[Federal Register Volume 80, Number 57 (Wednesday, March 25, 2015)]
[Proposed Rules]
[Pages 15713-15715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06729]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0833; FRL-9924-97-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Preconstruction Requirements--Nonattainment New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted on August 
22, 2013 by the Maryland Department of the Environment (MDE). This 
revision pertains to Maryland's major nonattainment New Source Review 
(NSR) program, notably preconstruction permitting requirements for 
sources of fine particulate matter (PM<INF>2.5</INF>). This action is 
being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before April 24, 2015.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0833 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#1b787a766b797e7777357f7a6d7e5b7e6b7a357c746d"><span class="__cf_email__" data-cfemail="1e7d7f736e7c7b7272307a7f687b5e7b6e7f30797168">[email protected]</span></a>.
    C. Mail: EPA-R03-OAR-2014-0833, David Campbell, 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-
2014-0833. 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 
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#5125303d3d34287f3530273835113421307f363e27"><span class="__cf_email__" data-cfemail="aadecbc6c6cfd384cecbdcc3ceeacfdacb84cdc5dc">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background

    On August 22, 2013, MDE submitted a SIP revision request to EPA. 
This SIP revision request, if approved, would revise Maryland's 
currently approved nonattainment NSR program by amending Regulation .01 
under section 26.11.01 of the Code of Maryland Regulations (COMAR), and 
Regulations .01 and .02 under COMAR 26.11.17. Generally, the revisions 
incorporate provisions related to the 2008 ``Implementation of the New 
Source Review (NSR) Program for Particulate Matter Less than 2.5 
Micrometers (PM<INF>2.5</INF>)'' (2008 NSR PM<INF>2.5</INF> Rule). 73 
FR 28321 (May 16, 2008). The 2008 NSR PM<INF>2.5</INF> rule: (1) 
Required NSR permits to address directly emitted PM<INF>2.5</INF> and 
precursor pollutants; (2) established significant emission rates for 
direct PM<INF>2.5</INF> and precursor pollutants (including sulfur 
dioxide (SO<INF>2</INF>) and oxides of nitrogen (NO<INF>X</INF>)); (3) 
established PM<INF>2.5</INF> emission offsets; and (4) required states 
to account for gases that condense to form particles (condensables) in 
PM<INF>2.5</INF> emission limits.
    Additionally, the 2008 NSR PM<INF>2.5</INF> Rule authorized states 
to adopt provisions in their nonattainment NSR

[[Page 15714]]

