SUBJECT: Technical Support Document (TSD) for the Maryland State Implementation Plan

for Section 11 0(a)(2) Infrastructure Requirements for the 1997 8-hour Ozone and

the 1997 and 2006 Fine Particulate (PM25)National Ambient Air Quality

Standards

FROM: Marilyn Powers, Environmental Engineer IktL4JLL /2’/1

Office of Air Program Planning

TO: FileTHRU: Cristina emandez,

Associate Director, Office of Air Program Planning

A. INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on the State of Maryland

State Implementation Plan (SIP) revisions submitted by the Maryland Department of the

Environment (MDE) to meet the Clean Air Act (CAA) section 11 0(a)(2) requirements for the

revised 1997 8-hour ozone national ambient air quality standards (NAAQS), the 1997 PM2.5

NAAQS, and the 24-hour 2006 PM2.5NAAQS.B. BACKGROUND

1997 8-Hour Ozone and PM2.5NAAQS

On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS (62 FR 38856) and a

new PM2.5NAAQS (62 FR 38652). The revised ozone NAAQS is based on 8-hour average

concentrations. The 8-hour averaging period replaced the previous 1-hour averaging period, and

the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. The newPM2.5established a health-based PM2.5NAAQS at 15.0 micrograms per cubic meter (ig/m 3)

based on a 3-year average of annual mean PM2.5concentrations, and a twenty-four hour standard

of 65ig/m 3based on a 3-year average of the 98th percentile of 24-hour concentrations.

Whenever a new or revised NAAQS is promulgated, section 110(a) of the CAA imposes

obligations upon states to submit SIP revisions that provide for the implementation, maintenance,and enforcement of the new or revised NAAQS within three years following the promulgation of

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In March of 2004, Earthjustice initiated a lawsuit against EPA for failure to take action

against states that had not made SIP submissions to meet the requirements ofsections 110(a)(l)and (2), i.e., failure to make a ‘finding of failure to submit the required SIP 110(a) SIPelements.” On March 10, 2005, EPA entered into a Consent Decree with Earthjustice that

obligated EPA to make official findings, in accordance with section 1 l0(k)(1) ofthe CAA, as to

whether states have made complete SIP submissions, pursuant to sections 110(a)(1) and (2), byDecember 15, 2007 for the 1997 8-hour ozone NAAQS and by October 5, 2008 for the 1997PM2.5NAAQS. EPA made completeness findings for the 1997 8-hour ozone NAAQS on March27, 2008 (73 FR 16205) and on October 22, 2008 (73 FR 62902) for the 1997 PM2.5NAAQS.

These findings pertained only to whether the submissions were complete, pursuant to

1l0(k)(1)(A), and did not constitute EPA approval or disapproval of such submissions.

Two elements identified in section 11 0(a)(2) are not governed by the three year submission

deadline of section 1 10(a)(1) because SIPs incorporating necessary local nonattaininent areacontrols are not due within three years after promulgation of a new or revised NAAQS, but

rather are due at the time the nonattainment area plan requirements are due pursuant to section

172. These elements are: 1) submissions required by section llO(a)(2)(C) to the extent that

subsection pertains to a permit program in part D Title I of the CAA; and 2) any submissions

required by section 1 10(a)(2)(I), which pertain to the nonattainment planning requirements ofpart D Title I ofthe CAA. The determinations required by the March 2005 Consent Decree

excluded any determination regarding such portion of section 11 0(a)(2)(C) and section

110(a)(2)(I); therefore, this action does not cover these specific elements for any ofthe NAAQS

at issue. This action also does not address the requirements of 1 10(a)(2)(D)(i)(I) for the 1997

ozone and PM2.5NAAQS since the requirements of 11 0(a)(2)(D)(i)(I) for these NAAQS have

been addressed by separate findings issued by EPA. See April 25, 2005 (70 FR 21147). On July

6, 2011, the EPA Administrator signed the Cross-State Air Pollution Rule (CSAPR) to address

1 10(a)(2)(D)(i)(I) for these NAAQS. See CSAPR website at

http://www.epa.gov/airquality/transport/index.html. This action also does not include the

portions of 11 0(a)(2)(C), (D)(i)(II), and (J) as they pertain to a permit program as required by

Part C of Title I of the CAA, and the portion of 1 10(a)(2)(D)(i)(II) as it pertains to visibility.These portions ofthese elements will be addressed by separate actions.2006 PM2.5NAAQS

On October 17, 2006 (71 FR 61144), EPA revised the 24-hour average PM2.5primary and

secondary NAAQS from 65 tg/m 3to 35 ig/m 3.As required by section 110(a)(l) of the CAA,

the 11 0(a)(2) submittals were due within three years after promulgation of the revised standard,

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required by Part C of Title I of the CAA, and the portion of 1 10(a)(2)(D)(i)(II) as it pertains tovisibility. These portions of these elements will be addressed by separate actions.SCOPE OF INFRASTRUCTURE SIPS

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA

section 11 0(a)( 1) and (2) for ozone and PM2.5NAAQS for various states across the country.

