Appendix E (Washington DC- MD

- VA PM 2 .5 Redesignation Request & Maintenance Plan,

Ma y 22, 2013) 

# Appendix E

Notices and Public Comments and Responses

(Washington DC- MD -VA PM2.5 Redesignation
Request & Maintenance Plan)DDOE Notice

NOTICE OF PUBLIC HEARING AND PUBLIC COMMENT PERIOD

ON AIR QUALITY ISSUES

Notice is hereby given that a public hearing will be held on Wednesday, February 20, 2013, at 5:30 p.m. in Room 555 at 1200 First Street NE, 5 th Floor, in Washington, D.C. 20002. This hearing provides interested parties an opportunity to comment on the District of Columbia’s (District) proposed redesignation request and maintenance plan for the fine particulate matter (PM 2.5 ) 1997 annual national ambient air quality standards (NAAQS). Once the District has completed its procedures, the documents will be submitted to the United States Environmental Protection Agency (EPA) for approval as a revision to its State Implementation Plan (SIP) at 40

CFR Pa rt 52 Subpart J, pursuant to the provisions of § 107 of the federal Clean Air Act (CAA).

PM 2.5 ambient air quality has improved in the Washington DC

- MD

- VA nonattainment area since the area was designated as being in nonattainment of the 1997 annual PM 2.5 N AAQS. The area is currently operating under a clean data determination (74 Fed. Reg. 1146, January 12, 2009). The District, the State of Maryland, and the Commonwealth of Virginia are requesting that EPA concurrently approve, as a SIP revision for each sta te, the related CAA § 175A maintenance plan. The maintenance plan ensures that good PM 2.5 air quality will be maintained through 2025. The plan also demonstrates that PM 2.5 air quality in the Washington DC

- MD

- VA area will remain compliant with the 1997 PM 2 .5 NAAQS, as measured by a monitoring network that meets all federal requirements.

Copies of the proposed redesignation request and maintenance plan are available for public review during normal business hours at the offices of the District Department of t he Environment (DDOE), 1200 First Street NE, 5 th Floor, Washington, DC 20002.

Interested parties wishing to testify at this hearing must submit in writing their names, addresses, telephone numbers and affiliation, if any, to Mr. William Bolden at the DDOE address above or

at william.bolden@dc.gov by 4:00 p.m. on February 20, 2013. Interested parties may also submit written comments to Ms. Jessica Daniels, Monitoring and Assessment Branch, Air Quality Division, DDOE, at the same address or by email at jessica.daniels@dc.gov . Questions about this SIP revision should be directed to Mr. Rama S. Tangirala by phone at (202) 535-2989 or

email rama.tangirala@dc.gov , or Ms. Daniels at (202) 741-0862 or jessica.daniels@dc.gov . No comments will be accepted after February 20, 2013

## MARYLAND DEPARTMENT OF THE ENVIRONMENT

1800 Washington Boulevard • Baltimo re MD 21230

410-537-3000 • 1-800-633-6101 • www.mde.state.md.us

Recycled Paper www. mde.state.md.us TTY Users 1-800-735-2258 Via Mary l and Relay Service Robert M. Summers, Ph.D.

Secretary

Kathy M. Kinsey Deputy Secretary Martin O’Malley

Governor

Anthony G. Brown

Lieutenant G overnor

Maryland Department of the Environment Notice of Public Hearing on Air Quality Plan

The Maryland Department of the Environment (MDE) gives notice of a Public Hearing concerning the proposed Maryland Redesignation Request & Maintenance Plan State Implementation Plan (SIP).

A public hearing will be held on:

February 19, 2013, at 10:00 AM at the Maryland-National Capital Park & Planning Commission Montgomery County Park and Planning Headquarters 8787 Georgia Ave Silver Spring, Maryland 20910

Room location: 1 st Floor Auditorium

10:00 AM

Th e hearing will focus on the request by Maryland that the Environmental Protection Agency (USEPA) redesignate the Washington DC-MD-VA 1997 fine particulate (PM 2.5 ) nonattainment area to

attainmen t for this PM 2.5 standard pursuant to the provisions under §107 of the federal Clean Air Act (CAA). Air

q uality in the area is significantly improved due to permanent and enforceable emission reductions. Owing to the improvement in PM 2.5 air quality, the Washington DC-MD-VA

nonattain ment area is currently operating under a federally approved clean data determination (74 FR, 1146, 1/12/2009). Thus Maryland is also requesting that USEPA concurrently approve, as a revision to the state implementation plan (SIP), the related §175A Maintenance Plan. This plan ensures that good PM 2.5 air quality will be maintained through 2025.

