Federal Register / Vol. 77, No. 53 / Monday, March 19, 2012 / Proposed Rules 15985 

to 41°18′42′′ N, 072°04′30′′ W then to 

41°18′40′′ N,072°04′45′′ W then to point 

of origin. (NAD 83). 

(5) Area 5: All waters of the Thames 

River and New London Harbor within 

the following boundaries. Beginning at 

a point located on the west shoreline of 

the Thames River 25 yards below the 

Thames River Railroad Bridge, 

41°21′46′′ N, 072°05′23′′ W then east to 

41°21′46′′ N, 072°05′17′′ W then south 

along the western limit of the federal 

navigation channel to 41°20′37′′ N, 

072°05′8.7′′ W then west to 41°20′37′′ N, 

072°05′31′′ W then following the 

shoreline north to the point of origin. 

(NAD 83). 

(b) Special local regulations. 

(1) In accordance with the general 

regulations in section 100.35 of this 

part, entering into, transiting through, 

anchoring or remaining within the 

regulated areas is prohibited unless 

authorized by the Captain of the Port 

(COTP) Sector Long Island Sound 

(SLIS), or designated representative. 

(2) All persons and vessels are 

authorized by the COTP SLIS or 

designated representative to enter areas 

of this special local regulation in 

accordance with the following 

restrictions: 

(i) Area 1; all vessels may transit at a 

slow no wake speed or a speed not to 

exceed 6 knots, whichever is less to 

maintain steerage way. Vessels 

transiting must not maneuver within 

100 yards of a tall ship or an OPSAIL 

2012 CT participating vessel. 

(ii) Areas 3 & 4; access is limited to 

vessels greater than 50 feet in length. 

(iii) Areas 2 & 5; access is limited to 

vessels participating in the ‘‘Parade of 

Sail’’. 

(3) All persons and vessels shall 

comply with the instructions of the 

COTP SLIS or designated representative. 

These designated representatives are 

comprised of commissioned, warrant, 

and petty officers of the Coast Guard. 

Upon being hailed by a U.S. Coast 

Guard vessel by siren, radio, flashing 

lights, or other means the operator of a 

vessel shall proceed as directed. 

(4) Persons and vessels desiring to 

enter, transit through, anchor in, or 

remain within the regulated areas must 

contact the COTP SLIS by telephone at 

(203)–468–4401, or designated 

representative via VHF radio on channel 

16, to request authorization. If 

authorization to enter, transit through, 

anchor in, or remain within the 

regulated areas is granted by the COTP 

SLIS or designated representative, all 

persons and vessels receiving such 

authorization must comply with the 

instructions of the COTP SLIS or 

designated representative. 

(5) The Coast Guard will provide 

notice of the regulated areas, prior to the 

event through the Local Notice to 

Mariners and Broadcast Notice to 

Mariners. Notice will also be provided 

by on-scene designated representatives. 

(c) Enforcement Period: This section 

will be enforced during the following 

times: 

(1) Area 1, from 6 a.m. July 6, until 

5 p.m. on July 7, 2012. 

(2) Areas 3 and 4, from 7:30 a.m. until 

5 p.m. on July 7, 2012. 

(3) Areas 2 and 5, from 10 a.m. until 

5 p.m. on July 7, 2012. 

Dated: March 6, 2012. 

J.M. Vojvodich, 

Captain, U.S. Coast Guard, Captain of the 

Port Sector Long Island Sound. 

[FR Doc. 2012–6493 Filed 3–16–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2011–0866; FRL–9649–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Preconstruction 

Requirements-Prevention of 

Significant Deterioration and 

Nonattainment New Source Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

several revisions to the Maryland State 

Implementation Plan (SIP) submitted by 

the Maryland Department of the 

Environment (MDE). These revisions 

pertain to preconstruction requirements 

under the Prevention of Significant 

Deterioration (PSD) and non-attainment 

New Source Review (NSR) programs. 

