```
[Federal Register Volume 80, Number 69 (Friday, April 10, 2015)]
[Rules and Regulations]
[Pages 19206-19220]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07957]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0132; 
FRL-9925-27-Region-3]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving the 
attainment demonstration and associated contingency measures and motor 
vehicle emission budgets (MVEBs) for the Washington, DC-MD-VA, moderate 
ozone nonattainment area (Washington Area) for the 1997 8-hour ozone 
National Ambient Air Quality Standard (NAAQS) as submitted by the 
District of Columbia, the State of Maryland, and the Commonwealth of 
Virginia as revisions to each of their State Implementation Plans 
(SIPs). EPA has determined that each of the three SIP revisions 
including specifically the attainment demonstration, contingency 
measures and MVEBs meet the applicable requirements of the Clean Air 
Act (CAA or Act), and EPA is approving each revision.

DATES: This final rule is effective on May 11, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2013-0132. 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 submittal are available at the 
District of Columbia. Department of the Environment, Air Quality 
Division, 1200 1st Street NE., 5th Floor, Washington, DC 20002; the 
Maryland Department of the Environment, 1800 Washington Boulevard, 
Suite 705, Baltimore, Maryland 21230; and the Virginia Department of 
Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps, (215) 
814-2179, or by email at cripps.christopher@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    The District of Columbia, the State of Maryland, and the 
Commonwealth of Virginia submitted formal SIP revisions on June 12, 
2007, June 4, 2007, and June 12, 2007, respectively (hereafter the June 
2007 SIP revisions). These June 2007 SIP revisions were submitted to 
address CAA requirements for the 1997 ozone NAAQS and included the 2002 
base year emissions inventory, the 15 percent reasonable further 
progress plan (RFP) (15% RFP plan), RFP contingency measures, an 
attainment demonstration to show attainment of the 1997 ozone NAAQS by 
June 15, 2010, a reasonably available control measures (RACM) analysis, 
and contingency measures for failure to attain. In addition, the 
submission included the transportation conformity 2008, 2009, and 2010 
year MVEBs associated with the RFP plan, the attainment demonstration 
and contingency measures, respectively. The District of Columbia 
Department of the Environment (DDOE), the Maryland Department of the 
Environment (MDE), and the Virginia Department of Environmental Quality 
(VADEQ) (hereafter referred to as the three States) jointly developed 
the June 2007 SIP revisions.\1\
---------------------------------------------------------------------------

    \1\&thnsp;The three States developed and submitted the 
“Plan to Improve Air Quality in the Washington, DC-MD-VA 
Region, State Implementation Plan (SIP) for 8-Hour Ozone Standard, 
Moderate Area SIP” (hereafter the Washington Area 8-hour ozone 
plan).
---------------------------------------------------------------------------

    These elements of the Washington Area 8-hour ozone plan were 
required for the Washington Area by sections 172(c), 182(a), and 
182(b)(1) of the CAA due to the classification of the Washington Area 
as a moderate ozone nonattainment area under the 1997 ozone NAAQS. The 
boundaries of the Washington Area are defined in the tables for 
“1997 8-Hour Ozone NAAQS (Primary and Secondary)” in 40 CFR 
81.309, 81.321 and 81.347.\2\
---------------------------------------------------------------------------

    \2\&thnsp;Effective July 20, 2012 (77 FR 30088, May 21, 2012), 
EPA designated and classified nonattainment areas under the 2008 
ozone NAAQS codified at 40 CFR 50.15 for most areas of the country 
including the Washington Area. The Washington Area was designated as 
nonattainment and classified as marginal nonattainment. The 
boundaries of the ozone nonattainment area classified as moderate 
under the 1997 ozone NAAQS are the same as those of the ozone 
nonattainment area classified as marginal under the 2008 ozone 
NAAQS. See 40 CFR 81.309, 81.321 and 81.347. Hereafter, when 
referring to the Washington Area in relation to SIP requirements 
required solely due to the 2008 ozone NAAQS, the term 
“Washington 2008 Ozone Nonattainment Area” will be used.
---------------------------------------------------------------------------

    On September 11, 2011 (76 FR 58116), EPA approved portions of the 
June 2007 SIP revisions for the three States including the 2002 base 
year emissions inventory, 15% RFP plan and associated MVEBs for 2008, 
RFP contingency measures, and the RACM analysis. In this rulemaking 
action, EPA is approving the remaining portions of the June 2007 SIP 
revisions for the 1997 ozone NAAQS including the attainment 
demonstration, the contingency measures, and the associated 2009 and 
2010 year MVEBs.\3\ In a March 20, 2013 notice of proposed rulemaking 
(the March 20, 2013 NPR), EPA proposed to approve these remaining 
elements of the June 2007 SIP revisions. 78 FR 17161.

[[Page 19207]]

The initial comment period closed on May 9, 2013 (78 FR 27160); 
however, EPA reopened the comment period until June 10, 2013. In this 
final rule, EPA is approving the portions of the June 2007 SIP 
revisions which we proposed for approval in the March 20, 2013 NPR: the 
attainment demonstration, contingency measures, and 2009 and 2010 year 
MVEBs.
---------------------------------------------------------------------------

    \3\&thnsp;The attainment demonstration was required under 40 CFR 
51.908 to demonstrate attainment of the 1997 ozone NAAQS by the 
applicable attainment date of June 15, 2010 (the June 2010 
attainment date).
---------------------------------------------------------------------------

II. Summary of SIP Revision

    The June 2007 SIP revisions addressed the attainment demonstration 
required under 40 CFR 51.908, contingency measures, and the associated 
2009 and 2010 year MVEBs for the 1997 ozone NAAQS for the Washington 
Area. Specific requirements for CAA attainment demonstrations, 
contingency measures and MVEBs for the 1997 ozone NAAQS and the 
rationale for EPA's proposed action were explained in the NPR and will 
not be restated here.

III. Attainment Status Based Upon Recent Air Quality Data

    Since the March 20, 2013 NPR, the three States have submitted and 
certified complete ambient air quality monitoring (AQ data) for the 
entire 2013 ozone monitoring season. EPA has released the final 
2011-2013 design values and posted these at http://www.epa.gov/airtrends/values.html. The 2011-2013 design values show the 
Washington Area continues to attain the 1997 ozone NAAQS. Table 1 shows 
these design values for monitors in the Washington Area in parts per 
billion (ppb) ozone. These design values in Table 1 demonstrate that 
the Washington Area continues to meet the 1997 ozone NAAQS.

                   Table 1-Actual Monitored Design Values (DVs) for 2011 to 2013 Period
----------------------------------------------------------------------------------------------------------------
                                      Site data                                                 DV (ppb)
----------------------------------------------------------------------------------------------------------------
              AIRS ID                       Site name               County/City          State   2011-2013
----------------------------------------------------------------------------------------------------------------
11-001-0041............  River Terrace..........  .......................       DC               72
11-001-0043............  McMillan...............  .......................       DC               79
24-009-0010............  Calvert................  Calvert Co.............       MD               77
24-017-0010............  Southern MD............  Charles Co.............       MD               77
24-021-0037............  Frederick Municipal      Frederick Co...........       MD               74
                                      Airport.
24-031-3001............  Rockville..............  Montgomery Co..........       MD               74
24-033-0030............  HU-Beltsville..........  Prince George's Co.....       MD               76
24-033-8003............  PG Equestrian Center...  Prince George's........       MD               81
24-033-8003............  Beltsville.............  Prince George's........       MD               72
51-013-0020............  Aurora Hills...........  Arlington County.......       VA               79
51-059-0030............  Franconia..............  Fairfax County.........       VA               79
51-107-1005............  Ashburn................  Loudoun County.........       VA               71
51-153-0009............  Long Park..............  Prince William County..       VA               69
----------------------------------------------------------------------------------------------------------------

    EPA has also examined available 2014 ozone season AQ data. EPA 
notes that this AQ data is preliminary. EPA examined the data entered 
into EPA's Air Quality System (AQS) available as of February 10, 2015. 
It has not undergone all the quality assurance/quality control review 
and certification necessary to be used for regulatory purposes, and as 
of February 10, 2015 may not cover the entire 2014 ozone season for the 
Washington Area which ended October 31, 2014. See Table D-3 
“Ozone Monitoring Season by State” in appendix D to 40 CFR 
part 58.
    The highest preliminary design value in the Washington Area for the 
2012-2014 period is 76 ppb which is meeting the 1997 ozone NAAQS. 
Until the 2014 AQ data is quality assured and certified, this design 
value is preliminary and subject to change. However, the preliminary 
data indicates that the Washington Area continues to attain the 1997 
ozone NAAQS. For the March 20, 2013 NPR, EPA prepared a technical 
support document (February 26, 2013 TSD) which is in the docket for 
this rulemaking and is available online at www.regulations.gov as 
document number 
EPA-R03-OAR-2013-0132-0006.
    EPA has also prepared a supplement to the February 26, 2013 TSD, 
“Supplement to Technical Support Document for Approval and 
Promulgation of Air Quality Implementation Plans; District of Columbia, 
Maryland and Virginia; Attainment Demonstration for the 1997 8-Hour 
Ozone National Ambient Air Quality Standard for the Washington, DC-MD-
VA Moderate Nonattainment Area,” dated February 12, 2015 (TSD 
Supplement);&thnsp;\4\ this TSD Supplement provides additional analysis 
of the 2013 and 2014 AQ data. The TSD Supplement and other documents 
concerning the 2013 and 2014 AQ data have been added to the docket for 
this action and are available online at www.regulations.gov at docket 
number EPA-R03-OAR-2013-0132.
---------------------------------------------------------------------------

    \4\&thnsp;The February 26, 2013 TSD is titled “Technical 
Support Document for Approval and Promulgation of Air Quality 
Implementation Plans; District of Columbia, Maryland and Virginia; 
Attainment Demonstration for the 1997 8-Hour Ozone National Ambient 
Air Quality Standard for the Washington, DC-MD-VA Moderate 
Nonattainment Area,” dated February 26, 2013 and is in the 
docket for this rulemaking as document number 
EPA-R03-OAR-2013-0132-0006.
---------------------------------------------------------------------------

IV. Comments Received on the 2010 Attainment Demonstration, MVEBs, and 
Contingency Measures and EPA's Responses

    EPA received comments adverse to the proposed approval of the 
attainment demonstration, MVEBs and contingency measures from the June 
2007 SIP revisions. A summary of these adverse comments and EPA 
responses follows.
    Comment: EPA received comments asserting that EPA must disapprove 
the attainment demonstrations in the June 2007 SIP revisions because 
the 2010-2012 AQ data demonstrates that the Washington Area is 
not attaining the 1997 ozone NAAQS. The commenter asserts that 40 CFR 
51.112(a) provides that attainment demonstrations should be done with 
air quality modeling and with “data bases” such as EPA's 
ambient air quality monitoring database, AQS. The commenter concludes 
that the three States' attainment demonstration SIPs are therefore not 
adequate to attain and maintain the 1997 ozone NAAQS. The commenter 
cites Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto 
Ins. Co., 463 U.S. 29, 30-31 (1983) to support its claim that 
failure to consider the 2010-2012 AQ data would amount to a final 
rule that is arbitrary and capricious because “[T]he

[[Page 19208]]

agency must . . . examine the relevant data and articulate a 
satisfactory explanation for its action.” Id. Finally, a 
commenter stated that the weight of evidence demonstration in EPA's 
March 20, 2013 NPR is not rational because 2010-2012 AQ data is 
more representative of real world conditions.
    Response: EPA disagrees with the commenter's assertion that EPA 
must disapprove the attainment demonstrations submitted in June 2007 
based upon the results of the 2010-2012 AQ data. EPA did in fact 
consider some air quality data beyond the 1997 ozone NAAQS June 15, 
2010 attainment date. EPA considered 2009-2011 air quality data 
when proposing approval of the three States' June 2007 SIP revisions 
which are the subject of this rulemaking. See Table 2 “Modeled 
Predicted 2009 Design Values versus Actual Monitored Design 
Values” and Table 3 “Actual Monitored Design Values 2009 to 
2011” in the February 26, 2013 TSD in the docket for this action 
(Docket ID#: EPA-R03-OAR-2013-0132). EPA 
examined the actual monitored ozone design values through 2011 while 
evaluating the three States' attainment demonstrations and concluded 
that the overall trend of ozone air quality in the Washington Area was 
improving. Because EPA concluded the trend was improving and because 
the Washington Area attained the 1997 ozone NAAQS by the attainment 
date of June 15, 2010, EPA determined that the 3 States' June 2007 SIP 
revisions adequately demonstrated attainment of the ozone standard by 
the attainment date and EPA proposed to approve the demonstrations. 78 
FR at 17165. As discussed in Section III of this rulemaking action, EPA 
has examined ozone design values for the Washington Area for 
2011-2013 and has examined preliminary monitoring data from 2014 
which demonstrate the Washington Area continues to attain the 1997 
ozone NAAQS and demonstrate the overall ozone design value trend is 
decreasing from 2003 to 2014. See also the TSD Supplement. Thus, EPA 
has considered relevant data and disagrees with the commenter that EPA 
must disapprove the attainment demonstrations from the June 2007 SIP 
revisions due to the 2010-2012 data for the Washington Area.
    The CAA is very prescriptive in section 110(k)(3) concerning under 
what conditions EPA must approve a SIP revision: “[t]the 
Administrator shall approve such [SIP revision] submittal as a whole if 
it meets all of the applicable requirements of this chapter” 
(with emphasis added). As relevant to the moderate area attainment plan 
for the Washington Area, section 182(b)(1)(A)(i) requires that: 
“By no later than 3 years after November 15, 1990, the State 
shall submit a revision to the applicable implementation plan to 
. . . provide for such specific annual reductions in 
emissions of volatile organic compounds and oxides of nitrogen as 
necessary to attain the national primary ambient air quality standard 
for ozone by the attainment date applicable under this chapter.” 
(Emphasis added.)
    The applicable attainment date for areas classified as moderate 
like the Washington Area for the 1997 ozone NAAQS was no later than 
June 15, 2010 pursuant to Table 1 of 40 CFR 51.903(a) (i.e., six years 
after the June 15, 2004 effective date of nonattainment designation for 
8-hour NAAQS). See 69 FR 23858 (April 30, 2004). Application of 40 CFR 
51.908(d) results in a de facto attainment date by the close of 
calendar year 2009, which included the last complete ozone monitoring 
season prior to June 15, 2010. See 69 FR at 23951 and 23989 (stating 
that the determination of attainment for an area with an attainment 
date in May 2010 would be based on AQ data from 2007, 2008 and 2009). 
CAA sections 172 and 182 require the SIPs for the Washington Area to 
demonstrate attainment with the 1997 ozone NAAQS but do not require the 
plan to address continued maintenance of the standard after the 
attainment date. That requirement is specified as a component of 
redesignation in CAA section 107(d)(3)(E) and is detailed in section 
175A(a). Thus, a state is not required to develop a plan to maintain 
the standard until such time as it has air quality meeting the NAAQS 
and is seeking redesignation to attainment.
    The attainment demonstrations submitted by the three States 
addressed all of the applicable requirements for such plans in CAA 
sections 172 and 182 as explained in the March 20, 2013 NPR. In 
addition, the Washington Area did in fact attain the 1997 ozone NAAQS 
by its attainment date of June 15, 2010. See 77 FR 11739 (February 28, 
2012). A violation of the NAAQS for the period 2010-2012, which 
is after the attainment date, is not determinative of whether the plan 
was adequate for showing that the standard would be met by the 
attainment date, and EPA disagrees with the commenter that the SIP must 
be disapproved now on the basis of that data. Because EPA based 
approval of the attainment demonstrations partially on the overall 
improving ozone air quality trends in addition to the fact that the 
Area attained by its attainment date, EPA notes that the area continued 
to meet the 1997 ozone NAAQS based on its design value for 
2008-2010, 2009-2011, and 2011-2013. Preliminary data 
from 2014 also indicate that it is likely that the Washington Area is 
meeting the 1997 ozone NAAQS for the period of 2012-2014. Thus, 
EPA disagrees that EPA must disapprove the June 2007 SIP revisions 
after considering the 2010-2012 data suggested by commenter 
because the Washington Area's attainment by the attainment date plus 
overall trend of attaining the 1997 ozone NAAQS supports approval.
    Comment: EPA received comments asserting that EPA should exercise 
caution in approving the attainment demonstrations from the June 2007 
SIP revisions because the ambient air quality monitoring data through 
2012 indicated that air quality has degraded over time as indicated by 
ozone concentrations in the DC area having steadily increased over 
time. The commenters assert that such degradation is not consistent 
with the goal in the CAA of moving towards redesignation to attainment 
of the 1997 ozone NAAQS. The comments state that the worsening air 
quality for the Washington Area after 2009 for the 1997 ozone NAAQS 
casts doubt about the improvement in air quality through 2009 being due 
to permanent and enforceable reductions from the implementation of the 
applicable implementation plan and applicable Federal air pollutant 
control regulations which the commenter asserts is necessary for 
redesignation of the Washington Area to attainment for the 1997 ozone 
NAAQS pursuant to section 107 of the CAA.5&thnsp;6 One 
commenter noted that the design value for the Washington Area rose as 
follows: 0.080 parts per million (ppm) for 2007 to 2009, 0.081 ppm for 
2008 to 2010, 0.082 ppm for 2009 to 2011, and 0.087 ppm for 2010 to 
2012.
---------------------------------------------------------------------------

    \5\&thnsp;The comments cite section 107(d)(3)(E)(iii) which is 
one of the prerequisites to redesignation to attainment from 
nonattainment.
    \6\&thnsp;The comments assert that the violation based upon the 
2010 to 2012 AQ data was recorded despite the implementation by the 
three States of all control programs and contingency measures 
committed to in the attainment SIP and full implementation of Clean 
Air Interstate Rule (CAIR).
---------------------------------------------------------------------------

    Response: The attainment demonstration provisions of the Act do not 
require the state to demonstrate that the measures adopted to attain 
the standard will ensure continued maintenance of the NAAQS. Also, as 
the commenter notes in the comments, the issue of whether reductions 
are due to permanent and enforceable emission reductions is aligned 
with redesignation for a specific standard and with one of

[[Page 19209]]

the redesignation criteria in section 107(d)(3)(E). EPA does note, 
however, that increased ambient ozone levels are not necessarily 
associated with the measures in the SIP not being permanent and 
enforceable. Rather, air quality is based on a complicated mix of 
factors that include, but go beyond the level of emissions. Other 
factors include air temperature, wind patterns, and emissions from 
upwind sources outside of the nonattainment area. For that reason, it 
is not unusual that an area's design value can vary year-to-year and 
that for some years it may be higher than for an earlier year. The 
design value did show a slight increase between the 2009 design value 
and the 2011 design value and then had a more significant jump for the 
2012 design value. However, the 2013 design value was lower than that 
for 2012 and met the 1997 NAAQS and preliminary data indicates that the 
2014 design value will also be lower than that for 2012 and will also 
meet the 1997 ozone NAAQS.
    If the states choose to submit a request to redesignate the 
Washington Area, they will need to demonstrate that they have met the 
requirements of section 107(d)(3)(E), including the requirement that 
the improvements in air quality are due to permanent and enforceable 
reductions in emissions; however, as EPA has explained, that issue is 
not relevant for determining whether the area demonstrated that it 
would attain the 1997 NAAQS by the applicable attainment date.
    Comment: Another commenter asserts that EPA cannot approve the 
attainment demonstrations from the June 2007 SIP revisions because 
neither the SIP submittals nor EPA provide any analysis pursuant to CAA 
section 110(l). Specifically, the commenters claim there is no analysis 
of whether or not EPA's approval of the attainment demonstrations for 
the 1997 ozone NAAQS will interfere with any applicable requirements 
regarding the 2008 ozone NAAQS and the 2010 nitrogen dioxide 
(NO2) NAAQS.\7\ The commenter claims because the attainment 
demonstrations in the June 2007 SIP revisions do not require any 
additional emission reductions, the attainment demonstrations may 
interfere with attaining the 2008 ozone NAAQS as expeditiously as 
practicable;&thnsp;\8\ the commenter specifically asserts that 
requiring additional nitrogen oxide (NOX) emission 
reductions for the attainment demonstrations will result in more 
expeditious attainment of and in reasonable further progress for the 
2008 ozone NAAQS and result in implementation of RACM. The commenter 
also asserts that EPA must conduct this analysis and provide the public 
with an opportunity to review and comment on this analysis.
---------------------------------------------------------------------------

    \7\&thnsp;These are codified at 40 CFR 50.15 and 40 CFR 50.11, 
respectively.
    \8\&thnsp;The commenter cited section 172(a)(2) for the 
proposition that attainment dates are to be the date by which 
attainment can be achieved as expeditiously as practicable. Because 
EPA is implementing the 1997 and 2008 ozone NAAQS under 
“subpart 2” (sections 181 through 185B) by classifying 
all ozone nonattainment areas under both these NAAQS under section 
181, EPA notes that the proper citation for this proposition should 
be section 181(a)(1) and 40 CFR 51.1103 (implementing the 2008 ozone 
NAAQS under section 181) which requires attainment of the ozone 
NAAQS be “as expeditiously as practicable” but no later 
than the date provided in Table 1 of 40 CFR 51.1103.
---------------------------------------------------------------------------

    Response: EPA disagrees that a CAA section 110(l) analysis is 
required for the purpose suggested by the commenter. Section 110(l) 
prohibits approval of a SIP revision “if the revision would 
interfere with any applicable requirement concerning attainment and 
reasonable further progress . . . and any other applicable 
requirement of this chapter.” EPA notes that our approval of the 
June 2007 SIP revisions does not remove any SIP requirements nor reduce 
any requirements in the three States' SIPs. Thus, EPA disagrees that 
EPA cannot approve the 2007 SIP revisions without a section 110(l) 
analysis.
    However, even though EPA believes a section 110(l) analysis is not 
required here as no applicable requirements are being removed or 
reduced, EPA does note that the volatile organic compounds (VOC) and 
NOX reductions achieved to attain the 1997 ozone NAAQS for 
the Washington Area will also provide benefits for attaining and/or 
maintaining the 2008 ozone NAAQS, and NOX reductions will 
provide benefits for attaining and/or maintaining the 2010 
NO2 NAAQS. Thus, EPA finds our approval of the June 2007 SIP 
revisions will not interfere with the requirements applicable for those 
other two NAAQS. EPA also disagrees with the commenter's assertion that 
the three States' attainment demonstrations may interfere with 
attaining the 2008 ozone NAAQS as no additional NOX 
reductions are required because the pollutants reduced in the 
Washington Area in its attaining the 1997 ozone NAAQS are the same 
pollutants that need to be regulated for the 2008 ozone NAAQS.
    The commenter does not make any specific claim regarding the 
analysis for the 2010 NO2 NAAQS, but rather simply asserts 
that a section 110(l) analysis was not done. EPA notes that no part of 
the Washington Area has been designated as nonattainment for the 2010 
NO2 NAAQS. See 77 FR 9532 (February 17, 2012) and 40 CFR 
81.309, 81.321 and 81.347. Therefore, no part of the Washington Area is 
subject to “Part D” planning requirements (such as sections 
172(b), 172(c), 181 or 182) for the 2010 NO2 NAAQS because 
these “Part D” requirements apply only to SIPs required for 
nonattainment areas. EPA notes that the affected States have all made 
SIP submissions to address the applicable requirements in section 
110(a)(1) and (2) for the 2010 NO2 NAAQS. The commenter does 
not suggest nor is EPA aware of anything in the attainment 
demonstration submissions for the 1997 ozone NAAQS that would undercut 
or undermine the requirements in the section 110 SIPs submitted for the 
2010 NO2 NAAQS.
    The commenter's claim regarding interference with the 2008 ozone 
NAAQS also ignores the structure of the statute. Under the CAA, EPA is 
required to periodically review and revise as necessary the NAAQS. When 
EPA revises a NAAQS, a planning cycle begins for that new NAAQS. EPA is 
first required to designate areas and, for those areas designated 
nonattainment, a time clock for submission of plans to address 
nonattainment begins at the time of designation. EPA designated areas 
for the 2008 ozone NAAQS effective June 2012, and nonattainment area 
SIPs for that standard are generally due in June 2015. The 
interpretation set forth by the commenter ignores that structure and 
instead suggests that once a new NAAQS is promulgated, the state must 
demonstrate any time it revises its SIP that such revisions will also 
fulfill requirements applicable for the new standard (e.g., demonstrate 
attainment, meet RACM). In other words, the commenter is reading 
section 110(l) to supersede the more prescriptive and descriptive 
provisions in Part D of title I of the CAA that govern nonattainment 
area planning. It is untenable to read that much detail and meaning 
into the word “interfere.” EPA's reasonable interpretation 
is that this provision means that a plan cannot undermine or impede 
applicable requirements for the same or other NAAQS.\9\ And, in this 
circumstance, the reductions relied on for attainment of the 1997 ozone 
NAAQS will not undermine or impede progress toward meeting the newer 
NAAQS because it regulates the same pollutants that need to be 
regulated for

[[Page 19210]]

the 2008 ozone NAAQS and the 2010 NO2 NAAQS. Any further 
reductions needed for attaining the 2008 ozone NAAQS will be addressed 
through the attainment planning process provided in Part D of title I 
of the CAA for the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    \9\&thnsp;See also Webster's Ninth New Collegiate Dictionary, 
defining “interfere” as “to interpose in a way 
that hinders or impedes.”
---------------------------------------------------------------------------

    Comment: Another commenter claims that because the air quality in 
the Washington Area does not meet either the 1997 and 2008 ozone NAAQS, 
one cost-effective and expeditious method to deal with this problem is 
to impose an emission limit of 0.07 pounds per million British thermal 
units (lb/mmbtu) on each coal-burning electric generating unit (EGU) 
and each coal fired unit at the Capitol Heat Plant in the Washington 
Area.\10\ The commenter claims such a limit is a reasonably available 
control measure and cited court decisions, EPA preamble text and other 
documents to support this conclusion.\11\ The commenter suggests 
various specifics related to such a limit such as applicability, 
prohibition of inter-unit averaging, averaging periods, compliance 
dates and other details. The commenter also suggested limits for 
“ammonia slip” because states need to assume that ammonia 
is a fine particulate matter (PM2.5) precursor.
---------------------------------------------------------------------------

    \10\&thnsp;EPA assumes the commenter is referring to the Capitol 
Power Plant which is located in Washington, DC which provides steam 
and chilled water used to heat and cool buildings throughout the 
U.S. Capitol campus.
    \11\&thnsp;Regarding suggested NOX control measures, 
the commenter cites for support generically to EPA's Cross State Air 
Pollution Rule, 76 FR 48208, 48282 (August 8, 2011), which addresses 
interstate transport of emissions for the 1997 ozone NAAQS and to 
Appalachian Power v. EPA, 135 F.3d 791, 819 (D.C. Cir. 1998) which 
addressed NOX limits on EGUs under Title IV of the CAA. 
The commenter also cites to NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 
2013) (remanding PM2.5 implementation rule) in support of 
the comment that EPA should require ammonia control measures.
---------------------------------------------------------------------------

    Response: As an initial matter, EPA does not have authority under 
the CAA to condition approval of the attainment demonstrations in the 
2007 June SIP revisions upon adoption of a specific measure such as the 
NOX limit suggested by the commenter for EGUs or any ammonia 
slip requirement. Under the cooperative federalism structure of the SIP 
program designed by Congress, the states have the authority to choose 
the measures needed for attainment of the NAAQS. See Train v. Natural 
Resources Defense Council, 421 U.S. 60, 79 (1975) (stating “so 
long as the ultimate effect of a State's choice of emission limitations 
is compliance with the national standards for ambient air, the State is 
at liberty to adopt whatever mix of emission limitations it deems best 
suited to its particular situation”); Union Electric Co. v. EPA, 
427 U.S. 246, 269 (1976) (finding Congress via section 110 
“plainly left to the states the power to determine which sources 
would be burdened by regulations and to what extent”). See also 
Virginia v. EPA, 108 F.3d 1397, 1407-08 (D.C. Cir. 1997) (stating 
EPA cannot question the wisdom of a state's choices of emission 
limitations for a SIP if the plan satisfies the standards of section 
110(a)(2)).
    The commenter appears to be claiming that the identified 
NOX control measures for EGUs and the Capitol Power Plant 
and an ammonia slip requirement must be adopted by the states in order 
to meet the RACM requirement in CAA section 172. Because EPA previously 
approved the States' RACM portions of the June 2007 SIP revisions on 
September 20, 2011 (76 FR 58116), this issue as raised now by the 
commenter has not been timely raised and no further response is 
necessary. However, EPA further notes that EPA's longstanding 
interpretation of the RACM requirement in CAA section 172 involves an 
evaluation of whether the measures will advance the attainment date by 
one year. See Sierra Club v. EPA, 314 F.3d 735, 744-745 (5th Cir. 
2002) and Sierra Club v. EPA, 294 F.3d, 155, 162 (D.C. Cir. 2002). See 
also 57 FR 13498, 13560 (April 16, 1992); 44 FR 20372, 20374 (April 4, 
1979). Notably, the attainment date for the Washington Area (June 15, 
2010) has passed and the Area is in fact attaining the 1997 ozone NAAQS 
as mentioned previously. Thus, at this juncture, the NOX or 
ammonia control measures suggested by the commenter are not ones that 
could advance the attainment date of the Washington Area and would not 
qualify as RACM, even if EPA were evaluating RACM for the 1997 ozone 
NAAQS for the Area.
    Comment: EPA received comments that assert EPA cannot approve the 
attainment demonstrations in the June 2007 SIP revisions because 40 CFR 
51.112(a) provides that attainment demonstrations must demonstrate that 
the measures, rules, and regulations contained in it are adequate to 
provide for the timely attainment and maintenance of the national 
standard that it implements. The commenters also claim that 40 CFR 
51.908(d) further supports the claim that the attainment demonstration 
SIP must provide for maintenance as part of attainment demonstrations 
because it requires implementation of all control measures needed for 
attainment no later than the beginning of the attainment year ozone 
season. The commenters assert that the language of “no later 
than” does not allow for this requirement to stop after the 
attainment year ozone season, and the plain language of this regulation 
provides for control measures needed for attainment after the 
attainment year.
    Response: For the reasons provided in the March 20, 2013 NPR and in 
this final rule, EPA has determined that the modeled attainment 
demonstration in the June 2007 SIP revisions and supporting analyses 
show that measures, rules and regulations contained in the June 2007 
SIP revisions provide for timely attainment of the 1997 ozone NAAQS. 
