[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Rules and Regulations]
[Pages 21752-21755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07816]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0727; FRL-9552-02-R3]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia, Maryland, and Virginia; 2017 Base Year Emissions 
Inventories for the Washington, DC-MD-VA Nonattainment Area for the 
2015 Ozone National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving state 
implementation plan (SIP) revisions submitted by the District of 
Columbia (DC), State of Maryland (MD), and Commonwealth of Virginia 
(VA) (collectively, the States). The revisions consist of the base year 
inventory for the Washington, DC-MD-VA nonattainment area (the DC Area) 
for the 2015 ozone national ambient air quality standards (NAAQS). This 
action is being taken under the Clean Air Act (CAA).

DATES: This final rule is effective May 13, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2021-0727. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available through 
https://www.regulations.gov, or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Michael O'Shea, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2064. Dr. O'Shea can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: On October 7, 2020, the Maryland Department 
of the Environment (MDE) submitted a revision to the Maryland SIP 
entitled, ``SIP-20-04 2017 Base Year Inventory for the Washington, DC-
MD-VA 2015 Ozone NAAQS Nonattainment Area.'' This revision is referred 
to as the ``MD submittal'' in this rule. On November 4, 2020, the 
District of Columbia Department of Energy and Environment (DOEE), 
submitted a revision to the DC SIP entitled, ``DC 2015 Ozone NAAQS 
Attainment Plan Base Year Inventory.'' This revision is referred to as 
the ``DC submittal'' in this rule. On December 11, 2020, the Virginia 
Department of Environmental Quality (VADEQ) submitted a revision to the 
Virginia SIP entitled, ``8-Hour Ozone (2015 Standard)--Washington 
Attainment Plan ` VA_2017O3BYEI_12112020.' '' This revision is referred 
to as the ``VA submittal'' in this rule. The individual state SIP 
revisions, referred to collectively in this rule action as the ``DC 
Area base year inventory SIPs,'' address the base year inventory 
requirement for the DC Area for the 2015 ozone NAAQS.

I. Background

    On February 24, 2022 (87 FR 10318), EPA published a notice of 
proposed rulemaking (NPRM) for the States. In the NPRM, EPA proposed 
approval of the DC Area base year inventory SIPs. The formal SIP 
revisions were submitted by MD on October 7, 2020, DC on November 4, 
2020, and VA on December 11, 2020.
    On October 1, 2015, EPA strengthened the 8-hour ozone NAAQS, 
lowering the level of the NAAQS from 0.075 ppm parts per million (ppm) 
to 0.070 ppm. 80 FR 65292 (October 26, 2015). Effective August 3, 2018, 
EPA designated the following jurisdictions in the DC Area as marginal 
nonattainment for the 2015 ozone NAAQS: District of Columbia; Calvert, 
Charles, Frederick, Montgomery, and Prince George's Counties in MD; and 
Arlington, Fairfax, Loudoun, and Prince William Counties and 
Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park Cities 
in VA. 83 FR 25776 (June 4, 2018). CAA section 182(a)(1) requires ozone 
nonattainment areas classified as marginal or above to submit a 
comprehensive, accurate, current inventory of actual emissions from all 
emissions sources in the nonattainment area, known as a ``base year 
inventory.'' The DC Area base year inventory SIPs address a base year 
inventory requirement for the DC Area.

II. Summary of SIP Revision and EPA Analysis

A. EPA's Evaluation of the DC Area Base Year Inventory SIPs

    EPA's review of the DC Area base year inventory SIPs indicate that 
they meet the base year inventory requirements for the 2015 ozone 
NAAQS.
    EPA prepared a technical support document (TSD) for each state's 
submittal in support of this rule. In those TSDs, EPA reviewed the 
results, procedures, and methodologies for the SIP base year, and found 
them to be acceptable and developed in accordance with EPA's technical 
guidance. EPA's TSDs for the individual state SIPs are available online 
at http://www.regulations.gov, Docket ID No. EPA-R03-OAR-2021-0727.