The proposed SIP revisions will satisfy 

the following required SIP elements: 

NSR Reform, NOX as a precursor to 

ozone, PM2.5, and Greenhouse Gases 

(GHGs). Additionally, EPA is proposing, 

as a separate action, to approve 

Maryland’s submittals for purposes of 

meeting the infrastructure requirements 

of the Clean Air Act (CAA) which relate 

to Maryland’s PSD permitting program 

and are necessary to implement, 

maintain, and enforce the 1997 8-hour 

ozone and PM2.5 National Ambient Air 

Quality Standards (NAAQS) and the 

2006 PM2.5 NAAQS. This action is being 

taken under the CAA. 

DATES: Written comments must be 

received on or before April 18, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2011–0866 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: cox.kathleen@epa.gov 

C. Mail: EPA–R03–OAR–2011–0866, 

Kathleen Cox, Associate Director, Office 

of Permits and Air Toxics, Mailcode 

3AP10, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted 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–2011– 

0866. EPA’s policy is that all comments 

received will be included in the public 

docket 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 is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. 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. If you send an email 

comment directly to EPA without going 

through www.regulations.gov, your 

email 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 

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 


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15986 Federal Register / Vol. 77, No. 53 / Monday, March 19, 2012 / Proposed Rules 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in 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. 

Copies of the State submittal are 

available at the Maryland Department of 

the Environment, 1800 Washington 

Boulevard, Suite 705, Baltimore 

Maryland 21230. 

FOR FURTHER INFORMATION CONTACT: 

David Talley, (215) 814–2117, or by 

email at talley.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. On the dates described in detail 

below, MDE submitted revisions to its 

SIP for the PSD and nonattainment NSR 

programs. 

I. Background 

Today’s action proposes the 

simultaneous approval of three separate 

SIP revision requests submitted by 

MDE, as described below. Approval of 

these actions will have several 

significant impacts. It will incorporate 

for the first time, EPA’s 2002 ‘‘NSR 

Reform’’ provisions into Maryland’s 

non-attainment NSR and PSD programs. 

It will correct deficiencies identified by 

EPA in the March 27, 2008 Federal 

Register notice entitled, ‘‘Completeness 

Findings for Section 110(a) State 

Implementation Plans for the 8 hour 

Ozone National Ambient Air Quality 

Standards (1997 Ozone NAAQS)’’, (73 

FR 16205), by regulating NOX as a 

precursor to ozone. It will ensure that 

GHGs in Maryland are regulated in a 

manner consistent with federal 

regulations. Additionally, these 

proposed SIP Revisions, along with 

previously approved SIP revisions 

relating to Maryland’s federally 

enforceable PSD program, support a 

finding that Maryland has met its 

statutory obligations pursuant to CAA 

section 110(a)(2) which relate to CAA 

Title I, Part C requirements, including, 

but not limited to, relevant portions of 

sections 110(a)(2)(C), (D)(i)(II) and (J). 

A. SIP Revision #07–13 

On October 24, 2007 MDE submitted 

a SIP revision request to EPA which 

included amendments to Regulations 

.01–.03, repeal of existing Regulations 

.04 and .05, and the adoption of new 

Regulations .04—.09 under COMAR 

26.11.17, Nonattainment Provisions for 

Major New Sources and Major 

Modifications. This SIP submittal 

revises the previously-approved 

versions of these rules as approved into 

the Maryland SIP on February 12, 2001 

for COMAR 26.11.17 Regulations .02, 

.04, and .05 (66 FR 9766) and September 

20, 2004 for COMAR 26.11.17 

Regulations .01 and .03 (69 FR 56170). 

These amendments were adopted by 

Maryland on September 18, 2007 and 

became effective on October 22, 2007. 

The State adopted these regulations in 

order to meet the relevant plan 

requirements of Title 40 of the Code of 

Federal Regulations (CFR) § 51.165 and 

the CAA. The MDE is now seeking 

approval of these amendments. 

