[Federal Register Volume 83, Number 153 (Wednesday, August 8, 2018)]
[Proposed Rules]
[Pages 39019-39035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16882]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2018-0215; FRL-9981-75--Region 3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the requests from the State of Maryland (Maryland) and the 
Commonwealth of Virginia (Virginia) to redesignate to attainment their 
respective portions of the Washington, DC-MD-VA nonattainment area 
(hereafter ``the Washington Area'' or ``the Area'') for the 2008 8-hour 
ozone national ambient air quality standard (NAAQS or standard) (also 
referred to as the 2008 ozone NAAQS). EPA is not proposing to approve 
the redesignation request for the District of Columbia (the District) 
for its portion of the Area; EPA will address the District's 
redesignation request for its portion of the Area in a separate 
rulemaking action. EPA is also proposing to approve, as a revision to 
the District's, Maryland's, and Virginia's state implementation plans 
(SIPs), the joint maintenance plan submitted by the District, Maryland, 
and Virginia. The joint maintenance plan demonstrates maintenance of 
the 2008 ozone NAAQS through 2030 in the Washington Area. Approval of a 
maintenance plan is among the CAA criteria for redesignation to 
attainment, as discussed in more detail in this notice. The Washington 
Area maintenance plan includes motor vehicle emissions budgets (MVEBs) 
for the 2008 ozone NAAQS for nitrogen oxides (NO<INF>X</INF>) and 
volatile organic compounds (VOCs), which are precursors to ozone. EPA 
has found the MVEBs adequate and is proposing to approve, as a SIP 
revision, these 2014, 2025, and 2030 NO<INF>X</INF> and VOC MVEBs for 
the Washington Area.

DATES: Written comments must be received on or before September 7, 
2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2018-0215 at https://www.regulations.gov, or via email to 
<a href="/cdn-cgi/l/email-protection#e695968f838a848394818394c89593958788a6839687c8818990"><span class="__cf_email__" data-cfemail="3f4c4f565a535d5a4d585a4d114c4a4c5e517f5a4f5e11585049">[email protected]</span></a>. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the For Further Information Contact section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sara Calcinore, (215) 814-2043, or by 
email at <a href="/cdn-cgi/l/email-protection#b8dbd9d4dbd1d6d7cadd96cbd9cad9f8ddc8d996dfd7ce"><span class="__cf_email__" data-cfemail="cdaeaca1aea4a3a2bfa8e3beacbfac8da8bdace3aaa2bb">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What are the actions EPA is proposing?
II. What is the background for these proposed actions?
III. What are the criteria for redesignation?
IV. What is EPA's analysis of Maryland's and Virginia's 
redesignation requests for the Washington Area?
    A. Has the Washington Area attained the 2008 ozone NAAQS?

[[Page 39020]]

    B. Have Maryland and Virginia met all applicable requirements of 
section 110 and part D of the CAA for the Washington Area and does 
the Washington Area have a fully approved SIP under section 110(k) 
of the CAA?
    C. Are the air quality improvements in the Washington Area due 
to permanent and enforceable emission reductions?
    D. Do the District, Maryland, and Virginia have fully approvable 
ozone maintenance plans for the Washington Area?
V. Have the District, Maryland, and Virginia adopted approvable 
MVEBs?
    A. What are the MVEBs?
    B. What is the status of EPA's adequacy determination for the 
proposed 2025 and 2030 VOC and NO<INF>X</INF> MVEBs for the 
Washington Area?
    C. What is a safety margin and how was it allocated?
VI. Proposed Action
VII. General Information Pertaining to SIP Submittals From the 
Commonwealth of Virginia
VIII. Statutory and Executive Order Reviews

I. What are the actions EPA is proposing?

    On March 12, 2018, January 29, 2018, and January 3, 2018, the 
District, Maryland, and Virginia, respectively, formally submitted a 
request to redesignate their portions of the Washington Area from 
marginal nonattainment to attainment for the 2008 ozone NAAQS. 
Concurrently, the District, Maryland, and Virginia formally submitted, 
as a revision to their respective SIPs, a joint maintenance plan for 
the Washington Area to ensure continued attainment for at least 10 
years following redesignation. The maintenance plan includes MVEBs for 
NO<INF>X</INF> and VOC for the years 2014, 2025, and 2030. Pursuant to 
CAA section 107(d)(3), in this rulemaking action, EPA is proposing to 
approve the redesignation requests submitted by Maryland and Virginia 
for their portions of the Washington Area. EPA is not proposing to 
approve (at this time) the redesignation request from the District and 
will act on the District's redesignation request for its portion of the 
Area in a separate action. EPA is also proposing to approve, as 
revisions to the District's, Maryland's, and Virginia's SIPs, the joint 
maintenance plan submitted by the District, Maryland, and Virginia.
    EPA is proposing to take several related actions. EPA is proposing 
to determine that Maryland and Virginia have met the requirements for 
redesignation for their respective portions of the Washington Area 
pursuant to section 107(d)(3)(E) of the CAA. EPA is therefore proposing 
to approve Maryland's and Virginia's redesignation requests and change 
the designation of their respective portions of the Washington Area 
from marginal nonattainment to attainment for the 2008 ozone NAAQS. EPA 
is also proposing to approve, as revisions to the District's, 
Maryland's, and Virginia's SIPs, the joint Washington Area maintenance 
plan that was prepared by the Metropolitan Washington Council of 
Governments (MWCOG) and jointly submitted by the District, Maryland, 
and Virginia. The maintenance plan is designed to ensure continued 
attainment in the Washington Area for the next ten years. Additionally, 
EPA has found the submitted MVEBs adequate and is proposing to approve, 
as revisions to the District's, Maryland's, and Virginia's SIPs, the 
2014, 2025, and 2030 MVEBs for NO<INF>X</INF> and VOC for the 
Washington Area that are identified in the Washington Area maintenance 
plan. The adequacy comment period for the MVEBs began on May 21, 2018, 
with EPA's posting of the availability of the District's, Maryland's, 
and Virginia's maintenance plan submittal on EPA's Adequacy website (at 
https://www.epa.gov/state-and-local-transportation). The adequacy 
comment period for these MVEBs ended on June 20, 2018. EPA did not 
receive any adverse comments on this submittal during the adequacy 
comment period. In letters dated July 24, 2018, EPA informed the 
District, Maryland, and Virginia that the 2014, 2025, and 2030 MVEBs 
are adequate for use in transportation conformity analyses.\1\ Please 
see section V.B., ``What Is the Status of EPA's Adequacy Determination 
for the Proposed NO<INF>X</INF> and VOC MVEBs for the Washington 
Area?'', of this rulemaking for further explanation of this process.
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    \1\ EPA originally informed the District, Maryland, and Virginia 
that the 2014, 2025, and 2030 MVEBs were adequate for use in 
transportation conformity analyses in letters dated July 18, 2018. 
EPA revised language in these letters and sent the revised letters 
to the District, Maryland, and Virginia on July 24, 2018. The 
original and revised letters are available online at https://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.
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II. What is the background for these proposed actions?

    Under the CAA, EPA establishes NAAQS for criteria pollutants in 
order to protect human health and the environment. In response to 
scientific evidence linking ozone exposure to adverse health effects, 
EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 
1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA 
requires EPA to review and reevaluate the NAAQS every 5 years in order 
to consider updated information regarding the effects of the criteria 
pollutants on human health and the environment. On July 18, 1997, EPA 
promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS, 
of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone 
NAAQS was determined to be more protective of public health than the 
previous 1979 1-hour ozone NAAQS. In 2008, EPA strengthened the 8-hour 
ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm standard is referred 
to as the 2008 ozone NAAQS. See 73 FR 16436 (March 27, 2008).
    Upon promulgation of a new or revised NAAQS, section 107(d)(1)(B) 
of the CAA requires EPA to designate as nonattainment any areas that 
are violating the NAAQS based on the most recent three years of 
quality-assured ozone monitoring data. On May 21, 2012 and June 11, 
2012, EPA designated nonattainment areas for the 2008 ozone NAAQS. 77 
FR 30088 and 77 FR 34221. Effective July 20, 2012, the Washington Area 
was designated as marginal nonattainment for the 2008 ozone NAAQS. The 
Washington Area consists of the Counties of Calvert, Charles, 
Frederick, Montgomery, and Prince George's in Maryland, the Counties of 
Arlington, Fairfax, Loudoun, and Prince William and the Cities of 
Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park Cities 
in Virginia, and the District of Columbia. See 40 CFR 81.309, 81.321, 
and 81.347.
    As stated previously, on March 12, 2018, January 29, 2018, and 
January 3, 2018, the District, Maryland, and Virginia, respectively, 
formally submitted requests to redesignate their respective portions of 
the Washington Area from marginal nonattainment to attainment for the 
2008 ozone NAAQS. The District, Maryland, and Virginia concurrently 
submitted, as revisions to their SIPs, a maintenance plan for the 
Washington Area to ensure continued attainment for at least 10 years 
following redesignation. In this rulemaking action, EPA is proposing to 
approve the redesignation requests submitted by Maryland and Virginia 
for their respective portions of the Area. EPA is not proposing to 
approve the redesignation request for the District for its portion and 
will act on the redesignation request for the District in a separate 
action. EPA is also proposing to approve, as revisions to the 
District's, Maryland's, and Virginia's SIPs, the maintenance plan 
jointly submitted by the District, Maryland, and Virginia.

[[Page 39021]]

III. What are the criteria for redesignation?

    Section 107(d)(3)(E) of the CAA allows redesignation of an area to 
attainment of the NAAQS provided that: (1) The Administrator (EPA) 
determines that the area has attained the applicable NAAQS; (2) the 
Administrator has fully approved the applicable implementation plan for 
the area under section 110(k) of the CAA; (3) the Administrator 
determines that the improvement in air quality is due to permanent and 
enforceable reductions in emissions resulting from implementation of 
the applicable SIP, applicable federal air pollutant control 
regulations, and other permanent and enforceable emission reductions; 
(4) the Administrator has fully approved a maintenance plan for the 
area as meeting the requirements of section 175A of the CAA; and (5) 
the State containing the area has met all requirements applicable to 
the area for purposes of redesignation under section 110 and part D of 
the CAA.
    On April 16, 1992, EPA provided guidance on redesignations in the 
General Preamble for the Implementation of Title I of the CAA 
Amendments of 1990 (57 FR 13498) and supplemented this guidance on 
April 28, 1992 (57 FR 18070). EPA has provided further guidance on 
processing redesignation requests in the following documents:

1. ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from Bill Laxton, Director, Technical Support Division, 
June 18, 1990;
2. ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
3. ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
4. ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (the ``Calcagni 
memorandum'');
5. ``State Implementation Plan (SIP) Actions Submitted in Response 
to Clean Air Act (CAA) Deadlines,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, October 28, 1992;
6. ``Technical Support Documents (TSDs) for Redesignation of Ozone 
and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G.T. 
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
7. ``State Implementation Plan (SIP) requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) 
On or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993 (the ``Shapiro memorandum'');
8. ``Use of Actual Emissions in Maintenance Demonstrations for Ozone 
and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting 
Director, Air Quality Management Division, November 30, 1993;
9. ``Part D New Source Review (part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
10. ``Reasonable Further Progress, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995.