Commenters on EPA’s recent proposals for some states raised concerns about EPA statements

that it was not addressing certain substantive issues in the context of acting on the infrastructure

SIP submissions.’ Those commenters specifically raised concerns involving provisions in

existing SIPs and with EPA’s statements in other proposals that it would address two issuesseparately and not as part of actions on the infrastructure SIP submissions: (i) existing

provisions related to excess emissions during periods of start-up, shutdown, or malfunction at

sources, that may be contrary to the CAA and EPA’s policies addressing such excess emissions(“S SM”); and (ii) existing provisions related to “director’s variance” or “director’s discretion”

that purport to permit revisions to SIP approved emissions limits with limited public process orwithout requiring further approval by EPA, that may be contrary to the CAA (“director’s

discretion”). EPA notes that there are two other substantive issues for which EPA likewisestated in other proposals that it would address the issues separately: (i) existing provisions for

minor source new source review programs that may be inconsistent with the requirements of the

CAA and EPA’s regulations that pertain to such programs (“minor source NSR”); and (ii)existing provisions for Prevention of Significant Deterioration programs that may be

inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186

(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). In light of

the comments, EPA now believes that its statements in various proposed actions on infrastructure

SIPs with respect to these four individual issues should be explained in greater depth.

EPA intended the statements in the other proposals concerning these four issues merely to

be informational, and to provide general notice ofthe potential existence of provisions within the

existing SIPs ofsome states that might require future corrective action. EPA did not want states,

regulated entities, or members ofthe public to be under the misconception that the Agency’s

approval ofthe infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such

See, Comments of Midwest Environmental Defense Center, dated May 31, 2011. Docket # EPA-R05-OAR-2007-

1179 (adverse comments on proposals for three states in Region 5). EPA notes that these public comments on

another proposal are not relevant to this rulemaking and do not have to be directly addressed in this rulemaking.

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approval of an infrastructure SIP for these ozone and PM2.5NAAQS should not be construed asexplicit or implicit re-approval of any existing provisions that relate to these four substantive

issues.

Unfortunately, the commenters and others evidently interpreted these statements to mean

that EPA considered action upon the SSM provisions and the other three substantive issues to be

integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely

postponing taking final action on the issue in the context of the infrastructure SIPs. This was not

EPA’s intention. To the contrary, EPA only meant to convey its awareness of the potential forcertain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was

reapproving any such existing provisions. EPA’s intention was to convey its position that the

statute does not require that infrastructure SIPS address these specific substantive issues in

existing SIPs and that these issues may be dealt with separately, outside the context of acting on

the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it wasnot taking a full final agency action on the infrastructure SIP submission with respect to any

substantive issue that EPA considers to be a required part of acting on such submissions undersection 110(k) or under section 110(c). Given the confusion evidently resulting from EPA’sstatements in those proposals, however, we want to explain more fully the Agency’s reasons for

concluding that these four potential substantive issues in existing SIPs may be addressedseparately.

The requirement for the SIP submissions at issue arises out of CAA section lI0(a)(1).

That provision requires that states must make a SIP submission “within 3 years (or such shorter

period as the Administrator may prescribe) after the promulgation of a national primary ambient

air quality standard (or any revision thereof)” and that these SIPS are to provide for the

“implementation, maintenance, and enforcement” of such NAAQS. Section 1 l0(a)(2) includesa list ofspecific elements that “[e]ach such plan” submission must meet. EPA has historically

referred to these particular submissions that states must make after the promulgation of a new orrevised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but

EPA uses the term to distinguish this particular type of SIP submission designed to address basicstructural requirements of a SIP from other types of SIP submissions designed to address other

different requirements, such as “nonattainment SIP” submissions required to address thenonattainment planning requirements of part D, “regional haze SIP” submissions required to

address the visibility protection requirements of CAA section 1 69A, new source review

permitting program submissions required to address the requirements of part D, and a host of

other specific types of SIP submissions that address other specific matters.

