[Federal Register Volume 79, Number 192 (Friday, October 3, 2014)]
[Proposed Rules]
[Pages 59703-59717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23638]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R03-OAR-2014-0387; FRL-9917-40-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Redesignation Request and Associated Maintenance Plan for the
Baltimore, Maryland Nonattainment Area for the 1997 Annual Fine
Particulate Matter Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the State of Maryland's request to redesignate to attainment
the Baltimore, Maryland Nonattainment Area (Baltimore Area or Area) for
the 1997 annual fine particulate matter (PM2.5) national
ambient air quality standard (NAAQS). The EPA has determined that the
Baltimore Area attained the standard and is proposing to determine that
it continues to attain the standard. In addition, EPA is proposing to
approve, as a revision to the Maryland State Implementation Plan (SIP),
the Baltimore Area maintenance plan to show maintenance of the 1997
annual PM2.5 NAAQS through 2025 for the Area. The
maintenance plan includes the 2017 and 2025 PM2.5 and
nitrogen oxides (NOX) mobile vehicle emissions budgets
(MVEBs) for the Baltimore Area for the 1997 annual PM2.5
NAAQS, which EPA is proposing to approve for transportation conformity
purposes. These actions are being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before November 3, 2014.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0387 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2014-0387, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, 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.
[[Page 59704]]
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0387. 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, Air and
Radiation Management Administration, 1800 Washington Boulevard,
Baltimore, Maryland 21230.
FOR FURTHER INFORMATION CONTACT: Marilyn Powers, at (215) 814-2308, or
by email at [email protected].
Table of Contents
I. Background
II. EPA's Requirements
A. Criteria for Redesignation to Attainment
B. Requirements of a Maintenance Plan
III. Summary of Proposed Actions
IV. Effects of Recent Court Decisions on Proposed Actions
A. Effect of the Supreme Court and D.C. Circuit Court's
Decisions on EPA's CSAPR
B. Effect of the January 4, 2013 D.C. Circuit Court Decision
Regarding the PM2.5 Implementation under Subpart 4 of
Part D of Title I of the CAA
V. EPA's Analysis of Maryland's SIP Submittal
A. Redesignation Request
B. Maintenance Plan
C. Transportation Conformity
VI. Proposed Actions
VII. Statutory and Executive Order Reviews
I. Background
The first air quality standards for PM2.5 were
established on July 18, 1997 (62 FR 38652). EPA promulgated an annual
standard at a level of 15 micrograms per cubic meter ([mu]g/m\3\),
based on a three-year average of annual mean PM2.5
concentrations (the 1997 annual PM2.5 standard). In the same
rulemaking, EPA promulgated a 24-hour standard of 65 [mu]g/m\3\ based
on a three-year average of the 98th percentile of 24-hour
concentrations.
On January 5, 2005 (70 FR 944, 1014), EPA published air quality
area designations for the 1997 PM2.5 NAAQS. In that
rulemaking action, EPA designated the Baltimore Area as nonattainment
for the 1997 annual PM2.5 NAAQS. The Baltimore Area is
comprised of the City of Baltimore, and Anne Arundel, Baltimore,
Carroll, Harford, Howard, and Queen Anne Counties. See 40 CFR 81.321.
On October 17, 2006 (71 FR 61144), EPA retained the annual average
standard at 15 [mu]g/m\3\ but revised the 24-hour standard to 35 [mu]g/
m\3\, based again on the three-year average of the 98th percentile of
the 24-hour concentrations (the 2006 24-hour PM2.5
standard). On November 13, 2009 (74 FR 58688), EPA published
designations for the 2006 24-hour PM2.5 standard, which
became effective on December 14, 2009. In that rulemaking action, EPA
designated the Baltimore Area as attainment for the 2006 24-hour
PM2.5 NAAQS. See 74 FR 58737 and 40 CFR 81.321. Since the
Baltimore Area is designated nonattainment for the annual NAAQS
promulgated in 1997, today's proposed rulemaking action addresses the
redesignation to attainment only for this standard.
On May 22, 2012 (77 FR 30208), EPA determined that the Baltimore
Area had attained the 1997 annual PM2.5 NAAQS, and that the
Area attained the NAAQS by the statutory attainment date of April 5,
2010. Pursuant to 40 CFR 51.1004(c) and based on the determination of
attainment, the requirements for the Baltimore Area to submit an
attainment demonstration and associated reasonably available control
measures (RACM), a reasonable further progress (RFP) plan, contingency
measures, and other planning SIP revisions related to the attainment of
the 1997 annual PM2.5 NAAQS were suspended until such time
as: (1) The Area is redesignated to attainment for the standard, at
which time the requirements no longer apply or (2) EPA determines that
the Area has again violated the standard, at which time such plans are
required to be submitted.
On December 12, 2013, the State of Maryland, through the Maryland
Department of the Environment (MDE), formally submitted a request to
redesignate the Baltimore Area from nonattainment to attainment for the
1997 annual PM2.5 NAAQS. Concurrently, MDE submitted a
maintenance plan for the Area as a SIP revision to ensure continued
attainment throughout the Area over the next 10 years. The maintenance
plan includes the 2017 and 2025 PM2.5 and NOX
MVEBs used for transportation conformity purposes for the Baltimore
Area for the 1997 annual PM2.5 NAAQS.
II. EPA's Requirements
A. Criteria for Redesignation to Attainment
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation providing that: (1) EPA determines that the
area has attained the applicable NAAQS; (2) EPA has fully approved the
applicable implementation plan for the area under section 110(k) of the
CAA; (3) EPA determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable SIP and applicable Federal air
pollution control regulations and other permanent and enforceable
reductions; (4) EPA has fully approved a maintenance plan for the area
as meeting the requirements of section 175A of the CAA; and, (5) the
state containing such area has met all requirements applicable to the
area under section 110 and part D of the CAA. Each of these
requirements are discussed in section V (EPA's Analysis
[[Page 59705]]
of Maryland's SIP Submittal) of this proposed rulemaking action.
EPA has provided guidance on redesignation in the ``State
Implementation Plans; General Preamble for the Implementation of Title
I of the CAA Amendments of 1990,'' (57 FR 13498, April 16, 1992) (the
``General Preamble'') and has provided further guidance on processing
redesignation requests in the following documents: (1) ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992 (hereafter referred to as the ``1992 Calcagni
Memorandum''); (2) ``SIP Actions Submitted in Response to CAA
Deadlines,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, October 28, 1992; and, (3) ``Part D New Source
Review (Part D NSR) Requirements for Areas Requesting Redesignation to
Attainment,'' Memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation, October 14, 1994.
B. Requirements of a Maintenance Plan
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A of the CAA, the plan must demonstrate continued
attainment of the applicable NAAQS for at least 10 years after EPA
approves the redesignation of an area to attainment. Eight years after
the redesignation, the state must submit a revised maintenance plan
demonstrating that attainment will continue to be maintained for the 10
years following the initial 10-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation, as EPA deems
necessary to assure prompt correction of any future PM2.5
violations.
The 1992 Calcagni Memorandum provides additional guidance on the
content of a maintenance plan. The memorandum states that a maintenance
plan should address the following provisions: (1) An attainment
emissions inventory; (2) a maintenance demonstration showing
maintenance for 10 years; (3) a commitment to maintain the existing
monitoring network; (4) verification of continued attainment; and, (5)
a contingency plan to prevent or correct future violations of the
NAAQS.
Under the CAA, states are required to submit, at various times,
control strategy SIP revisions and maintenance plans for nonattainment
areas and for areas seeking redesignation to attainment for a given
NAAQS. These emission control strategy SIP revisions (e.g., RFP and
attainment demonstration SIP revisions) and maintenance plans create
MVEBs based on onroad mobile source emissions for the relevant criteria
pollutants and/or their precursors, where appropriate, to address
pollution from onroad transportation sources. The MVEBs are the
portions of the total allowable emissions that are allocated to onroad
vehicle use that, together with emissions from all other sources in the
area, will provide attainment, RFP, or maintenance, as applicable. The
budget serves as a ceiling on emissions from an area's planned
transportation system. Under 40 CFR part 93, an MVEB for an area
seeking a redesignation to attainment is established for the last year
of the maintenance plan.
The maintenance plan for the Baltimore Area includes 2017 and 2025
PM2.5 and NOX MVEBs for transportation conformity
purposes. The transportation conformity determination for the Area is
further discussed in subsection C of section V (Transportation
Conformity) of this proposed rulemaking action and in a technical
support document (TSD) dated May 20, 2014, which is available in the
docket for this proposed rulemaking action.
III. Summary of Proposed Actions
EPA is proposing to take several rulemaking actions related to the
redesignation of the Baltimore Area to attainment for the 1997 annual
PM2.5 NAAQS. EPA is proposing to find that the Baltimore
Area meets the requirements for redesignation for the 1997 annual
PM2.5 NAAQS under section 107(d)(3)(E) of the CAA. EPA is
proposing to approve the maintenance plan for the Baltimore Area as a
revision to the Maryland SIP for the 1997 annual PM2.5
NAAQS. Approval of the maintenance plan is one of the CAA criteria for
redesignation of the Area to attainment for the 1997 annual
PM2.5 NAAQS. The Baltimore Area maintenance plan is designed
to ensure continued attainment in the Area for 10 years after
redesignation. EPA is also proposing to approve the MVEBs for
PM2.5 and NOX emissions for the 1997 annual
PM2.5 standard. In this rulemaking action, EPA is proposing
to find that the Area continues to attain the standard.
EPA previously determined that the Baltimore Area had attained the
1997 annual PM2.5 NAAQS and that it had done so by its
applicable attainment date. See 77 FR 30208, May 22, 2012. In this
rulemaking action, EPA is proposing to find that the Area continues to
attain the standard. EPA is, therefore, proposing to approve MDE's
request to change the designation for the Baltimore Area from
nonattainment to attainment for the 1997 annual PM2.5 NAAQS.