. The Public He aring will be held as required by federal law (Clean Air Act at 42 U.S.C. 7410 (a) and 40 CFR 51.102). Interested persons are invited to attend and express their views. After the Department considers the comments received, and revises the proposal if necessary, all related items will be submitted to the U.S. Environmental Protection Agency.

An electronic copy of the proposed SIP may be accessed from the Maryland Department of the

Environment’s website at:

http://www.mde.state.md.us/programs/Air/AirQualityPlanning/Pa ges/programs/airprograms/air_planni ng/index.aspx

or upon the web page of the Metropolitan Washington Council of Governments

http://www.mwcog.org/environment/air/downloads/PM/default.aspPage 2

Recycled Paper www.mde.state.md.us TTY Users 1-800-735-2258

Via M aryland Relay Service Note: the public library systems in Maryland can be used for Internet access to view the document. An electronic copy of the document can also be obtained writing to Randall Carroll at rcarroll@mde.state.md.us

.

Copies of the document can also be viewed at the Maryland Department of the Environment Main Office, Air and Radiation Management Administration, 1800 Washington Boulevard, Baltimore, Maryland –Contact: Randall Carroll.

Written comments may be presented at the hearing, faxed to 410-537-4223, emailed to rcarroll@mde.state.md.us , or mailed to Randall Carroll, MDE ARMA, 1800 Washington Boulevard, Ste. 730, Baltimore, MD, 21230. Comments must be received before the close of business on February 19, 2013.

Anyone needing special accommodations at the public hearing should contact the Department's Fair Practices Office at (410) 537-3964. TTY users may contact the Department through the Maryland Relay Service at 1-800-735-2258.

For more information contact Randall Carroll, Natural Resources Planner, at (410) 537-3252. Toll free in Maryland call 1-(800) 633-6101 ext. 3252.

Maryland Department of the Environment Air and Radiation Management Administration 1800 Washington Boulevard, Ste. 730 Baltimore, Maryland 21230VDEQ Notice

DEPARTMENT OF ENVIRONMENTAL QUALITY

Public Notice

– Air Quality Plan

Notice of action: The Department of Environmental Quality (DEQ) is seeking

comments and announcing a public hearing on a proposed plan to maintain compliance with the 1997 fine particulate matter ( PM 2.5 ) national ambient air quality standard (NAAQS) in the Northern Virginia PM 2.5 Nonattainment Area. T he Commonwealth intends to submit the plan as a revision to the Commonwealth of Virginia State Implementation Plan (SIP) in accordance with the requirements of § 110(a) of the
federal Clean Air Act

. The SIP is the plan developed by the Commonwealth in order to fulfill its responsibilities under the Act to attain and maintain the ambient air quality standards promulgated by the U.S. Environmental Protection Agency (EPA) under the

Act.

Purpose of notice: DEQ is seeking comments on the overall plan, and on the issue of whether the plan enables the Northern Virginia PM 2.5 Nonattainment Area to maintain compliance with the 1997 PM 2.5 NAAQS until at least 2025.

Public comment period: January 28, 2013 to February 26, 2013.

Public hearing: A public hearing will be conducted at the Fairfax County Government Center, in conference room 2/3, at 7:00 pm on February 25, 2013. The Fairfax County Government Center is located at 12000 Government Center Parkway, Fairfax, Virginia 22035. A map and directions may be found at http://www.fairfaxcounty.gov/maps/county/government-center.htm

.

Description of propos al : The propos al consists of the following.

1. Air quality maintenance plan in support of a concurrent request to redesignate the Northern Virginia PM 2.5 Nonattainment Area (Counties of Arlington, Fairfax, Loudoun, and Prince William; Cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park) to attainment: The purpose of the plan is to ensure that emissions of

PM 2.5 , sulfur dioxide (SO 2 ), and nitrogen oxides (NO X ) do not exceed the 2007 attainment year levels through 2025, enabling the area to continue meeting the 1997
NAAQS for PM 2.5 . The plan contains control measures that are currently in place and

will be continued in order to maintain the PM 2.5 , SO 2 , and NO X emissions at or below the 2007 levels. These measures include, but are not limited to, federal control programs for on-road and non-road engines as well as limitations on local power plants. The plan also contains a program of contingency measures to be implemented if the air quality monitoring stations in the area record a violation of the 1997 PM 2.5 NAAQS or if emissions in the area increase above the 2007 levels, as well as information concerning emissions estimates, growth assumptions, emission factors, and reduction assumptions.

2

. Motor vehicle emissions budgets for the years 2007, 2017, and 2025: The purpose of the motor vehicle emissions budgets is to ensure that transportation emissions conformVDEQ Notice

to the requirements of the proposed plan for maintaining compliance with the 1997

PM 2.5 NAAQS (transportation conformity).