Although section 11 0(a)( 1) addresses the timing and general requirements for these

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rulemaking, or recommendations through guidance, in order to give specific meaning for a

particular NAAQS. 3

Notwithstanding that section 11 O(a)(2) states that “each” SIP submission must meet the list

of requirements therein, EPA has long noted that this literal reading of the statute is internallyinconsistent, insofar as section 11 O(a)(2)(I) pertains to nonattainment SIP requirements thatcould not be met on the schedule provided for these SIP submissions in section l1O(a)(1). 4 Thisillustrates that EPA must determine which provisions of section 11 O(a)(2) may be applicable fora given infrastructure SIP submission. Similarly, EPA has previously decided that it could takeaction on different parts of the larger, general “infrastructure SIP” for a given NAAQS withoutconcurrent action on all subsections, such as section 11 O(a)(2)(D)(i), because the Agency

bifurcated the action on these latter “interstate transport” provisions within section 11 O(a)(2) and

worked with states to address each of the four prongs ofsection 1 1O(a)(2)(D)(i) with substantive

administrative actions proceeding on different tracks with different schedules. 5 This illustrates

that EPA may conclude that subdividing the applicable requirements ofsection llO(a)(2) into

separate SIP actions may sometimes be appropriate for a given NAAQS where a specificsubstantive action is necessitated, beyond a mere submission addressing basic structural aspects

of the state’s SIP. Finally, EPA notes that not every element of section llO(a)(2) would be

relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS and the

attendant infrastructure SIP submission for that NAAQS. For example, the monitoring

requirements that might be necessary for purposes of section 11 O(a)(2)(B) for one NAAQS could

be very different than what might be necessary for a different pollutant. Thus, the content of an

2 For example, section 1 10(a)(2)(E) provides that states must provide assurances that they have adequate legalauthority under state and local law to carry out the SIP; section 1 l0(a)(2)(C) provides that states must have asubstantive program to address certain sources as required by part C of the CAA; section 110(a)(2)(G) provides that

states must have both legal authority to address emergencies and substantive contingency plans in the event of suchan emergency.

For example, section llO(a)(2)(D)(i) requires EPA to be sure that each state’s SIP contains adequate provisions to

prevent significant contribution to nonattainment of the NAAQS in other states. This provision contains numerous

terms that require substantial rulemaking by EPA in order to detennine such basic points as what constitutes

significant contribution. See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone(Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR

25162 (May 12, 2005)( defining, among other thmgs, the phrase “contribute significantly to nonattainment”).

See, e.g., Id., 70 FR 25162, at 63 —65 (May 12, 2005)(explaining relationship between timing requirement of

section 1 l0(a)(2)(D) versus section 1 10(a)(2)(I)).

EPA issued separate guidance to states with respect to SIP submissions to meet section 1 lO(a)(2)(D)(i) for the

1997 ozone and 1997 PM2.5 NAAQS. See, “Guidance for State Implementation Plan (SIP) Submissions to Meet

Current Outstanding Obligations Under Section 1 10(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient

Air Quality Standards,” from William T. Harnett, Director Air Quality Policy Division OAQPS, to Regional AirDivision Director, Regions I-X, dated August 15, 2006.

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11 0(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the

portion of section 11 0(a)(2)(C) that pertains to part C, the PSD requirement applicable in

attainment areas. Nonattainment SIPs required by part D also would not need to address the

requirements of section 11 0(a)(2)(G) with respect to emergency episodes, as such requirementswould not be limited to nonattainment areas. As this example illustrates, each type of SIP

submission may implicate some subsections ofsection 11 0(a)(2) and not others.

Given the potential for ambiguity of the statutory language ofsection 110(a)(1) and (2),

EPA believes that it is appropriate for EPA to interpret that language in the context of acting on

the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity ofthe list of

requirements in section 11 0(a)(2), EPA has adopted an approach in which it reviews

infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes

that Congress could not have intended that each and every SIP submission, regardless of the

purpose of the submission or the NAAQS in question, would meet each ofthe requirements, ormeet each ofthem in the same way. EPA elected to use guidance to make recommendations for

infrastructure SIPs for these NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the infrastructure

SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM25 NAAQS. 7Within

this guidance document, EPA described the duty ofstates to make these submissions to meetwhat the Agency characterized as the “infrastructure” elements for SIPs, which it further

described as the “basic SIP requirements, including emissions inventories, monitoring, and

modeling to assure attainment and maintenance ofthe standards.” 8 As further identification of

these basic structural SIP requirements, “attachment A” to the guidance document included a

short description of the various elements ofsection 11 0(a)(2) and additional information about

the types of issues that EPA considered germane in the context ofsuch infrastructure SIPs. EPA

emphasized that the description of the basic requirements listed on attachment A was notintended “to constitute an interpretation of’ the requirements, and was merely a “briefdescription of the required elements.” 9EPA also stated its beliefthat with one exception, these

requirements were “relatively self explanatory, and past experience with SIPs for other NAAQS6 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors tomeasure ambient levels of that new indicator species for the new NAAQS.

