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.

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving 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 (PM_2.5) National Ambient Air Quality Standard (NAAQS or standard). EPA is also approving, 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 PM_2.5 NAAQS through 2025 for the Washington Area. The Washington Area maintenance plan includes motor vehicle emissions budgets (MVEBs) for PM_2.5 and nitrogen oxides (NO_X) for the Area for the 1997 annual PM_2.5 standard, which EPA is approving for transportation conformity purposes. These actions are being taken under the Clean Air Act (CAA).

DATES:

This final rule is effective on November 5, 2014.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2014-0148. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 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 Vélez-Rosa, (215) 814-2038, or by email at velez-rosa.emlyn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

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 the redesignation to attainment of the Washington Area for the 1997 annual PM_2.5 NAAQS. The States also developed a common maintenance plan as a revision to their respective SIPs to ensure continued attainment of the 1997 annual PM_2.5 standard in the Washington Area throughout 2025. The 1997 annual PM_2.5 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 PM_2.5 and NO_X MVEBs used for transportation conformity purposes for the entire Washington Area for the 1997 annual PM_2.5 NAAQS.

On August 8, 2014 (79 FR 45735), EPA published a notice of proposed rulemaking (NPR), proposing to take several rulemaking actions related to the redesignation of the Washington Area to attainment for the 1997 annual PM_2.5 NAAQS. First, EPA proposed to find that the States met the requirements for redesignation of the Washington Area for the 1997 annual PM_2.5 NAAQS under section 107(d)(3)(E) of the CAA. Second, EPA proposed 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 PM_2.5 NAAQS. Third, EPA proposed to approve the MVEBs for PM_2.5 and NO_X emissions for the 1997 annual PM_2.5 standard, which are included as part of the Washington Area's maintenance plan. Finally, EPA proposed to find that the Washington Area continues to attain the 1997 annual PM_2.5 standard.

In the August 8, 2014 NPR, EPA considered the effects of three legal decisions on the approval of the redesignation requests and maintenance plan: (1) Collectively, the 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) from the United States Court of Appeals for the District of Columbia (D.C. Circuit Court) and the United States Supreme Court with respect to the Cross-State Air Pollution Rule (CSAPR); and (2) 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 (PM_2.5)” final rule (73 FR 28321, May 16, 2008) (collectively, “1997 PM_2.5 Implementation Rule”). Natural Resources Defense Council (NRDC) v. EPA, 706 F.3d 428 (D.C. Cir. 2013).

Specific details of the States' submittals and the rationale for EPA's proposed actions are explained in the NPR and will not be restated here. No adverse public comments were received on the NPR.

II. 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.

III. Final Action

EPA is approving 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 PM_2.5 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 PM_2.5 standard. In this final rulemaking action, EPA finds that the Washington Area is attaining and will continue to attain the 1997 annual PM_2.5 NAAQS. EPA is also approving the common maintenance plan for the Washington Area submitted by the States as revisions to their respective SIPs for the 1997 annual PM_2.5 standard, as the plan meets the requirements of CAA section 175A for the standard. Furthermore, EPA is approving the 2017 and 2025 MVEBs for PM_2.5 and NO_X submitted by the States for the Washington Area for transportation conformity determinations with respect to the 1997 annual PM_2.5 NAAQS. Final approval of the redesignation requests will 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 PM_2.5 NAAQS, and will incorporate into the States SIPs the maintenance plan ensuring continued attainment of the 1997 annual PM_2.5 NAAQS in the Area for the next 10 years, until 2025.

IV. 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 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 approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or 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 December 5, 2014. 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, in which EPA is approving 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 PM_2.5 NAAQS 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
• Incorporation by reference
• Nitrogen oxides
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

40 CFR Part 81

• Air pollution control
• National parks
• Wilderness areas

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 the 1997 Annual PM _2.5 Maintenance Plan for the District of Columbia Portion of the Washington, DC-MD-VA Area at the end of the table to read as follows:

3. Section 52.477 is revised to read as follows:

Subpart V—Maryland

4. In § 52.1070, the table in paragraph (e) is amended by adding an entry for the 1997 Annual PM _2.5 Maintenance Plan for the Maryland portion of the Washington, DC-MD-VA Area at the end of the table to read as follows:

5. Section 52.1081 is amended by adding paragraph (d) to read as follows:

Subpart VV—Virginia

6. In § 52.2420, the table in paragraph (e) is amended by adding an entry for the 1997 Annual PM _2.5 Maintenance Plan for the Virginia Portion of the Washington, DC-MD-VA Area at the end of the table to read as follows:

7. Section 52.2429 is amended by designating the existing text as paragraph (a) and adding paragraph (b).

The addition reads 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.

9. In § 81.309, revise the table for “District of Columbia—1997 Annual PM _2.5 NAAQS [Primary and secondary]” to read as follows:

10. In § 81.321, the table for Maryland—1997 Annual PM _2.5 NAAQS [Primary and secondary] is amended by removing footnote number 2 in the table and revising the entries for the Washington, DC-MD-VA Area to read as follows:

11. In § 81.347, the table for Virginia—1997 Annual PM _2.5 NAAQS [Primary and secondary] is amended by removing footnote number 2 in the table and revising the entries for the Washington, DC-MD-VA Area to read as follows: