Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard, 3982-3986 [2018-01518]
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MASSACHUSETTS NON REGULATORY—Continued
Applicable
geographic or
nonattainment area
State submittal date/
effective date
Statewide .................
6/1/2009 ...................
01/25/2013, 78 FR 5292
Statewide .................
8/9/2012 ...................
9/19/2013, 78 FR 57487
Statewide .................
8/9/2001 ...................
4/24/2014, 79 FR 22774
Statewide .................
9/14/2006 .................
4/24/2014, 79 FR 22774
Statewide .................
2/13/2008 .................
4/24/2014, 79 FR 22774
Statewide .................
1/18/2013 .................
4/24/2014, 79 FR 22774
Statewide .................
11/6/2013 .................
12/8/2015, 80 FR 76225
Statewide .................
5/5/2015 ...................
11/29/2016, 81 FR 85897
Name of non regulatory SIP provision
Massachusetts June 1, 2009 SIP Revision
Table of Contents Item 7, ‘‘Documentation of IM SIP Revision consistent with
42 USC Section 7511a and Section
182(c)(3)(A) of the Clean Air Act.’’.
‘‘Massachusetts Regional Haze State Implementation Plan’’ dated August 9, 2012.
A letter from the MassDEP dated August 9,
2001 submitting a revision to the SIP.
A letter from the MassDEP dated September 14, 2006 submitting a revision to
the SIP.
A letter from the MassDEP dated February
13, 2008 submitting a revision to the SIP.
A letter from the MassDEP dated January
18, 2013 withdrawing certain outdated
and obsolete regulation submittals and
replacing them with currently effective
versions of the regulation for approval
and inclusion into the SIP.
A letter from the MassDEP dated November 6, 2013 submitting a revision to the
SIP.
A letter from the MassDEP dated May 5,
2015 submitting a revision to the SIP.
EPA approved date 3
Explanations
3 To determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for
the particular provision.
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0398; FRL–9973–
37—Region 3]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Nonattainment New Source
Review Requirements for the 2008 8Hour Ozone Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a state
implementation plan (SIP) revision
submitted by the State of Maryland. The
revision is in response to EPA’s
February 3, 2017 Findings of Failure to
Submit for various requirements relating
to the 2008 8-hour ozone national
ambient air quality standards (NAAQS).
This SIP revision is specific to
nonattainment new source review
(NNSR) requirements. EPA is approving
this revision in accordance with the
requirements of the Clean Air Act
(CAA).
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SUMMARY:
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This final rule is effective on
February 28, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R03–OAR–2017–0398. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT: Mr.
David Talley, (215) 814–2117, or by
email at talley.david@epa.gov.
SUPPLEMENTARY INFORMATION:
2008 8-hour ozone NAAQS Findings of
Failure to Submit for NNSR
requirements. See 82 FR 9158 (February
3, 2017). Specifically, Maryland is
certifying that its existing NNSR
program, covering the Baltimore
Nonattainment Area (which includes
Anne Arundel, Baltimore, Carroll,
Harford, and Howard Counties and the
city of Baltimore), the PhiladelphiaWilmington-Atlantic City
Nonattainment Area (which includes
Cecil County in Maryland), and the
Washington, DC Nonattainment Area
(which includes Calvert, Charles,
Frederick, Montgomery, and Prince
Georges Counties in Maryland) for the
2008 8-hour ozone NAAQS, is at least
as stringent as the requirements at 40
CFR 51.165, as amended by the final
rule titled ‘‘Implementation of the 2008
National Ambient Air Quality Standards
for Ozone: State Implementation Plan
Requirements’’ (SIP Requirements Rule),
for ozone and its precursors.1 See 80 FR
12264 (March 6, 2015).
I. Background
On May 8, 2017, the Maryland
Department of the Environment (MDE)
submitted on behalf of the State of
Maryland a formal revision, requesting
EPA’s approval for the SIP of its NNSR
Certification for the 2008 Ozone
Standard (Revision 17–01). The SIP
revision is in response to EPA’s final
1 The SIP Requirements Rule addresses a range of
nonattainment area SIP requirements for the 2008
8-hour ozone NAAQS, including requirements
pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control
technology, reasonably available control measures,
major new source review, emission inventories, and
the timing of SIP submissions and of compliance
with emission control measures in the SIP. The rule
also revokes the 1997 ozone NAAQS and
establishes anti-backsliding requirements.
DATES:
[FR Doc. 2018–01513 Filed 1–26–18; 8:45 am]
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A. 2008 8-Hour Ozone NAAQS
On March 12, 2008, EPA promulgated
a revised 8-hour ozone NAAQS of 0.075
parts per million (ppm). See 73 FR
16436 (March 27, 2008). Under EPA’s
regulations at 40 CFR 50.15, the 2008 8hour ozone NAAQS is attained when
the three-year average of the annual
fourth-highest daily maximum 8-hour
average ambient air quality ozone
concentrations is less than or equal to
0.075 ppm.
Upon promulgation of a new or
revised NAAQS, the CAA requires EPA
to designate as nonattainment any area
that is violating the NAAQS based on
the three most recent years of ambient
air quality data at the conclusion of the
designation process. The PhiladelphiaWilmington-Atlantic City Area and the
Washington, DC Area were classified as
marginal nonattainment areas, and the
Baltimore Area was classified as a
moderate nonattainment for the 2008 8hour ozone NAAQS on May 21, 2012
(effective July 20, 2012) using 2008–
2010 ambient air quality data. See 77 FR
30088. On March 6, 2015, EPA issued
the final SIP Requirements Rule, which
establishes the requirements that state,
tribal, and local air quality management
agencies must meet as they develop
implementation plans for areas where
air quality exceeds the 2008 8-hour
ozone NAAQS. See 80 FR 12264. Areas
that were designated as marginal ozone
nonattainment areas were required to
attain the 2008 8-hour ozone NAAQS no
later than July 20, 2015, based on 2012–
2014 monitoring data. See 40 CFR
51.1103. The Philadelphia-WilmingtonAtlantic City Area and the Washington,
DC Area did not attain the 2008 8-hour
ozone NAAQS by July 20, 2015;
however, these areas did meet the CAA
section 181(a)(5) criteria, as interpreted
in 40 CFR 51.1107, for a one-year
attainment date extension. See 81 FR
26697 (May 4, 2016). Therefore, on
April 11, 2016, the EPA Administrator
signed a final rule extending the
Philadelphia-Wilmington-Atlantic City
Area and the Washington, DC Area 2008
8-hour ozone NAAQS attainment date
from July 20, 2015 to July 20, 2016. Id.2
2 EPA proposed approval of a Determination of
Attainment (DOA) for the 2008 8-hour ozone
NAAQS for the Philadelphia-Wilmington-Atlantic
City Area and the Washington, DC Area on April
18, 2017, and April 25, 2017, respectively. These
proposed actions were based on complete, certified,
and quality assured ambient air quality monitoring
data for the 2013–2015 monitoring period. See 82
FR 18268 (April 18, 2017) and 82 FR 19011 (April
25, 2017). It should be noted that a DOA does not
alleviate the need for Maryland to certify that their
existing SIP approved NNSR program is as stringent
as the requirements at 40 CFR 51.165, as NNSR
applies in nonattainment areas until an area has
been redesignated to attainment. Subsequently, EPA
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Moderate areas, such as the Baltimore
Area, are required to attain the 2008 8hour ozone NAAQS no later than July
20, 2018, six years after the effective
date of the initial nonattainment
designations.3 See 40 CFR 51.1103. The
statutorily required determination of
attainment (DOA), for the Baltimore
Area, which is due prior to the
attainment date for the Area, has not
passed and will be addressed in a future
rulemaking action.