IV. What is EPA's analysis of Maryland's and Virginia's redesignation 
requests for the Washington Area?

A. Has the Washington Area attained the 2008 ozone NAAQS?

    For redesignation of a nonattainment area to attainment, the CAA 
requires EPA to determine that the area has attained the applicable 
NAAQS. See CAA section 107(d)(3)(E)(i). An area is attaining the 2008 
ozone NAAQS if it meets the 2008 ozone NAAQS, as determined in 
accordance with 40 CFR 50.15 and appendix P of part 50, based on three 
complete, consecutive calendar years of quality-assured air quality 
data for all monitoring sites in the area. To attain the NAAQS, the 
three-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentrations, referred to as ozone design values, at 
each monitor must not exceed 0.075 ppm.\2\ The air quality data must be 
collected and quality-assured in accordance with 40 CFR part 58 and 
recorded in EPA's Air Quality System (AQS). Ambient air quality 
monitoring data for the 3-year period must also meet data completeness 
requirements. An ozone design value is valid if daily maximum 8-hour 
average concentrations are available for at least 90 percent of the 
days within the ozone monitoring season,\3\ on average, for the three-
year period, with a minimum data completeness of 75 percent during the 
ozone monitoring season of any year during the three-year period. See 
section 2.3 of appendix P to 40 CFR part 50.
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    \2\ The rounding convention under 40 CFR part 50, appendix P 
dictates that concentrations shall be reported in ppm to the third 
decimal place, with additional digits to the right of the third 
decimal place truncated. Thus, a computed three-year average ozone 
concentration of 0.0759 ppm or lower would meet the standard, but 
0.0760 ppm or higher would be over the standard.
    \3\ The ozone season is defined by state in 40 CFR 58 appendix 
D. For the 2013-2015 time period, the ozone season was April-October 
for the states in the Area. Beginning in 2016, the ozone season is 
March-October for the states in the Washington Area. See 80 FR 
65292, 65466-67 (October 26, 2015).
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    As part of the final rule, ``Implementation of the 2008 National 
Ambient Air Quality Standards for Ozone: State Implementation Plan 
(SIP) Requirements,'' for the 2008 ozone NAAQS (80 FR 12264, March 6, 
2015) (hereinafter, SIP Requirements Rule), EPA modified the maximum 
attainment dates for all nonattainment areas for the 2008 ozone NAAQS 
to be consistent with the United States Court of Appeals for the 
District of Columbia Circuit's (D.C. Circuit) decision in NRDC v. EPA, 
777 F .3d 456, 464-69 (D.C. Cir. 2014).\4\ The SIP Requirements Rule 
established a maximum deadline for marginal nonattainment areas to 
attain the 2008 ozone NAAQS of three years from the effective date of 
designation, or July 20, 2015. See 80 FR at 12268; 40 CFR 51.1103.\5\
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    \4\ In a final rule published on May 21, 2012 and effective July 
20, 2012, EPA established the air quality thresholds that define the 
classification assigned to all nonattainment areas for the 2008 
ozone NAAQS (the Classifications Rule). See 77 FR 30160. This 
rulemaking also established December 31 of each relevant calendar 
year as the attainment date for all nonattainment area 
classification categories. Section 181 of the CAA provides that the 
attainment deadline for ozone nonattainment area is ``as 
expeditiously as practicable'' but no later than the prescribed 
dates that are provided in Table 1 of that section. In the 
Classifications Rule, EPA translated the deadlines in Table 1 of CAA 
section 181 for purposes of the 2008 standard by measuring those 
deadlines from the effective date of the new designations, but 
extended those deadlines by several months to December 31 of the 
corresponding calendar year. Pursuant to a challenge of EPA's 
interpretation of the attainment deadlines, on December 23, 2014, 
the D.C. Circuit issued a decision rejecting, among other things, 
the Classifications Rule's attainment deadlines for the 2008 ozone 
nonattainment areas, finding that EPA did not have statutory 
authority under the CAA to extend those deadlines to the end of the 
calendar year. NRDC v. EPA, 777 F .3d 456, 464-69 (D.C. Cir. 2014).
    \5\ On February 16, 2018, the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Cir. Court) issued an opinion 
on the SIP Requirements Rule. South Coast Air Quality Mgmt. Dist. v. 
EPA, No. 15-1115 (D.C. Cir. Feb. 16, 2018). The D.C. Cir. Court 
found certain provisions from the SIP Requirements Rule unreasonable 
including EPA's provision for a ``redesignation substitute.'' The 
D.C. Cir. Court vacated these provisions and found redesignations 
must comply with all required elements in CAA section 107(d)(3) and 
thus found the ``redesignation substitute'' which did not require 
all items in CAA section 107(d)(3)(E) violated the CAA and was thus 
unreasonable. The D.C. Cir. Court also vacated other provisions 
relating to anti-backsliding in the SIP Requirements Rule as the 
Court found them unreasonable. Id. The D.C. Circuit found other 
parts of the 2008 Ozone SIP Requirements Rule unrelated to anti-
backsliding and this action reasonable and denied the petition for 
appeal on those. Id.

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[[Page 39022]]

    In a final rulemaking action published on May 4, 2016, EPA 
determined that the Washington Area did not attain the 2008 ozone NAAQS 
by its July 20, 2015 attainment date, based on ambient air quality 
monitoring data for the 2012-2014 monitoring period. In that same 
action, EPA determined that the Washington Area qualified for a 1-year 
extension of its attainment date, as provided in section 181(a)(5) of 
the CAA and interpreted by regulation at 40 CFR 51.1107. With that 
final rulemaking action, the new attainment date for the Washington 
Area was July 20, 2016. See 81 FR 26697 (May 4, 2016).
    On November 14, 2017 (82 FR 52651), in accordance with section 
181(b)(2)(A) of the CAA and Provisions for Implementation of the 2008 
Ozone NAAQS (40 CFR part 51, subpart AA), EPA made a determination that 
the Washington Area attained the 2008 ozone NAAQS by the July 20, 2016 
attainment date. EPA's determination was based upon three years of 
complete, certified, and quality-assured data for the 2013-2015 
monitoring period.
    In addition, EPA has reviewed the most recent ambient air quality 
monitoring data for ozone in the Area, including preliminary 2017 
design values, as submitted by the District, Maryland, and Virginia and 
recorded in EPA's AQS. The quality-assured, quality-controlled, and 
state-certified 2014 to 2016 ozone air quality data shows that the 
Washington Area continues to attain the 2008 ozone NAAQS. This data, as 
well as the preliminary design values for 2017, are summarized in Table 
1 and are also included in the docket for this rulemaking available 
online at http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.

                Table 1--Washington Area 2014-2016 and Preliminary 2015-2017 Ozone Design Values
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                                                         Annual 4th highest reading (ppm)   2014-2016  2015-2017
                            Site                       ------------------------------------   design     design
     AQS Site ID        description      Jurisdiction                                         value      value
                                                          2014     2015     2016     2017     (ppm)    (ppm) \6\
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11-001-0041 \7\.....  420 34th Street  District of      .......  .......    0.065    0.056      0.056      0.060
                       NE,              Columbia.
                       Washington, DC
                       20019.
11-001-0043.........  2500 1st Street  District of        0.068    0.072    0.072    0.071      0.070      0.071
                       NW,              Columbia.
                       Washington, DC.
11-001-0050.........  300 Van Buren    District of        0.069     0.72    0.071    0.067      0.070      0.070
                       Street NW,       Columbia.
                       Washington, DC
                       20012.
24-009-0011.........  350 Stafford     Maryland.......    0.070    0.067    0.070    0.066      0.069      0.067
                       Road.
24-017-0010.........  14320 Oaks Road  Maryland.......    0.070    0.068    0.073    0.068      0.070      0.069
24-021-0037.........  Frederick        Maryland.......    0.063    0.070    0.070    0.067      0.067      0.069
                       County Airport.
24-031-3001.........  Lathrop E.       Maryland.......    0.064    0.072    0.068    0.065      0.068      0.068
                       Smith
                       Environmental
                       Education
                       Center.
24-033-0030.........  Howard           Maryland.......    0.065    0.072    0.070    0.069      0.069      0.070
                       University's
                       Beltsville
                       Laboratory.
24-033-8003.........  PG County        Maryland.......    0.069    0.069    0.073    0.072      0.070      0.071
                       Equestrian
                       Center.
24-033-9991.........  Powder Mill      Maryland.......    0.069    0.067    0.070    0.070      0.068      0.069
                       Rd., Laurel,
                       MD 20708.
51-013-0020.........  S 18th and       Virginia.......    0.071    0.073    0.072    0.070      0.072      0.071
                       Hayes St..
51-059-0030.........  STA. 46-B9, Lee  Virginia.......    0.065    0.072    0.073    0.068      0.070      0.071
                       Park,
                       Telegraph Road.
51-107-1005.........  38-I, Broad Run  Virginia.......    0.063    0.071    0.068    0.066      0.067      0.068
                       High School,
                       Ashburn.
51-153-0009.........  James S. Long    Virginia.......    0.062    0.067    0.067    0.065      0.065      0.066
                       Park.
----------------------------------------------------------------------------------------------------------------

    The Washington Area's most recent monitoring data supports EPA's 
previous determination that the Area has attained, and continues to 
attain, the 2008 ozone NAAQS. In addition, as discussed subsequently 
with respect to the maintenance plan for the Washington Area, Maryland 
and Virginia have committed to continue monitoring ambient ozone 
concentrations in accordance with 40 CFR part 58. Therefore, EPA is 
proposing to determine that the Washington Area continues to attain the 
2008 8-hour ozone NAAQS, which is required by CAA section 
107(d)(3)(E)(i) for redesignation of a nonattainment area to 
attainment.
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    \6\ As noted previously, the 2017 design values are preliminary.
    \7\ The 2014 and 2015 data at monitoring site 11-001-0041 (also 
referred to as ``the River Terrace monitor'') is incomplete. 
Therefore, the 2016 and 2017 design values are invalid. The River 
Terrace monitor was temporarily shut down in March 2014 due to 
renovations at the monitoring site. The River Terrace monitor was 
reinstated in 2016, and began operation in May 2016. The temporary 
shutdown of the River Terrace monitor is discussed in more detail in 
the TSD for this rulemaking action available online at https://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.
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B. Have Maryland and Virginia met all applicable requirements of 
section 110 and part D of the CAA for the Washington Area and does the 
Washington Area have a fully approved SIP under section 110(k) of the 
CAA?

    EPA has determined that Maryland and Virginia have met all SIP 
requirements applicable for purposes of this redesignation of the 
Maryland and Virginia portions of the Washington Area under section 110 
of the CAA (General SIP Requirements) and that they have met all 
applicable SIP requirements under part D of Title I of the CAA, in 
accordance with section 107(d)(3)(E)(v). In addition, EPA has 
determined that the Maryland and Virginia SIPs are fully approved with 
respect to all requirements applicable for purposes of redesignation in 
accordance with section 107(d)(3)(E)(ii). In making these 
determinations, EPA ascertained what requirements are applicable to the 
Area and determined that the portions of the Maryland and Virginia SIPs 
meeting these requirements are fully approved under section 110(k) of 
the CAA. We note that SIPs must be fully approved only with respect to 
applicable requirements.
    The September 4, 1992 Calcagni memorandum (``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E) with respect to the timing of applicable requirements. 
Under this interpretation, to qualify for redesignation, states 
requesting redesignation to attainment must meet only the relevant CAA 
requirements that come due prior to the submittal of a complete 
redesignation request. See also Shapiro memorandum, September 17, 1993, 
and 60 FR 12459, 12465-12466, (March 7, 1995)

[[Page 39023]]

(redesignation of Detroit-Ann Arbor).\8\ Applicable requirements of the 
CAA that come due subsequent to the area's submittal of a complete 
redesignation request remain applicable until a redesignation is 
approved, but are not required as a prerequisite to redesignation. 
Section 175A(c) of the CAA. Sierra Club v. EPA, 375 F .3d 537 (7th Cir. 
2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the 
St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS).
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    \8\ The Calcagni memorandum and Shapiro memorandum are included 
in the docket for this rulemaking available online at http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.
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1. Maryland and Virginia Have Met All Applicable Requirements of 
Section 110 and Part D of the CAA Applicable to the Washington Area for 
Purposes of Redesignation
a. Section 110 General Requirements for SIPs
    Section 110(a)(2) of Title I of the CAA contains the general 
requirements for a SIP, which include enforceable emissions limitations 
and other control measures, means, or techniques, provisions for the 
establishment and operation of appropriate devices necessary to collect 
data on ambient air quality, and programs to enforce the limitations. 
The general SIP elements and requirements set forth in section 
110(a)(2) include, but are not limited to, the following: (1) Submit a 
SIP that has been adopted by the state after reasonable public notice 
and hearing; (2) include enforceable emission limitations and other 
control measures, means, or techniques necessary to meet the 
requirements of the CAA; (3) provide for establishment and operation of 
appropriate devices, methods, systems and procedures necessary to 
monitor ambient air quality; (4) provide for implementation of a source 
permit program to regulate the modification and construction of 
stationary sources within the areas covered by the plan; (5) include 
provisions for the implementation of part C prevention of significant 
deterioration (PSD) and part D new source review (NSR) permit programs; 
(6) include provisions for stationary source emission control measures, 
monitoring, and reporting; (7) include provisions for air quality 
modeling; and, (8) provide for public and local agency participation in 
planning and emission control rule development.
    Section 110(a)(2)(D) of the CAA requires SIPs to contain certain 
measures to prevent sources in a state from significantly contributing 
to air quality problems in another state. To implement this provision, 
EPA has required certain states to establish programs to address 
transport of air pollutants, in accordance with the NO<INF>X</INF> SIP 
Call,\9\ amendments to the NO<INF>X</INF> SIP Call, May 14, 1999 (64 FR 
26298), and March 2, 2000 (65 FR 11222), and the Cross-State Air 
Pollution Rule (CSAPR) Update, October 26, 2016 (81 FR 74504). However, 
the section 110(a)(2)(D) SIP requirements are not linked with a 
particular area's ozone designation and classification. EPA concludes 
that the SIP requirements linked with an area's ozone designation and 
classification are the relevant measures to evaluate when reviewing a 
redesignation request for the area. The section 110(a)(2)(D) 
requirements, where applicable, continue to apply to a state regardless 
of the designation (or redesignation) of any one particular area within 
the state. Thus, these requirements are not applicable requirements for 
purposes of redesignation. See 65 FR 37890 (June 15, 2000), 66 FR 50399 
(October 19, 2001), and 68 FR 25418, 25426-25427 (May 13, 2003).
---------------------------------------------------------------------------

    \9\ On October 27, 1998 (63 FR 57356), EPA finalized the 
``Finding of Significant Contribution and Rulemaking for Certain 
States in the Ozone Transport Assessment Group Region for Purposes 
of Reducing Regional Transport of Ozone''--commonly called the 
NO<INF>X</INF> SIP Call. The NO<INF>X</INF> SIP call requires the 
District of Columbia and 22 states to reduce emissions of 
NO<INF>X</INF> in order to reduce the transport of ozone and ozone 
precursors. EPA developed the NO<INF>X</INF> Budget Trading Program, 
an allowance trading program that states could adopt to meet their 
obligations under the NO<INF>X</INF> SIP Call. The NO<INF>X</INF> 
Budget Trading Program allowed electric generating units (EGUs) 
greater than 25 megawatts and industrial non-electric generating 
units, such as boilers and turbines, with a rated heat input greater 
than 250 million British thermal units per hour (MMBtu/hr), referred 
to as ``large non-EGUs'', to participate in a regional 
NO<INF>X</INF> cap and trade program. The NO<INF>X</INF> SIP call 
also established reduction requirements for other non-EGUs, 
including cement kilns and stationary internal combustion (IC) 
engines.
---------------------------------------------------------------------------

    Similarly, other section 110 elements that are neither connected 
with attainment plan submissions nor linked with an area's ozone 
attainment status are not applicable requirements for purposes of 
redesignation. An area that is redesignated from nonattainment to 
attainment will remain subject to these statewide requirements after 
the area is redesignated to attainment of the 2008 ozone NAAQS. The 
section 110(a)(2) requirements, which are linked with a particular 
area's designation and classification, are the relevant measures to 
evaluate in reviewing a redesignation request. The section 110(a)(2) 
elements not linked to the area's nonattainment status are not 
applicable for purposes of redesignation. This approach is consistent 
with EPA's existing policy on applicability (e.g., for redesignations) 
of conformity and oxygenated fuels requirements, as well as with 
section 184 ozone transport region (OTR) requirements. See, e.g., 
Reading, Pennsylvania, proposed and final rulemakings for 
redesignation, 61 FR 53174-53176 (October 10, 1996) and 62 FR 24826 
(May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking for 
redesignation, 61 FR 20458 (May 7, 1996); and Tampa, Florida final 
rulemaking for redesignation, 60 FR 62748 (December 7, 1995). For 
further information and analysis, see the discussion of this issue in 
the Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), 
and the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, 
October 19, 2001).
    EPA has reviewed Maryland's and Virginia's SIPs and concludes that 
they meet the general SIP requirements under section 110 of the CAA, to 
the extent those requirements are applicable for purposes of 
redesignation. On November 17, 2014 (79 FR 62010) and March 27, 2014 
(79 FR 17043), EPA approved elements of the SIPs submitted by Maryland 
and Virginia, respectively, which, with the exception of interstate 
transport, meet the requirements of CAA section 110(a)(2), for the 2008 
ozone NAAQS. As explained previously, the general requirements of 
section 110(a)(2) are statewide requirements that are not linked to the 
2008 8-hour ozone nonattainment status of the Washington Area and are 
therefore not ``applicable requirements'' for purpose of the review of 
Maryland's and Virginia's 2008 ozone NAAQS redesignation requests. 
Because Maryland's and Virginia's SIPs satisfy all of the general SIP 
elements and requirements set forth in CAA section 110(a)(2) applicable 
to and necessary for redesignation, EPA concludes that Maryland and 
Virginia have satisfied the criterion of section 107(d)(3)(E) regarding 
section 110 of the CAA.
b. Part D Requirements
    Areas designated nonattainment for the ozone NAAQS are subject to 
the applicable nonattainment area and ozone-specific planning 
requirements of part D of the CAA. Sections 172-176 of the CAA, found 
in subpart 1 of part D, set forth the basic nonattainment requirements 
for all nonattainment areas. Section 172(c), under part D of the CAA, 
sets forth the basic requirements of air quality plans for states with 
nonattainment areas for all pollutants that are required to submit

[[Page 39024]]

plans pursuant to section 172(b). Section 182 of the CAA, found in 
subpart 2 of part D, establishes specific requirements for ozone 
nonattainment areas depending on the areas' nonattainment 
classifications.\10\ The Washington Area was classified as marginal 
under subpart 2 of part D of the CAA for the 2008 ozone NAAQS. As such, 
the Area is subject to the subpart 1 requirements contained in CAA 
sections 172(c) and 176. The Area is also subject to the subpart 2 
requirements contained in CAA section 182(a) (marginal nonattainment 
area requirements), which include, but are not limited to, submitting a 
baseline emissions inventory, adopting a SIP requiring emissions 
statements from stationary sources, and implementing a nonattainment 
NSR (NNSR) program for the relevant ozone standard. A thorough 
discussion of the requirements contained in CAA sections 172(c) and 182 
can be found in the General Preamble for Implementation of Title I (57 
FR 13498).
---------------------------------------------------------------------------

    \10\ Ozone nonattainment areas are classified based on the 
severity of their ozone levels (as determined based on the area's 
``design value,'' which represents air quality in the area for the 
most recent 3 years). The possible classifications for ozone 
nonattainment areas are Marginal, Moderate, Serious, Severe, and 
Extreme. See CAA section 181(a)(1).
---------------------------------------------------------------------------

    Additionally, states located in the OTR, which includes Maryland 
and portions of Virginia,\11\ are also subject to the requirements of 
CAA section 184. All areas located in the OTR, both attainment and 
nonattainment, are subject to additional control requirements under 
section 184 for the purpose of reducing interstate transport of 
emissions that may contribute to downwind ozone nonattainment. The 
section 184 requirements include reasonably available control 
technology (RACT), NSR, enhanced vehicle inspection and maintenance (I/
M), and Stage II vapor recovery or a comparable measure relating to 
gasoline dispensing facilities.
---------------------------------------------------------------------------

    \11\ The OTR is comprised of the states of Connecticut, 
Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, 
New York, Pennsylvania, and the Consolidated Metropolitan 
Statistical Area, which includes the District of Columbia and 
portions of Virginia. The areas designated as in the Virginia 
portion of the OTR are as follows: Arlington County, Fairfax County, 
Loudoun County, Prince William County, Stafford County, Alexandria 
City, Fairfax City, Falls Church City, Manassas City, and Manassas 
Park City. See, e.g. ``Approval and Promulgation of Air Quality 
Implementation Plans; Virginia; NSR in the Ozone Transport Region'', 
71 FR 39570 (July 13, 2006) and 71 FR 890 (January 6, 2006).
---------------------------------------------------------------------------

    EPA has interpreted the section 184 OTR requirements, including the 
NSR program, as not being applicable for purposes of redesignation. The 
rationale for this is based on two considerations. First, the 
requirement to submit SIP revisions for the section 184 requirements 
continues to apply to areas in the OTR even after redesignation to 
attainment. Therefore, states remain obligated to have NSR, as well as 
RACT, and I/M programs, even after redesignation. Second, the section 
184 control measures are region-wide requirements and do not apply to 
the area by virtue of the area's designation and classification, and 
thus are properly considered not relevant to an action changing an 
area's designation. See 61 FR 53174, 53175-53176 (October 10, 1996) and 
62 FR 24826, 24830-24832 (May 7, 1997).
i. CAA Section 172 Requirements
    As provided in CAA part D, subpart 2, for marginal ozone 
nonattainment areas such as the Washington Area, the ozone specific 
requirements of section 182(a) supersede (where overlapping) the 
attainment planning requirements that would otherwise apply under 
section 172(c), including the attainment demonstration and reasonably 
available control measures (RACM) under section 172(c)(1), reasonable 
further progress (RFP) under section 172(c)(2), and contingency 
measures under section 172(c)(9). 42 U.S.C. 7511a(a).
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate, and current inventory of actual emissions. 
This requirement is superseded by the inventory requirement in section 
182(a)(1) discussed later in this notice.
    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified sources in an area, and 
section 172(c)(5) requires source permits for the construction and 
operation of new and modified major stationary sources anywhere in the 
nonattainment area (NNSR). As explained previously, the Washington Area 
is included in the OTR established by Congress in section 184 of the 
CAA. Therefore, sources located in Maryland and the portions of 
Virginia included in the OTR will remain subject to the part D NNSR 
requirements even after the Washington Area is redesignated to 
attainment. Since the part D NNSR requirements apply to the Washington 
Area regardless of its attainment status, they are not considered to be 
relevant for purposes of redesignation. Regardless, Maryland and 
Virginia both have an approved NNSR program. See 82 FR 45475 (September 
29, 2017) and 64 FR 51047 (September 21, 1999).
    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the NAAQS. Because attainment 
has been reached in the Area, EPA finds no additional measures are 
needed in the SIPs to provide for attainment.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As noted previously, Maryland's and 
Virginia's SIPs meet the applicable requirements of section 110(a)(2) 
for purposes of redesignation.
ii. CAA Section 176 Conformity Requirements
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirement to determine conformity applies to transportation plans, 
programs, and projects that are developed, funded, or approved under 
title 23 of the United States Code (U.S.C.) and the Federal Transit Act 
(transportation conformity) as well as to all other federally supported 
or funded projects (general conformity). State transportation 
conformity SIP revisions must be consistent with federal conformity 
regulations relating to consultation, enforcement, and enforceability 
that EPA promulgated pursuant to its authority under the CAA.
    EPA interprets the conformity SIP requirements \12\ as not 
applicable for purposes of evaluating a redesignation request under 
section 107(d) because state conformity rules are still required after 
redesignation and federal conformity rules apply where state conformity 
rules have not been approved. See Wall v. EPA, 265 F .3d 426 (6th Cir. 
2001) (upholding this interpretation); see also 60 FR 62748 (December 
7, 1995) (redesignation of Tampa, Florida).
---------------------------------------------------------------------------

    \12\ CAA section 176(c)(4)(E) requires states to submit 
revisions to their SIPs to reflect certain federal criteria and 
procedures for determining transportation conformity. Transportation 
conformity SIPs are different from SIPs requiring the development of 
Motor Vehicle Emission Budgets (MVEBs), such as control strategy 
SIPs and maintenance plans.
---------------------------------------------------------------------------

iii. Section 182 Requirements
    Section 182(a)(1) requires states to submit a comprehensive, 
accurate, and current inventory of actual emissions from sources of 
NO<INF>X</INF> and VOC emitted within the boundaries of the ozone 
nonattainment area. On July 17, 2014, the District and Virginia 
submitted a joint 2011 base year emissions inventory addressing 
NO<INF>X</INF> and VOC emissions, as well as carbon monoxide (CO) 
emissions, for the Washington Area. On

[[Page 39025]]

August 4, 2014, Maryland submitted its 2011 base year emissions 
inventory for the Washington Area, which also addressed NO<INF>X</INF>, 
VOC, and CO. EPA approved the District's, Maryland's, and Virginia's 
base year emissions inventories for NO<INF>X</INF> and VOC for the 2008 
ozone NAAQS on May 13, 2015 (80 FR 27255). On July 23, 2015 (80 FR 
43625), EPA approved the District's, Maryland's, and Virginia's base 
year emission inventories for CO.
    Under section 182(a)(2)(A), states with ozone nonattainment areas 
that were designated prior to the enactment of the 1990 CAA amendments 
were required to submit, within six months of classification, all rules 
and corrections to existing RACT rules that were required under section 
172(b)(3) prior to the 1990 CAA amendments. EPA approved Maryland's and 
Virginia's SIP revisions satisfying the section 182(a)(2) RACT ``fix-
up'' requirement on March 31, 1994 (59 FR 15117) and November 29, 1994 
(59 FR 60908).
    Section 182(c)(3) of the CAA requires areas classified as serious 
and above to adopt and implement an enhanced I/M program. The 
Washington Area was classified as severe for the 1979 1-hour ozone 
NAAQS, and therefore enhanced I/M was required. In addition, section 
184(b)(1)(a) of the CAA requires areas located in the OTR that are a 
metropolitan statistical area, or part thereof, with a population of 
100,000 or more to meet the enhanced I/M program requirements of CAA 
section 182(c)(3). EPA approved Maryland's enhanced I/M program into 
Maryland's SIP on October 29, 1999 (64 FR 58340). EPA approved 
Virginia's enhanced I/M program on September 1, 1999 (64 FR 47670), as 
revised April 22, 2008 (73 FR 21540).
    CAA section 182(a)(2)(C) and section 182(a)(4) contain source 
permitting and offset requirements (known as NNSR). As discussed 
previously, part D NNSR will continue to apply to the Washington Area, 
regardless of attainment status, due to the Washington Area being part 
of the OTR. Therefore, EPA concludes that Maryland and Virginia need 
not have a fully approved part D NSR program prior to approval of the 
redesignation request. As stated previously, however, Maryland and 
Virginia both have an approved NNSR program. See 82 FR 45475 (September 
29, 2017) for Maryland and 64 FR 51047 (September 21, 1999) for 
Virginia. On January 29, 2018 (83 FR 3982), EPA approved Maryland's May 
8, 2017 SIP revision addressing the NNSR requirements for the 2008 
ozone NAAQS and certifying that Maryland's existing NNSR program 
covering Maryland's portion of the Washington Area is at least as 
stringent as the requirements at 40 CFR 51.165, as amended by the SIP 
Requirements Rule. On May 11, 2017, Virginia formally submitted a SIP 
revision to address the specific NNSR requirements for the 2008 ozone 
NAAQS, located in 40 CFR 51.160-165. In Virginia's SIP revision, 
Virginia is certifying that its existing NNSR program covering 
Virginia's portion of the Washington Area is at least as stringent as 
the requirements at 40 CFR 51.165, as amended by the SIP Requirements 
Rule. EPA proposed approval of Virginia's May 11, 2017 SIP revision 
addressing the NNSR requirements for the 2008 ozone NAAQS on April 4, 
2018 (83 FR 14386).\13\
---------------------------------------------------------------------------

    \13\ While not prejudging the outcome of EPA's rulemaking on 
Virginia's May 11, 2017 SIP revision, EPA expects to finalize 
rulemaking on that NNSR SIP revision before taking final action on 
this redesignation action.
---------------------------------------------------------------------------

    Section 182(a)(3) requires states to submit periodic emission 
inventories and a revision to the SIP to require the owners or 
operators of stationary sources to annually submit emission statements 
documenting actual NO<INF>X</INF> and VOC emissions. Maryland and 
Virginia submit periodic emission inventories as required by CAA 
section 182(a)(3). As stated above, EPA approved the District's, 
Maryland's, and Virginia's base year emissions inventories for 
NO<INF>X</INF> and VOC for the 2008 ozone NAAQS on May 13, 2015 (80 FR 
27255). With regard to stationary source emission statements, EPA 
approved Maryland's and Virginia's emission statement rules on October 
12, 1994 (59 FR 51517) and May 2, 1995 (60 FR 21451), respectively, 
which satisfied the requirements of CAA section 182(a)(3)(B). 
Maryland's and Virginia's emission statement rules require certain 
sources in ozone nonattainment areas and the OTR to report annual 
NO<INF>X</INF> and VOC emissions. EPA approved Maryland's and 
Virginia's emission statement certification SIPs (finding Maryland and 
Virginia had an emission statement program meeting section 182(a)(3) 
requirements for the 2008 ozone NAAQS) on July 16, 2018 (83 FR 32796) 
and June 1, 2018 (83 FR 25378), respectively.
    Therefore, Maryland and Virginia have satisfied all applicable SIP 
requirements under section 110 and part D of title I of the CAA for 
purposes of redesignation of their respective portions of the 
Washington Area. As noted previously, EPA will act on the District's 
redesignation request for its portion of the Washington Area in a 
separate rulemaking.
2. Maryland and Virginia Have Fully Approved SIPs for Purposes of 
Redesignation Under Section 110(k) of the CAA
    At various times, Maryland and Virginia have adopted and submitted, 
and EPA has approved, provisions addressing the various SIP elements 
applicable for the ozone NAAQS. As discussed previously, EPA has fully 
approved Maryland's and Virginia's SIPs for the Washington Area under 
section 110(k) for all requirements applicable for purposes of 
redesignation under the 2008 ozone NAAQS. EPA may rely on prior SIP 
approvals in approving a redesignation request (see the Calcagni 
memorandum at page 3; Southwestern Pennsylvania Growth Alliance v. 
Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 
426), plus any additional measures it may approve in conjunction with a 
redesignation action (see 68 FR 25426 (May 12, 2003) and citations 
therein).

C. Are the air quality improvements in the Washington area due to 
permanent and enforceable emission reductions?

    To redesignate an area from nonattainment to attainment, section 
107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air 
quality improvement in the area is due to permanent and enforceable 
reductions in emissions resulting from the implementation of the SIP 
and applicable federal air pollution control regulations and other 
permanent and enforceable emission reductions. Maryland and Virginia 
have demonstrated that the observed ozone air quality improvement in 
the Washington Area is due to permanent and enforceable reductions in 
NO<INF>X</INF> and VOC emissions resulting from Maryland and Virginia 
measures approved as part of the SIP as well as federal measures.
    In making this demonstration, Maryland and Virginia have calculated 
the change in emissions between 2011 and 2014. The change in emissions 
is shown in Table 2. Maryland and Virginia attribute the decrease in 
emissions and corresponding improvement in air quality during this time 
period to a number of regulatory control measures that have been 
implemented in the Washington Area and upwind areas in recent years. 
Based on the information summarized in the following sections, Maryland 
and Virginia have adequately demonstrated that the improvement in air 
quality is due to permanent and enforceable emissions reductions.

[[Page 39026]]

1. Permanent and Enforceable Emission Controls Implemented
a. Federal Emission Control Measures
    A variety of federal and state control programs have contributed to 
reduced on-road, point source, and nonroad emissions of NO<INF>X</INF> 
and VOC in the Washington Area, with additional emission reductions 
expected to occur in the future as older equipment and vehicles are 
replaced with newer, compliant models. Federal emission control 
measures include the following:
Tier 2 Motor Vehicle Emissions Standards and Gasoline Sulfur Control 
Requirements
    On February 10, 2000 (65 FR 6698), EPA promulgated Tier 2 motor 
vehicle emission standards and gasoline sulfur control requirements. 
These emission control requirements result in lower NO<INF>X</INF> and 
VOC emissions from new cars and light duty trucks, including sport 
utility vehicles. With respect to fuels, this rule required refiners 
and importers of gasoline to meet lower standards for sulfur in 
gasoline, which were phased in between 2004 and 2006. By 2006, refiners 
were required to meet a 30 ppm average sulfur level, with a maximum cap 
of 80 ppm. This reduction in fuel sulfur content ensures the 
effectiveness of low emission-control technologies. The Tier 2 tailpipe 
standards established in this rule were phased in for new vehicles 
between 2004 and 2009. EPA estimated in the final rule that this 
program will reduce annual NO<INF>X</INF> emissions by about 2.2 
million tons per year in 2020 and 2.8 million tons per year in 2030 
after the program is fully implemented and non-compliant vehicles have 
all been retired.
Control of Emissions From Nonroad Spark-Ignition Engines and Equipment
    On October 8, 2008 (73 FR 59034), EPA finalized emission standards 
for new nonroad spark-ignition engines. The exhaust emission standards 
applied beginning in 2010 for new marine spark-ignition engines and in 
2011 and 2012 for different sizes of new land-based, spark-ignition 
engines at or below 19 kW (i.e. small engines used primarily in lawn 
and garden applications). In the October 8, 2008 final rule, EPA 
estimated that by 2030 the rule will result in annual nationwide 
reductions of 604,000 tons of volatile organic hydrocarbon emissions, 
132,200 tons of NO<INF>X</INF> emissions, and 5,500 tons of directly-
emitted PM<INF>2.5</INF> emissions. These reductions correspond to 
significant reductions in the formation of ground-level ozone.
Nonroad Diesel Engines Tier 1 and Tier 2
    On June 17, 1994 (59 FR 31306), EPA made an affirmative 
determination under section 213(a)(2) of the CAA that nonroad engines 
are significant contributors to ambient ozone or CO levels in more than 
one nonattainment area. In the same notice, EPA also made a 
determination under CAA section 213(a)(4) that other emissions from 
compression-ignition (CI) nonroad engines rated at or above 37 
kilowatts (kW) cause or contribute to air pollution that may reasonably 
be anticipated to endanger public health or welfare. In the June 17, 
1994 final rule, EPA set a first phase of emission standards (Tier 1 
standards) for nonroad diesel engines rated 37 kW and above. These 
standards apply to nonroad, compression-ignition (i.e. diesel-powered) 
utility engines including, but not limited to, farm, construction, and 
industrial equipment, rated at or above 37 kW. On October 23, 1998 (63 
FR 56968), EPA finalized a second phase of emission standards (Tier 2 
standards) for nonroad diesel engines rated under 37 kW. These emission 
standards have resulted in a decrease in NO<INF>X</INF> emissions from 
the combustion of diesel fuel used to power this equipment. The Tier 1 
and Tier 2 standards for nonroad diesel engines will continue to result 
in emission reductions as older equipment is replaced with newer, 
compliant models.
Emissions Standards for Large Spark Ignition Engines
    On November 8, 2002 (67 FR 68242), EPA established emission 
standards for large spark-ignition engines such as those used in 
forklifts and airport ground-service equipment; recreational vehicles 
using spark-ignition engines such as off-highway motorcycles, all-
terrain vehicles, and snow mobiles; and recreational marine diesel 
engines. These emission standards were phased in from model year 2004 
through 2012. When the emission standards are fully implemented in 
2030, EPA expects a national 75 percent reduction in hydrocarbon (HC) 
emissions, 82 percent reduction in NO<INF>X</INF> emissions, 61 percent 
reduction in CO emissions, and a 60 percent reduction in direct 
particulate matter (PM) emissions from these engines, equipment, and 
vehicles compared to projected emissions if the standards were not 
implemented.
Standards for Reformulated and Conventional Gasoline
    On February 16, 1994 (59 FR 7716), EPA finalized regulations 
requiring that gasoline in certain areas be reformulated to reduce 
vehicle emissions of toxic and ozone-forming compounds, including 
NO<INF>X</INF> and VOC. Reformulated gasoline (RFG) is required in the 
Washington Area. The first phase of the RFG program (Phase I) began in 
1995 and the second phase (Phase II) began in 2000. These standards 
affect various gasoline-powered non-road mobile sources, such as lawn 
equipment, generators, and compressors. EPA estimates that Phase I of 
the RFG program resulted in a 2 percent and 17 percent annual reduction 
in NO<INF>X</INF>, and VOCs, respectively, from 1995 emission levels 
and prevented 64,000 tons of smog-forming pollutants, including 
NO<INF>X</INF> and VOC, from being emitted into the air from 1995 to 
2000. Phase II of the RFG program, which began in 2000, was expected to 
reduce emissions of NO<INF>X</INF> and VOC by 7 percent and 27 percent, 
respectively, from 1995 emission levels and reduce emissions of smog-
forming pollutants by an additional 41,000 tons.\14\ The RFG program 
continues to provide emission reductions in the Washington Area as the 
use of RFG results in less vehicle emissions of NO<INF>X</INF> and VOC 
compared to the use of conventional gasoline.
---------------------------------------------------------------------------

    \14\ See https://www.epa.gov/gasoline-standards/reformulated-gasoline for more information on the RFG program.
---------------------------------------------------------------------------

Emission Standards for Locomotives and Locomotive Engines
    On April 16, 1998 (63 FR 18978), EPA established emission standards 
for NO<INF>X</INF>, HC, CO, PM, and smoke from newly manufactured and 
remanufactured diesel-powered locomotives and locomotive engines. These 
emission standards were effective in 2000 and are expected to result in 
a more than 60 percent reduction in NO<INF>X</INF> emissions from 
locomotives by 2040 compared to 1995 baseline levels.
b. Control Measures Specific to the Washington Area
Maryland Healthy Air Act
    In addition to the measures referenced previously, a reduction of 
emission of ozone precursors can also be attributed to the Maryland 
Healthy Air Act (Annotated Code of Maryland Environment Title 2 Ambient 
Air Quality Control Subtitle 10 Healthy Air Act Sections 2-1001 to 2-
1005, with implementing regulations at COMAR 26.11.27 Emission 
Limitations for Power Plants). The Maryland Health Air Act (HAA) was 
effective on July 16, 2007 and approved by EPA on September 4, 2008 (73 
FR 51599). The HAA established limits on the amount of NO<INF>X</INF> 
and SO<INF>2</INF> emissions affected facilities in

[[Page 39027]]

Maryland could emit and required the installation of on-site pollution 
controls at 15 power plants in Maryland. The first phase of the HAA 
occurred between 2009 and 2010 and reduced NO<INF>X</INF> emissions 
from affected sources by almost 70% compared to 2002 levels. The second 
phase of the HAA occurred between 2012 and 2013. Maryland estimates 
that the HAA will reduce NO<INF>X</INF> emissions by approximately 75% 
from 2002 levels.
Closure of GenOn Potomac River LLC Facility
    The decrease in emissions of ozone precursors is also attributable 
to the closure of the GenOn Potomac River plant located in Alexandria, 
Virginia. This 482-megawatt electrical generating facility consisted of 
five coal-fired boilers and emitted 557.7 tons of NO<INF>X</INF> 
annually and 2.7 tons of NO<INF>X</INF> per ozone season day (tpd) in 
2011. The plant ceased operations and signed a mutual determination 
letter on December 21, 2012, agreeing to the permanent shutdown of the 
source and revoking all permits for the facility.\15\ Therefore, this 
closure is permanent and federally enforceable.
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    \15\ See Mutual Determination Letter from Virginia Department of 
Environmental Quality to Mr. William Lee Davis, President, GenOn 
Potomac River, LLC, Subject: Mutual Determination of Permanent 
Shutdown of the Potomac River Generating Station, December 20, 2012 
included in the docket for this rulemaking available online at 
http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.
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2. Emission Reductions
    Maryland and Virginia calculated the change in emissions between 
2011 and 2014 throughout the entire Washington Area to demonstrate that 
air quality has improved. The change in emissions is shown in Table 2. 
Maryland and Virginia used the 2011 base year emissions inventory for 
the Washington Area as the nonattainment year inventory because 2011 
was one of the three years used to designate the area nonattainment for 
the 2008 ozone NAAQS. EPA approved the Washington Area 2011 base year 
inventory as meeting the requirements of CAA section 182(a)(1) on May 
13, 2015 (80 FR 27276) for NO<INF>X</INF> and VOC emissions and July 
23, 2015 (80 FR 43625) for CO emissions. As explained later in this 
notice, 2014 was used as the attainment year inventory.

                    Table 2--2011-2014 Emissions Reduction for the Washington, DC-MD-VA Area
----------------------------------------------------------------------------------------------------------------
                                                                                  [Delta] 2011--    % Reduction
                              2011                                     2014            2014          from 2011
----------------------------------------------------------------------------------------------------------------
                                               VOC Emissions (tpd)
----------------------------------------------------------------------------------------------------------------
295.0...........................................................           259.4            35.6            12.1
----------------------------------------------------------------------------------------------------------------
                                               NOX Emissions (tpd)
----------------------------------------------------------------------------------------------------------------
436.5...........................................................           296.9           139.6            32.0
----------------------------------------------------------------------------------------------------------------
                                               CO Emissions (tpd)
----------------------------------------------------------------------------------------------------------------
1,800.8.........................................................         1,617.9           182.9            10.2
----------------------------------------------------------------------------------------------------------------
Note: 2011 emissions data is from the 2011 base year emissions inventory for the Washington, DC-MD-VA 2008 ozone
  NAAQS nonattainment area that was approved by EPA on May 13, 2015 (80 FR 27276) for NOX and VOC emissions and
  July 23, 2015 (80 FR 43625) for CO emissions.

    Table 2 shows that emissions of NO<INF>X</INF> and VOC in the 
Washington area were reduced by 139.6 tpd and 35.6 tpd, respectively, 
between 2011 and 2014. As discussed previously, Maryland and Virginia 
identified several federal and state rules approved into Maryland's and 
Virginia's SIPs that resulted in the reduction of NO<INF>X</INF> and 
VOC emissions from 2011 to 2014. Therefore, Maryland and Virginia have 
shown that the air quality improvements in the Washington Area are due 
to permanent and enforceable emission reductions.

D. Do the District, Maryland, and Virginia have fully approvable ozone 
maintenance plans for the Washington Area?

    As one of the criteria for redesignation to attainment, section 
107(d)(3)(E)(iv) of the CAA requires EPA to determine that the area has 
a fully approved maintenance plan pursuant to section 175A of the CAA. 
Section 175A of the CAA sets forth the elements of a maintenance plan 
for areas seeking redesignation from nonattainment to attainment. Under 
CAA section 175A, the maintenance plan must demonstrate continued 
attainment of the NAAQS for at least 10 years after the Administrator 
approves a redesignation to attainment. Eight years after the 
redesignation, the state must submit a revised maintenance plan which 
demonstrates that attainment of the NAAQS will continue for an 
additional 10 years beyond the initial 10-year maintenance period. To 
address the possibility of future NAAQS violations, the maintenance 
plan must contain contingency measures, as EPA deems necessary, to 
assure prompt correction of the future NAAQS violation.
    The Calcagni memorandum provides further guidance on the content of 
a maintenance plan, explaining that a maintenance plan should address 
five elements: (1) An attainment emission inventory; (2) a maintenance 
demonstration; (3) a commitment for continued air quality monitoring; 
(4) a process for verification of continued attainment; and (5) a 
contingency plan.
    In conjunction with their requests to redesignate their respective 
portions of the Washington Area to attainment for the 2008 ozone NAAQS, 
the District, Maryland, and Virginia submitted, as a revision to their 
SIPs, a plan to provide for maintenance of the 2008 ozone NAAQS through 
2030, which is more than 10 years after the expected effective date of 
the redesignation to attainment. EPA anticipates redesignating the 
entire Washington Area, including the District's portion, by 2019. As 
discussed in this notice, EPA is proposing to find that the District's, 
Maryland's, and Virginia's maintenance plan for the 2008 ozone NAAQS 
includes the necessary components per the CAA, including CAA section 
175A and EPA guidance, and is proposing to approve the maintenance plan 
as revisions to the District's, Maryland's, and Virginia's SIPs.

[[Page 39028]]

1. Attainment Inventory
    The Calcagni memorandum indicates that states requesting 
redesignation to attainment should develop an attainment emissions 
inventory in order to identify the level of emissions in the area which 
is sufficient to attain the NAAQS. The attainment inventory should be 
consistent with EPA's most recent guidance on emission inventories for 
nonattainment areas available at the time and should include the 
emissions during the time period associated with monitoring data 
showing attainment.
    For the attainment inventory, the District, Maryland, and Virginia 
used the year 2014, which is one of the years during the three-year 
period associated with the monitoring data first showing attainment of 
the 2008 ozone NAAQS (i.e., 2013 to 2015). As previously mentioned, on 
November 14, 2017, EPA determined that the Washington Area attained the 
2008 ozone NAAQS by the attainment date, based on 2013 to 2015 data. 
See 82 FR 52651. The attainment year inventory is summarized in Table 
3. A detailed evaluation of the methodology used to develop the 
attainment year inventory (and EPA's rationale to approve the 
attainment inventory) is provided in the Emission Inventory Technical 
Support Document (EI TSD), which is included in the docket for this 
rulemaking available online at http://www.regulations.gov, Docket ID: 
EPA-R03-OAR-2018-0215.

                           Table 3--2014 Attainment Inventory for the Washington Area
----------------------------------------------------------------------------------------------------------------
                         Source category                             NOX (tpd)      VOC  (tpd)       CO  (tpd)
----------------------------------------------------------------------------------------------------------------
Point...........................................................            64.9             7.7            23.7
Non-Point (Area)................................................             9.6           139.3            63.5
Marine, Air, Rail (MAR).........................................            19.2             2.4            19.6
Nonroad Model...................................................              52            47.5           762.8
On-Road Mobile..................................................           136.8            61.3           744.1
Quasi-Point.....................................................            14.4             1.2             4.2
                                                                 -----------------------------------------------
    Total.......................................................           296.9           259.4          1617.9
----------------------------------------------------------------------------------------------------------------

2. Have the District, Maryland, and Virginia documented maintenance of 
the 2008 ozone NAAQS in the Washington Area?
a. Maintenance Emission Inventory for the Washington Area
    The District, Maryland, and Virginia have demonstrated maintenance 
of the 2008 ozone standard through 2030 by the use of emission 
inventories showing that future emissions of NO<INF>X</INF> and VOC for 
the Washington Area will remain at or below attainment year emission 
levels. A maintenance demonstration need not be based on modeling. See 
Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F.3d 
537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 
2001) and 68 FR 25413, 25430-25432 (May 12, 2003).
    The District, Maryland, and Virginia are using emissions 
inventories for the years 2025 and 2030 to demonstrate maintenance in 
the Washington Area. EPA anticipates redesignating the entire 
Washington Area, including the District's portion, in 2019. 2030 is 
more than 10 years after the expected effective date of the 
redesignation to attainment, and 2025 was selected to demonstrate that 
emissions are not expected to increase in the interim between the 
attainment year and the final maintenance year.
    In order to develop the 2025 and 2030 inventories, the District, 
Maryland, and Virginia applied growth factors to the 2014 attainment 
year emissions inventory (shown in Table 3). A detailed evaluation of 
the methodology used to develop the maintenance inventory (and EPA's 
rational for approving the maintenance inventory as well as the growth 
factors used) is provided in EPA's EI TSD, which is included in the 
docket for this rulemaking available online at http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.
    The maintenance inventory, provided in Table 4, shows the projected 
emissions of NO<INF>X</INF>, VOC, and CO in the Washington Area for 
2014 (the attainment year), 2025, and 2030 and demonstrates that future 
emissions of NO<INF>X</INF>, VOC, and CO will not exceed the levels of 
the 2014 attainment year inventory for the Washington area for a 
minimum of 10 years following redesignation.

        Table 4--2014 to 2030 NOX, VOC, and CO Maintenance Emissions Inventories for the Washington Area
----------------------------------------------------------------------------------------------------------------
                                         NOX (tpd)                  VOC (tpd)                   CO (tpd)
        Source category         --------------------------------------------------------------------------------
                                   2014     2025     2030     2014     2025     2030     2014     2025     2030
----------------------------------------------------------------------------------------------------------------
Point..........................     64.9     66.0     68.5      7.7      8.8      9.4     23.7     25.1     26.2
Non-Point (Area)...............      9.6      9.9     10.0    139.3    153.7    160.3     63.6     64.9     65.5
Marine-Air-Rail (M-A-R)........     19.2     21.4     22.4      2.4      2.6      2.6     19.6     19.9     20.7
Nonroad Mobile.................     52.0     29.6     27.8     47.5     44.9     47.2    762.8    845.8    898.8
On-Road Mobile.................    136.8     40.7     27.4     61.3     33.2     24.1    744.1    457.1    323.7
Quasi-Point....................     14.4     14.4     14.4      1.2      1.2      1.2      4.2      4.2      4.2
                                --------------------------------------------------------------------------------
    Total......................    296.9    182.0    170.5    259.4    244.4    244.8   1618.0   1417.0   1339.1
                                --------------------------------------------------------------------------------
[Delta] 2014-2025..............            114.9
                                            15.0
                                           201.0
                                --------------------------------------------------------------------------------
[Delta] 2014-2030..............            126.4
                                            14.6
                                           278.9
----------------------------------------------------------------------------------------------------------------


[[Page 39029]]

    In summary, EPA finds the maintenance inventory for the Washington 
Area provided in Table 4 shows maintenance of the 2008 ozone NAAQS by 
providing emissions information and reasonable growth factors to 
support the demonstration that future emissions of NO<INF>X</INF> and 
VOC will remain at or below 2014 emission levels (an inventory year 
showing attainment of NAAQS) when taking into account both future 
source growth and implementation of future controls. Table 4 shows that 
NO<INF>X</INF> and VOC emissions are projected to decrease by 126.4 tpd 
and 14.6 tpd, respectively, between 2014 and 2030. EPA finds that the 
District, Maryland, and Virginia have demonstrated maintenance of the 
2008 ozone standard in the Washington Area through 2030.
b. Control Measures for Maintenance of Air Quality in the Washington 
Area
    The point, nonroad, and on-road emission projections for 2025 and 
2030 include a variety of control strategies that will reduce emissions 
of NO<INF>X</INF> and VOC in future years.
i. Point Sector Controls
COMAR 26.11.38 Control of NO<INF>X</INF> Emissions From Coal-Fired 
Electric Generating Units
    COMAR 26.11.38 (also referred to as the Maryland NO<INF>X</INF> 
Rule) established new NO<INF>X</INF> emission standards and additional 
monitoring and reporting requirements for coal-fired EGUs in Maryland. 
COMAR 26.11.38 was approved by EPA into the SIP on May 30, 2017 (82 FR 
24546). The coal-fired EGUs included in this rule account for more than 
80 percent of the State of Maryland's NO<INF>X</INF> emissions from 
power plants. These new NO<INF>X</INF> emission standards have resulted 
in reductions in NO<INF>X</INF> emissions.
ii. Nonroad Emission Controls
    As discussed previously, a variety of federal and state control 
programs have contributed to reduced on-road, point source, and nonroad 
emissions of NO<INF>X</INF> and VOC in the Washington Area, with 
additional emission reductions expected to occur in the future. These 
Federal measures include the following and are discussed in more detail 
in section IV.C.1.b. of this rulemaking: (1) Control of Emissions from 
Nonroad Spark-Ignition Engines and Equipment; (2) Nonroad Diesel 
Engines Tier 1 and Tier 2; (3) Emissions Standards for Large Spark 
Ignition Engines; (4) Standards for Reformulated and Conventional 
Gasoline; and, (5) Emission Standards for Locomotives and Locomotive 
Engines.
iii. On-Road Emission Controls
Tier 3 Vehicle Emissions and Fuel Standards Program
    On April 28, 2014 (79 FR 23414), EPA established more stringent 
vehicle emissions standards. The vehicle emissions standards will 
reduce both tailpipe and evaporative emissions of the ozone precursors 
NO<INF>X</INF> and VOC from passenger cars, light-duty trucks, medium-
duty passenger vehicles, and some heavy-duty vehicles. These standards 
will result in significant reductions in ozone concentrations due to 
the decrease in NO<INF>X</INF> and VOC emissions. The Tier 3 standards 
include new light- and heavy-duty vehicle emission standards for 
exhaust emissions of VOC, NO<INF>X</INF>, and PM, as well as new 
evaporative emissions standards. In the final rule, EPA estimates that 
in 2030, when Tier 3 vehicles will make up the majority of the fleet as 
well as vehicle miles traveled, NO<INF>X</INF> and VOC emissions from 
on-highway vehicles will be reduced by about 21 percent compared to 
projected emission levels if the Tier 3 standards were not implemented.
Transportation Emission Reduction Measures
    The National Capital Region Transportation Planning Board (TPB) 
\16\ utilizes many strategies to reduce emissions from mobile sources 
by reducing the number of vehicle trips and/or vehicle miles traveled. 
Such strategies include, but are not limited to, ridesharing programs, 
telecommuting programs, improved transit and bicycling facilities, and 
clean fuel vehicle programs. A summary of these measures is provided by 
TPB in their transportation conformity analyses. The emission 
reductions from these strategies were not included in the 2025 and 2030 
maintenance emissions inventories.
---------------------------------------------------------------------------

    \16\ The National Capital Region Transportation Planning Board 
(TPB) is the federally designated metropolitan planning organization 
(MPO) for metropolitan Washington.
---------------------------------------------------------------------------

Inspection and Maintenance (I/M) Programs
    The District, Maryland, and Virginia operate enhanced I/M programs 
to ensure that motorists are driving vehicles that meet federal 
emission requirements. Owners of vehicles that do not meet 
requirements, based on tail pipe or On-Board Diagnostic (OBD) testing, 
must repair the vehicles or show that the total costs of repair are 
more than waiver limitations. As noted previously, EPA approved 
Maryland's and Virginia's enhanced I/M program into Maryland's and 
Virginia's SIPs on October 29, 1999 (64 FR 58340) and September 1, 1999 
(64 FR 47670), as revised April 22, 2008 (73 FR 21540), respectively. 
EPA approved the District's enhanced I/M program into the District's 
SIP on June 11, 1999 (64 FR 31498).
3. Continued Air Quality Monitoring
    The District, Maryland, and Virginia have committed, in their joint 
maintenance plan for the Washington Area, to continue to operate an 
appropriate air quality monitoring network in accordance with 40 CFR 
part 58. The District, Maryland, and Virginia also committed, in their 
redesignation requests, to continue to monitor ozone concentrations in 
the Washington Area in accordance with 40 CFR part 58 and EPA-approved 
annual monitoring plans, to quality-assure the monitoring data in 
accordance with 40 CFR part 58, and to enter all data into AQS in a 
timely fashion.
4. Verification of Continued Attainment
    The District, Maryland, and Virginia state in their maintenance 
plan submittal that they have the legal authority to develop, 
implement, and enforce regulations regarding air pollution, including 
the requirements of the maintenance plan for the Washington Area. The 
District, Maryland, and Virginia cite the regulations and statutory 
provisions included in Table 5 below as providing them with the 
authority to develop, implement, and enforce the requirements of the 
maintenance plan for the Washington Area.

[[Page 39030]]



    Table 5--Measures Cited as Providing the District, Maryland, and
   Virginia With the Authority To Develop, Implement, and Enforce the
      Requirements of the Maintenance Plan for the Washington Area
------------------------------------------------------------------------
               State                      Citation         Description
------------------------------------------------------------------------
Virginia...........................  Section 10.1-1308  Authorizes the
                                      of the Virginia    State Air
                                      Air Pollution      Pollution
                                      Control Law        Control Board
                                      (Title 10.1,       to promulgate
                                      Chapter 13 of      regulations
                                      the Code of        abating,
                                      Virginia).         controlling,
                                                         and prohibiting
                                                         air pollution
                                                         in order to
                                                         protect public
                                                         health and
                                                         welfare.
Maryland...........................  Annotated Code of  Legal authority
                                      Maryland,          to implement
                                      Section 2-103.     and enforce.
Maryland...........................  Annotated Code of  Authority for
                                      Maryland,          MDE to set
                                      Environment        emission
                                      Article, Section   standards and
                                      2-302(a)-(d).      ambient air
                                                         quality
                                                         standards for
                                                         each air
                                                         quality control
                                                         area in the
                                                         state.
Maryland...........................  Annotated Code of  Authority for
                                      Maryland,          MDE to enforce
                                      Environment        the standards
                                      Article, Section   and impose
                                      2-601-614.         penalties.
District of Columbia...............  Air Pollution      Provides
                                      Control Act of     authority to
                                      1984, as amended   ``develop a
                                      (D.C. Official     comprehensive
                                      Code Section 8-    program for the
                                      101.05-101.06).    control and
                                                         prevention of
                                                         air pollution
                                                         in the District
                                                         that provides
                                                         for the
                                                         administration
                                                         and enforcement
                                                         of the
                                                         requirements of
                                                         [the Act] and
                                                         the regulations
                                                         promulgated
                                                         pursuant to
                                                         [the Act].''
District of Columbia...............  20 DCMR Sections   Authority for
                                      101, 102, and      inspection,
                                      105.               order for
                                                         compliance, and
                                                         penalty,
                                                         respectively.
------------------------------------------------------------------------

    In their joint maintenance plan submittal, the District, Maryland, 
and Virginia also referenced several regulatory elements that each 
state will retain in order to maintain attainment of the 2008 ozone 
NAAQS. These regulatory elements are summarized in Table 6.

