
[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Proposed Rules]
[Pages 45735-45752]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18482]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2014-0148; FRL-9914-71-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, and Virginia; Approval of the 
Redesignation Requests and Maintenance Plan of the Washington, DC-MD-VA 
Nonattainment Area for the 1997 Annual Fine Particulate Matter Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the requests from the District of Columbia (the District), the 
State of Maryland (Maryland), and the Commonwealth of Virginia 
(Virginia) (collectively ``the States'') to redesignate to attainment 
their respective portions of the Washington, DC-MD-VA nonattainment 
area (hereafter ``the Washington Area'' or ``the Area'') for the 1997 
annual fine particulate matter (PM2.5) National Ambient Air 
Quality Standard (NAAQS or standard). EPA is also proposing to approve 
as a revision to their respective State Implementation Plans (SIPs) the 
common maintenance plan submitted by the States to show maintenance of 
the 1997 annual PM2.5 NAAQS through 2025 for the Washington 
Area. The Washington Area maintenance plan includes motor vehicle 
emissions budgets (MVEBs) for PM2.5 and nitrogen oxides 
(NOX) for the Area for the 1997 annual PM2.5 
standard, which EPA is proposing to approve for transportation 
conformity purposes. These actions are being taken under the Clean Air 
Act (CAA).

DATES: Written comments must be received on or before September 5, 
2014.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0148 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: Fernandez.cristina@epa.gov.
    C. Mail: EPA-R03-OAR-2014-0148, Cristina Fern[aacute]ndez, 
Associate Director, Office of Air Quality Planning, Mailcode 3AP30, 
U.S. Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such

[[Page 45736]]

deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0148. EPA's policy is that all comments received will be included 
in the public docket without change, and may be made available online 
at www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittals are available at District of Columbia, Department of the 
Environment, Air Quality Division, 1200 1st Street NE., 5th floor, 
Washington, DC 20002; Maryland Department of the Environment, 1800 
Washington Boulevard, Suite 705, Baltimore, Maryland 21230; and 
Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219, respectively.

FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, (215) 814-
2038, or by e-mail at velez-rosa.emlyn@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. EPA's Requirements
    A. Criteria for Redesignation to Attainment
    B. Requirements of a Maintenance Plan
III. Summary of Proposed Actions
IV. Effects of Recent Court Decisions on Proposed Actions
    A. Effect of the Supreme Court and DC Circuit Court's Decisions 
Regarding EPA's CSAPR
    B. Effect of the January 4, 2013 DC Circuit Court Decision 
Regarding PM2.5 Implementation under Subpart 4 of Part D 
of Title I of the CAA
V. EPA's Analysis of States' SIP Submittals
    A. Requests for Redesignation
    B. Maintenance Plan
    C. Transportation Conformity Determination
VI. Proposed Actions
VII. Statutory and Executive Order Reviews

I. Background

    The first air quality standards for PM2.5 were 
established on July 16, 1997 (62 FR 38652, July 18, 1997). EPA 
promulgated an annual standard at a level of 15 micrograms per cubic 
meter ([mu]g/m\3\), based on a three-year average of annual mean 
PM2.5 concentrations (the 1997 annual PM2.5 
standard). In the same rulemaking action, EPA promulgated a 24-hour 
standard of 65 [mu]g/m\3\, based on a three-year average of the 98th 
percentile of 24-hour concentrations.
    On January 5, 2005 (70 FR 944, 1014), EPA published air quality 
area designations for the 1997 PM2.5 standards. In that 
rulemaking action, EPA designated the Washington Area as nonattainment 
for the 1997 annual PM2.5 standard. The Washington Area 
includes the entire District of Columbia; Arlington, Fairfax, Loudoun, 
and Prince William Counties and the cities of Alexandria, Fairfax, 
Falls Church, Manassas, and Manassas Park in Virginia; and Charles, 
Frederick, Montgomery, and Prince George's Counties in Maryland. See 40 
CFR 81.309, 81.321, and 81.347.
    On October 17, 2006 (71 FR 61144), EPA retained the annual average 
standard at 15 [mu]g/m\3\, but revised the 24-hour standard to 35 
[mu]g/m\3\, based again on the three-year average of the 98th 
percentile of 24-hour concentrations (the 2006 24-hour PM2.5 
standard). On November 13, 2009 (74 FR 58688), EPA published 
designations for the 2006 24-hour PM2.5 standard, which 
became effective on December 14, 2009. The Washington Area was not 
designated as a nonattainment area for the 2006 24-hour 
PM2.5 NAAQS.
    In response to legal challenges of the 2006 annual PM2.5 
standard, the United States Court of Appeals for the District of 
Columbia (DC Circuit Court) remanded this standard to EPA for further 
consideration. See American Farm Bureau Federation and National Pork 
Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). 
However, given that the 1997 annual and the 2006 annual 
PM2.5 standards are essentially identical, attainment of the 
1997 annual PM2.5 standard would also indicate attainment of 
the remanded 2006 annual PM2.5 standard. Since the 
Washington Area is designated nonattainment only for the 1997 annual 
PM2.5 NAAQS, today's proposed rulemaking action addresses 
the redesignation to attainment only for this standard.
    On January 12, 2009 (74 FR 1146), EPA determined that the entire 
Washington Area had attained the 1997 annual PM2.5 standard, 
based on 2004-2006 and 2005-2007 quality-assured, quality-controlled, 
and certified ambient air quality monitoring data. Pursuant to 40 CFR 
51.1004(c), this ``clean data'' determination suspended the 
requirements for each of the States to submit for their jurisdiction of 
the Washington Area an attainment demonstration and associated 
reasonably available control measures (RACM), a reasonable further 
progress (RFP) plan, contingency measures, and other planning SIP 
revisions related to the attainment of the 1997 annual PM2.5 
NAAQS until such time as: (1) The Area is redesignated to attainment 
for the standard, at which time the requirements no longer apply; or 
(2) EPA determines that the Area has again violated the standard, at 
which time such plans are required to be submitted by the States. 
Subsequently, on January 10, 2012 (77 FR 1411), EPA determined, 
pursuant to section 179(c), that the entire Washington Area had 
attained the 1997 annual PM2.5 NAAQS by its statutory 
attainment date of April 5, 2010.
    The District of Columbia Department of the Environment (DDOE), the 
Maryland Department of the Environment (MDE), and the Virginia 
Department of Environmental Quality (VADEQ) worked together in 
developing a combined document to address the requirements for 
redesignation of the Washington Area for the 1997 annual 
PM2.5 NAAQS. The States also

[[Page 45737]]

developed a common maintenance plan as a revision to their respective 
SIPs to ensure continued attainment of the 1997 annual PM2.5 
standard in the Washington Area throughout 2025. The 1997 annual 
PM2.5 redesignation requests and maintenance plans for the 
Washington Area were submitted to EPA by DDOE on June 3, 2013, by MDE 
on July 10, 2013, and by VADEQ on June 3, 2013. The emissions 
inventories included in the Washington Area maintenance plans were 
subsequently supplemented by the States to provide for emissions 
estimates of VOC and ammonia. The supplemental inventories were 
submitted to EPA on July 22, 2013 by DDOE, on July 26, 2013 by MDE, and 
on July 17, 2013 by VADEQ. In addition, the maintenance plan includes 
the 2017 and 2025 PM2.5 and NOx MVEBs used for 
transportation conformity purposes for the entire Washington Area for 
the 1997 annual PM2.5 NAAQS.

II. EPA's Requirements

A. Criteria for Redesignation to Attainment

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA 
allows for redesignation providing that: (1) EPA determines that the 
area has attained the applicable NAAQS; (2) EPA has fully approved the 
applicable implementation plan for the area under section 110(k); (3) 
EPA determines that the improvement in air quality is due to permanent 
and enforceable reductions in emissions resulting from implementation 
of the applicable SIP and applicable Federal air pollutant control 
regulations and other permanent and enforceable reductions; (4) EPA has 
fully approved a maintenance plan for the area as meeting the 
requirements of section 175A of the CAA; and (5) the state containing 
such area has met all requirements applicable to the area under section 
110 and part D.
    EPA has provided guidance on redesignation in the ``State 
Implementation Plans; General Preamble for the Implementation of Title 
I of the Clean Air Act Amendments of 1990,'' (57 FR 13498, April 16, 
1992) (the ``General Preamble'') and has provided further guidance on 
processing redesignation requests in the following documents: (1) 
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (hereafter the ``1992 Calcagni 
Memorandum''); (2) ``State Implementation Plan (SIP) Actions Submitted 
in Response to Clean Air Act (CAA) Deadlines,'' Memorandum from John 
Calcagni, Director, Air Quality Management Division, October 28, 1992; 
and (3) ``Part D New Source Review (Part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994.

B. Requirements of a Maintenance Plan

    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least 10 years after approval of a 
redesignation of an area to attainment. Eight years after the 
redesignation, the state must submit a revised maintenance plan 
demonstrating that attainment will continue to be maintained for the 10 
years following the initial 10-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation, as EPA deems 
necessary to assure prompt correction of any future PM2.5 
violations.
    The 1992 Calcagni Memorandum provides additional guidance on the 
content of a maintenance plan. The memorandum states that a maintenance 
plan should address the following provisions: (1) An attainment 
emissions inventory; (2) a maintenance demonstration showing 
maintenance for 10 years; (3) a commitment to maintain the existing 
monitoring network; (4) verification of continued attainment; and (5) a 
contingency plan to prevent or correct future violations of the NAAQS.

III. Summary of Proposed Actions

    EPA is proposing to take several rulemaking actions related to the 
redesignation of the Washington Area to attainment for the 1997 annual 
PM2.5 NAAQS. First, EPA is proposing to find that the States 
meet the requirements for redesignation of the Washington Area for the 
1997 annual PM2.5 NAAQS under section 107(d)(3)(E) of the 
CAA. Second, EPA is proposing to approve the Washington Area's 
maintenance plan for the Area as a revision to the District, Virginia, 
and Maryland SIPs for the 1997 annual PM2.5 NAAQS. The 
approval of a maintenance plan is one of the CAA criteria for 
redesignation of the Area to attainment. The Washington Area 
maintenance plan is designed to ensure continued attainment of the 1997 
annual PM2.5 standard in the entire Area for 10 years after 
redesignation, until 2025. Third, EPA is proposing to approve the MVEBs 
for PM2.5 and NOX emissions for the 1997 annual 
PM2.5 standard, which are included as part of the Washington 
Area's maintenance plan. EPA previously determined that the Washington 
Area has attained the 1997 annual PM2.5 NAAQS. In this 
rulemaking action, EPA is proposing to find that the Area continues to 
attain the standard.

IV. Effect of Recent Court Decisions on Proposed Actions

    In this proposed rulemaking action, EPA considers the effects of 
three legal decisions on this redesignation. EPA first considers the 
effects of the D.C. Circuit and U.S. Supreme Court's decisions in EME 
Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), rev'd, 
No. 12-1182 (S. Ct. April 29, 2014). The Supreme Court reversed the 
D.C. Circuit decision vacating and remanding the Cross-State Air 
Pollution Rule (CSAPR). Second, EPA is considering the effect of the 
January 4, 2013, D.C. Circuit decision remanding to EPA the ``Final 
Clean Air Fine Particle Implementation Rule'' (72 FR 20586, April 25, 
2007) and the ``Implementation of the New Source Review (NSR) Program 
for Particulate Matter Less than 2.5 Micrometers (PM2.5)'' 
final rule (73 FR 28321, May 16, 2008) (collectively, ``1997 
PM2.5 Implementation Rule''). Natural Resources Defense 
Council (NRDC) v. EPA, 706 F.3d 428 (D.C. Cir. 2013).

