Air Plan Approval; District of Columbia, Maryland, and Virginia; Maryland and Virginia Redesignation Requests and District of Columbia, Maryland, and Virginia Maintenance Plan for the Washington, DC-MD-VA 2008 Ozone Standard Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving the requests from the State of Maryland (Maryland) and the Commonwealth of Virginia (Virginia) to redesignate to attainment their respective portions of the Washington, DC-MD-VA nonattainment area (hereafter “the Washington Area” or “the Area”) for the 2008 8-hour ozone national ambient air quality standard (NAAQS or standard) (also referred to as the 2008 ozone NAAQS) as Maryland's and Virginia's portions of the Area meet the statutory requirements for redesignation under the Clean Air Act (CAA). EPA is therefore redesignating the following jurisdictions to attainment for the 2008 ozone NAAQS: The Counties of Calvert, Charles, Frederick, Montgomery, and Prince George's in Maryland as well as the Counties of Arlington, Fairfax, Loudoun, and Prince William and the Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in Virginia. EPA is also approving, as a revision to District of Columbia's (the District), Maryland's, and Virginia's state implementation plans (SIPs), the joint Washington Area maintenance plan submitted by the District, Maryland, and Virginia, which demonstrates maintenance of the 2008 ozone NAAQS through 2030 in the Washington Area. The Washington Area maintenance plan includes motor vehicle emissions budgets (MVEBs) for the 2008 ozone NAAQS for nitrogen oxides (NO_X) and volatile organic compounds (VOCs), which are precursors to ozone. EPA has found the MVEBs adequate and is approving, as a SIP revision, these 2014, 2025, and 2030 NO_X and VOC MVEBs for the Washington Area.

DATES:

This final rule is effective on May 15, 2019.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2018-0215. 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:

Sara Calcinore, (215) 814-2043, or by email at calcinore.sara@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On May 21, 2012 and June 11, 2012, EPA designated nonattainment areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective July 20, 2012, the Washington Area was designated as marginal nonattainment for the 2008 ozone NAAQS. The Washington Area consists of the Counties of Calvert, Charles, Frederick, Montgomery, and Prince George's in Maryland, the Counties of Arlington, Fairfax, Loudoun, and Prince William and the Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park in Virginia, and the District of Columbia. See 40 CFR 81.309, 81.321, and 81.347.

Section 107(d)(3)(E) of the CAA allows redesignation of an area to attainment of the NAAQS provided that: (1) The Administrator (EPA) determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k) of the CAA; (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollutant control regulations, and other permanent and enforceable emission reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA; and (5) the State containing the area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

On March 12, 2018, February 5, 2018, and January 3, 2018, the District, Maryland, and Virginia, respectively, formally submitted requests to redesignate their portions of the Washington Area from marginal nonattainment to attainment for the 2008 ozone NAAQS. Concurrently, the District, Maryland, and Virginia formally submitted, as revisions to their respective SIPs, a joint maintenance plan prepared by the Metropolitan Washington Council of Governments (MWCOG) for the Washington Area to ensure continued attainment for at least 10 years following redesignation. The maintenance plan includes MVEBs for NO_X and VOC for the years 2014, 2025, and 2030.

On August 8, 2018 (83 FR 39019), EPA published a notice of proposed rulemaking (NPRM) for the District, Maryland, and Virginia. In the NPRM, EPA proposed approval of Maryland's and Virginia's requests to redesignate to attainment their respective portions of the Washington Area, pursuant to CAA section 107(d)(3). EPA did not propose approval of the redesignation request for the District's portion of the Washington Area and will address the District's redesignation request for its portion of the Area in a separate rulemaking action. EPA also proposed to approve, as a revision to the District's, Maryland's, and Virginia's SIPs, the joint maintenance plan submitted by the District, Maryland, and Virginia that demonstrates maintenance of the 2008 ozone NAAQS through 2030 in the Washington Area. Additionally, EPA proposed to approve, as revisions to the District's, Maryland's, and Virginia's SIPs, the 2014, 2025, and 2030 MVEBs for NO_X and VOC for the Washington Area identified in the Washington Area maintenance plan.