IV. Effects of Recent Court Decisions on Proposed Actions
In this proposed rulemaking action, EPA considers the effects of
three legal decisions on this redesignation. EPA first considers the
effects of the D.C. Circuit Court and U.S. Supreme Court's decisions in
EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012),
rev'd, No. 12-1182 (S. Ct. April 29, 2014). The Supreme Court reversed
the D.C. Circuit Court decision vacating and remanding the Cross-State
Air Pollution Rule (CSAPR). EPA is also considering the effect of the
January 4, 2013 D.C. Circuit decision remanding to EPA the ``Final
Clean Air Fine Particle Implementation Rule'' (72 FR 20586, April 25,
2007) and the ``Implementation of the New Source Review (NSR) Program
for Particulate Matter Less than 2.5 Micrometers (PM2.5)''
final rule (73 FR 28321, May 16, 2008) (collectively, ``1997
PM2.5 Implementation Rule''). Natural Resources Defense
Council (NRDC) v. EPA, 706 F.3d 428 (D.C. Cir. 2013).
A. Effect of the Supreme Court and D.C. Circuit Court's Decisions
Regarding EPA's CSAPR
EPA has considered the recent decisions from the U.S. Supreme Court
and the D.C. Circuit Court regarding EPA's CSAPR, and has concluded
that the decisions do not affect the Agency's proposal to redesignate
the Baltimore Area from nonattainment to attainment for the 1997 annual
PM2.5 NAAQS. EPA promulgated CSAPR (76 FR 48208, August 8,
2011) to replace the Clean Air Interstate Rule (CAIR), which has been
in place since 2005. See 76 FR 59517. Both CSAPR and CAIR require
significant reductions in emissions of sulfur dioxide (SO2)
and NOX from electric generating units (EGUs) to limit the
interstate transport of these pollutants and the ozone and fine
particulate matter they form in the atmosphere. The D.C. Circuit Court
initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), but ultimately remanded the rule to EPA without vacatur to
preserve the environmental benefits provided by CAIR, North Carolina v.
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). After staying the
implementation of CSAPR on December 20, 2011 and instructing EPA to
continue to implement CAIR in
[[Page 59706]]
the interim, on August 21, 2012, the D.C. Circuit Court issued a
decision to vacate CSAPR, with further instruction to continue
administering CAIR ``pending the promulgation of a valid replacement.''
EME Homer City Generation L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012).
On April 29, 2014, the Supreme Court reversed the opinion of the D.C.
Circuit Court and remanded the matter to the D.C. Circuit Court for
further proceedings. EPA v. EME Homer City Generation, L.P., No. 12-
1182 (S. Ct. April 29, 2014).
In its submission, MDE does not rely on either CAIR or CSAPR for
emission reductions that contributed to the Baltimore Area's attainment
of the 1997 annual PM2.5 NAAQS, nor does the State rely on
either of the rules to show maintenance of the standard in the Area for
10 years following redesignation. However, because CAIR was promulgated
in 2005 and incentivized sources and states to begin achieving early
emission reductions, the air quality data examined by EPA in issuing a
final determination of attainment for the Baltimore Area in 2009
(November 20, 2009, 74 FR 60119) and the air quality data from the Area
since 2005 necessarily reflect reductions in emissions from upwind
sources as a result of CAIR. Nonetheless, in this case EPA believes
that it is appropriate to redesignate the Area. Modeling conducted by
EPA during the CSAPR rulemaking process, which used a baseline
emissions scenario that ``backed out'' the effects of CAIR, see 76 FR
at 48223, projected that the counties in the Baltimore Area would have
PM2.5 annual design values \1\ below the level of the 1997
annual PM2.5 standard for 2012 and 2014 without taking into
account emission reductions from CAIR or CSAPR. See Appendix B of EPA's
``Air Quality Modeling Final Rule Technical Support Document,'' (Page
B-45, B-46), which is available in the docket for this proposed
rulemaking action. In addition, the 2010-2012 quality-assured, quality-
controlled, and certified monitoring data for the Baltimore Area
confirms that 2012 PM2.5 annual design values for each
monitoring site in the Area remained well below the 1997 annual
PM2.5 NAAQS, and, thus, the entire Area continued to attain
the standard in 2012. See Table 1 of this proposed rulemaking action
for the Baltimore Area's monitoring data for 2010-2012.
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\1\ As defined in 40 CFR part 50, Appendix N, section (1)(c). A
monitoring site's design value is compared to the level of the 1997
annual PM2.5 NAAQS to determine compliance with the
standard.
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The status of CSAPR is not relevant to this redesignation. CSAPR
was promulgated in June 2011, and the rule was stayed by the D.C.
Circuit Court just six months later, before the trading programs it
created were scheduled to go into effect. Therefore, the Baltimore
Area's attainment of the 1997 annual PM2.5 standard cannot
have been a result of any emission reductions associated with CSAPR. In
sum, neither the current status of CAIR nor the current status of CSAPR
affects any of the criteria for proposed approval of this redesignation
request for the Area.
B. Effect of the January 4, 2013 D.C. Circuit Court Decision Regarding
PM2.5 Implementation Under Subpart 4 of Part D of Title I of the CAA
1. Background
On January 4, 2013, in Natural Resources Defense Council v. EPA,
the D.C. Circuit Court remanded to EPA the ``Final Clean Air Fine
Particle Implementation Rule'' (72 FR 20586, April 25, 2007) and the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR
28321, May 16, 2008) (collectively, ``1997 PM2.5
Implementation Rule''). 706 F.3d 428 (D.C. Cir. 2013). The D.C. Circuit
Court found that EPA erred in implementing the 1997 PM2.5
NAAQS pursuant to the general implementation provisions of subpart 1 of
Part D of Title I of the CAA (subpart 1), rather than the particulate-
matter-specific provisions of subpart 4 of Part D of Title I (subpart
4).
Prior to the January 4, 2013 decision, the states had worked
towards meeting the air quality goals of the 1997 annual
PM2.5 NAAQS in accordance with EPA regulations and guidance
derived from subpart 1. Subsequent to this decision, in rulemaking that
responds to the D.C. Circuit Court's remand, EPA took this history into
account by proposing to set a new deadline for any remaining
submissions that may be required for moderate nonattainment areas as a
result of the Court's decision regarding subpart 4.
On June 2, 2014 (79 FR 31566) EPA finalized the ``Identification of
Nonattainment Classification and Deadlines for Submission of SIP
Provisions for the 1997 PM2.5 NAAQS and 2006
PM2.5 NAAQS'' rule (the PM2.5 Subpart 4
Classification and Deadline Rule). The rule identifies the
classification under subpart 4 for areas currently designated
nonattainment for the 1997 annual and/or 2006 24-hour PM2.5
standards, and sets a new deadline for states to submit attainment-
related and other SIP elements required for these areas pursuant to
subpart 4. The rule also identifies EPA guidance that is currently
available regarding subpart 4 requirements. The PM2.5
Subpart 4 Classification and Deadline Rule specifies December 31, 2014
as the deadline for the states to submit any additional attainment-
related SIP-elements that may be needed to meet the applicable
requirements of subpart 4 for areas currently designated nonattainment
for the 1997 annual and/or 2006 24-hour PM2.5 NAAQS and to
submit SIPs addressing the nonattainment NSR requirements in subpart 4.
Therefore, as explained in detail in the following section, any
additional attainment-related SIP elements that may be needed for the
Baltimore Area to meet the applicable requirements of subpart 4 were
not due at the time that Maryland submitted its redesignation request
for the Area. Maryland submitted its request for redesignating the
Baltimore Area for the 1997 annual PM2.5 NAAQS on December
12, 2013.
2. Proposal on This Issue
In this proposed rulemaking action, EPA addresses the effect of the
D.C. Circuit Court's January 4, 2013 ruling and the proposed
PM2.5 Subpart 4 Nonattainment Classification and Deadline
Rule on the redesignation request for the Baltimore Area. EPA is
proposing to determine that the D.C. Circuit Court's January 4, 2013
decision does not prevent EPA from redesignating the Baltimore Area to
attainment. Even in light of the D.C. Circuit Court's decision,
redesignation for the Baltimore Area is appropriate under the CAA and
EPA's longstanding interpretations of the CAA provisions regarding
redesignation. EPA first explains its longstanding interpretation that
requirements that are imposed, or that become due, after a complete
redesignation request is submitted for an area that is attaining the
standard, are not applicable for purposes of evaluating a redesignation
request. Second, EPA then shows that, even if EPA applies the subpart 4
requirements to the redesignation request for the Baltimore Area and
disregards the provisions of its 1997 annual PM2.5
implementation rule remanded by the D.C. Circuit Court, the State's
request for redesignation of the Baltimore Area still qualifies for
approval. EPA's discussion takes into account the effect of the D.C.
Circuit Court's ruling and the proposed PM2.5 Subpart 4
Classification and Deadline Rule on the Baltimore Area maintenance
plan, which EPA views as
[[Page 59707]]
approvable when subpart 4 requirements are considered.
a. Applicable Requirements Under Subpart 4 for Purposes of Evaluating
the Redesignation Request for the Baltimore Area
With respect to the 1997 PM2.5 Implementation Rule, the
D.C. Circuit Court's January 4, 2013 ruling rejected EPA's reasons for
implementing the PM2.5 NAAQS solely in accordance with the
provisions of subpart 1, and remanded that matter to EPA, so that it
could address implementation of the 1997 annual PM2.5 NAAQS
under subpart 4, in addition to subpart 1. For the purposes of
evaluating the redesignation request for the Baltimore Area, to the
extent that implementation under subpart 4 would impose additional
requirements for areas designated nonattainment, EPA believes that
those requirements are not ``applicable'' for the purposes of CAA
section 107(d)(3)(E), and thus EPA is not required to consider subpart
4 requirements with respect to the redesignation of the Baltimore Area.
Under its longstanding interpretation of the CAA, EPA has interpreted
section 107(d)(3)(E) to mean, as a threshold matter, that the part D
provisions which are ``applicable'' and which must be approved in order
for EPA to redesignate an area include only those which came due prior
to a state's submittal of a complete redesignation request. See 1992
Calcagni Memorandum. See also ``State Implementation Plan (SIP)
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after November 15, 1992,'' Memorandum
from Michael Shapiro, Acting Assistant Administrator, Air and
Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation
of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final
Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12,
2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding
EPA's redesignation rulemaking applying this interpretation and
expressly rejecting Sierra Club's view that the meaning of
``applicable'' under the statute is ``whatever should have been in the
plan at the time of attainment rather than whatever actually was in the
plan and already implemented or due at the time of attainment'').\2\ In
this case, at the time that the State submitted its redesignation
request, the requirements under subpart 4 were not due.