See, “Guidance on SIP Elements Required Under Section 1 lO(a)(1) and (2) for the 1997 8-hour Ozone and

PM2.5 National Ambient Air Quality Standards,” from William T. Hamett, Director Air Quality Policy Division, toAir Division Directors, Regions I — X, dated October 2, 2007 (the “2007 Guidance”).

8 Id., at page 2.

Id., at attachment A, page 1.

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structure ofthe state’s SIP for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to states with

respect to the infrastructure SIPs for the 2006 PM2.5NAAQS.” In the 2009 Guidance, EPA

addressed a number of additional issues that were not germane to the infrastructure SIPs for the

1997 8-hour ozone and 1997 PM2.5NAAQS, but were gennane to these SIP submissions for the

2006 PM2.5NAAQS, e.g., the requirements ofsection 1 10(a)(2)(D)(i) that EPA had bifurcatedfrom the other infrastructure elements for those specific 1997 8-hour ozone and PM2.5NAAQS.

Significantly, neither the 2007 Guidance nor the 2009 Guidance explicitly refer to the

SSM, director’s discretion, minor source NSR, or NSR Reform issues as among specific

substantive issues EPA expected states to address in the context of the infrastructure SIPs, nordid EPA give any more specific recommendations with respect to how states might address suchissues even ifthey elected to do so. The SSM and director’s discretion issues implicate section

1 10(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 1 10(a)(2)(C).

In the 2007 Guidance, however, EPA did not indicate to states that it intended to interpret these

provisions as requiring a substantive submission to address these specific issues in the context ofthe infrastructure SIPs for these NAAQS. Instead, EPA’s 2007 Guidance merely indicated its

beliefthat the states should make submissions in which they established that they have the basic

SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that

states can establish that they have the basic SIP structure, notwithstanding that there may be

potential deficiencies within the existing SIP. Thus, EPA’s other proposals mentioned these

issues not because the Agency considers them issues that must be addressed in the context of aninfrastructure SIP as required by section 11 0(a)( 1) and (2), but rather because EPA wanted to beclear that it considers these potential existing SIP problems as separate from the pendinginfrastructure SIP actions.

EPA believes that this approach to the infrastructure SIP requirement is reasonable,

because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stemto stern, review of each and every provision of an existing SIP merely for purposes of assuring

JO Id., at page 4. In retrospct, the concerns raised by conunenters with respect to EPA’s approach to some

substantive issues indicates that the statute is not so “self explanatory,” and indeed is sufficiently ambiguous that

EPA needs to interpret it in order to explain why these substantive issues do not need to be addressed in the contextof infrastructure SIPs and may be addressed at other times and by other means.

‘

See, “Guidance on SIP Elements Required Under Sections 1 1O(a)(1) and (2) for the 2006 24-Hour Fine Particle

(PM2.5) National Ambient Air Quality Standards (NAAQS),” from William T, Harnett, Director Air Quality Policy

Division, to Regional Air Division Directors, Regions I -X, dated September 25, 2009 (the “2009 Guidance”).

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elements from section 11 0(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and

to focus attention on those elements that are most likely to need a specific SIP revision in light ofthe new or revised NAAQS. Thus, for example, EPA’s 2007 Guidance specifically directed

states to focus on the requirements of section 11 0(a)(2)(G) for the 1997 PM2.5NAAQS because

of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an

anticipated absence ofrelevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 1 10(a)(1) and (2)

because the statute provides other avenues and mechanisms to address specific substantive

deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriatetailored action, depending upon the nature and severity of the alleged SIP deficiency. Section

llO(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state’s

SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport,

or otherwise to comply with the CAA.’ 2 Section 110(k)(6) authorizes EPA to correct errors in

past actions, such as past approvals of SIP submissions.’ 3Significantly, EPA’s determination

that an action on the infrastructure SIP is not the appropriate time and place to address all

potential existing SIP problems does not preclude the Agency’s subsequent reliance on

provisions in section 1 lO(a)(2) as part of the basis for action at a later time. For example,

although it may not be appropriate to require a state to eliminate all existing inappropriate

director’s discretion provisions in the course of acting on the infrastructure SIP, EPA believes

that section 11 0(a)(2)(A) may be among the statutory bases that the Agency cites in the course of

addressing the issue in a subsequent action. 14

12 EPA has recently issued a SIP call to rectify a specific SIP deficiency related to the SSM issue. See, “Finding of

Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision,” 74 FR 21639(April 18, 2011).