II. Summary of SIP Revision and EPA Analysis

EPA reviewed the District's, Maryland's, and Virginia's redesignation requests and found that Maryland's and Virginia's portions of the Washington Area have satisfied the requirements for redesignation pursuant to CAA section 107(d)(3)(E). As one of the criteria for redesignation to attainment, section 107(d)(3)(E)(iv) of the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA that demonstrates continued attainment of the NAAQS for at least 10 years following redesignation to attainment. EPA reviewed the joint maintenance plan submitted by the District, Maryland, and Virginia and found that it satisfies the requirements of section 175A. The Washington Area maintenance plan includes 2014, 2025, and 2030 MVEBs for NO_X and VOC for the 2008 ozone NAAQS. EPA found the submitted MVEBs adequate and approvable as a revision to the District's, Maryland's, and Virginia's SIPs. EPA's rationale for these actions can be found in the August 8, 2018 NPRM and corresponding Technical Support Documents (TSDs) included in the docket for this action available online at www.regulations.gov,, Docket ID: EPA-R03-OAR-2018-0215.

III. Public Comments and EPA Response

EPA received comments on the August 8, 2018 NPRM from four commenters. Comments from two anonymous commenters did not concern any of the specific issues raised in the NPRM, nor did they address EPA's rationale for the proposed approval of Maryland's and Virginia's redesignation requests or the District's, Maryland's, and Virginia's joint maintenance plan. Therefore, EPA is not responding to those comments. EPA received relevant comments from two commenters. Those comments and EPA's responses are discussed below. All of the comments received and any submitted attachments are included in the docket for this action, available online at www.regulations.gov,, Docket ID: EPA-R03-OAR-2018-0215.

Commenter 1: On August 16, 2018, EPA received anonymous comments on the August 8, 2018 NPRM. The commenter questioned how EPA can redesignate a portion of the Washington Area if the Area was designated as one nonattainment area due to air quality in the entire Area not meeting the standard. The commenter also questioned how the maintenance plan for the entire Washington Area could be approved without first redesignating the District's portion of the Area. The commenter suggested that the entire Washington Area, including the District, be redesignated prior to the approval of the maintenance plan.

EPA Response: Section 107(d)(3)(E) of the CAA, which sets forth the criteria that must be met to redesignate a nonattainment area, specifically mentions redesignating a portion of a nonattainment area. Section 107(d)(3)(E) states that “[t]he Administrator may not promulgate a redesignation of a nonattainment area (or portion thereof) to attainment unless . . .” five criteria in sections 107(d)(3)(E)(i)-(v) are met. (Emphasis added). Therefore, that statute allows EPA to redesignate to attainment Maryland's and Virginia's portions of the Washington Area without simultaneously redesignating the District's portion. See, e.g., Pennsylvania portion of the Philadelphia-Wilmington, PA-NJ-DE nonattainment area for the 1997 Annual and 2006 24-Hour fine particulate matter standard, final rulemaking for redesignation, 80 FR 22112 (April 21, 2015); Ohio portion of the Youngstown-Warren-Sharon, OH-PA nonattainment area for the 1997 ozone NAAQS, final rulemaking for redesignation, 72 FR 32190 (June 12, 2007); Indiana portion of the Chicago-Gary-Lake County, IL-IN nonattainment area for the 1997 ozone NAAQS, final rulemaking for redesignation, 75 FR 26113 (May 11, 2010); and, West Virginia portion of the Huntington-Ashland, WV-KY nonattainment area for the 1997 ozone NAAQS, final rulemaking for redesignation, 71 FR 54421 (September 15, 2006).