Based on initial nonattainment
designations for the 2008 8-hour ozone
standard, as well as the March 6, 2015
final SIP Requirements Rule, Maryland
was required to develop a SIP revision
addressing certain CAA requirements
for the Philadelphia-WilmingtonAtlantic City, Washington, DC, and
Baltimore Areas, and submit to EPA a
NNSR Certification SIP or SIP revision
no later than 36 months after the
effective date of area designations for
the 2008 8-hour ozone NAAQS (i.e., July
20, 2015). See 80 FR 12264 (March 6,
2015). EPA is taking action on
Maryland’s May 8, 2017 NNSR
Certification SIP revision. EPA’s
analysis of how this SIP revision
addresses the NNSR requirements for
the 2008 8-hour ozone NAAQS is
provided in Section II below.
B. 2017 Findings of Failure To Submit
SIP for the 2008 8-Hour Ozone NAAQS
Areas designated nonattainment for
the ozone NAAQS are subject to the
general nonattainment area planning
requirements of CAA section 172 and
also to the ozone-specific planning
requirements of CAA section 182.4
issued final rulemaking actions on both of these
DOAs. See 82 FR 50814 (November 2, 2017)
(Philadelphia Area) and 82 FR 52651 (November 14,
2017) (Washington, DC area).
3 On June 1, 2015, EPA finalized a clean data
determination (CDD) for the Baltimore
Nonattainment Area. This determination was based
upon complete, quality-assured, and certified
ambient air quality monitoring data that shows the
Baltimore Area has monitored attainment of the
2008 8-hour ozone NAAQS for the 2012–2014
monitoring period. As a result of this
determination, the requirement for the Baltimore
Area to submit an attainment demonstration and
associated reasonably available control measures
(RACM), reasonable further progress plans (RFP),
contingency measures, and other SIP revisions
related to attainment of the standard are suspended
for as long as the area continues to attain the 2008
8-hour ozone standard. See 80 FR 30941 (June 2,
2015). This action did not alleviate the need for
Maryland to submit a NNSR Certification SIP
revision, which is the subject of this rulemaking
action.
4 Ozone nonattainment areas are classified based
on the severity of their ozone levels (as determined
based on the area’s ‘‘design value,’’ which
represents air quality in the area for the most recent
three years). The possible classifications for ozone
nonattainment areas are Marginal, Moderate,
Serious, Severe, and Extreme. See CAA section
181(a)(1).
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States in the ozone transport region
(OTR), such as Maryland, are
additionally subject to the requirements
outlined in CAA section 184.
Ozone nonattainment areas in the
lower classification levels have fewer
and/or less stringent mandatory air
quality planning and control
requirements than those in higher
classifications. For a marginal area, such
as the Philadelphia-WilmingtonAtlantic City Area and the Washington,
DC Area, a state is required to submit a
baseline emissions inventory, adopt a
SIP requiring emissions statements from
stationary sources, and implement a
NNSR program for the relevant ozone
standard. See CAA section 182(a). For a
moderate area such as the Baltimore
Area, a state needs to comply with the
marginal area requirements, plus
additional requirements, including the
requirement to submit a demonstration
that the area will attain in six years, the
requirement to adopt and implement
certain emissions controls, such as
reasonably available control technology
(RACT), and the requirement for greater
emissions offsets for new or modified
major stationary sources under the
state’s NNSR program. For each higher
ozone nonattainment classification, a
state needs to comply with all lower
area classification requirements, plus
additional emissions controls and more
expansive NNSR offset requirements.
The CAA sets out specific
requirements for states in the OTR.5
Upon promulgation of the 2008 8-hour
ozone NAAQS, states in the OTR were
required to submit a SIP revision for
RACT. See 40 CFR 51.1116. This
requirement is the only recurring
obligation for an OTR state upon
revision of a NAAQS, unless that state
also contains some portion of a
nonattainment area for the revised
NAAQS.6 In that case, the
nonattainment requirements described
previously also apply to those portions
of that state.
In the March 6, 2015 SIP
Requirements Rule, EPA detailed the
requirements applicable to ozone
nonattainment areas, as well as
requirements that apply in the OTR, and
provided specific deadlines for SIP
submittals. See 80 FR 12264.
On February 3, 2017, EPA found that
15 states and the District of Columbia
5 CAA section 184 details specific requirements
for a group of states (and the District of Columbia)
that make up the OTR. States in the OTR are
required to submit RACT SIP revisions and
mandate a certain level of emissions control for the
pollutants that form ozone, even if the areas in the
state meet the ozone standards.
6 NNSR requirements continue to apply in the
OTR. See CAA section 184(b).
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failed to submit SIP revisions in a
timely manner to satisfy certain
requirements for the 2008 8-hour ozone
NAAQS that apply to nonattainment
areas and/or states in the OTR. See 82
FR 9158. As explained in that
rulemaking action, consistent with the
CAA and EPA regulations, these
Findings of Failure to Submit
established certain deadlines for the
imposition of sanctions if a state does
not submit a timely SIP revision
addressing the requirements for which
the finding is being made, and for the
EPA to promulgate a federal
implementation plan (FIP) to address
any outstanding SIP requirements.
EPA found that the State of Maryland
failed to submit SIP revisions in a
timely matter to satisfy NNSR
requirements for its marginal and
moderate nonattainment areas,
specifically the PhiladelphiaWilmington-Atlantic City Area, the
Washington, DC Area, and the Baltimore
Area.7 Maryland submitted its May 8,
2017 SIP revision to address the specific
NNSR requirements for the 2008 8-hour
ozone NAAQS, located in 40 CFR
51.160–165, as well as its obligations
under EPA’s February 3, 2017 Findings
of Failure to Submit. EPA’s analysis of
how this SIP revision addresses the
NNSR requirements for the 2008 8-hour
ozone NAAQS and the Findings of
Failure to Submit is provided in Section
II below.
On September 29, 2017 (82 FR 45475),
EPA published a direct final rulemaking
notice (DFRN) for the State of Maryland.
In the DFRN, EPA approved the
Maryland submittal pertaining to NNSR
requirements for the 2008 8-hour ozone
NAAQS. On the same date (82 FR
45547), EPA published a notice of
proposed rulemaking (NPR) for the
action. EPA published the DFRN
without prior proposal because the
Agency viewed the submittals as
noncontroversial and anticipated no
adverse comments. EPA explained that
if adverse comments were received
during the comment period, the DFRN
would be withdrawn and all public
comments received would be addressed
in a subsequent final rule based on the
September 29, 2017 proposed rule. EPA
received an adverse comment, and on
November 22, 2017 (82 FR 55510)
withdrew the DFRN.
7 The EPA found that the State of Maryland also
failed to submit SIP revisions for inspection and
maintenance (I/M) basic and nitrogen oxide RACT
for major sources. These SIP requirements will be
addressed in separate rulemaking actions and will
not be discussed here. See 82 FR 9158 (February 3,
2017).
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II. Summary of SIP Revision and EPA
Analysis
This rulemaking action is specific to
Maryland’s NNSR requirements. NNSR
is a preconstruction review permit
program that applies to new major
stationary sources or major
modifications at existing sources located
in a nonattainment area.8 The specific
NNSR requirements for the 2008 8-hour
ozone NAAQS are located in 40 CFR
51.160–165. The SIP Requirements Rule
explained that, for each nonattainment
area, a NNSR plan or plan revision was
due no later than 36 months after the
July 20, 2012 effective date of area
designations for the 2008 8-hour ozone
standard (i.e., July 20, 2015).9
The minimum SIP requirements for
NNSR permitting programs for the 2008
8-hour ozone NAAQS are located in 40
CFR 51.165. See 40 CFR 51.1114. These
NNSR program requirements include
those promulgated in the ‘‘Phase 2
Rule’’ implementing the 1997 8-hour
ozone NAAQS (75 FR 71018 (November
29, 2005)) and the SIP Requirements
Rule implementing the 2008 8-hour
ozone NAAQS. Under the Phase 2 Rule,
the SIP for each ozone nonattainment
area must contain NNSR provisions
that: Set major source thresholds for
oxides of nitrogen (NOX) and volatile
organic compounds (VOC) pursuant to
40 CFR 51.165(a)(1)(iv)(A)(1)(i)–(iv) and
(2); classify physical changes as a major
source if the change would constitute a
major source by itself pursuant to 40
CFR 51.165(a)(1)(iv)(A)(3); consider any
significant net emissions increase of
NOX as a significant net emissions
increase for ozone pursuant to 40 CFR
51.165(a)(1)(v)(E); consider certain
increases of VOC emissions in extreme
ozone nonattainment areas as a
significant net emissions increase and a
major modification for ozone pursuant
to 40 CFR 51.165(a)(1)(v)(F); set
significant emissions rates for VOC and
NOX as ozone precursors pursuant to 40
CFR 51.165(a)(1)(x)(A)–(C) and (E);
contain provisions for emissions
reductions credits pursuant to 40 CFR
51.165(a)(3)(ii)(C)(1)–(2); provide that
the requirements applicable to VOC also
apply to NOX pursuant to 40 CFR
51.165(a)(8); and set offset ratios for
VOC and NOX pursuant to 40 CFR
51.165(a)(9)(i)–(iii) (renumbered as
8 See
CAA sections 172(c)(5), 173 and 182.
respect to states with nonattainment areas
subject to a finding of failure to submit NNSR SIP
revisions, such revisions would no longer be
required if the area were redesignated to attainment.
The CAA’s prevention of significant deterioration
(PSD) program requirements apply in lieu of NNSR
after an area is redesignated to attainment. For areas
outside the OTR, NNSR requirements do not apply
in areas designated as attainment.
9 With
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(a)(9)(ii)–(iv) under the SIP
Requirements Rule for the 2008 8-hour
ozone NAAQS). Under the SIP
Requirements Rule for the 2008 8-hour
ozone NAAQS, the SIP for each ozone
nonattainment area designated
nonattainment for the 2008 8-hour
ozone NAAQS and designated
nonattainment for the 1997 ozone
NAAQS on April 6, 2015, must also
contain NNSR provisions that include
the anti-backsliding requirements at 40
CFR 51.1105. See 40 CFR 51.165(a)(12).
Maryland’s longstanding SIP
approved NNSR program, established in
Code of Maryland Regulations (COMAR)
Air Quality Rule COMAR 26.11.17—
Nonattainment Provisions for Major
New Sources and Major Modifications,
applies to the construction and
modification of major stationary sources
in nonattainment areas. In its May 8,
2017 SIP revision, Maryland certifies
that the version of the Air Quality Rule
COMAR 26.11.17 in the SIP is at least
as stringent as the federal NNSR
requirements for the PhiladelphiaWilmington-Atlantic City Area, the
Washington, DC Area, and the Baltimore
Area. EPA last approved revisions to the
SIP approved version of Maryland’s
NNSR rule in 2012 addressing, among
other things, NSR Reform and NOX as a
precursor to ozone. See 77 FR 45949
(August 2, 2012).10
EPA notes that neither COMAR
26.11.17 nor Maryland’s approved SIP
contain a regulatory provision
pertaining to any emissions change of
VOC in extreme nonattainment areas, as
specified in 40 CFR 51.165(a)(1)(v)(F).
However, Maryland has never had an
area designated extreme nonattainment
for any of the ozone NAAQS, and, thus,
the Maryland SIP is not required to
contain this provision until such a time.
Additionally, the anti-backsliding
provisions in 40 CFR 51.165(a)(12) are
not found in either COMAR 26.11.17 or
the Maryland SIP. Maryland’s major
stationary source thresholds were
established for the 1997 8-hour ozone
NAAQS nonattainment designations
and remain unchanged in Maryland’s
federally-approved SIP.11 Therefore, all
of the sources located in the 2008 8hour ozone nonattainment areas in
Maryland are required to meet a major
stationary source threshold of 25 tons or
10 On August 30, 2012, EPA published a
rulemaking correcting minor errors in their August
2, 2012 final rule. The correction of these errors did
not change EPA’s final action to approve the
Maryland regulations. See 77 FR 52605.
11 Under the 1997 8-hour ozone NAAQS, the
Baltimore Area was classified as serious
nonattainment and the Philadelphia-WilmingtonAtlantic City and Washington, DC Areas were
classified as moderate nonattainment.
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more per year of VOC or NOX. This
requirement continues to be more
stringent than the 2008 8-hour ozone
standards at issue in this action, and,
thus, the above mentioned antibacksliding requirements are not
required.
The version of COMAR 26.11.17 that
is contained in the current SIP has not
changed since the 2012 rulemaking
where EPA last approved Maryland’s
NNSR provisions. This version of the
rule covers the PhiladelphiaWilmington-Atlantic City, Washington,
DC, and Baltimore Nonattainment Areas
and remains adequate to meet all
applicable NNSR requirements for the
2008 8-hour ozone NAAQS in 40 CFR
51.165, the Phase 2 Rule and the SIP
Requirements Rule. A detailed
description of the state submittal and
EPA’s evaluation is included in a
technical support document (TSD)
prepared in support of this rulemaking
action. A copy of the TSD is available,
upon request, from the EPA Regional
Office listed in the ADDRESSES section of
this document or is also available
electronically within the Docket for this
rulemaking action.
III. Public Comments and EPA
Responses
EPA received one comment on the
proposed approval of MDE’s May 8,
2017 submittal requesting EPA’s
approval for the SIP of its NNSR
Certification for the 2008 Ozone
Standard (Revision 17–01).
Comment: The commenter stated that
it is unclear to them how Maryland met
the requirements for a NNSR SIP for the
OTR, but did not meet the requirements
for the NNSR SIP for the Baltimore and
Philadelphia areas. The commenter
stated that if Maryland submitted a SIP
for the OTR that met the NNSR
requirements, then how is it possible
Maryland did not meet the requirements
for Philadelphia and Baltimore. The
commenter then asserted that if
Maryland did not submit a NNSR SIP
for the OTR, then EPA needs to make a
Finding of Failure to Submit for
Maryland to submit a NNSR SIP for
OTR requirements. The commenter
further asserts that EPA should consider
this comment a notice of intent to sue
EPA for failing to perform its
nondiscretionary duty to issue a Finding
of Failure to Submit for Maryland’s nonsubmission of a NNSR SIP for OTR
requirements.
EPA Response: EPA’s September 29,
2017 DFRN would have approved
Maryland’s submittal of a SIP revision
which specifically addressed the NNSR
permitting requirements in CAA
sections 172(c) and 182(b) for the 2008
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8-hour ozone NAAQS for the Baltimore
and Philadelphia-Wilmington-Atlantic
City Nonattainment Areas. See 82 FR
45475.12 As explained in EPA’s
September 29, 2017 DFRN and in this
present action, the Maryland submittal
satisfies Maryland’s requirement to
submit a NNSR SIP revision for the
Baltimore and PhiladelphiaWilmington-Atlantic City
Nonattainment Areas in response to
EPA’s February 3, 2017 final 2008 8hour ozone NAAQS Findings of Failure
to Submit for NNSR requirements. See
82 FR 9158. Maryland’s obligations as a
member of the OTR are not the subject
of this rulemaking. Pursuant to CAA
sections 182(f) and 184(b)(2), major
stationary sources of VOC and NOX in
the OTR are subject to requirements
applicable to major stationary sources in
moderate nonattainment with ozone
NAAQS which includes NNSR
permitting requirements. The specific
requirements for Maryland as an OTR
state were discussed in EPA’s February
3, 2017 Findings of Failure to Submit
and will not be restated here. However,
because EPA did not propose any action
related to Maryland’s NNSR
requirements for the OTR, the
commenter’s statements related to
Maryland’s NNSR requirements for the
OTR are not germane to this rulemaking.
As discussed in EPA’s DFRN,
Maryland’s NNSR provisions at COMAR
26.11.17 are in the Maryland SIP and
meet the NNSR requirements for the
2008 8-hour ozone NAAQS for the
Baltimore and PhiladelphiaWilmington-Atlantic City
Nonattainment Areas as identified in
the SIP Requirements Rule, for ozone
and its precursors, as well as EPA’s
February 3, 2017 Findings of Failure to
Submit, as noted previously. See 80 FR
12264 (March 6, 2015) and 82 FR 9158,
respectively.
Regarding the assertion that EPA
should consider this comment to be the
commenter’s ‘‘notice of intent’’ to sue
EPA for failing to perform its
nondiscretionary duty to make a
Finding of Failure to Submit for a NNSR
SIP for the OTR requirements, EPA
notes that requirements for serving upon
EPA a notice of intent to sue are in CAA
section 304 and in 40 CFR part 54,
specifically in 40 CFR 54.2.
Commenting within an unrelated
rulemaking is not appropriate service of
a notice of intent to sue pursuant to 40
CFR 54.2 and CAA section 304.
12 While not addressed by the commenter, in
addition to the Baltimore and PhiladelphiaWilmington-Atlantic City Nonattainment Areas,
Maryland’s submittal also addresses the
Washington, DC Nonattainment Area.
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IV. Final Action
EPA is approving Maryland’s May 8,
2017 SIP revision addressing the NNSR
requirements for the 2008 ozone
NAAQS for the PhiladelphiaWilmington-Atlantic City, Washington,
DC, and Baltimore Nonattainment
Areas. EPA has concluded that the
State’s submission fulfills the 40 CFR
51.1114 revision requirement, meets the
requirements of CAA sections 110 and
172 and the minimum SIP requirements
of 40 CFR 51.165, as well as its
obligations under EPA’s February 3,
2017 Findings of Failure to Submit. See
82 FR 9158.
V. Statutory and Executive Order
Reviews
A. General Requirements
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• 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);
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Federal Register / Vol. 83, No. 19 / Monday, January 29, 2018 / Rules and Regulations
• 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
Name of non-regulatory
SIP revision
*
2008 8-Hour Ozone
NAAQS Nonattainment
New Source Review
Requirements.
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 March 30, 2018. 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
approving Maryland’s 2008 8-hour
ozone NAAQS Certification SIP revision
for NNSR may not be challenged later in
proceedings to enforce its requirements.
(See section 307(b)(2).)
*
*
*
The Baltimore Area (includes Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties and
the city of Baltimore), the Philadelphia-WilmingtonAtlantic City Area (includes Cecil County in Maryland), and the Washington, DC Area (includes
Calvert, Charles, Frederick, Montgomery, and
Prince Georges Counties in Maryland).
Final rule; notification of final
action on reconsideration.
This action finalizes
amendments to the National Emission
Standards for Hazardous Air Pollutants
(NESHAP) for Off-Site Waste and
Recovery Operations (OSWRO). The
final amendments address continuous
monitoring on pressure relief devices
(PRDs) on containers. This issue was
raised in a petition for reconsideration
of the 2015 amendments to the OSWRO
NESHAP, which were based on the
residual risk and technology review
(RTR). Among other things, the 2015
amendments established additional
monitoring requirements for all PRDs,
including PRDs on containers. For PRDs
on containers, these monitoring
SUMMARY:
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
sradovich on DSK3GMQ082PROD with RULES
[EPA–HQ–OAR–2012–0360; FRL–9972–89–
OAR]
RIN 2060–AT48
National Emission Standards for
Hazardous Air Pollutants: Off-Site
Waste and Recovery Operations
Environmental Protection
Agency (EPA).
AGENCY:
VerDate Sep<11>2014
16:12 Jan 26, 2018
Jkt 244001
PO 00000
Frm 00050
Fmt 4700
Dated: January 11, 2018.
Cosmo Servidio,
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
‘‘2008 8-Hour Ozone NAAQS
Nonattainment New Source Review
Requirements’’ at the end of the table to
read as follows:
■
§ 52.1070
*
Sfmt 4700
Identification of plan.
*
*
(e) * * *
*
*
EPA approval date
*
5/8/2017
ACTION:
BILLING CODE 6560–50–P
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
State
submittal
date
Applicable geographic area
[FR Doc. 2018–01518 Filed 1–26–18; 8:45 am]
List of Subjects in 40 CFR Part 52
*
1/29/2018, [insert Federal
Register citation].
Additional
explanation
*
requirements were in addition to the
inspection and monitoring requirements
for containers and their closure devices
already required by the OSWRO
NESHAP. This final action removes the
additional monitoring requirements for
PRDs on containers that resulted from
the 2015 amendments because we have
determined that they are not necessary.
This action does not substantially
change the level of environmental
protection provided under the OSWRO
NESHAP, but reduces burden to this
industry compared to the current rule
by $28 million in capital costs related to
compliance, and $4.2 million per year
in total annualized costs under a 7
percent interest rate. Over 15 years at a
7-percent discount rate, this constitutes
an estimated reduction of $39 million in
E:\FR\FM\29JAR1.SGM
29JAR1
]]>Agencies
[Federal Register Volume 83, Number 19 (Monday, January 29, 2018)]
[Rules and Regulations]
[Pages 3982-3986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01518]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2017-0398; FRL-9973-37--Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Nonattainment New Source Review Requirements for the 2008 8-
Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving a state
implementation plan (SIP) revision submitted by the State of Maryland.
The revision is in response to EPA's February 3, 2017 Findings of
Failure to Submit for various requirements relating to the 2008 8-hour
ozone national ambient air quality standards (NAAQS). This SIP revision
is specific to nonattainment new source review (NNSR) requirements. EPA
is approving this revision in accordance with the requirements of the
Clean Air Act (CAA).
DATES: This final rule is effective on February 28, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R03-OAR-2017-0398. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available through
https://www.regulations.gov, or please contact the person identified in
the For Further Information Contact section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Mr. David Talley, (215) 814-2117, or
by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On May 8, 2017, the Maryland Department of the Environment (MDE)
submitted on behalf of the State of Maryland a formal revision,
requesting EPA's approval for the SIP of its NNSR Certification for the
2008 Ozone Standard (Revision 17-01). The SIP revision is in response
to EPA's final 2008 8-hour ozone NAAQS Findings of Failure to Submit
for NNSR requirements. See 82 FR 9158 (February 3, 2017). Specifically,
Maryland is certifying that its existing NNSR program, covering the
Baltimore Nonattainment Area (which includes Anne Arundel, Baltimore,
Carroll, Harford, and Howard Counties and the city of Baltimore), the
Philadelphia-Wilmington-Atlantic City Nonattainment Area (which
includes Cecil County in Maryland), and the Washington, DC
Nonattainment Area (which includes Calvert, Charles, Frederick,
Montgomery, and Prince Georges Counties in Maryland) for the 2008 8-
hour ozone NAAQS, is at least as stringent as the requirements at 40
CFR 51.165, as amended by the final rule titled ``Implementation of the
2008 National Ambient Air Quality Standards for Ozone: State
Implementation Plan Requirements'' (SIP Requirements Rule), for ozone
and its precursors.\1\ See 80 FR 12264 (March 6, 2015).
---------------------------------------------------------------------------
\1\ The SIP Requirements Rule addresses a range of nonattainment
area SIP requirements for the 2008 8-hour ozone NAAQS, including
requirements pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control technology,
reasonably available control measures, major new source review,
emission inventories, and the timing of SIP submissions and of
compliance with emission control measures in the SIP. The rule also
revokes the 1997 ozone NAAQS and establishes anti-backsliding
requirements.
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[[Page 3983]]
A. 2008 8-Hour Ozone NAAQS
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is
attained when the three-year average of the annual fourth-highest daily
maximum 8-hour average ambient air quality ozone concentrations is less
than or equal to 0.075 ppm.
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate as nonattainment any area that is violating the NAAQS
based on the three most recent years of ambient air quality data at the
conclusion of the designation process. The Philadelphia-Wilmington-
Atlantic City Area and the Washington, DC Area were classified as
marginal nonattainment areas, and the Baltimore Area was classified as
a moderate nonattainment for the 2008 8-hour ozone NAAQS on May 21,
2012 (effective July 20, 2012) using 2008-2010 ambient air quality
data. See 77 FR 30088. On March 6, 2015, EPA issued the final SIP
Requirements Rule, which establishes the requirements that state,
tribal, and local air quality management agencies must meet as they
develop implementation plans for areas where air quality exceeds the
2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were designated as
marginal ozone nonattainment areas were required to attain the 2008 8-
hour ozone NAAQS no later than July 20, 2015, based on 2012-2014
monitoring data. See 40 CFR 51.1103. The Philadelphia-Wilmington-
Atlantic City Area and the Washington, DC Area did not attain the 2008
8-hour ozone NAAQS by July 20, 2015; however, these areas did meet the
CAA section 181(a)(5) criteria, as interpreted in 40 CFR 51.1107, for a
one-year attainment date extension. See 81 FR 26697 (May 4, 2016).
Therefore, on April 11, 2016, the EPA Administrator signed a final rule
extending the Philadelphia-Wilmington-Atlantic City Area and the
Washington, DC Area 2008 8-hour ozone NAAQS attainment date from July
20, 2015 to July 20, 2016. Id.\2\
---------------------------------------------------------------------------
\2\ EPA proposed approval of a Determination of Attainment (DOA)
for the 2008 8-hour ozone NAAQS for the Philadelphia-Wilmington-
Atlantic City Area and the Washington, DC Area on April 18, 2017,
and April 25, 2017, respectively. These proposed actions were based
on complete, certified, and quality assured ambient air quality
monitoring data for the 2013-2015 monitoring period. See 82 FR 18268
(April 18, 2017) and 82 FR 19011 (April 25, 2017). It should be
noted that a DOA does not alleviate the need for Maryland to certify
that their existing SIP approved NNSR program is as stringent as the
requirements at 40 CFR 51.165, as NNSR applies in nonattainment
areas until an area has been redesignated to attainment.
Subsequently, EPA issued final rulemaking actions on both of these
DOAs. See 82 FR 50814 (November 2, 2017) (Philadelphia Area) and 82
FR 52651 (November 14, 2017) (Washington, DC area).
---------------------------------------------------------------------------
Moderate areas, such as the Baltimore Area, are required to attain
the 2008 8-hour ozone NAAQS no later than July 20, 2018, six years
after the effective date of the initial nonattainment designations.\3\
See 40 CFR 51.1103. The statutorily required determination of
attainment (DOA), for the Baltimore Area, which is due prior to the
attainment date for the Area, has not passed and will be addressed in a
future rulemaking action.
---------------------------------------------------------------------------
\3\ On June 1, 2015, EPA finalized a clean data determination
(CDD) for the Baltimore Nonattainment Area. This determination was
based upon complete, quality-assured, and certified ambient air
quality monitoring data that shows the Baltimore Area has monitored
attainment of the 2008 8-hour ozone NAAQS for the 2012-2014
monitoring period. As a result of this determination, the
requirement for the Baltimore Area to submit an attainment
demonstration and associated reasonably available control measures
(RACM), reasonable further progress plans (RFP), contingency
measures, and other SIP revisions related to attainment of the
standard are suspended for as long as the area continues to attain
the 2008 8-hour ozone standard. See 80 FR 30941 (June 2, 2015). This
action did not alleviate the need for Maryland to submit a NNSR
Certification SIP revision, which is the subject of this rulemaking
action.
---------------------------------------------------------------------------
Based on initial nonattainment designations for the 2008 8-hour
ozone standard, as well as the March 6, 2015 final SIP Requirements
Rule, Maryland was required to develop a SIP revision addressing
certain CAA requirements for the Philadelphia-Wilmington-Atlantic City,
Washington, DC, and Baltimore Areas, and submit to EPA a NNSR
Certification SIP or SIP revision no later than 36 months after the
effective date of area designations for the 2008 8-hour ozone NAAQS
(i.e., July 20, 2015). See 80 FR 12264 (March 6, 2015). EPA is taking
action on Maryland's May 8, 2017 NNSR Certification SIP revision. EPA's
analysis of how this SIP revision addresses the NNSR requirements for
the 2008 8-hour ozone NAAQS is provided in Section II below.
B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone
NAAQS
Areas designated nonattainment for the ozone NAAQS are subject to
the general nonattainment area planning requirements of CAA section 172
and also to the ozone-specific planning requirements of CAA section
182.\4\ States in the ozone transport region (OTR), such as Maryland,
are additionally subject to the requirements outlined in CAA section
184.
---------------------------------------------------------------------------
\4\ Ozone nonattainment areas are classified based on the
severity of their ozone levels (as determined based on the area's
``design value,'' which represents air quality in the area for the
most recent three years). The possible classifications for ozone
nonattainment areas are Marginal, Moderate, Serious, Severe, and
Extreme. See CAA section 181(a)(1).
---------------------------------------------------------------------------
Ozone nonattainment areas in the lower classification levels have
fewer and/or less stringent mandatory air quality planning and control
requirements than those in higher classifications. For a marginal area,
such as the Philadelphia-Wilmington-Atlantic City Area and the
Washington, DC Area, a state is required to submit a baseline emissions
inventory, adopt a SIP requiring emissions statements from stationary
sources, and implement a NNSR program for the relevant ozone standard.
See CAA section 182(a). For a moderate area such as the Baltimore Area,
a state needs to comply with the marginal area requirements, plus
additional requirements, including the requirement to submit a
demonstration that the area will attain in six years, the requirement
to adopt and implement certain emissions controls, such as reasonably
available control technology (RACT), and the requirement for greater
emissions offsets for new or modified major stationary sources under
the state's NNSR program. For each higher ozone nonattainment
classification, a state needs to comply with all lower area
classification requirements, plus additional emissions controls and
more expansive NNSR offset requirements.
The CAA sets out specific requirements for states in the OTR.\5\
Upon promulgation of the 2008 8-hour ozone NAAQS, states in the OTR
were required to submit a SIP revision for RACT. See 40 CFR 51.1116.
This requirement is the only recurring obligation for an OTR state upon
revision of a NAAQS, unless that state also contains some portion of a
nonattainment area for the revised NAAQS.\6\ In that case, the
nonattainment requirements described previously also apply to those
portions of that state.
---------------------------------------------------------------------------
\5\ CAA section 184 details specific requirements for a group of
states (and the District of Columbia) that make up the OTR. States
in the OTR are required to submit RACT SIP revisions and mandate a
certain level of emissions control for the pollutants that form
ozone, even if the areas in the state meet the ozone standards.
\6\ NNSR requirements continue to apply in the OTR. See CAA
section 184(b).
---------------------------------------------------------------------------
In the March 6, 2015 SIP Requirements Rule, EPA detailed the
requirements applicable to ozone nonattainment areas, as well as
requirements that apply in the OTR, and provided specific deadlines for
SIP submittals. See 80 FR 12264.
On February 3, 2017, EPA found that 15 states and the District of
Columbia
[[Page 3984]]
failed to submit SIP revisions in a timely manner to satisfy certain
requirements for the 2008 8-hour ozone NAAQS that apply to
nonattainment areas and/or states in the OTR. See 82 FR 9158. As
explained in that rulemaking action, consistent with the CAA and EPA
regulations, these Findings of Failure to Submit established certain
deadlines for the imposition of sanctions if a state does not submit a
timely SIP revision addressing the requirements for which the finding
is being made, and for the EPA to promulgate a federal implementation
plan (FIP) to address any outstanding SIP requirements.
EPA found that the State of Maryland failed to submit SIP revisions
in a timely matter to satisfy NNSR requirements for its marginal and
moderate nonattainment areas, specifically the Philadelphia-Wilmington-
Atlantic City Area, the Washington, DC Area, and the Baltimore Area.\7\
Maryland submitted its May 8, 2017 SIP revision to address the specific
NNSR requirements for the 2008 8-hour ozone NAAQS, located in 40 CFR
51.160-165, as well as its obligations under EPA's February 3, 2017
Findings of Failure to Submit. EPA's analysis of how this SIP revision
addresses the NNSR requirements for the 2008 8-hour ozone NAAQS and the
Findings of Failure to Submit is provided in Section II below.
---------------------------------------------------------------------------
\7\ The EPA found that the State of Maryland also failed to
submit SIP revisions for inspection and maintenance (I/M) basic and
nitrogen oxide RACT for major sources. These SIP requirements will
be addressed in separate rulemaking actions and will not be
discussed here. See 82 FR 9158 (February 3, 2017).
---------------------------------------------------------------------------
On September 29, 2017 (82 FR 45475), EPA published a direct final
rulemaking notice (DFRN) for the State of Maryland. In the DFRN, EPA
approved the Maryland submittal pertaining to NNSR requirements for the
2008 8-hour ozone NAAQS. On the same date (82 FR 45547), EPA published
a notice of proposed rulemaking (NPR) for the action. EPA published the
DFRN without prior proposal because the Agency viewed the submittals as
noncontroversial and anticipated no adverse comments. EPA explained
that if adverse comments were received during the comment period, the
DFRN would be withdrawn and all public comments received would be
addressed in a subsequent final rule based on the September 29, 2017
proposed rule. EPA received an adverse comment, and on November 22,
2017 (82 FR 55510) withdrew the DFRN.
II. Summary of SIP Revision and EPA Analysis
This rulemaking action is specific to Maryland's NNSR requirements.
NNSR is a preconstruction review permit program that applies to new
major stationary sources or major modifications at existing sources
located in a nonattainment area.\8\ The specific NNSR requirements for
the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160-165. The SIP
Requirements Rule explained that, for each nonattainment area, a NNSR
plan or plan revision was due no later than 36 months after the July
20, 2012 effective date of area designations for the 2008 8-hour ozone
standard (i.e., July 20, 2015).\9\
---------------------------------------------------------------------------
\8\ See CAA sections 172(c)(5), 173 and 182.
\9\ With respect to states with nonattainment areas subject to a
finding of failure to submit NNSR SIP revisions, such revisions
would no longer be required if the area were redesignated to
attainment. The CAA's prevention of significant deterioration (PSD)
program requirements apply in lieu of NNSR after an area is
redesignated to attainment. For areas outside the OTR, NNSR
requirements do not apply in areas designated as attainment.
---------------------------------------------------------------------------
The minimum SIP requirements for NNSR permitting programs for the
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR
51.1114. These NNSR program requirements include those promulgated in
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (75 FR
71018 (November 29, 2005)) and the SIP Requirements Rule implementing
the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each
ozone nonattainment area must contain NNSR provisions that: Set major
source thresholds for oxides of nitrogen (NOX) and volatile
organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2); classify physical changes as a major source if the change
would constitute a major source by itself pursuant to 40 CFR
51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase
of NOX as a significant net emissions increase for ozone
pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of
VOC emissions in extreme ozone nonattainment areas as a significant net
emissions increase and a major modification for ozone pursuant to 40
CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and
NOX as ozone precursors pursuant to 40 CFR
51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2);
provide that the requirements applicable to VOC also apply to
NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios
for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii)
(renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the
2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008
8-hour ozone NAAQS, the SIP for each ozone nonattainment area
designated nonattainment for the 2008 8-hour ozone NAAQS and designated
nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also
contain NNSR provisions that include the anti-backsliding requirements
at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).
Maryland's longstanding SIP approved NNSR program, established in
Code of Maryland Regulations (COMAR) Air Quality Rule COMAR 26.11.17--
Nonattainment Provisions for Major New Sources and Major Modifications,
applies to the construction and modification of major stationary
sources in nonattainment areas. In its May 8, 2017 SIP revision,
Maryland certifies that the version of the Air Quality Rule COMAR
26.11.17 in the SIP is at least as stringent as the federal NNSR
requirements for the Philadelphia-Wilmington-Atlantic City Area, the
Washington, DC Area, and the Baltimore Area. EPA last approved
revisions to the SIP approved version of Maryland's NNSR rule in 2012
addressing, among other things, NSR Reform and NOX as a
precursor to ozone. See 77 FR 45949 (August 2, 2012).\10\
---------------------------------------------------------------------------
\10\ On August 30, 2012, EPA published a rulemaking correcting
minor errors in their August 2, 2012 final rule. The correction of
these errors did not change EPA's final action to approve the
Maryland regulations. See 77 FR 52605.
---------------------------------------------------------------------------
EPA notes that neither COMAR 26.11.17 nor Maryland's approved SIP
contain a regulatory provision pertaining to any emissions change of
VOC in extreme nonattainment areas, as specified in 40 CFR
51.165(a)(1)(v)(F). However, Maryland has never had an area designated
extreme nonattainment for any of the ozone NAAQS, and, thus, the
Maryland SIP is not required to contain this provision until such a
time. Additionally, the anti-backsliding provisions in 40 CFR
51.165(a)(12) are not found in either COMAR 26.11.17 or the Maryland
SIP. Maryland's major stationary source thresholds were established for
the 1997 8-hour ozone NAAQS nonattainment designations and remain
unchanged in Maryland's federally-approved SIP.\11\ Therefore, all of
the sources located in the 2008 8-hour ozone nonattainment areas in
Maryland are required to meet a major stationary source threshold of 25
tons or
[[Page 3985]]
more per year of VOC or NOX. This requirement continues to
be more stringent than the 2008 8-hour ozone standards at issue in this
action, and, thus, the above mentioned anti-backsliding requirements
are not required.
---------------------------------------------------------------------------
\11\ Under the 1997 8-hour ozone NAAQS, the Baltimore Area was
classified as serious nonattainment and the Philadelphia-Wilmington-
Atlantic City and Washington, DC Areas were classified as moderate
nonattainment.
---------------------------------------------------------------------------
The version of COMAR 26.11.17 that is contained in the current SIP
has not changed since the 2012 rulemaking where EPA last approved
Maryland's NNSR provisions. This version of the rule covers the
Philadelphia-Wilmington-Atlantic City, Washington, DC, and Baltimore
Nonattainment Areas and remains adequate to meet all applicable NNSR
requirements for the 2008 8-hour ozone NAAQS in 40 CFR 51.165, the
Phase 2 Rule and the SIP Requirements Rule. A detailed description of
the state submittal and EPA's evaluation is included in a technical
support document (TSD) prepared in support of this rulemaking action. A
copy of the TSD is available, upon request, from the EPA Regional
Office listed in the ADDRESSES section of this document or is also
available electronically within the Docket for this rulemaking action.
III. Public Comments and EPA Responses
EPA received one comment on the proposed approval of MDE's May 8,
2017 submittal requesting EPA's approval for the SIP of its NNSR
Certification for the 2008 Ozone Standard (Revision 17-01).
Comment: The commenter stated that it is unclear to them how
Maryland met the requirements for a NNSR SIP for the OTR, but did not
meet the requirements for the NNSR SIP for the Baltimore and
Philadelphia areas. The commenter stated that if Maryland submitted a
SIP for the OTR that met the NNSR requirements, then how is it possible
Maryland did not meet the requirements for Philadelphia and Baltimore.
The commenter then asserted that if Maryland did not submit a NNSR SIP
for the OTR, then EPA needs to make a Finding of Failure to Submit for
Maryland to submit a NNSR SIP for OTR requirements. The commenter
further asserts that EPA should consider this comment a notice of
intent to sue EPA for failing to perform its nondiscretionary duty to
issue a Finding of Failure to Submit for Maryland's non-submission of a
NNSR SIP for OTR requirements.
EPA Response: EPA's September 29, 2017 DFRN would have approved
Maryland's submittal of a SIP revision which specifically addressed the
NNSR permitting requirements in CAA sections 172(c) and 182(b) for the
2008 8-hour ozone NAAQS for the Baltimore and Philadelphia-Wilmington-
Atlantic City Nonattainment Areas. See 82 FR 45475.\12\ As explained in
EPA's September 29, 2017 DFRN and in this present action, the Maryland
submittal satisfies Maryland's requirement to submit a NNSR SIP
revision for the Baltimore and Philadelphia-Wilmington-Atlantic City
Nonattainment Areas in response to EPA's February 3, 2017 final 2008 8-
hour ozone NAAQS Findings of Failure to Submit for NNSR requirements.
See 82 FR 9158. Maryland's obligations as a member of the OTR are not
the subject of this rulemaking. Pursuant to CAA sections 182(f) and
184(b)(2), major stationary sources of VOC and NOX in the
OTR are subject to requirements applicable to major stationary sources
in moderate nonattainment with ozone NAAQS which includes NNSR
permitting requirements. The specific requirements for Maryland as an
OTR state were discussed in EPA's February 3, 2017 Findings of Failure
to Submit and will not be restated here. However, because EPA did not
propose any action related to Maryland's NNSR requirements for the OTR,
the commenter's statements related to Maryland's NNSR requirements for
the OTR are not germane to this rulemaking. As discussed in EPA's DFRN,
Maryland's NNSR provisions at COMAR 26.11.17 are in the Maryland SIP
and meet the NNSR requirements for the 2008 8-hour ozone NAAQS for the
Baltimore and Philadelphia-Wilmington-Atlantic City Nonattainment Areas
as identified in the SIP Requirements Rule, for ozone and its
precursors, as well as EPA's February 3, 2017 Findings of Failure to
Submit, as noted previously. See 80 FR 12264 (March 6, 2015) and 82 FR
9158, respectively.
---------------------------------------------------------------------------
\12\ While not addressed by the commenter, in addition to the
Baltimore and Philadelphia-Wilmington-Atlantic City Nonattainment
Areas, Maryland's submittal also addresses the Washington, DC
Nonattainment Area.
---------------------------------------------------------------------------
Regarding the assertion that EPA should consider this comment to be
the commenter's ``notice of intent'' to sue EPA for failing to perform
its nondiscretionary duty to make a Finding of Failure to Submit for a
NNSR SIP for the OTR requirements, EPA notes that requirements for
serving upon EPA a notice of intent to sue are in CAA section 304 and
in 40 CFR part 54, specifically in 40 CFR 54.2. Commenting within an
unrelated rulemaking is not appropriate service of a notice of intent
to sue pursuant to 40 CFR 54.2 and CAA section 304.
IV. Final Action
EPA is approving Maryland's May 8, 2017 SIP revision addressing the
NNSR requirements for the 2008 ozone NAAQS for the Philadelphia-
Wilmington-Atlantic City, Washington, DC, and Baltimore Nonattainment
Areas. EPA has concluded that the State's submission fulfills the 40
CFR 51.1114 revision requirement, meets the requirements of CAA
sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165,
as well as its obligations under EPA's February 3, 2017 Findings of
Failure to Submit. See 82 FR 9158.
V. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
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);
[[Page 3986]]
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 March 30, 2018. 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 approving Maryland's 2008 8-hour ozone NAAQS
Certification SIP revision for NNSR 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, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: January 11, 2018.
Cosmo Servidio,
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 ``2008 8-Hour Ozone NAAQS Nonattainment New Source Review
Requirements'' at the end of the table to read as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
State
Name of non-regulatory SIP Applicable geographic submittal EPA approval date Additional
revision area date explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
2008 8-Hour Ozone NAAQS The Baltimore Area 5/8/2017 1/29/2018, [insert
Nonattainment New Source Review (includes Anne Arundel, Federal Register
Requirements. Baltimore, Carroll, citation].
Harford, and Howard
Counties and the city
of Baltimore), the
Philadelphia-Wilmington-
Atlantic City Area
(includes Cecil County
in Maryland), and the
Washington, DC Area
(includes Calvert,
Charles, Frederick,
Montgomery, and Prince
Georges Counties in
Maryland).
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[FR Doc. 2018-01518 Filed 1-26-18; 8:45 am]
BILLING CODE 6560-50-P