The proposed PM 2.5 redesignation request and maintenance plan were prepared by the Metropolitan Washington Air Quality Committee (MWAQC), which consists of elected officials from the affected localities and representatives of state transportation and air quality planning agencies.

The maintenance plan, which contains the motor vehicle emissions budgets, will be submitted as a SIP revision in conjunction with a request to EPA from the Commonwealth to redesignate the Northern Virginia PM 2.5 Nonattainment Area as
attainment/maintenance

. DEQ is accepting comments on both the redesignation request and maintenance plan, but the redesignation request will not be submitted as part of the SIP revision.

Federal information: This notice is being given to satisfy the public participation requirements of federal regulations (40 CFR 51.102). The proposed maintenance plan and supporting technical documents will be submitted as a revision to the Commonwealth of Virginia SIP under § 110(a) of the federal Clean Air Act in
accordance with 40 CFR 51.104.

How to comment: DEQ accepts written comments by email, fa x, and postal mail. I n order to be considered, comments must include the full name, address, and telephone number of the person commenting and be received by DEQ no later than the last day of the comment period. Both oral and written comments are accepted at the public hearing. DEQ prefers that comments be provided in writing, along with any supporting

documents or exhibits

. Comments on the redesignation request and maintenance plan must be submitted to Doris A. McLeod, Air Quality Planner, Division of Air

– Data Analysis and Planning, Department of Environmental Quality, 629 E. Main St, PO Box

1105

, Richmond, Virginia 232 18 (phone 804- 698 -4197, fax 804-698-4510, email doris.mcleod@deq.virginia.gov ). All materials received are part of the public record.

To review the proposal: The proposal and any supporting documents are available on
the DEQ Air Public Notices for Plans web site ( http://www.deq.state.va.us/Programs/Air/PublicNotices/airplansandprograms.aspx ). The documents may also be obtained by contacting the DEQ representative named

above

. The public may review the documents between 8:30 am and 4:30 pm of each business day until the close of the public comment period at the following DEQ locations: 1) Main Street Office, 8th Floor, 629 E. Main St, Richmond, VA, 804-698- 4070 and 2) Northern Regional Office, 13901 Crown Court, Woodbridge, VA

, 703-583-

3800

TEMPLATES\SIP-PLAN\PP02N- PH
SIP\REDESGN\NVA3- PM \NVPM-NOTICE.DOC1 February 19, 2013

VIA E-MAIL ( rcarroll@mde.state.md.us )

Randall Carroll, Natural Resources Planner Maryland Department of the Environment Air and Radiation Management Administration 1800 Washington Boulevard, Ste. 730 Baltimore, MD 21230

RE : Sierra Club Comments Regarding Maryland Proposed PM 2.5 Redesignation

Dear Mr

. Carroll,

Pursuant to the Maryland Department of the Environment’s (“MDE’s”) Notice of Public Hearing, the Sierra Club submits the following comments regarding MDE ’s proposed Maryland Redesignation Request & Maintenance Plan State Implementation Plan for Fine Particulate Matter (PM 2.5 ) (“Re designation Request”) for the District of Columbia-Maryland-and Virginia (“DC

- MD

- VA”) 1997 daily and annual PM 2.5 NAAQS nonattainment area.

As s et forth below, the Redesignation Request cannot be approved at this time because it

fails to meet the r equirements set forth for redesignation. Specifically, the Redesignation Request must be revised to address the following issues:

(1) The Redesignation Request fails to appropriately address ammonia and volatile organic compounds (“VOCs”) as PM 2.5 precursors, as is required under the D.C. Circuit’s recent ruling in NRDC v. EPA , Case No. 08-1250 (D.C. Cir. Jan. 4, 2013);

(2) The Redesignation Request fails to adequately analyze the effect that redesignation will

have on Maryland’s compliance with other NAA QS , including the 2006 24-hour PM 2.5 NAAQS and 2013 annual PM 2.5 NAAQS, and with regional haze; and

(3) The Redesignation Request’s draft maintenance plan fails to consider recent EPA decisions regarding mobile source emissions.

The redesignati on request in its current form must be revised and should only resubmitted once

MDE has addressed these issues.

I. BACKGROUND

A. Factual Background

In July 1997, the U.S. Environment al Protection Agency (“ EPA ”) revised the National Ambient Air Quality Standard (“ NAAQS ”) for particulate matter and established primaryMr. Carroll

Page 2 of 5 February 19, 2013

2 (health-based) annual and 24-hour standards for fine particulate matter (“ PM 2.5 ”)

. See 62 Fed, Reg. 38652 (July 18, 1997). The annual standard was set at 15.0 micrograms per cubic meter (μg/m 3 ), based on the 3-year a verage of annual mean PM 2.5 concentrations and the 24-hour standard was set at 65 μg/m 3 , based on the 3-year average of the 98th percentile of 24-hour

concentrations.