Regarding the initial nonattainment designation for the Area based on air quality not meeting the standard, air quality in the entire Area has improved, and on November 14, 2017, EPA determined that the entire Washington Area attained the 2008 ozone NAAQS by the July 20, 2016 attainment date. 82 FR 52651. As discussed in the August 8, 2018 NPRM, the entire Washington Area also continues to attain the 2008 ozone NAAQS. Because the entire Area is in attainment, EPA received formal requests from the District, Maryland, and Virginia to redesignate their respective portions of the Washington Area to attainment for the 2008 ozone NAAQS. As explained in the NPRM, EPA found that Maryland and Virginia have satisfied the CAA section 107(d)(3)(E) requirements for redesignation of their respective portions of the Washington Area, so EPA is approving Maryland's and Virginia's requests and redesignating their respective portions of the Washington Area to attainment in accordance with section 107(d)(3)(E) of the CAA. As stated in the NPRM, EPA will act on the District's redesignation request at a later date.

The commenter also questioned how EPA can approve the maintenance plan for the Washington Area prior to redesignating the District's portion of the Area. However, CAA section 107(d)(3)(E)(iv) requires that in order to redesignate an area to attainment, EPA must first have fully approved a maintenance plan for the area meeting the requirements of CAA section 175A. EPA has long interpreted that provision to also allow for concurrent approval of the maintenance plan or other necessary SIP submissions. See Calcagni memorandum at 7. Because a maintenance plan is one of the prerequisites in sections 107(d)(3)(E)(i)-(iv) for redesignation, EPA cannot redesignate an area until the area has a maintenance plan approved by EPA.

Furthermore, nothing in CAA sections 107(d)(3)(E) or 175A prohibits EPA from approving a maintenance plan for an area prior to redesignating the area, and approving the maintenance plan into the District's SIP prior to redesignating the District does not adversely impact the District's ability to maintain the NAAQS and will provide for continued maintenance in the Washington Area, including the District, for the 2008 ozone NAAQS. Therefore, EPA is approving the maintenance plan as a revision to the District's, Maryland's, and Virginia's SIPs.

Commenter 2: On September 7, 2018, Earthjustice submitted comments on the August 8, 2018 NPRM on behalf of Sierra Club. The following is a summary of Earthjustice's comments and EPA's responses:

Comment 1: Earthjustice commented that redesignating the Washington Area under the 2008 ozone standard “would authorize weaker protections against ozone despite the fact that the area continues to have unhealthy levels of ozone.” Earthjustice noted that EPA just designated the Washington Area as nonattainment under the 2015 ozone NAAQS and that the most recent 2017 design value for the Washington Area is in violation of the 2015 standard. Earthjustice provided Air Quality Index (AQI) data for several days from May 2018 to August 2018 and stated that this year, air quality monitors within the Washington Area have “repeatedly recorded ozone pollution levels exceeding the level of even the 1997 standard, while far more often exceeding the level of the 2008 and 2015 standards.” Earthjustice stated that, “It is inconsistent with the Act's [CAA] statutory design to allow protections against the ozone pollution that plagues the region to be weakened via a redesignation under the 2008 ozone standard.”

EPA Response: EPA does not agree that redesignating the Washington Area to attainment for the 2008 ozone NAAQS will authorize weaker protections against ozone in the area. The August 8, 2018 NPRM proposes to redesignate the Washington Area only for the 2008 ozone NAAQS and does not affect the Washington Area's designation as marginal nonattainment for the more stringent 2015 ozone NAAQS. The 2008 ozone NAAQS and 2015 ozone NAAQS are two separate standards: Areas within states are designated for each standard and must satisfy the requirements applicable to their designation for each standard. The redesignation of the Washington Area from marginal nonattainment to attainment of the 2008 ozone NAAQS will not change the Area's marginal nonattainment designation under the 2015 ozone NAAQS, nor exempt the Area from meeting the applicable requirements for marginal nonattainment areas under the 2015 ozone NAAQS. Because the Washington Area was classified as marginal nonattainment under both the 2008 and 2015 ozone standards, the Area is subject to the same statutory and associated regulatory requirements in subchapter I, Part D of the CAA under both standards. Therefore, redesignating the Washington Area for the 2008 ozone NAAQS will not remove any of the protections related to the Washington Area's marginal nonattainment designation under the more stringent 2015 ozone NAAQS.