EPA disagrees with the commenter that EPA cannot approve the attainment 
demonstrations because the demonstrations do not provide for 
maintenance of the 1997 ozone NAAQS. The regulatory provision cited by 
the commenter, 40 CFR 51.112(a), was first promulgated in 1986, prior 
to enactment of the CAA Amendments of 1990. This provision establishes 
broad principles applicable to “control strategy” SIPs and 
both attainment demonstrations and maintenance plans are types of 
control strategy SIPs. Under the CAA, as amended in 1990, those two 
SIPs are addressed separately in the Act, and the Act establishes 
separate timeframes for submission of those two SIPs. Specifically, 
maintenance SIPs are now specifically required under CAA section 175A 
as a prerequisite to redesignation of an area to attainment with the 
NAAQS under section 107(d)(3) of the CAA and thus are to be submitted 
after an area has attained the NAAQS. Thus, EPA applies 40 CFR 
51.112(a) in the context of the control strategy SIP under review and 
consistent with the structure of the Act. For example, maintenance 
plans need not project timely attainment because an area must have 
actually attained a NAAQS before a maintenance plan can support a 
redesignation request under section 107(d)(3)(E). Similarly, as 
discussed in an earlier response to comment, attainment demonstrations 
are due several years after designation as nonattainment and are for 
the purpose of demonstrating how an area will attain the NAAQS 
“by” a specific date but are not required to address air 
quality after the attainment date. In other words, consistent with the 
structure of the Act, EPA does not read 40 CFR 51.112(a) to require an 
attainment demonstration to demonstrate maintenance of a NAAQS nor to 
require a maintenance plan to demonstrate attainment of the NAAQS.
    The commenter's interpretation that 40 CFR 51.908(d) supports a 
requirement that attainment demonstrations must include a demonstration 
of maintenance of the NAAQS beyond the attainment date is also 
misplaced. The sole purpose of this regulatory provision was to make 
clear

[[Page 19211]]

to states the date by which all measures relied on for purpose of 
demonstrating attainment must be in place. Specifically, they must be 
implemented by the beginning of the final ozone season before the 
attainment date. The provision says or implies nothing beyond that 
simple requirement. This is further supported by the discussion in the 
preamble to the final rule promulgating this provision to implement the 
1997 ozone NAAQS in which EPA consistently spoke only of the analysis 
needed to demonstrate timely attainment of the ozone NAAQS requirements 
and never of any need to demonstrate “maintenance” of the 
ozone NAAQS. See 70 FR 71612, 71615, 71626-71627 (November 29, 
2005) (“Phase 2” final rule for implementation of 1997 
ozone NAAQS). EPA referenced sections 172(c), 182(b), and 182(c) as the 
applicable CAA provisions regarding attainment demonstrations for the 
1997 ozone NAAQS and did not cite or discuss the maintenance plan 
provision in section 175A. Id.
    Comment: EPA received comments asserting that the SIP for the 
Washington Area relies on CAIR to address the “transport” 
problem and note that CAIR was remanded after the June 2007 SIP 
revisions were submitted. The commenters assert that because reduction 
of transported emissions still depend on the remanded CAIR, key 
modeling assumptions made for the attainment demonstrations in the June 
2007 SIP revisions are questionable. These comments assert that EPA's 
own modeling analysis for the Cross State Air Pollution Rule (CSAPR) 
indicates that transported pollution and ozone precursors from upwind 
jurisdictions play a significant role in the Washington region and that 
up to 75 percent of the ozone pollution in the Washington Area comes 
from states outside of the nonattainment area.\12\ These commenters 
state that the three States relied on emissions reductions in upwind 
states to meet the 1997 ozone NAAQS. The commenters state that despite 
attempts by EPA, the full benefits of a replacement rule have not been 
realized and state it is premature to approve the attainment 
demonstrations without a viable transport strategy in place. The 
comments conclude that the burden remains on EPA to persevere to 
replace CAIR so that further reductions are made to minimize 
contributions from upwind states. The comments suggested EPA could use 
CAA section 110(k)(5) to initiate a SIP call to merge addressing 
transport for the 1997 ozone NAAQS with addressing transport for the 
2008 ozone NAAQS. The commenters conclude that EPA's proposed action to 
fully approve the attainment demonstrations from the June 2007 SIP 
revisions without sufficiently addressing transport should not proceed 
and that a partial approval should be granted at most of such things as 
the MVEBs.
---------------------------------------------------------------------------

    \12\&thnsp;CSAPR was issued by EPA to replace CAIR and to help 
states reduce air pollution and attain CAA standards. See 76 FR 
48208 (August 8, 2011) (final rule). CSAPR requires substantial 
reductions of SO2 and NOX emissions from EGUs 
in 28 states in the Eastern United States that significantly 
contribute to downwind nonattainment of the 1997 PM2.5 
and ozone NAAQS and 2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    Response: EPA disagrees with the commenters that it is premature to 
approve the attainment demonstrations from the June 2007 SIP revisions 
for the 1997 ozone NAAQS due to concerns raised by the commenters 
regarding CAIR and transport of pollution. CAIR, as relied on for 
purposes of the attainment demonstration (and as described in more 
detail below) was being implemented through the attainment date. As 
provided in our earlier responses to comments, attainment 
demonstrations are required to demonstrate that an area will attain the 
NAAQS “by” a specific date, and EPA does not review such 
SIPs to determine whether they will show continued maintenance of the 
NAAQS. EPA is unclear about what the commenters are suggesting 
regarding a SIP Call-i.e., whether they are suggesting that EPA 
issue a SIP Call for the SIPs for the Washington DC Area or whether 
they are make a broader suggestion that EPA issue a new SIP Call rule. 
In either case, the comment is not relevant to the present rule. The 
issue in this present rulemaking is whether EPA should approve specific 
SIP submissions pending before the Agency and not whether EPA should 
issue a SIP Call for the already-approved SIPs for the Washington DC 
area. Nor, does this rulemaking action purport to address the broader 
issue of whether EPA should issue a new “SIP Call” rule 
requiring upwind states to address transported pollution for any NAAQS.
    Although not relevant for purposes of whether the attainment 
demonstration demonstrates attainment by the attainment date, EPA notes 
that EPA also disagrees with the characterization by the commenter that 
the transport rules are not reducing transported emissions. Despite the 
litigation regarding CAIR and CSAPR, the rules are providing a 
continuous mandate to states to address upwind transport as described 
in this response.
    CAIR was promulgated May 12, 2005 (70 FR 25162) and required 28 
states and the District of Columbia to adopt and submit revisions to 
their SIPs to eliminate sulfur dioxide (SO2) and 
NOX emissions from EGUs that contribute significantly to 
downwind nonattainment of the 1997 PM2.5 and ozone NAAQS. 
The three States developed their attainment demonstrations for the June 
2007 SIP revisions after CAIR was promulgated and being implemented in 
Maryland, Virginia, and the District of Columbia. CAIR was remanded to 
EPA in 2008, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 
2008), but it was not vacated and implementation of the program 
continued for most areas. EPA subsequently promulgated CSAPR to replace 
CAIR and address transport for the 1997 ozone NAAQS. 76 FR 48208 
(August 8, 2011). Implementation of CSAPR was scheduled to begin on 
January 1, 2012, when CSAPR would have superseded the CAIR program. 
However, numerous parties filed petitions for review of CSAPR, and on 
December 30, 2011, the D.C. Circuit issued an order staying CSAPR 
pending resolution of the petitions and directing EPA to continue to 
administer CAIR. EME Homer City Generation, L.P. v. EPA, No. 
11-1302 (D.C. Cir. Dec. 30, 2011), Order at 2.
    In 2012, the D.C. Circuit issued a decision in EME Homer City 
Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), vacating CSAPR 
and ordering EPA to continue administering CAIR pending the 
promulgation of a valid replacement. On April 29, 2014, the Supreme 
Court reversed the D.C. Circuit's decision on CSAPR and remanded the 
case to the D.C. Circuit for further proceedings. EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584 (2014). After the Supreme Court 
decision, EPA filed a motion to lift the stay on CSAPR and asked the 
D.C. Circuit to toll CSAPR's compliance deadlines by three years, so 
that the Phase 1 emissions budgets apply in 2015 and 2016 (instead of 
2012 and 2013), and the Phase 2 emissions budgets apply in 2017 and 
beyond (instead of 2014 and beyond). On October 23, 2014, the D.C. 
Circuit granted EPA's motion. EME Homer City Generation, L.P. v. EPA, 
No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA issued an 
interim final rule to clarify how EPA will implement CSAPR consistent 
with the D.C. Circuit's order granting EPA's motion requesting lifting 
the stay and tolling the rule's deadlines. 79 FR 71663 (December 3, 
2014) (interim final rulemaking).
    Throughout the litigation described previously in this rulemaking 
action, EPA continued to implement CAIR

[[Page 19212]]

which led to significant reductions in emissions of SO2 and 
NOX from EGUs. However, on December 31, 2014, EPA sunset 
CAIR's provisions, and implementation of CSAPR began on January 1, 2015 
in accordance with our interim final rule. 79 FR 71663. Now that 
implementation of CSAPR has begun, the emission reductions in 
SO2 and NOX from implementation of CAIR at EGUs 
will continue through CSAPR implementation. See 76 FR 48208.
    Comment: One commenter asserts that EPA has changed its position on 
whether or not EPA could approve the attainment demonstrations from the 
June 2007 SIP revisions for the Washington Area as well as other ozone 
nonattainment areas under the 1997 ozone NAAQS. The commenter claims 
that at one time EPA stated that it could not approve the attainment 
demonstration portions of the June 2007 SIP revisions because the 
modeling was based on CAIR; the commenter links the uncertainty about 
CAIR to doubts about assurances that the 1997 ozone NAAQS would be 
attained. The commenter asserts that EPA's proposed approval relies 
upon the same modeling which continues to be based on CAIR (which was 
remanded to EPA) and claims the change in policy seems to be based on 
ambient air quality monitoring data which allowed EPA to declare that 
the Washington Area attained the 1997 ozone NAAQS. The commenter claims 
EPA should not approve an attainment demonstration that relies on 
modeling which was based in part on CAIR.
    Response: As explained previously in response to a prior comment, 
EPA sunset its implementation of CAIR on December 31, 2014 and is now 
implementing CSAPR pursuant to the Supreme Court's upholding of CSAPR 
as a means to address transport of pollution for the 1997 ozone NAAQS, 
pursuant to the D.C. Circuit's lifting the stay on CSAPR, and pursuant 
to our interim final rule which provided clarification that CSAPR would 
be implemented as of January 1, 2015. During the litigation in the D.C. 
Circuit over CAIR and CSAPR, EPA continued to review and evaluate SIPs 
such as the June 2007 SIP revisions in accordance with CAA 
requirements. EPA disagrees that it “changed its position” 
on the approvability of the attainment demonstrations from the June 
2007 SIP revisions. During the pendency of litigation concerning CAIR 
and CSAPR, EPA merely exercised caution in reviewing data which relied 
upon CAIR, and EPA proposed approval of the June 2007 SIP revisions 
when EPA concluded reliance upon data related to CAIR was appropriate 
given the litigation in the D.C. Circuit. However, as mentioned 
previously, EPA continued to implement CAIR during the litigation in 
the D.C. Circuit, and emission reductions of SO2 and 
NOX from EGUs occurred through CAIR. The States 
appropriately relied on CAIR and CAIR emission reductions in the June 
2007 SIP revisions. EPA believes that continued and further reductions 
will occur with CSAPR. While the air quality data for the Washington 
Area has changed and improved generally over time, the air quality data 
presently indicates the Washington Area is attaining the 1997 ozone 
NAAQS and the Washington Area did attain by its attainment date of June 
15, 2010 when EPA was implementing CAIR.