As MDE has recognized, exposure to elevated levels of PM 2.5 is associated with

numerous adverse human health effects:

The main impacts of PM 2.5 on human health are on the respiratory system and the cardiovascular system. Children, the elderly, and individuals with pre-existing pulmonary or ca rdiac disease are the most susceptible to PM 2.5 pollution. Complications that can arise from exposure to PM 2.5 include decreased lung function, chronic bronchitis, respiratory symptoms such as asthma attacks and difficulty breathing, nonfatal heart attacks, irregular heartbeat, and premature death in individuals with pulmonary or cardiac disease.

Redesignation Request at 1

On December 17, 2004, EPA signed the final rule regarding the initial

PM 2.5 nonattainment areas designations for the PM2.5 standards across the country. The final rule became effective on April 5, 2005. See 70 Fed. Reg. 944 (January 5, 2005). The Washington

DC

- MD -VA area was orig inally designated nonattainment for the 1997 PM 2.5 NAAQS based on air quality data showing that the area did not meet the 15.0 μg/m 3 annual standard.

On January 4, 2013, MDE submitted Maryland’s Redesignation Request and

Maintenance Plan for

the DC- MD -VA nonattainment area for PM 2.5 with regards to the 1997

annua l and daily standards. The Redesignation Request stated that the “ DC

- MD

- VA region’s

federal re ference monitors have demonstrated compliance with the 65 μg/m 3 daily standard since the inception of the PM 2.5 monitoring programs within each state. ” Redesignation Request at 5.

Subsequent to finalizing the 1997 daily and annual NAAQS, EPA has revised each standard. On October 17, 2006, EPA amended the PM 2.5 NAAQS to ratchet down the 24-hour

standard from 65 μg/m 3 to 35 μg/m 3

. See National Ambient Air Quality Standards for Particulate Matter; Final Rule, 71 Fed. Reg. 61144 (Oct. 17, 2006). Mo re recently, on January 15, 2013, EPA finalized its latest PM 2.5 NAAQS, again ratcheting down at least one of the applicable standards. In its January 15, 2013 final rule, EPA lowered the annual PM 2.5 NAAQS

from 15.0 μg/m 3 to 12.0 μg/m 3 , and retained the 24-hour PM 2.5 NAAQS at the 35 μg/m 3 level set by the agency in 2006. National Ambient Air Quality Standards for Particulate Matter; Final Rule, 78 Fed. Reg. 3086 (Jan. 15, 2013).

B. Legal Background

The Clean Air Act establishes a number of requirements that must be present in order for the EPA to approve a req uest to redesignate an area from nonattainment to attainment. Specifically, the EPA can only approve a redesignation request if:Mr. Carroll

Page 3 of 5 February 19, 2013

3 (i) the Administrator determines that the area has attained the national ambient air quality standard;

(ii) the Administrator has fully approved the applicable implementation plan for the area under section 110(k);

(iii) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;

(iv) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and

(v) the State containing such area has met all requirements applicable to the area under section 110 and part D.

42 U.S.C. § 7407(d)(3)(E). Each one of these requirements must be met before redesignation is approved.

In light of these requirements, the Sierra Club offers the following recommendations regarding necessary revisions to Maryland’s redesignation request.

II. SUBSTANTIVE COMMENTS

A. MDE Shou ld Revise Its Redesignation Request to Address Ammonia and VOCs’

Contribution to PM 2.5 In the DC- MD -VA Nonattainment Area

On January 4, 2013, the D.C. Circuit struck down EPA’s Implementation Rule for PM 2.5

. NRDC v. EPA , Case No. 08-1250 (D.C. Cir. Jan. 4, 2013). In holding that EPA impermissibly promulgated its PM 2.5 implementation rules pursuant to the general implementation provisions of Subpart I of Part D of Title I of the Clean Air Act rather than Subpart 4, the Court observed that under Subpart 4, precursor pollutants (such as ammonia) are presumptively regulated. See id.

, slip op. at 14 n.7. Consequently, MDE’s election to ignore both VOCs and ammonia, which it expressly acknowledged to be precursors of PM 2.5 , see Redesignation Request at 9-10, i s impermissible in light of the D.C. Circuit’s decision in NRDC

. This deficiency must be remedied before EPA can approve MDE ’ s redesignation request.