rules that would allow major stationary sources and major modifications 
locating in areas designated nonattainment for PM<INF>2.5</INF> to 
offset emissions increases of direct PM<INF>2.5</INF> emissions or 
PM<INF>2.5</INF> precursors with reductions of either direct 
PM<INF>2.5</INF> emissions or PM<INF>2.5</INF> precursors in accordance 
with offset ratios contained in the approved SIP for the applicable 
nonattainment area. The inclusion, in whole or in part, of the 
interpollutant offset provisions for PM<INF>2.5</INF> is discretionary 
on the part of the states. In the preamble to the 2008 NSR 
PM<INF>2.5</INF> Rule, EPA included preferred or presumptive offset 
ratios, applicable to specific PM<INF>2.5</INF> precursors, that states 
may adopt in conjunction with the new interpollutant offset provisions 
for PM<INF>2.5</INF>, and for which the state could rely on the EPA's 
technical work to demonstrate the adequacy of the ratios for use in any 
PM<INF>2.5</INF> nonattainment area. Alternatively, the preamble 
indicated that states may adopt their own ratios, subject to the EPA's 
approval, that would have to be substantiated by modeling or other 
technical demonstrations of the net air quality benefit for ambient 
PM<INF>2.5</INF> concentrations. The preferred ratios were subsequently 
the subject of a petition for reconsideration, which the Administrator 
granted. EPA continues to support the basic policy that sources may 
offset increases in emissions of direct PM<INF>2.5</INF> or of any 
PM<INF>2.5</INF> precursor in a PM<INF>2.5</INF> nonattainment area 
with actual emissions reductions in direct PM<INF>2.5</INF> or 
PM<INF>2.5</INF> precursors in accordance with offset ratios as 
approved in the SIP for the applicable nonattainment area. However, we 
no longer consider the preferred ratios set forth in the preamble to 
the 2008 NSR PM<INF>2.5</INF> Rule to be presumptively approvable. 
Instead, any ratio involving PM<INF>2.5</INF> precursors adopted by the 
state for use in the interpollutant offset program for PM<INF>2.5</INF> 
nonattainment areas must be accompanied by a technical demonstration 
that shows the net air quality benefits of such ratio for the 
PM<INF>2.5</INF> nonattainment area in which it will be applied. 
Maryland's August 22, 2013 submittal did not include the interpollutant 
offset provisions.
    The 2008 NSR PM<INF>2.5</INF> Rule (as well as the 2007 ``Final 
Clean Air Fine Particle Implementation Rule'' (2007 PM<INF>2.5</INF> 
Implementation Rule) \1\), was the subject of litigation before the 
United States Court of Appeals for the District of Columbia Circuit 
(D.C. Circuit) in Natural Resources Defense Council v. EPA (hereafter, 
NRDC v. EPA).\2\ On January 4, 2013, the D.C. Circuit remanded to EPA 
both the 2007 PM<INF>2.5</INF> Implementation Rule and the 2008 NSR 
PM<INF>2.5</INF> Rule. The court found that in both rules EPA erred in 
implementing the 1997 PM<INF>2.5</INF> National Ambient Air Quality 
Standard (NAAQS) solely pursuant to the general implementation 
provisions of subpart 1 of part D of title I of the CAA (subpart 1), 
rather than pursuant to the additional implementation provisions 
specific to particulate matter in subpart 4 of part D of title I 
(subpart 4).\3\ As a result, the court remanded both rules and 
instructed EPA ``to re-promulgate these rules pursuant to subpart 4 
consistent with this opinion.'' Although the D.C. Circuit declined to 
establish a deadline for EPA's response, EPA intends to respond 
promptly to the court's remand and to promulgate new generally 
applicable implementation regulations for the PM<INF>2.5</INF> NAAQS in 
accordance with the requirements of subpart 4. In the interim, however, 
states and EPA still need to proceed with implementation of the 1997 
PM<INF>2.5</INF> NAAQS in a timely and effective fashion in order to 
meet statutory obligations under the CAA and to assure the protection 
of public health intended by those NAAQS. In a June 2, 2014 final 
rulemaking entitled ``Identification of Nonattainment Classification 
and Deadlines for Submission of State Implementation Plan (SIP) 
Provisions for the 1997 Fine Particle (PM<INF>2.5</INF>) National 
Ambient Air Quality Standard (NAAQS) and 2006 PM<INF>2.5</INF> NAAQS; 
Final Rule,'' (79 FR 31566), EPA identified the classification status 
under subpart 4 for areas currently designated nonattainment for the 
1997 and 2006 PM<INF>2.5</INF> NAAQS. That rulemaking also established 
a December 31, 2014 deadline for the submission of any additional 
attainment related SIP elements that may be needed to meet the 
applicable requirements of subpart 4.
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    \1\ 72 FR 20586 (April 25, 2007).
    \2\ 706 F.3d 428 (D.C. Cir. 2013).
    \3\ The court's opinion did not specifically address the point 
that implementation under subpart 4 requirements would still require 
consideration of subpart 1 requirements, to the extent that subpart 
4 did not override subpart 1. EPA assumes that the court presumed 
that EPA would address this issue of potential overlap between 
subpart 1 and subpart 4 requirements in subsequent actions.
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    EPA is in the process of evaluating the requirements of subpart 4 
as they pertain to nonattainment NSR. In particular, subpart 4 includes 
section 189(e) of the CAA, which requires the control of major 
stationary sources of coarse particulate matter (PM<INF>10</INF>) 
precursors (and hence under the NRDC v. EPA court decision, 
PM<INF>2.5</INF> precursors) ``except where the Administrator 
determines that such sources do not contribute significantly to 
PM<INF>10</INF> levels which exceed the standard in the area.'' The 
evaluation of which precursors need to be controlled to achieve the 
standard in a particular area is typically conducted in the context of 
the state's preparing and the EPA's reviewing an area's attainment plan 
SIP. At the time of the August 22, 2013 SIP submittal, three areas in 
Maryland were designated as nonattainment for the 1997 annual 
PM<INF>2.5</INF> NAAQS: The Maryland portion of the Washington DC-MD-VA 
nonattainment area; the Baltimore nonattainment area; and the Maryland 
portion of the Martinsburg-Hagerstown, MD-WV nonattainment area.
    Since the SIP submittal, EPA has taken final action to redesignate 
all of these areas to attainment. On October 6, 2014, EPA took final 
action to redesignate the Washington, DC-MD-VA area. 79 FR 60081. On 
December 16, 2014, EPA took final action to redesignate both the 
Baltimore nonattainment area and the Martinsburg-Hagerstown 
nonattainment area to attainment. 79 FR 75032 (Baltimore area) and 79 
FR 75035 (Maryland portion of the Martinsburg-Hagerstown area). As a 
result, MDE is no longer obligated to submit a nonattainment NSR SIP 
revision under section 189 of the CAA addressing nonattainment NSR 
permitting requirements for PM<INF>2.5</INF>, including the 
requirements under subpart 4. Therefore, EPA has not evaluated the 
August 22, 2013 submittal for the purposes of determining compliance 
with the subpart 4 requirements. To the extent that any area is 
designated nonattainment for PM<INF>2.5</INF> in Maryland in the 
future, MDE will have to make a submission under section 189 of the CAA 
addressing how its nonattainment permitting program satisfies the CAA 
statutory requirements as to PM<INF>2.5</INF>, including subpart 4 and 
any applicable PM<INF>2.5</INF> Federal implementation rules.

