[Federal Register Volume 77, Number 53 (Monday, March 19, 2012)]
[Proposed Rules]
[Pages 15985-15989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6561]


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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.

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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, 
NO<INF>X</INF> as a precursor to ozone, PM<INF>2.5,</INF> 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 PM<INF>2.5</INF> 
National Ambient Air Quality Standards (NAAQS) and the 2006 
PM<INF>2.5</INF> 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: <a href="/cdn-cgi/l/email-protection#7b18140355101a0f13171e1e153b1e0b1a551c140d"><span class="__cf_email__" data-cfemail="086b67702663697c60646d6d66486d7869266f677e">[email protected]</span></a>
    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 previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
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

[[Page 15986]]

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 <a href="/cdn-cgi/l/email-protection#3a4e5b56565f43145e5b4c535e7a5f4a5b145d554c"><span class="__cf_email__" data-cfemail="3642575a5a534f185257405f527653465718515940">[email protected]</span></a>.

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 
NO<INF>X</INF> 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 <greek-i>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) Sec.  
51.165 and the CAA. The MDE is now seeking approval of these 
amendments.

B. SIP Revision <greek-i>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 <greek-i>09-03 which updated 
the incorporation by reference date. Since originally submitting 
<greek-i>09-03, Maryland has adopted the federal regulations as they 
appear in the July 1, 2009 version of the CFR (See State Submission 
<greek-i>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 <greek-i>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

[[Page 15987]]

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''

[[Page 15988]]

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 pre-construction 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 SIP-approved 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. NO<INF>X</INF> 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 
NO<INF>X</INF> 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 NO<INF>X</INF> as a precursor for ozone regulations set 
forth at 40 CFR 51.165 and in 40 CFR 52.21.

C. PM<INF>2.5</INF>

    On May 16, 2008, EPA promulgated the final ``Implementation of the 
New Source Review (NSR) Program for Particulate Matter Less Than 2.5 
Micrometers (PM<INF>2.5</INF>)'' (73 FR 28321). That action established 
NSR applicability for PM<INF>2.5</INF> precursor pollutants, 
established major source thresholds and significant emissions rates for 
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> NAAQS 
and the 2006 PM<INF>2.5</INF> 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).

[[Page 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 Emitting-Sources 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 GHG-emitting 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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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 non-attainment 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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