A. Effect of the Supreme Court and D.C. Circuit's Decisions Regarding 
EPA's CSAPR

    EPA has considered the recent decisions from the U.S. Supreme Court 
and the D.C. Circuit Court regarding EPA's CSAPR, and has concluded 
that the decisions do not alter the Agency's proposal to redesignate 
the Washington Area from nonattainment to attainment for the 1997 
annual PM2.5 NAAQS. EPA promulgated CSAPR (76 FR 48208, 
August 8, 2011) to replace the Clean Air Interstate Rule (CAIR), which 
has been in place since 2005. See 76 FR 59517. Both CSAPR and CAIR 
require significant reductions in emissions of SO2 and 
NOX from electric generating units (EGUs) to limit the 
interstate transport of these pollutants and the ozone and fine 
particulate matter they form in the atmosphere. The DC Circuit Court 
initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 
2008), but ultimately remanded the rule to EPA without vacatur to 
preserve the environmental benefits provided by CAIR, North Carolina v. 
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). After

[[Page 45738]]

staying the implementation of CSAPR on December 20, 2011 and 
instructing EPA to continue to implement CAIR in the interim, on August 
21, 2012, the D.C. Circuit Court issued a decision to vacate CSAPR, 
with further instruction to continue administering CAIR ``pending the 
promulgation of a valid replacement.'' EME Homer City Generation L.P. 
v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). On April 29, 2014, the Supreme 
Court reversed the opinion of the D.C. Circuit Court and remanded the 
matter to the D.C. Circuit Court for further proceedings. EPA v. EME 
Homer City Generation, L.P., No. 12-1182 (S. Ct. April 29, 2014).
    In their submissions, the States do not rely on either CAIR or 
CSAPR for emission reductions that contributed to the Washington Area's 
attainment of the 1997 annual PM2.5 NAAQS, nor do the States 
rely on either of the rules to show maintenance of the standard in the 
Area for 10 years following redesignation. However, because CAIR was 
promulgated in 2005 and incentivized sources and states to begin 
achieving early emission reductions, the air quality data examined by 
EPA in issuing a final determination of attainment for the Washington 
Area in 2009 (January 12, 2009, 74 FR 1146) and the air quality data 
from the Area since 2005 necessarily reflect reductions in emissions 
from upwind sources as a result of CAIR. Nonetheless, in this case EPA 
believes that it is appropriate to redesignate the Washington Area. 
Modeling conducted by EPA during the CSAPR rulemaking process, which 
used a baseline emissions scenario that ``backed out'' the effects of 
CAIR, see 76 FR at 48223, projected that the counties in the Washington 
Area would have PM2.5 annual design values \1\ below the 
level of the 1997 annual PM2.5 standard for 2012 and 2014 
without taking into account emissions reductions from CAIR or CSAPR. 
See Appendix B of EPA's ``Air Quality Modeling Final Rule Technical 
Support Document,'' (Pages B-38, B-46, and B-61), which is available in 
the docket for this proposed rulemaking action. In addition, the 2010-
2012 quality-assured, quality-controlled, and certified monitoring data 
for the Washington Area confirms that 2012 PM2.5 annual 
design values for each monitoring site in the Area remained well below 
the 1997 annual PM2.5 NAAQS, and thus the entire Area 
continued to attain the standard in 2012. See Table 1 of this proposed 
rulemaking action for the Washington Area's monitoring data for 2010-
2012.
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    \1\ As defined in 40 CFR part 50, Appendix N, section (1)(c). A 
monitoring site's design value is compared to the level of the 1997 
annual PM2.5 NAAQS to determine compliance with the 
standard.
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    The status of CSAPR is not relevant to these redesignations. CSAPR 
was promulgated in June 2011, and the rule was stayed by the D.C. 
Circuit Court just six months later, before the trading programs it 
created were scheduled to go into effect. Therefore, the Washington 
Area's attainment of the 1997 annual PM2.5 standard cannot 
have been a result of any emission reductions associated with CSAPR. In 
sum, neither the current status of CAIR nor the current status of CSAPR 
affects any of the criteria for proposed approval of these 
redesignation requests for the Washington Area.

B. Effect of the January 4, 2013 D.C. Circuit Court Decision Regarding 
PM2.5 Implementation Under Subpart 4 of Part D of Title I of 
the CAA

1. Background
    On January 4, 2013, in Natural Resources Defense Council v. EPA, 
the D.C. Circuit Court remanded to EPA the 1997 PM2.5 
Implementation Rule. Natural Resources Defense Council (NRDC) v. EPA, 
706 F.3d 428 (D.C. Cir. 2013). The D.C. Circuit Court found that EPA 
erred in implementing the 1997 PM2.5 NAAQS pursuant to the 
general implementation provisions of subpart 1 of Part D of Title I of 
the CAA (subpart 1), rather than the particulate-matter-specific 
provisions of subpart 4 of Part D of Title I (subpart 4).
    Prior to the January 4, 2013 decision, states had worked towards 
meeting the air quality goals of the 1997 annual PM2.5 NAAQS 
in accordance with EPA regulations and guidance derived from subpart 1. 
Subsequent to this decision, in rulemaking that responds to the D.C. 
Circuit Court's remand, EPA took this history into account by proposing 
to set a new deadline for any remaining submissions that may be 
required for moderate nonattainment areas as a result of the Court's 
decision regarding subpart 4. On June 2, 2014 (79 FR 31566), EPA 
finalized the ``Identification of Nonattainment Classification and 
Deadlines for Submission of SIP Provisions for the 1997 
PM2.5 NAAQS and 2006 PM2.5 NAAQS'' rule (the 
PM2.5 Subpart 4 Classification and Deadline Rule). The rule 
identifies the classification under subpart 4 for areas currently 
designated nonattainment for the 1997 annual and/or 2006 24-hour 
PM2.5 standards and sets a new deadline for states to submit 
attainment-related and other SIP elements required for these areas 
pursuant to subpart 4. The rule also identifies EPA guidance that is 
currently available regarding subpart 4 requirements. The 
PM2.5 Subpart 4 Classification and Deadline Rule specifies 
December 31, 2014 as the deadline for the states to submit any 
additional attainment-related SIP-elements that may be needed to meet 
the applicable requirements of subpart 4 for areas currently designated 
nonattainment for the 1997 annual and/or 2006 24-hour PM2.5 
NAAQS and to submit SIPs addressing the nonattainment NSR requirements 
in subpart 4. Therefore, as explained in detail in the following 
section, any additional attainment-related SIP elements that may be 
needed for the Washington Area to meet the applicable requirements of 
subpart 4 were not due at the time that the District, Maryland, and 
Virginia submitted their redesignation requests for the Washington 
Area. The District, Maryland, and Virginia submitted their requests for 
redesignating the Washington Area for the 1997 annual PM2.5 
NAAQS on June 3, 2013, July 10, 2013, and June 3, 2013 respectively.
2. Proposal on This Issue
    EPA has considered the effect of the D.C. Circuit Court's January 
4, 2013 ruling and the PM2.5 Subpart 4 Nonattainment 
Classification and Deadline Rule on the Washington Area's redesignation 
requests. In this proposed rulemaking action, EPA is proposing to 
determine that the D.C. Circuit Court's January 4, 2013 decision does 
not prevent EPA from redesignating the Washington Area to attainment. 
Even in light of the D.C. Circuit Court's decision, redesignation for 
the Area is appropriate under the CAA and EPA's longstanding 
interpretations of the CAA provisions regarding redesignation. EPA 
first explains its longstanding interpretation that requirements that 
are imposed, or that become due, after a complete redesignation request 
is submitted for an area that is attaining the standard, are not 
applicable for purposes of evaluating a redesignation request. Second, 
EPA then shows that, even if EPA applies the subpart 4 requirements to 
the Washington Area redesignation requests and disregards the 
provisions of its 1997 annual PM2.5 implementation rule 
recently remanded by the D.C. Circuit Court, the States' requests for 
redesignation of the Area still qualify for approval. EPA's discussion 
takes into account the effect of the D.C. Circuit Court's ruling and 
the proposed PM2.5 Subpart 4 Classification and Deadline 
Rule on the Area's maintenance plan, which EPA views as approvable when 
subpart 4 requirements are considered.

[[Page 45739]]

a. Applicable Requirements Under Subpart 4 for Purposes of Evaluating 
the Washington Area's Redesignation Requests
    With respect to the 1997 PM2.5 Implementation Rule, the 
D.C. Circuit Court's January 4, 2013 ruling rejected EPA's reasons for 
implementing the PM2.5 NAAQS solely in accordance with the 
provisions of subpart 1, and remanded that matter to EPA, so that it 
could address implementation of the 1997 annual PM2.5 NAAQS 
under subpart 4, in addition to subpart 1. For the purposes of 
evaluating the States' redesignation requests for the Washington Area, 
to the extent that implementation under subpart 4 would impose 
additional requirements for areas designated nonattainment, EPA 
believes that those requirements are not ``applicable'' for the 
purposes of CAA section 107(d)(3)(E), and thus EPA is not required to 
consider subpart 4 requirements with respect to the redesignation of 
the Washington Area. Under its longstanding interpretation of the CAA, 
EPA has interpreted section 107(d)(3)(E) to mean, as a threshold 
matter, that the part D provisions which are ``applicable'' and which 
must be approved in order for EPA to redesignate an area include only 
those which came due prior to a state's submittal of a complete 
redesignation request. See 1992 Calcagni Memorandum. See also ``State 
Implementation Plan (SIP) Requirements for Areas Submitting Requests 
for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) 
National Ambient Air Quality Standards (NAAQS) on or after November 15, 
1992,'' Memorandum from Michael Shapiro, Acting Assistant 
Administrator, Air and Radiation, September 17, 1993 (Shapiro 
memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 
12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, 
(68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 
537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking 
applying this interpretation and expressly rejecting Sierra Club's view 
that the meaning of ``applicable'' under the statute is ``whatever 
should have been in the plan at the time of attainment rather than 
whatever actually was in the plan and already implemented or due at the 
time of attainment'').\2\ In this case, at the time that States 
submitted their redesignation requests, the requirements under subpart 
4 were not due.
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    \2\ Applicable requirements of the CAA that come due subsequent 
to the area's submittal of a complete redesignation request remain 
applicable until a redesignation is approved, but are not required 
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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    EPA's view that, for purposes of evaluating the redesignation of 
the Washington Area, the subpart 4 requirements were not due at the 
time the States submitted the redesignation requests is in keeping with 
the EPA's interpretation of subpart 2 requirements for subpart 1 ozone 
areas redesignated subsequent to the D.C. Circuit Court's decision in 
South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 
2006). In South Coast, the D.C. Circuit Court found that EPA was not 
permitted to implement the 1997 8-hour ozone standard solely under 
subpart 1, and held that EPA was required under the statute to 
implement the standard under the ozone-specific requirements of subpart 
2 as well. Subsequent to the South Coast decision, in evaluating and 
acting upon redesignation requests for the 1997 8-hour ozone standard 
that were submitted to EPA for areas under subpart 1, EPA applied its 
longstanding interpretation of the CAA that ``applicable 
requirements,'' for purposes of evaluating a redesignation, are those 
that had been due at the time the redesignation request was submitted. 
See, e.g., Proposed Redesignation of Manitowoc County and Door County 
Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those 
actions, EPA therefore did not consider subpart 2 requirements to be 
``applicable'' for the purposes of evaluating whether the area should 
be redesignated under section 107(d)(3)(E).
    EPA's interpretation derives from the provisions of section 
107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be 
redesignated, a state must meet ``all requirements `applicable' to the 
area under section 110 and part D.'' Section 107(d)(3)(E)(ii) provides 
that the EPA must have fully approved the ``applicable'' SIP for the 
area seeking redesignation. These two sections read together support 
EPA's interpretation of ``applicable'' as only those requirements that 
came due prior to submission of a complete redesignation request. 
First, holding states to an ongoing obligation to adopt new CAA 
requirements that arose after the state submitted its redesignation 
request, in order to be redesignated, would make it problematic or 
impossible for EPA to act on redesignation requests in accordance with 
the 18-month deadline Congress set for EPA action in section 
107(d)(3)(D). If ``applicable requirements'' were interpreted to be a 
continuing flow of requirements with no reasonable limitation, states, 
after submitting a redesignation request, would be forced continuously 
to make additional SIP submissions that in turn would require EPA to 
undertake further notice-and-comment rulemaking actions to act on those 
submissions. This would create a regime of unceasing rulemaking that 
would delay action on the redesignation request beyond the 18-month 
timeframe provided by the CAA for this purpose.
    Second, a fundamental premise for redesignating a nonattainment 
area to attainment is that the area has attained the relevant NAAQS due 
to emission reductions from existing controls. Thus, an area for which 
a redesignation request has been submitted would have already attained 
the NAAQS as a result of satisfying statutory requirements that came 
due prior to the submission of the request. Absent a showing that 
unadopted and unimplemented requirements are necessary for future 
maintenance, it is reasonable to view the requirements applicable for 
purposes of evaluating the redesignation request as including only 
those SIP requirements that have already come due. These are the 
requirements that led to attainment of the NAAQS. To require, for 
redesignation approval, that a state also satisfy additional SIP 
requirements coming due after the state submits its complete 
redesignation request, and while EPA is reviewing it, would compel the 
state to do more than is necessary to attain the NAAQS, without a 
showing that the additional requirements are necessary for maintenance.
    In the context of this redesignation, the timing and nature of the 
D.C. Circuit Court's January 4, 2013 decision in NRDC v. EPA and EPA's 
PM2.5 Subpart 4 Nonattainment Classification and Deadline 
Rule compound the consequences of imposing requirements that come due 
after the redesignation requests are submitted. The States submitted 
their redesignation requests for the 1997 annual PM2.5 NAAQS 
on June 3, 2013 and July 10, 2013, which is prior to the deadline by 
which the Washington Area is required to meet the applicable 
requirements pursuant to subpart 4.
    To require the States' fully-completed and pending redesignation 
requests for the 1997 annual PM2.5 NAAQS to comply now with 
requirements of subpart 4 that the D.C. Circuit Court announced only in 
January 2013 and for which the deadline to comply has not yet come, 
would be to give retroactive effect to such requirements and provide 
the States a unique and earlier deadline

