[Federal Register Volume 82, Number 135 (Monday, July 17, 2017)]
[Rules and Regulations]
[Pages 32641-32644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14842]



40 CFR Part 52

[EPA-R03-OAR-2016-0514; FRL-9964-79-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Removal of Clean Air Interstate Rule Program Regulations 
(CAIR) and Reference to CAIR, and Amendments to Continuous Emission 
Monitor (CEM) Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is approving a July 
7, 2016 state implementation plan (SIP) revision submitted by the State 
of Maryland. The July 7, 2016 SIP submittal sought removal of a 
regulation in its entirety from the approved Maryland SIP which 
addressed Maryland's defunct Clean Air Interstate Rule (CAIR) program 
and sought removal from the SIP of additional provisions which 
referenced Maryland's CAIR program in Maryland regulations addressing 
general air quality definitions and the control of emissions from pulp 
mills in Maryland. Additionally, the July 7, 2016 SIP submittal 
included an amendment to a Maryland regulation regarding the use of 
continuous emission monitoring (CEM) systems at Kraft pulp mill boilers 
and combustion units in order to clarify that CEM systems must meet 
requirements beyond those only related to certification. The July 7, 
2016 SIP submittal removing references to CAIR in Maryland's 
regulations satisfies Maryland's obligation pursuant to an earlier 
rulemaking in which EPA granted final conditional approval of 
Maryland's amended regulation regarding the control of emissions from 
Kraft pulp mills contingent upon Maryland addressing the removal of 
references to CAIR from its regulations and SIP. Today's action thus 
also converts the prior conditional approval of the pulp mill 
regulation to a full approval. EPA's approval of the Maryland SIP is in 
accordance with the requirements of the Clean Air Act (CAA) and is 
under CAA authority.

DATES: This final rule is effective on August 16, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0514. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (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 through 
http://www.regulations.gov or please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section for additional availability 

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at [email protected].


I. Background

    On April 28, 2017 (82 FR 19648), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. The NPR proposed to approve 
Maryland's July 7, 2016 SIP submittal which sought removal of 
Maryland's CAIR program, in its entirety from the Maryland SIP, as well 
as the removal of references to CAIR from other Maryland regulations in 
the SIP. CAIR, a now superseded program, was first promulgated in May 
2005 to help reduce interstate transport of ozone and fine particulate 
matter (PM2.5) pollution in the eastern half of the United 
States.\1\ CAIR addressed both the 1997 ozone and PM2.5 
national ambient air quality standards (NAAQS) and required 28 states, 
including Maryland, to limit emissions of nitrogen oxides 
(NOX) and sulfur dioxide (SO2).\2\

    \1\ 70 FR 25172 (May 12, 2005).
    \2\ SO2 is a precursor to PM2.5 formation, 
and NOX is a precursor to both ozone and PM2.5 

    On December 23, 2008, CAIR was remanded to EPA by the United States 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in 
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on 
reh'g, 550 F.3d 1176. The December 2008 D.C. Circuit ruling allowed 
CAIR to remain in effect until a new interstate transport rule 
consistent with the Court's opinion was developed. In response to the 
remand of CAIR, EPA promulgated the Cross State Air Pollution Rule 
(CSAPR) on July 6, 2011.\3\ CSAPR, which reduced emissions from 
electric generating units (EGUs), addressed the 1997 8-hour ozone 
NAAQS, the 1997 annual PM2.5 NAAQS, and the 2006 24-hour 
PM2.5 NAAQS. The rule also contained provisions that would 
end CAIR-related obligations on a schedule coordinated with the 
implementation of CSAPR compliance requirements. CSAPR was to become 
effective January 1, 2012; however, the timing of CSAPR's 
implementation was impacted by a number of court actions.\4\ On 
December 3, 2014 (79 FR 71663), in an interim final rule, EPA updated 
the effective date of CSAPR to January 1, 2015. Thus, in accordance 
with this interim final rule, the sunset date for CAIR was December 31, 
2014, and EPA began implementing CSAPR on January 1, 2015.\5\

    \3\ 76 FR 48208 (August 8, 2011).
    \4\ A detailed summary of these court actions in the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) and the United States Supreme Court affecting CAIR and 
CSAPR was provided in the Background section of the NPR which is 
available online at www.regulations.gov, Docket number EPA-R03-OAR-
    \5\ At the present time, CSAPR is implemented in Maryland via a 
federal implementation plan (FIP).