    As explained in the March 20, 2013 NPR, in the February 26, 2013 
TSD, in the TSD Supplement, and in response to prior comments, EPA 
based our decision to approve the attainment demonstrations upon the 
fact that the Washington Area did in fact attain the 1997 ozone NAAQS 
by the required June 15, 2010 attainment date and upon our evaluation 
that the Area continues to attain the 1997 ozone NAAQS. EPA believes 
the attainment demonstrations are in accordance with CAA requirements 
in sections 172 and 182 and believes the improving air quality data 
supports our decision to approve these attainment demonstrations for 
the 1997 ozone NAAQS. Thus, for the reasons detailed in the March 20, 
2013 NPR and in this rulemaking action, EPA finds the attainment 
demonstration in accordance with CAA requirements, and EPA disagrees 
with commenters that any concerns with CAIR prevent our approval of 
these attainment demonstrations.
    Comment: One commenter noted that although speedy approval of SIPs 
is desirable, at this juncture, approval of the attainment 
demonstrations from the June 2007 SIP revisions sends the wrong message 
to states and the public. The commenter claims that approval will not 
force state actions to address the 1997 and 2008 ozone NAAQS and 
therefore will result in continuation of unhealthy air for citizens of 
the Washington Area.
    Response: EPA disagrees with the commenter that action on the SIP 
“sends the wrong message” to the public. Under the CAA, 
states are required to develop plans for each NAAQS and EPA is required 
to act on such submittals. Thus, to the extent the commenter is 
suggesting that EPA not act on the submission, such inaction is not 
allowed under the CAA. See CAA section 110(k)(1)–(3). The 
commenter's claim that action on an attainment SIP for the 1997 NAAQS 
will not force action by the state on a SIP for the 2008 NAAQS or will 
“continue” unhealthy air is misguided. The 2008 ozone NAAQS 
is a separate NAAQS with a separate statutory schedule for state 
adoption and submission of SIPs. EPA's action on a SIP required to 
address the 1997 ozone NAAQS has no effect on the obligation of the 
state to adopt rules and plans to meet the 2008 ozone NAAQS. In 
addition, SIPs for the 2008 ozone NAAQS are not yet due. Although, the 
attainment SIP for the 1997 ozone NAAQS is not intended to demonstrate 
how the state will meet the tighter 2008 ozone NAAQS, the reductions 
achieved by the attainment SIP will also provide benefits for that 
newer 2008 ozone standard.
    Comment: One commenter asserted that if the proposed 2008 SIP 
Requirements Rule moves forward as currently written and the 1997 ozone 
NAAQS is entirely revoked, EPA could consider a process similar to that 
conducted during transition from the 1-hour standard to the 1997 8-hour 
standard. Under such process, the Washington Area's 
“moderate” area requirements under the 1997 standard could 
be continued under the 2008 standard, at least until the region is 
designated “attainment” for the 1997 standard, as suggested 
in CAA section 172(e).
    Response: This comment addresses the substance of a separate rule 
for implementing the 2008 ozone NAAQS and is not related to whether EPA 
should approve the attainment demonstration addressed in this action 
rulemaking. EPA will address in the final action on that separate rule 
concerning implementation of the 2008 ozone NAAQS, the issue of how 
long the requirements applicable for the 1997 NAAQS remain in place as 
areas transition to implementation of the 2008 ozone NAAQS.
    Comment: Several commenters noted that because of the determination 
of attainment by the attainment date and clean data determination for 
the Washington Area issued on February 28, 2012, EPA will not have to 
reclassify the Washington Area under the 1997 ozone NAAQS and that the 
three States are not required to submit any planning SIPs related to 
attainment of the 1997 ozone NAAQS standard unless a violation of the 
standard occurs. The commenters assert that violation of the 1997 ozone 
NAAQS has occurred and called for action by EPA. These commenters 
asserted that section 110(k)(5) requires EPA to issue a SIP call 
because the attainment demonstrations in the June 2007 SIP revisions 
are inadequate to

[[Page 19213]]

maintain the 1997 ozone NAAQS in the Washington Area. EPA received 
other comments that suggested EPA merge the SIP call requirement in 
section 110(k)(5) under the 1997 ozone NAAQS with requirements under 
the 2008 ozone NAAQS. One commenter asserted that in addition to 
section 110(k)(5), EPA could use section 110(k)(6) to correct prior 
actions when EPA finds a previously approved SIP inadequate. One 
commenter speculated that EPA has not moved with an action under 
section 110(k)(5) perhaps because the area has been designated 
nonattainment for the 2008 ozone standard.
    Response: The comments do not address EPA's action on the 
attainment demonstration, but instead suggest that EPA take additional 
rulemaking pursuant to CAA section 110(k)(5) or 110(k)(6) and thus are 
outside the scope of this rulemaking action. EPA notes that although 
the 2012 design value was violating the 1997 ozone NAAQS, the area is 
attaining that NAAQS based on the 2013 design value and preliminary 
data from 2014 indicates that it is continuing to meet the 1997 ozone 
NAAQS.
    Comment: EPA received comments claiming that EPA should promptly 
revoke the determination of attainment EPA issued for the Washington 
Area on February 28, 2012 (77 FR 11739) based on the 2010 to 2012 air 
quality data showing a violation of the 1997 ozone NAAQS.
    Response: The comments do not address this action on the attainment 
demonstration, but instead suggest that EPA take additional rulemaking 
action to revoke our prior clean data determination for the Washington 
Area; thus the comments are outside the scope of this rulemaking 
action. As discussed previously, EPA notes that based on air quality 
data from 2011 to 2013 and on preliminary data from 2012 to 2014, the 
Washington Area is attaining the 1997 ozone NAAQS and thus currently 
has clean data for the 1997 ozone NAAQS.
    Comment: EPA received comments claiming that EPA explained in its 
proposed approval of the Washington Area attainment demonstrations from 
the June 2007 SIP revisions that the actual monitored values from the 
attainment year confirm the model over-predicted ozone concentrations 
by 0.002 ppm (2 ppb) and also claiming that the actual design values 
upon which EPA based these findings of model over-prediction are from 
years that are not representative of the same kind of meteorology 
chosen for the modeling. The commenter claims that the attainment year 
period was cooler and wetter and would be expected to generate less 
ozone. The commenter asserts that the design values for the Washington 
Area have increased for four straight years now that data from 2009 is 
not included in the design value calculation. The commenter notes that 
the most recent air quality data indicates the model-predicted ozone 
values are just as likely to be correct rather than an over-prediction. 
In addition, the commenter notes that EPA also cited a descending trend 
in ozone values as weight of evidence that the modeling over-predicts 
ozone for the region. Now that design values no longer include 2009 
ozone season data, the commenter claims design value trends are 
increasing and do not show continued attainment of the 1997 ozone 
NAAQS. These comments conclude that EPA must disapprove the attainment 
demonstration based on the current values.
    Response: As EPA has explained previously, the issue for approving 
the attainment demonstration is not whether the area has continued to 
maintain the NAAQS several years following the attainment date, but 
rather whether the modeled attainment demonstration demonstrated that 
the area would attain by its attainment date. For the reasons provided 
in the proposed rule and this final rule, EPA has determined that the 
attainment demonstrations in the June 2007 SIP revisions show 
attainment by the Area's attainment date of June 15, 2010. Furthermore, 
monitored attainment, including the 2009 design value, support that the 
Washington Area attained the standard by its attainment date.
    EPA notes that in the March 20, 2013 NPR, EPA stated that the 
modeling conducted by the three States for the June 2008 SIP revisions 
over predicted 2009 ozone design values relative to the actual 
monitored 2009 to 2011 design values for most cases and always for four 
monitors for which the modeled design values were in the range of 82 to 
87 ppb. See 78 FR at 17164. EPA also stated in the March 20, 2013 NPR 
that the modeling in the three States' June 2007 SIP revisions over 
predicted 2009 predicted design values when compared to actual 
monitored design values since 2009. Id. EPA compared the modeled design 
values to the actual design values based upon air quality data in Table 
2, “Modeled Predicted 2009 Design Values versus Actual Monitored 
Design Values” in the February 26, 2013 TSD. This comparison 
showed that the actual attainment year design values were below the 
model predicted values, but more significantly were below the 1997 
ozone NAAQS of 84 ppb.\13\
---------------------------------------------------------------------------

    \13\&thnsp;The 1997 ozone NAAQS as codified at 40 CFR 50.10 is 
0.08 ppm, but EPA's interpretation (and under the interpretation in 
Appendix I to 40 CFR part 50) of the 1997 ozone NAAQS after 
considering the number of significant figures requires a design 
value equal to or greater than 0.085 ppm (85 ppb) to be a violation.
---------------------------------------------------------------------------

    At the time EPA issued the March 20, 2013 NPR, EPA did not have 
certified 2012 or 2013 data. When EPA proposed in 2013 to approve the 
attainment demonstrations in the June 2007 SIP revisions, EPA 
considered the overall downward trend in monitored ozone air quality in 
the Washington Area and that the Area attained the 1997 ozone NAAQS by 
the attainment date applicable under section 181 of the CAA. While the 
2010-2012 air quality design value does show an increase over the 
design values EPA previously considered, EPA continues to believe the 
air quality data for the Washington Area supports our approval of the 
June 2007 SIP revisions as the 2011-2013 AQ data (and the 
2012-2014 AQ data based upon the preliminary 2014 data) shows the 
Washington Area is attaining the 1997 ozone NAAQS.
    EPA agrees with the commenters that weather plays an important role 
in ozone formation. However, EPA believes that these considerations do 
not require EPA to disapprove the attainment demonstrations in the June 
2007 SIP revisions. None of the design values predicted in the modeling 
from the three States in the June 2007 SIP revisions were above 87 ppb. 
Therefore, as explained in the February 26, 2013 TSD, a weight of 
evidence demonstration could be considered and was considered by EPA. 