[[Page 45740]]

for compliance solely on the basis of submitting their respective 
redesignation requests for the Washington Area. The D.C. Circuit Court 
recognized the inequity of this type of retroactive impact in Sierra 
Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),\3\ where it upheld the 
D.C. Circuit Court's ruling refusing to make retroactive EPA's 
determination that the St. Louis area did not meet its attainment 
deadline. In that case, petitioners urged the D.C. Circuit Court to 
make EPA's nonattainment determination effective as of the date that 
the statute required, rather than the later date on which EPA actually 
made the determination. The D.C. Circuit Court rejected this view, 
stating that applying it ``would likely impose large costs on States, 
which would face fines and suits for not implementing air pollution 
prevention plans . . . even though they were not on notice at the 
time.'' Id. at 68. Similarly, it would be unreasonable to penalize the 
States by rejecting their redesignation request for an area that is 
already attaining the 1997 annual PM2.5 standard and that 
met all applicable requirements known to be in effect at the time of 
the requests. For EPA now to reject the redesignation requests solely 
because the States did not expressly address subpart 4 requirements 
which have not yet come due, would inflict the same unfairness 
condemned by the D.C. Circuit Court in Sierra Club v. Whitman.
---------------------------------------------------------------------------

    \3\ Sierra Club v. Whitman was discussed and distinguished in a 
recent D.C. Circuit Court decision that addressed retroactivity in a 
quite different context, where, unlike the situation here, EPA 
sought to give its regulations retroactive effect. National 
Petrochemical and Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. 
Cir. 2010), rehearing denied 643 F.3d 958 (D.C. Cir. 2011), cert 
denied 132 S. Ct. 571 (2011).
---------------------------------------------------------------------------

b. Subpart 4 Requirements and Washington Area's Redesignation Request
    Even if EPA were to take the view that the D.C. Circuit Court's 
January 4, 2013 decision requires that, in the context of pending 
redesignations for the 1997 annual PM2.5 standard, subpart 4 
requirements were due and in effect at the time the States submitted 
their redesignation requests, EPA proposes to determine that the 
Washington Area still qualifies for redesignation to attainment for the 
1997 annual PM2.5 standard. As explained subsequently, EPA 
believes that the redesignation requests for the Washington Area, 
though not expressed in terms of subpart 4 requirements, substantively 
meets the requirements of that subpart for purposes of redesignating 
the Area to attainment.
    With respect to evaluating the relevant substantive requirements of 
subpart 4 for purposes of redesignating the Washington Area, EPA notes 
that subpart 4 incorporates components of subpart 1, which contains 
general air quality planning requirements for areas designated as 
nonattainment. See section 172(c). Subpart 4 itself contains specific 
planning and scheduling requirements for coarse particulate matter 
(PM10) \4\ nonattainment areas, and under the D.C. Circuit 
Court's January 4, 2013 decision in NRDC. v. EPA, these same statutory 
requirements also apply for PM2.5 nonattainment areas. EPA 
has longstanding general guidance that interprets the 1990 amendments 
to the CAA, making recommendations to states for meeting the statutory 
requirements for SIPs for nonattainment areas. See the General 
Preamble. In the General Preamble, EPA discussed the relationship of 
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 
1 requirements were to an extent ``subsumed by, or integrally related 
to, the more specific PM10 requirements'' (57 FR 13538, 
April 16, 1992). The subpart 1 requirements include, among other 
things, provisions for attainment demonstrations, RACM, RFP, emissions 
inventories, and contingency measures.
---------------------------------------------------------------------------

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

    For the purposes of these redesignation requests, in order to 
identify any additional requirements which would apply under subpart 4, 
consistent with EPA's April 25, 2014 PM2.5 Subpart 4 
Nonattainment Classification and Deadline Rule, EPA is considering the 
Washington Area to be a ``moderate'' PM2.5 nonattainment 
area. As EPA explained in its April 25, 2014 rule, section 188 of the 
CAA provides that all areas designated nonattainment areas under 
subpart 4 are initially classified by operation of law as ``moderate'' 
nonattainment areas, and will remain moderate nonattainment areas 
unless and until EPA reclassifies the area as a ``serious'' 
nonattainment area. Accordingly, EPA believes that it is appropriate to 
limit the evaluation of the potential impact of subpart 4 requirements 
to those that would be applicable to moderate nonattainment areas. 
Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment 
areas and include the following: (1) An approved permit program for 
construction of new and modified major stationary sources (section 
189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B)); 
(3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative 
milestones demonstrating RFP toward attainment by the applicable 
attainment date (section 189(c)).
    The permit requirements of subpart 4, as contained in section 
189(a)(1)(A), refer to and apply the subpart 1 permit provisions 
requirements of sections 172 and 173 to PM10, without adding 
to them. Consequently, EPA believes that section 189(a)(1)(A) does not 
itself impose for redesignation purposes any additional requirements 
for moderate areas beyond those contained in subpart 1.\5\ In any 
event, in the context of redesignation, EPA has long relied on the 
interpretation that a fully approved nonattainment NSR program is not 
considered an applicable requirement for redesignation, provided the 
area can maintain the standard with a prevention of significant 
deterioration (PSD) program after redesignation. A detailed rationale 
for this view is described in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled, 
``Part D New Source Review Requirements for Areas Requesting 
Redesignation to Attainment.'' See also rulemakings for Detroit, 
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, 
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
---------------------------------------------------------------------------

    \5\ The potential effect of section 189(e) on section 
189(a)(1)(A) for purposes of evaluating these redesignation requests 
is discussed in this rulemaking action.
---------------------------------------------------------------------------

    With respect to the specific attainment planning requirements under 
subpart 4,\6\ when EPA evaluates a redesignation request under either 
subpart 1 or 4, any area that is attaining the PM2.5 
standards is viewed as having satisfied the attainment planning 
requirements for these subparts.
---------------------------------------------------------------------------

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

    For redesignations, EPA has for many years interpreted attainment-
linked requirements as not applicable for areas attaining the standard. 
In the General Preamble, EPA stated that, ``The requirements for RFP 
will not apply in evaluating a request for redesignation to attainment 
since, at a minimum, the air quality data for the area must show that 
the area has already attained. Showing that the State will make RFP 
towards attainment will, therefore, have no meaning at that point.''
    The General Preamble also explained that, ``[t]he section 172(c)(9)

[[Page 45741]]

requirements are directed at ensuring RFP and attainment by the 
applicable date. These requirements no longer apply when an area has 
attained the standard and is eligible for redesignation. Furthermore, 
section 175A for maintenance plans . . . provides specific requirements 
for contingency measures that effectively supersede the requirements of 
section 172(c)(9) for these areas.'' Id. EPA similarly stated in its 
1992 Calcagni Memorandum that, ``The requirements for reasonable 
further progress and other measures needed for attainment will not 
apply for redesignations because they only have meaning for areas not 
attaining the standard.''
    It is evident that even if we were to consider the D.C. Circuit 
Court's January 4, 2013 decision in NRDC v. EPA to mean that 
attainment-related requirements specific to subpart 4 should be imposed 
retroactively \7\ or prior to December 31, 2014 and, thus, were due 
prior to the States' redesignation requests, those requirements do not 
apply to an area that is attaining the 1997 annual PM2.5 
NAAQS, for the purpose of evaluating a pending request to redesignate 
the area to attainment. EPA has consistently enunciated this 
interpretation of applicable requirements under section 107(d)(3)(E) 
since the General Preamble was published more than twenty years ago. 
Courts have recognized the scope of EPA's authority to interpret 
``applicable requirements'' in the redesignation context. See Sierra 
Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
---------------------------------------------------------------------------

    \7\ As EPA has explained previously, we do not believe that the 
D.C. Circuit Court's January 4, 2013 decision should be interpreted 
so as to impose these requirements on the states retroactively. 
Sierra Club v. Whitman, supra.
---------------------------------------------------------------------------

