[Federal Register Volume 80, Number 57 (Wednesday, March 25, 2015)]
[Proposed Rules]
[Pages 15713-15715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06729]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2014-0833; FRL-9924-97-Region-3]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Preconstruction Requirements--Nonattainment New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted on August
22, 2013 by the Maryland Department of the Environment (MDE). This
revision pertains to Maryland's major nonattainment New Source Review
(NSR) program, notably preconstruction permitting requirements for
sources of fine particulate matter (PM2.5). This action is
being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before April 24, 2015.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0833 by one of the following methods:
A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
B. Email: [email protected].
C. Mail: EPA-R03-OAR-2014-0833, David Campbell, Associate Director,
Office of Permits and Air Toxics, Mailcode 3AP10, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2014-0833. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Maryland Department of the Environment, 1800
Washington Boulevard, Suite 705, Baltimore, Maryland 21230.
FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On August 22, 2013, MDE submitted a SIP revision request to EPA.
This SIP revision request, if approved, would revise Maryland's
currently approved nonattainment NSR program by amending Regulation .01
under section 26.11.01 of the Code of Maryland Regulations (COMAR), and
Regulations .01 and .02 under COMAR 26.11.17. Generally, the revisions
incorporate provisions related to the 2008 ``Implementation of the New
Source Review (NSR) Program for Particulate Matter Less than 2.5
Micrometers (PM2.5)'' (2008 NSR PM2.5 Rule). 73
FR 28321 (May 16, 2008). The 2008 NSR PM2.5 rule: (1)
Required NSR permits to address directly emitted PM2.5 and
precursor pollutants; (2) established significant emission rates for
direct PM2.5 and precursor pollutants (including sulfur
dioxide (SO2) and oxides of nitrogen (NOX)); (3)
established PM2.5 emission offsets; and (4) required states
to account for gases that condense to form particles (condensables) in
PM2.5 emission limits.
Additionally, the 2008 NSR PM2.5 Rule authorized states
to adopt provisions in their nonattainment NSR
[[Page 15714]]
rules that would allow major stationary sources and major modifications
locating in areas designated nonattainment for PM2.5 to
offset emissions increases of direct PM2.5 emissions or
PM2.5 precursors with reductions of either direct
PM2.5 emissions or PM2.5 precursors in accordance
with offset ratios contained in the approved SIP for the applicable
nonattainment area. The inclusion, in whole or in part, of the
interpollutant offset provisions for PM2.5 is discretionary
on the part of the states. In the preamble to the 2008 NSR
PM2.5 Rule, EPA included preferred or presumptive offset
ratios, applicable to specific PM2.5 precursors, that states
may adopt in conjunction with the new interpollutant offset provisions
for PM2.5, and for which the state could rely on the EPA's
technical work to demonstrate the adequacy of the ratios for use in any
PM2.5 nonattainment area. Alternatively, the preamble
indicated that states may adopt their own ratios, subject to the EPA's
approval, that would have to be substantiated by modeling or other
technical demonstrations of the net air quality benefit for ambient
PM2.5 concentrations. The preferred ratios were subsequently
the subject of a petition for reconsideration, which the Administrator
granted. EPA continues to support the basic policy that sources may
offset increases in emissions of direct PM2.5 or of any
PM2.5 precursor in a PM2.5 nonattainment area
with actual emissions reductions in direct PM2.5 or
PM2.5 precursors in accordance with offset ratios as
approved in the SIP for the applicable nonattainment area. However, we
no longer consider the preferred ratios set forth in the preamble to
the 2008 NSR PM2.5 Rule to be presumptively approvable.
Instead, any ratio involving PM2.5 precursors adopted by the
state for use in the interpollutant offset program for PM2.5
nonattainment areas must be accompanied by a technical demonstration
that shows the net air quality benefits of such ratio for the
PM2.5 nonattainment area in which it will be applied.
Maryland's August 22, 2013 submittal did not include the interpollutant
offset provisions.
The 2008 NSR PM2.5 Rule (as well as the 2007 ``Final
Clean Air Fine Particle Implementation Rule'' (2007 PM2.5
Implementation Rule) \1\), was the subject of litigation before the
United States Court of Appeals for the District of Columbia Circuit
(D.C. Circuit) in Natural Resources Defense Council v. EPA (hereafter,
NRDC v. EPA).\2\ On January 4, 2013, the D.C. Circuit remanded to EPA
both the 2007 PM2.5 Implementation Rule and the 2008 NSR
PM2.5 Rule. The court found that in both rules EPA erred in
implementing the 1997 PM2.5 National Ambient Air Quality
Standard (NAAQS) solely pursuant to the general implementation
provisions of subpart 1 of part D of title I of the CAA (subpart 1),
rather than pursuant to the additional implementation provisions
specific to particulate matter in subpart 4 of part D of title I
(subpart 4).\3\ As a result, the court remanded both rules and
instructed EPA ``to re-promulgate these rules pursuant to subpart 4
consistent with this opinion.'' Although the D.C. Circuit declined to
establish a deadline for EPA's response, EPA intends to respond
promptly to the court's remand and to promulgate new generally
applicable implementation regulations for the PM2.5 NAAQS in
accordance with the requirements of subpart 4. In the interim, however,
states and EPA still need to proceed with implementation of the 1997
PM2.5 NAAQS in a timely and effective fashion in order to
meet statutory obligations under the CAA and to assure the protection
of public health intended by those NAAQS. In a June 2, 2014 final
rulemaking entitled ``Identification of Nonattainment Classification
and Deadlines for Submission of State Implementation Plan (SIP)
Provisions for the 1997 Fine Particle (PM2.5) National
Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS;
Final Rule,'' (79 FR 31566), EPA identified the classification status
under subpart 4 for areas currently designated nonattainment for the
1997 and 2006 PM2.5 NAAQS. That rulemaking also established
a December 31, 2014 deadline for the submission of any additional
attainment related SIP elements that may be needed to meet the
applicable requirements of subpart 4.
