SUBJECT: Approval and Promulgation of Air Quality Implementation Plans; Maryland; Amendments to Maryland’s Ambient Air Quality

Standards ; [ EPA

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– Memorandum to the Docket

/s/

FROM: Christopher Cripps, Projec t Officer March 27, 2013

Office of Air Program Planning

TO: File for Docket EPA

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THRU: Cristina Fernandez , Associate Director /s/

Office of Air Program Planning

I. Background:

On February 11, 2013 (78 FR 9593), EPA issued a dir ect final rulemaking notice (DFRN) to approve revisions to the State of Maryland State Implementation Plan (SIP)

. The revisions pertain to adoption through incorporation by reference of the national ambient air quality standards (NAAQS) by the State of Ma ryland

. EPA is approving these revisions that adopt the NAAQS for ozone (O3), sulfur dioxide (SO2), nitrogen dioxide (NO2), lead (Pb), particulate matter (PM) and carbon monoxide (CO) as well as the relevant reference and equivalent monitoring methods th rough incorporation by reference into the Code of Maryland regulations (COMAR) on an “ as amended ” basis which will prospectively incorporate all future revisions and additions to the NAAQS in accordance with the requirements of the Clean Air Act (CAA).

I n that DFRN EPA stated:

“ EPA is publishing this rule without prior proposal because EPA views this as a

noncontroversial amendment and anticipates no adverse comment. However, in the ‘Proposed Rules’ section of today’s Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if

adverse comments are filed

. This rule will be effective on April 12, 2013 without

further notice unless EPA receives adverse comment by March 13, 2013

. If EPA

receives ad verse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. ” (78 FR 9593 at 9594)2

EPA also noted that:

“ EPA’s policy is that all comments received will be included in the public do cket without change, and may be made available online at 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 i s restricted by statute.

... The 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. ” (78 FR 9593 at 9593)

II. The Comment Rec eived:

On February 14 2013 , a comment was received on Air Quality Implementation Plans; Approval and Promulgation: Maryland; Amendments to Maryland's Ambient Air Quality Standards

, Docket ID: EPA

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“ It appears that this is a gobal warming preventative

. I am concerned from where the data was collected for the basis of this new reguation

. It appears to be from a

source that has been discredited. ” (Docket item number: EPA

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III. EPA’s Analysis & Review:

A. Applicable Standards Regarding Comments:

Generally EPA is required to consider any comments received during the public comment period specifically any comments adverse to or opposing the proposed action. In the final rule, EPA is required to respond to significant comments or criticisms submitted during the comment period. 1

However, this does not mean EPA must consider or respond to insubstantial comments or to

comments that fail to provide EPA with enough in formation to address the alleged failing of the

rule.

The Court of Appeals for the D.C. Circuit has said “ the opportunity to comment is meaningless unless the agency responds to significant points raised by the public.” Home Box Office, Inc. v.

FCC , 567 F.2d 9, 35

- 36 (D.C. Cir. 1977). However, the same Court has said “[t] hat said, an agency’s failure to address a particular comment or category of comments is not an APA

violation per se

. See, e.g.

, Thompson v. Clark , 741 F.2d 401, 408 (D.C. Cir. 1984) ( ‘ [APA § 553]

1 This is required under either CAA section 307(d)(6) or Administrative Procedures Act (APA) section 553 (5 U.S.C. 553). Section 307(d) applies to the rulemaking actions enumerated in §307(d)(1) which includes “such other

action s as the [EPA] may determine.” Both 307(d) and APA section 553 have substantively the same process and requirements regarding comment.3

has never been interpreted to require the agency to respond to every comment, or to analyze every issue or alternative raised by the comments, no matter how insubstantial.’).” See also Sherley v. Sebelius

, 689 F.3d 776 (D.C. Cir. 2012), cert de nied 133 S.Ct. 847 (2103)

. The D.C.

Circuit has further stated: “ We review an agency’s response to comments under the same arbitrary

- and

- capricious standard to which we hold the rest of its actions. See Home Box Office

, 567 F.2d at 35 n.58. Put simply, “[t]he failure to respond to comments is significant only insofar as it demonstrates that the agency’s decision was not based on a consideration of the relevant

factors.” Covad Communs. v. FCC , 450 F.3d 528, 550 (D.C. Cir. 2006) (quoting Thompson , 741

F.2d at 409), reh’g denied 2006 U.S. App. LEXIS 21377 (D.C. Cir. Aug. 17, 2006).