B. Base Year Inventory Requirements

    In EPA's December 6, 2018 rule, ``Implementation of the 2015 
National Ambient Air Quality Standards for Ozone: Nonattainment Area 
State Implementation Plan Requirements,'' known as the ``SIP 
Requirements Rule,'' EPA set out nonattainment area requirements for 
the 2015 ozone NAAQS. (83 FR 62998). The SIP

[[Page 21753]]

Requirements Rule established base year inventory requirements, which 
were codified at 40 Code of Federal Regulations (CFR) 51.1315. As 
required by 40 CFR 51.1315(a), each 2015 ozone nonattainment area must 
submit a base year inventory within 2 years of designation.
    Also, 40 CFR 51.1315(a) requires that the inventory year be 
selected consistent with the baseline year for the reasonable further 
progress (RFP) plan as required by 40 CFR 51.1310(b), which states that 
the baseline emissions inventory shall be the emissions inventory for 
the most recent calendar year for which a complete triennial inventory 
is required to be submitted to EPA under the provisions of subpart A of 
40 CFR part 51, Air Emissions Reporting Requirements, 40 CFR 51.1 
through 50. The most recent triennial inventory year conducted for the 
National Emissions Inventory (NEI) pursuant to the Air Emissions 
Reporting Requirements (AERR) rule is 2017. 73 FR 76539 (December 17, 
2008). The States selected 2017 as their baseline emissions inventory 
year for RFP. This selection comports with EPA's implementation 
regulations for the 2015 ozone NAAQS because 2017 is the inventory 
year. 40 CFR 51.1310(b).\1\
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    \1\ On January 29, 2021, the Court of Appeals for the D.C. 
Circuit issued its decision regarding multiple challenges to EPA's 
implementation rule for the 2015 ozone NAAQS which included, among 
other things, upholding this provision allowing states to use an 
alternative baseline year for RFP. Sierra Club v. EPA, No. 15-1465 
(D.C. Cir.). The other provisions of EPA's ozone implantation rule 
at issue in the case are not relevant for this rule.
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    Further, 40 CFR 51.1315(c) requires emissions values included in 
the base year inventory to be actual ozone season day emissions as 
defined by 40 CFR 51.1300(q), which states: Ozone season day emissions 
means an average day's emissions for a typical ozone season work 
weekday. The state shall select, subject to EPA approval, the 
particular month(s) in the ozone season and the day(s) in the work week 
to be represented, considering the conditions assumed in the 
development of RFP plans and/or emissions budgets for transportation 
conformity. The States included actual ozone season day emissions, 
pursuant to 40 CFR 51.1315(c).

C. DC Area Base Year Inventory SIPs

    The DC Area base year inventory SIPs, contain an explanation of 
each State's 2017 base year emissions inventory for stationary, non-
point, non-road, and on-road anthropogenic sources, as well as biogenic 
sources, in the DC Area. The States estimated anthropogenic emissions 
for volatile organic compound (VOC), nitrogen oxide (NOx), and carbon 
monoxide (CO) for a typical ozone season work weekday. The DC Area base 
year inventory SIPs were developed collaboratively. As such, their 2017 
base year emissions inventory (BYEI) are almost identical and, 
therefore, will be referred to collectively as the ``2017 DC Area 
BYEI'' in the remainder of this rule, unless otherwise noted because 
individual distinctions are necessary.\2\
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    \2\ The 2017 DC Area BYEI submitted by each individual state is 
found as follows: DC submittal--Appendix BY2017 
_EI_Document_October_30_2020_FINAL; MD submittal--Appendix 2. Wash 
Region 2015 NAAQS BY Inventory SIP; and VA submittal--Appendix NVA-
INV-SIP-1.
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    The States developed the 2017 DC Area BYEI with the following 
source categories of anthropogenic emissions sources: Point, quasi-
point, non-point, non-road model, on-road, and commercial marine 
vessels, airport, and railroad (MAR) emissions sources, in addition to 
biogenic total sources. The 2017 DC Area BYEI sets out the 
methodologies the States used to develop their base year inventory for 
each source listed. Those methodologies are explained in further depth 
within appendices A-D of each state's submission. Data justifying the 
inventories are also provided within appendices A-D of each state's 
submission. Note, however, that Virginia only included appendix items 
relevant to their own state but uploaded files jointly with DC for the 
full inventory development. Furthermore, the MD submittal was earliest 
and, as such, contains data, development, and guidance that precedes 
the widespread adoption of the 2017 NEI. This timing differential 
accounts for the differences in the MD submittal as compared to the DC 
and VA submittals.
    EPA's review of the DC Area base year inventory SIPs indicates that 
they meet the base year inventory requirements for the 2015 ozone 
NAAQS. Other specific requirements of MDE's October 7, 2020 submittal, 
DOEE's November 4, 2020 submittal and VADEQ's December 11, 2020 
submittal and the rationale for EPA's proposed action, including 
further information on each source category, are explained in the NPRM 
and will not be restated here. No public comments were received on the 
NPRM.

