[Federal Register Volume 87, Number 44 (Monday, March 7, 2022)]
[Proposed Rules]
[Pages 12631-12633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04719]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2021-0662; FRL-9465-01-R3]


Air Plan Approval; Maryland; Nonattainment New Source Review 
Requirements for 2015 8-Hour Ozone National Ambient Air Quality 
Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and withdrawal of a prior proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
Maryland Department of the Environment (MDE) on behalf of the State of 
Maryland (Maryland). This revision certifies that Maryland's existing 
nonattainment new source review (NNSR) program, covering the Baltimore 
nonattainment area, the Philadelphia-Wilmington-Atlantic City 
nonattainment area, and the Washington, DC nonattainment area for the 
2008 8-hour ozone national ambient air quality standards (NAAQS), is at 
least as stringent as applicable Federal requirements. EPA is proposing 
to approve this revision in accordance with the requirements of the 
Clean Air Act (CAA). Additionally, EPA is withdrawing a prior proposed 
approval of a related Maryland SIP submittal regarding ozone 
interprecursor trading.

DATES: The proposed rule published on October 27, 2020 (85 FR 68029) is 
withdrawn as of March 7, 2022. Written comments on the proposed 
approval must be received on or before April 6, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2021-0662 at https://www.regulations.gov. For comments submitted at 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. For either manner of submission, EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be confidential business information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located

[[Page 12632]]

outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section. 
For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10), 
Air & Radiation Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone 
number is (215) 814-2339. Mr. He can also be reached via electronic 
mail at <a href="/cdn-cgi/l/email-protection#eda588c3b482838a99848c83ad889d8cc38a829b"><span class="__cf_email__" data-cfemail="f6be93d8af999891829f9798b6938697d8919980">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 3, 2020, MDE submitted SIP #20-05: ``Nonattainment New 
Source Review (NNSR) Certification for the State of Maryland 2015 Ozone 
NAAQS Nonattainment Areas,'' (#20-05) as a revision to Maryland's SIP. 
In this SIP revision, MDE is certifying that its existing NNSR program, 
covering the Baltimore nonattainment area (which includes Anne Arundel, 
Baltimore, Carroll, Harford, and Howard Counties and the city of 
Baltimore), the Maryland portion of Philadelphia-Wilmington-Atlantic 
City nonattainment area (which includes Cecil County in Maryland), and 
the Maryland portion of the Washington, DC nonattainment area (which 
includes Calvert, Charles, Frederick, Montgomery, and Prince Georges 
Counties in Maryland) for the 2015 8-hour ozone NAAQS, is at least as 
stringent as the requirements at 40 CFR 51.165 for ozone and its 
precursors.
    On October 1, 2015 (effective December 28, 2015), EPA promulgated a 
revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). 80 FR 
65292 (October 26, 2015). Under EPA's regulations at 40 CFR 50.19, the 
2015 8-hour ozone NAAQS is attained when the three-year average of the 
annual fourth-highest daily maximum 8-hour average ambient air quality 
ozone concentration is less than or equal to 0.070 ppm. Upon 
promulgation of a new or revised NAAQS, the CAA requires EPA to 
designate as nonattainment any area that is violating the NAAQS based 
on the three most recent years of ambient air quality data at the 
conclusion of the designation process. The Baltimore nonattainment 
area, the Philadelphia-Wilmington-Atlantic City nonattainment area, and 
the Washington, DC-MD-VA area were classified as marginal nonattainment 
for the 2015 8-hour ozone NAAQS on June 4, 2018 (effective August 3, 
2018) using 2014-2016 ambient air quality data. 83 FR 25776 (June 4, 
2018).
    On December 6, 2018, EPA issued the final SIP Requirements Rule, 
which establishes the requirements that state, tribal, and local air 
quality management agencies must meet as they develop implementation 
plans for areas where air quality exceeds the 2015 8-hour ozone NAAQS. 
Areas that were designated as marginal ozone nonattainment areas are 
required to attain the 2015 8-hour ozone NAAQS no later than August 3, 
2021.\1\ 83 FR 10376 (March 9, 2018) and 83 FR 62998 (December 6, 
2018).
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    \1\ EPA has not yet formally determined whether these areas 
timely attained, and any such final determination will be made by 
EPA in a future action.
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II. Summary of SIP Revision and EPA Analysis

