[Federal Register Volume 79, Number 227 (Tuesday, November 25, 2014)]
[Rules and Regulations]
[Pages 70095-70099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27749]



40 CFR Part 52

[EPA-R03-OAR-2014-0690; FRL-9919-48-Region-3]

Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Prevention of Significant Deterioration

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.


SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve revisions to the Maryland State Implementation 
Plan (SIP). The revisions incorporate by

[[Page 70096]]

reference (IBR) the current requirements of the Federal Prevention of 
Significant Deterioration (PSD) program into the Maryland SIP. 
Additionally, the revisions will allow Maryland's PSD program to 
automatically update with any revisions to the Federal regulations. EPA 
is approving these revisions to Maryland's PSD program in accordance 
with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on January 26, 2015 without further 
notice, unless EPA receives adverse written comment by December 26, 
2014. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2014-0690 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: kreider.andrew@epa.gov.
    C. Mail: EPA-R03-OAR-2014-0690, Andrew Kreider, Acting 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-
2014-0690. 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 talley.david@epa.gov.


I. Background

    On August 22, 2013, the Maryland Department of the Environment 
(MDE) submitted a formal revision (#13-05) to the Maryland State 
Implementation Plan (SIP). The SIP revision incorporates by reference 
the most current Federal PSD regulations which are codified at 40 CFR 
52.21, and will allow future revisions to the Federal PSD program to be 
automatically incorporated into Maryland's SIP.
    Maryland has previously adopted a PSD program through an IBR of a 
date-specific version of the Federal PSD program. The currently 
approved Maryland SIP incorporates the Federal regulations as published 
in the 2009 version of the Code of Federal Regulations, and ``as 
amended by the `Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule' (Tailoring Rule; 75 FR 31514), and the 
`Deferral for CO2 Emissions from Bioenergy and Other 
Biogenic Sources under the Prevention of Significant Deterioration and 
Title V Programs' (Biomass Deferral; 76 FR 43490).''
    EPA took final action to approve Maryland's IBR of the 2009 version 
of 40 CFR 52.21 ``as amended'' by the Tailoring Rule on August 2, 2012 
(77 FR 45949). Subsequently, MDE submitted a revision which 
incorporated the provisions of the Biomass Deferral into the Maryland 
SIP. On November 16, 2012, EPA took final action to approve that 
revision (78 FR 13497). EPA's August 2, 2012 approval incorporated a 
number of important required elements into Maryland's PSD program, 
including those related to the 2008 ``Implementation of New Source 
Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)'' (2008 NSR PM2.5 Rule; 73 FR 28321). For 
PSD sources in Maryland, this required that PSD permits address direct 
PM2.5 emissions as well as precursor emissions (including 
sulfur dioxide (SO2) and oxides of nitrogen 
(NOX)), established significant emission rates for 
PM2.5 and precursor emissions, and established the 
requirement to account for condensable particulate matter. On January 
4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit 
(D.C. Circuit), in Natural Resources Defense Council (NRDC) v. EPA,\1\ 
issued a decision that remanded the EPA's rules implementing the 1997 
PM2.5 NAAQS, including the 2008 NSR PM2.5 Rule. 
The court's remand of the 2008 NSR PM2.5 Rule is relevant to 
this final rulemaking. This rule promulgated NSR requirements for 
implementation of PM2.5 in both nonattainment areas 
(nonattainment NSR) and attainment/unclassifiable areas (PSD). The D.C. 
Circuit found that EPA erred in implementing the PM2.5 NAAQS 
pursuant to the general implementation provisions of subpart 1 of part 
D of title I of the CAA, rather than pursuant to the additional 
implementation provisions specific to particulate matter nonattainment 
areas in subpart 4. The court ordered the EPA to ``repromulgate these 
rules pursuant to Subpart 4 consistent with this opinion.'' Id. at 437. 
However, as the requirements of subpart 4 only pertain to nonattainment 
areas, it is EPA's position that the portions of the 2008 NSR 
PM2.5 Rule that address requirements for PM2.5 in 
attainment and unclassifiable areas are not affected by the D.C. 
Circuit's opinion in NRDC v. EPA. Moreover, EPA does not anticipate the 
need to revise any PSD requirements promulgated in the 2008 NSR 
PM2.5 Rule in order to comply with the court's decision. 
Accordingly, EPA's approval of Maryland's SIP as to the PSD 
requirements promulgated by the 2008 NSR PM2.5 Rule in this 
action does

[[Page 70097]]

not conflict with the D.C. Circuit's opinion.

    \1\ See 706 F.3d 428 (D.C. Cir. 2013).

