A. The Washington Area

    In 1997, EPA revised the health-based NAAQS for ozone, setting it 
at 0.08 ppm averaged over an 8-hour time frame. EPA set the 8-hour 
ozone standard based on scientific evidence demonstrating that ozone 
causes adverse health effects at lower ozone concentrations and over 
longer periods of time, than was understood when the pre-existing 1-
hour ozone standard was set. EPA determined that the 8-hour standard 
would be more protective of human health, especially children and 
adults who are active outdoors, and individuals with a pre-existing 
respiratory disease, such as asthma.
    On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to 
the 8-hour ozone standard. These actions became effective on June 15, 
2004. Among those nonattainment areas is the Washington Area. The 
Washington Area includes the District of Columbia; Arlington, Fairfax, 
Loudoun, and Prince William Counties and the cities of Alexandria, 
Fairfax, Falls Church, Manassas, and Manassas Park in Virginia; and 
Calvert, Charles, Frederick, Montgomery, and Prince George's Counties 
in Maryland. The Washington Area was classified as a moderate 
nonattainment area. See, 40 CFR 81.309, 81.321 and 81.347. Moderate 
areas are required to attain the 1997 8-hour ozone NAAQS by no later 
than six years after designation, or June 15, 2010. See, 40 CFR 51.903.

B. Requirement to Determine Attainment by the Attainment Date

    Under CAA sections 179(c) and 181(b)(2), EPA is required to make a 
determination that a nonattainment area has attained by its attainment 
date, and publish that determination in the Federal Register. Under CAA 
section 181(b)(2), which is specific to ozone nonattainment areas, if 
EPA determines that an area failed to attain the ozone NAAQS by its 
attainment date, EPA is required to reclassify that area to a higher 
classification.

C. Clean Data Determination

    Under the provisions of EPA's ozone implementation rule (See, 40 
CFR section 51.918), if EPA issues a determination that an area is 
attaining the relevant standard (through a rulemaking that includes 
public notice and comment), it will suspend the area's obligations to 
submit an attainment demonstration, RACM, RFP, contingency measures and 
other planning requirements related to attainment for as long as the 
area continues to attain. The determination of attainment is not 
equivalent to a redesignation. The state must still meet the statutory 
requirements for redesignation in order to be redesignated to 
attainment.

D. Ambient Air Quality Monitoring Data

    Complete, quality assured, certified 8-hour ozone air quality 
monitoring data for 2007 through 2009 show that the Washington Area has 
attained the 1997 8-hour ozone NAAQS. The Washington Area continues to 
attain the 1997 8-hour ozone NAAQS considering complete, quality 
assured, certified 8-hour ozone air quality monitoring data for 2008 
through 2010.

III. What are the effects of these actions?

    If finalized, the proposed actions will not constitute a 
redesignation to attainment under section 107(d)(3) of the CAA. The 
designation status of the Washington Area will remain nonattainment for 
the 1997 8-hour ozone NAAQS until such time as EPA determines that the 
area meets the CAA requirements for redesignation to attainment, 
including an approved maintenance plan.

A. Proposed Determination of Attainment by the Attainment Date

    EPA is proposing to determine that the Washington Area has attained 
the 1997 ozone NAAQS by its applicable attainment date of June 15, 
2010. Once this determination of attainment is made final, EPA will 
have met its

[[Page 58208]]

requirement pursuant to CAA sections 181(b)(2)(A) and 179(c) to 
determine, based on the area's air quality as of the attainment date, 
whether the area attained the standard by that date. The effect of a 
final determination of attainment by the area's attainment date will be 
to discharge EPA's obligation under CAA sections 181(b)(2)(A) and 179, 
and to establish that, in accordance with CAA section 181(b)(2)(A), the 
area will not be reclassified for failure to attain by its applicable 
attainment date.