In short, EPA believes that the comments submitted were are not on the subject of the rulemaking, are insignificant and insubstantial, and do not provide reasonable, enough or any information regarding any alleged flaw in EPA’s decision making process or EPA’s consideration of the relevant factors. Therefore, EPA concludes the comments do not require a response nor should such a comment or comments deter EPA from issuing a fina l rule.

B. Statement of the basis for the Proposed Action:

Prior to the September 17, 2012 revisions to the Code of Maryland Regulations (COMAR) Title 26, subtitle 11 , Chapter 04 (COMAR 26.11.04) which are the subject of this EPA action, EPA last app roved the State of Maryland’s regulations regarding the NAAQS of 40 CFR Part 50 on June 14, 2006 ( 71 FR 34257 ). The State of Maryland updated its regulations to include revisions to existing NAAQS and additional NAAQS (along with the relevant definitions, reference conditions and methods of measurement) that EPA promulgated during the 2006 through 2010 time period (as discussed in the DFRN (78 FR 9593 at 9594). Instead of the prior practice of restating each standard in COMAR text for each NAAQS in 40 CFR Part 50, Maryland elected to incorporate by reference (IBR) the NAAQS of 40 CFR Part 50 (along with the relevant definitions, reference conditions and methods of measurement found in 40 CFR Parts 53 and 58) saving the need to repeat the pertinent verbiage of 40 CFR Parts 50, 53 and 58.

Furthermore, Maryland elected to IBR these provisions “ as amended ” which in terms of COMAR regulatory text, is incorporating by reference future amendments to the se provisions. That is, by IBR of these Federal NAAQS prov isions “as amended” means that the IBR will amend Maryland’s SIP to reflect such additions and revisions of these Federal provisions without

further rulemaking action by the State of Maryland or EPA . The action was explained in the DFRN (78 FR 9593 at 959 4).

EPA shall approve a SIP revision submittal if it meets all the applicable requirements of the

CAA. See CAA section 110(k)(3). Therefore , EPA believes the “ relevant factors” for EPA’s review and rulemaking on this SIP are: (1) can Maryland IBR Fede ral rules on a prospective basis, that is “as amended” (2) has Maryland adequately done so as far as clarity as to what substantive provisions would be included in Maryland’s SIP; and (3) does the CAA otherwise preclude such an action? EPA believes the ans wer to the first two is “yes” and the last “no.” This action has nothing to do with addressing “g[l]obal warming” also known as “climate change” or regulation of “greenhouse gases.” Furthermore this action did not rely upon any data but solely upon a str aightforward legal inquiry.4

C. Application to Comment Docket item EPA

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While the submitted comment can be construed to criticize EPA’s decision making in this rulemaking as the commenter stated a concern “ from where the data was collected for the basis

of this new regulation” and stated a concern that data “ appears to be from a source that has been

discredited .” However, as explained in the preceding paragraphs, this rulemaking action did not rely upon any data.

Also, the com ment apparently makes reference to either the present rulemaking or Maryland’s regulation as being somehow related to preventing global warming. However, the comment does not provide any reasoning for how an action to adopt the NAAQS by a State relates to global warming nor does the comment say if this relationship to global warming is a reason to approve Maryland’s regulation into the Maryland SIP or not to approve it

. EPA believes that given the lack of specific direction from the comment any conclusion about which data to which the commenter refers would be pure speculation.

The comment does not identify what data is discredited or even how the alleged discredited data should affect EPA’s consideration of whether or not to approve the Maryland Regula tion at issue in this rulemaking into the Maryland SIP.

Furthermore, the comment does not say how EPA should change its decision (or arguably even if EPA should do so). EPA concludes that this comment was either misdirected and meant to

address some othe r rulemaking (as this rulemaking is related to adoption of the NAAQS and not related to climate change) or that this comment is insignificant, insubstantial, and unrelated to the present rulemaking. Therefore, EPA concludes that this comment does not requ ire a response.

EPA believes it provided fair warning that comments provided without contact information via

the www. regulations.gov anonymous portal might not be considered if EPA cannot read the

comment due to technical difficulties . In this case, EP A did not have any contact information

and so was unable to find out if there was more substance the commenter tried to submit.

IV. Conclusion:

For the reasons stated above, EPA believes that the comment received, while possibly adverse or

critical o f EPA’s proposed action or decision

- making process, does not require a response as part of a final rule notice because the comment lacks any specificity about why EPA should reconsider the proposed approval and lacks relevance to EPA’s action and the basis for such

action.