    On October 20, 2010, EPA promulgated additional PSD regulations 
relating to PM2.5: ``Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs), and 
Significant Monitoring Concentrations (SMC)'' (2010 PSD 
PM2.5 Rule; 73 FR 64864). Because Maryland's currently 
approved SIP incorporates the 2009 version of the CFR, these provisions 
are not currently in the Maryland SIP. On January 22, 2013, the D.C. 
Circuit, in Sierra Club v. EPA,\2\ issued a judgment that, inter alia, 
vacated and remanded the SIL provisions at 40 CFR 52.21(k)(2). 
Additionally, the D.C. Circuit vacated the SMC provisions at section 
52.21(i)(5)(i)(c). In response to the D.C. Circuit's decision, EPA took 
final action on December 9, 2013 to remove the SIL provisions from the 
Federal PSD regulations and to revise the SMC for PM2.5 to 
zero (78 FR 73698). Therefore, the provisions with which the court took 
issue are not in effect in Maryland and are not being approved into the 
Maryland SIP as part of this action.

    \2\ See 705 F.3d 458, 469.

    The 2010 PSD PM2.5 Rule also established increments for 
PM2.5 pursuant to the legal authority contained in section 
166(a) of the CAA for pollutants for which NAAQS are promulgated after 
1977. An increment is the maximum allowable level of ambient pollutant 
concentration increase that is allowed to occur above the applicable 
baseline concentration in a particular area. As such, an increment 
defines ``significant deterioration.'' The PM2.5 increment 
provisions at 40 CFR 52.21(c) were not affected by the D.C. Circuit's 
decision on the 2010 PSD PM2.5 Rule, and are therefore being 
approved into the Maryland SIP with this final approval action.
    Additionally, EPA notes that on June 23, 2014, the United States 
Supreme Court, in Utility Air Regulatory Group v. Environmental 
Protection Agency,\3\ issued a decision addressing the application of 
PSD permitting requirements to greenhouse gas (GHG) emissions. The 
Supreme Court said that the EPA may not treat GHGs as an air pollutant 
for purposes of determining whether a source is a major source (or 
modification thereof) required to obtain a PSD permit. The Court also 
said that the EPA could continue to require that PSD permits, otherwise 
required based on emissions of pollutants other than GHGs, contain 
limitations on GHG emissions based on the application of Best Available 
Control Technology (BACT). In order to act consistently with its 
understanding of the Court's decision pending further judicial action 
before the D.C. Circuit to effectuate the decision, the EPA is not 
continuing to apply EPA regulations that would require that SIPs 
include permitting requirements that the Supreme Court found 
impermissible. Specifically, EPA is not applying the requirement that a 
state's SIP-approved PSD program require that sources obtain PSD 
permits when GHGs are the only pollutant: (i) That the source emits or 
has the potential to emit above the major source thresholds; or (ii) 
for which there is a significant emissions increase and a significant 
net emissions increase from a modification (e.g. 40 CFRs 
51.166(b)(48)(v) and 52.21(b)(49)(v)).

    \3\ 134 S.Ct. 2427.

    EPA anticipates a need to revise federal PSD rules in light of the 
Supreme Court opinion. In addition, EPA anticipates that many states 
will revise their existing SIP-approved PSD programs in light of the 
Supreme Court's decision. In states that allow future revisions to the 
Federal PSD program to be automatically incorporated into the SIP as 
Maryland has done in this case, this will be accomplished as soon as 
EPA revises the federal PSD rules. The timing and content of subsequent 
EPA actions with respect to the EPA regulations is expected to be 
informed by additional legal processes before the D.C. Circuit. EPA is 
not expecting states to have revised their existing PSD program 
regulations at this juncture before the D.C. Circuit has addressed 
these issues and before EPA has revised its regulations at 40 CFRs 
51.166 and 52.21. However, EPA is evaluating PSD program submissions to 
assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    Maryland's existing approved SIP contains the greenhouse gas 
permitting requirements reflected in 40 CFR 52.21 after EPA issued the 
Tailoring Rule. As a result, the PSD permitting program in Maryland 
previously approved by EPA into the SIP continues to require that PSD 
permits (otherwise required based on emissions of pollutants other than 
GHGs) contain limitations on GHG emissions based on the application of 
BACT when sources emit or increase greenhouse gases in the amount of 
75,000 tons per year (measured as carbon dioxide (CO2) 
equivalent CO2e). Although the approved Maryland PSD 
permitting program may also currently contain provisions that are no 
longer necessary in light of the Supreme Court decision, this does not 
prevent EPA from approving the submission addressed in this rule. 
Maryland's 2013 SIP submission does not add any greenhouse gas 
permitting requirements that are inconsistent with the Supreme Court 
decision. While this submission incorporates all of 40 CFR 52.21 for 
completeness, the submission reincorporates PSD permitting requirements 
for greenhouse gases that are mostly already in the Maryland SIP.
    However, this revision does add to the Maryland SIP the elements of 
EPA's 2012 rule implementing Step 3 of the phase in of PSD permitting 
requirements for greenhouse gases described in the Tailoring Rule. 77 
FR 41051 (July 12, 2012). This rule became effective on August 13, 
2012. Specifically, the incorporation of the Step 3 rule provisions 
will allow GHG-emitting sources to obtain plantwide applicability 
limits (PALs) for their GHG emissions on a CO2e basis. The 
GHG PAL provisions, as currently written, include some provisions that 
may no longer be appropriate in light of the Supreme Court decision. 
Since the Supreme Court has determined that sources and modifications 
may not be defined as ``major'' solely on the basis of the level of 
greenhouse gases emitted or increased, PALs for greenhouse gases may no 
longer have value in some situations where a source might have 
triggered PSD based on greenhouse gas emissions alone. However, PALs 
for GHGs may still have a role to play in determining whether a 
modification that triggers PSD for a pollutant other than greenhouse 
gases should also be subject to BACT for greenhouse gases. These 
provisions, like the other GHG provisions discussed previously, will 
likely be revised pending further legal action. However, this SIP 
revision does not add new requirements for sources or modifications 
that only emit or increase greenhouse gases above the major source 
threshold or the 75,000 tpy greenhouse gas level in 40 CFR 
52.21(b)(49)(iv). Rather, the PAL's provisions provide increased 
flexibility to sources that wish to address their GHG emissions in a 
PAL. Since this flexibility may still be valuable to sources in at 
least one context described above, EPA believes that it is appropriate 
to approve these provisions into the Maryland SIP at this juncture.
    While the automatic IBR of 40 CFR 52.21 being approved into 
Maryland's SIP through this action will incorporate some regulations 
that will be revised in subsequent EPA actions to address the Supreme 
Court decision, approving the automatic IBR into Maryland's SIP at this 
time will ensure that Maryland's