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\1\ 72 FR 20586 (April 25, 2007).
\2\ 706 F.3d 428 (D.C. Cir. 2013).
\3\ The court's opinion did not specifically address the point
that implementation under subpart 4 requirements would still require
consideration of subpart 1 requirements, to the extent that subpart
4 did not override subpart 1. EPA assumes that the court presumed
that EPA would address this issue of potential overlap between
subpart 1 and subpart 4 requirements in subsequent actions.
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EPA is in the process of evaluating the requirements of subpart 4
as they pertain to nonattainment NSR. In particular, subpart 4 includes
section 189(e) of the CAA, which requires the control of major
stationary sources of coarse particulate matter (PM10)
precursors (and hence under the NRDC v. EPA court decision,
PM2.5 precursors) ``except where the Administrator
determines that such sources do not contribute significantly to
PM10 levels which exceed the standard in the area.'' The
evaluation of which precursors need to be controlled to achieve the
standard in a particular area is typically conducted in the context of
the state's preparing and the EPA's reviewing an area's attainment plan
SIP. At the time of the August 22, 2013 SIP submittal, three areas in
Maryland were designated as nonattainment for the 1997 annual
PM2.5 NAAQS: The Maryland portion of the Washington DC-MD-VA
nonattainment area; the Baltimore nonattainment area; and the Maryland
portion of the Martinsburg-Hagerstown, MD-WV nonattainment area.
Since the SIP submittal, EPA has taken final action to redesignate
all of these areas to attainment. On October 6, 2014, EPA took final
action to redesignate the Washington, DC-MD-VA area. 79 FR 60081. On
December 16, 2014, EPA took final action to redesignate both the
Baltimore nonattainment area and the Martinsburg-Hagerstown
nonattainment area to attainment. 79 FR 75032 (Baltimore area) and 79
FR 75035 (Maryland portion of the Martinsburg-Hagerstown area). As a
result, MDE is no longer obligated to submit a nonattainment NSR SIP
revision under section 189 of the CAA addressing nonattainment NSR
permitting requirements for PM2.5, including the
requirements under subpart 4. Therefore, EPA has not evaluated the
August 22, 2013 submittal for the purposes of determining compliance
with the subpart 4 requirements. To the extent that any area is
designated nonattainment for PM2.5 in Maryland in the
future, MDE will have to make a submission under section 189 of the CAA
addressing how its nonattainment permitting program satisfies the CAA
statutory requirements as to PM2.5, including subpart 4 and
any applicable PM2.5 Federal implementation rules.
II. Summary of SIP Revision
As previously discussed, this SIP revision incorporates provisions
related to the 2008 NSR PM2.5 Rule, which: (1) Required NSR
permits to address directly emitted PM2.5 and precursor
pollutants;(2) established significant emission rates for direct
PM2.5 and precursor pollutants (including sulfur dioxide
(SO2) and oxides of nitrogen (NOX)); (3)
established PM2.5 emission offsets; and (4) required states
to account for gases that condense to form particles (condensables) in
PM2.5 emission limits.
[[Page 15715]]
To implement these provisions, Maryland amended Regulation .01
under COMAR 26.11.01 (General Administrative Provisions) and
Regulations .01 and .02 under COMAR 26.11.17 (Nonattainment Provisions
for Major New Sources and Major Modifications). The general definitions
at COMAR 26.11.01.01 were amended to add definitions of
``PM2.5'' and ``PM2.5 emissions.'' COMAR 26.11.17
contains the preconstruction requirements for new major stationary
sources and major modifications locating in nonattainment areas. The
definitions of ``regulated NSR pollutant'' and ``significant'' under
COMAR 26.11.17.01 were amended. The amended definitions require that
sources account for the condensable fraction of PM10 and
PM2.5, require that NOX and SO2 be
regulated as precursors to PM10 and PM2.5, and
establish significant emission rates (SERs) for PM2.5 and
its precursors. COMAR 26.11.17.02 was revised to specify that all of
the major nonattainment NSR preconstruction requirements of the chapter
are applicable to new major stationary sources and major modifications
that are major for PM2.5 or its precursors. COMAR
26.11.17.02 was also revised to clarify that in addition to the
requirements of that chapter, the Prevention of Significant
Deterioration (PSD) requirements of COMAR 26.11.04.16 may also apply to
sources locating in nonattainment areas.
III. Proposed Action
EPA's review of this material indicates that the proposed revisions
comply with the nonattainment NSR program requirements of the CAA and
its implementing regulations (including the 2008 NSR PM2.5
Rule) that are applicable in Maryland at this time. EPA is therefore
proposing to approve MDE's August 22, 2013 submittal as a revision to
the Maryland SIP. EPA is soliciting public comments on the issues
discussed in this document. These comments will be considered before
taking final action.
IV. Incorporation by Reference
In this proposed action, the EPA is proposing to include in a final
EPA rule, regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference amendments to Regulation .01 under COMAR
26.11.01 (General Administrative Provisions) and Regulations .01 and
.02 under COMAR 26.11.17 (Nonattainment Provisions for Major New
Sources and Major Modifications). The EPA has made, and will continue
to make, these documents generally available electronically through
www.regulations.gov and/or in hard copy at the appropriate EPA office
(see the ADDRESSES section of this preamble for more information).
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed rule, relating to Maryland's nonattainment
NSR program, does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
is not approved to apply in Indian country located in the state, and
EPA notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 9, 2015.
William C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2015-06729 Filed 3-24-15; 8:45 am]
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