    Moreover, even outside the context of redesignations, EPA has 
viewed the obligations to submit attainment-related SIP planning 
requirements of subpart 4 as inapplicable for areas that EPA determines 
are attaining the 1997 annual PM2.5 standard. EPA's prior 
``Clean Data Policy'' rulemakings for the PM10 NAAQS, also 
governed by the requirements of subpart 4, explain EPA's reasoning. 
They describe the effects of a determination of attainment on the 
attainment-related SIP planning requirements of subpart 4. See 
``Determination of Attainment for Coso Junction Nonattainment Area,'' 
(75 FR 27944, May 19, 2010). See also Coso Junction Proposed 
PM10 Redesignation, (75 FR 36023, 36027, June 24, 2010); 
Proposed and Final Determinations of Attainment for San Joaquin 
Nonattainment Area (71 FR 40952, 40954-55, July 19, 2006 and 71 FR 
63641, 63643-47, October 30, 2006). In short, EPA in this context has 
also long concluded that to require states to meet superfluous SIP 
planning requirements is not necessary and not required by the CAA, so 
long as those areas continue to attain the relevant NAAQS.
    Elsewhere in this notice, EPA proposes to determine that the 
Washington Area has attained and continues to attain the 1997 annual 
PM2.5 NAAQS. Under its longstanding interpretation, EPA is 
proposing to determine here that the Washington Area meets the 
attainment-related plan requirements of subparts 1 and 4 for the 1997 
annual PM2.5 NAAQS. Thus, EPA is proposing to conclude that 
the requirements to submit an attainment demonstration under 
189(a)(1)(B), a RACM determination under section 172(c)(1) and section 
189(a)(1)(c), a RFP demonstration under 189(c)(1), and contingency 
measure requirements under section 172(c)(9) are satisfied for purposes 
of evaluating these redesignation requests.
c. Subpart 4 and Control of PM2.5 Precursors
    The D.C. Circuit Court in NRDC v. EPA remanded to EPA the two rules 
at issue in the case with instructions to EPA to re-promulgate them 
consistent with the requirements of subpart 4. EPA in this section 
addresses the D.C. Circuit Court's opinion with respect to 
PM2.5 precursors. While past implementation of subpart 4 for 
PM10 has allowed for control of PM10 precursors 
such as NOX from major stationary, mobile, and area sources 
in order to attain the standard as expeditiously as practicable, 
section 189(e) of the CAA specifically provides that control 
requirements for major stationary sources of direct PM10 
shall also apply to PM10 precursors from those sources, 
except where EPA determines that major stationary sources of such 
precursors ``do not contribute significantly to PM10 levels 
which exceed the standard in the area.''
    EPA's 1997 PM2.5 Implementation Rule, remanded by the 
D.C. Circuit Court, contained rebuttable presumptions concerning 
certain PM2.5 precursors applicable to attainment plans and 
control measures related to those plans. Specifically, in 40 CFR 
51.1002, EPA provided, among other things, that a state was ``not 
required to address VOC [and ammonia] as . . . PM2.5 
attainment plan precursor[s] and to evaluate sources of VOC [and 
ammonia] emissions in the State for control measures.'' EPA intended 
these to be rebuttable presumptions. EPA established these presumptions 
at the time because of uncertainties regarding the emission inventories 
for these pollutants and the effectiveness of specific control measures 
in various regions of the country in reducing PM2.5 
concentrations. EPA also left open the possibility for such regulation 
of VOC and ammonia in specific areas where that was necessary.
    The D.C. Circuit Court in its January 4, 2013 decision made 
reference to both section 189(e) and 40 CFR 51. 1002, and stated that, 
``In light of our disposition, we need not address the petitioners' 
challenge to the presumptions in [40 CFR 51.1002] that volatile organic 
compounds and ammonia are not PM2.5 precursors, as subpart 4 
expressly governs precursor presumptions.'' NRDC v. EPA, at 27, n.10. 
Elsewhere in the D.C. Circuit Court's opinion, however, the D.C. 
Circuit Court observed ``Ammonia is a precursor to fine particulate 
matter, making it a precursor to both PM2.5 and 
PM10. For a PM10 nonattainment area governed by 
subpart 4, a precursor is presumptively regulated. See 42 U.S.C. 
7513a(e) [section 189(e)].'' Id. at 21, n.7.
    For a number of reasons, EPA believes that its proposed 
redesignation of the Washington Area for the 1997 annual 
PM2.5 NAAQS is consistent with the D.C. Circuit Court's 
decision on this aspect of subpart 4. While the D.C. Circuit Court, 
citing section 189(e), stated that ``for a PM10 area 
governed by subpart 4, a precursor is `presumptively regulated,''' the 
D.C. Circuit Court expressly declined to decide the specific challenge 
to EPA's 1997 PM2.5 Implementation Rule provisions regarding 
ammonia and VOC as precursors. The D.C. Circuit Court had no occasion 
to reach whether and how it was substantively necessary to regulate any 
specific precursor in a particular PM2.5 nonattainment area, 
and did not address what might be necessary for purposes of acting upon 
a redesignation request.
    However, even if EPA takes the view that the requirements of 
subpart 4 were deemed applicable at the time the state submitted the 
redesignation request, and disregards the 1997 PM2.5 
Implementation Rule's rebuttable presumptions regarding ammonia and VOC 
as PM2.5 precursors, the regulatory consequence would be to 
consider the need for regulation of all precursors from any sources in 
the area to demonstrate attainment and to apply the section 189(e) 
provisions to major stationary sources of precursors. In the case of 
the Washington Area, EPA believes that doing so is consistent with 
proposing redesignation of the Area for the 1997 annual 
PM2.5 standard. The Washington Area has attained the 1997

[[Page 45742]]

annual PM2.5 standard without any specific additional 
controls of VOC and ammonia emissions from any sources in the Area.
    Precursors in subpart 4 are specifically regulated under the 
provisions of section 189(e), which requires, with important 
exceptions, control requirements for major stationary sources of 
PM10 precursors.\8\ Under subpart 1 and EPA's prior 
implementation rule, all major stationary sources of PM2.5 
precursors were subject to regulation, with the exception of ammonia 
and VOC. Thus, EPA must address here whether additional controls of 
ammonia and VOC from major stationary sources are required under 
section 189(e) of subpart 4 in order to redesignate the Washington Area 
for the 1997 annual PM2.5 NAAQS. As explained subsequently, 
EPA does not believe that any additional controls of ammonia and VOC 
are required in the context of these redesignations.
---------------------------------------------------------------------------

    \8\ Under either subpart 1 or subpart 4, for purposes of 
demonstrating attainment as expeditiously as practicable, a state is 
required to evaluate all economically and technologically feasible 
control measures for direct PM emissions and precursor emissions, 
and adopt those measures that are deemed reasonably available.
---------------------------------------------------------------------------

    In the General Preamble, EPA discusses its approach to implementing 
section 189(e). See 57 FR 13538-13542. With regard to precursor 
regulation under section 189(e), the General Preamble explicitly stated 
that control of VOC under other CAA requirements may suffice to relieve 
a state from the need to adopt precursor controls under section 189(e). 
See 57 FR 13542. EPA in this rulemaking action proposes to determine 
that the States' SIPs have met the provisions of section 189(e) with 
respect to ammonia and VOC as precursors. This proposed determination 
is based on our findings that: (1) The Washington Area contains no 
major stationary sources of ammonia; and (2) existing major stationary 
sources of VOC are adequately controlled under other provisions of the 
CAA regulating the ozone NAAQS.\9\ In the alternative, EPA proposes to 
determine that, under the express exception provisions of section 
189(e), and in the context of the redesignation of the Washington Area, 
which is attaining the 1997 annual PM2.5 standard, at 
present ammonia and VOC precursors from major stationary sources do not 
contribute significantly to levels exceeding the 1997 annual 
PM2.5 standard in the Area. See 57 FR 13539-42.
---------------------------------------------------------------------------

    \9\ The Washington Area has reduced VOC emissions through the 
implementation of various control programs including VOC Reasonably 
Available Control Technology (RACT) regulations and various onroad 
and nonroad motor vehicle control programs.
---------------------------------------------------------------------------

    EPA notes that its 1997 PM2.5 Implementation Rule 
provisions in 40 CFR 51.1002 were not directed at evaluation of 
PM2.5 precursors in the context of redesignation, but at SIP 
plans and control measures required to bring a nonattainment area into 
attainment for the 1997 annual PM2.5 NAAQS. By contrast, 
redesignation to attainment primarily requires the nonattainment area 
to have already attained due to permanent and enforceable emission 
reductions, and to demonstrate that controls in place can continue to 
maintain the standard. Thus, even if we regard the D.C. Circuit Court's 
January 4, 2013 decision as calling for ``presumptive regulation'' of 
ammonia and VOC for PM2.5 under the attainment planning 
provisions of subpart 4, those provisions in and of themselves do not 
require additional controls of these precursors for an area that 
already qualifies for redesignation. Nor does EPA believe that 
requiring the States to address precursors differently than they have 
already, would result in a substantively different outcome.
    Although, as EPA has emphasized, its consideration here of 
precursor requirements under subpart 4 is in the context of a 
redesignation to attainment, EPA's existing interpretation of subpart 4 
requirements with respect to precursors in attainment plans for 
PM10 contemplates that states may develop attainment plans 
that regulate only those precursors that are necessary for purposes of 
attainment in the area in question, i.e., states may determine that 
only certain precursors need be regulated for attainment and control 
purposes.\10\ Courts have upheld this approach to the requirements of 
subpart 4 for PM10.\11\ EPA believes that application of 
this approach to PM2.5 precursors under subpart 4 is 
reasonable. Because the Washington Area has already attained the 1997 
annual PM2.5 NAAQS with its current approach to regulation 
of PM2.5 precursors, EPA believes that it is reasonable to 
conclude in the context of this redesignation that there is no need to 
revisit the attainment control strategy with respect to the treatment 
of precursors. Even if the D.C. Circuit Court's decision is construed 
to impose an obligation, in evaluating these redesignation requests, to 
consider additional precursors under subpart 4, it would not affect 
EPA's approval here of the States' requests for redesignation of the 
Washington Area for the 1997 annual PM2.5 NAAQS. In the 
context of a redesignation, the Area has shown that it has attained the 
standard. Moreover, the States have shown and EPA is proposing to 
determine that attainment of the 1997 annual PM2.5 NAAQS in 
the Area is due to permanent and enforceable emissions reductions on 
all precursors necessary to provide for continued attainment of the 
standard (see section V.A.3 of this rulemaking notice). It follows 
logically that no further control of additional precursors is 
necessary. Accordingly, EPA does not view the January 4, 2013 decision 
of the D.C. Circuit Court as precluding redesignation of the Washington 
Area to attainment for the 1997 annual PM2.5 NAAQS at this 
time. In summary, even if, prior to the date of the redesignation 
request submittal, the States were required to address precursors for 
the Washington Area under subpart 4 rather than under subpart 1, as 
interpreted in EPA's remanded 1997 PM2.5 Implementation 
Rule, EPA would still conclude that the Washington Area had met all 
applicable requirements for purposes of redesignation in accordance 
with section 107(d)(3(E)(ii) and (v).
---------------------------------------------------------------------------

    \10\ See, e.g., ``Approval and Promulgation of Implementation 
Plans for California--San Joaquin Valley PM10 
Nonattainment Area; Serious Area Plan for Nonattainment of the 24-
Hour and Annual PM10 Standards,'' (69 FR 30006, May 26, 
2004) (approving a PM10 attainment plan that impose 
controls on direct PM10 and NOX emissions and 
did not impose controls on SO2, VOC, or ammonia 
emissions).
    \11\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423 
F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------

V. EPA's Analysis of the States' SIP Submittals

    EPA is proposing several rulemaking actions for the Washington 
Area: (1) To redesignate the Area to attainment for the 1997 annual 
PM2.5 NAAQS; (2) to approve into the District, Maryland and 
Virginia SIPs the associated maintenance plan for the 1997 annual 
PM2.5 NAAQS; and (3) to approve the 2017 and 2025 
PM2.5 and NOX MVEBs for the Washington Area for 
transportation conformity purposes. EPA's proposed approvals of the 
redesignation request and maintenance plan for the 1997 annual 
PM2.5 NAAQS are based upon EPA's determination that the Area 
continues to attain the 1997 annual PM2.5 NAAQS, which EPA 
is proposing in this rulemaking action, and that all other 
redesignation criteria have been met for the Washington Area. The 
following is a description of how the States' submittals satisfy the 
requirements of sections 107(d)(3)(E) and 175A of the CAA for the 1997 
annual PM2.5 NAAQS for the Washington Area.

[[Page 45743]]

A. Requests for Redesignation

1. Attainment of the 1997 Annual PM2.5 NAAQS
    EPA has previously determined that the Washington Area has attained 
the 1997 annual PM2.5 NAAQS. As noted earlier, on January 
12, 2009 (74 FR 1146), EPA determined that the entire Washington Area 
had attained the 1997 annual PM2.5 standard, based on 2004-
2006 and 2005-2007 quality-assured, quality-controlled, and certified 
ambient air quality monitoring data. Pursuant to 40 CFR 51.2004(c), 
this ``clean data'' determination for the Area suspended the 
requirements for each of the States to submit for their jurisdiction of 
the Washington Area an attainment demonstration and associated RACM, a 
RFP plan, contingency measures, and other planning SIPs related to the 
attainment of the 1997 annual PM2.5 NAAQS until the Area is 
redesignated to attainment for the standard or EPA determines that the 
Area has again violated the standard, at which time such plans are 
required to be submitted. Then, on January 10, 2012 (77 FR 1411), EPA 
determined, pursuant to section 179(c), that the entire Washington Area 
had attained the 1997 annual PM2.5 NAAQS by its statutory 
attainment date of April 5, 2010. This determination was based on 2007-
2009 quality-assured, quality-controlled, and certified ambient air 
quality monitoring data. The basis and effect of these determinations 
of attainment for the 1997 annual PM2.5 NAAQS were discussed 
in the proposed (73 FR 62945, October 22, 2008 and 76 FR 68378, 
November 4, 2011) and final rulemaking notices (74 FR 1146, January 12, 
2009 and 77 FR 1411, January 10, 2012) for each action.
    The States' redesignation request submittals included the historic 
monitoring data for the annual PM2.5 monitoring sites in the 
Washington Area. The historic monitoring data shows that the Washington 
Area has attained and continues to attain the 1997 annual 
PM2.5 NAAQS. The States assure that all PM2.5 
monitoring data for the Washington Area has been quality-assured, 
quality-controlled, and certified by the States in accordance with 40 
CFR 58.10. Furthermore, EPA has thoroughly reviewed the most recent 
ambient air quality monitoring data for PM2.5 in the Area, 
as submitted by the States and recorded in EPA's Air Quality System 
(AQS). The PM2.5 quality-assured, quality-controlled, and 
state-certified 2008-2012 air quality data shows that the Washington 
Area continues to attain the 1997 annual PM2.5 NAAQS. The 
Area's PM2.5 annual design values for the 2008-2010, 2009-
2011, and 2010-2012 monitoring periods as well as preliminary data for 
2013 are provided in Table 1.