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\2\ Applicable requirements of the CAA that come due subsequent
to the area's submittal of a complete redesignation request remain
applicable until a redesignation is approved, but are not required
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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EPA's view that, for purposes of evaluating the redesignation of
the Baltimore Area, the subpart 4 requirements were not due at the time
Maryland submitted the redesignation request is in keeping with the
EPA's interpretation of subpart 2 requirements for subpart 1 ozone
areas redesignated subsequent to the D.C. Circuit Court's decision in
South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir.
2006). In South Coast, the D.C. Circuit Court found that EPA was not
permitted to implement the 1997 8-hour ozone standard solely under
subpart 1, and held that EPA was required under the statute to
implement the standard under the ozone-specific requirements of subpart
2 as well. Subsequent to the South Coast decision, in evaluating and
acting upon redesignation requests for the 1997 8-hour ozone standard
that were submitted to EPA for areas under subpart 1, EPA applied its
longstanding interpretation of the CAA that ``applicable
requirements,'' for purposes of evaluating a redesignation, are those
that had been due at the time the redesignation request was submitted.
See, e.g., Proposed Redesignation of Manitowoc County and Door County
Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those
actions, EPA, therefore, did not consider subpart 2 requirements to be
``applicable'' for the purposes of evaluating whether the area should
be redesignated under section 107(d)(3)(E).
EPA's interpretation derives from the provisions of section
107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be
redesignated, a state must meet ``all requirements `applicable' to the
area under section 110 and part D.'' Section 107(d)(3)(E)(ii) provides
that the EPA must have fully approved the ``applicable'' SIP for the
area seeking redesignation. These two sections read together support
EPA's interpretation of ``applicable'' as only those requirements that
came due prior to submission of a complete redesignation request.
First, holding states to an ongoing obligation to adopt new CAA
requirements that arose after the state submitted its redesignation
request, in order to be redesignated, would make it problematic or
impossible for EPA to act on redesignation requests in accordance with
the 18-month deadline Congress set for EPA action in section
107(d)(3)(D). If ``applicable requirements'' were interpreted to be a
continuing flow of requirements with no reasonable limitation, states,
after submitting a redesignation request, would be forced continuously
to make additional SIP submissions that in turn would require EPA to
undertake further notice-and-comment rulemaking actions to act on those
submissions. This would create a regime of unceasing rulemaking that
would delay action on the redesignation request beyond the 18-month
timeframe provided by the CAA for this purpose.
Second, a fundamental premise for redesignating a nonattainment
area to attainment is that the area has attained the relevant NAAQS due
to emission reductions from existing controls. Thus, an area for which
a redesignation request has been submitted would have already attained
the NAAQS as a result of satisfying statutory requirements that came
due prior to the submission of the request. Absent a showing that
unadopted and unimplemented requirements are necessary for future
maintenance, it is reasonable to view the requirements applicable for
purposes of evaluating the redesignation request as including only
those SIP requirements that have already come due. These are the
requirements that led to attainment of the NAAQS. To require, for
redesignation approval, that a state also satisfy additional SIP
requirements coming due after the state submits its complete
redesignation request, and while EPA is reviewing it, would compel the
state to do more than is necessary to attain the NAAQS, without a
showing that the additional requirements are necessary for maintenance.
In the context of this redesignation, the timing and nature of the
D.C. Circuit Court's January 4, 2013 decision in NRDC v. EPA and EPA's
PM2.5 Subpart 4 Nonattainment Classification and Deadline
Rule compound the consequences of imposing requirements that come due
after the redesignation request is submitted. Maryland submitted its
redesignation request for the 1997 annual PM2.5 NAAQS on
December 12, 2013, which is prior to the deadline by which the
Baltimore Area is required to meet the applicable requirements pursuant
to subpart 4.
To require Maryland's fully-completed and pending redesignation
request for the 1997 annual PM2.5 NAAQS to comply now with
requirements of subpart 4 that the D.C. Circuit Court announced only in
January 2013 and for which the deadline to comply has not yet come,
would be to give retroactive effect to
[[Page 59708]]
such requirements and provide the State a unique and earlier deadline
for compliance solely on the basis of submitting its redesignation
request for the Baltimore Area. The D.C. Circuit Court recognized the
inequity of this type of retroactive impact in Sierra Club v. Whitman,
285 F.3d 63 (D.C. Cir. 2002),\3\ where it upheld the D.C. Circuit
Court's ruling refusing to make retroactive EPA's determination that
the St. Louis area did not meet its attainment deadline. In that case,
petitioners urged the D.C. Circuit Court to make EPA's nonattainment
determination effective as of the date that the statute required,
rather than the later date on which EPA actually made the
determination. The D.C. Circuit Court rejected this view, stating that
applying it ``would likely impose large costs on States, which would
face fines and suits for not implementing air pollution prevention
plans . . . even though they were not on notice at the time.'' Id. at
68. Similarly, it would be unreasonable to penalize the States by
rejecting their redesignation request for an area that is already
attaining the 1997 annual PM2.5 standard and that met all
applicable requirements known to be in effect at the time of the
requests. For EPA now to reject the redesignation request solely
because the States did not expressly address subpart 4 requirements
which have not yet come due, would inflict the same unfairness
condemned by the D.C. Circuit Court in Sierra Club v. Whitman.
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\3\ Sierra Club v. Whitman was discussed and distinguished in a
recent D.C. Circuit Court decision that addressed retroactivity in a
quite different context, where, unlike the situation here, EPA
sought to give its regulations retroactive effect. National
Petrochemical and Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C.
Cir. 2010), rehearing denied 643 F.3d 958 (D.C. Cir. 2011), cert
denied 132 S. Ct. 571 (2011).
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b. Subpart 4 Requirements and Maryland Redesignation Request
Even if EPA were to take the view that the D.C. Circuit Court's
January 4, 2013 decision requires that, in the context of pending
redesignations for the 1997 annual PM2.5 standard, subpart 4
requirements were due and in effect at the time Maryland submitted its
redesignation request, EPA proposes to determine that the Baltimore
Area still qualifies for redesignation to attainment for the 1997
annual PM2.5 standard. As explained subsequently, EPA
believes that the redesignation request for the Baltimore Area, though
not expressed in terms of subpart 4 requirements, substantively meets
the requirements of that subpart for purposes of redesignating the Area
to attainment.
With respect to evaluating the relevant substantive requirements of
subpart 4 for purposes of redesignating the Baltimore Area, EPA notes
that subpart 4 incorporates components of subpart 1, which contains
general air quality planning requirements for areas designated as
nonattainment. See section 172(c). Subpart 4 itself contains specific
planning and scheduling requirements for coarse particulate matter
(PM10) \4\ nonattainment areas, and under the D.C. Circuit
Court's January 4, 2013 decision in NRDC v. EPA, these same statutory
requirements also apply for PM2.5 nonattainment areas. EPA
has longstanding general guidance that interprets the 1990 amendments
to the CAA, making recommendations to states for meeting the statutory
requirements for SIPs for nonattainment areas. See the General
Preamble. In the General Preamble, EPA discussed the relationship of
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart
1 requirements were to an extent ``subsumed by, or integrally related
to, the more specific PM10 requirements'' (57 FR 13538,
April 16, 1992). The subpart 1 requirements include, among other
things, provisions for attainment demonstrations, RACM, RFP, emissions
inventories, and contingency measures.
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\4\ PM10 refers to particulates nominally 10
micrometers in diameter or smaller.
---------------------------------------------------------------------------
For the purposes of this redesignation request, in order to
identify any additional requirements which would apply under subpart 4,
consistent with EPA's June 2, 2014 PM2.5 Subpart 4
Nonattainment Classification and Deadline Rule, EPA is considering the
Baltimore Area to be a ``moderate'' PM2.5 nonattainment
area. As EPA explained in its June 2, 2014 rule, section 188 of the CAA
provides that all areas designated nonattainment areas under subpart 4
are initially classified by operation of law as ``moderate''
nonattainment areas, and will remain moderate nonattainment areas
unless and until EPA reclassifies the area as a ``serious''
nonattainment area. Accordingly, EPA believes that it is appropriate to
limit the evaluation of the potential impact of subpart 4 requirements
to those that would be applicable to moderate nonattainment areas.
Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment
areas and include the following: (1) An approved permit program for
construction of new and modified major stationary sources (section
189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B));
(3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative
milestones demonstrating RFP toward attainment by the applicable
attainment date (section 189(c)).
The permit requirements of subpart 4, as contained in section
189(a)(1)(A), refer to and apply the subpart 1 permit provisions
requirements of sections 172 and 173 to PM10, without adding
to them. Consequently, EPA believes that section 189(a)(1)(A) does not
itself impose for redesignation purposes any additional requirements
for moderate areas beyond those contained in subpart 1.\5\ In any
event, in the context of redesignation, EPA has long relied on the
interpretation that a fully approved nonattainment NSR program is not
considered an applicable requirement for redesignation, provided the
area can maintain the standard with a prevention of significant
deterioration (PSD) program after redesignation. A detailed rationale
for this view is described in a memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, dated October 14, 1994, entitled,
``Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment.'' See also rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain,
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
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\5\ The potential effect of section 189(e) on section
189(a)(1)(A) for purposes of evaluating this redesignation request
is discussed in this rulemaking action.
---------------------------------------------------------------------------
With respect to the specific attainment planning requirements under
subpart 4,\6\ when EPA evaluates a redesignation request under either
subpart 1 or 4, any area that is attaining the PM2.5
standards is viewed as having satisfied the attainment planning
requirements for these subparts. For redesignations, EPA has for many
years interpreted attainment-linked requirements as not applicable for
areas attaining the standard. In the General Preamble, EPA stated that:
``The requirements for RFP will not apply in evaluating a request for
redesignation to attainment since, at a minimum, the air quality data
for the area must show that the area has already attained. Showing that
the State will make RFP towards attainment will, therefore, have no
meaning at that point.''