II. Summary of SIP Revision

    As previously discussed, this SIP revision incorporates provisions 
related to the 2008 NSR PM<INF>2.5</INF> Rule, which: (1) Required NSR 
permits to address directly emitted PM<INF>2.5</INF> and precursor 
pollutants;(2) established significant emission rates for direct 
PM<INF>2.5</INF> and precursor pollutants (including sulfur dioxide 
(SO<INF>2</INF>) and oxides of nitrogen (NO<INF>X</INF>)); (3) 
established PM<INF>2.5</INF> emission offsets; and (4) required states 
to account for gases that condense to form particles (condensables) in 
PM<INF>2.5</INF> emission limits.

[[Page 15715]]

    To implement these provisions, Maryland amended Regulation .01 
under COMAR 26.11.01 (General Administrative Provisions) and 
Regulations .01 and .02 under COMAR 26.11.17 (Nonattainment Provisions 
for Major New Sources and Major Modifications). The general definitions 
at COMAR 26.11.01.01 were amended to add definitions of 
``PM<INF>2.5</INF>'' and ``PM<INF>2.5</INF> emissions.'' COMAR 26.11.17 
contains the preconstruction requirements for new major stationary 
sources and major modifications locating in nonattainment areas. The 
definitions of ``regulated NSR pollutant'' and ``significant'' under 
COMAR 26.11.17.01 were amended. The amended definitions require that 
sources account for the condensable fraction of PM<INF>10</INF> and 
PM<INF>2.5</INF>, require that NO<INF>X</INF> and SO<INF>2</INF> be 
regulated as precursors to PM<INF>10</INF> and PM<INF>2.5</INF>, and 
establish significant emission rates (SERs) for PM<INF>2.5</INF> and 
its precursors. COMAR 26.11.17.02 was revised to specify that all of 
the major nonattainment NSR preconstruction requirements of the chapter 
are applicable to new major stationary sources and major modifications 
that are major for PM<INF>2.5</INF> or its precursors. COMAR 
26.11.17.02 was also revised to clarify that in addition to the 
requirements of that chapter, the Prevention of Significant 
Deterioration (PSD) requirements of COMAR 26.11.04.16 may also apply to 
sources locating in nonattainment areas.

III. Proposed Action

    EPA's review of this material indicates that the proposed revisions 
comply with the nonattainment NSR program requirements of the CAA and 
its implementing regulations (including the 2008 NSR PM<INF>2.5</INF> 
Rule) that are applicable in Maryland at this time. EPA is therefore 
proposing to approve MDE's August 22, 2013 submittal as a revision to 
the Maryland SIP. EPA is soliciting public comments on the issues 
discussed in this document. These comments will be considered before 
taking final action.

IV. Incorporation by Reference

    In this proposed action, the EPA is proposing to include in a final 
EPA rule, regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference amendments to Regulation .01 under COMAR 
26.11.01 (General Administrative Provisions) and Regulations .01 and 
.02 under COMAR 26.11.17 (Nonattainment Provisions for Major New 
Sources and Major Modifications). The EPA has made, and will continue 
to make, these documents generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

V. 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 approves 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, relating to Maryland's nonattainment 
NSR program, 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, 
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 9, 2015.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-06729 Filed 3-24-15; 8:45 am]
BILLING CODE 6560-50-P


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