B. SIP Revision #09–03 

On July 31, 2009, MDE submitted a 

SIP revision request to EPA that 

consisted of the incorporation by 

reference of the Federal PSD 

requirements at 40 CFR 52.21 as 

codified in the July 1, 2008 edition of 

the CFR. The SIP revision request 

included amendments to the MDE 

Regulation .01 under COMAR 26.11.01 

(General Administrative Provisions) and 

Regulation .14 under COMAR 26.11.06 

(General Emission Standards, 

Prohibitions, and Restrictions). On June 

23, 2011, MDE submitted a letter, 

retracting the part of submission #09–03 

which updated the incorporation by 

reference date. Since originally 

submitting #09–03, Maryland has 

adopted the federal regulations as they 

appear in the July 1, 2009 version of the 

CFR (See State Submission #11–02, 

below). Today’s action proposes 

approval of only that part of the 

submission which clarifies the 

definitions of ‘‘Administrator’’ and 

‘‘reviewing authority’’. 

This SIP submittal revises the 

previously-approved versions of these 

rules as approved into the Maryland SIP 

on May 28, 2002 (67 FR 36810). These 

amendments were adopted by Maryland 

on June 11, 2009 and became effective 

on July 16, 2009. The State adopted 

these regulations in order to meet the 

relevant plan requirements of 40 CFR 

51.166 and the CAA. The MDE is now 

seeking approval of these amendments. 

C. SIP Revision #11–02 

On June 23, 2011, MDE submitted a 

SIP revision request to EPA that 

consisted of the incorporation by 

reference of the federal PSD 

requirements at 40 CFR 52.21 as 

codified in the July 1, 2009 edition of 

the CFR, as well as the incorporation of 

the revisions to 40 CFR 52.21 

promulgated on May 13, 2010 in the 

Greenhouse Gas Tailoring Rule (75 FR 

31514). The SIP revision request 

included amendments to the MDE 

Regulation .01 under COMAR 26.11.01 

(General Administrative Provisions), 

Regulations .01 and .12 under 

COMMAR 26.11.02 (Permits, Approvals, 

and Registration), and Regulation .14 

under COMAR 26.11.06 (General 

Emission Standards, Prohibitions, and 

Restrictions). 

This SIP submittal revises the 

previously-approved versions of these 

rules, approved as follows: COMAR 

26.11.01.01 and COMAR 26.11.06.14 

were adopted into the Maryland SIP on 

May 28, 2002 (67 FR 36810). COMAR 

26.11.02.01 and .12 were adopted into 

the Maryland SIP on February 27, 2003 

(68 FR 9012). These amendments were 

adopted by Maryland on April 14, 2011 

and became effective on May 16, 2009. 

The State adopted these regulations in 

order to meet the relevant plan 

requirements of 40 CFR 51.166 and the 

CAA. The MDE is now seeking approval 

of these amendments. 

II. Analysis 

A. NSR Reform 

1. History 

On December 31, 2002 (67 FR 80186), 

EPA published final rule changes to 40 

CFR parts 51 and 52, regarding the 

CAA’s PSD and Nonattainment NSR 

programs. On November 7, 2003 (68 FR 

63021), EPA published a notice of final 

action on the reconsideration of the 

December 31, 2002, final rule changes. 

The December 31, 2002, and the 

November 7, 2003, final actions are 

collectively referred to as ‘‘NSR 

Reform.’’ The purpose of this action is 

to propose to approve the SIP submittals 

from the State of Maryland that include 

State rule changes made as a result of 

EPA’s 2002 NSR Reform Rules. 

The 2002 NSR Reform Rules are part 

of EPA’s implementation of parts C and 

D of title I of the CAA. Part C of title 

I of the CAA is the PSD program, which 

applies in areas that meet the NAAQS 

(‘‘attainment’’ areas), as well as in areas 

for which there is insufficient 

information to determine whether the 

area meets the NAAQS (‘‘unclassifiable’’ 

areas). Part D of title I of the CAA is the 

nonattainment NSR program, which 

applies in areas that are not in 

attainment of the NAAQS 

(‘‘nonattainment’’ areas). Collectively, 

the PSD and nonattainment NSR 

programs are referred to as the ‘‘New 

Source Review’’ or NSR programs. EPA 

regulations implementing these 

programs are contained in 40 CFR 

51.165, 51.166, 52.21, 52.24, and part 

51, appendix S. 