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\6\ i.e., attainment demonstration, RFP, RACM, milestone
requirements, contingency measures.
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The General Preamble also explained that: ``The section 172(c)(9)
requirements are directed at ensuring RFP and attainment by the
applicable
[[Page 59709]]
date. These requirements no longer apply when an area has attained the
standard and is eligible for redesignation. Furthermore, section 175A
for maintenance plans . . . provides specific requirements for
contingency measures that effectively supersede the requirements of
section 172(c)(9) for these areas.'' Id. EPA similarly stated in its
1992 Calcagni Memorandum that: ``The requirements for reasonable
further progress and other measures needed for attainment will not
apply for redesignations because they only have meaning for areas not
attaining the standard.''
It is evident that even if we were to consider the D.C. Circuit
Court's January 4, 2013 decision in NRDC v. EPA to mean that
attainment-related requirements specific to subpart 4 should be imposed
retroactively \7\ or prior to December 31, 2014 and, thus, were due
prior to the State's redesignation request, those requirements do not
apply to an area that is attaining the 1997 annual PM2.5
NAAQS, for the purpose of evaluating a pending request to redesignate
the area to attainment. EPA has consistently enunciated this
interpretation of applicable requirements under section 107(d)(3)(E)
since the General Preamble was published more than twenty years ago.
Courts have recognized the scope of EPA's authority to interpret
``applicable requirements'' in the redesignation context. See Sierra
Club v. EPA, 375 F.3d 537 (7th Cir. 2004).
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\7\ As EPA has explained previously, we do not believe that the
D.C. Circuit Court's January 4, 2013 decision should be interpreted
so as to impose these requirements on the states retroactively.
Sierra Club v. Whitman, supra.
---------------------------------------------------------------------------
Moreover, even outside the context of redesignations, EPA has
viewed the obligations to submit attainment-related SIP planning
requirements of subpart 4 as inapplicable for areas that EPA determines
are attaining the 1997 annual PM2.5 standard. EPA's prior
``Clean Data Policy'' rulemakings for the PM10 NAAQS, also
governed by the requirements of subpart 4, explain EPA's reasoning.
They describe the effects of a determination of attainment on the
attainment-related SIP planning requirements of subpart 4. See
``Determination of Attainment for Coso Junction Nonattainment Area,''
(75 FR 27944, May 19, 2010). See also Coso Junction Proposed
PM10 Redesignation, (75 FR 36023, 36027, June 24, 2010);
Proposed and Final Determinations of Attainment for San Joaquin
Nonattainment Area (71 FR 40952, 40954-55, July 19, 2006 and 71 FR
63641, 63643-47, October 30, 2006). In short, EPA in this context has
also long concluded that to require states to meet superfluous SIP
planning requirements is not necessary and not required by the CAA, so
long as those areas continue to attain the relevant NAAQS.
Elsewhere in this notice, EPA proposes to determine that the
Baltimore Area has attained and continues to attain the 1997 annual
PM2.5 NAAQS. Under its longstanding interpretation, EPA is
proposing to determine here that the Baltimore Area meets the
attainment-related plan requirements of subparts 1 and 4 for the 1997
annual PM2.5 NAAQS. Thus, EPA is proposing to conclude that
the requirements to submit an attainment demonstration under
189(a)(1)(B), a RACM determination under section 172(c)(1) and section
189(a)(1)(c), a RFP demonstration under 189(c)(1), and contingency
measure requirements under section 172(c)(9) are satisfied for purposes
of evaluating this redesignation request.
c. Subpart 4 and Control of PM2.5 Precursors
The D.C. Circuit Court in NRDC v. EPA remanded to EPA the two rules
at issue in the case with instructions to EPA to re-promulgate them
consistent with the requirements of subpart 4. EPA in this section
addresses the D.C. Circuit Court's opinion with respect to
PM2.5 precursors. While past implementation of subpart 4 for
PM10 has allowed for control of PM10 precursors
such as NOX from major stationary, mobile, and area sources
in order to attain the standard as expeditiously as practicable,
section 189(e) of the CAA specifically provides that control
requirements for major stationary sources of direct PM10
shall also apply to PM10 precursors from those sources,
except where EPA determines that major stationary sources of such
precursors ``do not contribute significantly to PM10 levels
which exceed the standard in the area.'' EPA's 1997 PM2.5
Implementation Rule, remanded by the D.C. Circuit Court, contained
rebuttable presumptions concerning certain PM2.5 precursors
applicable to attainment plans and control measures related to those
plans. Specifically, in 40 CFR 51.1002, EPA provided, among other
things, that a state was ``not required to address VOC [and ammonia] as
. . . PM2.5 attainment plan precursor[s] and to evaluate
sources of VOC [and ammonia] emissions in the State for control
measures.'' EPA intended these to be rebuttable presumptions. EPA
established these presumptions at the time because of uncertainties
regarding the emission inventories for these pollutants and the
effectiveness of specific control measures in various regions of the
country in reducing PM2.5 concentrations. EPA also left open
the possibility for such regulation of VOC and ammonia in specific
areas where that was necessary.
The D.C. Circuit Court in its January 4, 2013 decision made
reference to both section 189(e) and 40 CFR 51. 1002, and stated that:
``In light of our disposition, we need not address the petitioners'
challenge to the presumptions in [40 CFR 51.1002] that volatile organic
compounds and ammonia are not PM2.5 precursors, as subpart 4
expressly governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
Elsewhere in the D.C. Circuit Court's opinion, however, the D.C.
Circuit Court observed: ``Ammonia is a precursor to fine particulate
matter, making it a precursor to both PM2.5 and
PM10. For a PM10 nonattainment area governed by
subpart 4, a precursor is presumptively regulated. See 42 U.S.C.
7513a(e) [section 189(e)].'' Id. at 21, n.7.
For a number of reasons, EPA believes that its proposed
redesignation of the Baltimore Area for the 1997 annual
PM2.5 NAAQS is consistent with the D.C. Circuit Court's
decision on this aspect of subpart 4. While the D.C. Circuit Court,
citing section 189(e), stated that ``for a PM10 area
governed by subpart 4, a precursor is `presumptively regulated,' '' the
D.C. Circuit Court expressly declined to decide the specific challenge
to EPA's 1997 PM2.5 Implementation Rule provisions regarding
ammonia and VOC as precursors. The D.C. Circuit Court had no occasion
to reach whether and how it was substantively necessary to regulate any
specific precursor in a particular PM2.5 nonattainment area,
and did not address what might be necessary for purposes of acting upon
a redesignation request.
However, even if EPA takes the view that the requirements of
subpart 4 were deemed applicable at the time the State submitted the
redesignation request, and disregards the 1997 PM2.5
Implementation Rule's rebuttable presumptions regarding ammonia and VOC
as PM2.5 precursors, the regulatory consequence would be to
consider the need for regulation of all precursors from any sources in
the area to demonstrate attainment and to apply the section 189(e)
provisions to major stationary sources of precursors. In the case of
the Baltimore Area, EPA believes that doing so is consistent with
proposing redesignation of the Area for the 1997 annual
PM2.5 standard. The Baltimore Area has attained the 1997
annual PM2.5 standard without any specific additional
controls of VOC and
[[Page 59710]]
ammonia emissions from any sources in the Area.
Precursors in subpart 4 are specifically regulated under the
provisions of section 189(e), which requires, with important
exceptions, control requirements for major stationary sources of
PM10 precursors.\8\ Under subpart 1 and EPA's prior
implementation rule, all major stationary sources of PM2.5
precursors were subject to regulation, with the exception of ammonia
and VOC. Thus, EPA must address here whether additional controls of
ammonia and VOC from major stationary sources are required under
section 189(e) of subpart 4 in order to redesignate the Baltimore Area
for the 1997 annual PM2.5 NAAQS. As explained subsequently,
EPA does not believe that any additional controls of ammonia and VOC
are required in the context of this redesignation.
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\8\ Under either subpart 1 or subpart 4, for purposes of
demonstrating attainment as expeditiously as practicable, a state is
required to evaluate all economically and technologically feasible
control measures for direct PM emissions and precursor emissions,
and adopt those measures that are deemed reasonably available.
---------------------------------------------------------------------------
In the General Preamble, EPA discusses its approach to implementing
section 189(e). See 57 FR 13538-13542. With regard to precursor
regulation under section 189(e), the General Preamble explicitly stated
that control of VOC under other CAA requirements may suffice to relieve
a state from the need to adopt precursor controls under section 189(e).
See 57 FR 13542. EPA in this rulemaking action proposes to determine
that Maryland's SIP has met the provisions of section 189(e) with
respect to ammonia and VOC as precursors. This proposed determination
is based on our findings that: (1) The Baltimore Area contains no major
stationary sources of ammonia; and (2) existing major stationary
sources of VOC are adequately controlled under other provisions of the
CAA regulating the ozone NAAQS.\9\ In the alternative, EPA proposes to
determine that, under the express exception provisions of section
189(e), and in the context of the redesignation of the Baltimore Area,
which is attaining the 1997 annual PM2.5 standard, at
present ammonia and VOC precursors from major stationary sources do not
contribute significantly to levels exceeding the 1997 annual
PM2.5 standard in the Area. See 57 FR 13539-42.
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\9\ The Baltimore Area has reduced VOC emissions through the
implementation of various control programs including VOC Reasonably
Available Control Technology (RACT) regulations and various onroad
and nonroad motor vehicle control programs.
---------------------------------------------------------------------------
EPA notes that its 1997 PM2.5 Implementation Rule
provisions in 40 CFR 51.1002 were not directed at evaluation of
PM2.5 precursors in the context of redesignation, but at SIP
plans and control measures required to bring a nonattainment area into
attainment for the 1997 annual PM2.5 NAAQS. By contrast,
redesignation to attainment primarily requires the nonattainment area
to have already attained due to permanent and enforceable emission
reductions, and to demonstrate that controls in place can continue to
maintain the standard. Thus, even if we regard the D.C. Circuit Court's
January 4, 2013 decision as calling for ``presumptive regulation'' of
ammonia and VOC for PM2.5 under the attainment planning
provisions of subpart 4, those provisions in and of themselves do not
require additional controls of these precursors for an area that
already qualifies for redesignation. Nor does EPA believe that
requiring the State to address precursors differently than it has
already, would result in a substantively different outcome.
