[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Proposed Rules]
[Pages 58206-58210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24098]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2010-0986; FRL-9468-3]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia, Maryland, and Virginia; Determinations of
Attainment of the 1997 8-Hour Ozone National Ambient Air Quality
Standard for the Washington, DC-MD-VA 8-Hour Ozone Moderate
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to make two determinations regarding the
Washington, DC-MD-VA moderate 8-hour ozone nonattainment area (the
Washington Area). First, EPA is proposing to make a determination that
the Washington Area has attained the 1997 8-hour ozone National Ambient
Air Quality Standard (NAAQS). This proposed determination is based upon
complete, quality assured, and certified ambient air monitoring data
that show the area has monitored attainment of the 1997 8-hour ozone
NAAQS for the 2007-2009 and 2008-2010 monitoring periods. If this
proposal becomes final, the requirement for this area to submit an
attainment demonstration, reasonably available control measures (RACM),
a reasonable further progress (RFP) plan, and contingency measures
related to attainment of the 1997 8-hours ozone NAAQS shall be
suspended for so long as the area continues to attain the 1997 8-hour
ozone NAAQS. Although these requirements are suspended, EPA is not
precluded from acting upon these elements at any time if submitted to
EPA for review and approval. Second, EPA is also proposing to determine
that the Washington Area has attained the 1997 8-hour ozone NAAQS by
its attainment date of June 15, 2010. These actions are being taken
under the Clean Air Act (CAA).
DATES: Written comments must be received on or before October 20, 2011.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2010-0986 by one of the following methods:
A. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. E-mail: [email protected].
C. Mail: EPA-R03-OAR-2010-0986, Cristina Fernandez, Associate
Director, Office of Air Quality Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2010-0986. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the
Air Protection Division, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
[[Page 58207]]
FOR FURTHER INFORMATION CONTACT: Maria A. Pino, (215) 814-2181, or by
e-mail at [email protected].
SUPPLEMENTARY INFORMATION: For detailed information regarding this
proposal, EPA prepared a Technical Support Document (TSD). The TSD can
be viewed at http://www.regulations.gov. The following outline is
provided to aid in locating information in this action.
I. What is EPA proposing?
II. What is the background for these actions?
III. What are the effects of these actions?
IV. What is EPA's analysis of the relevant air quality data?
V. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
VI. Proposed Actions
VII. Statutory and Executive Order Reviews
I. What is EPA proposing?
Pursuant to sections 181(b)(2)(A) and 179(c) of the CAA, EPA is
proposing to determine that the Washington Area attained the 1997 8-
hour ozone NAAQS by its attainment date, June 15, 2010. This proposed
determination is based upon complete, quality assured, and certified
ambient air monitoring data for the 2007-2009 monitoring period that
show the area has monitored attainment of the 1997 8-hour ozone NAAQS
during this monitoring period. Complete, quality assured, and certified
ambient air monitoring data for the 2008-2010 monitoring period shows
continued attainment.
EPA is also proposing to make a determination that the Washington
Area has attained the 1997 8-hour ozone NAAQS. This proposed
determination is based upon complete, quality assured, and certified
ambient air monitoring data that show the area has monitored attainment
of the 1997 8-hour ozone NAAQS for the 2007-2009 and 2008-2010
monitoring periods. Once this proposal is final, the requirement for
this area to submit an attainment demonstration, reasonably available
control measures, a reasonable further progress plan, and contingency
measures related to attainment of the 1997 8-hours ozone NAAQS shall be
suspended for so long as the area continues to attain the 1997 8-hour
ozone NAAQS. Although these requirements are suspended, EPA is not
precluded from acting upon these elements at any time if submitted to
EPA for review and approval. The District of Columbia, the State of
Maryland, and the Commonwealth of Virginia submitted these SIP elements
for the Washington Area to EPA for review and approval in June 2007.