B. MDE Should Revise the Draft Maintenance Plan to Consider How Redesignation Will Impact Attainment of Other NAAQS

The Clean Air Act requires that, “[t]he Administrator shall not approve a r evision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further pro gress (as defined in section 7501 of this title), or any other applicable requirement of this chapte r.” 42 U.S.C. § 7410(l). E PA cannot approve a re designation withoutMr. Carroll

Page 4 of 5 February 19, 2013

4 an adequate analysis of the effects that redesignation will have on other NAAQS and visibility. With respect to the 1-hour NO

x NAAQS, the 1-hour SO 2 NAAQS, the 2008 ozone NAAQS, and visibility MDE has failed to conduct an adequate analysis. Without such an analysis, MDE

cannot ensure that r edesignation will not interfere with attainment or reasonable further progress of the NAAQS and thus c annot approve the redesignation.

Nonattainment areas are required to have approved Reasonable Available Control Measures (“RACM”) and Reasonably Available Control Technology Programs (“RACT”) for

PM 2.5 . Once an area reaches attainment, these requirements are stayed, halting any benefits of the programs. MDE itself stated that if EPA m akes an attainment determination, this would suspend “reasonably ava ilable control measures/reasonably available control technology

determinations.” See Redesignation Request at 14. RACM and RACT programs aimed at reducing PM 2.5 also reduce levels o f NO

x , SO 2 , and ozone. Suspending the RACM/RACT programs has the potential t o interfere with attainment of the 2006 24-hour PM 2.5 NAAQS, the

2013 annua l PM 2.5 NAAQS, the 1-hour NO

x NAAQS, the 1-hour SO 2 NAAQS, and the 1997 and 2008 ozone NAAQS, as well as visibility. It also has the potential to result in Maryland being designated nonattainment for the 2006 and recently finalized 2013 PM 2.5 NAAQS.

MDE needs to demonstrate that removing this co-benefit will not interfere with NAAQS attainment, RACT, rea sonable further progress and any other applicable requirement for the

2006 24-hour PM 2.5 NAAQS , the annual PM 2.5 NAAQS, 1-hour NO

x NAAQS, the 1-hour SO 2 NAAQS, the 2008 ozone NAAQS, and visibility. While MDE has shown a general trend of

reductions in NO

x and SO 2 , MDE fails to establish that these reductions have achieved compliance with the more recent NAAQS. Nor has MDE shown that further reductions would

not be achieved in the 1- hour NO

x NAAQS, the 1-hour SO 2 NAAQS, and the 2008 ozone NAAQS by virtue of fully implementing the nonattainment SIP provisions for the PM 2.5 NAAQS. Similarly, MDE has not addressed the impacts on visibility if the areas were redesignated. The refore, MDE’s draft maintenance plan should be revised t o demonstrate that redesignation will not interfere with attainment, RACT, and/or reasonable further progress of the NAAQS.

C. Maryland Should Revise Its Maintenance Plan to Include Consideration of

EPA’s Decision t o Increase Ethanol Content in Gasoline

A nonattainment area cannot be redesignated until “the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 7505a of this title.” 42 U.S.C. § 7407(d)(3)(E)(iv).

The emissions calculations for on-road mobile sources fail to consider 15% ethanol in gasoline (“E15”). EPA r ecently decided to allow up to 15% ethanol content in gasoline. See 76

Fed. Reg. 4662 (Jan. 26, 2011). An increase in ethanol content will lead to an increase in NO

x and VOCs emissions for which many cars and light duty trucks, and particularly those with pollution control devices, are not designed to process. The increase in NO

x and VOCs emissions, which contribute to PM 2.5 emissions, wil l most likely increase PM 2.5 emission levels.Mr. Carroll

Page 5 of 5 February 19, 2013

5 MDE calculated on-road mobile source emissions using its mobile source emission factor model, MOVES2010a. See Draft Ma intenance Plan at 7

. There is no indication that MDE

accounted for the increase in NO

x and VOCs emissions that will result from use of E15 in their calculations. Thus, for mobile source emission reductions are not permanent and enforceable,

MDE must revise the Draft Mainte nance Plan to fully consider the impact of E15 on NO

x and

VOCs emissions.

III. CONCLUSION

Until the issues d escribed above are appropriately ad dressed, the S tate has not met “all requirements applicable to the area under section 7410 of this title and part D o f this subchapter.” 42 U.S.C. § 107(d )(3)(E). Before MDE submits its Redesignation Request to EPA it should revise the Request and acc ompanying Maintenance Plan to address each of the above concerns.