Although, as EPA has emphasized, its consideration here of
precursor requirements under subpart 4 is in the context of a
redesignation to attainment, EPA's existing interpretation of subpart 4
requirements with respect to precursors in attainment plans for
PM10 contemplates that states may develop attainment plans
that regulate only those precursors that are necessary for purposes of
attainment in the area in question, i.e., states may determine that
only certain precursors need be regulated for attainment and control
purposes.\10\ Courts have upheld this approach to the requirements of
subpart 4 for PM10.\11\ EPA believes that application of
this approach to PM2.5 precursors under subpart 4 is
reasonable. Because the Baltimore Area has already attained the 1997
annual PM2.5 NAAQS with its current approach to regulation
of PM2.5 precursors, EPA believes that it is reasonable to
conclude in the context of this redesignation that there is no need to
revisit the attainment control strategy with respect to the treatment
of precursors. Even if the D.C. Circuit Court's decision is construed
to impose an obligation, in evaluating this redesignation request, to
consider additional precursors under subpart 4, it would not affect
EPA's approval here of the State's request for redesignation of the
Baltimore Area for the 1997 annual PM2.5 NAAQS. In the
context of a redesignation, the State has shown that the Baltimore Area
has attained the standard. Moreover, the State has shown and EPA is
proposing to determine that attainment of the 1997 annual
PM2.5 NAAQS in the Baltimore Area is due to permanent and
enforceable emissions reductions on all precursors necessary to provide
for continued attainment of the standard (see section V.A.3 of this
rulemaking notice). It follows logically that no further control of
additional precursors is necessary. Accordingly, EPA does not view the
January 4, 2013 decision of the D.C. Circuit Court as precluding
redesignation of the Baltimore Area to attainment for the 1997 annual
PM2.5 NAAQS at this time. In summary, even if, prior to the
date of the redesignation request submittal, the State was required to
address precursors for the Baltimore Area under subpart 4 rather than
under subpart 1, as interpreted in EPA's remanded 1997 PM2.5
Implementation Rule, EPA would still conclude that the Baltimore Area
had met all applicable requirements for purposes of redesignation in
accordance with section 107(d)(3(E)(ii) and (v).
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\10\ See, e.g., ``Approval and Promulgation of Implementation
Plans for California--San Joaquin Valley PM10
Nonattainment Area; Serious Area Plan for Nonattainment of the 24-
Hour and Annual PM10 Standards,'' (69 FR 30006, May 26,
2004) (approving a PM10 attainment plan that impose
controls on direct PM10 and NOX emissions and
did not impose controls on SO2, VOC, or ammonia
emissions).
\11\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423
F.3d 989 (9th Cir. 2005).
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V. EPA's Analysis of Maryland's SIP Submittal
EPA is proposing several rulemaking actions for the Baltimore Area:
(1) To redesignate the Area to attainment for the 1997 annual
PM2.5 NAAQS; (2) to approve into the Maryland SIP the
associated maintenance plan for the 1997 annual PM2.5 NAAQS;
and, (3) to approve the 2017 and 2025 PM2.5 and
NOX MVEBs for the Baltimore Area for transportation
conformity purposes. EPA's proposed approval of the redesignation
request and maintenance plan for the 1997 annual PM2.5 NAAQS
is based upon EPA's determination that the Area continues to attain the
1997 annual PM2.5 NAAQS, and that all other redesignation
criteria have been met for the Baltimore Area. The following is a
description of how the December 12, 2013 Maryland submittal satisfies
the requirements of section 107(d)(3)(E) of the CAA for the 1997 annual
PM2.5 NAAQS.
A. Redesignation Request
1. Attainment
EPA has previously determined that the Baltimore Area has attained
the 1997 annual PM2.5 NAAQS. As noted earlier, on May 22,
2012 (77 FR 30208), EPA determined that the Baltimore Area
[[Page 59711]]
had attained the 1997 annual PM2.5 standard, based on 2007-
2009 and 2008-2010 quality-assured, quality-controlled, and certified
ambient air quality monitoring data. Pursuant to 40 CFR 51.2004(c),
this ``clean data'' determination for the Area suspended the
requirements for the State to submit an attainment demonstration and
associated RACM, a RFP plan, contingency measures, and other planning
SIPs related to the attainment of the 1997 annual PM2.5
NAAQS until the Area is redesignated to attainment for the standard or
EPA determines that the Area has again violated the standard, at which
time such plans are required to be submitted. EPA also determined in
the May 22, 2012 rulemaking, that the Baltimore Area had attained the
1997 annual PM2.5 NAAQS by its statutory attainment date of
April 5, 2010. The basis and effect of the determination of attainment
for the 1997 annual PM2.5 NAAQS was discussed in the
proposed (76 FR 72374, November 23, 2011) and final rulemaking notice
(77 FR 30208, May 22, 2012).
Maryland's redesignation request submittal included the historic
monitoring data for the annual PM2.5 monitoring sites in the
Baltimore Area. The historic monitoring data shows that the Baltimore
Area has attained and continues to attain the 1997 annual
PM2.5 NAAQS. MDE assures that all PM2.5
monitoring data for the Baltimore Area has been quality-assured,
quality-controlled, and certified by the State in accordance with 40
CFR 58.10. Furthermore, EPA has thoroughly reviewed the most recent
ambient air quality monitoring data for PM2.5 in the Area,
as submitted by the State and recorded in EPA's Air Quality System
(AQS). The PM2.5 quality-assured, quality-controlled, and
state-certified 2009-2012 air quality data shows that the Baltimore
Area continues to attain the 1997 annual PM2.5 NAAQS. The
Area's PM2.5 annual design values for the 2009-2011, and
2010-2012 monitoring periods as well as preliminary data for 2013 are
provided in Table 1.
Table 1--Design Values in the Baltimore Area for the 1997 Annual PM2.5 NAAQS
----------------------------------------------------------------------------------------------------------------
Annual design value (in [mu]g/m\3\)
Monitor ID Monitor location -----------------------------------------------
2009-2011 2010-2012 2011-2013
----------------------------------------------------------------------------------------------------------------
24-003-1003........................ Glen Burnie, Anne Arundel 10.9 10.7 10.0
County.
24-005-1007........................ Padonia, Baltimore County.. 10.1 9.6 9.0
24-005-3001........................ Essex, Baltimore County.... 11.1 11.0 10.3
24-025-1001........................ Edgewood, Harford County... 9.8 10.3 10.3
24-510-0006........................ Baltimore City............. 10.0 10.0 9.9
24-510-0007........................ Baltimore City............. 10.2 9.9 9.3
24-510-0008........................ Baltimore City............. 10.9 10.4 9.9
24-510-0040........................ Baltimore City............. 11.3 11.1 10.5
----------------------------------------------------------------------------------------------------------------
The Baltimore Area's recent monitoring data supports EPA's previous
determinations that the Area has attained the 1997 annual
PM2.5 NAAQS. In addition, as discussed subsequently with
respect to the Baltimore Area's maintenance plan, the State has
committed to continue monitoring ambient PM2.5
concentrations in accordance with 40 CFR part 58. Thus, EPA is
proposing to determine that the Baltimore Area continues to attain the
1997 annual PM2.5 NAAQS.
2. The State Has Met All Applicable Requirements Under Section 110 and
Subpart 1 of the CAA and Has a Fully Approved SIP Under Section 110(k)
of the CAA
In accordance with section 107(d)(3)(E)(v) of the CAA, the SIP
revisions for the 1997 annual PM2.5 NAAQS for the Baltimore
Area must be fully approved under section 110(k) of the CAA and all the
requirements applicable to the Baltimore Area under section 110 of the
CAA (general SIP requirements) and part D of Title I of the CAA (SIP
requirements for nonattainment areas) must be met.
a. Section 110 General SIP Requirements
Section 110(a)(2) of Title I of the CAA delineates the general
requirements for a SIP, which include enforceable emissions limitations
and other control measures, means, or techniques, provisions for the
establishment and operation of appropriate devices necessary to collect
data on ambient air quality, and programs to enforce the limitations.
The general SIP elements and requirements set forth in section
110(a)(2) of the CAA include, but are not limited to the following: (1)
Submittal of a SIP that has been adopted by the state after reasonable
public notice and hearing; (2) provisions for establishment and
operation of appropriate procedures needed to monitor ambient air
quality; (3) implementation of a source permit program; provisions for
the implementation of Part C requirements (PSD); (4) provisions for the
implementation of Part D requirements for NSR permit programs; (5)
provisions for air pollution modeling; and, (6) provisions for public
and local agency participation in planning and emission control rule
development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain certain
measures to prevent sources in a state from significantly contributing
to air quality problems in another state. To implement this provision,
EPA has required certain states to establish programs to address the
interstate transport of air pollutants in accordance with the
NOX SIP Call (63 FR 57356, October 27, 1998), amendments to
the NOX SIP Call (64 FR 26298, May 14, 1999 and 65 FR 11222,
March 2, 2000), and CAIR (70 FR 25162, May 12, 2005). However, section
110(a)(2)(D) of the CAA requirements for a state are not linked with a
particular nonattainment area's designation and classification in that
state. EPA believes that the requirements linked with a particular
nonattainment area's designation and classifications are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the state. Thus, EPA does not believe that these requirements
are applicable requirements for purposes of redesignation.
In addition, EPA believes that the other section 110(a)(2) elements
of the CAA which are not connected with nonattainment plan submissions
and not linked with an area's attainment
[[Page 59712]]
status are not applicable requirements for purposes of redesignation.