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour
ozone standard of 0.075 parts per million (ppm). On January 6, 2010,
EPA again addressed this 2008 revised standard and proposed to set the
primary 8-hour ozone standard within the range of 0.060 to 0.070 ppm,
rather than at 0.075 ppm. EPA is working to complete reconsideration of
the standard and thereafter will proceed with attainment/nonattainment
area designations. This proposed rulemaking relates only to a
determination of attainment for the 1997 8-hour ozone standard and is
not affected by the ongoing process of reconsidering the 2008 standard.
This action addresses only the 1997 8-hour ozone standard of 0.08 ppm,
and does not address any subsequently revised 8-hour ozone standard.
II. What is the background for these actions?
A. The Washington Area
In 1997, EPA revised the health-based NAAQS for ozone, setting it
at 0.08 ppm averaged over an 8-hour time frame. EPA set the 8-hour
ozone standard based on scientific evidence demonstrating that ozone
causes adverse health effects at lower ozone concentrations and over
longer periods of time, than was understood when the pre-existing 1-
hour ozone standard was set. EPA determined that the 8-hour standard
would be more protective of human health, especially children and
adults who are active outdoors, and individuals with a pre-existing
respiratory disease, such as asthma.
On April 30, 2004 (69 FR 23951), EPA finalized its attainment/
nonattainment designations for areas across the country with respect to
the 8-hour ozone standard. These actions became effective on June 15,
2004. Among those nonattainment areas is the Washington Area. The
Washington Area includes the District of Columbia; Arlington, Fairfax,
Loudoun, and Prince William Counties and the cities of Alexandria,
Fairfax, Falls Church, Manassas, and Manassas Park in Virginia; and
Calvert, Charles, Frederick, Montgomery, and Prince George's Counties
in Maryland. The Washington Area was classified as a moderate
nonattainment area. See, 40 CFR 81.309, 81.321 and 81.347. Moderate
areas are required to attain the 1997 8-hour ozone NAAQS by no later
than six years after designation, or June 15, 2010. See, 40 CFR 51.903.
B. Requirement to Determine Attainment by the Attainment Date
Under CAA sections 179(c) and 181(b)(2), EPA is required to make a
determination that a nonattainment area has attained by its attainment
date, and publish that determination in the Federal Register. Under CAA
section 181(b)(2), which is specific to ozone nonattainment areas, if
EPA determines that an area failed to attain the ozone NAAQS by its
attainment date, EPA is required to reclassify that area to a higher
classification.
C. Clean Data Determination
Under the provisions of EPA's ozone implementation rule (See, 40
CFR section 51.918), if EPA issues a determination that an area is
attaining the relevant standard (through a rulemaking that includes
public notice and comment), it will suspend the area's obligations to
submit an attainment demonstration, RACM, RFP, contingency measures and
other planning requirements related to attainment for as long as the
area continues to attain. The determination of attainment is not
equivalent to a redesignation. The state must still meet the statutory
requirements for redesignation in order to be redesignated to
attainment.
D. Ambient Air Quality Monitoring Data
Complete, quality assured, certified 8-hour ozone air quality
monitoring data for 2007 through 2009 show that the Washington Area has
attained the 1997 8-hour ozone NAAQS. The Washington Area continues to
attain the 1997 8-hour ozone NAAQS considering complete, quality
assured, certified 8-hour ozone air quality monitoring data for 2008
through 2010.
III. What are the effects of these actions?
If finalized, the proposed actions will not constitute a
redesignation to attainment under section 107(d)(3) of the CAA. The
designation status of the Washington Area will remain nonattainment for
the 1997 8-hour ozone NAAQS until such time as EPA determines that the
area meets the CAA requirements for redesignation to attainment,
including an approved maintenance plan.