13 EPA has recently utilized this authority to correct errors in past actions on SIP submissions related to PSD

programs. See, “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning

Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (Dec. 30, 2010). EPA

has previously used its authority under CAA 1 l0(k)(6) to remove numerous other SIP provisions that the Agency

determined it had approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR 34641 (June 27, 1997)

(corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,

2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada

SIPs).

14 EPA has recently disapproved a SIP submission from Colorado on the grounds that it would have included a

director’s discretion provision inconsistent with CAA requirements, including section 1l0(a)(2)(A). See, e.g., 75

FR 42342 and 42344 (July 21, 20l0)(proposed disapproval of director’s discretion provisions); 76 FR 4540 (Jan. 26,

201 1)(final disapproval of such provisions).

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110(a)(1) and (2)for the 1997 8-Hour Ozone and PM25NationalAnibientAir Quality

Standards,” which listed the basic elements that States must include in their SIPs.

On September 25, 2009, EPA issued an updated guidance document entitled “Guidance on

SIP Elements Required Under Sections 110(a)(1) and (2)for the 2006 24-Hour Fine Particle

(PM25)NationalAmbient Air Quality Standards (NAAQS),” which clarifies, in further detail,

expectations for certain elements to meet the requirements ofsections 110(a)(1) and (2) ofthe

CAA for both the 1997 and 2006 PM2.5NAAQS. Specifically, EPA provided additionalguidance for satisfying the section 1 l0(a)(2)(D) requirements for the 2006 PM2.5NAAQS, as

well as guidance for satisfying the section 11 0(a)(2)(G) requirements for both the 1997 and 2006PM2.5NAAQS. EPA notes, however, that the requirements under 11 0(a)(2)(D)(i)(I) NAAQS are

being addressed separately and are not included in this action.

D. STATE’S SUBMITTAL

MDE provided multiple submittals to satisfy section 11 0(a)(2) requirements that are the

subject of this proposed action for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5

NAAQS. The submittals shown in Table 1 address the infrastructure elements, or portionsthereof, identified in section 11 0(a)(2) that EPA is proposing to approve.Table 1. 110(a)(2) Maryland submittals for the 1997 8-hour ozone and PM2.5NAAQS, andthe 2006 PM2.5NAAQS

Submittal Date 1997 8-Hour Ozone 1997 PM2.5 2006 PM2.5

July 27, 2007 A, B, C, D(ii), E, F,

(MD SIP# 07-06) G, H, J, K, L, M

November 30, G

2007

April 3, 2008 A, B, C, D(ii), E, F, G,

(MD SIP# 08-01) H, J, K, L, M

April 16, 2010 G G

July 21, 2010 A, B, C, D(ii), E, F,

G, H, J, K, L, M

July 21, 2010 Documentation

showing public

process was met.

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1. Section 11O(a)(2)(A)

Maryland’s enforceable sulfur dioxide (SO 2), particulate matter, and nitrogen oxides

(NOx) emission limitations and other control measures are included in Code of Maryland

Regulations (COMAR) 26.11 Air Quality, comprised of SIP approved regulations .01 through

.33 that specifies emissions standards for various source categories in the State. In addition,

Maryland cites requirements in its Vehicle Emissions Inspection Program in COMAR 11.14.08.These regulations include the control measures, means, or techniques, schedules and timetables

for compliance required by element 11 0(a)(2)(A), and are adequate to address the requirements

ofthis element.

EPA does not consider SIP requirements triggered by the nonattainment area mandates in

part D of Title I ofthe CAA to be governed by the submission deadline of section 1l0(a)(l).Nevertheless, Maryland may have included some previous EPA-approved SIP provisions

originally submitted in response to part D in its submission documenting its compliance with the

requirements ofsections 110(a)(l) and (2) of the CAA. For the purposes ofthis action, EPA has

reviewed the above identified Maryland submittals, including any rules originally submitted inresponse to part D, or references thereto, solely for the purposes of determining whether such

submittals support a finding that the state has met the basic infrastructure requirements under

section 1 10(a)(2).