             Table 1--Washington Area's 2008-2012 Annual Design Values and 2013 Preliminary Monitoring Data for the 1997 Annual PM2.5 NAAQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Annual design values
              Monitor site ID                         Location           ------------------------------------------------------------  Preliminary 2013
                                                                               2008-2010           2009-2011           2010-2012            data *
--------------------------------------------------------------------------------------------------------------------------------------------------------
11-001-0041...............................  Washington, DC..............                11.2                10.6                10.4                 9.1
11-001-0042...............................  Washington, DC..............                11.2                10.5                10.3                 8.5
11-001-0043...............................  Washington, DC..............                10.8                10.3                10.1                 9.5
24-031-3001...............................  Montgomery County, Maryland.                10.3                10.2                10.5                 7.7
24-033-0025...............................  Prince George's County,                     11.5                10.8                10.8                  **
                                             Maryland.
24-033-0030...............................  Prince George's County,                     10.0                10.8                10.8                 8.8
                                             Maryland.
24-033-8003...............................  Prince George's County,                      9.9                 9.1                 8.8                 8.1
                                             Maryland.
51-013-0020...............................  Arlington County, Virginia..                10.8                10.1                 9.9                 8.7
51-059-0030...............................  Fairfax County, Virginia....                10.3                 9.6                 9.3                 8.1
51-107-1005...............................  Loudoun County, Virginia....                10.3                 9.5                 9.5                 8.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: EPA AQS Preliminary Design Value Reports (AMP480) dated March 18, 2014, available in the docket for this rulemaking action.
Notes: * Corresponds to quality-assured, quality-controlled available monitoring data up to date for 2013. ** Monitoring site 24-033-0025 in
  Bladensburg, Maryland was permanently shutdown on December 30, 2011.

    The Washington Area's recent monitoring data supports EPA's 
previous determinations that the Area has attained the 1997 annual 
PM2.5 NAAQS. In addition, as discussed subsequently with 
respect to the Washington Area's maintenance plan, the States have 
committed to continue monitoring ambient PM2.5 
concentrations in accordance with 40 CFR part 58. Thus, EPA is 
proposing to determine that the Washington Area continues to attain the 
1997 annual PM2.5 NAAQS.
2. The States Have Met All Applicable Requirements Under Section 110 
and Part D of the CAA and Have Fully Approved SIPs Under Section 110(k) 
for the Washington Area
    In accordance with section 107(d)(3)(E)(v) of the CAA, the SIP for 
the 1997 annual PM2.5 standard for each of the jurisdictions 
of the Washington Area must be fully approved under section 110(k) and 
all the requirements applicable to the Area under section 110 of the 
CAA (general SIP requirements) and part D of Title I of the CAA (SIP 
requirements for nonattainment areas) must be met.
a. Section 110 General SIP Requirements
    Section 110(a)(2) of Title I of the CAA delineates the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control measures, means, or techniques, provisions for the 
establishment and operation of appropriate devices necessary to collect 
data on ambient air quality, and programs to enforce the limitations. 
The general SIP elements and requirements set forth in section 
110(a)(2) include, but are not limited to the following: (1) A SIP 
submittal that has been adopted by the state after reasonable public 
notice and hearing; (2) provisions for establishment and operation of 
appropriate procedures needed to monitor ambient air quality; (3) 
implementation of a source permit program; provisions for the 
implementation of Part C requirements (PSD); (4) provisions for the 
implementation of Part D requirements for NSR permit programs; (5) 
provisions for air pollution modeling; and (6) provisions for public 
and local agency participation in planning and emission control rule 
development.
    Section 110(a)(2)(D) of the CAA requires that SIPs contain certain 
measures to prevent sources in a state from significantly contributing 
to air quality problems in another state. To implement this provision 
for various NAAQS, EPA has required certain states

[[Page 45744]]

to establish programs to address transport of air pollutants in 
accordance with the NOX SIP Call (63 FR 57356, October 27, 
1998), amendments to the NOX SIP Call (64 FR 26298, May 14, 
1999 and 65 FR 11222, March 2, 2000), and CAIR (70 FR 25162, May 12, 
2005). However, section 110(a)(2)(D) requirements for a state are not 
linked with a particular nonattainment area's designation and 
classification in that state. EPA believes that the requirements linked 
with a particular nonattainment area's designation and classifications 
are the relevant measures to evaluate in reviewing a redesignation 
request. The transport SIP submittal requirements, where applicable, 
continue to apply to a state regardless of the designation of any one 
particular area in the state. Thus, EPA does not believe that these 
requirements are applicable requirements for purposes of redesignation.
    In addition, EPA believes that the other section 110(a)(2) elements 
not connected with nonattainment plan submissions and not linked with 
an area's attainment status are not applicable requirements for 
purposes of redesignation. The Washington Area will still be subject to 
these requirements after it is redesignated. EPA concludes that the 
section 110(a)(2) and part D requirements which are linked with a 
particular area's designation and classification are the relevant 
measures to evaluate in reviewing a redesignation request, and that 
section 110(a)(2) elements not linked to the area's nonattainment 
status are not applicable for purposes of redesignation. This approach 
is consistent with EPA's existing policy on applicability of conformity 
(i.e., for redesignations) and oxygenated fuels requirement. See 
Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, 
October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, 
Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, 
final rulemaking (60 FR 62748, December 7, 1995). See also, the 
discussion on this issue in the Cincinnati, Ohio redesignation (65 FR 
at 37890, June 19, 2000), and in the Pittsburgh-Beaver Valley, 
Pennsylvania redesignation (66 FR at 53099, October 19, 2001).
    EPA has reviewed the States' SIPs and has concluded that they all 
meet the general SIP requirements under section 110(a)(2) of the CAA to 
the extent they are applicable for purposes of redesignation. EPA has 
previously approved provisions of the States' SIPs addressing section 
110(a)(2) requirements, including provisions addressing 
PM2.5. See (76 FR 20237, April 4, 2011 for the District; 76 
FR 62635, October 11, 2011 for Virginia; and 76 FR 72624, November 25, 
2011 for Maryland). These requirements are, however, statewide 
requirements that are not linked to the PM2.5 nonattainment 
status of the Washington Area. Therefore, EPA believes that these SIP 
elements are not applicable requirements for purposes of reviewing the 
States' redesignation requests for the 1997 annual PM2.5 
NAAQS for the Washington Area.
b. Subpart 1 Requirements
    Subpart 1 sets forth the basic nonattainment plan requirements 
applicable to PM2.5 nonattainment areas. Under section 172, 
states with nonattainment areas must submit plans providing for timely 
attainment and must meet a variety of other requirements. The General 
Preamble discusses the evaluation of these requirements in the context 
of EPA's consideration of a redesignation request. The General Preamble 
sets forth EPA's view of applicable requirements for purposes of 
evaluating redesignation requests when an area is attaining the 
standard. See (57 FR 13498, April 16, 1992).
    On April 3, 2008, April 4, 2008, and April 8, 2008, Maryland, the 
District, and Virginia, respectively, submitted separately an 
attainment plan for their respective portions of the Washington Area 
for the 1997 annual PM2.5 NAAQS. As noted previously, on 
January 12, 2009 (74 FR 1146), EPA determined that the entire 
Washington Area had attained the 1997 annual PM2.5 standard, 
based on 2004-2006 and 2005-2007 quality-assured, quality-controlled, 
and certified ambient air quality monitoring data. Pursuant to 40 CFR 
51.2004(c), upon EPA's clean data determination for the Area, the 
requirements for each of the States to submit for their jurisdiction of 
the Washington Area an attainment demonstration and associated RACM, a 
RFP plan, contingency measures, and other planning SIPs related to the 
attainment of the 1997 annual PM2.5 NAAQS were suspended 
until the Area is redesignated to attainment for the standard or EPA 
determines that the Area has again violated any of the standards, at 
which time such plans are required to be submitted. Thus, because 
attainment has been reached for the Area for the 1997 annual 
PM2.5 NAAQS and the Area continues to attain the standard, 
no additional measures are needed to provide for attainment. Therefore, 
the requirements of section 172(c)(1), 172(c)(2), 172(c)(6), and 
172(c)(9) are no longer considered to be applicable for purposes of 
redesignation of the Washington Area for this standard.
    The requirement under section 172(c)(3) for each State was not 
suspended by EPA's clean data determination for the 1997 annual 
PM2.5 NAAQS for the Washington Area. Section 172(c)(3) of 
the CAA requires submission of a comprehensive, accurate, and current 
inventory of actual emissions. For purposes of the PM2.5 
NAAQS, this emissions inventory should address not only direct 
emissions of PM2.5, but also emissions of all precursors 
with the potential to participate in PM2.5 formation, i.e., 
SO2, NOX, VOC, and ammonia. In October 2012, EPA 
approved in separate rulemaking actions the 2002 emissions inventories 
submitted by the States with each of the attainment plans for the 1997 
annual PM2.5 NAAQS to satisfy the requirements of section 
172(c)(3) for the Washington Area. See (77 FR 60626, October 4, 2012 
for Virginia; 77 FR 61513, October 10, 2012 for Maryland; and 77 FR 
65630, October 30, 2012 for the District). The 2002 comprehensive 
emissions inventories for the 1997 annual PM2.5 standard 
submitted by the States with their respective attainment plans for the 
Washington Area included emissions estimates that cover the general 
source categories of point sources, area sources, onroad mobile 
sources, and nonroad mobile sources for each of the jurisdictions in 
the Area. The pollutants that comprise the States' 2002 emissions 
inventories for the Area are PM2.5, NOX, 
SO2, VOC, and ammonia. An evaluation for each submittal of 
the States' 2002 comprehensive emissions inventories for the Washington 
Area is provided in the Technical Support Documents (TSDs) prepared by 
EPA for the separate rulemaking actions. See Docket ID No. EPA-R03-OAR-
2010-0152 (District), EPA-R03-OAR-2010-0140 (Maryland), and EPA-R03-
OAR-2010-0151 (Virginia).
    Section 172(c)(4) of the CAA requires the identification and 
quantification of allowable emissions for major new and modified 
stationary sources in an area, and section 172(c)(5) requires source 
permits for the construction and operation of new and modified major 
stationary sources anywhere in the nonattainment area. EPA has 
determined that, since PSD requirements will apply after redesignation, 
areas being redesignated need not comply with the requirement that a 
nonattainment NSR program be approved prior to redesignation, provided 
that the area demonstrates maintenance of the NAAQS without