    This rulemaking is specific to Maryland's NNSR requirements for the 
Baltimore nonattainment area, the Philadelphia-Wilmington-Atlantic City 
nonattainment area, and the Washington, DC-MD-VA nonattainment area. 
NNSR is a preconstruction review permit program that applies to new 
major stationary sources or major modifications at existing sources 
located in a nonattainment area. The specific NNSR requirements for the 
ozone NAAQS are located in 40 CFR 51.160 through 51.165. The SIP 
Requirements Rule explained that, for each nonattainment area, a NNSR 
plan or plan revision was due no later than 36 months after the 
effective date of area designations for the 2015 8-hour ozone standard 
(i.e., August 3, 2021).
    The minimum SIP requirements for NNSR permitting programs for the 
2015 8-hour ozone NAAQS are set forth in 40 CFR 51.165. See 40 CFR 
51.1114. The SIP for each ozone nonattainment area must contain NNSR 
provisions that: Set major source thresholds for oxides of nitrogen 
(NO<INF>X</INF>) and volatile organic compounds (VOCs) pursuant to 40 
CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2); classify physical changes 
as a major source if the change would constitute a major source by 
itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any 
significant net emissions increase of NO<INF>X</INF> as a significant 
net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); 
consider certain increases of VOC emissions in extreme ozone 
nonattainment areas as a significant net emissions increase and a major 
modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); \2\ set 
significant emissions rates for VOC and NO<INF>X</INF> as ozone 
precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); contain 
provisions for emissions reductions credits pursuant to 40 CFR 
51.165(a)(3)(ii)(C)(1)-(2); provide that the requirements applicable to 
VOC also apply to NO<INF>X</INF> pursuant to 40 CFR 51.165(a)(8); and 
set offset ratios for VOC and NO<INF>X</INF> pursuant to 40 CFR 
51.165(a)(9) (ii)-(iv). For the 2015 8-hour ozone NAAQS, the SIP for 
each ozone nonattainment area designated nonattainment for the 2008 8-
hour ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS 
on April 6, 2015, must also contain NNSR provisions that include the 
anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR 
51.165(a)(12).
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    \2\ EPA notes that neither COMAR 26.11.17 nor Maryland's 
approved SIP have the regulatory provision for any emissions change 
of VOC in extreme nonattainment areas, specified in 40 CFR 
51.165(a)(1)(v)(F), because Maryland has never had an area 
designated extreme nonattainment for any of the ozone NAAQS. Thus, 
the Maryland SIP is not required to have this requirement for VOC in 
extreme nonattainment areas until such time as Maryland has an 
extreme ozone nonattainment area.
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    Maryland's longstanding SIP approved NNSR program, established in 
Code of Maryland Regulations (COMAR) Air Quality Rule COMAR 26.11.17--
Nonattainment Provisions for Major New Sources and Major Modifications, 
applies to the construction and modification of major stationary 
sources in nonattainment areas. In its June 3, 2020 SIP revision, 
Maryland certifies that the version of the Air Quality Rule COMAR 
26.11.17 in the SIP is at least as stringent as the Federal NNSR 
requirements for the Philadelphia-Wilmington-Atlantic City 
nonattainment area, the Washington, DC nonattainment area, and the 
Baltimore nonattainment area. EPA last approved revisions to the SIP 
approved version of Maryland's NNSR rule in 2018 in response to EPA's 
February 3, 2017 Findings of Failure to Submit for various requirements 
relating to the 2008 8-hour ozone NAAQS. 83 FR 3982 (January 29, 2018). 
Maryland has not changed these major stationary source threshold 
provisions in COMAR 26.11.17.01(17), so they remain in Maryland's 
federally approved SIP.\3\ All of the sources located in the 2015 8-
hour ozone nonattainment areas in Maryland are required to meet a major 
stationary source threshold of 25 tons or