II. Summary of SIP Revision and EPA Analysis

    In the April 28, 2017 NPR, EPA proposed approval of Maryland's 
request to remove Maryland's CAIR program, in its entirety, from the 
State's SIP as well as to remove references to CAIR from other Maryland 
regulations in the State's SIP that relate to general air quality 
definitions and to the control of emissions from Kraft pulp mills in 
the State. In this NPR, EPA also proposed approval of amended Code of 
Maryland Regulations (COMAR) which removed the word 
``certified'' from that subsection in order to clarify that CEM systems 
from Kraft pulp mill boilers and combustion units must meet 
requirements for monitoring and reporting emissions in 40 CFR part 75, 
subpart H and not just ``certification'' requirements.
    In addition, Maryland's submission of the amendments to COMAR and COMAR 26.11.14 (to remove

[[Page 32642]]

references to CAIR) was in response to EPA's conditional approval of a 
previous Maryland SIP submittal. Maryland SIP #14-04 was submitted on 
October 8, 2014 for inclusion of a pulp mill regulation in the Maryland 
SIP and included amendments to COMAR 26.11.14--Control of Kraft Pulp 
Mills. In a letter dated September 18, 2015, the Maryland Department of 
the Environment (MDE) committed to removing references to CAIR, which 
had sunset, through a SIP revision.\6\ The amendments to COMAR and COMAR 26.11.14, provided by Maryland's July 7, 2016 SIP 
submittal, complete the actions required by EPA's conditional approval 
of Maryland SIP submittal #14-04. 81 FR 59486 (August 30, 2016). 
Pursuant to section 110(k) of the CAA and as stated in the August 30, 
2016 final conditional approval of COMAR 26.11.14 for Maryland's 
October 8, 2014 SIP submittal, once EPA determines that MDE has 
satisfied the condition to remove references to CAIR, EPA shall remove 
the conditional nature of the August 30, 2016 approval and COMAR 
26.11.14 will receive full approval status for the Maryland SIP.

    \6\ The final rulemaking notice for EPA's conditional approval 
of SIP submission #14-04 was published on August 30, 2016 (81 FR 

    In the NPR, EPA proposed to approve Maryland's request to remove 
Maryland regulations addressing CAIR and referring to CAIR from the 
approved Maryland SIP and to approve the revised COMAR regulation 
addressing CEM requirements at Kraft pulp mills because the removal 
strengthens the Maryland SIP. This is considered a SIP strengthening 
action as it removes a moot program, CAIR, which was replaced by CSAPR, 
a program that yields at least equal or additional NOX and 
SO2 reductions to CAIR.
    EPA proposed to approve the revision to COMAR which 
removed the word ``certified'' from the regulation because the revision 
met CAA section 110 requirements as the revision was merely an 
administrative action to make clear that CEMs at Kraft pulp mills must 
meet all requirements for monitoring and certification in 40 CFR part 
75, subpart H. A detailed summary of Maryland's July 7, 2016 SIP 
submission and amended regulations as well as EPA's review of and 
rationale for approving this SIP revision submittal may be found in the 
NPR for this rulemaking action and will not be restated here.
    In addition, in the NPR, EPA determined the amendments to COMAR and COMAR 26.11.14 included in the July 7, 2016 SIP 
submittal completed the actions required by EPA's conditional approval 
of COMAR 26.11.14. 81 FR 59486 (August 30, 2016). Thus, this final 
approval of the July 7, 2016 SIP submittal converts the prior 
conditional approval of COMAR 26.11.14 in the Maryland SIP to a full 
approval. Two public comments were received on the NPR.