In addition, as demonstrated in the NPRM, air quality in the Washington Area satisfies the CAA section 107(d)(3)(E)(i) requirement for redesignation to attainment under the 2008 ozone NAAQS, which requires the Administrator (EPA) to determine that the area has attained the applicable NAAQS. Therefore, in order to be redesignated to attainment of the 2008 ozone NAAQS, the Washington Area must, among other requirements, attain the 2008 ozone NAAQS. On November 14, 2017 (82 FR 52651), EPA determined that the entire Washington Area attained the 2008 ozone NAAQS by the July 20, 2016 attainment date because all of the Washington Area monitoring sites with valid data had design values less than or equal to 0.075 ppm during the 2013-2015 monitoring period. The Washington Area continues to attain the 2008 ozone NAAQS, as shown by 2014-2016 and 2015-2017 design values and preliminary 2016-2018 design values throughout the Area that continue to be below the 0.075 ppm level of the 2008 ozone NAAQS.

Therefore, the Washington Area has satisfied the requirement in CAA section 107(d)(3)(E)(i) for redesignation to attainment of the 2008 ozone NAAQS. The Washington Area's designation status for the 2015 ozone NAAQS is not relevant to determining if the Area has satisfied the requirement in CAA section 107(d)(3)(E)(i) for redesignation for the 2008 ozone NAAQS.

EPA notes that the 2015-2017 design value exceeds the 2015 ozone standard of 0.070 ppm but does not exceed the 2008 ozone standard of 0.075 ppm. Because this redesignation is only for the less stringent 2008 standard, a design value above the 2015 standard is not relevant, as long as it is below the 2008 standard. In addition, the other monitoring data (the AQI data) provided by Earthjustice are not design values. The values provided by Earthjustice are daily maximum concentrations of ozone at monitors located in the Washington Area. Compliance with the 2008 ozone NAAQS, as well as the 1997 and 2015 NAAQS, is not determined based on daily maximum concentrations, as implied by Earthjustice, but on design values exceeding the particular NAAQS standard. A design value for an air quality monitor is the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations recorded at that monitor. See 40 CFR 50.15(b). An area's design value is based on the monitor in the area which records the highest design value over the three-year period. As discussed in the August 8, 2018 NPRM, an area “attains” the 2008 ozone NAAQS if the area's design value is below 0.075 ppm. The final 2015-2017 design values, shown in Table 1, are below the 2008 ozone NAAQS. The most recent preliminary air quality monitoring data (2016-2018 design value) is also consistent with this finding. Thus, there is no evidence that the ozone design value for the Washington Area exceeded the 2008 ozone standard.

Comment 2: Earthjustice also stated that EPA cannot approve the redesignation of the Washington Area because the Area has not satisfied its anti-backsliding obligations under the 1997 ozone standard. Earthjustice commented that EPA failed to evaluate in the NPRM if the Washington Area has met the anti-backsliding requirements under the 1997 ozone NAAQS and that Virginia lacks EPA-approved reasonably available control technology (RACT) SIPs under the 1997 standard. Specifically, Earthjustice referenced EPA's “SIP Dashboard,” which showed that for Virginia's portion of the Washington, DC-MD-VA nonattainment area for the 1997 ozone NAAQS, EPA had not approved the following RACT VOC control techniques guidelines (CTGs): Control Techniques Guidelines for Automobile and Light-Duty Truck Assembly Coatings (Publication No. EPA 453/R-08-006; September 2008) (auto and light-duty truck assembly coatings CTG), Control Techniques Guidelines for Fiberglass Boat Manufacturing (Publication No. EPA 453/R-08-004; September 2008) (fiberglass boat manufacturing materials CTG), Control Techniques Guidelines for Flat Wood Paneling Coatings (Publication No. EPA 453/R-06-004; September 2006) (flat wood paneling coatings CTG), Control Techniques Guidelines for Flexible Package Printing (Publication No. EPA 453/R-06-003; September 2006) (flexible packaging printing materials CTG), Control Techniques Guidelines for Large Appliance Coatings (Publication No. EPA 453/R-07-004; September 2007) (large appliance coatings CTG), Control Techniques Guidelines for Metal Furniture Coatings (Publication No. EPA 453/R-07-005; September 2007) (metal furniture coatings CTG), Control Techniques Guidelines for Paper, Film, and Foil Coatings (Publication No. EPA 453/R-07-003; September 2007) (paper, film, and foil coatings CTG), and Control of Refinery Vacuum Producing Systems, Wastewater Separators, and Process Unit Turnarounds (Publication No. EPA 450/2-77-025; October 1977) (refinery vacuum producing systems, wastewater separators, and process unit turnarounds CTG).