B. Clean Data Determination

    EPA is proposing to determine that the Washington Area is attaining 
the 1997 8-hour ozone NAAQS. Once EPA finalizes this determination of 
attainment, the CAA requirement for the Washington Area to submit an 
attainment demonstration and associated reasonably available control 
measures, a reasonable further progress plan, contingency measures, and 
any other planning SIPs related to attainment of the 1997 8-hour ozone 
NAAQS would be suspended for so long as the area continues to attain 
the 1997 8-hour ozone NAAQS.
    The determination of attainment will:
    1. Suspend the requirements to submit an attainment demonstration, 
RACM, RFP plan, contingency measures, and any other planning SIPs 
related to attainment of the 1997 8-hour ozone NAAQS;
    2. Continue until such time, if any, that EPA (i) redesignates the 
area to attainment at which time those requirements no longer apply, or 
(ii) subsequently determines that the area has violated the 1997 8-hour 
ozone NAAQS;
    3. Be separate from, and not influence or otherwise affect, any 
future designation determination or requirements for the area based on 
any new or revised ozone NAAQS; and
    4. Remain in effect regardless of whether EPA designates this area 
as a nonattainment area for purposes of any new or revised ozone NAAQS.
    Although these requirements are suspended, EPA is not precluded 
from acting upon these elements, which were submitted to EPA in June 
2007.

IV. What is EPA's analysis of the relevant air quality data?

    Consistent with the requirements contained in 40 CFR part 50, EPA 
has reviewed the complete, quality assured and certified ozone ambient 
air monitoring data for the monitoring periods 2007-2009 and 2008-2010 
for the Washington Area, as recorded in the EPA Air Quality System 
(AQS) database. On the basis of that review, EPA has concluded that 
this area attained the 1997 8-hour ozone NAAQS based on data for the 
2007-2009 ozone seasons, and continues to attain based on data for the 
2008-2010 ozone seasons.

A. Data Requirements

    Under EPA regulations at 40 CFR part 50, the 1997 8-hour ozone 
standard is attained at a site when the 3-year average of the annual 
fourth-highest daily maximum 8-hour average ozone concentrations at an 
ozone monitor is less than or equal to 0.08 parts per million (ppm) 
(i.e., 0.084 ppm, based on the rounding convention in 40 CFR part 50, 
appendix I). This 3-year average is referred to as the design value. 
When the design value is less than or equal to 0.084 ppm at each 
monitoring site within the area, then the area is meeting the NAAQS.
    Also, the data completeness requirement is met when the average 
percent of days with valid ambient monitoring data is greater than 90%, 
and no single year has less than 75% data completeness as determined in 
appendix I of 40 CFR part 50.

B. 2007-2009 Ozone Data

    Table 1 shows the ozone design values for each monitor in the 
Washington Area for the years 2007-2009. All 2007-2009 design values 
are below 0.084 ppm, and all monitors meet the data completeness 
requirements. Therefore, the Washington Area has attained the 1997 8-
hour ozone NAAQS, considering 2007-2009 data.

                       Table 1--2007-2009 Washington Area 1997 8-Hour Ozone Design Values
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                                                                                                     2007-2009
                                                                                     2007-2009       Average %
                 State                           County             Monitor ID     Design value        data
                                                                                       (ppm)       completeness
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Maryland..............................  Calvert.................       240090011           0.074              92
                                        Charles.................       240170010           0.075              99
                                        Frederick...............       240210037           0.076              98
                                        Montgomery..............       240313001           0.078              93
                                        Prince George's.........       240330030           0.078              95
                                                                       240338003           0.078              98
Virginia..............................  Arlington...............       510130020           0.079             100
                                        Fairfax.................       510590005           0.073              99
                                                                       510590018           0.080             100
                                                                       510590030           0.080              99
                                                                       510591005           0.078              93
                                                                       510595001           0.077             100
                                        Loudoun.................       511071005           0.077              99
                                        Prince William..........       511530009           0.071              98
                                        Alexandria City.........       515100009           0.075              97
District of Columbia..................                                 110010025           0.077              95
                                                                       110010041           0.078             100
                                                                       110010043           0.080             100
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C. 2008-2010 Ozone Data