III. Final Action

    EPA's review of this material indicates the DC area base year 
inventory SIPs meet the base year inventory requirement for the 2015 
ozone NAAQS for the DC Area. Therefore, EPA is approving the DC Area 
base year inventory SIPs, which were submitted on October 7, 2020 (MD), 
November 4, 2020 (DC), and December 11, 2020 (VA).

IV. 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.''

[[Page 21754]]

    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.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 13, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action.
    This final rule approving the DC Area base year inventory SIPs may 
not be challenged later in proceedings to enforce its requirements. 
(See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: April 6, 2022.
Diana Esher,
Acting Regional Administrator, Region III.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart J--District of Columbia

0
2. In Sec.  52.470, the table in paragraph (e) is amended by adding an 
entry for ``2017 Base Year Emissions Inventories for the Washington, 
DC-MD-VA Nonattainment Area for the 2015 Ozone National Ambient Air 
Quality Standard'' at the end of the table to read as follows:


Sec.  52.470  Identification of plan.

* * * * *
    (e) * * *

[[Page 21755]]



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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
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                                                  * * * * * * *
2017 Base Year Emissions           The District of           11/4/2020  4/13/2022, [INSERT   Docket 2022-03863.
 Inventories for the Washington,    Columbia portion                     Federal Register
 DC-MD-VA Nonattainment Area for    of the Washington,                   CITATION].
 the 2015 Ozone National Ambient    DC-MD-VA
 Air Quality Standard.              nonattainment area
                                    for the 2015 ozone
                                    NAAQS (i.e., the
                                    District of
                                    Columbia).
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Subpart V--Maryland

0
3. In Sec.  52.1070, the table in paragraph (e) is amended by adding an 
entry for ``2017 Base Year Emissions Inventories for the Washington, 
DC-MD-VA Nonattainment Area for the 2015 Ozone National Ambient Air 
Quality Standard'' at the end of the table to read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (e) * * *

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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
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                                                  * * * * * * *
2017 Base Year Emissions           Maryland portion of       10/7/2020  4/13/2022, [INSERT   The Maryland
 Inventories for the Washington,    the Washington, DC-                  Federal Register     portion consists
 DC-MD-VA Nonattainment Area for    MD-VA                                CITATION].           of Calvert,
 the 2015 Ozone National Ambient    nonattainment area                                        Charles,
 Air Quality Standard.              for the 2015 ozone                                        Frederick,
                                    NAAQS.                                                    Montgomery, and
                                                                                              Prince George's
                                                                                              counties.
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Subpart VV--Virginia

0
4. In Sec.  52.2420, the table in paragraph (e)(1) is amended by adding 
an entry for ``2017 Base Year Emissions Inventories for the Washington, 
DC-MD-VA Nonattainment Area for the 2015 Ozone National Ambient Air 
Quality Standard'' at the end of the table to read as follows:


Sec.  52.2420  Identification of plan.

* * * * *
    (e) * * *
    (1) * * *

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    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
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                                                  * * * * * * *
2017 Base Year Emissions           The Virginia             12/11/2020  4/13/2022, [insert   The Virginia
 Inventories for the Washington,    portion of the                       Federal Register     portion consists
 DC-MD-VA Nonattainment Area for    Washington, DC-MD-                   citation].           of Arlington,
 the 2015 Ozone National Ambient    VA nonattainment                                          Fairfax, Loudoun,
 Air Quality Standard.              area for the 2015                                         and Prince William
                                    ozone NAAQS (i.e.,                                        counties and
                                    the District of                                           Alexandria,
                                    Columbia).                                                Fairfax, Falls
                                                                                              Church, Manassas,
                                                                                              and Manassas Park
                                                                                              cities.
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[FR Doc. 2022-07816 Filed 4-12-22; 8:45 am]
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