EPA Response: EPA disagrees that the Washington Area has not met its anti-backsliding requirements for the 1997 ozone standard. In accordance with 40 CFR 51.1105(a)(1), the Washington Area is subject to those anti-backsliding controls listed in 40 CFR 51.1100(o) that were applicable to an area with a moderate nonattainment classification as of the time of revocation, until the area is redesignated to attainment for the 2008 ozone NAAQS. EPA believes Virginia and Maryland have complied with all applicable anti-backsliding requirements for the revoked 1997 ozone NAAQS.

Specifically, with respect to ozone RACT requirements under the revoked 1997 standard, EPA believes that Virginia has met its obligations. The commenter is correct that at the time Earthjustice submitted its comment, EPA's “SIP Dashboard” indicated that Virginia did not have an approved RACT SIP for the refinery vacuum producing systems, wastewater separators, and process unit turnarounds CTG under the 1997 ozone NAAQS. However, this entry in the SIP Dashboard was incorrect. On October 23, 2006, Virginia submitted a SIP revision to EPA that addressed the requirements of RACT under the 1997 ozone NAAQS (also referred to at the time as the “8-hour ozone NAAQS”) for all RACT VOC CTGs that were due at the time (September 15, 2006). EPA found that Virginia met all of the RACT requirements, including those addressing the refinery vacuum producing systems, wastewater separators, and processes unit turnarounds CTG in question. On June 16, 2009 (74 FR 28444), EPA finalized approval of Virginia's October 23, 2006 SIP revision as satisfying the requirements of RACT under the 1997 8-hour ozone NAAQS.

Subsequent to Virginia's 2006 submittal, EPA issued additional CTGs for the 1997 ozone NAAQS in September 2006, 2007, and 2008. With respect to CTG requirements covering lithographic printing materials and letterpress printing materials, industrial cleaning solvents, miscellaneous industrial adhesives, and miscellaneous metal products coatings and plastic parts coatings, Virginia submitted three SIP revisions on February 1, 2016 adopting RACT for these source categories located in the Northern Virginia Volatile Organic Compound Emissions Control Area. On August 23, 2016 (81 FR 57531), EPA approved Virginia's SIP revisions adopting RACT for these source categories.

Other 1997 ozone NAAQS CTGs issued subsequent to Virginia's 2006 SIP submission include those covering flat wood paneling coatings, flexible packaging printing materials, large appliance coatings, paper, film, and foil coatings, metal furniture coatings, fiberglass boat manufacturing materials, and auto and light-duty truck assembly coatings. However, no sources subject to these CTGs are located within the Northern Virginia Volatile Organic Compound Emissions Control Area. Virginia therefore sent negative declaration letters to EPA on November 25, 2008 for the flat wood paneling coatings CTG and flexible packaging printing materials CTG, on December 3, 2008 for the large appliance coatings CTG, paper, film, and foil coatings CTG, and metal furniture coatings CTG, on May 6, 2009 for the fiberglass boat manufacturing materials CTG, and on May 18, 2009 for the auto and light-duty truck assembly coatings CTG. These negative declaration letters certified that there are no sources located in the Northern Virginia Volatile Organic Compound Emissions Control Area subject to the RACT VOC CTGs for fiberglass boat manufacturing materials and auto and light-duty truck assembly coatings and no sources located in the Commonwealth of Virginia subject to the RACT VOC CTGs for large appliance coatings, paper, film, and foil coatings, metal furniture coatings, flat wood paneling coatings, and flexible packaging printing materials. Virginia has recently re-certified that there are no sources located in the relevant Control Area subject to these same CTGs as part of its December 12, 2017 SIP submission addressing Virginia's RACT obligations under the 2008 ozone NAAQS. In addition, EPA consulted the latest version of EPA's National Emissions Inventory (2014 NEI v2) and confirmed that no facilities subject to these CTGs were found in Virginia's portion of the Washington Area.