Respectfully submitted,

Joshua Berman Associate Attorney

Sierra Club 50 F Street NW, 8th Floor Washington, DC 20001 Tel: (202) 650-6062

Email: josh.berman@sierraclub.org1 RECORD OF HEARING AND SUMMARY OF PUBLIC COMMENTS

WASHINGTON DC- MD -VA 1997 PM 2.5 REDESIGNARION REQUEST &

MAINTENANCE PLAN

As required by 40 C.F.R. § 51.102(e), the complete record of the hearing, along with a list of

c ommenters and the text of the written presentations or summary of the oral presentations, is located at the Air Divisions of the Virginia Department of Environmental Quality, Maryland Department of the Environment, and the District Department of the Environment. The department contacts to access this information are:

Virginia Department of Environmental Quality

– Director, Air Division Maryland Department of the Environment

– Director, Air and Radiation Management

Administration District Department of the Environment

– Associate Director, Air Quality Division

The records of the public hearings are blank since no one attended the hearings.

As required by § 2.1(h) of Appendix V of 40 C.F.R. Part 51, below is a summary of the comment

re ceived and responses thereto. Included is a brief statement of the subject, the identification of the commenter, the summary of the comment and the response (analysis and action taken). Each issue is discussed in light of all of the comments received that affect that issue. All comments have been reviewed and responses developed based on an evaluation of the issues raised in consideration of the overall goals and objectives of the air quality program and the intended purpose of the document under review.

1. SUBJECT: Recent litigation regarding PM 2.5

.

COMMENTER: United States Environmental Protection Agency (EPA), Region III

TEXT: On January 4, 2013, in Natural Resources Defense Council v. EPA , the U.S. Court of Appeals for the District of Columbia circuit remanded to EPA the Final Clean Air Fine Particulate Implementation Rule (72 FR 20586, April 25, 2007) and the Implementation of the New Source Review (NSR) program for Particulate Matter Less than 2.5 Micrometers (PM 2.5 ) (72 FR 2831, May 16, 2008). No. 08-1250 (D.C. Cir. January 4, 2013). The Court found that EPA erred in implementing the 1997 PM 2.5 NAAQS pursuant to the general implementation provisions of Subpart 1 of part D of Title I of the Act, rather than the particulate-matter-specific provisions of subpart 4 of part D of Title I. EPA is still interpreting this court decision and its potential implications for redesignation requests and maintenance plans, as well as for motor vehicle emisisons budgets.

RESPONSE: The proposed Redesignation Request and proposed Maintenance Plan fully conform to all current EPA guidance and regulatory requirements. Additionally, these documents provide data conclusively demonstrating that the Washington DC

- MD

VA re gion has complied with the 1997 annual national ambient air quality standard (NAAQS) for PM 2.5 since 2005. For example, see Figures 5-2 and 5-3 of the proposed

Maint enance P lan. Furthermore, the area’s current design value using 2009 -2011 data is 10.8 μg/m 3 , which is 4.2 μg/m 3 less than the 1997 PM 2.5 NAAQS requirement of 15.02

μg/m 3 on an annual basis. Regardless of how EPA decides to implement the NAAQS requirements, given current mandates on a variety of PM 2.5 and PM 2.5 precursor emitting sources, it is improbable that the Washington DC- MD -VA region will ever violate the

1997 PM 2.5 NAAQS in the future. If this improbable event does come to pass, the proposed Maintenance Plan contains, in Section 8, contingency measures to further

reduce PM 2.5 emissions and PM 2.5 precursor emissions. However, every indication is that

PM 2.5 air quality will continue the improvement trends depicted in Figures 5-2 and 5-3 of the proposed Maintenance Plan. The proposed Maintenance Plan notes in Table 5-1 that between the attainment year of 2007 and the out year of 2025, this region is expected to

have reductions in SO 2 emissions of more than 158,000 tons, reductions in NO X emissions of more than 90,700 tons, and reductions in primary PM 2.5 emissions of more than 2,700 tons. More information is simply not needed to provide assurances that the area will continue to maintain compliance with the 1997 PM 2.5 NAAQS through 2025.

Should EPA decide to finalize a regulation requiring a different approach to the development of a 1997 PM 2.5 NAAQS maintenance plan, the Washington DC- MD

- VA region will review those requirements at that time to determine if they warrant the creation and submittal of a subsequent state implementation plan (SIP) revision.

No modification to the proposed documents was made based on this comment.