    In 2010, four monitors in Fairfax County, Virginia were shutdown 
due to lack of funding. Virginia Department of Environmental Quality 
(VADEQ) worked with EPA prior to the Fairfax County Health Department 
shutting down these monitors. Because the Washington Area has more 
ozone monitoring sites than minimally required, and because VADEQ 
performed an analysis on the sites that were being shutdown showing a 
strong correlation between the ambient ozone data collected at the 
Fairfax County

[[Page 58209]]

ozone sites targeted for discontinuation and existing VADEQ ozone air 
monitoring sites currently operating in proximity to the Fairfax County 
area, EPA approved the shutdowns in VADEQ's 2010 Annual Network Plan. 
Therefore, EPA will not consider these monitors for comparison to the 
NAAQS with respect to 2010 data.
    Table 2 summarizes the 2008-2010 design values for the Washington 
Area. All 2008-2010 design values are below 0.084 ppm, and all monitors 
meet the data completeness requirements. Therefore, 2008-2010 data 
indicates that the Washington Area continues to attain the 1997 8-hour 
ozone NAAQS.

                          Table 2-2008-2010 Washington Area 8-Hour Ozone Design Values
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                                                                                     2008-2010       2008-2010
                 State                           County             Monitor ID     Design value   Average % data
                                                                                       (ppm)        completeness
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Maryland..............................  Calvert.................       240090011           0.077              93
                                        Charles.................       240170010           0.075              99
                                        Frederick...............       240210037           0.076              98
                                        Montgomery..............       240313001           0.074              93
                                        Prince George's.........       240330030           0.079              93
                                                                       240338003           0.077              99
Virginia..............................  Arlington...............       510130020           0.079              95
                                        Fairfax.................       510590030           0.081              94
                                        Loudoun.................       511071005           0.075              94
                                        Prince William..........       511530009           0.070              94
                                        Alexandria City.........       515100009           0.074              91
District of Columbia..................  ........................       110010025           0.075              90
                                                                       110010041           0.077              94
                                                                       110010043           0.079              95
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D. Conclusion

    EPA's review of the complete, quality assured and certified ozone 
ambient air monitoring data for the monitoring periods 2007-2009 and 
2008-2010 indicates that the Washington Area has met the 19978-hour 
ozone NAAQS. Additional information on air quality data for the 
Washington Area can be found in the TSD.

V. 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 counterpartsm * * *.'' 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.

[[Page 58210]]

VI. Proposed Action

    Pursuant to sections 179 and 181(b)(2)(A) of the CAA, EPA is 
proposing to determine that the Washington Area has attained the 1997 
8-hour ozone NAAQS by its moderate area attainment date, June 15, 2010. 
If EPA finalizes this determination, the requirements to submit an 
attainment demonstration and associated RACM, RFP plan, contingency 
measures, and any other planning requirements related to attainment of 
the 1997 8-hour ozone NAAQS will be suspended, as provided in 40 CFR 
section 51.918, so long as the area continues to attain the 1997 8-hour 
ozone NAAQS. EPA is soliciting public comments on the issues discussed 
in this document. These comments will be considered before taking final 
action.

VII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; 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, these proposed determinations of attainment of the 
1997 8-hour ozone NAAQS for the Washington Area do not have Tribal 
implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because this proposed action is not approved to 
apply in Indian country located in the state, and EPA notes that it 
will not impose substantial direct costs on Tribal governments or 
preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Ozone, Reporting and recordkeeping requirements.

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

    Dated: August 31, 2011.
W.C. Early,
Garvin, Regional Administrator, Region III.
[FR Doc. 2011-24098 Filed 9-19-11; 8:45 am]
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