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]

Download as PDF 3982 Federal Register / Vol. 83, No. 19 / Monday, January 29, 2018 / Rules and Regulations 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 A letter from the MassDEP dated January 18, 2013 withdrawing certain outdated and obsolete regulation submittals and replacing them with currently effective versions of the regulation for approval and inclusion into the SIP.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). sradovich on DSK3GMQ082PROD with RULES SUMMARY: VerDate Sep<11>2014 16:12 Jan 26, 2018 Jkt 244001 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 http://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 http:// 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] PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\29JAR1.SGM 29JAR1 Federal Register / Vol. 83, No. 19 / Monday, January 29, 2018 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES 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 VerDate Sep<11>2014 16:12 Jan 26, 2018 Jkt 244001 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). PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 3983 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). E:\FR\FM\29JAR1.SGM 29JAR1 sradovich on DSK3GMQ082PROD with RULES 3984 Federal Register / Vol. 83, No. 19 / Monday, January 29, 2018 / Rules and Regulations 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). VerDate Sep<11>2014 16:12 Jan 26, 2018 Jkt 244001 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 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 (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. E:\FR\FM\29JAR1.SGM 29JAR1 Federal Register / Vol. 83, No. 19 / Monday, January 29, 2018 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES 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 VerDate Sep<11>2014 16:12 Jan 26, 2018 Jkt 244001 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. PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 3985 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); E:\FR\FM\29JAR1.SGM 29JAR1 3986 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]


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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.

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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 http://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 
http://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