2. SUBJECT: CSAPR.

COMMENTER: United States Environmental Protection Agency, Region III

TEXT: On August 21, 2012, the Court of Appeals for the D.C. Circuit issued a decision to vacate the Cross State Air Pollution Rule (CSAPR). In that decision, the Court also ordered EPA to continue administering the Clean Air Interstate Rule (CAIR) “pending the promulgation of a valid replacement.” EME Homer City Generation, L.P. v. EPA , No. 11- 1302 (D.C. Cir. Aug. 21, 2012), reh’g denied (per curiam) (Jan.24, 2013). While the D.C. Circuit has denied a rehearing of the decision to remand CSAPR, EPA is evaluating the ramifications of that decision and its potential implications for redesignation requests and maintenance plans.

RESPONSE: The proposed Redesignation Request and proposed Maintenance Plan do not rely on CSAPR or CAIR to facilitate the emission reductions from facilities located within the Washington DC- MD -VA nonattainment area that might have had either of these regulations as applicable requirements. Rather, these documents rely upon federally enforceable consent agreement requirements, federally enforceable permit requirements, permanent retirement of electrical generating units, and requirements contained within the Maryland Healthy Air Act to control the emissions of electrical generating units within the Washington DC- MD -VA region. More detail on these requirements may be found in Section 3.2.2 of the proposed Redesignation Request and in Section 5.2.2 of the proposed Maintenance Plan. No further requirements are needed

to ensure that the area complies with the 1997 PM 2.5 NAAQS until at least 2025.3

No modification to the proposed documents was made based on this comment.

3. SUBJECT: Product Emissions

COMMENTER: United States Environmental Protection Agency, Region III

TEXT: The second paragraph in the proposed maintenance plan under Section 5.2.2.4 Future Control Strategies reads as follows:

The Washington DC- MD -VA area will work with jurisdictions and USEPA to demonstrate the feasibility of (and get SIP credit for) achieving reductions across the entire region from market forces that will result in cleaner products being distributed across the entire region even when the regulations driving the cleaner products have only been adopted in a part of the region.

Please clarify what is meant by “cleaner products.”

RESPONSE: In this context, “cleaner products” include consumer, commercial, institutional and industrial goods and technologies sold on the market ( e.g, paints, adhesives, sealants, fuels) that have a capacity to inherently emit less pollution as compared to other similar products.

No modification to the proposed documents was made based on this comment.

4. SUBJECT: SO 2 NAAQS Proposed Guidance

COMMENTER: Ms. Pamela F. Faggert, Vice President and Chief Environment Officer, Dominion

TEXT: The commenter requests that language in Section 5.2.2.1.4 of the proposed maintenance plan, which provides information on EPA’s proposed approach for implementing the 2010 SO 2 NAAQS, be either reworded or removed from the document.

RESPONSE: The commenter is correct that the language in the proposed Maintenance Plan regarding implementation of the 2010 SO 2 NAAQS is obsolete. Reference to EPA’s proposed guidance has been removed from the document.

5. SUBJECT: D.C. Circuit Court Case, NRDC v. EPA , Case No. 08-1250

COMMENTER: Mr. Joshua Berman, Associate Attorney, Sierra Club

TEXT: The Redesignation Request fails to appropriately address ammonia and volatile organic compounds (“VOCs”) as PM 2.5 precursors, as is required under the D.C. Circuit’s recent ruling in NRDC v. EPA , Case No. 08-1250 (D.C. Cir. Jan. 4, 2013);

On January 4, 2013, the D.C. Circuit struck down EPA’s Implementation Rule for4

PM2.5. NRDC v. EPA , Case No. 08-1250 (D.C. Cir. Jan. 4, 2013). In holding that EPA impermissibly promulgated its PM2.5 implementation rules pursuant to the general implementation provisions of Subpart I of Part D of Title I of the Clean Air Act rather than Subpart 4, the Court observed that under Subpart 4, precursor pollutants (such as ammonia) are presumptively regulated. See id. , slip op. at 14 n.7. Consequently, MDE’s election to ignore both VOCs and ammonia, which it expressly acknowledged to be precursors of PM2.5, see Redesignation Request at 9-10, is impermissible in light of the

D.C. Circuit’s decision in NRDC . This deficiency must be remedied before EPA can approve MDE’s redesignation request.

RESPONSE: The proposed Redesignation Request and Maintenance Plan of the Washing ton DC- MD

- VA area, in which Maryland is a regional contributor, fully complies with all requirements of the 1997 PM 2.5 NAAQS. Notwithstanding recent litigation and EPA’s anticipated interpretation of the decision and its impacts on redesignation requests, the regional SIP demonstrates that air monitoring data in the Washington DC- MD -VA area has met the PM 2.5 NAAQS since 2005. Furthermore, the area’s current design value using 2009 -2011 data is 10.8 μg/m 3 , which is 4.2 μg/m 3 less

than the 1997 PM 2.5 NAAQS requirement of 15.0 μg/m 3 on an annual basis. The monitoring and design value data reflects a measurement of all PM 2.5 precursors and conforms to all EPA guidance. The proposed Maintenance Plan notes in Table 5-1 that between the attainment year of 2007 and the out year of 2025, this region is expected to

have reductions in SO 2 emissions of more than 158,000 tons, reductions in NO X emissions of more than 90,700 tons, and reductions in primary PM 2.5 emissions of more than 2,700 tons. The information supplied in the Redesignation Request provides all the assurances needed that the area will continue to maintain compliance with the 1997 PM 2.5 NAAQS through 2025.