The CAA’s NSR programs are 

preconstruction review and permitting 

programs applicable to new and 


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modified stationary sources of air 

pollutants regulated under the CAA. 

The NSR programs of the CAA include 

a combination of air quality planning 

and air pollution control technology 

program requirements. Briefly, section 

109 of the CAA requires EPA to 

promulgate primary NAAQS to protect 

public health and secondary NAAQS to 

protect public welfare. Once EPA sets 

those standards, states must develop, 

adopt, and submit to EPA for approval 

a SIP that contains emissions limitations 

and other control measures to attain and 

maintain the NAAQS. Each SIP is 

required to contain a preconstruction 

review program for the construction and 

modification of any stationary source of 

air pollution to assure that the NAAQS 

are achieved and maintained; to protect 

areas of clean air; to protect air quality 

related values (such as visibility) in 

national parks and other areas; to assure 

that appropriate emissions controls are 

applied; to maximize opportunities for 

economic development consistent with 

the preservation of clean air resources; 

and to ensure that any decision to 

increase air pollution is made only after 

full public consideration of the 

consequences of the decision. 

The 2002 NSR Reform Rules made 

changes to five areas of the NSR 

programs. In summary, the 2002 Rules: 

(1) Provided a new method for 

determining baseline actual emissions; 

(2) adopted an actual-to-projected-actual 

methodology for determining whether a 

major modification has occurred; (3) 

allowed major stationary sources to 

comply with a Plantwide Applicability 

Limit (PAL) to avoid having a 

significant emissions increase that 

triggers the requirements of the major 

NSR program; (4) provided a new 

applicability provision for emissions 

units that are designated clean units; 

and (5) excluded pollution control 

projects (PCPs) from the definition of 

‘‘physical change or change in the 

method of operation.’’ On November 7, 

2003 (68 FR 63021), EPA published a 

notice of final action on its 

reconsideration of the 2002 NSR Reform 

Rules, which added a definition for 

‘‘replacement unit’’ and clarified an 

issue regarding PALs. For additional 

information on the 2002 NSR Reform 

Rules, see 67 FR 80186 (December 31, 

2002), and http://www.epa.gov/nsr. 

After the 2002 NSR Reform Rules 

were finalized and effective (March 3, 

2003), industry, state, and 

environmental petitioners challenged 

numerous aspects of the 2002 NSR 

Reform Rules, along with portions of 

EPA’s 1980 NSR Rules (45 FR 52676, 

August 7, 1980). On June 24, 2005, the 

United States Court of Appeals for the 

District of Columbia (DC Circuit Court) 

issued a decision on the challenges to 

the 2002 NSR Reform Rules. New York 

v. United States, 413 F.3d 3 (New York 

I). In summary, the DC Circuit Court 

vacated portions of the rules pertaining 

to clean units and PCPs, remanded a 

portion of the rules regarding 

recordkeeping and the term ‘‘reasonable 

possibility’’ found in 40 CFR 52.21(r)(6) 

and 40 CFR 51.166(r)(6), and either 

upheld or did not comment on the other 

provisions included as part of the 2002 

NSR Reform Rules. On June 13, 2007 (72 

FR 32526), EPA took final action to 

revise the 2002 NSR Reform Rules to 

remove from federal law all provisions 

pertaining to clean units and the PCP 

exemption that were vacated by the DC 

Circuit Court. 

With regard to the remanded portions 

of the 2002 NSR Reform Rules related to 

recordkeeping, on December 21, 2007, 

EPA took final action to establish that a 

‘‘reasonable possibility’’ applies where 

source emissions equal or exceed 50 

percent of the CAA NSR significance 

levels for any pollutant (72 FR 72607). 