[[Page 45745]]

part D NSR. A more detailed rationale for this view is described in a 
memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation, dated October 14, 1994, entitled, ``Part D New Source Review 
Requirements for Areas Requesting Redesignation to Attainment.'' 
Maryland and Virginia have SIP-approved PSD programs in place which 
will regulate major new and modified stationary sources of 
PM2.5 in the Washington Area. See (77 FR 45949, August 2, 
2012, for Maryland and 79 FR 10377, February 25, 2014, for Virginia). 
Maryland and Virginia's PSD programs for PM2.5 will become 
effective in the Washington Area upon redesignation to attainment. The 
District lacks a SIP-approved PSD program; however it is subject to a 
Federal Implementation Plan (FIP) which incorporates EPA's PSD 
permitting requirements of 40 CFR 51.21 into the District's SIP. See 40 
CFR 52.499.
    Section 172(c)(7) of the CAA requires the SIP to meet the 
applicable provisions of section 110(a)(2). As noted previously, EPA 
finds the States' SIPs meet the requirements of section 110(a)(2) that 
are applicable for purposes of redesignation.
    Section 175A requires a state seeking redesignation to attainment 
to submit a SIP revision to provide for the maintenance of the NAAQS in 
the area ``for at least 10 years after the redesignation.'' In 
conjunction with the redesignation requests for the Washington Area, 
the States submitted a common maintenance plan to show continued 
attainment of the 1997 annual PM2.5 NAAQS in the Washington 
Area for at least 10 years after redesignation, throughout 2025. The 
States are requesting that EPA approve this plan as a revision to each 
of their SIPs to meet the requirement of CAA section 175A. Once 
approved, the Washington Area's maintenance plan will ensure that the 
States SIPs meet the requirements of the CAA regarding maintenance of 
the 1997 annual PM2.5 NAAQS for the Area. EPA's analysis of 
the maintenance plan is provided in section V.B. of this rulemaking 
action.
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs, and projects that are developed, funded or approved under 
title 23 of the United States Code (U.S.C.) and the Federal Transit Act 
(transportation conformity) as well as to all other Federally supported 
or funded projects (general conformity). State transportation 
conformity SIP revisions must be consistent with Federal conformity 
regulations relating to consultation, enforcement and enforceability 
which EPA promulgated pursuant to its authority under the CAA. EPA 
interprets the conformity SIP requirements as not applying for purposes 
of evaluating a redesignation request under CAA section 107(d) because 
state conformity rules are still required after redesignation, and 
Federal conformity rules apply where state rules have not been 
approved. See Wall v. EPA, 265 F. 3d 426 (6th Cir. 2001) (upholding 
this interpretation) and (60 FR 62748, December 7, 1995) (discussing 
Tampa, Florida). Thus, for purposes of redesignating to attainment the 
Washington Area for the 1997 annual PM2.5 NAAQS, EPA 
determines that the States have met all the applicable SIP requirements 
under part D of Title I of the CAA.
c. The States Have Fully Approved Applicable SIPs Under Section 110(k) 
of the CAA
    For purposes of redesignation to attainment for the 1997 annual 
PM2.5 NAAQS, EPA has fully approved all applicable 
requirements of the States SIPs for the Washington Area in accordance 
with section 110(k) of the CAA.
3. Permanent and Enforceable Reductions in Emissions
    For redesignating a nonattainment area to attainment, section 
107(d)(3)(E)(iii) requires EPA to determine that the air quality 
improvement in the area is due to permanent and enforceable reductions 
in emissions resulting from implementation of the SIP and applicable 
Federal air pollution control regulations and other permanent and 
enforceable reductions. In making this demonstration, the States have 
considered changes in emissions between 2002, a year showing 
nonattainment for the 1997 annual PM2.5 standard in the 
Washington Area, and 2007, one of the years for which the Washington 
Area monitored attainment for the standard. A summary of the emissions 
reductions for PM2.5, NOX, SO2, VOC, 
and ammonia from 2002 to 2007 for the Washington Area is provided in 
Table 2.

      Table 2--Comparison of 2002 Nonattainment Year and 2007 Attainment Year Emissions Inventories for the Washington Area, in Tons Per Year (tpy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Emissions (tpy)
                 Location                               Year             -------------------------------------------------------------------------------
                                                                               PM2.5            SO2             NOX             VOC           Ammonia
--------------------------------------------------------------------------------------------------------------------------------------------------------
District portion..........................  2002........................           1,077           3,597          15,401          15,877             407
                                            2007........................           1,691           2,156          13,148           1,508             381
                                            Changes.....................             614          -1,441          -2,253         -14,369             -26
Maryland portion..........................  2002........................          12,825         169,789         109,041          98,626           5,174
                                            2007........................          12,088         178,827          91,272          11,397           4,021
                                            Changes.....................            -737           9,038         -17,769         -87,229          -1,153
Virginia portion..........................  2002........................           8,277          49,975          75,910          92,725           2,371
                                            2007........................           6,944          10,457          60,826          12,153           1,802
                                            Changes.....................          -1,333         -39,518         -15,084         -80,572            -569
Washington Area...........................  2002........................          22,179         235,165         188,548         207,228           7,952
                                            2007........................          20,724         191,441         165,247          25,058           6,204
                                            Changes.....................          -1,455         -43,724         -23,301        -182,170          -1,748
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As explained earlier, the States submitted their 2002 emissions 
inventories with their respective attainment plans for the 1997 annual 
PM2.5 NAAQS, which EPA approved in their SIPs to satisfy the 
requirement of section 172(c)(3) for the Washington Area. See (77 FR 
60626, October 4, 2012 for Virginia; 77 FR 61513, October 10,

[[Page 45746]]

2012 for Maryland; and 77 FR 65630, October 30, 2012 for the District). 
An evaluation for each submittal of the States' 2002 comprehensive 
emissions inventories for the Washington Area is provided in the 
Technical Support Documents (TSDs) prepared by EPA for the separate 
rulemaking actions. See Docket ID No. EPA-R03-OAR-2010-0152 (District), 
EPA-R03-OAR-2010-0140 (Maryland), and EPA-R03-OAR-2010-0151 (Virginia). 
The 2007 emissions inventories were provided as part of the States' 
redesignation requests and maintenance plan submittals, and then were 
supplemented by the States to include emissions estimates of ammonia 
and VOC. EPA has evaluated the 2007 emissions inventories as part of 
this rulemaking action. EPA's analysis of the 2007 emissions 
inventories is provided in the TSD dated March 17, 2014, available in 
the docket for this rulemaking action at www.regulations.gov.
    The reduction in emissions and the corresponding improvement in air 
quality from 2002 to 2007 in the Washington Area can be attributed to a 
number of State and Federal control measures that have been implemented 
by the States in recent years. Point source emissions of 
PM2.5, SO2, and NOX are dominated in 
the Washington Area by the emissions from power plants (i.e., 
stationary sources containing electric generating units (EGUs)). There 
are six power plants located in the Washington Area: (1) The Possum 
Point Power Station in Fairfax, Virginia; (2) the Potomac River Power 
Station in Alexandria, Virginia; (3) the Chalk Point Generating Plant, 
in Prince George's County, Maryland; (4) the Dickerson Generating 
Plant, in Montgomery County, Maryland; (5) the Morgantown Generating 
Plant, in Charles County, Maryland; and (6) the Benning Road Generating 
Station in the District.
    Significant improvement in the Washington Area's air quality is due 
to permanent emissions reductions resulting from EGUs as a result of 
two Federal consent orders. A Federal consent decree with the Virginia 
Electric and Power Company (VEPCO), signed on April 17, 2003, required 
two boilers (units 3 and 4) in the Possum Point Power Station in 
Fairfax, Virginia to switch from burning coal to natural gas and to 
limit their combined emissions of NOX by May 2003. The 
consent decree established a combined emissions limit of 219 tons of 
NOX in any 365 days, rolled daily. The required control 
measures resulted in significant emissions reductions of NOX 
and SO2, as summarized in Table 3. This requirement was 
codified in a Federally enforceable permit issued by VADEQ on October 
5, 2001, under the SIP-approved provisions of Article 8 and 9 of 9VAC5 
Chapter 80 (Permits for Stationary Sources).

        Table 3--Reductions of NOX and SO2 Emissions From 2002 to 2007 in the Possum Point Power Station
----------------------------------------------------------------------------------------------------------------
                                      2002 Emissions (tpy)      2007 Emissions (tpy)    Emissions reductions (%)
              Unit ID              -----------------------------------------------------------------------------
                                        SO2          NOX          SO2          NOX          SO2          NOX
----------------------------------------------------------------------------------------------------------------
3.................................        6,228        1,582            0           39          100        97.53
4.................................       10,975        2,349            1          111        99.99        95.27
                                   -----------------------------------------------------------------------------
    Total.........................       17,203        3,931            1          150        99.99        96.18
----------------------------------------------------------------------------------------------------------------

    Additionally, in a joint Federal-State consent order, Mirant Mid-
Atlantic agreed to significantly reduce emissions in four of the power 
plants located in the Washington Area: Chalk Point Generating Plant, 
Dickerson Generating Plant, Morgantown Generating Plant, and Potomac 
River Generating Station. Reductions of NOX emissions 
resulting from the consent decree are summarized in Table 4.

 Table 4--Reductions of NOX Emissions From 2002 to 2007 in the Mirant Mid-Atlantic Facilities in the Washington
                                                      Area
----------------------------------------------------------------------------------------------------------------
                                                    2002 NOX Emissions        2007 NOX Emissions      Emissions
                                                ----------------------------------------------------  reduction
                                                  Pounds per                                        ------------
                                                   million
             Facility                 Unit ID      British
                                                   thermal        tpy       lbs/MMBTU       tpy       Percentage
                                                 units (lbs/                                             (%)
                                                    MMBTU)
----------------------------------------------------------------------------------------------------------------
Chalk Point.......................            1        0.562        6,337        0.446        4,885         22.9
                                              2        0.560        6,755        0.450        4,835         28.4
                                              3        0.156          846        0.136          538         36.4
                                              4        0.169        1,169        0.128          426         63.6
Dickerson.........................            1        0.466        2,121        0.343        1,645         22.5
                                              2        0.498        2,444        0.334        1,644         32.7
                                              3        0.471        2,661        0.338        1,658         37.7
Morgantown........................            1        0.504       10,014        0.191        3,097         69.0
                                              2        0.501        8,605        0.360        6,321         26.5
Potomac River.....................            1        0.379          759        0.326          483         36.3
                                              2        0.416          789        0.287          444         43.7
                                              3        0.418        1,545        0.254          412         73.4
                                              4        0.415        1,443        0.234          481         66.6
                                              5        0.398        1,474        0.245          516         65.0
                                   -----------------------------------------------------------------------------
    Total.........................  ...........  ...........       46,962  ...........       27,386         42.7
----------------------------------------------------------------------------------------------------------------


[[Page 45747]]

    Additionally, a variety of Federal vehicle control programs have 
contributed to reduced onroad emissions of PM2.5, 
NOX, and SO2 in the Washington Area between 2002 
and 2007. EPA's Federal Tier 1 New Vehicle Emission and New Federal 
Evaporative Emission Standards Rule established motor vehicle emission 
standards, which were phased in beginning with model year 1994. See 40 
CFR 86, subpart A. The benefits of this program are reflected in the 
2002 base year and the 2007 attainment year emissions inventories. This 
Federally implemented program affects light duty vehicles and light 
duty trucks. The regulations require more stringent exhaust emission 
standards as well as a uniform level of evaporative emission controls.
    Under the National Low Emission Vehicle Program, automobile 
manufacturers agreed to comply with tailpipe standards that were more 
stringent than EPA could mandate prior to model year 2004. See 40 CFR 
86, subpart R. The program was in place nationwide for model year 2001, 
and the benefits of this program are reflected in the 2002 base year 
and the 2007 attainment year emissions inventories.
    The Tier 2 Motor Vehicle Emission Rule was promulgated by EPA on 
February 10, 2000 (65 FR 6698) and requires more stringent tailpipe 
emissions standards for all passenger vehicles, including sport utility 
vehicles, minivans, vans, and pick-up trucks. This rule also requires 
lower levels of sulfur in gasoline, which ensured the effectiveness of 
low emission control technologies in vehicles and reduced harmful air 
pollution. The tailpipe standards required passenger vehicles to be 77 
to 95 percent cleaner than those built before the rule was promulgated 
and the sulfur standards reduced the sulfur content of gasoline up to 
90 percent by 2006. The benefits of this program are reflected in the 
2007 attainment year emissions inventory.
    The Heavy Duty Diesel Engine Rules are Federal rules that required 
truck manufacturers to comply with more stringent tailpipe standards by 
2004 (65 FR 59896, October 6, 2000) and 2007 (66 FR 5002, January 18, 
2001). The 2007 rule also mandated use of ultra-low sulfur diesel fuel 
to enable modern pollution control technology on trucks and buses. 
Refineries began producing the cleaner-burning diesel fuel for use in 
highway vehicles beginning June 1, 2006. The benefits of this program 
are reflected in the 2007 attainment year emissions inventory.
    The States have implemented enhanced vehicle emissions inspection 
and maintenance (enhanced I/M) programs. See 64 FR 31498 (June 11, 
1999) for the District; 64 FR 58340, (October 29, 1999) for Maryland; 
and 64 FR 47670 (September 1, 1999) for Virginia. These regional I/M 
programs are stricter than the basic programs, as required under 
sections 182 and 202 of the CAA. Enhanced I/M procedures include the 
use of On Board Diagnostic (OBD) system evaluations, a wider range of 
vehicles tested, and may include a dynamometer (treadmill) test that 
checks the car's emissions under driving conditions. The benefits of 
these I/M programs are reflected in the 2002 base year and the 2007 
attainment year emissions inventories.
    The reductions in emissions from the onroad sector between 2002 and 
2007 are presented in Table 5. These emissions estimates were derived 
using the Motor Vehicle Emissions Simulator (MOVES2010a) and the most 
recent planning assumptions as provided by the Metropolitan Washington 
Council of Governments, Transportation Planning Board (MWCOG/TBP).