The three States presented downward trends in design values (through 
2006 as the States submitted the SIP in 2007), in numbers of 
exceedances, in nitrogen dioxide and carbon monoxide levels, and in 
emissions levels, as well as a decrease in the spatial extent of 
nonattainment in the Washington area and a decrease in the number of 
days the 1997 ozone NAAQS was exceeded when the maximum temperature 
exceeded 90 degrees Fahrenheit. For the proposed approval in the March 
20, 2013 NPR, EPA also considered monitored ozone design values for 
years after 2006 which declined from an area-wide maximum 91 ppb for 
the 2004-2006 period to 80 ppb for the 2007-2009 (the 
effective applicable attainment period). At best, EPA believes that a 
modeled attainment demonstration with a supporting weight of evidence 
demonstration is a prediction about future events. For attainment

[[Page 19214]]

demonstrations, EPA has recommended using model predictions in a 
relative rather than absolute sense and using weight of evidence to 
lessen the problems posed by less than ideal model performance on 
individual days by anchoring the future predicted concentrations to 
real ambient values and to address associated uncertainties in model 
results and projections.\14\ In addition, EPA believes that the form of 
the 1997 8-hour ozone NAAQS necessitates such an attainment test.\15\
---------------------------------------------------------------------------

    \14\&thnsp;See “Guidance on the Use of Models and Other 
Analyses for Demonstrating Attainment of Air Quality Goals for 
Ozone, PM2.5 and Regional Haze,” EPA-454/
B-07-002, dated April 2007 (2007 Modeling Guidance for 
Ozone, PM2.5 and Regional Haze), which is available at 
http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf and is also included in the docket for this action and 
available online at www.regulations.gov in docket number 
EPA-R03-OAR-2013-0132.
    \15\&thnsp;See 2007 Modeling Guidance for Ozone, 
PM2.5, and Regional Haze.
---------------------------------------------------------------------------

    In general, EPA does not consider the monitored ambient air quality 
data for periods after the attainment date to be particularly 
dispositive when acting on an attainment demonstration due under 
section 182(b). As explained previously in response to prior comments, 
EPA must approve a SIP submission such as an attainment SIP if the SIP 
submission meets applicable requirements in CAA sections 172 and 182. 
If an area does attain by its applicable attainment date, EPA has no 
authority to reclassify the area even if the area subsequently violates 
the ozone NAAQS.\16\ EPA believes this evinces a preference for actual 
air quality results over modeled predictions, and we believe that EPA 
must place great weight upon monitored attainment by the statutorily 
required attainment date when evaluating an attainment demonstration 
for compliance with CAA requirements.
---------------------------------------------------------------------------

    \16\&thnsp;As noted previously, when an area does not attain by 
its applicable attainment date, the area is subject to 
reclassification or other provisions pursuant to section 182(b) of 
the CAA.
---------------------------------------------------------------------------

    As noted in response to other comments, EPA believes that an 
attainment demonstration required under sections 172 and 182(b) need 
not demonstrate maintenance of the ozone NAAQS after the applicable 
attainment date and need only demonstrate timely attainment by the 
attainment date. While the commenters raise concerns for maintenance of 
the 1997 ozone NAAQS based on the 2010-2012 design value for the 
Washington Area, the 2011-2013 design values (and preliminary 
data for 2012-2014) show attainment with the 1997 ozone NAAQS as 
mentioned previously. EPA did not in the March 20, 2013 NPR propose any 
sort of finding regarding sufficiency of any state's SIP with regards 
to maintenance of the 1997 ozone NAAQS in the Washington Area. In 
addition, maintenance of the 1997 ozone NAAQS is not a requirement for 
our approval of an attainment SIP required by CAA sections 172 and 182 
as discussed previously in response to a prior comment and will be 
addressed in a separate SIP if the Washington Area seeks redesignation.
    Finally, EPA believes that section 110(k)(5) provides a separate 
remedy, outside the scope of this rulemaking action, via a “SIP 
call” which provides the necessary authority to require remedial 
action through additional measures for a SIP where an ozone 
nonattainment area attains the ozone NAAQS by the applicable attainment 
date under section 181 but later violates that ozone NAAQS. See 64 FR 
70205, 70206 (December 16, 1999) (final SIP call rule for Birmingham, 
Alabama marginal 1-hour ozone nonattainment area to address inadequacy 
of a SIP) and 79 FR 27830, 27832 (May 15, 2014) (proposed SIP call for 
the New York-New Jersey-Long Island moderate 1997 8-hour ozone 
nonattainment area).
    Comment: EPA received a comment that it is arbitrary and capricious 
for the attainment demonstration modeling to only model for design 
values at monitoring stations. The commenter states that the whole 
metropolitan DC area is designated nonattainment, not just the tiny 
area covered by the monitoring stations. The commenter states that the 
NAAQS apply everywhere and that people are located throughout the 
Washington Area, not just at the monitoring stations. The commenter 
claims the model is capable of having a receptor grid that provides 
design values for the entire Washington Area and that by looking at 
design values at the monitoring station, EPA is deliberately ignoring 
an important aspect of the problem, that is whether the SIP provides 
people throughout the Washington Area with air that contains ozone 
below the health-based limit in the NAAQS.
    Response: EPA disagrees with the comment that it was arbitrary and 
capricious for the attainment demonstration modeling to only model for 
design values at monitoring stations and not for the entire Washington 
Area. The three States' attainment demonstration modeling was in 
accordance with EPA's 2007 Modeling Guidance for Ozone, 
PM2.5, and Regional Haze and considered appropriate data. As 
an initial matter, the performance of the air quality model used in a 
SIP submission can only be assessed by comparison of the model 
predicted ozone concentrations for the baseline year in the vicinity of 
any air quality monitors in place with the actual monitored ozone 
concentrations recorded at air quality monitors in place during the 
baseline year. EPA's 2007 Modeling Guidance for Ozone, 
PM2.5, and Regional Haze in section 2.0 provides for using 
the modeling results in a relative sense, that is, the ratio, called a 
“relative response factor” (RRF), of the model's future to 
current (baseline) predictions at monitors is used to determine if 
attainment is predicted.\17\ In section 2.4 of that guidance, EPA 
explained its reasons for using the models in a relative sense. These 
RRFs are used to estimate concentrations at existing monitoring sites 
by multiplying a modeled RRF at locations “near” each 
monitor by the observation-based, monitor-specific, 
“baseline” design value. The resulting predicted 
“future concentrations” are compared to the NAAQS as part 
of the modeled attainment test and attainment demonstration.
---------------------------------------------------------------------------

    \17\&thnsp;The 2007 Modeling Guidance for Ozone, 
PM2.5 and Regional Haze is included in the docket for 
this action as an attachment to docket item 
EPA-R03-OAR-2013-0132-0006.
---------------------------------------------------------------------------

    While the 2007 Modeling Guidance for Ozone, PM2.5, and 
Regional Haze recommends a test, the “unmonitored area 
analysis,” which provides estimates of future year values in 
unmonitored areas, the guidance notes this test is particularly needed 
in nonattainment areas where the ozone monitoring network just meets or 
minimally exceeds the size of the network required to report data to 
AQS. EPA asserts that the Washington Area's monitoring network is not 
such a network.
    The air quality monitoring network in the Washington Area far 
exceeds the minimum required under 40 CFR part 58. The Washington Area 
is part of the larger Washington-Arlington-Alexandria 
(DC-VA-MD-WV) Metropolitan Statistical Area (MSA) 
(known as the Washington-A-A MSA). Under Table D-2 of 
appendix D of 40 CFR part 58, the absolute minimum monitoring network 
for the Washington-A-A MSA based upon its population would be 3 
ozone monitors, but the Washington-A-A MSA in fact contains 15 
ozone monitors of which 13 are in the designated nonattainment area. 
Consistent with the factors found in section 4.1(b) of appendix D of 40 
CFR part 58, the additional monitors in the Washington Area are located 
based on a variety of reasons such as providing for more than one 
maximum concentration site within the MSA, characterizing

[[Page 19215]]

population exposure, and addressing factors including geographic size, 
population density, and complexity of terrain and meteorology in the 
MSA as well as air pollution transport.\18\ Given the extensive size 
and coverage of the Washington Area monitoring network and the factors 
considered for the size of the network, EPA disagrees with the comment 
that it was arbitrary and capricious for the attainment demonstration 
modeling to only model for design values at monitoring stations and not 
consider the entire Washington Area. The three States' attainment 
demonstration modeling considered appropriate data from monitors in the 
Washington Area, which EPA reviewed in accordance with the 2007 
Modeling Guidance for Ozone, PM2.5, and Regional Haze. EPA 
has explained in the March 20, 2013 NPR and in this rulemaking that the 
June 2007 SIP revisions including the attainment demonstration modeling 
meet CAA requirements for attainment plans in sections 172 and 182.
---------------------------------------------------------------------------

    \18\&thnsp;Additionally, the monitors in the Washington Area are 
located to measure areas of expected highest concentration downwind 
of urban cores, to “background” concentrations entering 
an area, and to represent some spatial scale to reflect 
neighborhoods.
---------------------------------------------------------------------------

    Comment: EPA received comments that it is arbitrary and capricious 
to approve the attainment demonstrations in the June 2007 SIP revisions 
because, the commenter claims, the Area actually attained because of 
the “recession” or weather. A commenter also stated that 
recent 2010 and 2012 AQ data shows that 2009 was perhaps an 
“outlier year” with regards to ozone formation and that the 
attainment demonstration must model 2012 meteorological conditions (and 
not 2002 conditions), or model even warmer meteorological conditions to 
demonstrate that the emission limits and other nonattainment SIP 
provisions will attain the NAAQS. The commenter also stated that the 
attainment demonstration must consider climate change.
    Response: EPA disagrees that these comments provide a basis to 
disapprove the attainment demonstrations in the June 2007 SIP 
revisions. The overarching concerns that seem to be raised by the 
commenter are that meteorology less conducive to ozone formation in 
2009 resulted in attainment and that the attainment demonstration did 
not adequately account for meteorological variability.\19\
---------------------------------------------------------------------------

    \19\&thnsp;The commenter also cites to “climate 
change” without any explanation, but EPA presumes it is being 
raised as part of the more general argument regarding meteorological 
variability.
---------------------------------------------------------------------------

    First, meteorological variability is addressed in the form of the 
1997 ozone NAAQS. In choosing the form of the 1997 ozone NAAQS as the 
3-year average of the fourth highest daily maximum 8-hour average ozone 
concentration, the EPA Administrator adopted the Clean Air Scientific 
Advisory Committee's recommendation that “a more robust, 
concentration-based form would minimize . . . instability and 
provide some insulation from the impacts of extreme meteorological 
events that are conducive to [ozone] formation.” See 62 FR 38856, 
38868 (July 18, 1997). The form of the 1997 ozone NAAQS is intended to 
minimize the effect of not only those years with more extreme 
meteorological events conducive to ozone formation but also those years 
with more meteorological events not conducive to ozone formation. Thus, 
EPA does not agree that meteorological conditions for any one year are 
the basis for an area meeting or not meeting the NAAQS.