The ‘‘reasonable possibility’’ provision 

identifies for sources and reviewing 

authorities the circumstances under 

which a major stationary source 

undergoing a modification that does not 

trigger major NSR must keep records. 

Finally, on January 19, 2010, EPA 

denied a petition from the Natural 

Resources Defense Council (NRDC) and 

Sierra Club requesting EPA to 

reconsider and stay the Wisconsin 

Department of Natural Resources SIP 

revision that incorporated EPA’s New 

Source Review Reforms of 2002. 

Petitioners submitted comments arguing 

that these NSR Reform provisions were 

‘‘backsliding’’, and thus prohibited 

under CAA sections 110(l) and 193. EPA 

approved the Wisconsin SIP revisions 

and addressed Petitioners’ arguments 

about backsliding by (1) noting that the 

provisions had been upheld by the New 

York I court, (2) that the general analysis 

that EPA had done to support the 2002 

rule supported NSR Reform in 

Wisconsin, and (3) Petitioners had not 

provided any information or arguments 

demonstrating that the general analysis 

did not apply in Wisconsin, and that 

information in the record countered 

Petitioners’ specific arguments that the 

revisions would be backsliding. 

Additionally, in response to comments, 

EPA performed an analysis specific to 

Wisconsin to examine the impacts of 

applying reform in that State. Our 

findings were consistent with those of 

the supplementary environmental 

analysis (SEA) for the 2002 Reform Rule 

(neutral). 

NRDC v. Jackson: On June 16, 2011, 

the U.S. Court of Appeals for the 

Seventh Circuit (Seventh Circuit) 

denied the petitions for review filed by 

NRDC and Sierra Club challenging 

EPA’s approval of the 2002 NSR Reform 

provisions into the Wisconsin SIP. The 

primary issue addressed in the opinion 

was whether EPA’s approval of 

Wisconsin’s NSR SIP was backsliding 

prohibited by CAA sections 110(l) and 

193. The Court held that EPA’s decision 

was not contrary to these provisions. 

First, the Court found that Petitioners’ 

arguments were a repeat of the 

arguments that they had made and lost 

in New York I. Second, the Court held 

that the general analysis that supported 

the NSR Reform provisions when they 

were challenged after promulgation 

‘‘supply substantial evidence for the 

EPA’s decision [with respect to the 

Wisconsin SIP] and show that it is 

neither arbitrary nor capricious.’’ But, 

the Court did note that some states have 

implemented the NSR Reform 

provisions and that the experience in 

those states might support or refute 

EPA’s conclusions and that ‘‘[a]t some 

point, preferring predictions over facts 

is no longer rational.’’ 

2. Analysis 

The 2002 NSR Reform Rules required 

that state agencies adopt and submit 

revisions to their SIP permitting 

programs implementing the minimum 

program elements of the 2002 NSR 

Reform Rules no later than January 2, 

2006 (consistent with changes to 40 CFR 

51.166(a)(6)(i), state agencies are now 

required to adopt and submit SIP 

revisions within three years after new 

amendments are published in the 

Federal Register). State agencies may 

meet the requirements of 40 CFR part 51 

and the 2002 NSR Reform Rules with 

different but equivalent regulations. For 

the purposes of PSD, Maryland has 

incorporated by reference 40 CFR 52.21. 

For non-attainment NSR, the State has 

adopted regulations that in most 

respects track the federal rules. The 

proposed SIP revisions include only 

those provisions which were upheld by 

the DC Circuit in 2005, and reaffirmed 

in the Seventh Circuit’s denial of the 

petition to reconsider EPA’s approval of 

NSR Reform into Wisconsin’s SIP 

(NRDC v. Jackson). 