Comment 3: Earthjustice stated that EPA cannot approve the proposed maintenance plan because the contingency measures do not include implementation of “all measures with respect to the control of the air pollutant concerned which were contained in the State implementation plan for the area before redesignation of the area.” See CAA section 175A(d).

EPA Response: The District, Maryland, and Virginia are not moving any of their existing SIP-approved measures into the contingency plan. These measures remain part of their active SIPs. Therefore, these measures are not included as part of the contingency plan in the maintenance plan for the Washington Area. The District's, Maryland's, and Virginia's maintenance plan states, “This maintenance plan includes a commitment to continue to enforce all applicable requirements of past revisions to the state implementation plan (SIP) after the ozone nonattainment area is redesignated to attainment.” On February 26, 2019, February 27, 2019, and February 6, 2019, EPA received letters from the District, Maryland, and Virginia, respectively, clarifying that this statement in the maintenance plan was intended to mean that, in accordance with section 175A(d) of the CAA, the District, Maryland, and Virginia will implement all measures, with respect to the control of ozone, that were contained in the SIPs for the Washington Area prior to redesignation of the Area to attainment and that any measures currently in the District's, Maryland's, and Virginia's SIPs, with respect to the control of ozone, will be retained as contingency measures for the 20-year maintenance period following redesignation of the Washington Area to attainment for the 2008 ozone NAAQS. Therefore, EPA finds that the maintenance plan for the Washington Area satisfies the requirement of CAA section 175A(d) referenced in Earthjustice's comment.

Comment 4: Earthjustice commented that EPA cannot approve the maintenance plan because EPA proposed to approve “a commitment to adopt contingency measures to address violations” as a contingency measure. Earthjustice stated that EPA cannot approve the contingency measures in the maintenance plan because the commitment to adopt contingency measures to address violations is a “promise to do later what's required now” by CAA section 175A(d).

EPA Response: Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area. States are not required to have fully-adopted contingency measures in their SIP in order for the maintenance plan to be approved. Contingency measures are adopted and implemented by a State if a violation of the NAAQS occurs in the maintenance area or if a triggering event (also referred to as an “indicator”) identified by the State in its maintenance plan occurs. The District's, Maryland's, and Virginia's joint maintenance plan identifies specific measures that EPA has found to be appropriate to use as contingency measures. In addition to these measures, the District, Maryland, and Virginia commit in their maintenance plan to adopt, as SIP revisions, additional contingency measures if necessary to address a violation of the 2008 ozone NAAQS in the Washington Area. This commitment strengthens the contingency measures in the maintenance plan by providing assurance that if a violation of the 2008 ozone NAAQS occurs in the Washington Area that may not be responsive using the existing contingency measures in the maintenance plan, the District, Maryland, and Virginia can assess the specific cause of the violation and adopt appropriate, tailored contingency measures as necessary. The contingency measures included in the District's, Maryland's, and Virginia's maintenance plan satisfy the requirements for contingency measures in CAA section 175A as well as the Calcagni memorandum.

Comment 5: Earthjustice commented that if EPA approves the proposed redesignation, EPA “should make clear in the final action that the redesignation does not affect obligations that apply via the Washington nonattainment area's severe classification under the 1-hour ozone NAAQS.”