III. Public Comments and EPA's Responses

    EPA received two comments on the April 28, 2017 proposed approval 
of the July 7, 2016 Maryland SIP revision submittal.
    Comment 1: One commenter stated that no regulations should be 
repealed and that even stronger regulations are needed. The commenter 
expressed a feeling of security that the government will not allow, via 
corporations or negligence, the air the commenter breathes or water the 
commenter drinks to become toxic or mildly hazardous due to 
regulations. The commenter claimed New York State has toxic regions of 
land where the water and soil is unsafe, unfarmable and unlivable 
because government allowed businesses in the region to dispose of waste 
on the land before EPA existed.
    Response 1: EPA thanks the commenter for the submitted statements 
and concern for clean air and water. In this rulemaking, EPA is 
approving the removal of regulations from the Maryland SIP because the 
regulations relate to the CAIR program which is moot and has been 
replaced by CSAPR which is at least as stringent in addressing 
emissions of NOX and SO2 from EGUs as CAIR was. 
As stated in the NPR, CSAPR was promulgated to replace CAIR and was 
EPA's response to court decisions addressing the CAIR program. Although 
the implementation of CSAPR was delayed for several years due to 
litigation, EPA began implementing CSAPR January 1, 2015 and the 
implementation of CAIR ceased on December 31, 2014. The Maryland 
regulations relating to the CAIR program and any regulations 
referencing CAIR became moot also as of that date as they refer to a 
defunct program. Thus, as discussed in the NPR, removing from the 
Maryland SIP the regulations which formed Maryland's CAIR program and 
removing references to CAIR from other COMAR provisions will not impact 
any emissions from EGUs or other emitting sources as CAIR is moot and 
has been replaced by CSAPR as the federal interstate transport cap and 
trade program. As discussed in the NPR, EPA's action to remove the CAIR 
program and references to the CAIR program from the Maryland SIP is in 
accordance with CAA section 110(l) and will not impact the NAAQS, 
reasonable further progress, or any other CAA requirement as CAIR has 
sunset and no longer yields any NOX, ozone, or 
SO2 reductions as CSAPR now provides the program for those 
emission reductions. Further, the commenter's statements regarding 
protection of air and water via regulations do not identify with 
required specificity any protections of air or water impacted by the 
removal of the moot CAIR program regulations or suggest specific 
actions EPA should consider otherwise as CSAPR has replaced CAIR.
    Comment 2: The commenter stated that he was opposed to the proposed 
action and that ``there can be no financial or political reason for 
limiting the federal government's responsibility to assure clean water 
and clean air for every American regardless of which state in which 
they may reside.'' The commenter also stated that ``states cannot keep 
the effects of their pollution from spilling over into neighboring 
states'' and stated that saying ``these regulations are job killers 
misses the moral imperative.''
    Response 2: EPA thanks the commenter for his support for clean 
water and air. In general, this comment lacks required specificity and 
does not identify specific provisions or actions EPA should address 
differently. EPA has explained in the NPR and in this final action why 
the removal of the Maryland regulations which addressed or referenced 
CAIR, a defunct program, met CAA requirements and why removal of these 
regulations would not impact any NAAQS, reasonable further progress or 
any CAA requirement. As mentioned, CAIR sunset in 2014 and was replaced 
by CSAPR. The CAA's ``good neighbor'' provision in section 110(a)(2)(D) 
requires states to address in their SIPs the interstate transport of 
air pollution that affects the ability of downwind states to attain and 
maintain the NAAQS. Where states have not addressed the section 
110(a)(2)(D) ``good neighbor'' provision in their SIPs, EPA promulgated 
FIPs such as CSAPR which address interstate pollution impacting 
attainment and maintenance of the 1997 and 2006 ozone and 
PM2.5 NAAQS, and the 2008 ozone NAAQS through a cap and 
trade program which reduces emissions of NOX and 
SO2 from EGUs. The CSAPR FIP applies to Maryland to address 
interstate transport of pollution, and thus removal of the moot CAIR 
program from the State's SIP will not interfere with requirements for 
addressing transport.