With respect to Maryland’s 

nonattainment NSR rules, a line-by-line 

comparison indicates that they vary 

from the federal 2002 NSR Reform rules 

in insignificant ways. For instance, the 

State’s definition of ‘‘baseline actual 

emissions’’ for sources other than 

electric steam generating facilities has a 

five-year presumptive ‘‘look-back’’ 


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period, but allows a facility to request 

up to a 10 year look-back period if it is 

more representative of actual source 

operations. In addition, PALs are 

limited to a five year effective date, 

rather than ten years as allowed in the 

federal rules. As noted above, states may 

have different but equivalent rules and 

in this regard, it is clear that Maryland’s 

nonattainment NSR rules contain the 

basic elements for implementing NSR 

reform. 

Section 110(l) of the CAA prohibits 

the approval of a SIP revision which 

would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress or any other 

applicable requirement of the CAA. EPA 

has determined that approval of the 

proposed revisions to COMAR 26.11.17 

and the incorporation of 40 CFR 52.21 

will not violate section 110(l). The 

inherent checks and balances afforded 

by the CAA have been maintained, 

including the independent obligation 

for attainment of the NAAQS. 

Nevertheless, the Seventh Circuit, in 

upholding EPA’s approval of the 

Wisconsin NSR SIP rules, cautioned 

that predictions made when these rules 

were promulgated should no longer be 

relied upon to demonstrate that NSR 

Reform is not a relaxation of the SIP. In 

fact, the proposed regulations have been 

in effect in Maryland since 2007, and 

several states, including Georgia, New 

York, and North Carolina have had the 

NSR Reform regulations approved into 

their SIPs with no known link between 

reform and a decrease in air quality or 

an interference with reasonable further 

progress. This is not unexpected given 

the limited universe of affected sources. 

NSR Reform only affects permitting of 

modifications to existing sources, and 

more specifically, modifications to 

existing emissions units. Any growth 

occurring from new, greenfield sites 

would be controlled and permitted the 

same both pre- and post-reform. 

Therefore, any concerns about NSR 

Reform would be related to unregulated 

growth from existing major sources. In 

the specific case of Maryland, the State 

maintains a robust minor NSR program 

that specifically regulates minor 

changes to major stationary sources. So 

while a facility may escape the 

requirements of major NSR, they do not 

escape the requirement to obtain a preconstruction permit that includes the 

requirement to monitor emissions after 

a change and may also include an air 

quality impact analysis. Finally, 

Maryland’s demonstration of reasonable 

further progress for nonattainment areas 

does not rely on this NSR rule, but on 

other control requirements such as 

Reasonably Available Control 

Technology (RACT). 

As noted above, EPA took final action 

in December of 2007 to promulgate the 

‘‘reasonable possibility’’ provisions 

which had been remanded by the DC 

Circuit in 2005 in New York I. These are 

recordkeeping and reporting 

requirements for major stationary 

sources undergoing minor 

modifications. These requirements are 

included in the PSD regulations that 

Maryland has incorporated by reference. 

However, because Maryland’s proposed 

non-attainment regulations were 

effective and submitted to EPA in 

October of 2007, the submittal does not 

include the ‘‘reasonable possibility’’ 

requirements promulgated on December 

21, 2007 (72 FR 72607). While these 

provisions are a required minimum 

program element, we note that in the 

preamble to the final rule, we 

acknowledge that ‘‘State and local 

authorities may adopt or maintain NSR 

program elements that have the effect of 

making their regulations more stringent 

than these rules.’’ (72 FR 72614). 

Maryland maintains a robust minor NSR 

program, with recording keeping and 

reporting requirements that are more 

stringent than the ‘‘reasonable 

possibility’’ requirements. As further 

discussed in the preamble, ‘‘Minor NSR 

programs by definition apply to 

emissions increases less than the major 

NSR significant level, and only 

activities that a State qualifies as 

‘insignificant activities’ under the SIPapproved program may be excluded 

from review. Thus, reviewing 

authorities have an opportunity to 

review virtually all projects causing an 

emissions increase before construction 

begins. Moreover, our regulations (40 

CFR 51.161) provide for public review 

of information submitted by owners/ 

operators for purposes of minor NSR 

review. Thus, information provided for 

purposes of minor NSR programs is also 

of value in determining applicability of 

major NSR’’ (See 72 FR 72613). On 

December 6, 2001, MDE submitted a 

letter acknowledging that the SIP 

approved regulations under COMAR 

26.11.02 fulfill the requirements of 40 

CFR 51.165 (a)(6) and (a)(6)(vi). This 

letter is included in the docket for the 

proposed rulemaking. 