               Table 5--Changes in Onroad Mobile Emissions of Direct PM2.5 and Precursors From 2002 to 2007 in the Washington Area, in tpy
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                  Emissions (tpy)
             Location                        Year         ----------------------------------------------------------------------------------------------
                                                                 PM2.5               SO2                NOX                VOC              Ammonia
--------------------------------------------------------------------------------------------------------------------------------------------------------
District portion..................  2002.................                156                376              8,827              4,913                383
                                    2007.................                272                 68              7,512              3,362                195
                                    Changes..............                116               -308              -1315              -1551               -188
Maryland portion..................  2002.................                841                894             47,640             20,495              2,035
                                    2007.................              1,757                319             47,279             18,449                929
                                    Changes..............                916               -575               -361             -2,046             -1,106
Virginia portion..................  2002.................                727              1,562             41,108             18,496              1,827
                                    2007.................              1,422                220             36,848             15,703                777
                                    Changes..............                695             -1,342             -4,260             -2,793             -1,050
Washington Area...................  2002.................              1,725              2,833             97,575             43,904              4,246
                                    2007.................              3,452                607             91,639             37,514              1,901
                                    Changes..............              1,727             -2,226             -5,936             -2,345             -2,345
--------------------------------------------------------------------------------------------------------------------------------------------------------

    EPA believes that the States have adequately demonstrated that the 
observed air quality improvement in the Washington Area is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of Federal and State-adopted measures.

B. Maintenance Plan

    As required by section 175A of the CAA, the States submitted a 
common maintenance plan as a revision to their respective SIPs to 
ensure continued attainment of the 1997 annual PM2.5 
standard in the Washington Area throughout 2025. The Washington Area's 
maintenance plan for the1997 annual PM2.5 standard was 
submitted to the EPA by DDOE on June 3, 2013, by MDE on July 10, 2013, 
and by VADEQ on June 3, 2013. As part of the maintenance demonstration 
the SIP revision includes a 2007 attainment emissions inventory, a 2017 
interim emissions inventory, and a 2025 end year maintenance plan 
emissions inventory. The emissions inventories were subsequently 
supplemented by the States to provide for emissions estimates of VOC 
and ammonia as part of the 2007, 2017 and 2025 emissions inventories. 
The supplemental inventories were submitted to EPA on July 22, 2013 by 
DDOE, on July 26, 2013 by MDE, and on July 17, 2013 by VADEQ. EPA's 
analysis for proposing approval of the Washington Area's maintenance 
plan is provided in this section.
1. Attainment Emissions Inventory
    An attainment inventory is comprised of the emissions during the 
time period associated with the monitoring data showing attainment. The 
States

[[Page 45748]]

determined that the appropriate attainment inventory year for the 
maintenance plan is 2007, one of the years in the period during which 
the Area monitored attainment of the 1997 annual PM2.5 
NAAQS. The 2007 attainment emissions inventory contains primary 
PM2.5 emissions (including condensables), SO2, 
NOX, VOC, and ammonia for point, area, nonroad, and onroad 
source categories.
    For the emissions estimates of the point, area, and nonroad 
categories of the 2007 attainment emissions inventory, the States 
submitted version 3 of the 2007 emissions inventory developed through 
the Mid-Atlantic Regional Air Management Association (MARAMA) regional 
process. The 2007 onroad source estimates were developed by MWCOG/TBP 
using EPA's MOVES 2010a model. More information on the development of 
the onroad emissions can be found on the States' TSD submitted as part 
of their redesignation request submittals.
    EPA has reviewed the inventory and the documentation provided by 
the States and found the 2007 attainment emissions inventory submitted 
with the Washington Area's maintenance plan to be approvable. For more 
information on EPA's analysis of the 2007 emissions inventory, see 
EPA's TSD dated March 17, 2014, available in the docket for this 
rulemaking action at www.regulations.gov.
2. Maintenance Demonstration
    Section 175A requires a state seeking redesignation to attainment 
to submit a SIP revision to provide for the maintenance of the NAAQS in 
the area ``for at least 10 years after the redesignation.'' EPA has 
interpreted this as a showing of maintenance ``for a period of ten 
years following redesignation.'' Where the emissions inventory method 
of showing maintenance is used, its purpose is to show that emissions 
during the maintenance period will not increase over the attainment 
year inventory. See 1992 Calcagni Memorandum, pages 9-10.
    For a demonstration of maintenance, emissions inventories are 
required to be projected to future dates to assess the influence of 
future growth and controls; however, the demonstration need not be 
based on modeling. See Wall v. EPA, supra; Sierra Club v. EPA, supra. 
See also 66 FR 53099-53100 and 68 FR 25430-32. The States use 
projection inventories to show that the Washington Area will remain in 
attainment and developed projection inventories for an interim year of 
2017 and a maintenance plan end year of 2025 to show that future 
emissions of NOX, SO2, and direct 
PM2.5 will remain at or below the attainment year 2007 
emissions levels throughout the Area through the year 2025.
    The States used the 2017 and 2025 emissions projections developed 
through the MARAMA regional planning process as the 2017 interim year 
and the 2025 maintenance plan end year emissions inventories. For more 
details on emissions projections, methodologies, and growth, see 
MARAMA's ``Technical Support Document for the Development of the 2013/
2017/2020 Emission Inventories for Regional Air Quality Modeling in the 
Northeast/Mid-Atlantic Region'' (MARAMA 2017 TSD) and the ``Technical 
Support Document for the Development of the 2025 Emission Inventory for 
PM2.5 Nonattainment Counties in the MANE-VU Region, January 
2012'' (MARAMA 2025 TSD), respectively, which were included in the 
States submittals and are available in the docket for this rulemaking 
action at www.regulations.gov. After reviewing the supporting 
documentation provided for developing the projected emissions 
inventories, EPA has determined that the 2017 and 2025 emissions 
inventories for the Washington Area are approvable.
    A summary of the emissions inventories for the Washington Area for 
the 2007 attainment year, the 2017 interim year, and the 2025 
maintenance plan end year is provided in Table 6. The inventories show 
that, between 2007 and 2025, the Area is projected to reduce 
SO2 emissions by 155,071 tpy, NOX emissions by 
14,811 tpy, VOC emissions by 29,473 tpy, and ammonia emissions by 534 
tpy. Thus, the emissions inventories show that the Washington Area will 
continue to maintain the 1997 annual PM2.5 standards during 
the maintenance period.

              Table 6--Comparison of 2007 Attainment Year and 2017 and 2025 Projected Emissions Inventories for the Washington Area, in tpy
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                    Reductions  2007-  Reductions  2007-
                     Pollutants/Year                              2007               2017               2025               2017               2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
PM2.5....................................................             20,724             18,654             18,010             -2,070             -2,714
SO2......................................................            191,441             33,315             33,287           -158,125           -158,153
NOX......................................................            165,247             90,799             74,504            -74,448            -90,743
VOC......................................................            114,235             92,592             84,762            -21,643            -29,473
Ammonia..................................................              6,204              5,922              5,670               -282               -534
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Point, nonroad, and onroad emission projections for 2017 and 2025 
include a variety of control strategies that will reduce emissions of 
PM2.5, NOX, and SO2 in the Area. Many 
of these programs are Federal programs that are enforced on a regional 
or national level. In cases where the programs are delegated programs 
or State programs, the States commit to the continuation of each 
program to ensure that reductions assumed in 2017 and 2025 will be 
achieved.
    As explained earlier, EGUs are the primary point sources of 
PM2.5, SO2, and NOX emissions in the 
Washington Area. The States have implemented various Federally-
enforceable measures in the Washington Area to reduce emissions from 
EGUs. The VEPCO Federal consent decree has reduced significantly 
emissions of NOX and SO2 at the Possum Point 
Power Station, in Fairfax County, Virginia. The fuel switch from coal 
to natural gas required by the consent decree was made in the 2003-2004 
timeframe. Two other permitting actions affected the emissions of 
SO2 and NOX from the Potomac River Power Station, 
in Alexandria, Virginia. The first was a state operating permit issued 
on July 31, 2008 by Virginia's Air Pollution Control Board limiting the 
facility's primary PM2.5 emissions to 207 tpy, the 
SO2 emissions to 3,813 tpy, and the NOX emissions 
to 3,700 tpy. On July 29, 2010, a second state operating permit was 
issued, further limiting the facility to 890 tons of NOX per 
ozone season (May 1 through September 30).

[[Page 45749]]