The Baltimore Area will still be subject to these requirements after it
is redesignated. EPA concludes that section 110(a)(2) of the CAA and
part D requirements which are linked with a particular area's
designation and classification are the relevant measures to evaluate in
reviewing a redesignation request, and that section 110(a)(2) elements
of the CAA not linked to the area's nonattainment status are not
applicable for purposes of redesignation. This approach is consistent
with EPA's existing policy on applicability of conformity (i.e., for
redesignations) and oxygenated fuels requirement. See Reading,
Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10,
1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final
rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida final
rulemaking (60 FR 62748, December 7, 1995). See also the discussion on
this issue in the Cincinnati, Ohio redesignation (65 FR 37890, June 19,
2000) and in the Pittsburgh, Pennsylvania redesignation (66 FR 53099,
October 19, 2001).
EPA has reviewed the Maryland SIP and has concluded that it meets
the general SIP requirements under section 110(a)(2) of the CAA to the
extent they are applicable for purposes of redesignation. EPA has
previously approved provisions of Maryland's SIP addressing section
110(a)(2) requirements, including provisions addressing
PM2.5. See 76 FR 72624, November 25, 2011. These
requirements are, however, statewide requirements that are not linked
to the PM2.5 nonattainment status of the Baltimore Area.
Therefore, EPA believes that these SIP elements are not applicable
requirements for purposes of review of Maryland's PM2.5
redesignation request.
b. Subpart 1 Requirements
Subpart 1 sets forth the basic nonattainment plan requirements
applicable to PM2.5 nonattainment areas. Under section 172
of the CAA, states with nonattainment areas must submit plans providing
for timely attainment and meet a variety of other requirements. The
General Preamble for Implementation of Title I discusses the evaluation
of these requirements in the context of EPA's consideration of a
redesignation request. The General Preamble sets forth EPA's view of
applicable requirements for purposes of evaluating redesignation
requests when an area is attaining the standard. See 57 FR 13498, April
16, 1992.
As noted previously, EPA has determined that the Baltimore Area has
attained the 1997 annual PM2.5 NAAQS. Pursuant to 40 CFR
51.2004(c), the requirement for Maryland to submit, for the Baltimore
Area, an attainment demonstration and associated RACM, an RFP plan,
contingency measures, and other planning SIPs related to the attainment
of the 1997 annual PM2.5 NAAQS are suspended until the Area
is redesignated to attainment for the standard, or EPA determines that
the Area again violated the standard, at which time such plans are
required to be submitted. Since the Baltimore Area has attained the
1997 annual PM2.5 NAAQS and continues to attain the
standard, no additional measures are needed to provide for attainment.
Therefore, the requirements of sections 172(c)(1), 172(c)(2),
172(c)(6), and 172(c)(9) of the CAA are no longer considered to be
applicable for purposes of redesignation of the Baltimore Area for the
1997 annual PM2.5 NAAQS.
The requirement under section 172(c)(3) was not suspended by EPA's
clean data determination for the 1997 annual PM2.5 NAAQS,
and is the only remaining requirement under section 172 of the CAA to
be considered for purposes of redesignation of the Baltimore Area.
Section 172(c)(3) of the CAA requires submission and approval of a
comprehensive, accurate, and current inventory of actual emissions.
On December 10, 2012 (77 FR 73313), EPA approved a 2002 emissions
inventory for the 1997 annual PM2.5 NAAQS for the Baltimore
Area. The emissions inventory, submitted by Maryland on June 8, 2008
along with the Baltimore Area attainment plan for the 1997 annual
PM2.5 NAAQS, was submitted to meet the requirements of
section 172(c)(3) of the CAA. The 2002 comprehensive emissions
inventory for the 1997 annual PM2.5 standard submitted by
the State included emissions estimates that cover the general source
categories of point sources, area sources, onroad mobile sources, and
nonroad mobile sources for the Baltimore Area. The pollutants that
comprise the State's 2002 emissions inventory for the Baltimore Area
are PM2.5, NOX, SO2, VOC, and ammonia
(NH3). An evaluation of the 2002 comprehensive emissions
inventory for the Baltimore Area is provided in the TSD prepared by EPA
for that separate rulemaking action. See Docket ID No. EPA-R03-OAR-
2010-0143.
Section 172(c)(4) of the CAA requires the identification and
quantification of allowable emissions for major new and modified
stationary sources in an area, and section 172(c)(5) of the CAA
requires source permits for the construction and operation of new and
modified major stationary sources anywhere in the nonattainment area.
EPA has determined that, since the PSD requirements will apply after
redesignation, areas being redesignated need not comply with the
requirement that a nonattainment NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
NAAQS without part D NSR. A more detailed rationale for this view is
described in a memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994 entitled, ``Part D New
Source Review Requirements for Areas Requesting Redesignation to
Attainment.'' Maryland's PSD program for the 1997 annual
PM2.5 NAAQS will become effective in the Baltimore Area upon
redesignation to attainment. See (77 FR 45949, August 2, 2012)
(approving revisions to Maryland's PSD program).
Section 172(c)(7) of the CAA requires the SIP to meet the
applicable provisions of section 110(a)(2) of the CAA. As noted
previously, EPA believes the Maryland SIP meets the requirements of
section 110(a)(2) of the CAA that are applicable for purposes of
redesignation.
Section 175A of the CAA requires a state seeking redesignation to
attainment to submit a SIP revision to provide for the maintenance of
the NAAQS in the area ``for at least 10 years after the
redesignation.'' In conjunction with its request to redesignate the
Baltimore Area to attainment status, Maryland submitted a SIP revision
to provide for maintenance of the 1997 annual PM2.5 NAAQS in
the Baltimore Area through 2025, which is at least 10 years after
redesignation. Maryland is requesting that EPA approve this SIP
revision as meeting the requirement of section 175A of the CAA. Once
approved, the Baltimore Area maintenance plan will ensure that the SIP
for Maryland meets the requirements of the CAA regarding maintenance of
the 1997 annual PM2.5 NAAQS for the Area. EPA's analysis of
the maintenance plan is provided in section V.B (Maintenance Plan) of
this document.
Section 176(c) of the CAA requires states to establish criteria and
procedures to ensure that Federally supported or funded projects
conform to the air quality planning goals in the applicable SIP. The
requirement to determine conformity applies to transportation plans,
programs, and projects developed, funded or approved under Title 23 of
the United States Code
[[Page 59713]]
(U.S.C.) and the Federal Transit Act (transportation conformity) as
well as to all other Federally supported or funded projects (general
conformity). State transportation conformity SIP revisions must be
consistent with Federal conformity regulations relating to
consultation, enforcement and enforceability which EPA promulgated
pursuant to its authority under the CAA. EPA interprets the conformity
SIP requirements as not applying for purposes of evaluating the
redesignation request under section 107(d) of the CAA because state
conformity rules are still required after redesignation and Federal
conformity rules apply where state rules have not been approved. See
Wall v. EPA, 265 F.3d 426, (6th Cir. 2001) (upholding this
interpretation). See also (60 FR 62748, December 7, 1995) (discussing
Tampa, Florida).
Thus, for purposes of redesignating the Baltimore Area to
attainment for the 1997 annual PM2.5 NAAQS, EPA determines
that the Area has meet all applicable SIP requirements under part D of
Title I of the CAA.
c. Maryland Has a Fully Approved Applicable SIP Under Section 110(k) of
the CAA
EPA has fully approved all applicable requirements of the Maryland
SIP for the Baltimore Area for purposes of redesignaton to attainment
for the 1997 annual PM2.5 NAAQS in accordance with section
110(k) of the CAA.
3. Permanent and Enforceable Reductions in Emissions
For redesignating a nonattainment area to attainment, section
107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air
quality improvement in the area is due to permanent and enforceable
reductions in emissions resulting from implementation of the SIP and
applicable Federal air pollution control regulations and other
permanent and enforceable reductions. Maryland's redesignation request
indicates that a variety of federal vehicle control programs have
created emission reductions that contributed to attainment in 2007. In
making this demonstration, Maryland has calculated the change in
emissions for the on-road sector between 2002, one of the years used to
designate the Area as nonattainment, and 2007, one of the years the
Area monitored attainment, as shown in Table 2.
Table 2--Comparison of 2002 Nonattainment Year and 2007 Attainment Year Reductions for On Road Emissions in the
Baltimore Area (tpy)
----------------------------------------------------------------------------------------------------------------
2002 2007 Decrease
----------------------------------------------------------------------------------------------------------------
SO2............................................................. 2,025.51 385.34 1,640.17
NOX............................................................. 76,060.01 49,140.12 26,219.89
PM2.5........................................................... 2,344.86 1,789.28 555.52
VOC............................................................. 28,060.25 19,998.51 8,061.74
NH3............................................................. 1,402.09 91.77 1,310. 32
-----------------------------------------------
Total....................................................... 109,892.72 71,405.02 37,787.64
----------------------------------------------------------------------------------------------------------------
The reduction in emissions and the corresponding improvement in air
quality from 2002 to 2007 in the Baltimore Area can be attributed to a
number of regulatory control measures that have been implemented in the
Baltimore Area and contributing areas in recent years. An evaluation of
the State's 2002 comprehensive emissions inventory for the Baltimore
Area is provided in the TSD prepared by EPA for the December 7, 2012
rulemaking action approving the base year inventory. See Docket ID No.
EPA-R03-OAR-2010-0143. An evaluation of the 2007 emissions inventory is
provided in EPA's emissions inventory TSD dated July 23, 2014, which is
available in the docket for this proposed rulemaking action.
a. Federal Measures Implemented
Reductions in PM2.5 precursor emissions have occurred
statewide and in upwind states as a result of Federal emission control
measures, with additional emission reductions expected to occur in the
future. The Tier 2 Emission Standards for Vehicles and Gasoline Sulfur
Standards (Tier 2 Standards) have resulted in lower NOX and
SO2 emissions from all new passenger vehicles, including
sport utility vehicles, minivans, vans, and pick-up trucks. The Federal
rules were phased in between 2004 and 2009. EPA has estimated that,
after phasing in the new requirements, new vehicles emit less
NOX in the following percentages: Passenger cars (light duty
vehicles)--77 percent; light duty trucks, minivans, and sports utility
vehicles--86 percent; and larger sports utility vehicles, vans, and
heavier trucks--69-95 percent. EPA expects fleet wide average emissions
to decline by similar percentages as new vehicles replace older
vehicles. The Tier 2 standards also reduced the sulfur content of
gasoline to 30 parts per million (ppm) beginning in January 2006, which
reflects up to a 90 percent reduction in sulfur content.