[[Page 32643]]

IV. Final Action

    EPA is approving the removal of Maryland's CAIR program, in its 
entirety, from the Maryland SIP as well as the removal of references to 
CAIR from other Maryland regulations in the SIP that relate to general 
air quality definitions and to the control of emissions from Kraft pulp 
mills in the State. EPA is also approving the amended version of COMAR relating to CEM system requirements for inclusion in 
the Maryland SIP.
    Additionally, because EPA determined that Maryland's July 7, 2016 
SIP submittal satisfies Maryland's obligation pursuant to EPA's August 
30, 2016 (81 FR 59486) rulemaking in which EPA granted final 
conditional approval of COMAR 26.11.14 regarding the control of 
NOX emissions at Kraft pulp mills for SIP inclusion, EPA now 
grants full approval to the October 15, 2014 SIP revision which added 
COMAR 26.11.14 regarding Kraft pulp mill emissions to the Maryland SIP. 
EPA's approval of the July 7, 2016 SIP and full approval of the October 
15, 2014 SIP is in accordance with requirements under section 110 of 
the CAA.

V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of portions of 
MDE regulations COMAR 26.11.01 and COMAR 26.11.14 regarding air quality 
definitions and Kraft pulp mill emission controls to remove reference 
to CAIR. EPA is also incorporating by reference the portion of COMAR 
26.11.14 which removed the word ``certified'' from COMAR Therefore, these materials have been approved by EPA 
for inclusion in the SIP, have been incorporated by reference by EPA 
into that plan, are fully federally enforceable under sections 110 and 
113 of the CAA as of the effective date of the final rulemaking of 
EPA's approval, and will be incorporated by reference by the Director 
of the Federal Register in the next update to the SIP compilation.\7\ 
EPA has made, and will continue to make, these materials generally 
available through http://www.regulations.gov and/or at the EPA Region 
III Office (please contact the person identified in the ``For Further 
Information Contact'' section of this preamble for more information).

    \7\ 62 FR 27968 (May 22, 1997).

VI. 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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
     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 September 15, 2017. 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. This action regarding the removal of the CAIR program under 
COMAR 28.11.28 from the Maryland SIP and amendments to COMAR 26.11.01 
and 26.11.14 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, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 29, 2017.
Cecil Rodrigues,
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.

[[Page 32644]]

Subpart V--Maryland

2. In Sec.  52.1070, the table in paragraph (c) is amended by:
a. Revising the entries for COMAR,, and; and
b. Removing the heading ``26.11.28 Clean Air Interstate Rule'' and the 
entries through
    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                                                                          Additional
  Administrative  Regulations     Title/subject         State         EPA approval date     explanation/citation
       (COMAR) citation                            effective date                            at 40 CFR 52.1100
                                   26.11.01 General Administrative Provisions
----------------------------------------------------------------------------------------------------------------  Definitions......      05/09/2016  7/17/2017, [Insert      Amends the definition
                                                                    Federal Register        of ``NOX Ozone
                                                                    citation].              Season Allowance''
                                                  * * * * * * *
                               26.11.14 Control of Emissions From Kraft Pulp Mills
----------------------------------------------------------------------------------------------------------------  Control of               3/3/2014  7/17/2017, [Insert      Amended to clarify
                                 Volatile Organic                   Federal Register        volatile organic
                                 Compounds.                         citation].              compound (VOC)
                                                                                            control system and
                                                                                            requirements at
                                                                                            Kraft pulp mills. (8/
                                                                                            30/2016, 81 FR
                                                                                            59488).  Control of NOX         05/09/2016  7/17/2017, [Insert      Removed reference to
                                 Emissions from                     Federal Register        COMAR 26.11.28 in
                                 Fuel Burning                       citation].     and
                                 Equipment.                                                 removed the word
                                                                                            ``certified'' in
                                                  * * * * * * *

* * * * *
[FR Doc. 2017-14842 Filed 7-14-17; 8:45 am]