A. Proposed Determination of Attainment by the Attainment Date
EPA is proposing to determine that the Washington Area has attained
the 1997 ozone NAAQS by its applicable attainment date of June 15,
2010. Once this determination of attainment is made final, EPA will
have met its
[[Page 58208]]
requirement pursuant to CAA sections 181(b)(2)(A) and 179(c) to
determine, based on the area's air quality as of the attainment date,
whether the area attained the standard by that date. The effect of a
final determination of attainment by the area's attainment date will be
to discharge EPA's obligation under CAA sections 181(b)(2)(A) and 179,
and to establish that, in accordance with CAA section 181(b)(2)(A), the
area will not be reclassified for failure to attain by its applicable
attainment date.
B. Clean Data Determination
EPA is proposing to determine that the Washington Area is attaining
the 1997 8-hour ozone NAAQS. Once EPA finalizes this determination of
attainment, the CAA requirement for the Washington Area to submit an
attainment demonstration and associated reasonably available control
measures, a reasonable further progress plan, contingency measures, and
any other planning SIPs related to attainment of the 1997 8-hour ozone
NAAQS would be suspended for so long as the area continues to attain
the 1997 8-hour ozone NAAQS.
The determination of attainment will:
1. Suspend the requirements to submit an attainment demonstration,
RACM, RFP plan, contingency measures, and any other planning SIPs
related to attainment of the 1997 8-hour ozone NAAQS;
2. Continue until such time, if any, that EPA (i) redesignates the
area to attainment at which time those requirements no longer apply, or
(ii) subsequently determines that the area has violated the 1997 8-hour
ozone NAAQS;
3. Be separate from, and not influence or otherwise affect, any
future designation determination or requirements for the area based on
any new or revised ozone NAAQS; and
4. Remain in effect regardless of whether EPA designates this area
as a nonattainment area for purposes of any new or revised ozone NAAQS.
Although these requirements are suspended, EPA is not precluded
from acting upon these elements, which were submitted to EPA in June
2007.
IV. What is EPA's analysis of the relevant air quality data?
Consistent with the requirements contained in 40 CFR part 50, EPA
has reviewed the complete, quality assured and certified ozone ambient
air monitoring data for the monitoring periods 2007-2009 and 2008-2010
for the Washington Area, as recorded in the EPA Air Quality System
(AQS) database. On the basis of that review, EPA has concluded that
this area attained the 1997 8-hour ozone NAAQS based on data for the
2007-2009 ozone seasons, and continues to attain based on data for the
2008-2010 ozone seasons.
A. Data Requirements
Under EPA regulations at 40 CFR part 50, the 1997 8-hour ozone
standard is attained at a site when the 3-year average of the annual
fourth-highest daily maximum 8-hour average ozone concentrations at an
ozone monitor is less than or equal to 0.08 parts per million (ppm)
(i.e., 0.084 ppm, based on the rounding convention in 40 CFR part 50,
appendix I). This 3-year average is referred to as the design value.
When the design value is less than or equal to 0.084 ppm at each
monitoring site within the area, then the area is meeting the NAAQS.
Also, the data completeness requirement is met when the average
percent of days with valid ambient monitoring data is greater than 90%,
and no single year has less than 75% data completeness as determined in
appendix I of 40 CFR part 50.
B. 2007-2009 Ozone Data
Table 1 shows the ozone design values for each monitor in the
Washington Area for the years 2007-2009. All 2007-2009 design values
are below 0.084 ppm, and all monitors meet the data completeness
requirements. Therefore, the Washington Area has attained the 1997 8-
hour ozone NAAQS, considering 2007-2009 data.