EPA Response: EPA's approval of Maryland's and Virginia's redesignation requests for the Washington Area for the 2008 ozone NAAQS and the associated maintenance plan submitted by the District, Maryland, and Virginia pertains to the 2008 ozone NAAQS and the anti-backsliding requirements for the 1997 ozone NAAQS and does not affect obligations that apply under 40 CFR 51.905(a) for the 1-hour ozone NAAQS. South Coast Air Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 1151 (D.C. Cir. 2018).

Comment 6: Earthjustice stated that EPA should not finalize the August 8, 2018 NPRM nor redesignate the Washington Area to attainment for the 2008 ozone NAAQS.

EPA Response: EPA disagrees with Earthjustice's comment that EPA should not finalize the August 8, 2018 NPRM. EPA finds that Maryland's and Virginia's portions of the Washington Area satisfy the requirements for redesignation under CAA section 107(d)(3)(E) for the 2008 ozone NAAQS. EPA also still finds that the joint maintenance plan submitted by the District, Maryland, and Virginia for the Washington Area satisfies the requirements of CAA section 175A. Therefore, EPA is approving the requests from Maryland and Virginia to redesignate to attainment their respective portions of the Washington Area for the 2008 ozone NAAQS as well as the joint maintenance plan submitted by the District, Maryland, and Virginia.

IV. Final Action

EPA is approving the requests from Maryland and Virginia to redesignate to attainment their respective portions of the Washington Area for the 2008 ozone NAAQS. EPA is not at this time approving the redesignation request from the District but will address the District's redesignation request in a separate rulemaking action. EPA is also approving, as a revision to the District's, Maryland's, and Virginia's SIPs, the joint maintenance plan submitted by the District, Maryland, and Virginia. The joint maintenance plan demonstrates maintenance of the 2008 ozone NAAQS through 2030 in the Washington Area and includes 2014, 2025, and 2030 MVEBs for NO_X and VOCs for the 2008 ozone NAAQS. Finally, EPA has found adequate and is approving these 2014, 2025, and 2030 NO_X and VOC MVEBs for the Washington Area.

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

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information 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 § 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.

VI. Statutory and Executive Order Reviews

A. General Requirements

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 air quality designation status of geographical areas 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 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);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866.
• 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).

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 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 14, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action approving Maryland's and Virginia's redesignation requests for their respective portions of the Washington Area as well as the District's, Maryland's, and Virginia's maintenance plan for the Washington Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Title 40 CFR parts 52 and 81 are amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

2. In § 52.470, the table in paragraph (e) is amended by adding an entry for “Maintenance plan for the District of Columbia portion of the Washington, DC-MD-VA Nonattainment Area for the 2008 8-hour ozone National Ambient Air Quality Standard” at the end of the table to read as follows:

3. Section 52.476 is amended by adding paragraph (j) to read as follows:

Subpart V—Maryland

4. In § 52.1070, the table in paragraph (e) is amended by adding an entry for “Maintenance plan for the Maryland portion of the Washington, DC-MD-VA Nonattainment Area for the 2008 8-hour ozone National Ambient Air Quality Standard” at the end of the table to read as follows:

5. Section 52.1076 is amended by adding paragraph (ee) to read as follows:

Subpart VV—Virginia

6. In § 52.2420, the table in paragraph (e)(1) is amended by adding an entry for “Maintenance plan for the Virginia portion of the Washington, DC-MD-VA Nonattainment Area for the 2008 8-hour ozone National Ambient Air Quality Standard” at the end of the table to read as follows:

7. Section 52.2428 is amended by adding paragraph (m) to read as follows:

PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

8. The authority citation for part 81 continues to read as follows:

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

Subpart C—Section 107 Attainment Status Designations

9. In § 81.321, the table “Maryland—2008 8-Hour Ozone NAAQS (Primary and secondary)” is amended by revising the entry “Washington, DC-MD-VA:” to read as follows:

10. In § 81.347, the table “Virginia—2008 8-Hour Ozone NAAQS (Primary and secondary)” is amended by:

a. Removing the footnote designation from the table heading “Designated area”;

b. Revising the footnote designations for both “Date” table headings; and

c. Revising the entry “Washington, DC-MD-VA:”.

The revisions read as follows: