Approval and Promulgation of Air Quality Implementation Plans; Maryland; Infrastructure Requirements for the 2008 Ozone National Ambient Air Quality Standards, 62010-62019 [2014-24256]
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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
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submission as it pertains to NOX as a
precursor to ozone and the definition of
major modification in a May 2, 2014
proposed approval (79 FR 25063), and
will take a final action on those
revisions in a separate rulemaking.
With the final approval of this SIP
revisions, the FIP clocks started by
EPA’s October 29, 2012, narrow
disapproval and July 25, 2013,
disapproval will stop.
IV. 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 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
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practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
This rule is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
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. 804(2).
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 November 17, 2014. 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 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, Intergovernmental relations,
Nitrogen dioxide, Particulate matter,
Sulfur oxides.
Dated: August 25, 2014.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
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Authority: 42 U.S.C. 7401 et seq.
2. Section 52.2570 is amended by
adding paragraph (c)(132) to read as
follows:
■
§ 52.2570
Identification of plan.
*
*
*
*
*
(c) * * *
(132) On March 12, 2014, April 15,
2014 and August 11, 2014, the
Wisconsin Department of Natural
Resources submitted a request to revise
Wisconsin’s air permitting program to
incorporate PSD requirements for PM2.5.
(i) Incorporation by reference.
(A) Wisconsin Administrative Code,
NR 400.02 Definitions. NR 400.0(123m)
and NR 400.0(124) as published in the
Wisconsin Administrative Register July
2014, No. 703, effective August 1, 2014.
(B) Wisconsin Administrative Code,
NR 405.02 Definitions. NR
405.02(25i)(ag), NR 405.02(25i)(ar)2 and
3, as published in the Wisconsin
Administrative Register July 2014, No.
703, effective August 1, 2014.
(C) Wisconsin Administrative Code,
NR 405.02 Definitions. NR
405.02(27)(a)5m as published in the
Wisconsin Administrative Register
November 2010, No. 659, effective
December 1, 2010.
[FR Doc. 2014–24174 Filed 10–15–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2014–0177; FRL–9917–67–
Region–3]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Infrastructure Requirements
for the 2008 Ozone National Ambient
Air Quality Standards
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
submitted by the State of Maryland
pursuant to the Clean Air Act (CAA).
Whenever new or revised National
Ambient Air Quality Standards
(NAAQS) are promulgated, the CAA
requires states to submit a plan for the
implementation, maintenance and
enforcement of such NAAQS. The plan
is required to address the basic program
elements including, but not limited to
regulatory structure, monitoring,
modeling, legal authority, and adequate
resources necessary to assure attainment
SUMMARY:
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and maintenance of the standards.
These elements are referred to as
infrastructure requirements. The State of
Maryland has made a submittal
addressing the infrastructure
requirements for the 2008 ozone
NAAQS.
DATES: This final rule is effective on
November 17, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2014–0177. All
documents in the docket are listed in
the www.regulations.gov Web site.
Although listed in the electronic docket,
some information is not publicly
available, i.e., 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 either electronically through
www.regulations.gov or in hard copy for
public inspection 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:
Ruth Knapp, (215) 814–219, or by email
at knapp.ruth@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
On May 2, 2014 (79 FR 25054), EPA
published a notice of proposed
rulemaking (NPR) for the State of
Maryland. In the NPR, EPA proposed
approval of several infrastructure
elements to satisfy several requirements
of section 110(a)(2) of the CAA for the
2008 ozone NAAQS. The formal SIP
revision (12–12) was submitted by the
State of Maryland on December 27,
2012.
II. Summary of SIP Revision
In the NPR, EPA proposed approval of
the following infrastructure elements:
Sections 110(a)(2)(A), (B), (C), D(i)(II),
D(ii), (E), (F), (G), (H), (J), (K), (L), and
(M) of the CAA. The proposed
rulemaking does not include action on
section 110(a)(2)(I) of the CAA which
pertains to the requirements of part D,
Title I of the CAA as explained in the
NPR. The proposed rulemaking action
also did not include any action on
Maryland’s December 27, 2012 SIP
submission addressing section
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110(a)(2)(D)(i)(I). EPA provided in the
proposal that it will later take separate
action on Maryland’s December 27,
2012 SIP submission for the 2008 ozone
NAAQS for section 110(a)(2)(D)(i)(I).
The rationale supporting EPA’s
proposed rulemaking action, including
the scope of infrastructure SIPs in
general, is explained in the NPR and the
technical support document (TSD)
accompanying the NPR and will not be
restated here. The TSD is available
online at www.regulations.gov, Docket
ID Number EPA–R03–OAQ–2014–0177.
III. Infrastructure SIPS and Greenhouse
Gases
With respect to elements (C) and (J) in
section 110(a)(2) of the CAA, EPA
interprets the CAA to require each state
to make an infrastructure SIP
submission for a new or revised NAAQS
that demonstrates that the air agency
has a complete Prevention of Significant
Deterioration (PSD) permitting program
meeting the current requirements for all
regulated New Source Review (NSR)
pollutants. The requirements of element
(D)(i)(II) in Section 110(a)(2) which
requires a demonstration that emissions
from sources in the state do not interfere
with the PSD program of another state,
may also be satisfied by demonstrating
the air agency has a complete PSD
permitting program correctly addressing
all regulated NSR pollutants. Maryland
has shown that it currently has a PSD
program in place that covers all
regulated NSR pollutants, including
greenhouse gases (GHGs).
On June 23, 2014, the United States
Supreme Court issued a decision
addressing the application of PSD
permitting requirements to GHG
emissions. Utility Air Regulatory Group
v. Environmental Protection Agency,
134 S.Ct. 2427. 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 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 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
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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
CFR 51.166(b)(48)(v)). 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 SIPapproved PSD programs in light of the
Supreme Court’s decision. The timing
and content of subsequent EPA actions
with respect to the EPA regulations and
state PSD program approvals are
expected to be informed by additional
legal process before the United States
Court of Appeals for the District of
Columbia Circuit. At this juncture, EPA
is not expecting states to have revised
their PSD programs for purposes of
infrastructure SIP submissions and is
only evaluating such submissions to
assure that the state’s program correctly
addresses GHGs consistent with the
Supreme Court’s decision.
At present, EPA has determined the
Maryland SIP is sufficient to satisfy
elements C, D(i)(II), and J of section
110(a)(2) with respect to GHGs because
the PSD permitting program previouslyapproved 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. Although the
approved Maryland PSD permitting
program may currently contain
provisions that are no longer necessary
in light of the Supreme Court decision,
this does not render the infrastructure
SIP submission inadequate to satisfy
elements (C), (D)(i)(II), and (J) in section
110(a)(2) of the CAA. The SIP contains
the necessary PSD requirements at this
time, and the application of those
requirements is not impeded by the
presence of other previously-approved
provisions regarding the permitting of
sources of GHGs that EPA does not
consider necessary at this time in light
of the Supreme Court decision.
Accordingly, the Supreme Court
decision does not affect EPA’s earlier
proposed approval of Maryland’s 2008
ozone infrastructure SIP as to the
requirements of elements (C), (D)(i)(II),
and (J) for Section 110(a)(2). EPA is
taking final action to approve these
elements.
IV. Public Comments and EPA’s
Responses
EPA received two sets of comments
on the May 2, 2014 proposed
rulemaking action on Maryland’s 2008
ozone ‘‘infrastructure’’ SIP. The
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comments were submitted by the State
of Maryland and the Sierra Club. The
State of Maryland made a brief comment
related to the subject matter of
transported emissions while Sierra Club
made more substantive comments on a
variety of subjects including transport of
emissions. A full set of these comments
is provided in the docket for today’s
final rulemaking action.
A. Maryland’s Comment
Comment: The State of Maryland
inquired regarding EPA’s plans to take
action on the transport portion of its
2008 ozone infrastructure SIP submittal
in light of the recent Supreme Court
decision in EPA et al v. EME Homer City
Generation, L.P. et al, 134 S. Ct. 1584,
2014 U.S. LEXIS 3108 (2014).1
Response: In this rulemaking, EPA is
not taking final action with respect to
the SIP revision addressing the
provisions in section 110(a)(2)(D)(i)(I) of
the CAA—the portion of the good
neighbor provision which addresses
emissions that significantly contribute
to nonattainment or interfere with
maintenance of the NAAQS in another
state. EPA did not propose to take any
action in the NPR with respect to
Maryland’s obligations pursuant to
section 110(a)(2)(D)(i)(I). As indicated in
EPA’s proposal, EPA anticipates taking
later, separate action on the section
110(a)(2)(D)(i)(I) portion of Maryland’s
December 27, 2012 SIP submission for
the 2008 ozone NAAQS.
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B. Sierra Club Comments:
Comment 1: Sierra Club contends that
EPA cannot approve the Maryland 2008
ozone infrastructure SIP revision
because the plain language of section
110(a)(2)(A) of the CAA, legislative
history of the CAA, case law, EPA
regulations, such as 40 CFR 51.112(a),
and EPA interpretations in rulemakings,
require the inclusion of enforceable
emission limits in an infrastructure SIP
to prevent NAAQS violations 2 in areas
not designated nonattainment.
1 The Maryland comment also inquired whether
EPA would withdraw prior approvals of ozone
infrastructure SIPs for other states which did not
include action on section 110(a)(2)(D)(i)(I). As
Maryland’s comment about other state SIPs and
EPA rulemaking on other states’ SIPs is not relevant
to this rulemaking, EPA need not provide any
further response to this comment.
2 The commenter frequently also uses the term
‘‘exceedance’’ in relation to the NAAQS. EPA
believes that in many contexts the commenter
meant a ‘‘violation’’ of the NAAQS. In general, the
term exceedance means that the level of the
pollutant is above the level of the NAAQS.
However, for the 2008 8-hour ozone NAAQS, the
form of the NAAQS allows some ‘‘exceedances’’
(levels above the 0.075 parts per million (ppm) 8hour average) in a three year period before an area
would be ‘‘violating’’ or ‘‘not attaining’’ the
NAAQS.
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Specifically, Sierra Club cites air
monitoring reports for Kent County,
Maryland indicating violations of the
NAAQS based on 2010–2012 and 2011–
2013 design values. The commenter
alleges that these violations demonstrate
that the ozone infrastructure SIP fails to
impose necessary restrictions on ozone
precursor sources sufficient to ensure
attainment and maintenance of the 2008
ozone NAAQS and compliance with
section 110(a)(2)(A). The commenter
claims Maryland must revise its
infrastructure SIP to include enforceable
emission limits and other measures to
ensure attainment and maintenance of
the 2008 ozone NAAQS. The
commenter asserts the existing emission
limits applicable to coal plants in
Maryland’s SIP were not intended to
ensure maintenance of an 8-hour
standard. The commenter asserts that
Maryland’s infrastructure SIP relies on
the Maryland Healthy Air Act (HAA) for
nitrogen oxide (NOX) limitations on
Maryland’s coal-fired power plants yet
the HAA imposes only annual and
ozone season caps on NOX at coal-fired
power plants while the 8-hour ozone
NAAQS requires shorter emissions
averaging times. The commenter also
urges EPA to encourage Maryland to
expeditiously finalize new regulations
on coal-fired power plants which
Maryland is currently drafting which
the commenter claims would require
installation and operation of state-ofthe-art controls on the largest
contributors of NOX in Maryland. Until
these new regulations are finalized, the
commenter claims ‘‘Maryland has not
tackled emissions’’ from the largest NOX
sources and has not demonstrated its
SIP is sufficient to attain and maintain
the 2008 ozone NAAQS. Therefore, the
commenter states EPA cannot approve
Maryland’s infrastructure SIP. Finally,
the commenter states Maryland should
use its infrastructure SIP process to
address current ozone exceedances in
Kent County and should prevent Kent
County from being designated
nonattainment for the 2008 ozone
NAAQS by adding appropriate
enforceable NOX emission limits on
sources. The commenter states EPA
cannot approve the infrastructure SIP
and Maryland must amend its SIP to
ensure the largest NOX sources cannot
contribute to exceedances of the 8-hour
ozone NAAQS.
Response 1: EPA disagrees with the
commenter that the statute is clear on its
face that infrastructure SIPs must
include detailed attainment and
maintenance plans for all areas of the
state and must be disapproved if air
quality data that became available late
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in the process or after the SIP was due
and submitted changes the status of one
or more areas within the state. The
commenter’s specific arguments that the
statutory language, legislative history,
case law, EPA regulations, and prior
rulemaking actions by EPA mandate the
narrow interpretation they advocate are
addressed below in subsections (1)
through (5) of this response. EPA
believes that section 110(a)(2)(A) is
reasonably interpreted to require states
to submit SIPs that reflect the first step
in their planning for attaining and
maintaining a new or revised NAAQS
and that they contain enforceable
control measures and a demonstration
that the state has the available tools and
authority to develop and implement
plans to attain and maintain the
NAAQS.
As an initial matter, EPA disagrees
that air quality monitoring data that
became available, as here, four or more
years following promulgation of the
2008 ozone NAAQS and shortly after
the SIP was submitted in December
2012 provides a basis for disapproving
the Maryland ozone infrastructure SIP.
States must develop SIPs based on the
information they have during the SIP
development process, which preceded
December 2012 (when Maryland
submitted its SIP), and data that
becomes available near the end of that
process or after that process is
completed cannot undermine the
reasonable assumptions that were made
by the state based on the information it
had available as it developed the plan.
Thus, the design values for 2012 and
2013 cited by the commenter (based
respectively on the three-years of data
from 2010–2012 and 2011–2013) should
not be considered in determining
whether the SIP should be approved.3
The suggestion that Maryland’s ozone
infrastructure SIP must include
measures addressing violations of the
standard that did not occur until shortly
before or after the SIP was due and
submitted, as is the case here, cannot be
supported. The CAA provides states
with three years to develop
infrastructure SIPs and states cannot
reasonably be expected to address the
annual change in an area’s design value
for each year over that period, nor to
predict the air quality data in periods
after development and submission of
the SIPs. Moreover, the CAA recognizes
and has provisions to address changes
in air quality over time, such as an area
slipping from attainment to
nonattainment or changing from
nonattainment to attainment. These
3 The design values for 2012 and 2013 were
certified in April 2013 and April 2014 respectively.
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include provisions providing for
redesignation in section 107(d) and
provisions in section 110(k)(5) allowing
EPA to call on the state to revise its SIP,
as appropriate.
The commenter suggests that EPA
must disapprove the Maryland ozone
infrastructure SIP because the fact that
an area in Maryland now has air quality
data slightly above the standard proves
that the infrastructure SIP is inadequate
to demonstrate attainment and
maintenance for that area.4 EPA
disagrees with the commenter because
EPA does not believe that section
110(a)(2)(A) requires detailed planning
SIPs demonstrating either attainment or
maintenance for specific geographic
areas of the state. The infrastructure SIP
is triggered by promulgation of the
NAAQS, not designation. Moreover,
infrastructure SIPs are due three years
following promulgation of the NAAQS
and designations are not due until two
years (or in some cases three years)
following promulgation of the NAAQS.
Thus, during a significant portion of the
period that a state has available for
developing the infrastructure SIP, it
does not know what the designation
will be for individual areas of the state.5
In light of the structure of the CAA,
EPA’s long-standing position regarding
infrastructure SIPs is that they are
general planning SIPs to ensure that the
state has adequate resources and
authority to implement a NAAQS in
general throughout the state and not
detailed attainment and maintenance
plans for each individual area of the
state.
EPA’s interpretation that
infrastructure SIPs are more general
planning SIPs is consistent with the
statute as understood in light of its
history and structure. When Congress
enacted the CAA in 1970, it did not
include provisions requiring states and
the EPA to label areas as attainment or
nonattainment. Rather, states were
required to include all areas of the state
in ‘‘air quality control regions’’ (AQCRs)
and section 110 set forth the core
substantive planning provisions for
these AQCRs. At that time, Congress
anticipated that states would be able to
4 EPA notes that preliminary monitoring data for
2014 indicates that the 2012–2014 design value for
Kent County, Maryland will meet the 2008 ozone
NAAQS. The 2014 data is not complete, quality
assured or certified at this time.
5 While it is true that there may be some monitors
within a state with values so high as to make a
nonattainment designation of the county with that
monitor almost a certainty, the geographic
boundaries of the nonattainment area associated
with that monitor would not be known until EPA
issues final designations. Moreover, the area of
concern to the commenter does not fit that
description in any event.
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address air pollution quickly pursuant
to the very general planning provisions
in section 110 and could bring all areas
into compliance with the NAAQS
within five years. Moreover, at that
time, section 110(a)(2)(A)(i) specified
that the section 110 plan provide for
‘‘attainment’’ of the NAAQS and section
110(a)(2)(B) specified that the plan must
include ‘‘emission limitations,
schedules, and timetables for
compliance with such limitations, and
such other measures as may be
necessary to insure attainment and
maintenance [of the NAAQS].’’ In 1977,
Congress recognized that the existing
structure was not sufficient and many
areas were still violating the NAAQS. At
that time, Congress for the first time
added provisions requiring states and
EPA to identify whether areas of the
state were violating the NAAQS (i.e.,
were nonattainment) or were meeting
the NAAQS (i.e., were attainment) and
established specific planning
requirements in section 172 for areas
not meeting the NAAQS. In 1990, many
areas still had air quality not meeting
the NAAQS and Congress again
amended the CAA and added yet
another layer of more prescriptive
planning requirements for each of the
NAAQS, with the primary provisions
for ozone in section 182. At that same
time, Congress modified section 110 to
remove references to the section 110 SIP
providing for attainment, including
removing pre-existing section
110(a)(2)(A) in its entirety and
renumbering subparagraph (B) as
section 110(a)(2)(A). Additionally,
Congress replaced the clause ‘‘as may be
necessary to insure attainment and
maintenance [of the NAAQS]’’ with ‘‘as
may be necessary or appropriate to meet
the applicable requirements of this
chapter.’’ Thus, the CAA has
significantly evolved in the more than
40 years since it was originally enacted.
While at one time section 110 did
provide the only detailed SIP planning
provisions for states and specified that
such plans must provide for attainment
of the NAAQS, under the structure of
the current CAA, section 110 is only the
initial stepping-stone in the planning
process for a specific NAAQS. And,
more detailed, later-enacted provisions
govern the substantive planning
process, including planning for
attainment of the NAAQS.
EPA shares the commenter’s concern
regarding the area that is monitoring
violations of the 2008 8-hour ozone
NAAQS based on its 2012 and 2013
design values and is working with state
and local agencies to address such
violations. By approving Maryland’s
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infrastructure SIP revision, EPA is
affirming that Maryland has sufficient
authority to take the types of actions
required by the CAA in order to bring
such areas back into attainment. For all
of these reasons, EPA disagrees with the
commenter that EPA must disapprove
an infrastructure SIP revision if there
are monitored violations of the standard
in the state and the section 110(a)(2)(A)
revision does not have detailed plans for
demonstrating how the state will bring
that area into attainment or for
demonstrating maintenance. EPA
believes the state has met the basic
structural SIP requirements appropriate
at the point in time EPA is acting upon
the submittal. EPA disagrees with the
commenter that Maryland should use
the infrastructure SIP required by
section 110(a)(1) and (2) of the CAA to
address any ‘‘exceedances’’ of the 2008
ozone NAAQS or to avoid a designation
of nonattainment for Kent County. Other
provisions in part D of the CAA address
the attainment planning process while
section 107(d) of the CAA addresses
designations of areas for attainment or
nonattainment with a NAAQS. While
Maryland may decide to regulate
additional sources for pursuing
emission reductions in the State to
strengthen its SIP, such actions are not
relevant to our approval of Maryland’s
infrastructure SIP in accordance with
section 110 of the CAA. As discussed
previously, our inquiry at this juncture
is whether Maryland’s SIP has the
required structural elements.
Moreover, as addressed in EPA’s
proposed approval for this rule,
Maryland identified existing emission
reduction measures in the SIP that
control emissions of volatile organic
compounds (VOCs) and NOX.
Maryland’s SIP revision reflects several
provisions that have the ability to
reduce ground level ozone and its
precursors. The Maryland SIP relies on
measures and programs used to address
previous ozone NAAQS. Because there
is no substantive difference between the
previous ozone NAAQS and the more
recent ozone NAAQS, other than the
level of the standard, the provisions
relied on by Maryland will provide
benefits for the new NAAQS; in other
words, the measures reduce overall
ground-level ozone and its precursors
and are not limited to reducing ozone
levels to meet one specific NAAQS.6
Finally, EPA appreciates the
commenter’s support of Maryland’s
pursuit of additional NOX emission
6 Thus, EPA disagrees with the commenter’s
assertion that Maryland has not addressed the
largest emitters of NOX in the State. Maryland’s
HAA specifically imposed NOX emission limits on
coal-fired power plants in Maryland.
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limitations at coal-fired power plants in
Maryland. Additional NOX regulations
on emissions will likely strengthen the
Maryland SIP and lead to additional
reductions in NOX emissions benefiting
Maryland. However, EPA does not
believe that approval of the
infrastructure SIP is contingent on
Maryland adopting this rule. Congress
established the CAA such that each state
has primary responsibility for assuring
air quality within the state and
determines an emission reduction
program for its areas subject to EPA
approval, with such approval dependent
upon whether the SIP as a whole meets
the applicable requirements of the CAA.
See Commonwealth of Virginia, et al., v.
EPA, 108 F.3d 1397, 1410 (D.C. Cir.
1997) (citing Natural Resources Defense
Council, Inc. v. Browner, 57 F.3d 1122,
1123 (DCCir.1995)). EPA cannot
condition approval of the Maryland
infrastructure SIP upon inclusion of a
particular emission reduction program
as long as the SIP otherwise meets the
requirements of the CAA. As explained
in the NPR and the TSD, Maryland’s
ozone infrastructure SIP meets the
requirements in section 110(a)(2).7
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1. The Plain Language of the CAA
Comment 2: The commenter states
that on its face the CAA ‘‘requires I–SIPs
to be adequate to prevent exceedances
of the NAAQS.’’ In support, the
commenter quotes the language in
section 110(a)(1) which requires states
to adopt a plan for implementation,
maintenance, and enforcement of the
NAAQS and the language in section
110(a)(2)(A) which requires SIPs to
include enforceable emissions
limitations as may be necessary to meet
the requirements of the CAA and which
commenter claims include the
maintenance plan requirement. Sierra
Club notes the CAA definition of
emission limit and reads these
provisions together to require
‘‘enforceable emission limits on source
emissions sufficient to ensure
maintenance of the NAAQS.’’
Response 2: EPA disagrees that
section 110 is clear ‘‘on its face’’ and
must be interpreted in the manner
suggested by Sierra Club. As explained
previously, section 110 is only one
provision that is part of the complicated
structure governing implementation of
the NAAQS program under the CAA, as
amended in 1990, and it must be
interpreted in the context of not only
that structure, but also of the historical
7 As stated previously, EPA will take later,
separate action on Maryland’s ozone infrastructure
SIP submittal regarding the portion of the SIP
submittal addressing section 110(a)(2)(D)(i)(I).
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evolution of that structure. In light of
the revisions to section 110 since 1970
and the later-promulgated and more
specific planning requirements of the
CAA, EPA interprets the requirement in
section 110(a)(2)(A) that the plan
provide for ‘‘implementation,
maintenance and enforcement’’ to mean
that the infrastructure SIP must contain
enforceable emission limits that will aid
in attaining and/or maintaining the
NAAQS and that the state demonstrate
that it has the necessary tools to
implement and enforce a NAAQS, such
as adequate state personnel and an
enforcement program. With regard to
the requirement for emission
limitations, EPA has interpreted this to
mean for purposes of section 110, that
the state may rely on measures already
in place to address the pollutant at issue
or any new control measures that the
state may choose to submit. As EPA
stated in ‘‘Guidance on Infrastructure
State Implementation Plan (SIP)
Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2),’’ dated
September 13, 2013 (Infrastructure SIP
Guidance), ‘‘[t]he conceptual purpose of
an infrastructure SIP submission is to
assure that the air agency’s SIP contains
the necessary structural requirements
for the new or revised NAAQS, whether
by establishing that the SIP already
contains the necessary provisions, by
making a substantive SIP revision to
update the SIP, or both. Overall, the
infrastructure SIP submission process
provides an opportunity . . . to review
the basic structural requirements of the
air agency’s air quality management
program in light of each new or revised
NAAQS.’’ Infrastructure SIP Guidance
at p. 2.
The commenter makes general
allegations that Maryland does not have
sufficient protective measures
addressing ozone pollution. EPA
addressed the adequacy of Maryland’s
infrastructure SIP for 110(a)(2)(A) for
purposes of meeting applicable
requirements of the CAA in the TSD
accompanying the May 2, 2014 NPR and
explained why the SIP includes
enforceable emission limitations and
other control measures. These include
applicable portions of COMAR 26.11
such as COMAR 26.11.02, and COMAR
26.11.06.14. As discussed in the TSD
accompanying the May 2, 2014 NPR,
Maryland’s enforceable emission limits,
control measures, and related SIP
approved regulations can be found in 40
CFR 52.1070. These include enforceable
emissions limits, control measures, fees,
and compliance schedules adopted for
the 1-hour and 1997 8-hour ozone
NAAQS but which will also provide
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ozone reductions benefits for the 2008
ozone NAAQS.
2. The Legislative History of the CAA
Comment 3: Sierra Club cites two
excerpts from the legislative history of
the CAA Amendments of 1970 claiming
they support an interpretation that SIP
revisions under CAA section 110 must
include emissions limitations sufficient
to show maintenance of the NAAQS in
all areas of Maryland. Sierra Club also
contends that the legislative history of
the CAA supports the interpretation that
infrastructure SIPs under section
110(a)(2) must include enforceable
emission limitations, citing the Senate
Committee Report and the subsequent
Senate Conference Report
accompanying the 1970 CAA.
Response 3: As provided in the
previous response, the CAA, as enacted
in 1970, including its legislative history,
cannot be interpreted in isolation from
the later amendments that refined the
structure of the Act and deleted relevant
language from section 110 concerning
demonstrating attainment. In any event,
the two excerpts of legislative history
the commenter cites merely provide that
states should include enforceable
emission limits in their SIPs and they
do not mention or otherwise address
whether states are required to include
maintenance plans for all areas of the
state as part of the infrastructure SIP. As
provided earlier in this rulemaking
action, the TSD for the proposed rule
explains why the SIP includes
enforceable emissions limitations and
meets the requirement in section
110(a)(2)(A).
3. Case Law
Comment 4: Sierra Club also
discusses several cases applying the
CAA which Sierra Club claims support
their contention that courts have been
clear that section 110(a)(2)(A) requires
enforceable emissions limits in
infrastructure SIPs to prevent violations
of the NAAQS. Sierra Club first cites to
language in Train v. NRDC, 421 U.S. 60,
78 (1975), addressing the requirement
for ‘‘emission limitations’’ and stating
that emission limitations ‘‘are specific
rules to which operators of pollution
sources are subject, and which if
enforced should result in ambient air
which meet the national standards.’’
Sierra Club also cites to Pennsylvania
Dept. of Envtl. Resources v. EPA, 932
F.2d 269, 272 (3d Cir. 1991) for the
proposition that the CAA directs EPA to
withhold approval of a SIP where it
does not ensure maintenance of the
NAAQS and Mision Industrial, Inc. v.
EPA, 547 F.2d 123, 129 (1st Cir. 1976),
which quoted section 110(a)(2)(B) of the
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CAA of 1970. The commenter contends
that the 1990 Amendments do not alter
how courts have interpreted the
requirements of section 110, quoting
Alaska Dept. of Envtl. Conservation v.
EPA, 540 U.S. 461, 470 (2004) which in
turn quoted section 110(a)(2)(A) of the
CAA and also stated that ‘‘SIPs must
include certain measures Congress
specified’’ to ensure attainment of the
NAAQS. The commenter also quotes
several additional opinions in this vein.
Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1180 (9th Cir. 2012) (‘‘The
Clean Air Act directs states to develop
implementation plans—SIPs—that
‘assure’ attainment and maintenance of
[NAAQS] through enforceable emissions
limitations’’); Hall v. EPA 273 F.3d
1146, 1153 (9th Cir. 2001) (‘‘Each State
must submit a [SIP] that specif[ies] the
manner in which [NAAQS] will be
achieved and maintained within each
air quality control region in the State’’).
Finally, the commenter cites Mich.
Dept. of Envtl. Quality v. Browner, 230
F.3d 181 (6th Cir. 2000) for the
proposition that EPA may not approve
a SIP revision that does not demonstrate
how the rules would not interfere with
attainment and maintenance of the
NAAQS.
Response 4: None of the cases the
commenter cites support the
commenter’s contention that section
110(a)(2)(A) is clear that infrastructure
SIPs must include detailed plans
providing for attainment and
maintenance of the NAAQS in all areas
of the state nor do they shed light on
how section 110(a)(2)(A) may
reasonably be interpreted. With the
exception of Train, none of the cases the
commenter cites concerned the
interpretation of CAA section
110(a)(2)(A) (or section 110(a)(2)(B) of
the pre-1990 Act). Rather, the courts
reference section 110(a)(2)(A) (or section
110(a)(2)(B) of the pre-1990 CAA) in the
background section of decisions in the
context of a challenge to an EPA action
on revisions to a SIP that was required
and approved as meeting other
provisions of the CAA or in the context
of an enforcement action.
In Train, 421 U.S. 60, a case that was
decided almost 40 years ago, the Court
was addressing a state revision to an
attainment plan submission made
pursuant to section 110 of the CAA, the
sole statutory provision at that time
regulating such submissions. The issue
in that case concerned whether changes
to requirements that would occur before
attainment was required were variances
that should be addressed pursuant to
the provision governing SIP revisions or
were ‘‘postponements’’ that must be
addressed under section 110(f) of the
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CAA of 1970, which contained
prescriptive criteria. The Court
concluded that EPA reasonably
interpreted section 110(f) not to restrict
a state’s choice of the mix of control
measures needed to attain the NAAQS
and that revisions to SIPs that would
not impact attainment of the NAAQS by
the attainment date were not subject to
the limits of section 110(f). Thus the
issue was not whether a section 110 SIP
needs to provide for attainment or
whether emissions limits are needed as
part of the SIP; rather the issue was
which statutory provision governed
when the state wanted to revise the
emission limits in its SIP if such
revision would not impact attainment or
maintenance of the NAAQS. To the
extent the holding in the case has any
bearing on how section 110(a)(2)(A)
might be interpreted, it is important to
realize that in 1975, when the opinion
was issued, section 110(a)(2)(B) (the
predecessor to section 110(a)(2)(A))
expressly referenced the requirement to
attain the NAAQS, a reference that was
removed in 1990.
The decision in Pennsylvania Dept. of
Envtl. Resources was also decided based
on the pre-1990 provision of the CAA.
At issue was whether EPA properly
rejected a revision to an approved plan
where the inventories relied on by the
state for the updated submission had
gaps. The Court quoted section
110(a)(2)(B) of the pre-1990 CAA in
support of EPA’s disapproval, but did
not provide any interpretation of that
provision. Yet, even if the Court had
interpreted that provision, EPA notes
that it was modified by Congress in
1990; thus, this decision has little
bearing on the issue here.
At issue in Mision Industrial, 547
F.2d 123, was the definition of
‘‘emissions limitation’’ not whether
section 110 requires the state to
demonstrate how all areas of the state
will attain and maintain the NAAQS as
part of their infrastructure SIPs. The
language from the opinion the
commenter quotes does not interpret but
rather merely describes section
110(a)(2)(A). The commenter does not
raise any concerns about whether the
measures relied on by the state in the
infrastructure SIP are ‘‘emissions
limitations’’ and the decision in this
case has no bearing here.8 In Mont.
Sulphur & Chem. Co., 666 F.3d 1174,
the Court was reviewing a federal
implementation plan that EPA
8 While the commenter does contend that the
State shouldn’t be allowed to rely on emission
reductions that were developed for the prior ozone
standards (which we address above), it does not
claim that any of the measures are not ‘‘emissions
limitations’’ within the definition of the CAA.
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promulgated after a long history of the
state failing to submit an adequate state
implementation plan. The Court cited
generally to sections 107 and
110(a)(2)(A) of the CAA for the
proposition that SIPs should assure
attainment and maintenance of NAAQS
through emission limitations but this
language was not part of the Court’s
holding in the case. The commenter
suggests that Alaska Dept. of Envtl.
Conservation, 540 U.S. 461, stands for
the proposition that the 1990 CAA
Amendments do not alter how courts
interpret section 110. This claim is
inaccurate. Rather, the Court quoted
section 110(a)(2)(A), which, as noted
previously, differs from the pre-1990
version of that provision and the Court
makes no mention of the changed
language. Furthermore, the commenter
also quotes the Court’s statement that
‘‘SIPs must include certain measures
Congress specified’’ but that statement
specifically referenced the requirement
in section 110(a)(2)(C), which requires
an enforcement program and a program
for the regulation of the modification
and construction of new sources.
Notably, at issue in that case was the
state’s ‘‘new source’’ permitting
program, not its infrastructure SIP.
Two of the cases the commenter cites,
Mich. Dept. of Envtl. Quality, 230 F.3d
181, and Hall, 273 F.3d 1146, interpret
CAA section 110(l), the provision
governing ‘‘revisions’’ to plans, and not
the initial plan submission requirement
under section 110(a)(2) for a new or
revised NAAQS, such as the
infrastructure SIP at issue in this
instance. In those cases, the courts cited
to section 110(a)(2)(A) solely for the
purpose of providing a brief background
of the CAA.
4. EPA Regulations, Such as 40 CFR
51.112(a)
Comment 5: The commenter cites to
40 CFR 51.112(a), providing that ‘‘[e]ach
plan must demonstrate that the
measures, rules and regulations
contained in it are adequate to provide
for the timely attainment and
maintenance of the [NAAQS].’’ The
commenter asserts that this regulation
requires all SIPs to include emissions
limits necessary to ensure attainment of
the NAAQS. The commenter states that
‘‘[a]lthough these regulations were
developed before the Clean Air Act
separated infrastructure SIPs from
nonattainment SIPs—a process that
began with the 1977 amendments and
was completed by the 1990
amendments—the regulations apply to
I–SIPs.’’ The commenter relies on a
statement in the preamble to the 1986
action restructuring and consolidating
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provisions in part 51, in which EPA
stated that ‘‘[i]t is beyond the scope of
th[is] rulemaking to address the
provisions of Part D of the Act . . . .’’
51 FR 40656, 40656 (November 7, 1986).
Response 5: The commenter’s reliance
on 40 CFR 51.112 to support its
argument that infrastructure SIPs must
contain emission limits ‘‘adequate to
prohibit NAAQS exceedances’’ and
adequate or sufficient to ensure the
maintenance of the NAAQS is not
supported. As an initial matter, EPA
notes and the commenter recognizes
this regulatory provision was initially
promulgated and ‘‘restructured and
consolidated’’ prior to the CAA
Amendments of 1990, in which
Congress removed all references to
‘‘attainment’’ in section 110(a)(2)(A).
And, it is clear on its face that 40 CFR
51.112 applies to plans specifically
designed to attain the NAAQS. EPA
interprets these provisions to apply
when states are developing ‘‘control
strategy’’ SIPs such as the detailed
attainment and maintenance plans
required under other provisions of the
CAA, as amended in 1977 and again in
1990, such as section 175A and 182.
The commenter suggests that these
provisions must apply to section 110
SIPs because in the preamble to EPA’s
action ‘‘restructuring and consolidating’’
provisions in part 51, EPA stated that
the new attainment demonstration
provisions in the 1977 Amendments to
the CAA were ‘‘beyond the scope’’ of
the rulemaking. It is important to note,
however, that EPA’s action in 1986 was
not to establish new substantive
planning requirements, but rather was
meant merely to consolidate and
restructure provisions that had
previously been promulgated. EPA
noted that it had already issued
guidance addressing the new ‘‘Part D’’
attainment planning obligations. Also,
as to maintenance regulations, EPA
expressly stated that it was not making
any revisions other than to re-number
those provisions. 51 FR at 40657.
Although EPA was explicit that it was
not establishing requirements
interpreting the provisions of new ‘‘Part
D’’ of the CAA, it is clear that the
regulations being restructured and
consolidated were intended to address
control strategy plans. In the preamble,
EPA clearly stated that 40 CFR 51.112
was replacing 40 CFR 51.13 (‘‘Control
strategy: SOx and PM (portion)’’), 51.14
(‘‘Control strategy: CO, HC, Ox and NO2
(portion)’’), 51.80 (‘‘Demonstration of
attainment: Pb (portion)’’), and 51.82
(‘‘Air quality data (portion)’’). Id. at
40660. Thus, the present-day 40 CFR
51.112 contains consolidated provisions
that are focused on control strategy SIPs,
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and the infrastructure SIP is not such a
plan.
5. EPA Interpretations in Other
Rulemakings
Comment 6: The commenter also
references two prior EPA rulemaking
actions where EPA disapproved or
proposed to disapprove SIPs and
claimed they were actions in which EPA
relied on section 110(a)(2)(A) and 40
CFR 51.112 to reject infrastructure SIPs.
The commenter first points to a 2006
partial approval and partial disapproval
of revisions to Missouri’s existing plan
addressing the sulfur dioxide (SO2)
NAAQS. In that action, EPA cited
section 110(a)(2)(A) as a basis for
disapproving a revision to the State plan
on the basis that the State failed to
demonstrate the SIP was sufficient to
ensure maintenance of the SO2 NAAQS
after revision of an emission limit and
cited to 40 CFR 51.112 as requiring that
a plan demonstrates the rules in a SIP
are adequate to attain the NAAQS.
Second, Sierra Club cites a 2013
disapproval of a revision to the SO2 SIP
for Indiana, where the revision removed
an emission limit that applied to a
specific emissions source at a facility in
the State. In its proposed disapproval,
EPA relied on 40 CFR 51.112(a) in
proposing to reject the revision, stating
that the State had not demonstrated that
the emission limit was ‘‘redundant,
unnecessary, or that its removal would
not result in or allow an increase in
actual SO2 emissions.’’ EPA further
stated in that proposed disapproval that
the State had not demonstrated that
removal of the limit would not ‘‘affect
the validity of the emission rates used
in the existing attainment
demonstration.’’ Additionally, the
commenter states EPA in its September
2013 Infrastructure SIP Guidance
purported to postpone certain start-up,
shutdown, and malfunction (SSM)
requirements but did not postpone other
infrastructure SIP requirements, which
the commenter asserts indicates the
CAA requires infrastructure SIPs to
include enforceable limits adequate to
ensure attainment of NAAQS and to
impose limits without delay.
Response 6: EPA does not agree that
the two prior actions referenced by the
commenter establish how EPA reviews
infrastructure SIPs. It is clear from both
the final Missouri rule and the proposed
and final Indiana rule that EPA was not
reviewing initial infrastructure SIP
submissions under section 110 of the
CAA, but rather reviewing revisions that
would relax the stringency of an already
approved SIP. EPA’s partial approval
and partial disapproval of revisions to
restrictions on emissions of sulfur
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compounds for the Missouri SIP in 71
FR 12623 addressed a control strategy
SIP and not an infrastructure SIP. The
Indiana action provides even less
support for the commenter’s position. In
that case, the State had an approved SO2
attainment plan and was seeking to
remove from the SIP provisions relied
on as part of the modeled attainment
demonstration. EPA proposed that the
State had failed to demonstrate under
section 110(l) of the CAA why the SIP
revision would not result in increased
SO2 emissions and thus interfere with
attainment of the NAAQS. Nothing in
that rulemaking addresses the necessary
content of the initial infrastructure SIP
for a new or revised NAAQS. Rather, it
is simply applying the clear statutory
requirement that a state must
demonstrate why a revision to an
approved SIP will not interfere with
attainment of the NAAQS.
Finally, EPA disagrees with the
comment regarding the Infrastructure
SIP Guidance. The commenter correctly
asserts that EPA in its September 2013
Infrastructure SIP Guidance clearly
stated that EPA does not interpret
section 110(a)(2) to require state air
agencies and the EPA to address
potentially deficient pre-existing SSM
SIP provisions when acting on an
infrastructure SIP particularly because
EPA has alternative tools in the CAA to
address such deficiencies. Infrastructure
SIP Guidance at pgs. 19–20. However,
this affirmative statement regarding
potential SSM deficiencies in a state’s
SIP cannot be construed to mean or
imply EPA cannot approve an
infrastructure SIP without a
demonstration that the SIP contains
adequate enforceable limits to ensure
attainment with a NAAQS. For all of the
reasons discussed previously, we do not
interpret section 110(a)(2)(A) to require
that the state demonstrate attainment of
the NAAQS. As explained above, and
similar to our position on SSM
deficiencies, the CAA establishes
separate provisions that govern
attainment SIPs for areas. As discussed
previously, EPA reviews infrastructure
SIPs to ensure a SIP has the appropriate
structural requirements.
Comment 7: The commenter states
that EPA must evaluate Maryland’s
provisions submitted in the 2008 ozone
NAAQS infrastructure SIP to address
section 110(a)(2)(D)(i)(I) and determine
whether they are sufficient enough to
meet requirements of section
110(a)(2)(D)(i)(I). In light of the Supreme
Court’s decision in EME Homer City in
April 2014, the commenter argues that
the EPA should act quickly to address
pollution that may be contributing to
another state’s nonattainment or
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interfering with another state’s
maintenance of the 2008 ozone NAAQS.
The commenter argues EPA must
evaluate whether Maryland addresses
the section 110(a)(2)(D)(i)(I)
requirements regarding emissions that
would contribute to exceedances of or
interfere with the maintenance of the
2008 ozone NAAQS and cannot delay
its review of Maryland’s provisions to
address such requirements. The
commenter states EPA must disapprove
the Maryland infrastructure SIP
transport provision and adequately
address the impact of ozone emissions
from Maryland on other states. Because
Maryland’s transport SIP submittal
relies on CSAPR and the HAA, the
commenter asserts EPA should
determine Maryland has not adequately
addressed its cross-state impacts. The
commenter claims CSAPR only
addresses the less stringent 1997 ozone
NAAQS and claims that even Maryland
said additional reductions are needed
for 2008 ozone NAAQS beyond CSAPR.
The commenter also claims Maryland’s
HAA was developed under the
‘‘outdated’’ 1997 ozone NAAQS and
claims Maryland’s reductions from the
HAA do not demonstrate Maryland is
not contributing to nonattainment or
interfering with maintenance of the
NAAQS. The commenter also claims
Maryland cannot rely on voluntary
control measures to address transport of
emissions. Therefore, the commenter
asserts EPA cannot approve the
Maryland infrastructure SIP and
Maryland must revise its SIP to address
section 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS.
Response 7: As EPA has stated
previously both in the NPR and this
final rulemaking, EPA is not taking any
final action with respect to the good
neighbor provisions in section
110(a)(2)(D)(i)(I). In the NPR, EPA did
not propose to take any action with
respect to Maryland’s obligations
pursuant to section 110(a)(2)(D)(i)(I) and
is not, in this rulemaking action, taking
any such action. Thus, the comments
relating to the substance and
approvability of Maryland’s good
neighbor provision in its 2008 ozone
NAAQS infrastructure SIP submission
are not relevant to this present
rulemaking action. As stated herein and
in the NPR, EPA will take later, separate
action on Maryland’s 2008 ozone
NAAQS infrastructure SIP submission
to address section 110(a)(2)(D)(i)(I).
EPA believes the statutory language in
the CAA supports our ability to approve
Maryland’s December 27, 2012 2008
ozone NAAQS infrastructure SIP while
taking later, separate action on the
portion of the SIP submittal which
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addresses Maryland’s obligation to
address section 110(a)(2)(D)(i)(I).
Section 110(k)(3) of the CAA authorizes
EPA to approve a plan in full,
disapprove it in full, or approve it in
part and disapprove it in part,
depending on the extent to which such
plan meets the requirements of the
CAA. This authority to approve the
states’ SIP revisions in separable parts
was included in the 1990 Amendments
to the CAA to overrule a decision in the
Court of Appeals for the Ninth Circuit
holding that EPA could not approve
individual measures in a plan
submission without either approving or
disapproving the plan as a whole. See
S. Rep. No. 101–228, at 22, 1990
U.S.C.C.A.N. 3385, 3408 (discussing the
express overruling of Abramowitz v.
EPA, 832 F.2d 1071 (9th Cir. 1987)).
As such, EPA interprets its authority
under section 110(k)(3), as affording
EPA the discretion to approve or
conditionally approve individual
elements of Maryland’s infrastructure
submission for the 2008 8-hour ozone
NAAQS, separate and apart from any
action with respect to the requirements
of section 110(a)(2)(D)(i)(I) with respect
to that NAAQS. EPA views discrete
infrastructure SIP requirements, such as
the requirements of 110(a)(2)(D)(i)(I), as
severable from the other infrastructure
elements and interprets section
110(k)(3) as allowing it to act on
individual severable measures in a plan
submission. The commenter raises no
compelling legal or environmental
rationale for an alternate interpretation.
Nothing in the Supreme Court’s April
2014 decision in EME Homer City alters
our interpretation that we may act on
individual severable measures including
the requirements of section
110(a)(2)(D)(i)(I) in a SIP submission.
See EPA v. EME Homer City Generation,
L.P., 134 S. Ct. 1584 (2014) (affirming a
state’s obligation to submit a SIP
revision addressing section
110(a)(2)(D)(i)(I) independent of EPA’s
action finding significant contribution
or interference with maintenance).
EPA’s proposed approval of the
Maryland December 27, 2012
infrastructure SIP submission for the
2008 ozone NAAQS for the portions
described in the NPR was therefore
appropriate.
Comment 8: The commenter indicates
that Maryland is not meeting the
requirements of CAA section 110(a)(2)(J)
and does not meet the requirements of
section 127 relating to public
notification. The commenter asserts
section 127 mandates a SIP contain
provisions to effectively notify the
public of NAAQS exceedances and
provides that the state must advise of
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62017
health hazards of pollution. The
commenter contends Maryland’s
Environmental Article, section
2–103.2(b) ensures air monitoring data
is available online but does not provide
public notification of NAAQS
exceedances. Additionally the
commenter questions whether the ozone
forecasts provided by Maryland online
provide information about ozone
NAAQS exceedances and says Maryland
must revise its infrastructure SIP to
ensure compliance with section
110(a)(2)(J).
Response 8: EPA disagrees with the
commenter that the Maryland SIP does
not meet the requirement of section
110(a)(2)(J) for public notification. In the
TSD accompanying the NPR, EPA
discussed Environment Article, section
2–103.2(b) of the Annotated Code of
Maryland, which requires public access
to all air monitoring data online via the
internet. By providing information to
the public on the internet for 8-hour
ozone levels, the State of Maryland
provides adequate public notification of
ozone levels and provides to the public
both in and outside the State of
Maryland information that can be used
to examine ozone levels and determine
when and where exceedances occurred
or might occur. The commenter does not
explain why this information is not
adequate ‘‘public notice’’ of
exceedances of the NAAQS. In addition
to providing access to the ozone monitor
data on the internet, the Maryland SIP
contains approved procedures for
permitting, attainment planning, and
emergency episodes which provide
information about the ozone air quality
conditions and about the emission
controls that may be implemented to
reduce ozone levels. Section 2–303(b) of
the Environment Article of the
Annotated Code of Maryland requires
that public hearings be held before
Maryland finalizes air quality
regulations. In the TSD, EPA also
identified other regulatory and statutory
provisions in Maryland which address
public notification and hearings
including COMAR 26.11.02 and
26.11.03 for permits and COMAR
26.11.04.02 which adopts 40 CFR 58.50
for reporting air quality to the public
several times per day. In addition,
COMAR 26.11.05.02 and 26.11.05.03
provide for public notification when
ozone levels may reach or exceed levels
considered injurious to human health.
The remaining provisions in COMAR
26.11.05 provide for responsive actions
to address such injurious accumulations
of air pollution. Maryland provides
historical information on exceedances
statewide for each calendar year at
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https://www.mde.state.md.us/programs/
Air/AirQualityMonitoring/Pages/
HistoricalData.aspx which contains
links to a statewide listing of recorded
exceedances at specific locations
including the Millington monitor in
Kent County. Maryland also provides air
quality forecasts at https://
www.mde.state.md.us/programs/Air/
AirQualityMonitoring/Pages/
AQForecast.aspx which also includes
information on actions the public can
take to reduce pollution and protect
their health.
As explained in the TSD
accompanying the NPR and herein,
Maryland’s ozone infrastructure SIP
submission clearly demonstrates that
Maryland regularly notifies the public of
instances or areas in which the 2008
ozone NAAQS was exceeded, advises
the public of the health hazards
associated with such exceedances, and
enhances public awareness of measures
that can prevent such exceedances and
of ways in which the public can
participate in regulatory and other
efforts to improve air quality. Thus, EPA
believes the Maryland statutory and
regulatory provisions discussed
previously and in the TSD provide
effective methods to provide
information and notification to the
public when the ozone standard may be
or has been exceeded.
V. Final Action
EPA is approving the following
infrastructure elements of Maryland’s
December 27, 2012 SIP revision for the
2008 ozone NAAQS: Section
110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E),
(F), (G), (H), (J), (K), (L), and (M) as a
revision to the Maryland SIP. This
rulemaking action does not include
Section 110(a)(2)(I) of the CAA which
pertains to the nonattainment
requirements of Part D Title I of the
CAA. This rulemaking action also does
not include any action on Section
110(a)(2)(D)(i)(I). EPA will take later
separate action on Maryland’s December
27, 2012 SIP submission addressing
Section 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS.
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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
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14:52 Oct 15, 2014
Jkt 235001
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
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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. 804(2).
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 December 15, 2014. 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, which
satisfies certain infrastructure
requirements of section 110(a)(2) of the
CAA for the 2008 ozone NAAQS for the
State of Maryland, 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, Ozone, Reporting and
recordkeeping requirements.
Dated: September 22, 2014.
William C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
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 § 52.1070, the table in paragraph
(e) is amended by adding the entry for
Infrastructure Requirements for the 2008
Ozone NAAQS at the end of the table to
read as follows:
■
§ 52.1070
*
Identification of plan.
*
*
(e)* * *
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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
Name of non-regulatory
SIP revision
*
Applicable geographic
area
*
Infrastructure Requirements for the 2008
Ozone NAAQS.
*
Statewide .....................
[FR Doc. 2014–24256 Filed 10–15–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2011–0969; FRL–9917–62–
Region 5]
Approval and Promulgation of Air
Quality Implementation Plans; Ohio;
Infrastructure SIP Requirements for
the 2008 Ozone NAAQS
Environmental Protection
Agency.
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve elements of a state
implementation plan (SIP) submission
from Ohio regarding the infrastructure
requirements of section 110 of the Clean
Air Act (CAA) for the 2008 ozone
National Ambient Air Quality Standards
(NAAQS). The infrastructure
requirements are designed to ensure that
the structural components of each
state’s air quality management program
are adequate to meet the state’s
responsibilities under the CAA. The
proposed rulemaking associated with
today’s final action was published on
July 25, 2014, and EPA received one
comment pertaining to infrastructure for
the 2008 ozone NAAQS during the
comment period, which ended on
August 25, 2014. The 2008 lead (Pb),
and 2010 Nitrogen Dioxide (NO2), and
2010 Sulfur Dioxide (SO2) infrastructure
SIPs were also addressed in the
proposed rulemaking but will be
addressed in a separate final
rulemaking.
DATES: This final rule is effective on
November 17, 2014.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2011–0969. All
documents in the docket are listed in
the www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
or other information whose disclosure is
rmajette on DSK2VPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
14:52 Oct 15, 2014
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State submittal
date
EPA approval date
*
*
12/27/12
*
*
10/16/14 [Insert Federal Register citation].
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly-available only in hard
copy. Publicly-available docket
materials are available either
electronically in www.regulations.gov or
in hard copy at the U.S. Environmental
Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This
facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
Federal holidays. We recommend that
you telephone Sarah Arra at (312) 886–
9401 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–9401,
arra.sarah@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This supplementary information
section is arranged as follows:
I. What is the background of these SIP
submissions?
A. What does this rulemaking address?
B. Why did the state make this SIP
submissions?
C. What is the scope of this rulemaking?
II. What is our response to comments
received on the proposed rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of these SIP
submissions?
A. What does this rulemaking address?
This rulemaking addresses
submissions from the Ohio
Environmental Protection Agency. The
state submitted the infrastructure SIP for
the 2008 ozone NAAQS on December
27, 2012, supplemented on June 7, 2013.
B. Why did the state make this SIP
submissions?
Under sections 110(a)(1) and (2) of the
CAA, states are required to submit
infrastructure SIPs to ensure that their
SIPs provide for implementation,
maintenance, and enforcement of the
NAAQS, including the 2008 ozone
NAAQS. These submissions must
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62019
Additional explanation
*
*
This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii),
(E), (F), (G), (H), (J), (K), (L), and (M)
contain any revisions needed for
meeting the applicable SIP requirements
of section 110(a)(2), or certifications that
their existing SIPs for the NAAQS
already meet those requirements.
EPA has highlighted this statutory
requirement in multiple guidance
documents, including the most recent
guidance document entitled ‘‘Guidance
on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and (2)’’ issued on
September 13, 2013.
C. What is the scope of this rulemaking?
EPA is acting upon the SIP
submission from Ohio that addresses
the infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the
2008 ozone NAAQS. The requirement
for states to make a SIP submission of
this type arises out of CAA section
110(a)(1). Pursuant to section 110(a)(1),
states must make SIP submissions
‘‘within 3 years (or such shorter period
as the Administrator may prescribe)
after the promulgation of a national
primary ambient air quality standard (or
any revision thereof),’’ and these SIP
submissions are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
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]]>Agencies
[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62010-62019]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24256]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2014-0177; FRL-9917-67-Region-3]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Infrastructure Requirements for the 2008 Ozone National
Ambient Air Quality Standards
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the State of Maryland
pursuant to the Clean Air Act (CAA). Whenever new or revised National
Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires
states to submit a plan for the implementation, maintenance and
enforcement of such NAAQS. The plan is required to address the basic
program elements including, but not limited to regulatory structure,
monitoring, modeling, legal authority, and adequate resources necessary
to assure attainment
[[Page 62011]]
and maintenance of the standards. These elements are referred to as
infrastructure requirements. The State of Maryland has made a submittal
addressing the infrastructure requirements for the 2008 ozone NAAQS.
DATES: This final rule is effective on November 17, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2014-0177. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., 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 either electronically through www.regulations.gov or in hard
copy for public inspection 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: Ruth Knapp, (215) 814-219, or by email
at knapp.ruth@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On May 2, 2014 (79 FR 25054), EPA published a notice of proposed
rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed
approval of several infrastructure elements to satisfy several
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS.
The formal SIP revision (12-12) was submitted by the State of Maryland
on December 27, 2012.
II. Summary of SIP Revision
In the NPR, EPA proposed approval of the following infrastructure
elements: Sections 110(a)(2)(A), (B), (C), D(i)(II), D(ii), (E), (F),
(G), (H), (J), (K), (L), and (M) of the CAA. The proposed rulemaking
does not include action on section 110(a)(2)(I) of the CAA which
pertains to the requirements of part D, Title I of the CAA as explained
in the NPR. The proposed rulemaking action also did not include any
action on Maryland's December 27, 2012 SIP submission addressing
section 110(a)(2)(D)(i)(I). EPA provided in the proposal that it will
later take separate action on Maryland's December 27, 2012 SIP
submission for the 2008 ozone NAAQS for section 110(a)(2)(D)(i)(I). The
rationale supporting EPA's proposed rulemaking action, including the
scope of infrastructure SIPs in general, is explained in the NPR and
the technical support document (TSD) accompanying the NPR and will not
be restated here. The TSD is available online at www.regulations.gov,
Docket ID Number EPA-R03-OAQ-2014-0177.
III. Infrastructure SIPS and Greenhouse Gases
With respect to elements (C) and (J) in section 110(a)(2) of the
CAA, EPA interprets the CAA to require each state to make an
infrastructure SIP submission for a new or revised NAAQS that
demonstrates that the air agency has a complete Prevention of
Significant Deterioration (PSD) permitting program meeting the current
requirements for all regulated New Source Review (NSR) pollutants. The
requirements of element (D)(i)(II) in Section 110(a)(2) which requires
a demonstration that emissions from sources in the state do not
interfere with the PSD program of another state, may also be satisfied
by demonstrating the air agency has a complete PSD permitting program
correctly addressing all regulated NSR pollutants. Maryland has shown
that it currently has a PSD program in place that covers all regulated
NSR pollutants, including greenhouse gases (GHGs).
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. 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 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 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 CFR 51.166(b)(48)(v)). 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. The
timing and content of subsequent EPA actions with respect to the EPA
regulations and state PSD program approvals are expected to be informed
by additional legal process before the United States Court of Appeals
for the District of Columbia Circuit. At this juncture, EPA is not
expecting states to have revised their PSD programs for purposes of
infrastructure SIP submissions and is only evaluating such submissions
to assure that the state's program correctly addresses GHGs consistent
with the Supreme Court's decision.
At present, EPA has determined the Maryland SIP is sufficient to
satisfy elements C, D(i)(II), and J of section 110(a)(2) with respect
to GHGs because the PSD permitting program 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. Although the
approved Maryland PSD permitting program may currently contain
provisions that are no longer necessary in light of the Supreme Court
decision, this does not render the infrastructure SIP submission
inadequate to satisfy elements (C), (D)(i)(II), and (J) in section
110(a)(2) of the CAA. The SIP contains the necessary PSD requirements
at this time, and the application of those requirements is not impeded
by the presence of other previously-approved provisions regarding the
permitting of sources of GHGs that EPA does not consider necessary at
this time in light of the Supreme Court decision. Accordingly, the
Supreme Court decision does not affect EPA's earlier proposed approval
of Maryland's 2008 ozone infrastructure SIP as to the requirements of
elements (C), (D)(i)(II), and (J) for Section 110(a)(2). EPA is taking
final action to approve these elements.
IV. Public Comments and EPA's Responses
EPA received two sets of comments on the May 2, 2014 proposed
rulemaking action on Maryland's 2008 ozone ``infrastructure'' SIP. The
[[Page 62012]]
comments were submitted by the State of Maryland and the Sierra Club.
The State of Maryland made a brief comment related to the subject
matter of transported emissions while Sierra Club made more substantive
comments on a variety of subjects including transport of emissions. A
full set of these comments is provided in the docket for today's final
rulemaking action.
A. Maryland's Comment
Comment: The State of Maryland inquired regarding EPA's plans to
take action on the transport portion of its 2008 ozone infrastructure
SIP submittal in light of the recent Supreme Court decision in EPA et
al v. EME Homer City Generation, L.P. et al, 134 S. Ct. 1584, 2014 U.S.
LEXIS 3108 (2014).\1\
---------------------------------------------------------------------------
\1\ The Maryland comment also inquired whether EPA would
withdraw prior approvals of ozone infrastructure SIPs for other
states which did not include action on section 110(a)(2)(D)(i)(I).
As Maryland's comment about other state SIPs and EPA rulemaking on
other states' SIPs is not relevant to this rulemaking, EPA need not
provide any further response to this comment.
---------------------------------------------------------------------------
Response: In this rulemaking, EPA is not taking final action with
respect to the SIP revision addressing the provisions in section
110(a)(2)(D)(i)(I) of the CAA--the portion of the good neighbor
provision which addresses emissions that significantly contribute to
nonattainment or interfere with maintenance of the NAAQS in another
state. EPA did not propose to take any action in the NPR with respect
to Maryland's obligations pursuant to section 110(a)(2)(D)(i)(I). As
indicated in EPA's proposal, EPA anticipates taking later, separate
action on the section 110(a)(2)(D)(i)(I) portion of Maryland's December
27, 2012 SIP submission for the 2008 ozone NAAQS.
B. Sierra Club Comments:
Comment 1: Sierra Club contends that EPA cannot approve the
Maryland 2008 ozone infrastructure SIP revision because the plain
language of section 110(a)(2)(A) of the CAA, legislative history of the
CAA, case law, EPA regulations, such as 40 CFR 51.112(a), and EPA
interpretations in rulemakings, require the inclusion of enforceable
emission limits in an infrastructure SIP to prevent NAAQS violations
\2\ in areas not designated nonattainment. Specifically, Sierra Club
cites air monitoring reports for Kent County, Maryland indicating
violations of the NAAQS based on 2010-2012 and 2011-2013 design values.
The commenter alleges that these violations demonstrate that the ozone
infrastructure SIP fails to impose necessary restrictions on ozone
precursor sources sufficient to ensure attainment and maintenance of
the 2008 ozone NAAQS and compliance with section 110(a)(2)(A). The
commenter claims Maryland must revise its infrastructure SIP to include
enforceable emission limits and other measures to ensure attainment and
maintenance of the 2008 ozone NAAQS. The commenter asserts the existing
emission limits applicable to coal plants in Maryland's SIP were not
intended to ensure maintenance of an 8-hour standard. The commenter
asserts that Maryland's infrastructure SIP relies on the Maryland
Healthy Air Act (HAA) for nitrogen oxide (NOX) limitations
on Maryland's coal-fired power plants yet the HAA imposes only annual
and ozone season caps on NOX at coal-fired power plants
while the 8-hour ozone NAAQS requires shorter emissions averaging
times. The commenter also urges EPA to encourage Maryland to
expeditiously finalize new regulations on coal-fired power plants which
Maryland is currently drafting which the commenter claims would require
installation and operation of state-of-the-art controls on the largest
contributors of NOX in Maryland. Until these new regulations
are finalized, the commenter claims ``Maryland has not tackled
emissions'' from the largest NOX sources and has not
demonstrated its SIP is sufficient to attain and maintain the 2008
ozone NAAQS. Therefore, the commenter states EPA cannot approve
Maryland's infrastructure SIP. Finally, the commenter states Maryland
should use its infrastructure SIP process to address current ozone
exceedances in Kent County and should prevent Kent County from being
designated nonattainment for the 2008 ozone NAAQS by adding appropriate
enforceable NOX emission limits on sources. The commenter
states EPA cannot approve the infrastructure SIP and Maryland must
amend its SIP to ensure the largest NOX sources cannot
contribute to exceedances of the 8-hour ozone NAAQS.
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\2\ The commenter frequently also uses the term ``exceedance''
in relation to the NAAQS. EPA believes that in many contexts the
commenter meant a ``violation'' of the NAAQS. In general, the term
exceedance means that the level of the pollutant is above the level
of the NAAQS. However, for the 2008 8-hour ozone NAAQS, the form of
the NAAQS allows some ``exceedances'' (levels above the 0.075 parts
per million (ppm) 8-hour average) in a three year period before an
area would be ``violating'' or ``not attaining'' the NAAQS.
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Response 1: EPA disagrees with the commenter that the statute is
clear on its face that infrastructure SIPs must include detailed
attainment and maintenance plans for all areas of the state and must be
disapproved if air quality data that became available late in the
process or after the SIP was due and submitted changes the status of
one or more areas within the state. The commenter's specific arguments
that the statutory language, legislative history, case law, EPA
regulations, and prior rulemaking actions by EPA mandate the narrow
interpretation they advocate are addressed below in subsections (1)
through (5) of this response. EPA believes that section 110(a)(2)(A) is
reasonably interpreted to require states to submit SIPs that reflect
the first step in their planning for attaining and maintaining a new or
revised NAAQS and that they contain enforceable control measures and a
demonstration that the state has the available tools and authority to
develop and implement plans to attain and maintain the NAAQS.
As an initial matter, EPA disagrees that air quality monitoring
data that became available, as here, four or more years following
promulgation of the 2008 ozone NAAQS and shortly after the SIP was
submitted in December 2012 provides a basis for disapproving the
Maryland ozone infrastructure SIP. States must develop SIPs based on
the information they have during the SIP development process, which
preceded December 2012 (when Maryland submitted its SIP), and data that
becomes available near the end of that process or after that process is
completed cannot undermine the reasonable assumptions that were made by
the state based on the information it had available as it developed the
plan. Thus, the design values for 2012 and 2013 cited by the commenter
(based respectively on the three-years of data from 2010-2012 and 2011-
2013) should not be considered in determining whether the SIP should be
approved.\3\ The suggestion that Maryland's ozone infrastructure SIP
must include measures addressing violations of the standard that did
not occur until shortly before or after the SIP was due and submitted,
as is the case here, cannot be supported. The CAA provides states with
three years to develop infrastructure SIPs and states cannot reasonably
be expected to address the annual change in an area's design value for
each year over that period, nor to predict the air quality data in
periods after development and submission of the SIPs. Moreover, the CAA
recognizes and has provisions to address changes in air quality over
time, such as an area slipping from attainment to nonattainment or
changing from nonattainment to attainment. These
[[Page 62013]]
include provisions providing for redesignation in section 107(d) and
provisions in section 110(k)(5) allowing EPA to call on the state to
revise its SIP, as appropriate.
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\3\ The design values for 2012 and 2013 were certified in April
2013 and April 2014 respectively.
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The commenter suggests that EPA must disapprove the Maryland ozone
infrastructure SIP because the fact that an area in Maryland now has
air quality data slightly above the standard proves that the
infrastructure SIP is inadequate to demonstrate attainment and
maintenance for that area.\4\ EPA disagrees with the commenter because
EPA does not believe that section 110(a)(2)(A) requires detailed
planning SIPs demonstrating either attainment or maintenance for
specific geographic areas of the state. The infrastructure SIP is
triggered by promulgation of the NAAQS, not designation. Moreover,
infrastructure SIPs are due three years following promulgation of the
NAAQS and designations are not due until two years (or in some cases
three years) following promulgation of the NAAQS. Thus, during a
significant portion of the period that a state has available for
developing the infrastructure SIP, it does not know what the
designation will be for individual areas of the state.\5\ In light of
the structure of the CAA, EPA's long-standing position regarding
infrastructure SIPs is that they are general planning SIPs to ensure
that the state has adequate resources and authority to implement a
NAAQS in general throughout the state and not detailed attainment and
maintenance plans for each individual area of the state.
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\4\ EPA notes that preliminary monitoring data for 2014
indicates that the 2012-2014 design value for Kent County, Maryland
will meet the 2008 ozone NAAQS. The 2014 data is not complete,
quality assured or certified at this time.
\5\ While it is true that there may be some monitors within a
state with values so high as to make a nonattainment designation of
the county with that monitor almost a certainty, the geographic
boundaries of the nonattainment area associated with that monitor
would not be known until EPA issues final designations. Moreover,
the area of concern to the commenter does not fit that description
in any event.
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EPA's interpretation that infrastructure SIPs are more general
planning SIPs is consistent with the statute as understood in light of
its history and structure. When Congress enacted the CAA in 1970, it
did not include provisions requiring states and the EPA to label areas
as attainment or nonattainment. Rather, states were required to include
all areas of the state in ``air quality control regions'' (AQCRs) and
section 110 set forth the core substantive planning provisions for
these AQCRs. At that time, Congress anticipated that states would be
able to address air pollution quickly pursuant to the very general
planning provisions in section 110 and could bring all areas into
compliance with the NAAQS within five years. Moreover, at that time,
section 110(a)(2)(A)(i) specified that the section 110 plan provide for
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the
plan must include ``emission limitations, schedules, and timetables for
compliance with such limitations, and such other measures as may be
necessary to insure attainment and maintenance [of the NAAQS].'' In
1977, Congress recognized that the existing structure was not
sufficient and many areas were still violating the NAAQS. At that time,
Congress for the first time added provisions requiring states and EPA
to identify whether areas of the state were violating the NAAQS (i.e.,
were nonattainment) or were meeting the NAAQS (i.e., were attainment)
and established specific planning requirements in section 172 for areas
not meeting the NAAQS. In 1990, many areas still had air quality not
meeting the NAAQS and Congress again amended the CAA and added yet
another layer of more prescriptive planning requirements for each of
the NAAQS, with the primary provisions for ozone in section 182. At
that same time, Congress modified section 110 to remove references to
the section 110 SIP providing for attainment, including removing pre-
existing section 110(a)(2)(A) in its entirety and renumbering
subparagraph (B) as section 110(a)(2)(A). Additionally, Congress
replaced the clause ``as may be necessary to insure attainment and
maintenance [of the NAAQS]'' with ``as may be necessary or appropriate
to meet the applicable requirements of this chapter.'' Thus, the CAA
has significantly evolved in the more than 40 years since it was
originally enacted. While at one time section 110 did provide the only
detailed SIP planning provisions for states and specified that such
plans must provide for attainment of the NAAQS, under the structure of
the current CAA, section 110 is only the initial stepping-stone in the
planning process for a specific NAAQS. And, more detailed, later-
enacted provisions govern the substantive planning process, including
planning for attainment of the NAAQS.
EPA shares the commenter's concern regarding the area that is
monitoring violations of the 2008 8-hour ozone NAAQS based on its 2012
and 2013 design values and is working with state and local agencies to
address such violations. By approving Maryland's infrastructure SIP
revision, EPA is affirming that Maryland has sufficient authority to
take the types of actions required by the CAA in order to bring such
areas back into attainment. For all of these reasons, EPA disagrees
with the commenter that EPA must disapprove an infrastructure SIP
revision if there are monitored violations of the standard in the state
and the section 110(a)(2)(A) revision does not have detailed plans for
demonstrating how the state will bring that area into attainment or for
demonstrating maintenance. EPA believes the state has met the basic
structural SIP requirements appropriate at the point in time EPA is
acting upon the submittal. EPA disagrees with the commenter that
Maryland should use the infrastructure SIP required by section
110(a)(1) and (2) of the CAA to address any ``exceedances'' of the 2008
ozone NAAQS or to avoid a designation of nonattainment for Kent County.
Other provisions in part D of the CAA address the attainment planning
process while section 107(d) of the CAA addresses designations of areas
for attainment or nonattainment with a NAAQS. While Maryland may decide
to regulate additional sources for pursuing emission reductions in the
State to strengthen its SIP, such actions are not relevant to our
approval of Maryland's infrastructure SIP in accordance with section
110 of the CAA. As discussed previously, our inquiry at this juncture
is whether Maryland's SIP has the required structural elements.
Moreover, as addressed in EPA's proposed approval for this rule,
Maryland identified existing emission reduction measures in the SIP
that control emissions of volatile organic compounds (VOCs) and
NOX. Maryland's SIP revision reflects several provisions
that have the ability to reduce ground level ozone and its precursors.
The Maryland SIP relies on measures and programs used to address
previous ozone NAAQS. Because there is no substantive difference
between the previous ozone NAAQS and the more recent ozone NAAQS, other
than the level of the standard, the provisions relied on by Maryland
will provide benefits for the new NAAQS; in other words, the measures
reduce overall ground-level ozone and its precursors and are not
limited to reducing ozone levels to meet one specific NAAQS.\6\
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\6\ Thus, EPA disagrees with the commenter's assertion that
Maryland has not addressed the largest emitters of NOX in
the State. Maryland's HAA specifically imposed NOX
emission limits on coal-fired power plants in Maryland.
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Finally, EPA appreciates the commenter's support of Maryland's
pursuit of additional NOX emission
[[Page 62014]]
limitations at coal-fired power plants in Maryland. Additional
NOX regulations on emissions will likely strengthen the
Maryland SIP and lead to additional reductions in NOX
emissions benefiting Maryland. However, EPA does not believe that
approval of the infrastructure SIP is contingent on Maryland adopting
this rule. Congress established the CAA such that each state has
primary responsibility for assuring air quality within the state and
determines an emission reduction program for its areas subject to EPA
approval, with such approval dependent upon whether the SIP as a whole
meets the applicable requirements of the CAA. See Commonwealth of
Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing
Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123
(DCCir.1995)). EPA cannot condition approval of the Maryland
infrastructure SIP upon inclusion of a particular emission reduction
program as long as the SIP otherwise meets the requirements of the CAA.
As explained in the NPR and the TSD, Maryland's ozone infrastructure
SIP meets the requirements in section 110(a)(2).\7\
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\7\ As stated previously, EPA will take later, separate action
on Maryland's ozone infrastructure SIP submittal regarding the
portion of the SIP submittal addressing section 110(a)(2)(D)(i)(I).
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1. The Plain Language of the CAA
Comment 2: The commenter states that on its face the CAA ``requires
I-SIPs to be adequate to prevent exceedances of the NAAQS.'' In
support, the commenter quotes the language in section 110(a)(1) which
requires states to adopt a plan for implementation, maintenance, and
enforcement of the NAAQS and the language in section 110(a)(2)(A) which
requires SIPs to include enforceable emissions limitations as may be
necessary to meet the requirements of the CAA and which commenter
claims include the maintenance plan requirement. Sierra Club notes the
CAA definition of emission limit and reads these provisions together to
require ``enforceable emission limits on source emissions sufficient to
ensure maintenance of the NAAQS.''
Response 2: EPA disagrees that section 110 is clear ``on its face''
and must be interpreted in the manner suggested by Sierra Club. As
explained previously, section 110 is only one provision that is part of
the complicated structure governing implementation of the NAAQS program
under the CAA, as amended in 1990, and it must be interpreted in the
context of not only that structure, but also of the historical
evolution of that structure. In light of the revisions to section 110
since 1970 and the later-promulgated and more specific planning
requirements of the CAA, EPA interprets the requirement in section
110(a)(2)(A) that the plan provide for ``implementation, maintenance
and enforcement'' to mean that the infrastructure SIP must contain
enforceable emission limits that will aid in attaining and/or
maintaining the NAAQS and that the state demonstrate that it has the
necessary tools to implement and enforce a NAAQS, such as adequate
state personnel and an enforcement program. With regard to the
requirement for emission limitations, EPA has interpreted this to mean
for purposes of section 110, that the state may rely on measures
already in place to address the pollutant at issue or any new control
measures that the state may choose to submit. As EPA stated in
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated September
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of
an infrastructure SIP submission is to assure that the air agency's SIP
contains the necessary structural requirements for the new or revised
NAAQS, whether by establishing that the SIP already contains the
necessary provisions, by making a substantive SIP revision to update
the SIP, or both. Overall, the infrastructure SIP submission process
provides an opportunity . . . to review the basic structural
requirements of the air agency's air quality management program in
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p.
2.
The commenter makes general allegations that Maryland does not have
sufficient protective measures addressing ozone pollution. EPA
addressed the adequacy of Maryland's infrastructure SIP for
110(a)(2)(A) for purposes of meeting applicable requirements of the CAA
in the TSD accompanying the May 2, 2014 NPR and explained why the SIP
includes enforceable emission limitations and other control measures.
These include applicable portions of COMAR 26.11 such as COMAR
26.11.02, and COMAR 26.11.06.14. As discussed in the TSD accompanying
the May 2, 2014 NPR, Maryland's enforceable emission limits, control
measures, and related SIP approved regulations can be found in 40 CFR
52.1070. These include enforceable emissions limits, control measures,
fees, and compliance schedules adopted for the 1-hour and 1997 8-hour
ozone NAAQS but which will also provide ozone reductions benefits for
the 2008 ozone NAAQS.
2. The Legislative History of the CAA
Comment 3: Sierra Club cites two excerpts from the legislative
history of the CAA Amendments of 1970 claiming they support an
interpretation that SIP revisions under CAA section 110 must include
emissions limitations sufficient to show maintenance of the NAAQS in
all areas of Maryland. Sierra Club also contends that the legislative
history of the CAA supports the interpretation that infrastructure SIPs
under section 110(a)(2) must include enforceable emission limitations,
citing the Senate Committee Report and the subsequent Senate Conference
Report accompanying the 1970 CAA.
Response 3: As provided in the previous response, the CAA, as
enacted in 1970, including its legislative history, cannot be
interpreted in isolation from the later amendments that refined the
structure of the Act and deleted relevant language from section 110
concerning demonstrating attainment. In any event, the two excerpts of
legislative history the commenter cites merely provide that states
should include enforceable emission limits in their SIPs and they do
not mention or otherwise address whether states are required to include
maintenance plans for all areas of the state as part of the
infrastructure SIP. As provided earlier in this rulemaking action, the
TSD for the proposed rule explains why the SIP includes enforceable
emissions limitations and meets the requirement in section
110(a)(2)(A).
3. Case Law
Comment 4: Sierra Club also discusses several cases applying the
CAA which Sierra Club claims support their contention that courts have
been clear that section 110(a)(2)(A) requires enforceable emissions
limits in infrastructure SIPs to prevent violations of the NAAQS.
Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78
(1975), addressing the requirement for ``emission limitations'' and
stating that emission limitations ``are specific rules to which
operators of pollution sources are subject, and which if enforced
should result in ambient air which meet the national standards.''
Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v.
EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA
directs EPA to withhold approval of a SIP where it does not ensure
maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d
123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the
[[Page 62015]]
CAA of 1970. The commenter contends that the 1990 Amendments do not
alter how courts have interpreted the requirements of section 110,
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also
stated that ``SIPs must include certain measures Congress specified''
to ensure attainment of the NAAQS. The commenter also quotes several
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to
develop implementation plans--SIPs--that `assure' attainment and
maintenance of [NAAQS] through enforceable emissions limitations'');
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be
achieved and maintained within each air quality control region in the
State''). Finally, the commenter cites Mich. Dept. of Envtl. Quality v.
Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may
not approve a SIP revision that does not demonstrate how the rules
would not interfere with attainment and maintenance of the NAAQS.
Response 4: None of the cases the commenter cites support the
commenter's contention that section 110(a)(2)(A) is clear that
infrastructure SIPs must include detailed plans providing for
attainment and maintenance of the NAAQS in all areas of the state nor
do they shed light on how section 110(a)(2)(A) may reasonably be
interpreted. With the exception of Train, none of the cases the
commenter cites concerned the interpretation of CAA section
110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the
courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the
pre-1990 CAA) in the background section of decisions in the context of
a challenge to an EPA action on revisions to a SIP that was required
and approved as meeting other provisions of the CAA or in the context
of an enforcement action.
In Train, 421 U.S. 60, a case that was decided almost 40 years ago,
the Court was addressing a state revision to an attainment plan
submission made pursuant to section 110 of the CAA, the sole statutory
provision at that time regulating such submissions. The issue in that
case concerned whether changes to requirements that would occur before
attainment was required were variances that should be addressed
pursuant to the provision governing SIP revisions or were
``postponements'' that must be addressed under section 110(f) of the
CAA of 1970, which contained prescriptive criteria. The Court concluded
that EPA reasonably interpreted section 110(f) not to restrict a
state's choice of the mix of control measures needed to attain the
NAAQS and that revisions to SIPs that would not impact attainment of
the NAAQS by the attainment date were not subject to the limits of
section 110(f). Thus the issue was not whether a section 110 SIP needs
to provide for attainment or whether emissions limits are needed as
part of the SIP; rather the issue was which statutory provision
governed when the state wanted to revise the emission limits in its SIP
if such revision would not impact attainment or maintenance of the
NAAQS. To the extent the holding in the case has any bearing on how
section 110(a)(2)(A) might be interpreted, it is important to realize
that in 1975, when the opinion was issued, section 110(a)(2)(B) (the
predecessor to section 110(a)(2)(A)) expressly referenced the
requirement to attain the NAAQS, a reference that was removed in 1990.
The decision in Pennsylvania Dept. of Envtl. Resources was also
decided based on the pre-1990 provision of the CAA. At issue was
whether EPA properly rejected a revision to an approved plan where the
inventories relied on by the state for the updated submission had gaps.
The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of
EPA's disapproval, but did not provide any interpretation of that
provision. Yet, even if the Court had interpreted that provision, EPA
notes that it was modified by Congress in 1990; thus, this decision has
little bearing on the issue here.
At issue in Mision Industrial, 547 F.2d 123, was the definition of
``emissions limitation'' not whether section 110 requires the state to
demonstrate how all areas of the state will attain and maintain the
NAAQS as part of their infrastructure SIPs. The language from the
opinion the commenter quotes does not interpret but rather merely
describes section 110(a)(2)(A). The commenter does not raise any
concerns about whether the measures relied on by the state in the
infrastructure SIP are ``emissions limitations'' and the decision in
this case has no bearing here.\8\ In Mont. Sulphur & Chem. Co., 666
F.3d 1174, the Court was reviewing a federal implementation plan that
EPA promulgated after a long history of the state failing to submit an
adequate state implementation plan. The Court cited generally to
sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs
should assure attainment and maintenance of NAAQS through emission
limitations but this language was not part of the Court's holding in
the case. The commenter suggests that Alaska Dept. of Envtl.
Conservation, 540 U.S. 461, stands for the proposition that the 1990
CAA Amendments do not alter how courts interpret section 110. This
claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A),
which, as noted previously, differs from the pre-1990 version of that
provision and the Court makes no mention of the changed language.
Furthermore, the commenter also quotes the Court's statement that
``SIPs must include certain measures Congress specified'' but that
statement specifically referenced the requirement in section
110(a)(2)(C), which requires an enforcement program and a program for
the regulation of the modification and construction of new sources.
Notably, at issue in that case was the state's ``new source''
permitting program, not its infrastructure SIP.
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\8\ While the commenter does contend that the State shouldn't be
allowed to rely on emission reductions that were developed for the
prior ozone standards (which we address above), it does not claim
that any of the measures are not ``emissions limitations'' within
the definition of the CAA.
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Two of the cases the commenter cites, Mich. Dept. of Envtl.
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section
110(l), the provision governing ``revisions'' to plans, and not the
initial plan submission requirement under section 110(a)(2) for a new
or revised NAAQS, such as the infrastructure SIP at issue in this
instance. In those cases, the courts cited to section 110(a)(2)(A)
solely for the purpose of providing a brief background of the CAA.
4. EPA Regulations, Such as 40 CFR 51.112(a)
Comment 5: The commenter cites to 40 CFR 51.112(a), providing that
``[e]ach plan must demonstrate that the measures, rules and regulations
contained in it are adequate to provide for the timely attainment and
maintenance of the [NAAQS].'' The commenter asserts that this
regulation requires all SIPs to include emissions limits necessary to
ensure attainment of the NAAQS. The commenter states that ``[a]lthough
these regulations were developed before the Clean Air Act separated
infrastructure SIPs from nonattainment SIPs--a process that began with
the 1977 amendments and was completed by the 1990 amendments--the
regulations apply to I-SIPs.'' The commenter relies on a statement in
the preamble to the 1986 action restructuring and consolidating
[[Page 62016]]
provisions in part 51, in which EPA stated that ``[i]t is beyond the
scope of th[is] rulemaking to address the provisions of Part D of the
Act . . . .'' 51 FR 40656, 40656 (November 7, 1986).
Response 5: The commenter's reliance on 40 CFR 51.112 to support
its argument that infrastructure SIPs must contain emission limits
``adequate to prohibit NAAQS exceedances'' and adequate or sufficient
to ensure the maintenance of the NAAQS is not supported. As an initial
matter, EPA notes and the commenter recognizes this regulatory
provision was initially promulgated and ``restructured and
consolidated'' prior to the CAA Amendments of 1990, in which Congress
removed all references to ``attainment'' in section 110(a)(2)(A). And,
it is clear on its face that 40 CFR 51.112 applies to plans
specifically designed to attain the NAAQS. EPA interprets these
provisions to apply when states are developing ``control strategy''
SIPs such as the detailed attainment and maintenance plans required
under other provisions of the CAA, as amended in 1977 and again in
1990, such as section 175A and 182. The commenter suggests that these
provisions must apply to section 110 SIPs because in the preamble to
EPA's action ``restructuring and consolidating'' provisions in part 51,
EPA stated that the new attainment demonstration provisions in the 1977
Amendments to the CAA were ``beyond the scope'' of the rulemaking. It
is important to note, however, that EPA's action in 1986 was not to
establish new substantive planning requirements, but rather was meant
merely to consolidate and restructure provisions that had previously
been promulgated. EPA noted that it had already issued guidance
addressing the new ``Part D'' attainment planning obligations. Also, as
to maintenance regulations, EPA expressly stated that it was not making
any revisions other than to re-number those provisions. 51 FR at 40657.
Although EPA was explicit that it was not establishing requirements
interpreting the provisions of new ``Part D'' of the CAA, it is clear
that the regulations being restructured and consolidated were intended
to address control strategy plans. In the preamble, EPA clearly stated
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy:
SOx and PM (portion)''), 51.14 (``Control strategy: CO, HC,
Ox and NO2 (portion)''), 51.80 (``Demonstration
of attainment: Pb (portion)''), and 51.82 (``Air quality data
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112
contains consolidated provisions that are focused on control strategy
SIPs, and the infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
Comment 6: The commenter also references two prior EPA rulemaking
actions where EPA disapproved or proposed to disapprove SIPs and
claimed they were actions in which EPA relied on section 110(a)(2)(A)
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first
points to a 2006 partial approval and partial disapproval of revisions
to Missouri's existing plan addressing the sulfur dioxide
(SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A)
as a basis for disapproving a revision to the State plan on the basis
that the State failed to demonstrate the SIP was sufficient to ensure
maintenance of the SO2 NAAQS after revision of an emission
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates
the rules in a SIP are adequate to attain the NAAQS. Second, Sierra
Club cites a 2013 disapproval of a revision to the SO2 SIP
for Indiana, where the revision removed an emission limit that applied
to a specific emissions source at a facility in the State. In its
proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to
reject the revision, stating that the State had not demonstrated that
the emission limit was ``redundant, unnecessary, or that its removal
would not result in or allow an increase in actual SO2
emissions.'' EPA further stated in that proposed disapproval that the
State had not demonstrated that removal of the limit would not ``affect
the validity of the emission rates used in the existing attainment
demonstration.'' Additionally, the commenter states EPA in its
September 2013 Infrastructure SIP Guidance purported to postpone
certain start-up, shutdown, and malfunction (SSM) requirements but did
not postpone other infrastructure SIP requirements, which the commenter
asserts indicates the CAA requires infrastructure SIPs to include
enforceable limits adequate to ensure attainment of NAAQS and to impose
limits without delay.
Response 6: EPA does not agree that the two prior actions
referenced by the commenter establish how EPA reviews infrastructure
SIPs. It is clear from both the final Missouri rule and the proposed
and final Indiana rule that EPA was not reviewing initial
infrastructure SIP submissions under section 110 of the CAA, but rather
reviewing revisions that would relax the stringency of an already
approved SIP. EPA's partial approval and partial disapproval of
revisions to restrictions on emissions of sulfur compounds for the
Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an
infrastructure SIP. The Indiana action provides even less support for
the commenter's position. In that case, the State had an approved
SO2 attainment plan and was seeking to remove from the SIP
provisions relied on as part of the modeled attainment demonstration.
EPA proposed that the State had failed to demonstrate under section
110(l) of the CAA why the SIP revision would not result in increased
SO2 emissions and thus interfere with attainment of the
NAAQS. Nothing in that rulemaking addresses the necessary content of
the initial infrastructure SIP for a new or revised NAAQS. Rather, it
is simply applying the clear statutory requirement that a state must
demonstrate why a revision to an approved SIP will not interfere with
attainment of the NAAQS.
Finally, EPA disagrees with the comment regarding the
Infrastructure SIP Guidance. The commenter correctly asserts that EPA
in its September 2013 Infrastructure SIP Guidance clearly stated that
EPA does not interpret section 110(a)(2) to require state air agencies
and the EPA to address potentially deficient pre-existing SSM SIP
provisions when acting on an infrastructure SIP particularly because
EPA has alternative tools in the CAA to address such deficiencies.
Infrastructure SIP Guidance at pgs. 19-20. However, this affirmative
statement regarding potential SSM deficiencies in a state's SIP cannot
be construed to mean or imply EPA cannot approve an infrastructure SIP
without a demonstration that the SIP contains adequate enforceable
limits to ensure attainment with a NAAQS. For all of the reasons
discussed previously, we do not interpret section 110(a)(2)(A) to
require that the state demonstrate attainment of the NAAQS. As
explained above, and similar to our position on SSM deficiencies, the
CAA establishes separate provisions that govern attainment SIPs for
areas. As discussed previously, EPA reviews infrastructure SIPs to
ensure a SIP has the appropriate structural requirements.
Comment 7: The commenter states that EPA must evaluate Maryland's
provisions submitted in the 2008 ozone NAAQS infrastructure SIP to
address section 110(a)(2)(D)(i)(I) and determine whether they are
sufficient enough to meet requirements of section 110(a)(2)(D)(i)(I).
In light of the Supreme Court's decision in EME Homer City in April
2014, the commenter argues that the EPA should act quickly to address
pollution that may be contributing to another state's nonattainment or
[[Page 62017]]
interfering with another state's maintenance of the 2008 ozone NAAQS.
The commenter argues EPA must evaluate whether Maryland addresses the
section 110(a)(2)(D)(i)(I) requirements regarding emissions that would
contribute to exceedances of or interfere with the maintenance of the
2008 ozone NAAQS and cannot delay its review of Maryland's provisions
to address such requirements. The commenter states EPA must disapprove
the Maryland infrastructure SIP transport provision and adequately
address the impact of ozone emissions from Maryland on other states.
Because Maryland's transport SIP submittal relies on CSAPR and the HAA,
the commenter asserts EPA should determine Maryland has not adequately
addressed its cross-state impacts. The commenter claims CSAPR only
addresses the less stringent 1997 ozone NAAQS and claims that even
Maryland said additional reductions are needed for 2008 ozone NAAQS
beyond CSAPR. The commenter also claims Maryland's HAA was developed
under the ``outdated'' 1997 ozone NAAQS and claims Maryland's
reductions from the HAA do not demonstrate Maryland is not contributing
to nonattainment or interfering with maintenance of the NAAQS. The
commenter also claims Maryland cannot rely on voluntary control
measures to address transport of emissions. Therefore, the commenter
asserts EPA cannot approve the Maryland infrastructure SIP and Maryland
must revise its SIP to address section 110(a)(2)(D)(i)(I) for the 2008
ozone NAAQS.
Response 7: As EPA has stated previously both in the NPR and this
final rulemaking, EPA is not taking any final action with respect to
the good neighbor provisions in section 110(a)(2)(D)(i)(I). In the NPR,
EPA did not propose to take any action with respect to Maryland's
obligations pursuant to section 110(a)(2)(D)(i)(I) and is not, in this
rulemaking action, taking any such action. Thus, the comments relating
to the substance and approvability of Maryland's good neighbor
provision in its 2008 ozone NAAQS infrastructure SIP submission are not
relevant to this present rulemaking action. As stated herein and in the
NPR, EPA will take later, separate action on Maryland's 2008 ozone
NAAQS infrastructure SIP submission to address section
110(a)(2)(D)(i)(I).
EPA believes the statutory language in the CAA supports our ability
to approve Maryland's December 27, 2012 2008 ozone NAAQS infrastructure
SIP while taking later, separate action on the portion of the SIP
submittal which addresses Maryland's obligation to address section
110(a)(2)(D)(i)(I). Section 110(k)(3) of the CAA authorizes EPA to
approve a plan in full, disapprove it in full, or approve it in part
and disapprove it in part, depending on the extent to which such plan
meets the requirements of the CAA. This authority to approve the
states' SIP revisions in separable parts was included in the 1990
Amendments to the CAA to overrule a decision in the Court of Appeals
for the Ninth Circuit holding that EPA could not approve individual
measures in a plan submission without either approving or disapproving
the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N.
3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832
F.2d 1071 (9th Cir. 1987)).
As such, EPA interprets its authority under section 110(k)(3), as
affording EPA the discretion to approve or conditionally approve
individual elements of Maryland's infrastructure submission for the
2008 8-hour ozone NAAQS, separate and apart from any action with
respect to the requirements of section 110(a)(2)(D)(i)(I) with respect
to that NAAQS. EPA views discrete infrastructure SIP requirements, such
as the requirements of 110(a)(2)(D)(i)(I), as severable from the other
infrastructure elements and interprets section 110(k)(3) as allowing it
to act on individual severable measures in a plan submission. The
commenter raises no compelling legal or environmental rationale for an
alternate interpretation. Nothing in the Supreme Court's April 2014
decision in EME Homer City alters our interpretation that we may act on
individual severable measures including the requirements of section
110(a)(2)(D)(i)(I) in a SIP submission. See EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014) (affirming a state's
obligation to submit a SIP revision addressing section
110(a)(2)(D)(i)(I) independent of EPA's action finding significant
contribution or interference with maintenance).
EPA's proposed approval of the Maryland December 27, 2012
infrastructure SIP submission for the 2008 ozone NAAQS for the portions
described in the NPR was therefore appropriate.
Comment 8: The commenter indicates that Maryland is not meeting the
requirements of CAA section 110(a)(2)(J) and does not meet the
requirements of section 127 relating to public notification. The
commenter asserts section 127 mandates a SIP contain provisions to
effectively notify the public of NAAQS exceedances and provides that
the state must advise of health hazards of pollution. The commenter
contends Maryland's Environmental Article, section 2-103.2(b) ensures
air monitoring data is available online but does not provide public
notification of NAAQS exceedances. Additionally the commenter questions
whether the ozone forecasts provided by Maryland online provide
information about ozone NAAQS exceedances and says Maryland must revise
its infrastructure SIP to ensure compliance with section 110(a)(2)(J).
Response 8: EPA disagrees with the commenter that the Maryland SIP
does not meet the requirement of section 110(a)(2)(J) for public
notification. In the TSD accompanying the NPR, EPA discussed
Environment Article, section 2-103.2(b) of the Annotated Code of
Maryland, which requires public access to all air monitoring data
online via the internet. By providing information to the public on the
internet for 8-hour ozone levels, the State of Maryland provides
adequate public notification of ozone levels and provides to the public
both in and outside the State of Maryland information that can be used
to examine ozone levels and determine when and where exceedances
occurred or might occur. The commenter does not explain why this
information is not adequate ``public notice'' of exceedances of the
NAAQS. In addition to providing access to the ozone monitor data on the
internet, the Maryland SIP contains approved procedures for permitting,
attainment planning, and emergency episodes which provide information
about the ozone air quality conditions and about the emission controls
that may be implemented to reduce ozone levels. Section 2-303(b) of the
Environment Article of the Annotated Code of Maryland requires that
public hearings be held before Maryland finalizes air quality
regulations. In the TSD, EPA also identified other regulatory and
statutory provisions in Maryland which address public notification and
hearings including COMAR 26.11.02 and 26.11.03 for permits and COMAR
26.11.04.02 which adopts 40 CFR 58.50 for reporting air quality to the
public several times per day. In addition, COMAR 26.11.05.02 and
26.11.05.03 provide for public notification when ozone levels may reach
or exceed levels considered injurious to human health. The remaining
provisions in COMAR 26.11.05 provide for responsive actions to address
such injurious accumulations of air pollution. Maryland provides
historical information on exceedances statewide for each calendar year
at
[[Page 62018]]
https://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/HistoricalData.aspx which contains links to a statewide listing of
recorded exceedances at specific locations including the Millington
monitor in Kent County. Maryland also provides air quality forecasts at
https://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/AQForecast.aspx which also includes information on actions the public
can take to reduce pollution and protect their health.
As explained in the TSD accompanying the NPR and herein, Maryland's
ozone infrastructure SIP submission clearly demonstrates that Maryland
regularly notifies the public of instances or areas in which the 2008
ozone NAAQS was exceeded, advises the public of the health hazards
associated with such exceedances, and enhances public awareness of
measures that can prevent such exceedances and of ways in which the
public can participate in regulatory and other efforts to improve air
quality. Thus, EPA believes the Maryland statutory and regulatory
provisions discussed previously and in the TSD provide effective
methods to provide information and notification to the public when the
ozone standard may be or has been exceeded.
V. Final Action
EPA is approving the following infrastructure elements of
Maryland's December 27, 2012 SIP revision for the 2008 ozone NAAQS:
Section 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E), (F), (G), (H),
(J), (K), (L), and (M) as a revision to the Maryland SIP. This
rulemaking action does not include Section 110(a)(2)(I) of the CAA
which pertains to the nonattainment requirements of Part D Title I of
the CAA. This rulemaking action also does not include any action on
Section 110(a)(2)(D)(i)(I). EPA will take later separate action on
Maryland's December 27, 2012 SIP submission addressing Section
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.
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 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.
804(2).
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 December 15, 2014. 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, which satisfies certain infrastructure
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS
for the State of Maryland, 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, Ozone, Reporting and recordkeeping requirements.
Dated: September 22, 2014.
William C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart V--Maryland
0
2. In Sec. 52.1070, the table in paragraph (e) is amended by adding
the entry for Infrastructure Requirements for the 2008 Ozone NAAQS at
the end of the table to read as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(e)* * *
[[Page 62019]]
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable State Additional
revision geographic area submittal date EPA approval date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * * * *
Infrastructure Requirements for Statewide.......... 12/27/12 10/16/14 [Insert This action
the 2008 Ozone NAAQS. Federal Register addresses the
citation]. following CAA
elements:
110(a)(2)(A), (B),
(C), (D)(i)(II),
D(ii), (E), (F),
(G), (H), (J),
(K), (L), and (M)
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[FR Doc. 2014-24256 Filed 10-15-14; 8:45 am]
BILLING CODE 6560-50-P