B. NOX as a Precursor to Ozone 

This SIP submission corrects a 

deficiency identified by EPA in the 

March 27, 2008 Federal Register action 

entitled, ‘‘Completeness Findings for 

Section 110(a) State Implementation 

Plans for the 8-hour Ozone National 

Ambient Air Quality Standards (1997 

Ozone NAAQS)’’ (73 FR 16205). EPA’s 

proposed approval of this SIP 

submission addresses Maryland’s 

compliance with the portion of CAA 

section 110(a)(2)(C) & (J) relating to the 

CAA’s parts C and D permit programs 

for the 1997 Ozone NAAQS, because 

this proposed approval would approve 

regulating NOX as a precursor to ozone 

in Maryland’s SIP in accordance with 

the Federal Register action dated 

November 29, 2005 (70 FR 71612) that 

finalized NOX as a precursor for ozone 

regulations set forth at 40 CFR 51.165 

and in 40 CFR 52.21. 

C. PM2.5

On May 16, 2008, EPA promulgated 

the final ‘‘Implementation of the New 

Source Review (NSR) Program for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5)’’ (73 FR 28321). 

That action established NSR 

applicability for PM2.5 precursor 

pollutants, established major source 

thresholds and significant emissions 

rates for PM2.5 and its precursors, and 

laid out a road map for states to use in 

transitioning to addressing condensable 

particulate matter. By incorporating by 

reference the federal regulations of 40 

CFR 52.21 as codified in the July 1, 2009 

edition of the Code of Federal 

Regulations and submitting that change 

to EPA to be approved as a SIP revision, 

Maryland has met its statutory 

obligations for PSD under the May 16, 

2008 PM2.5 rule. 

D. Infrastructure 

Section 110(a) of the CAA requires 

states to submit SIPs that provide for the 

implementation, maintenance, and 

enforcement of new or revised NAAQS 

within three years following the 

promulgation of such NAAQS. EPA is 

proposing to make a determination that 

the above described submittals meet the 

portions of the CAA section 

110(a)(2)(C), (D)(i)(II) and (J) for the 

1997 8-hour ozone and PM2.5 NAAQS 

and the 2006 PM2.5 NAAQS which 

relate to Maryland’s PSD permit 

program. A summary of EPA’s review 

of, and rationale for, approving 

Maryland’s submittals for purposes of 

meeting these statutory requirements 

may be found in the Technical Support 

Document (TSD) for this action. These 

proposed SIP Revisions, along with 

previously approved SIP Revisions 

relating to Maryland’s federally 

enforceable PSD program, support a 

finding that Maryland has met its 

statutory obligations pursuant to CAA 

section 110(a)(2) which relate to CAA 

title I, part C requirements, including, 

but not limited to, relevant portions of 

sections 110(a)(2)(C), (D)(i)(II) and (J). 


emcdonald on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 77, No. 53 / Monday, March 19, 2012 / Proposed Rules 15989 

E. Greenhouse Gases 

A detailed explanation of GHGs, 

climate change and the impact on 

health, society, and the environment is 

included in EPA’s technical support 

documents (TSDs) for EPA’s GHG 

endangerment finding final rule 

(Document ID No. EPA–HQ–OAR– 

2009–0472–11292 at 

www.regulations.gov), as well as the 

TSD for this current action. 

With regard to GHGs, the proposed 

action on the Maryland SIP generally 

relates to four federal rulemaking 

actions. The first rulemaking is EPA’s 

Tailoring Rule. The second rulemaking 

is EPA’s ‘‘Action to Ensure Authority to 

Issue Permits Under the Prevention of 

Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and 

SIP Call,’’ (GHG SIP Call) proposed on 

September 2, 2010 (75 FR 53892). The 

third rulemaking is EPA’s ‘‘Action to 

Ensure Authority to Issue Permits Under 

the Prevention of Significant 

Deterioration Program to Sources of 

Greenhouse Gas Emissions: Federal 

Implementation Plan,’’ (GHG FIP) also 

proposed on September 2, 2010 (75 FR 

53883), which serves as a companion 

rulemaking to EPA’s proposed GHG SIP 

Call. The fourth rulemaking is the 

‘‘Limitation of Approval of Prevention 

of Significant Deterioration Provisions 

Concerning Greenhouse Gas EmittingSources in State Implementation Plans’’ 

75 FR 82536 (Narrowing Rule) 

(December 30, 2010). A summary of 

each of these rulemakings is described 

below. 

In the first rulemaking, the Tailoring 

Rule, EPA established appropriate GHG 

emission thresholds for determining the 

applicability of PSD requirements to 

GHG-emitting sources. In the second 

rulemaking, the GHG SIP Call, EPA 

proposed to find that the EPA-approved 

PSD programs in 13 States (not 

including Maryland) are substantially 

inadequate to meet CAA requirements 

because they do not appear to apply 

PSD requirements to GHG-emitting 

sources. For each of these States, EPA 

proposed to require the State (through a 

‘‘SIP Call’’) to revise its SIP as necessary 

to correct such inadequacies. In the 

third rulemaking, the GHG FIP, EPA 

proposed a FIP to apply in any state that 

is unable to submit, by its deadline, a 

SIP revision to ensure that the state has 

authority to issue PSD permits for GHGemitting sources. Because Maryland 

already has authority to regulate GHGs, 

Maryland is only seeking to revise its 

SIP to put in place the GHG emission 

thresholds for PSD applicability set 

forth in EPA’s Tailoring Rule, thereby 

ensuring that smaller GHG sources 

emitting less than these thresholds are 

not subject to permitting requirements. 

In the Narrowing Rule, EPA limited 

its approval of those states’ programs 

which had the authority to regulate 

GHG’s, but lacked a vehicle to limit 

applicability to the higher thresholds 

established by the Tailoring Rule. 

Maryland was one of the states 

impacted by the Narrowing Rule. With 

the regulations submitted in the 

proposed SIP revision, Maryland has 

adopted EPA’s tailoring approach. 

These changes to Maryland’s regulations 

are also consistent with section 110 of 

the CAA because they are incorporating 

GHGs for regulation in the Maryland 

SIP. 

A complete overview of GHGs and 

GHG-emitting sources, the CAA PSD 

program, minimum SIP elements for a 

PSD program, EPA’s recent actions 

regarding GHG permitting, as well as the 

relationship between the proposed 

Maryland SIP revision and EPA’s other 

national rulemakings, and EPA’s 

analysis of Maryland’s SIP revision can 

be found in the Technical Support 

Document (TSD) in the docket for this 

proposed rule making action. 

III. Proposed Action 

Pursuant to Section 110 of the Clean 

Air Act, EPA is proposing to approve 

the Maryland SIP revisions as described 

above. EPA has made the preliminary 

determination that these revisions are 

approvable because they conform to the 

CAA and EPA regulations. EPA is 

soliciting public comments on the 

issues discussed in this document. 

These comments will be considered 

before taking final action. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA 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 CAA. 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 CAA; 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, this proposed rule 

regarding preconstruction requirements 

under Maryland’s PSD and nonattainment NSR programs does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP 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, Carbon monoxide, 

Greenhouse Gases, Incorporation by 

reference, Intergovernmental relations, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: March 7, 2012. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2012–6561 Filed 3–16–12; 8:45 am] 

BILLING CODE 6560–50–P 


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