EPA issued the Heavy-Duty Diesel Engine Rule in July 2000. This
rule includes standards limiting the sulfur content of diesel fuel,
which went into effect in 2004. A second phase took effect in 2007
which reduced PM2.5 emissions from heavy-duty highway
engines and further reduced the highway diesel fuel sulfur content to
15 ppm. The total program is estimated to achieve a 90 percent
reduction in direct PM2.5 emissions and a 95 percent
reduction in NOX emissions for these new engines using low
sulfur diesel, compared to existing engines using higher sulfur diesel
fuel. The reduction in fuel sulfur content also yielded an immediate
reduction in particulate sulfate emissions from all diesel vehicles.
On June 29, 2004 (69 FR 38958), EPA promulgated the Nonroad Diesel
Rule for large nonroad diesel engines, such as those used in
construction, agriculture, and mining, to be phased in between 2008 and
2014. The rule phased in requirements for reducing the sulfur content
of diesel used in nonroad diesel engines. The reduction in sulfur
content prevents damage to the more advanced emission control systems
needed to meet the engine standards. It will also reduce fine
particulate emissions from diesel engines. The rule also reduces the
sulfur content in nonroad diesel fuel by over 99%. Prior to 2006,
nonroad diesel fuel averaged approximately 3,400 ppm sulfur. Starting
in 2007, this rule limited nonroad diesel sulfur content to 500 ppm,
with a further reduction to 15 ppm in 2010. The combined engine
standards and the sulfur in fuel reductions will reduce NOX
and PM emissions from large nonroad engines by over 90%,
[[Page 59714]]
compared to current nonroad engines using higher sulfur content diesel.
In November 2002, EPA promulgated emission standards for groups of
previously unregulated nonroad engines. These engines include large
spark-ignition engines such as those used in forklifts, airport ground
service equipment, and farm and construction equipment; recreational
vehicles using spark-ignition engines such as off highway motorcycles,
all-terrain vehicles and snowmobiles; and recreational marine diesel
engines. Emission standards from large spark-ignition engines were
implemented in two tiers, with Tier 1 starting in 2004 and Tier 2 in
2007. Recreational vehicle emission standards were phased in from 2006
through 2012. Marine diesel engine standards were phased in from 2006
through 2009. With full implementation of the entire nonroad spark-
ignition engine and recreational engine standards, an 80% reduction in
NOX is expected by 2020.
B. Maintenance Plan
On December 12, 2013, MDE submitted a maintenance plan for the
Baltimore Area for the 1997 annual PM2.5 NAAQS pursuant to
section 175A of the CAA. EPA's analysis for proposing approval of the
maintenance plan is provided in this section.
1. Attainment Emissions Inventory
Section 172(c)(3) requires states to submit a comprehensive,
accurate, current inventory of actual emissions from all sources in the
nonattainment area. For a maintenance plan, states are required to
submit an inventory to identify the level of emissions in the area
which is sufficient to attain the NAAQS, referred to as the attainment
inventory (or the maintenance plan base year inventory), and which
should be based on actual emissions. MDE submitted an attainment
inventory for 2007, one of the years in the period during which the
Baltimore Area monitored attainment of the 1997 annual PM2.5
standard. The attainment inventory is comprised of NOX,
PM2.5, SO2, VOC, and NH3 emissions
from point sources, nonpoint sources, onroad mobile sources, and
nonroad mobile sources.
For the 2007 emissions inventory for point, nonpoint, and nonroad
source categories, MDE submitted the 2007 Version 3 emissions inventory
developed through the Mid-Atlantic Regional Air Management Association
(MARAMA) regional planning process. Details related to the development
of the 2007 emissions inventory can be found in the January 23, 2012
MARAMA TSD entitled ``Technical Support Document for the Development of
the 2007 Emissions Inventory for the Regional Air Quality Modeling in
the Northeast/Mid-Atlantic Region Version 3.3'', which may be found in
Appendix D of the State's submittal, and is available in the docket for
this proposed rulemaking action.
The 2007 point source inventory includes emissions from EGUs and
non-EGU sources as developed by MARAMA in consultation with MDE. The
nonpoint source emissions inventory for 2007 was developed using 2007
specific activity data along with EPA emission factors and the most
recently available emission calculation methodologies. The 2007 nonroad
mobile source emissions was generated using EPA's National Mobile
Inventory Model (NMIM) 2008, which used the NONROAD 2008a emissions
model. Since marine, air and rail/locomotive (MAR) emissions are not
part of the NONROAD model, they were calculated separately outside of
the NONROAD model using the most recent methodologies and inputs.
The 2007 onroad mobile source inventory was developed by using
EPA's highway mobile source emissions model MOVES2010a. A mix of
default and local data was used to develop the inventory. The 2007
onroad emissions inventory, including a summary of the methodology and
data assumptions used for the analysis may be found in Appendix F of
the State's submittal, which is available in the docket for this
proposed rulemaking action.
EPA has reviewed the documentation provided by MDE and found the
emissions inventory to be approvable. For more information on the 2007
inventory submitted by MDE and EPA's analysis of the inventory, see
Appendix A of the State's submittal and EPA's emissions inventory TSD
dated July 23, 2014, both of which are available in the docket for this
proposed rulemaking action.
2. Maintenance Demonstration
Section 175A requires a state seeking redesignation to attainment
to submit a SIP revision to provide for the maintenance of the NAAQS in
the area ``for at least 10 years after the redesignation.'' EPA has
interpreted this as a showing of maintenance ``for a period of ten
years following redesignation.'' Where the emissions inventory method
of showing maintenance is used, its purpose is to show that emissions
during the maintenance period will not increase over the attainment
year inventory. See 1992 Calcagni Memorandum, pages 9-10.
For a demonstration of maintenance, emissions inventories are
required to be projected to future dates to assess the influence of
future growth and controls; however, the maintenance demonstration need
not be based on modeling. See Wall v. EPA, supra; Sierra Club v. EPA,
supra. See also 66 FR 53099-53100; 68 FR 25430-32. The measures
described in subsection A.3 of section V (Permanent and Enforceable
Reductions in Emissions) of this proposed rulemaking action achieved
the reduction in emissions from point, area, and mobile sources in the
Area that led to attainment in 2007, and will continue through 2025. In
addition, some of the nonroad and on-road measures that helped the Area
attain the standard in 2007 have requirements which became applicable
after 2007, and will help maintain the standard during the 10 year
maintenance period. In addition to the measures described in subsection
A.3 of section V, Maryland's Healthy Air Act (HAA) regulation will help
to ensure the continuing decline of SO2 and NOX
emissions in the Area during the maintenance period and beyond.
Maryland's HAA regulation requires emission reductions of
NOX and SO2 from large coal-fired power plants in
Maryland, and will limit emissions from the Brandon Shores, Herbert A.
Wagner, and C.P. Crane Generating Stations, all of which are located in
the Baltimore Area. See 73 FR 51599, September 4, 2008 (approving
Maryland's HAA regulation into the Maryland SIP). The HAA was phased in
starting in 2009 with a second phase that started in 2012. At full
implementation, the HAA will reduce NOX and SO2
emissions from affected units by 65 percent and 80 percent,
respectively, from 2002 levels.
To show that the Baltimore Area will remain in attainment, MDE uses
projection inventories derived by applying appropriate growth and
control factors to the 2007 attainment year emissions inventory. MDE
developed projection inventories for an interim year of 2017 and a
maintenance plan end year of 2025 to show that future emissions of
SO2, NOX, PM2.5, VOC, and
NH3, will remain at or below the 2007 emissions levels
throughout the Baltimore Area through the year 2025.
For EGU emissions, the Department of Energy 2011 Annual Energy
Outlook growth factors, delineated by region and fuel, were used to
develop the projected EGU emissions. Non-EGU emissions were developed
using employment projections and other state specific
[[Page 59715]]
emission data. Nonpoint emissions for 2017 and 2025 were developed by
applying the appropriate growth and control factors to the 2007
inventory. Nonroad source emissions for 2017 and 2025 were developed
using growth factors from EPA's NMIM2008 model. On-road emissions for
2017 and 2025 were developed using EPA's MOVES2010a mobile source
inventory model.
EPA has determined that the emissions inventories discussed above
as provided by MDE are approvable. For detailed information on the
projected inventories, see Appendices B and C of the State submittal,
and for more information on EPA's analysis of the emissions inventory,
see EPA's emissions inventory TSD dated July 23, 2014, all of which are
available in the docket for this proposed rulemaking action. Table 3
shows the inventories for the 2007 attainment year, the 2017 interim
year, and the 2025 maintenance plan end year for the Baltimore Area.
Table 3--Comparision of 2007 Attainment Year Inventory With 2017 and 2025 Projected Emissions in the Baltimore
Area (tpy)
----------------------------------------------------------------------------------------------------------------
Change from Change from
2007 2017 2025 2007-2017 2007-2025
----------------------------------------------------------------------------------------------------------------
SO2............................. 103,510 24,714 24,620 78,796 78,890
NOX............................. 116,595 69,258 58,249 47,337 58,346
PM2.5........................... 19,005 16,374 16,205 2,631 2,800
VOC............................. 64,416 46,800 44,302 17,616 20,114
NH3............................. 4,117 3,905 3,930 212 187
-------------------------------------------------------------------------------
Total....................... 307,643 161,051 147,305 146,592 160,337
----------------------------------------------------------------------------------------------------------------
Table 3 shows that between 2007 and 2017, the Baltimore Area is
projected to reduce SO2 emissions by 76.1 percent,
NOX emissions by 40.6 percent, PM2.5 emissions by
13.8 percent, NH3 by 5.1 percent, and VOC by 27.3 percent.
Between 2007 and 2025, the Baltimore Area is projected to reduce
SO2 emissions by 76.2 percent, NOX emissions by
50.0 percent, PM2.5 emissions by 14.7 percent,
NH3 by 4.5 percent and VOC by 31.2 percent. The projected
emissions inventories show that the Baltimore Area will continue to
maintain the 1997 annual PM2.5 NAAQS during the 10 year
maintenance period.