[[Page 70098]]

PSD requirements will remain consistent with the Federal regulations at 
the time of any subsequent revisions EPA makes to the Federal PSD 
program. In a related matter, on July 12, 2013, the D.C. Circuit, in 
Center for Biological Diversity v. EPA \4\ vacated the provisions of 
the Biomass Deferral, which had delayed (for three years) the 
applicability of PSD and title V requirements to biogenic 
CO2 emissions. While the ultimate disposition of the Federal 
regulations implementing the Biomass Deferral has not yet been 
determined, the deferral expired on July 21, 2014 anyway, and could not 
presently be used even absent the vacatur. As previously discussed, any 
future revisions to the Federal regulations will automatically be 
incorporated into Maryland's SIP. Therefore, while this approval action 
includes the vacated portions of 40 CFR 52.21(b)(49)(ii)(a), EPA's 
approval does not conflict with the D.C. Circuit's decision.

    \4\ See 722 F.3d 401.

II. Summary of SIP Revision

    MDE's August 22, 2013 SIP revision request includes amendments to 
the following provisions of the Code of Maryland Regulations (COMAR): 
Regulation .01 under 26.11.01--General Administrative Provisions, and 
Regulation .14 under COMAR 26.11.06--General Emission Standards, 
Prohibitions, and Restrictions. The revisions remove the date-specific 
IBR of section 52.21, replacing it with an IBR of 40 CFR 52.21 ``as 
amended.'' As previously discussed, these revisions incorporate the 
current Federal PSD requirements, and will automatically incorporate 
any future changes to the Federal regulations into the Maryland SIP. 
EPA is approving the SIP revision in accordance with the CAA and the 
requirements for PSD permitting programs.

III. Final Action

    EPA is approving MDE's August 22, 2013 submittal as a revision to 
the Maryland SIP. EPA is publishing this rule without prior proposal 
because EPA views this as a noncontroversial amendment and anticipates 
no adverse comment. However, in the ``Proposed Rules'' section of 
today's Federal Register, EPA is publishing a separate document that 
will serve as the proposal to approve the SIP revision if adverse 
comments are filed. This rule will be effective on January 26, 2015 
without further notice unless EPA receives adverse comment by December 
26, 2014. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     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 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 26, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking action.
    This action pertaining to Maryland's PSD program may not be 
challenged later in proceedings to enforce its requirements. (See 
section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference,

[[Page 70099]]

Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: November 5, 2014.
W.C. Early,
Acting, Regional Administrator, Region III.
    40 CFR part 52 is amended as follows:


1. The authority citation for part 52 continues to read as follows:

     Authority: 42 U.S.C. 7401 et seq.

Subpart V--Maryland

2. In Sec.  52.1070, the table in paragraph (c) is amended by revising 
the entry/entries for COMAR and The revised 
text reads as follows:

Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *

                 EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP
Code of Maryland administrative    Title/subject     effective   EPA approval date     Additional explanation/
  regulations (COMAR) citation                          date                         citation at 40 CFR 52.1100
                                   26.11.01 General Administrative Provisions
----------------------------------------------------------------------------------------------------------------  Definitions......       7/8/13  11/25/14 [Insert   Revised .01B(37).
                                                                  Federal Register
                                                  * * * * * * *
                       26.11.06 General Emission Standards, Prohibitions, and Restrictions
                                                  * * * * * * *  Control of PSD          7/8/13  11/25/14 [Insert   Revised .14B(1).
                                  Sources.                        Federal Register
                                                  * * * * * * *

* * * * *

[FR Doc. 2014-27749 Filed 11-24-14; 8:45 am]