       Table 6--Regulatory Measures Cited for Continued Attainment
------------------------------------------------------------------------
               State                      Citation         Description
------------------------------------------------------------------------
District of Columbia...............  20 DCMR 202 and    Shutdown
                                      20 DCMR 303.8.     requirements.
District of Columbia...............  20 DCMR Chapter 2  Permitting
                                      (General and Non-  requirements.
                                      Attainment Area
                                      Permits) and 20
                                      DCMR Chapter 3
                                      (Operating
                                      Permits and Acid
                                      Rain Programs).
District of Columbia...............  20 DCMR 804, 805,  Regulatory
                                      899 (NOX), 20      requirements.
                                      DCMR Chapter 10
                                      (NOX Emissions
                                      Budget), and 20
                                      DCMR Chapter 7
                                      (Volatile
                                      Organic
                                      Compounds).
District of Columbia...............  18 DCMR Chapters   I/M program
                                      4, 6, 7, 11, 26,   requirements.
                                      and 99.
District of Columbia...............  20 DCMR Chapter 5  Emission
                                                         statement
                                                         requirements.
Maryland...........................  COMAR 26.11.01.05- Emission
                                      1.                 statement
                                                         requirements.
Maryland...........................  COMAR 11.14.08...  I/M program
                                                         requirements.
Maryland...........................  COMAR 26.11.02     Permitting
                                      and COMAR          requirements.
                                      26.11.03.
Virginia...........................  9VAC5-20-220.....  Shutdown
                                                         requirements.
Virginia...........................  9VAC5-80.........  Permits for
                                                         stationary
                                                         sources.
Virginia...........................  9VAC5-91.........  I/M program
                                                         requirements
                                                         for Northern
                                                         Virginia.
Virginia...........................  9VAC5-20-160.B...  Emission
                                                         statement
                                                         requirements.
------------------------------------------------------------------------

    Verification of continued attainment is accomplished through 
operation of the ambient ozone monitoring network and the periodic 
update of the area's emissions inventory. As stated above, the 
District, Maryland, and Virginia have committed, in their joint 
maintenance plan for the Washington Area, to continue to operate an 
appropriate air quality monitoring network in accordance with 40 CFR 
part 58. The District, Maryland, and Virginia also committed, in their 
redesignation requests, to continue to monitor ozone concentrations in 
the Washington Area in accordance with 40 CFR part 58 and EPA-approved 
annual monitoring plans, to quality-assure the monitoring data in 
accordance with 40 CFR part 58, and to enter all data into AQS in a 
timely fashion. The District, Maryland, and Virginia state in their 
joint maintenance plan that they will track attainment and maintenance 
using ambient and source emission data.
    In addition, to track the progress of the maintenance 
demonstration, the District, Maryland, and Virginia state in their 
joint maintenance plan submittal that they will periodically update the 
emissions inventory. The District, Maryland, and Virginia also commit 
to an annual evaluation consisting of a comparison of key emissions 
trend indicators, such as the annual emissions update of stationary 
sources and the Highway Performance Monitoring System (HPMS) vehicle 
miles traveled data reported to the Federal Highway Administration 
(FHWA), to the growth assumptions used in the plan. The District, 
Maryland, and Virginia also commit in their maintenance plan submittal 
to developing and submitting to EPA ``comprehensive tracking 
inventories every three years or as required by federal regulation 
during the maintenance plan period.'' EPA notes that point source 
facilities covered by the District's, Maryland's, and Virginia's 
emission statement rules are required to submit NO<INF>X</INF> and VOC 
emissions on an annual basis to address CAA requirements in CAA section 
182.\17\
---------------------------------------------------------------------------

    \17\ In the District's May 25, 2018 emission statement 
certification SIP submittal for the 2008 ozone NAAQS, the District 
cites to section 20-500.9 of the District of Columbia Municipal 
Regulations (DCMR) (20 DCMR 500.9) as containing the District's 
emission statement rules. However, the District's emission statement 
rules were SIP-approved as 20 DCMR 500.7 (60 FR 27889, May 26, 
1995). A recodification of 20 DCMR 500 caused the emission statement 
rules under 20 DCMR 500.7 to move to 20 DCMR 500.9. Despite the 
recodification, the District's emission statement rules continue to 
require applicable point sources in the District to submit 
information on NO<INF>X</INF> and VOC emissions on an annual basis. 
EPA intends to propose conditional approval of the District's 
emission statement certification SIP for the 2008 ozone NAAQS, 
contingent on the District's submittal of a SIP revision updating 
the District's SIP to reflect the recodification of 20 DCMR 500.

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

[[Page 39031]]

5. What is the contingency plan for the Washington Area?
    Section 175A of the CAA requires that the state must adopt a 
maintenance plan, as a SIP revision, that includes such contingency 
measures as EPA deems necessary to assure that the state will promptly 
correct a violation of the NAAQS that occurs after a redesignation of 
the area to attainment of the NAAQS. The maintenance plan must identify 
the contingency measures to be considered and, if needed for 
maintenance, adopted and implemented; a schedule and procedure for 
adoption and implementation; and, a time limit for action by the state. 
The state should also identify specific indicators to be used to 
determine when the contingency measures need to be considered, adopted, 
and implemented.
    As required by section 175A of the CAA, the District, Maryland, and 
Virginia have adopted a contingency plan for the Washington Area to 
address possible future ozone air quality problems as described herein 
and in the TSD for this rulemaking available online at http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215. EPA's analysis 
of the contingency plan as addressing requirements in CAA section 175A 
is also in the TSD.
a. Contingency Measures
    The District, Maryland, and Virginia included several measures as 
contingency measures in their joint maintenance plan submittal that EPA 
found to not be appropriate for use as contingency measures as 
discussed in detail in the TSD for this rulemaking. However, since 
emission reductions from these measures were not accounted for in the 
maintenance inventory or the MVEBs, it is expected that these measures 
will provide more emission reductions than what was projected in the 
maintenance inventory or the MVEBs. Thus, these measures will provide 
additional assurance that the 2008 ozone standard will be maintained in 
the Washington Area. A description of the District's, Maryland's, and 
Virginia's submitted contingency measures as well as EPA's evaluation 
of these measures and the contingency plan as a whole can be found in 
the TSD for this rulemaking available online at http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215. Table 7 lists 
the measures that EPA finds appropriate to use as contingency measures 
for the Washington Area.

Table 7--Measures Found To Be Appropriate To Use as Contingency Measures
                         for the Washington Area
------------------------------------------------------------------------
                Measure                               State
------------------------------------------------------------------------
Ozone Transport Commission (OTC) 2009-   Virginia.
 2014 model rule for VOC for consumer
 products \18\.
OTC 2009-2014 model rule for VOC for     Virginia.
 architectural and industrial
 maintenance coatings \19\.
Additional contingency measures as       District of Columbia, Maryland,
 needed.                                  and/or Virginia.
------------------------------------------------------------------------

b. Indicators
    The District, Maryland, and Virginia include specific indicators, 
or ``triggers'', to be used to determine when the contingency measures 
need to be considered, adopted, and implemented. In the contingency 
measure implementation schedule included in the maintenance plan and 
discussed later in this notice, the District, Maryland, and Virginia 
state that the ``schedule onset'' for the implementation of any 
contingency measure will begin three months after quality assured data 
determine that an exceedance or violation of the 2008 ozone NAAQS 
occurred within the previous year or upon notification from EPA that a 
contingency measure must be implemented. Another trigger is if any 
future year emissions inventory indicates that the Washington Area's 
total emissions of NO<INF>X</INF> or VOC exceeded the levels in the 
attainment year inventory. If an audit of the attainment year and 
future year inventories does not reconcile the original estimated 
emissions with the exceedances, then the District, Maryland, and 
Virginia commit to implementing one or more of the contingency measures 
to ensure that future total emissions of NO<INF>X</INF> and VOC in the 
Washington Area do not exceed the levels in the attainment year 
inventory.
---------------------------------------------------------------------------

    \18\ The Model Rule for Consumer Products was developed by the 
OTC and establishes limits on VOC emissions from consumer products 
including, but not limited to, adhesives, air fresheners, general 
purpose cleaners, and hairsprays. See ``2013 Consumer Product 
Update'', May 21, 3013, available at https://otcair.org/document.asp?Fview=modelrules.
    \19\ The Model Rule for Architectural and Industrial Maintenance 
(AIM) Coatings was developed by the OTC and establishes limits on 
VOC emissions from AIM coatings, including, but not limited to 
concrete/masonry sealer, driveway sealers, and wood coatings. See 
``Model Rule 2009-2014--Architectural & Industrial Maintenance (AIM) 
Coatings'', Updated October 13, 2014, available at https://otcair.org/document.asp?Fview=modelrules.
---------------------------------------------------------------------------

c. Schedule and Procedure for Adoption and Implementation of 
Contingency Measures
    The District, Maryland, and Virginia have committed to implementing 
any contingency measure according to the following schedule: (1) 
Schedule onset: Notification received from EPA that a contingency 
measure must be implemented or three months after quality assured data 
determine that an exceedance or violation occurred within the previous 
year; (2) applicable regulation or program will be adopted six months 
following the schedule onset; (3) applicable regulation or program will 
be implemented six months following adoption; and, (4) compliance with 
regulation, or full program implementation, to be achieved within 
twelve months of adoption.
    The District and Metropolitan Washington Air Quality Committee 
(MWAQC) will use their regional coordination process to determine the 
contingency measure to be implemented.
d. EPA's Evaluation of the Contingency Plan for the Washington Area
    Based on EPA's evaluation of the District's, Maryland's, and 
Virginia's contingency plan for the Washington Area, which is provided 
in the TSD for this rulemaking available online at http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215, EPA finds that 
the contingency plan includes the required elements for CAA section 
175A and relevant EPA guidance and will promptly correct any violation 
of the

[[Page 39032]]

NAAQS that occurs after the redesignation of the Washington Area.
    EPA has concluded that the District's, Maryland's, and Virginia's 
joint maintenance plan adequately addresses the five basic components 
of a maintenance plan: Attainment inventory, maintenance demonstration, 
monitoring network, verification of continued attainment, and a 
contingency plan. Therefore, EPA concludes that the maintenance plan 
SIP revisions submitted by the District, Maryland, and Virginia meet 
the requirements of CAA section 175A. EPA is proposing to approve the 
maintenance plan as a revision to the District's, Maryland's, and 
Virginia's SIPs.

V. Have the District, Maryland, and Virginia adopted approvable MVEBs?

A. What are the MVEBs?

    Under section 176(c) of the CAA, new transportation plans, 
programs, or projects that receive federal funding or support, such as 
the construction of new highways, must ``conform'' (i.e., be consistent 
with) the SIP. Conformity to the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
air quality problems, or delay timely attainment of the NAAQS or 
interim air quality milestones. Regulations at 40 CFR part 93 set forth 
EPA policy, criteria, and procedures for demonstrating and assuring 
conformity of transportation activities to a SIP. Transportation 
conformity is a requirement for nonattainment and maintenance 
areas.\20\
---------------------------------------------------------------------------

    \20\ Maintenance areas are areas that were previously 
nonattainment for a particular NAAQS, but have been redesignated to 
attainment with an approved maintenance plan for the NAAQS.
---------------------------------------------------------------------------

    Under the CAA, states are required to submit, at various times, 
control strategy SIPs for nonattainment areas and maintenance plans for 
areas seeking redesignations to attainment of the ozone standard and 
maintenance areas. See the SIP Requirements Rule. These control 
strategy SIPs (including reasonable further progress plans and 
attainment plans) and maintenance plans must include MVEBs for criteria 
pollutants, including ozone, and their precursor pollutants 
(NO<INF>X</INF> and VOC for ozone) to address pollution from on-road 
transportation sources. The MVEBs are the portion of the total 
allowable emissions that are allocated to highway and transit vehicle 
use that, together with emissions from other sources in the area, will 
provide for attainment or maintenance of the NAAQS. See 40 CFR 93.101.
    Under 40 CFR part 93, a MVEB for an area seeking redesignation to 
attainment must be established, at minimum, for the last year of the 
maintenance plan. A state may adopt MVEBs for other years as well. The 
MVEB serves as a ceiling on emissions from an area's planned 
transportation system. The MVEB concept is further explained in the 
preamble to the November 24, 1993 Transportation Conformity Rule (58 FR 
62188). The preamble also describes how to establish the MVEB in the 
SIP and how to revise the MVEB, if needed, subsequent to initially 
establishing a MVEB in the SIP. The most recently approved MVEBs for 
the Washington Area originate from the attainment plan for the 1997 
ozone NAAQS, which EPA found adequate on February 7, 2013 (78 FR 9044).
B. What is the status of EPA's adequacy determination for the proposed 
2025 and 2030 VOC and NO<INF>X</INF> MVEBs for the Washington Area?
    When reviewing submitted control strategy SIPs or maintenance plans 
containing MVEBs, EPA must affirmatively find that the MVEBs contained 
therein are adequate for use in determining transportation conformity. 
Once EPA affirmatively finds that the submitted MVEBs are adequate for 
transportation purposes, the MVEBs must be used by state and federal 
agencies in determining whether proposed transportation projects 
conform to the SIP as required by section 176(c) of the CAA.
    EPA's substantive criteria for determining adequacy of a MVEB are 
set out in 40 CFR 93.118(e)(4). The process for determining adequacy 
consists of three basic steps: (1) Public notification of a SIP 
submission, (2) provision for a public comment period, and (3) EPA's 
adequacy determination. This process for determining the adequacy of 
submitted MVEBs for transportation conformity purposes was initially 
outlined in EPA's May 14, 1999 guidance, ``Conformity Guidance on 
Implementation of March 2, 1999, Conformity Court Decision.'' EPA 
adopted regulations to codify the adequacy process in the 
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone 
and PM<INF>2.5</INF> National Ambient Air Quality Standards and 
Miscellaneous Revisions for Existing Areas; Transportation Conformity 
Rule Amendments--Response to Court Decision and Additional Rule 
Change,'' on July 1, 2004 (69 FR 40004). Additional information on the 
adequacy process for transportation conformity purposes is available in 
the proposed rule titled, ``Transportation Conformity Rule Amendments: 
Response to Court Decision and Additional Rule Changes,'' 68 FR 38974, 
38984 (June 30, 2003).
    The District's, Maryland's, and Virginia's maintenance plan 
includes NO<INF>X</INF> and VOC MVEBs for the Washington Area for 2014 
(the attainment year), 2025 (the intermediate year), and 2030 (the last 
year of the maintenance period). The District's, Maryland's, and 
Virginia's maintenance plan SIP submission, including the 
NO<INF>X</INF> and VOC MVEBs for the Washington Area, was available for 
public comment on EPA's adequacy website on May 21, 2018 at https://www.epa.gov/state-and-local-transportation. The EPA public comment 
period on adequacy of the 2014, 2025, and 2030 MVEBs for the Washington 
Area closed on June 20, 2018. No comments on the submittal were 
received during the adequacy comment period. EPA reviewed the 
NO<INF>X</INF> and VOC MVEBs in accordance with the adequacy process in 
40 CFR part 93 and found the MVEBs adequate. EPA anticipates it will 
publish a notice of adequacy for the 2014, 2025, and 2030 MVEBs for the 
Washington Area before taking final action on this redesignation of the 
Washington Area. In letters dated July 24, 2018, EPA informed the 
District, Maryland, and Virginia that the 2014, 2025, and 2030 MVEBs 
are adequate for use in transportation conformity analyses.\21\ EPA's 
analysis of the MVEBs is included in the Notice of Adequacy TSD, which 
is included in the docket for this rulemaking available online at 
http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.
---------------------------------------------------------------------------

    \21\ As stated previously, EPA originally informed the District, 
Maryland, and Virginia that the 2014, 2025, and 2030 MVEBs were 
adequate for use in transportation conformity analyses in letters 
dated July 18, 2018. EPA revised language in these letters and sent 
the revised letters to the District, Maryland, and Virginia on July 
24, 2018. The original and revised letters are available online at 
http://www.regulations.gov, Docket ID: EPA-R03-OAR-2018-0215.
---------------------------------------------------------------------------

    The MVEBs were calculated using the most current USEPA Motor 
Vehicle Emissions Simulator (MOVES) model (MOVES2014a) and regional 
travel demand forecasting model at the time of the submittal. These 
MVEBs, when considered together with all other emissions sources, are 
consistent with maintenance of the 2008 ozone standard. The MVEBs are 
shown in Table 8.

[[Page 39033]]



  Table 8--Washington, DC-MD-VA Maintenance Plan On-Road Mobile Source
                            Emissions Budgets
------------------------------------------------------------------------
                                            NOX on-road     VOC on-road
                  Year                       emissions       emissions
                                               (tpd)           (tpd)
------------------------------------------------------------------------
Attainment Year 2014 Emission and Budget           136.8            61.3
Intermediate Year 2025 Emission and                 40.7            33.2
 Budget.................................
Final Year 2030 Emission and Budget.....            27.4            24.1
------------------------------------------------------------------------

C. What is a safety margin and how was it allocated?
    EPA's transportation conformity regulations allow for the use of a 
safety margin, also referred to as a ``transportation buffer'', in the 
development of MVEBs for maintenance plans. A ``safety margin'' is the 
difference between the attainment level of emissions (from all sources) 
and the projected level of emissions (from all sources) in the 
maintenance plan. All or a portion of these transportation buffers can 
be allotted to mobile source inventories to develop MVEBs.
    Table 4 shows the difference in total emissions for NO<INF>X</INF> 
and VOC from all sources between the attainment year (2014) and the 
intermediate year (2025) as well as the attainment year (2014) and the 
final maintenance year (2030). These differences in emissions provide 
estimates of the total available transportation buffers for 
NO<INF>X</INF> and VOC in 2025 and 2030. The total available 
transportation buffers for NO<INF>X</INF> is 114.9 tpd in 2025 and 
126.4 tpd in 2030 and for VOC the total available transportation buffer 
is 15.0 tpd in 2025 and 14.6 tpd in 2030. The District, Maryland, and 
Virginia used 20% of the total available transportation buffer to 
develop the second set of mobile budgets for 2025 and 2030 in the 
maintenance plan. The transportation buffers add 8.1 tpd of 
NO<INF>X</INF> and 6.6 tpd of VOC to the 2025 emission inventories, and 
5.5 tpd of NO<INF>X</INF> and 4.8 tpd of VOC to the 2030 emission 
inventories. The MVEBs with the transportation buffers described 
previously for the Washington Area are shown in Table 9.

  Table 9--Washington, DC-MD-VA Maintenance Plan On-Road Mobile Source
              Emissions Budgets With Transportation Buffers
------------------------------------------------------------------------
                                            NOX on-road     VOC on-road
                  Year                       emissions       emissions
                                               (tpd)           (tpd)
------------------------------------------------------------------------
Attainment Year 2014 Emissions & Budget.           136.8            61.3
Predicted 2025 Emission.................            40.7            33.2
Transportation Buffer...................             8.1             6.6
Intermediate Year 2025 Budget...........            48.8            39.8
Predicted 2030 Emission.................            27.4            24.1
Transportation Buffer...................             5.5             4.8
Final Year 2030 Budget..................            32.9            28.9
------------------------------------------------------------------------

    These two sets of MVEBs (with and without transportation buffers) 
have been developed for both milestone years (2025 and 2030). As can be 
seen in Table 10, the MVEBs that include the transportation buffer 
(Table 9), remain below the emission levels of the maintenance 
inventory.

       Table 10--Maintenance Inventory: NOX and VOC Emissions in the Washington Area, Including MVEBs With
                                       Transportation Buffer, 2014 to 2030
----------------------------------------------------------------------------------------------------------------
                                                                    NOX (tpd)                  VOC (tpd)
                      Source category                      -----------------------------------------------------
                                                              2014     2025     2030     2014     2025     2030
----------------------------------------------------------------------------------------------------------------
Point.....................................................     64.9     66.0     68.5      7.7      8.8      9.4
Non-Point (Area)..........................................      9.6      9.9     10.0    139.3    153.7    160.3
M-A-R.....................................................     19.2     21.4     22.4      2.4      2.6      2.6
Nonroad Mobile............................................     52.0     29.6     27.8     47.5     44.9     47.2
On-Road Mobile............................................    136.8     48.8     32.9     61.3     39.8     28.9
Quasi-Point...............................................     14.4     14.4     14.4      1.2      1.2      1.2
                                                           -----------------------------------------------------
    Total.................................................    296.9    190.1    176.0    259.4    251.0    249.6
                                                           -----------------------------------------------------
[Delta] 2014-2025.........................................            106.8
                                                                       8.4
                                                           -----------------------------------------------------
[Delta] 2014-2030.........................................            120.9
                                                                       9.8
----------------------------------------------------------------------------------------------------------------

    The District, Maryland, and Virginia will only use the MVEBs with 
transportation buffers, shown in Table 9, as needed in situations where 
the conformity analysis must be based on different data, models, or 
planning assumptions, including, but not limited to, updates to 
demographic, land use, or project-related assumptions, than were

[[Page 39034]]

used to create the first set of MVEBs in the maintenance plan. The 
technical analyses used to demonstrate compliance with the MVEBs and 
the need, if any, to use transportation buffers will be fully 
documented in the conformity analysis and follow the Transportation 
Planning Board's (TPB) interagency consultation procedures. Regulations 
governing the interagency consultation process adopted by the District, 
Maryland, Virginia, and the TPB are as follows:

1. District of Columbia: Title 20 Environment, Chapter 20-15 General 
and Transportation Conformity, Rule Numbers 20-1503, 20-1504, 20-1505, 
20-1506, 20-1507
2. Maryland: Title 26 Department of Environment, Subtitle 11 Air 
Quality, Chapter 26 Conformity, Regulation Numbers 26.11.26.04, 
26.11.26.05, 26.11.26.06, 26.11.26.07, 26.11.26.08
3. Virginia: 9VAC5 Chapter 151 Regulation for Transportation Conformity 
Section 70 Consultation (9VAC5-151-70)
4. Transportation Planning Board: Report titled ``Transportation 
Planning Board Consultation Procedures with respect to Transportation 
Conformity Regulations Governing TPB Plans and Programs,'' May 20, 1998

    EPA finds that the District, Maryland, and Virginia continue to 
demonstrate maintenance of the 2008 ozone standard with both sets of 
MVEBs, including the MVEBs with the transportation buffers. Therefore, 
EPA is proposing to approve, as revisions to the District's, 
Maryland's, and Virginia's SIPs, the MVEBs contained in this 
maintenance plan for the Washington Area.

VI. Proposed Action

    EPA is proposing to approve the requests from Maryland and Virginia 
to redesignate to attainment their respective portions of the 
Washington Area for the 2008 ozone NAAQS. EPA is not proposing to 
approve the redesignation request from the District and will address 
the District's redesignation request in a separate rulemaking action. 
EPA is also proposing to approve, as a revision to the District's, 
Maryland's, and Virginia's SIPs, the joint maintenance plan submitted 
by the District, Maryland, and Virginia. The joint maintenance plan 
demonstrates maintenance of the 2008 ozone NAAQS through 2030 in the 
Washington Area and includes 2014, 2025, and 2030 MVEBs for 
NO<INF>X</INF> and VOCs for the 2008 ozone NAAQS. Finally, EPA has 
found adequate and is proposing to approve these 2014, 2025, and 2030 
NO<INF>X</INF> and VOC MVEBs for the Washington Area. EPA is soliciting 
public comments on the issues discussed in this document. These 
comments will be considered before taking final action.

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

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

VIII. Statutory and Executive Order Reviews

    Under the CAA, the redesignation of an area to attainment and the 
accompanying approval of the maintenance plan under CAA section 
107(d)(3)(E) are actions that affect the status of geographical area 
and do not impose any additional regulatory requirements on sources 
beyond those required by state law. A redesignation to attainment does 
not in and of itself impose any new requirements, but rather results in 
the application of requirements contained in the CAA for areas that 
have been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices,

[[Page 39035]]

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 proposed action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
    <bullet> Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The action approving Maryland's and Virginia's redesignation 
request for their respective portions of the Washington Area for the 
2008 ozone NAAQS as well as the District's, Maryland's, and Virginia's 
maintenance plan for the Washington Area, is not approved to apply on 
any Indian reservation land as defined in 18 U.S.C. 1151 or in any 
other area where EPA or an Indian tribe has demonstrated that a tribe 
has jurisdiction. In those areas of Indian country, the rule does not 
have tribal implications and will not impose substantial direct costs 
on tribal governments or preempt tribal law as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

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

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

    Dated: July 24, 2018.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2018-16882 Filed 8-7-18; 8:45 am]
 BILLING CODE 6560-50-P


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