As discussed above, in this action, EPA is not proposing to approve or disapprove any

existing State provisions with regard to excess emissions during SSM of operations at a facility.

Also EPA is not proposing to approve or disapprove any existing State rules with regard to

director’s discretion or variance provisions. See the “Scope of Infrastructure SIPs” discussion insection B above.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland’s enforceable emission limits and other control measures are meeting

the requirements of this element.

2. Section 11O(a)(2)(B)

Maryland’s authority to monitor ambient air quality is found under §2-l03(b)(2) and 2-301

(a)(l), Environment Article, Annotated Code of Maryland; and COMAR 26.11.04.03 (specifying

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ambient air monitors in the Maryland network are subjected to the Quality Assurance requirementsof 40 CFR Part 58, Appendix A. In addition, all samplers are located at sites that have met the

minimum siting requirements of Part 58, Appendix E.

In order to keep EPA informed of changes to the sampling network, MDE provides EPA

Region III with prior notification of any planned changes to the network. As needed, details ofthesechanges and anticipated approvals ofthe changes are communicated to EPA. Pursuant to 40 C.F.R.

Part 58, Subpart B, Section 58.10, MDE sends the EPA Regional Administrator an AnnualMonitoring Network Plan for approval that details any modifications to the network. This plan also

provides a description of each modification, the reason for each modification, and any other

information relevant to the modifications. Section 58.10 also requires MDE (beginning July 1, 2010)

to perform and submit to the EPA Regional Administrator an assessment ofthe Maryland ambient airmonitoring network every five years to determine, at a minimum, ifthe network meets the

monitoring objectives defined in 40 CFR, part 58, Appendix D, whether new sites are needed,whether existing sites are no longer needed and can be terminated, and whether new technologies are

appropriate for incorporation into the network.

Maryland has and will continue to submit data to EPA’s Air Quality System (AQS). MDE

collects and reports to EPA all ambient air quality data for SO2,carbon monoxide (CO), ozone (03),

nitrogen dioxide (NO 2),(particulate matter) PM0,and PM25.The reports comply with the federalrequirements of 40 CFR 58.35. As necessary, the submitted data is reviewed, edited, validated, and

entered into the EPA air quality system (AQS) for updating pursuant to prescribed AQS procedures.

The EPA AQS receives each report within 90 days after the end ofthe quarterly reporting period.MDE analyzes such air quality data to determine attainment status or progress.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland’s ambient air quality monitoring, data analysis, and public availabilityof data is meeting the requirement of this element.

3. Section 11O(a)(2)(C)

Enforcement provisions and permit provisions are found in Section 2-60 1 through 2-604,

Environmental Article, Annotated Code of Maryland.

As discussed above, EPA will take separate action on the following:

a. The portion ofsection 110(a)(2)(C) for the 1997 8-hour ozone NAAQS as it relates to

Maryland’s PSD permit program. On June 22, 2011, Maryland submitted a revision to

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separately, and consequently, element l10(A)(2)(C) as it pertains to the PSD permit

program for the 1997 and 2006 PM2.5NAAQS will be addressed in this separate action.

c. The requirements of section 11 0(a)(2)(C) that pertain to a permit program in part D

Title I of the CAA.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland is meeting the requirement to provide for enforcement of measures in

11 0(a)(2)(A).

4. Section 11O(a)(2)(D)(i)(II)

As discussed above, EPA will take separate action on this portion of 11 0(a)(2)(D).

5. Section 11O(a)(2)(D)(ii)

Maryland is meeting its obligations pursuant to CAA section 126(a). Maryland has no

currently pending obligations pursuant to CAA Section 126(b), and Maryland’s submittals cite

its broad authority under Section 2-301(a)(1) Environmental Article, Annotated Code ofMaryland to ensure compliance with the requirements of sections 126 and 115 of the CAA.

6. Section 11O(a)(2)(E)

Funding is provided through the §105 grant process and the Maryland Clean Air Fund (2-

107 Environment Article, Annotated Code of Maryland) composed of funds collected from

application fees, permit fees, renewal fees, and civil or administrative penalties or fines.

The Clean Air Fund may be used for (1) identifying, monitoring, and regulating air pollution in the

State, including program development of these activities as provided in the State budget; and (2)

providing grants to local governments to supplement funding for programs conducted by local

governments that are consistent with the Maryland program.

Other authorities to cany out the State Implementation Plan may be found under the

following sections ofthe Environment Article, Annotated Code of Maryland:

§2103(b)(2) Authority to monitor ambient air quality in the State, §2-105 (Air pollution

emergency), § 2-201-206 The Air Quality Control Advisory Council consultation process,

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Maryland does not have any board or body which approves air quality permits or enforcement

orders. Maryland does not rely on localities for specific SIP implementation.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland has adequate resources and authority to meet the requirements of thiselement.

7. Section 11O(a)(2)(F)

Maryland has authority through §2-103(b)(2) Environment Article, Annotated Code of

Maryland and §2-301(a)(1) Environment Article, Annotated Code of Maryland to require sourcesto report and monitor emissions. Specific monitoring requirements are found throughout COMAR26.11. The following regulations pertain to periodic reports on the nature and amounts of

emissions and emissions-related data: COMAR 26.11.01.04 Testing & Monitoring; COMAR

26.11.01.05 Records and Information; COMAR 26.11.01.05-1 Emission Statements; COMAR

26.11.01.07 Malfunctions & Other Temporary Increases in Emissions; and, COMAR 26.11.01.10

CEM Requirements.

Additional, specific monitoring requirements for specific types of sources can be found under otherchapters. SIP approved COMARs can be found in 40 CFR Part 52 subpart V.

The following portions of the Annotated Code of Maryland and COMAR pertain to air

quality standards established pursuant to the CAA and related monitoring requirements and

determining compliance: §2-3 02 (b) and (c), Environment Article, Annotated Code ofMaryland and specific monitoring requirements are found throughout COMAR 26.11.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland is meeting the monitoring, reporting, and availability requirements of

this element.

8. Section 11O(a)(2)(G)

The Annotated Code of Maryland, §2-105, Environmental Article addresses air pollution

emergencies while §2-30 1 provides authority to adopt regulations that establish standards and

procedures to be followed whenever pollution of the air reaches an emergency condition. TheAnnotated Code of Maryland §2-604 (administrative corrective order authority) and §2-609(a)

(civil injunctive authority) are used to address accidental or other releases that are not authorized

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standard were not affected by the revised ozone standard.

For PM25,EPA’s September 25, 2009 guidance, described in Section C (EPA

Requirements), above, provides clarification that states that have air quality control regionsidentified as either Priority I, Priority IA or Priority II by the “Prevention of Air PollutionEmergency Episodes” rules at 40 CFR 51.150 must develop emergency episode contingency

plans. The guidance recommends that until EPA establishes significant harm levels (SHL) for

PM25,states should establish their own SHL levels based on EPA’s February 12, 2007 issue

paper on setting priority and emergency action levels and also consider the recommended levels

set forth in Attachment B of the September 25, 2009 guidance. States would be required to

develop emergency episode plans for any area that has monitored and recorded 24-hour PM2.5levels greater than 140.4 jig/rn 3since 2006. A state that has not exceeded this level is considered

to be Priority III in accordance with the guidance, may certify that it has appropriate general

emergency powers to address PM25—related episodes, and is not required to adopt specificemergency episode plans at this time, given the existing monitored levels. In its submittal dated

April 16, 2010 that addresses both the 1997 and 2006 PM2.5standards, MDE states that no

specific emergency episode plans are necessary given that existing monitored levels ofPM2.5

have not exceeded this level as set forth in the guidance.

Based upon EPA’s review ofthe above referenced submittals, EPA is proposing to

determine that Maryland is meeting the requirements ofthis element.

9. Section 11O(a)(2)(H)

Section 2-301(a)(1) Environment Article of the Annotated Code of Maryland allows the

State broad authority to make revisions to SIPs as necessary to: a) take account ofrevisions to

the NAAQS; b) comply with additional CAA requirements; or, c) address EPA’s finding(s)whenever EPA finds that the State’s SIP is inadequate to attain the NAAQS. Maryland’s SIP is

essentially a compilation ofregulations. The authority to develop or revise a SIP is based on theauthority to adopt new regulations and revise existing regulations to meet the NAAQS.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland is meeting the requirements to revise its SIP as necessary.

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Planning Board (TPB) for the Washington region; (3) the Wilmington Area Planning Council

(WILMAPCO) for New Castle County, Delaware and Cecil County, Maryland, and, (4) the

HagerstownlEastern Panhandle (HEP) for the Hagerstown area, which includes WashingtonCounty, Maryland and the counties of Berkeley and Jefferson in West Virginia.

The following additional authorities also include provisions for consultation:

a. The Air Quality Control Advisory Council consultation process ( 2-201-206

Environment Article, Annotated Code of Maryland).

b. Metropolitan Washington Air Quality Committee (MWAQC) was certified in 1991

by chief executives of Maryland, Virginia and the District of Columbia as the entityresponsible for carrying out the regional planning requirements ofthe Clean Air ActAmendments of 1990 (membership includes local elected officials).

c. Interstate Air Quality Council (IAQC) Memorandum of Understanding signed

3/24/05 by the Governors of Maryland, Virginia and the District of Columbia.

d. COMAR 26.11.17 nonattainment New Source Review requirements; PSD permit

requirements under COMAR 26.11.06.14.

Section 127 requires that the state notify the public of any NAAQS exceedences, advise

the public of health hazards associated with such pollution, and include measures to enhance

public awareness of measures that can be taken to prevent exceedances. MDE provides advancenotice of air quality events to the public to minimize exposure to unhealthy air by forecasting

daily ozone and PM2.5levels through either its air quality telephone hotline, email notifications,or through customized air alerts on the web through Clean Air Partners, as well as a historicaldisplay of past air quality information to allow the public to monitor long term air quality. Theseactions are adequate to meet the section 127 requirements.

As discussed above, EPA will take separate action on the following:

a. The portion ofsection 11 0(a)(2)(C) for the 1997 8-hour ozone NAAQS as it relates to

Maryland’s PSD permit program. On June 22, 2011, Maryland submitted a revision toits SIP that incorporates by reference the federal PSD requirements in 40 CFR part

52.21 dated July 1, 2009. Action on this PSD SIP revision is being taken separately,

and consequently, element 11 0(A)(2)(C) as it pertains to the PSD permit program for

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Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland is meeting the requirement to provide for consultation and participation

by affected local entities.

11. Section 11O(a)(2)(K)

Section §2-302 Environment Article, Annotated Code of Maryland provides authority to

set air quality standards. Inherent in the obligation to meet the NAAQS is the authority for theDepartment to perform modeling as required under the CAA to demonstrate attainment.

Maryland will continue to submit air quality modeling data as part of Maryland’s relevant SIP

submissions in accordance with the Clean Air Act and through federal grant commitments.

Based upon EPA’s review ofthe above referenced submittals, EPA is proposing to determine

that Maryland is meeting the modeling and data submission requirements of this element.

12. Section 11O(a)(2)(L)

A State must require an owner of a major stationary source to pay, as a condition of any

permit required under the CAA, a fee sufficient to cover the reasonable cost of reviewing and

acting upon any permit application, and, ifthe owner receives a permit, the reasonable costs of

implementing and enforcing the terms and conditions of the permit (not including court costsassociated with enforcement), until fee requirement is superseded by EPA approval of a Title V

fee program. Maryland’s Title V fee program has been approved, therefore this fee requirement

is met through the State’s Title V program.

13. Section 11O(a)(2)(M)

Broad authority is provided to MDE under §2-301(a)(l) Environment Article, Annotated

Code of Maryland and COMAR 26.11.26 for consultation for conformity purposes. In addition, theMWAQC was certified in 1991 by chief executives of Maryland, Virginia and the District ofColumbia as the entity responsible for carrying out the regional planning requirements ofthe Clean

Air Act Amendments of 1990 (membership includes local elected officials). The Metropolitan

MPOs provide the forum for consultation with local governments - these are (1) the BaltimoreRegional Transportation Board (BRTB) and the Interagency Consultation Group (ICG); (2) the

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consultation and participation by local political subdivisions affected by the plan. The MPO

s

provide the forum for consultation with local governments, and are comprised of the MWAQC,

the Baltimore Regional Transportation Board and the Interagency Consultation Group, the

National Capital Transportation Planning Board, the Wilmington Area Planning Council for New

Castle County and Cecil County for Ozone, and the Hagerstown/Eastern Panhandle for the

Hagerstown area. Additional consultation and participation is through the Interstate Air Quality

Committee Memorandum of Understanding signed March 24, 2005 for Maryland, Virginia, and

the District of Columbia.

Based upon EPA’s review of the above referenced submittals, EPA is proposing to

determine that Maryland’s public participation requirements and procedures fulfill the

requirements for consultation with local political subdivisions affected by the plan.

F. CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA’s analysis of Maryland’s infrastructure submittals for the 1997 8-hour ozone and

PM2.5NAAQS and the 2006 PM2.5NAAQS concludes that Maryland’s submittals meet the

requirements for section 11 0(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M),

or portions thereof. It is recommended that a rulemaking be prepared proposing approval ofMaryland’s infrastructure submittals for the 1997 8-hour ozone and PM2.5NAAQS, and the 2006PM2.5NAAQS.

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