[[Page 12633]]

more per year of VOC or NO<INF>X</INF>. Because Maryland's major 
stationary source thresholds were established for the 1997 8-hour ozone 
NAAQS nonattainment designations, they have been changed, and therefore 
they are more stringent than required by the 2008 and 2015 8-hour ozone 
NAQQS.
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    \3\ Under the 1997 8-hour ozone NAAQS, the Baltimore Area was 
classified as serious nonattainment and the Philadelphia-Wilmington-
Atlantic City and Washington, DC Areas were classified as moderate 
nonattainment.
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    COMAR 26.11.17 currently includes provisions allowing ozone 
interprecursor trading. On January 31, 2020, MDE submitted a SIP 
revision (#20-02) to incorporate the interprecursor trading provisions 
of COMAR 26.11.17 into the Maryland SIP. On October 27, 2020, EPA 
published a notice of proposed rulemaking (NPRM) in which EPA proposed 
to approve Maryland SIP revision #20-02). 85 FR 68029 (October 27, 
2020). MDE's SIP Revision #20-05 submission to EPA referenced those 
interprecursor trading provisions of COMAR 26.11.17 in its 
certification that Maryland's NNSR program was consistent with Federal 
requirements. Subsequently, on January 29, 2021, the United States 
Court of Appeals for the D.C. Circuit concluded that ozone 
interprecursor trading is not permissible under the CAA and vacated 
ozone interprecursor trading, i.e., the interprecursor trading 
provision in the Federal NNSR regulations. Sierra Club v. EPA, 985 F.3d 
1055 (D.C. Cir. 2021). EPA removed the language allowing interprecursor 
trading for ozone and restored the language in the NNSR regulations to 
the form it was in after the EPA's 2008 p.m.2.5 implementation rule. 86 
FR 37918 (July 19, 2021). After the court decision and EPA's withdrawal 
of the interprecursor trading provisions, by letter dated October 26, 
2021, Maryland withdrew SIP revision #20-02 with the interprecursor 
trading provisions in its entirety. Additionally, in a separate 
clarification letter dated October 26, 2021, MDE requested that EPA 
withdraw from EPA's consideration those portions of SIP revision #20-05 
which related to ozone interprecursor trading. Furthermore, MDE 
committed to removing the interprecursor trading provisions from COMAR 
and to not implementing them in the interim. Consequently, those 
provisions are no longer pending action before EPA. EPA is publishing 
this notice of proposed rulemaking to notify commenters that EPA no 
longer intends to take final action on SIP revision #20-02 or to 
consider that SIP revision in this proposal to approve SIP revision 
#20-05.

III. Proposed Action

    EPA's review of this material indicates that the Maryland's 
submission fulfills the 40 CFR 51.1114 revision requirement, meets the 
requirements of CAA sections 110 and 172 and the minimum SIP 
requirements of 40 CFR 51.165. EPA is proposing to approve Maryland's 
SIP revision addressing the NNSR requirements for the 2015 8-hour ozone 
NAAQS for the Baltimore, MD, Philadelphia-Wilmington-Atlantic City, PA-
NJ-MD-DE, and Washington, DC-MD-VA nonattainment areas, which was 
submitted on June 3, 2020. EPA is soliciting public comments on the 
issues discussed in the proposed approval. These comments will be 
considered before taking final action. Additionally, because MDE has 
officially withdrawn its January 31, 2020 SIP revision #20-02 in its 
entirety, EPA is withdrawing the proposed action for that SIP revision 
in this action.

IV. Statutory and Executive Order Reviews

A. General Requirements

    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 action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
    <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 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-04719 Filed 3-4-22; 8:45 am]
BILLING CODE 6560-50-P


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