As an ozone nonattainment area, the Washington DC- MD -VA region has focused on

VOC controls for some time. These controls have contributed to the downward trend of

PM 2.5 concentrations. The selected SO 2 controls accomplish compliance with the 1997

PM 2.5 NAAQS in a more cost-effective manner than additional VOC controls.

EPA is considering the ramifications of the court decision. EPA’s interpretation of the court decision will be posted in the Federal Register and therefore will be open to comment. Any decision on the Redesignation Request and Maintenance Plan will be

do ne in accordance with EPA interpretation of the decision. Should EPA decide to finalize a regulation requiring a different approach to the development of a 1997 PM 2.5 NAAQS maintenance plan, the Washington DC- MD -VA region will review those requirements at that time to determine if they warrant the creation and submittal of a subsequent SIP revision.

No modification to the proposed documents was made based on this comment.

6. SUBJECT: D.C. Circuit Court Case, NRDC v. EPA , Case No. 08-1250

COMMENTER: Mr. Joshua Berman, Associate Attorney, Sierra Club5

TEXT: The Redesignation Request fails to adequately analyze the effect that redesignation will have on Maryland’s compliance with other NAAQS, including the

2006 24 -hour PM 2.5 NAAQS and 2013 annual PM 2 .5 NAAQS, and with regional haze;

RESPONSE: Section 107(d)(3)(E) of the Clean Air Act, as amended, states that an area can be redesignated to attainment if the following conditions are met:

1. EPA has determined that the national ambient air quality standard s (NAAQS) have

bee n attained.

2. The applicable implementation plan has been fully approved by EPA under section 110(k).

3. EPA has determined that the improvement in air quality is due to permanent and

enforceable reductions in emissions.

4. The State has met all applicable requirements for the area under section 110 and Part

D.

5. EPA has fully approved a maintenance plan, including a contingency plan, for the

area under section 175A.

The Washington DC- MD -VA proposed Redesignation Request and Maintenance Plan, in which Maryland is a regional contributor, fully complies with all requirements of the

1997 PM 2.5 NAAQS. Maryland is not nonattainment for the 2006 24-hour PM 2.5 NAAQS and will be recommending an attainment designation for the 2013 annual PM 2.5 NAAQS. The controls in the proposed Redesignation Request and Maintenance Plan will provide benefits toward these standards and toward regional haze. Since the Redesignation Request and Maintenance Plan show continuing downward trends in PM 2.5 well below the 2007 attainment year inventory, it follows that the region will continue in attainment of standards it

has not violated.

No modification to the proposed documents was made based on this comment.

7. SUBJECT: EPA’s Decision to Increase Ethanol Conte nt in Gasoline

COMMENTER: Mr. Joshua Berman, Associate Attorney, Sierra Club

TEXT: The Redesignation Request’s draft maintenance plan fails to consider recent EPA decisions regarding mobile source emissions. Maryland Should Revise Its

Maintenance Plan to Include Consideration of EPA’s Decision to Increase Ethanol

Content in Gasoline.

RESPONSE: The region has prepared a Maintenance Plan based upon current requirements and standards as determined by EPA. The Maintenance Plan ensures against changes and uncertainties in mobile source emissions by establishing motor vehicle emission budgets for several key years. Each new transportation plan or transportation improvement program is tested against these budgets. Regardless of changes in fuels, fleets, or vehicle miles traveled, mobile source emissions must be equal

to or less than these budgets.6

The Maintenance Plan constitutes a SIP revision and must provide for maintenance of the relevant NAAQS in the area for at least 10 years after redesignation, including additional measures to ensure prompt correction of any violation of the NAAQS. The state must also submit a SIP revision eight years after the original redesignation request is approved to provide for maintenance of the NAAQS for an additional 10 years following the first

10 -year period.

The Maintenance Plan contains a commitment to enact and implement additional contingency measures expeditiously in the event that future violations of the NAAQS

o ccur and a list of potential contingency measures that would be implemented in such an

event.

As such, the Maintenance Plan has adequate provisions to address any future regulations, court decisions, or unexpected events. These future scenarios will be evaluated as

needed.