    The Maryland Healthy Air Act (HAA) regulations became effective on 
July 16, 2007 and were approved by EPA into the Maryland SIP on 
September 4, 2008 (73 FR 51599). The HAA requires reductions in 
NOX and SO2 emissions from large coal burning 
power plants in Maryland. Specifically, this program limits emissions 
from the Chalk Point Generating Plant, the Dickerson Generating Plant, 
and the Morgantown Generating Plant, all of which are coal fired power 
plants located within the Maryland portion of the Washington Area. 
Emission reductions from the HAA are phased: The first phase required 
reductions in the 2009-2010 timeframe and the second phase required 
controls by 2012-2013. At full implementation, the HAA was projected to 
reduce NOX emissions by approximately 75 percent from 2002 
levels and SO2 emissions by approximately 85 percent from 
2002 levels.
    As a condition of an operating permit, two EGUs in the Pepco Energy 
Services, Inc. located within the Area permanently ceased operation by 
December 17, 2012. The permit condition became Federally enforceable as 
part of a SIP revision that was approved by EPA on February 2, 2012 (77 
FR 5191). Closure of the two large, uncontrolled oil-fired turbines 
will result in SO2 and NOX reductions. Additional 
Federal and State measures have been implemented in the Area to reduce 
emissions from the mobile source sector, including: EPA's Nonroad 
Diesel Rule, EPA's 2007 Heavy-duty Highway Rule, EPA's Tier 1 Federal 
Motor Vehicle Emission Standards, EPA's Tier 2 Vehicle and Gasoline 
Sulfur Program, and States' enhanced vehicle emissions I/M programs.
3. Monitoring Network
    The District, Maryland, and Virginia operate a PM2.5 air 
quality monitoring network in the Washington Area that is significantly 
more robust than required by EPA's monitoring regulations in 40 CFR 
part 58. Furthermore, the Washington Area's maintenance plan includes 
the States' commitment to continue to operate and maintain its 
PM2.5 air quality monitoring network, consistent with EPA's 
monitoring requirements, as necessary to demonstrate ongoing compliance 
with the 1997 annual PM2.5 NAAQS. In accordance with the 
requirements of 40 CFR part 58, the States will consult with EPA prior 
to making any necessary changes to the PM2.5 monitoring 
network in the Area and will continue to submit quality-controlled, 
quality-assured monitoring data.
4. Verification of Continued Attainment
    The States have the legal authority to implement and enforce 
specified measures to attain and implement the 1997 annual 
PM2.5 NAAQS, as required by section 110(a)(2) of the CAA. 
The States commit to continue implementing the necessary control 
measures that will assure maintenance of the 1997 annual 
PM2.5 NAAQS throughout the 10 year period following 
redesignation. Additionally, each of the States will acquire ambient 
and source emission data to track attainment and maintenance. As 
explained subsequently, as a contingency measure the States will track 
progress of the maintenance demonstration by periodically evaluating 
the projected emission inventories, based on annual and periodic 
inventories. See section V.B.5 of this proposed rulemaking action. 
Furthermore, the States will prepare and submit to EPA every three 
years a comprehensive PM2.5 emissions inventory, as required 
by EPA's Air Emissions Reporting Requirements (AERR).
5. Contingency Measures
    Section 175A of the CAA requires that a maintenance plan include 
such contingency measures as EPA deems necessary to ensure that the 
States will promptly correct a violation of the 1997 annual 
PM2.5 NAAQS that occurs in the Washington Area after 
redesignation. The maintenance plan should identify the events that 
would ``trigger'' the adoption and implementation of a contingency 
measure(s), the contingency measure(s) that would be adopted and 
implemented, and the schedule indicating the time frame by which the 
state would adopt and implement the measure(s).
    The Washington Area maintenance plan outlines the procedures for 
the adoption and implementation of contingency measures that will 
further reduce emissions in the Area, should a violation of the 1997 
annual PM2.5 NAAQS occur. The States' contingency measures 
will be implemented if any of the following triggering events occur: 
The total actual annual emissions of NOX, SO2 or 
primary PM2.5 exceed the levels of the 2007 attainment year 
emissions inventory; an exceedance of the 1997 annual PM2.5 
standard, that is, an annual average for one year at any EPA-approved 
monitor in the Area of 15.0 [micro]g/m\3\ or greater; or a violation of 
the 1997 annual PM2.5 standard, that is, a 3-year average of 
the annual average at any EPA-approved monitor in the Area of 15.0 
[micro]g/m\3\ or greater.
    Should actual emissions inventory data for any future year of the 
maintenance period indicate that the Washington Area's total emissions 
of NOX, SO2, or primary PM2.5 exceed 
the levels of the Area's 2007 attainment emissions inventory, the 
States would commence an audit to determine whether inventory 
refinements are needed. This audit may include, but would not be 
limited to, a determination that the appropriate models, control 
strategies, monitoring strategies, planning assumptions, industrial 
throughput, and production data were used in the emissions estimates 
for both the 2007 attainment year and the future year in question. The 
results of this audit will be provided to EPA. If the States find that 
this audit does not reconcile the estimated emissions exceedances, then 
each of the States commit to implement one or more of the contingency 
measures, as necessary so that the future actual emissions estimates 
for the Washington Area do not continue to exceed the levels of the 
2007 attainment emissions inventory.
    Additionally, if an annual exceedance of the standard occurs in the 
Area, each of the States commit to implementing one of the contingency 
measures, as described subsequently, which apply to their individual 
jurisdictions, to garner additional emission reductions for air quality 
improvement. If a violation of the standard occurs in the Area, each of 
the States commit to implementing two or more of the contingency 
measures. The States' contingency measures consist of the following 
state regulations or control programs: PM2.5 RACM 
determination, NOX RACM determination, SO2 RACM 
determination (for the District and Virginia portions of the Area), 
nonroad diesel emission reduction strategies, low sulfur home heating 
oil requirements (for the District and Maryland portions of the Area), 
alternative fuel and diesel retrofit programs for fleet vehicle 
operations, and wet suppression upgrade requirements in concrete 
manufacturing. If a RACM determination is selected as a contingency 
measure and the analysis shows that no control measures are 
economically and technically feasible, then the State would consider an 
alternative contingency measure from the options listed.
    The States commit to a schedule for adoption and implementation of 
any contingency measure following three months from when an exceedance 
or violation of the 1997 annual PM2.5 standard is 
determined, based on the air quality assured data; or an exceedance of 
actual emissions from the levels of

[[Page 45750]]

the 2007 attainment emissions inventory is determined, as concluded by 
an audit. After this 3-month period, the selected contingency measure 
must be adopted by the State within six months, and implemented within 
six months of adoption. Compliance with the regulation, or full program 
implementation, must be achieved within 12 months of adoption.

C. Transportation Conformity Determinations

    Section 176(c) of the CAA requires Federal actions in nonattainment 
and maintenance areas to ``conform to'' the goals of SIPs. This means 
that such actions will not cause or contribute to violations of a 
NAAQS, worsen the severity of an existing violation, or delay timely 
attainment of any NAAQS or any interim milestone. Actions involving 
Federal Highway Administration (FHWA) or Federal Transit Administration 
(FTA) funding or approval are subject to the transportation conformity 
rule (40 CFR Part 93, subpart A). Under this rule, metropolitan 
planning organizations (MPOs) in nonattainment and maintenance areas 
coordinate with state air quality and transportation agencies, EPA, and 
the FHWA and FTA to demonstrate that their long range transportation 
plans and transportation improvement programs (TIP) conform to 
applicable SIPs. This is typically determined by showing that estimated 
emissions from existing and planned highway and transit systems are 
less than or equal to the MVEBs contained in the SIP.
    The Washington Area's maintenance plan includes MVEBs for 
PM2.5 and NOX for the 1997 annual 
PM2.5 NAAQS. The MVEBs were submitted for the years 2017 and 
2025 for the 1997 PM2.5 NAAQS, consistent with the emissions 
inventories in the Washington Area. The combined maintenance plan did 
not provide emission budgets for SO2, VOC, and ammonia 
because it concluded, consistent with the presumptions regarding these 
precursors in the Transportation Conformity Rule at 40 CFR 
93.102(b)(2)(v), which predated and was not disturbed by the litigation 
on the 1997 PM2.5 Implementation Rule, that emissions of 
these precursors from motor vehicles are not significant contributors 
to the Area's PM2.5 air quality problem. EPA issued 
conformity regulations to implement the 1997 annual PM2.5 
NAAQS in July 2004 and May 2005 (69 FR 40004, July 1, 2004 and 70 FR 
24280, May 6, 2005). Those actions were not part of the final rule 
recently remanded to EPA by the D.C. Circuit Court in NRDC v. EPA, No. 
08-1250 (January 4, 2013), in which the D.C. Circuit Court remanded to 
EPA the 1997 PM2.5 Implementation Rule because it concluded 
that EPA must implement that NAAQS pursuant to the PM-specific 
implementation provisions of subpart 4, rather than solely under the 
general provisions of subpart 1. That decision does not affect EPA's 
proposed approval of the MVEBs for the Washington Area.
    The Washington Area maintenance plan includes a tiered approach for 
MVEBs to be applied to all future transportation conformity 
determinations and analyses for the 1997 annual PM2.5 NAAQS. 
Shown in Table 7 and Table 8 are the MVEBs from the Washington Area 
maintenance plan. The Tier 1 MVEBs shown in Table 7 will be the 
applicable MVEBs after the adequacy findings are effective. The Tier 2 
MVEBs shown in Table 8 adds a twenty percent (20%) transportation 
buffer to the mobile emissions inventory projections for 
PM2.5 and NOX in 2017 and 2025. The Tier 2 MVEBs 
will become effective if it is determined that technical uncertainties 
primarily due to model changes and to vehicle fleet turnover, which may 
affect future motor vehicle emissions inventories, lead to motor 
vehicle emissions estimates above the Tier 1 MVEBs. This determination 
will be made through the interagency consultation process and fully 
documented within the first conformity analysis that uses the Tier 2 
MVEBs.

Table 7--Tier 1 On-road MVEBs for the Washington Area for the 1997 PM2.5
                                  NAAQS
------------------------------------------------------------------------
                 MVEB for PM2.5 on-road         MVEB for NOX on-road
    Year            emissions  (tpy)              emissions  (tpy)
------------------------------------------------------------------------
2017........                         1,787                        41,709
2025........                         1,350                        27,400
------------------------------------------------------------------------


Table 8--Tier 2 On-road MVEBs for the Washington Area for the 1997 PM2.5
                                  NAAQS
------------------------------------------------------------------------
                 MVEB for PM2.5 on-road         MVEB for NOX on-road
    Year            emissions  (tpy)              Emissions  (tpy)
------------------------------------------------------------------------
2017........                         2,144                        50,051
2025........                         1,586                        32,880
------------------------------------------------------------------------

    EPA's substantive criteria for determining adequacy of MVEBs are 
set out in 40 CFR 93.118(e)(4). Additionally, to approve the MVEBs, EPA 
must complete a thorough review of the SIP revision, in this case the 
Washington Area maintenance plan, and conclude that with the projected 
level of motor vehicle and all other emissions, the SIP revision will 
achieve its overall purpose, in this case providing for maintenance of 
the 1997 annual PM2.5 NAAQS. EPA's process for determining 
adequacy of a MVEB consists of three basic steps: (1) Providing public 
notification of a SIP submission; (2) providing the public the 
opportunity to comment on the MVEB during a public comment period; and 
(3) EPA taking action on the MVEB.
    On February 5, 2013, EPA initiated an adequacy review of the MVEBs 
for the 1997 annual PM2.5 NAAQS that the Maryland, Virginia, 
and the District included in their maintenance plan submittals. As 
such, separate notices of the submission of these MVEBs were posted on 
the adequacy Web site (http://epa.gov/otaq/stateresources/transconf/currsips.htm). The public comment period closed on March 7, 2014. There 
were no public comments received. EPA is acting on making these 
adequacy findings final through separate notices of adequacy. EPA has 
reviewed the MVEBs and found them consistent with the redesignation 
requests and maintenance plans and that the budgets meet the criteria 
for adequacy and approval. Therefore, EPA is proposing to approve the 
2017 and 2025 PM2.5 and NOX MVEBs for the 
Washington Area for transportation conformity purposes. Additional 
information pertaining to the review of the MVEBs can be found in

[[Page 45751]]

EPA's TSD dated February 11, 2014, available on line at 
www.regulations.gov, Docket ID No. EPA-R03-OAR-2014-0148.

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

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

VII. Proposed Actions

    EPA is proposing to approve the requests submitted by the District 
of Columbia, the Commonwealth of Virginia, and the State of Maryland to 
redesignate from nonattainment to attainment their respective portions 
of the Washington Area for the 1997 annual PM2.5 NAAQS. EPA 
has evaluated the States' redesignation requests and determined that 
they meet the redesignation criteria set forth in section 107(d)(3)(E) 
of the CAA for the 1997 annual PM2.5 standard. EPA believes 
that the monitoring data demonstrate that the Washington Area is 
attaining and will continue to attain the 1997 annual PM2.5 
NAAQS. EPA is also proposing to approve the common maintenance plan for 
the Washington Area submitted by the States as revisions to their 
respective SIPs for the 1997 annual PM2.5 standard because 
the plan meets the requirements of CAA section 175A for the standard. 
Furthermore, EPA is proposing to approve the 2017 and 2025 
PM2.5 and NOX MVEBs submitted by the Washington 
Area for transportation conformity purposes. Final approval of the 
redesignation requests would change the official designations of the 
Washington Area, from nonattainment to attainment as found at 40 CFR 
part 81, for each of the States for the 1997 annual PM2.5 
NAAQS, and would incorporate into the States SIPs the maintenance plan 
ensuring continued attainment of the 1997 annual PM2.5 NAAQS 
in the Area for the next 10 years, until 2025. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

VIII. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the status of geographical area 
and do not impose any additional regulatory requirements on sources 
beyond those required by state law. A redesignation to attainment does 
not in and of itself impose any new requirements, but rather results in 
the application of requirements contained in the CAA for areas that 
have been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, this action merely proposes to approve state law as 
meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law and the CAA. For that 
reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described

[[Page 45752]]

in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rulemaking action, in which EPA is 
proposing approval of the redesignation requests and maintenance plan 
submitted by the District of Columbia, the Commonwealth of Virginia, 
and the State of Maryland for the 1997 annual PM2.5 
Washington Area, does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
is not approved to apply in Indian country located in the state, and 
EPA notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen oxides, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: July 17, 2014.
William C. Early,
Deputy Regional Administrator, Region III.
[FR Doc. 2014-18482 Filed 8-5-14; 8:45 am]
BILLING CODE 6560-50-P