Table 1--2007-2009 Washington Area 1997 8-Hour Ozone Design Values
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2007-2009
2007-2009 Average %
State County Monitor ID Design value data
(ppm) completeness
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Maryland.............................. Calvert................. 240090011 0.074 92
Charles................. 240170010 0.075 99
Frederick............... 240210037 0.076 98
Montgomery.............. 240313001 0.078 93
Prince George's......... 240330030 0.078 95
240338003 0.078 98
Virginia.............................. Arlington............... 510130020 0.079 100
Fairfax................. 510590005 0.073 99
510590018 0.080 100
510590030 0.080 99
510591005 0.078 93
510595001 0.077 100
Loudoun................. 511071005 0.077 99
Prince William.......... 511530009 0.071 98
Alexandria City......... 515100009 0.075 97
District of Columbia.................. 110010025 0.077 95
110010041 0.078 100
110010043 0.080 100
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C. 2008-2010 Ozone Data
In 2010, four monitors in Fairfax County, Virginia were shutdown
due to lack of funding. Virginia Department of Environmental Quality
(VADEQ) worked with EPA prior to the Fairfax County Health Department
shutting down these monitors. Because the Washington Area has more
ozone monitoring sites than minimally required, and because VADEQ
performed an analysis on the sites that were being shutdown showing a
strong correlation between the ambient ozone data collected at the
Fairfax County
[[Page 58209]]
ozone sites targeted for discontinuation and existing VADEQ ozone air
monitoring sites currently operating in proximity to the Fairfax County
area, EPA approved the shutdowns in VADEQ's 2010 Annual Network Plan.
Therefore, EPA will not consider these monitors for comparison to the
NAAQS with respect to 2010 data.
Table 2 summarizes the 2008-2010 design values for the Washington
Area. All 2008-2010 design values are below 0.084 ppm, and all monitors
meet the data completeness requirements. Therefore, 2008-2010 data
indicates that the Washington Area continues to attain the 1997 8-hour
ozone NAAQS.
Table 2-2008-2010 Washington Area 8-Hour Ozone Design Values
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2008-2010 2008-2010
State County Monitor ID Design value Average % data
(ppm) completeness
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Maryland.............................. Calvert................. 240090011 0.077 93
Charles................. 240170010 0.075 99
Frederick............... 240210037 0.076 98
Montgomery.............. 240313001 0.074 93
Prince George's......... 240330030 0.079 93
240338003 0.077 99
Virginia.............................. Arlington............... 510130020 0.079 95
Fairfax................. 510590030 0.081 94
Loudoun................. 511071005 0.075 94
Prince William.......... 511530009 0.070 94
Alexandria City......... 515100009 0.074 91
District of Columbia.................. ........................ 110010025 0.075 90
110010041 0.077 94
110010043 0.079 95
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D. Conclusion
EPA's review of the complete, quality assured and certified ozone
ambient air monitoring data for the monitoring periods 2007-2009 and
2008-2010 indicates that the Washington Area has met the 19978-hour
ozone NAAQS. Additional information on air quality data for the
Washington Area can be found in the TSD.
V. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia
In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information (1) that are generated or developed
before the commencement of a voluntary environmental assessment; (2)
that are prepared independently of the assessment process; (3) that
demonstrate a clear, imminent and substantial danger to the public
health or environment; or (4) that 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 counterpartsm * * *.'' 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.
[[Page 58210]]
VI. Proposed Action
Pursuant to sections 179 and 181(b)(2)(A) of the CAA, EPA is
proposing to determine that the Washington Area has attained the 1997
8-hour ozone NAAQS by its moderate area attainment date, June 15, 2010.
If EPA finalizes this determination, the requirements to submit an
attainment demonstration and associated RACM, RFP plan, contingency
measures, and any other planning requirements related to attainment of
the 1997 8-hour ozone NAAQS will be suspended, as provided in 40 CFR
section 51.918, so long as the area continues to attain the 1997 8-hour
ozone NAAQS. EPA is soliciting public comments on the issues discussed
in this document. These comments will be considered before taking final
action.
VII. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely proposes to approve state law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, these proposed determinations of attainment of the
1997 8-hour ozone NAAQS for the Washington Area do not have Tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because this proposed action is not approved to
apply in Indian country located in the state, and EPA notes that it
will not impose substantial direct costs on Tribal governments or
preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 31, 2011.
W.C. Early,
Garvin, Regional Administrator, Region III.
[FR Doc. 2011-24098 Filed 9-19-11; 8:45 am]
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