    Second, EPA notes that as an adjunct to the modeled attainment 
demonstration, the three States did assess for the June 2007 SIP 
revisions the potential effects of meteorological variations on the 
results of the modeled attainment test. The future year model-predicted 
ozone design value was determined by the three States by multiplying a 
baseline ozone design value derived from ambient air quality monitoring 
by the model-derived RRF.20&thnsp;21 This future year model-
predicted ozone design value therefore directly depends upon the value 
of the baseline design value. The three States assessed the performance 
of air quality modeling by inputting meteorological data such as wind 
patterns and temperatures for 2002 and relevant emissions for 2002 and 
comparing the results to the actual monitored ozone concentrations for 
each day modeled.
---------------------------------------------------------------------------

    \20\&thnsp;Attainment of the 1997 ozone NAAQS is determined 
using a design value, which is the 3-year annual fourth-highest 
daily maximum 8-hour average ozone concentrations at each monitoring 
location. For modeling for attainment demonstrations, EPA has 
concluded that modeled RRFs should be applied to an average of 
annual fourth-highest daily maximum 8-hour average ozone 
concentrations including those of the baseline modeling year, which 
is 2002 for the 1997 ozone NAAQS for the Washington Area.
    \21\&thnsp;EPA discusses RRFs in the 2007 Modeling Guidance for 
Ozone, PM2.5, and Regional Haze. EPA also discussed the 
use of RRFs in response to another comment in this rulemaking.
---------------------------------------------------------------------------

    EPA believes that, in practice, the choice of the “baseline 
design value” can be critical to the determination of the 
estimated future year design values. EPA's 2007 Modeling Guidance for 
Ozone, PM2.5, and Regional Haze noted several possible 
methods for computing a baseline design value and recommended using the 
average of the three design values for three successive three-year 
periods which include the baseline inventory year, which was 2002 for 
the Washington Area. According to information in the June 2007 SIP 
revisions, the three States were concerned that weighting the 2002 
concentrations three times in the calculation could place too much (or 
too little) weight on that individual year's meteorology and would not 
necessarily reflect climate variability which has a significant impact 
on future design value projections. The three States used two 
additional methods for computing a baseline design value in order to 
assess the effect on future design value projections. These 
computations and the resulting future model-predicted attainment year 
design values are discussed in section 10.5.9 “Alternative Design 
Value Calculation Techniques” of the three States' 2007 
attainment demonstration plan document dated May 23, 2007 (hereafter 
the May 23, 2007 plan document) and Section III. C. “Weight of 
Evidence Demonstration” and Appendix A of the February 26, 2013 
TSD.\22\ For most, but not all, monitoring sites, a baseline design 
value computed as the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ozone concentration over the period 2001 to 2003 
produced the highest baseline design value for each monitor and 
therefore the highest future year model-predicted design 
value.23&thnsp;24 By considering these alternate baseline 
design values, the three States assessed meteorological variability as 
reflected in ozone design values or other averaged annual fourth-
highest daily maximum 8-hour average ozone concentrations that included 
monitoring data for the 2002 baseline modeling year.
---------------------------------------------------------------------------

    \22\&thnsp;The May 23, 2007 plan document and the February 26, 
2013 TSD are included in the docket for this rulemaking action and 
are available online at www.regulations.gov.
    \23\&thnsp;EPA used monitored design values based upon 2001 to 
2003 monitoring data to classify the Washington Area as moderate 
ozone nonattainment for the 1997 ozone NAAQS. See 69 FR 23858, 23864 
(April 30, 2004).
    \24\&thnsp;EPA's recommended method for determining baseline 
design value was to average the monitored design values determined 
for three successive periods: 2000 to 2002; 2001 to 2003, and 2002 
to 2004 which weights the 2002 data by a factor of 3, 2001 and 2003 
data each by a factor of 2, and 2000 and 2004 data each by a factor 
of one. The last method computed a simple average of the annual 
fourth-highest daily maximum 8-hour average ozone concentrations 
over the period 2000 through 2004 (inclusive) which weights each 
year's value equally.
---------------------------------------------------------------------------

    Thus, EPA concludes the three States considered meteorological 
variability in conducting its attainment demonstrations, and we 
assessed the

[[Page 19216]]

three States' modeling when reviewing and proposing to approve the June 
2007 SIP revisions because the revisions meet CAA requirements. EPA 
therefore disagrees with the commenter that our approval of the 
attainment demonstrations is arbitrary or capricious because attainment 
of the 1997 ozone NAAQS may have occurred due to influences from 
meteorological variability not otherwise addressed by the standard and 
the attainment demonstrations.\25\
---------------------------------------------------------------------------

    \25\&thnsp;The commenter also claims that attainment is due to 
“the recession,” but provides no support for this claim 
and therefore EPA provides no further response to the unsupported 
claim.
---------------------------------------------------------------------------

    Furthermore, to the extent the commenters are suggesting that the 
modeled attainment demonstration is defective because it was based on 
2002 meteorological conditions and not those from 2009 or a later year, 
EPA disagrees. Congress set explicit deadlines for submission of the 
attainment demonstration SIP due under section 182(b)(1), and the 
attainment demonstrations for the 1997 ozone NAAQS were required to be 
submitted by June 15, 2007. Thus, it was not feasible nor possible for 
the states to use meteorological conditions from future years for 
purposes of the attainment demonstration.
    The States' choice of 2002 meteorological conditions was inherently 
reasonable and is well supported in Chapter 10 and Appendix G of the 
three States' May 23, 2007 plan document.\26\ EPA designated 
nonattainment areas for the 1997 ozone NAAQS generally using 2001 to 
2003 AQ data. See 69 FR 23858 (April 30, 2004).\27\ Thus, the 2002 
meteorological data represented meteorological conditions 
contemporaneous with the data used to designate and classify the 
Washington Area under the 1997 ozone NAAQS. Moreover, the 2007 
attainment demonstration was based upon modeling the entire 2002 ozone 
season. For that reason alone, it was reasonable for the States to rely 
on the meteorological data for the same year.
---------------------------------------------------------------------------

    \26\&thnsp;The May 23, 2007 plan document is included in the 
docket for this rulemaking action and is available online at 
www.regulations.gov.
    \27\&thnsp;See e.g. 69 FR at 23860 (“In making 
designations and classifications, we use the most recent 3 years of 
monitoring data. Therefore, today's designations and classifications 
are generally based on monitoring data collected in 2001-2003 
although other relevant years of data may have been used in certain 
circumstances”).
---------------------------------------------------------------------------

    However, the States supported their selection of 2002 meteorology 
based upon a qualitative analysis and a quantitative analysis.\28\ The 
quantitative analysis analyzed the entire Ozone Transport Region (OTR) 
and considered ozone and meteorological data for a seven year period 
(1997-2003) to capture the full range of OTR ozone episode 
characteristics and to insure statistical significance of the recent 
episode characteristics.\29\ The qualitative analysis describes each 
2002 high ozone episode in terms of the weather patterns (movement of 
warm or cold fronts, air movement patterns-speed and direction of 
wind), cloud cover, temperature patterns, and locations of higher and 
lower ozone concentrations for each episode day. The analysis of 
regional ozone episode conditions over the OTR concluded that regional 
ozone episode conditions can be reasonably well described by a set of 
five different episode types each associated with a unique set of 
distinguishing characteristics. Data from the 2002 ozone season were 
analyzed within the framework of the five identified episode types with 
respect to frequencies of occurrence of each type and characteristics 
of the ozone and meteorological conditions within each type in 2002. 
The analysis noted one difference between 2002 and the other years in 
that the frequency of exceedances of the 1997 ozone NAAQS at one or 
more monitoring sites within the OTR occurred more frequently than the 
average of the other years, namely 1997-2001 plus 2003. There 
were 71 exceedance days during the May-September season in 2002 
as compared to an average of 55 days per season during these other 
years. This analysis concluded that while ozone exceedances were more 
frequent during 2002, this higher than average exceedance rate in 2002 
is by itself not an indication of any lack of representativeness of the 
2002 exceedance events. In addition, not only did the 2002 ozone season 
have more days during which the 1997 ozone NAAQS was exceeded, but the 
fourth highest daily maximum values for the ozone monitors were higher 
during the 2002 ozone season than in any of the years 2000 through 
2004, inclusive. In this time period, monitored fourth highest daily 
maximum concentrations exceeded 100 ppb (0.100 ppm) only during 2002. 
Such values over 100 ppb were recorded at nine of 17 monitors then in 
operation.\30\ Such values of the fourth highest daily maximum 
concentrations have not been recorded since.\31\ EPA finds the States' 
use of data from 2002 reasonable, well documented and supported. In 
contrast, the commenter has provided no support for the allegation that 
our approval of the attainment demonstrations is arbitrary or 
capricious based on the three States' use of 2002 data for the 
attainment demonstration instead of a subsequent year.
---------------------------------------------------------------------------

    \28\&thnsp;These documents are provided in Appendix G of 
Attachment 2 of the May 23, 2007 plan document and docketed as 
document item ID# 
EPA-R03-OAR-2013-0132-0005 under 
“state submittal: Appendix G Attainment Modeling Demonstration 
and Documentation (Part 1)” in the docket for this rulemaking 
action.
    \29\&thnsp;See Attachment 2 to Appendix G and Chapter 10 of the 
May 23, 2007 plan document which is docket item 
EPA-R03-OAR-2013-0132-0005 in the 
docket for this rulemaking action.
    \30\&thnsp;See the ozone monitor value reports for 2000 through 
2004 attached to the TSD Supplement or the column labeled 
“Annual 4th Highest 8-Hour Ozone (ppm)” in the table 
titled “Design Value-BY 2002” on page 1, Appendix 
G Attachment 11, of the May 23, 2007 plan document (the attachment 
titled “state submittal: Appendix G Attainment Modeling 
Demonstration and Documentation (Part 4)” under document ID 
EPA-R03-OAR-2013-0132-0005 in the 
docket available at www.regulations.gov.
    \31\&thnsp;EPA believes that air quality monitoring data (number 
of exceedances or highest recorded values) cannot be used as a 
surrogate for meteorological conditions when comparing years after 
2004 to years before 2004 because the NOX SIP call 
drastically reduced NOX emissions from EGUs in the years 
after 2004. See 75 FR 45210, 45214, columns 2 and 3 (August 2, 2010) 
(discussing the change in ozone air quality since the 
2001-2003 time period used to designate and classify 1997 
ozone nonattainment areas within the rulemaking for the 
NOX SIP call).