3. Monitoring Network
There are eight PM2.5 monitors in the Baltimore Area.
EPA has determined that Maryland's maintenance plan includes a
commitment to continue to operate its EPA-approved monitoring network,
as necessary to demonstrate ongoing compliance with the NAAQS. The
Baltimore Area maintenance plan includes the State's commitment to
continue to operate and maintain its PM2.5 air quality
monitoring network, consistent with EPA's monitoring requirements, as
necessary to demonstrate ongoing compliance with the 1997 annual
PM2.5 NAAQS. In its December 12, 2013 submittal, Maryland
states that it will consult with EPA prior to making any necessary
changes to the network and will continue to quality assure the
monitoring data in accordance with the requirements of 40 CFR part 58.
4. Verification of Continued Attainment
To provide for tracking of the emission levels in the Baltimore
Area, MDE will periodically update the emissions inventory, consisting
of annual and periodic evaluations. Annual emissions updates of
stationary sources, the Highway Performance Monitoring System vehicle
miles travelled data reported to the Federal Highway Administration,
and other growth indicators, which will be compared to the growth
assumptions to determine if the projected growth and observed growth
are consistent. MDE will also submit comprehensive tracking inventories
to EPA every three years as required by EPA's Air Emissions Reporting
Requirements (AERR) or as required by other federal regulations during
the maintenance plan period.
5. Contingency Measures
The contingency plan provisions for maintenance plans are designed
to promptly correct a violation of the NAAQS that occurs after
redesignation. Section 175A of the CAA requires that a maintenance plan
include such contingency measures as EPA deems necessary to ensure that
a state will promptly correct a violation of the NAAQS that occurs
after redesignation. The maintenance plan should identify the events
that would ``trigger'' the adoption and implementation of a contingency
measure(s), the contingency measure(s) that would be adopted and
implemented, and the schedule indicating the time frame by which the
state would adopt and implement the measure(s).
Maryland's maintenance plan outlines the procedures for the
adoption and implementation of contingency measures to further reduce
emissions should a violation occur. These procedures would be triggered
in one of three situations: (1) When the annual actual emissions of
SO2, NOX, or PM2.5 exceed the
attainment year inventories that are identified in Table 3, (2) when
there is an annual exceedance (annual average for one year at a federal
reference method monitor located in the Baltimore Area) of 15.0 [mu]g/
m\3\; or, (3) When there is any violation (three year average of the
annual average at a federal reference method monitor located in the
Baltimore Area) of 15.0 [mu]g/m\3\ or greater.
If any future year emissions inventory indicates that the Baltimore
Area's total emissions of SO2, NOX, or
PM2.5 exceeds the attainment year levels, MDE would first
perform an audit to determine if inventory refinements are needed,
including a review of whether appropriate models, control strategies,
monitoring strategies, planning assumptions, industrial throughput, and
production data were used in the attainment year and future year
projections. If the audit does not reconcile the emissions exceedances,
MDE will implement one or more of the contingency measures identified
in the plan. If an annual exceedance of 15.0 [mu]g/m\3\ occurs, MDE
commits to implementing one of the contingency measures identified for
additional emission reductions, and if a violation occurs, MDE commits
to implementing two or more of the contingency measures to correct the
violation.
As explained in greater detail in the Baltimore Area maintenance
plan, the candidate contingency measures include the following: (1)
PM2.5 RACM determinations; (2) NOX RACM
determination; (3) Non Road diesel emission reduction strategies; (4)
low
[[Page 59716]]
sulfur home heating oil requirements; (5) alternative fuel and diesel
retrofit programs for fleet vehicle operations; and, (6) wet
suppression upgrade requirements for concrete manufacturing. EPA finds
that the Baltimore Area maintenance plan includes appropriate
contingency measures as necessary to ensure MDE will promptly correct
any violation of the NAAQS that occurs after redesignation. Finally,
the maintenance plan establishes a schedule for implementation of
contingency measures if needed, and MDE has committed to full
implementation of contingency measures or programs within 24 months
after notification by EPA that contingency measures must be implemented
or 27 months after quality assured data indicates an exceedance or
violation has occurred. For all of the reasons discussed above, EPA is
proposing to approve the 1997 annual PM2.5 maintenance plan
for the Baltimore Area as meeting the requirements of section 175A of
the CAA.
C. Transportation Conformity
Section 176(c) of the CAA requires Federal actions in nonattainment
and maintenance areas to ``conform to'' the goals of SIPs. This means
that such actions will not cause or contribute to violations of a
NAAQS, worsen the severity of an existing violation, or delay timely
attainment of any NAAQS or any interim milestone. Actions involving
Federal Highway Administration (FHWA) or Federal Transit Administration
(FTA) funding or approval are subject to the transportation conformity
rule (40 CFR Part 93, subpart A). Under this rule, metropolitan
planning organizations (MPOs) in nonattainment and maintenance areas
coordinate with state air quality and transportation agencies, EPA, and
the FHWA and FTA to demonstrate that their long range transportation
plans and transportation improvement programs (TIP) conform to
applicable SIPs. This is typically determined by showing that estimated
emissions from existing and planned highway and transit systems are
less than or equal to the MVEBs contained in the SIP.
On December 12, 2013, Maryland submitted a SIP revision that
contains the 2017 and 2025 PM2.5 and NOX onroad
mobile source budgets for the Baltimore Area. Maryland did not provide
emission budgets for SO2, VOC, and NH3 because it
concluded, consistent with the presumptions regarding these precursors
in the Transportation Conformity Rule at 40 CFR 93.102(b)(2)(v), which
predated and was not disturbed by the litigation on the 1997
PM2.5 Implementation Rule, that emissions of these
precursors from motor vehicles are not significant contributors to the
Area's PM2.5 air quality problem. EPA issued conformity
regulations to implement the 1997 annual PM2.5 NAAQS in July
2004 and May 2005 (69 FR 40004, July 1, 2004 and 70 FR 24280, May 6,
2005). Those actions were not part of the final rule remanded to EPA by
the D.C. Circuit Court in NRDC v. EPA, No. 08-1250 (January 4, 2013),
in which the D.C. Circuit Court remanded to EPA the 1997
PM2.5 Implementation Rule because it concluded that EPA must
implement that NAAQS pursuant to the PM-specific implementation
provisions of subpart 4, rather than solely under the general
provisions of subpart 1. That decision does not affect EPA's proposed
approval of the MVEBs for the Baltimore Area. The MVEBs are presented
in Table 4.
Table 4--MVEBs for Baltimore Area, Maryland for the 1997 PM2.5 NAAQS in
tpy
------------------------------------------------------------------------
Year PM2.5 NOX
------------------------------------------------------------------------
2017.................................... 1,218.60 29,892.01
2025.................................... 1,051.39 21,594.96
------------------------------------------------------------------------
EPA's substantive criteria for determining adequacy of MVEBs are
set out in 40 CFR 93.118(e)(4). Additionally, to approve the MVEBs, EPA
must complete a thorough review of the SIP, in this case the
PM2.5 maintenance plan, and conclude that with the projected
level of motor vehicle and all other emissions, the SIP will achieve
its overall purpose, in this case providing for maintenance of the 1997
annual PM2.5 NAAQS. EPA's process for determining adequacy
of a MVEB consists of three basic steps: (1) Providing public
notification of a SIP submission; (2) providing the public the
opportunity to comment on the MVEB during a public comment period; and,
(3) EPA taking action on the MVEB.
On April 30, 2014, EPA initiated an adequacy review of the MVEBs
for the 1997 annual PM2.5 NAAQS that Maryland included in
its redesignation request submittal. As such, a notice of the
submission of these MVEBs were posted on the adequacy Web site (http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). The public
comment period closed on May 30, 2014. There were no public comments
received. EPA is acting on making the adequacy finding final through a
separate notice of adequacy. EPA has reviewed the MVEBs and found them
consistent with the maintenance plan and found that the budgets meet
the criteria for adequacy and approval. Therefore, EPA is proposing to
approve the 2017 and 2025 PM2.5 and NOX MVEBs for
the Baltimore Area for transportation conformity purposes. Additional
information pertaining to the review of the MVEBs can be found in the
transportation conformity TSD dated May 20, 2014, available in the
docket for this proposed rulemaking action.
VI. Proposed Actions
EPA is proposing to approve the request submitted by Maryland to
redesignate the Baltimore Area from nonattainment to attainment for the
1997 annual PM2.5 NAAQS. EPA has evaluated the State's
redesignation request and determined that it meets the redesignation
criteria set forth in section 107(d)(3)(E) of the CAA for the 1997
annual PM2.5 standard. The monitoring data demonstrates that
the Baltimore Area has attained the 1997 annual PM2.5 NAAQS,
and, for the reasons discussed previously, that it will continue to
attain the 1997 annual PM2.5 NAAQS. EPA is also proposing to
approve the maintenance plan for the Baltimore Area as a revision to
the Maryland SIP for the 1997 annual PM2.5 standard because
the plan meets the requirements of CAA section 175A for the standard,
as described previously in this proposed rulemaking notice. In
addition, EPA is proposing to approve the 2017 and 2025
PM2.5 and NOX MVEBs for the Baltimore Area for
transportation conformity purposes. Final approval of the redesignation
request would change the official designation of the Baltimore Area
from nonattainment to attainment as found at 40 CFR part 81, for the
1997 annual PM2.5 NAAQS, and would incorporate into the
Maryland SIP the maintenance plan ensuring continued attainment of the
1997 annual PM2.5 NAAQS in the Area for 10 years after
redesignation. EPA is soliciting public comments on the issues
discussed in this document. These comments will be considered before
taking final action.
VII. 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
[[Page 59717]]
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 rule proposing to approve Maryland's
redesignation request, associated maintenance plan, and MVEBs for
transportation conformity purposes for the Baltimore Area for the 1997
annual PM2.5 NAAQS 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
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen oxides, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 15, 2014.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2014-23638 Filed 10-2-14; 8:45 am]
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