---------------------------------------------------------------------------

    To the extent the commenters are suggesting that the States must 
remodel using meteorological conditions for years long after the 2007 
submittal date (and after the attainment date), EPA notes that is 
neither mandated by the statute nor reasonable. Congress imposed 
deadlines on the States that clearly envisioned an end to the 
preparation of the attainment demonstration and did not establish any 
requirement for states to submit new, revised attainment demonstrations 
in the absence of a call from EPA pursuant to CAA section 110(k)(6) to 
do so or to submit a new attainment demonstration for a new, future 
attainment date based on a failure to attain by the attainment 
date.\32\
---------------------------------------------------------------------------

    \32\&thnsp;This does not preclude a State by its own choice from 
updating a previously submitted attainment demonstration.
---------------------------------------------------------------------------

V. Final Action

    EPA is approving the attainment demonstrations, contingency 
measures, and associated 2009 and 2010 year MVEBs for the Washington 
Area which were submitted to EPA as SIP revisions by the three States 
in the June 2007 SIP revisions based on a determination that they meet 
applicable requirements in the CAA.

[[Page 19217]]

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 §&thnsp;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 approved SIP, 
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. 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:
    &sbull; 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);
    &sbull; does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    &sbull; 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.);
    &sbull; 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);
    &sbull; does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    &sbull; is not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    &sbull; is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    &sbull; 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
    &sbull; 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

[[Page 19218]]

circuit by June 9, 2015. 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 the attainment demonstrations, contingency measures, and 
associated 2009 and 2010 year MVEBs for the Washington Area for the 
1997 ozone NAAQS 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: March 13, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended 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 §&thnsp;52.470, the table in paragraph (e) is amended by 
adding the entries for Attainment Demonstration Contingency Measure 
Plan and 8-hour Ozone Modeled Demonstration of Attainment and 
Attainment Plan for the 1997 ozone national ambient air quality 
standards to reads as follows:

§&thnsp;52.470  Identification of plan.

* * * * *
    (e)* * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable      State submittal
            revision              geographic area          date        EPA approval date  Additional explanation
----------------------------------------------------------------------------------------------------------------
 
*         *         *&
emsp;        *         *&em
   sp;        *         *
Attainment Demonstration         Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2010 motor vehicle
 Contingency Measure Plan.        VA 1997 8-Hour                        Federal Register   emissions budgets of
                                  Ozone                                 citation].         144.3 tons per day
                                  Nonattainment                                            (tpd) NOX.
                                  Area.
8-hour Ozone Modeled             Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2009 motor vehicle
 Demonstration of Attainment      VA 1997 8-Hour                        Federal Register   emissions budgets of
 and Attainment Plan for the      Ozone                                 citation].         66.5 tons per day
 1997 ozone national ambient      Nonattainment                                            (tpd) for VOC and
 air quality standards.           Area.                                                    146.1 tpd of NOX.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.476 is amended by adding paragraphs (h) and (i) to read 
as follows:

§&thnsp;52.476  Control strategy: ozone.

* * * * *
    (h) EPA approves revisions to the District of Columbia State 
Implementation Plan consisting of the attainment demonstration required 
under 40 CFR 51.908 demonstrating attainment of the 1997 ozone NAAQS by 
the applicable attainment date of June 15, 2010 and the failure to 
attain contingency measures for the Washington, DC-MD-VA 1997 8-hour 
ozone moderate nonattainment area submitted by the Acting Director of 
the District of Columbia Department of the Environment on June 12, 
2007.
    (i) EPA approves the following 2009 attainment demonstration and 
2010 motor vehicle emissions budgets (MVEBs) for the Washington, DC-MD-
VA 1997 8-hour ozone moderate nonattainment area submitted by the 
Acting Director of the District of Columbia Department of the 
Environment on June 12, 2007:

                  Transportation Conformity Emissions Budgets for the Washington, DC-MD-VA Area
----------------------------------------------------------------------------------------------------------------
                                                                                             Effective date of
  Type of control strategy SIP          Year            VOC (TPD)          NOX (TPD)      adequacy determination
                                                                                              or SIP approval
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.......               2009               66.5              146.1  February 22, 2013 (78
                                                                                           FR 9044), published
                                                                                           February 7, 2013.
Contingency Measures Plan......               2010  .................              144.3  February 22, 2013 (78
                                                                                           FR 9044), published
                                                                                           February 7, 2013.
----------------------------------------------------------------------------------------------------------------

Subpart V-Maryland

0
4. In §&thnsp;52.1070, the table in paragraph (e) is amended by 
adding the entries for Attainment Demonstration Contingency Measure 
Plan and 8-hour Ozone Modeled Demonstration of Attainment and 
Attainment Plan for the 1997 ozone national ambient air quality 
standards . The added text reads as follows:

§&thnsp;52.1070  Identification of plan.

* * * * *
    (e) * * *

[[Page 19219]]

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable      State submittal
            revision              geographic area          date        EPA Approval date  Additional explanation
----------------------------------------------------------------------------------------------------------------
 
*         *         *&
emsp;        *         *&em
   sp;        *         *
Attainment Demonstration         Washington, DC-MD- June 4, 2007.....  4/10/15 [Insert    2010 motor vehicle
 Contingency Measure Plan.        VA 1997 8-Hour                        Federal Register   emissions budgets of
                                  Ozone                                 citation].         144.3 tons per day
                                  Nonattainment                                            (tpd) NOX.
                                  Area.
8-hour Ozone Modeled             Washington, DC-MD- June 4, 2007.....  4/10/15 [Insert    2009 motor vehicle
 Demonstration of Attainment      VA 1997 8-Hour                        Federal Register   emissions budgets of
 and Attainment Plan for the      Ozone                                 citation].         66.5 tons per day
 1997 ozone national ambient      Nonattainment                                            (tpd) for VOC and
 air quality standards.           Area.                                                    146.1 tpd of NOX.
----------------------------------------------------------------------------------------------------------------

0
5. Section 52.1076 is amended by adding paragraphs (aa) and (bb) to 
read as follows:

§&thnsp;52.1076  Control strategy plans for attainment and rate-
of-progress: Ozone.

* * * * *
    (aa) EPA approves revisions to the Maryland State Implementation 
Plan consisting of the attainment demonstration required under 40 CFR 
51.908 demonstrating attainment of the 1997 ozone NAAQS by the 
applicable attainment date of June 15, 2010 and the failure to attain 
contingency measures for the Washington, DC-MD-VA 1997 8-hour ozone 
moderate nonattainment area submitted by the Secretary of the Maryland 
Department of the Environment on June 4, 2007.
    (bb) EPA approves the following 2009 attainment demonstration and 
2010 motor vehicle emissions budgets (MVEBs) for the Washington, 
DC-MDVA 1997 8-hour ozone moderate nonattainment area submitted 
by the Secretary of the Maryland Department of the Environment on June 
4, 2007:

                  Transportation Conformity Emissions Budgets for the Washington, DC-MD-VA Area
----------------------------------------------------------------------------------------------------------------
                                                                                             Effective date of
  Type of control strategy SIP          Year            VOC (TPD)          NOX (TPD)      adequacy determination
                                                                                              or SIP approval
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.......               2009               66.5              146.1  February 22, 2013 (78
                                                                                           FR 9044), published
                                                                                           February 7, 2013.
Contingency Measures Plan......               2010  .................              144.3  February 22, 2013 (78
                                                                                           FR 9044), published
                                                                                           February 7, 2013.
----------------------------------------------------------------------------------------------------------------

Subpart VV-Virginia

0
6. In §&thnsp;52.2420, the table in paragraph (e) is amended by 
adding the entries for Attainment Demonstration Contingency Measure 
Plan and 8-hour Ozone Modeled Demonstration of Attainment and 
Attainment Plan for the 1997 ozone national ambient air quality 
standards to reads as follows:

§&thnsp;52.2420  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable      State submittal
            revision              geographic area          date        EPA Approval date  Additional explanation
----------------------------------------------------------------------------------------------------------------
 
*         *         *&
emsp;        *         *&em
   sp;        *         *
Attainment Demonstration         Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2010 motor vehicle
 Contingency Measure Plan.        VA 1997 8-Hour                        Federal Register   emissions budgets of
                                  Ozone                                 citation].         144.3 tons per day
                                  Nonattainment                                            (tpd) NOX.
                                  Area.
8-hour Ozone Modeled             Washington, DC-MD- June 12, 2007....  4/10/15 [Insert    2009 motor vehicle
 Demonstration of Attainment      VA 1997 8-Hour                        Federal Register   emissions budgets of
 and Attainment Plan for the      Ozone                                 citation].         66.5 tons per day
 1997 ozone national ambient      Nonattainment                                            (tpd) for VOC and
 air quality standards.           Area.                                                    146.1 tpd of NOX.
----------------------------------------------------------------------------------------------------------------

0
7. Section 52.2428 is amended by adding paragraphs (j) and (k) to read 
as follows:

§&thnsp;52.2428  Control Strategy: Carbon monoxide and ozone.

* * * * *
    (j) EPA approves revisions to the Virginia State Implementation 
Plan consisting of the attainment demonstration required under 40 CFR 
51.908 demonstrating attainment of the 1997 ozone NAAQS by the 
applicable attainment date of June 15, 2010 and the failure to attain 
contingency measures for the Washington, DC-MD-VA 1997 8-hour ozone 
moderate nonattainment area submitted by the Director of the Virginia 
Department of Environment Quality on June 12, 2007.
    (k) EPA approves the following 2009 attainment demonstration and 
2010 motor vehicle emissions budgets (MVEBs) for the Washington, 
DC-MDVA 1997 8-hour ozone moderate

[[Page 19220]]

nonattainment area submitted by the Director of the Virginia Department 
of Environment Quality on June 12, 2007:

                  Transportation Conformity Emissions Budgets for the Washington, DC-MD-VA Area
----------------------------------------------------------------------------------------------------------------
                                                                                             Effective date of
  Type of control strategy SIP          Year            VOC (TPD)          NOX (TPD)      adequacy determination
                                                                                              or SIP approval
----------------------------------------------------------------------------------------------------------------
Attainment Demonstration.......               2009               66.5              146.1  February 22, 2013 (78
                                                                                           FR 9044), published
                                                                                           February 7, 2013.
Contingency Measures Plan......               2010  .................              144.3  February 22, 2013 (78
                                                                                           FR 9044), published
                                                                                           February 7, 2013.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-07957 Filed 4-9-15; 8:45 am]
 BILLING CODE 6560-50-P
```