Approval and Promulgation of Air Quality Implementation Plans; Maryland; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 36343-36348 [2020-11643]
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Federal Register / Vol. 85, No. 116 / Tuesday, June 16, 2020 / Rules and 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);
• 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, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
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The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by August 17, 2020. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: May 26, 2020.
Cheryl Newton,
Deputy Regional Administrator, Region 5.
Accordingly, 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.
2. Section 52.2585 is amended by
adding paragraph (kk) to read as
follows:
■
§ 52.2585
Control strategy: Ozone.
*
*
*
*
*
(kk) Second maintenance plan.
Approval—On December 13, 2019
Wisconsin submitted 1997 Ozone
NAAQS second maintenance plans for
the Kewaunee County, Door County,
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Manitowoc County, and MilwaukeeRacine areas. These second maintenance
plans are designed to keep the
Kewaunee County area in attainment of
the 1997 ozone NAAQS through 2028,
Door County and Manitowoc County in
attainment of the 1997 ozone NAAQS
though 2030, and the Milwaukee-Racine
area in attainment of the 1997 ozone
NAAQS through 2032.
[FR Doc. 2020–11690 Filed 6–15–20; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2018–0042; FRL–10009–
54–Region 3]
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Infrastructure Requirements
for the 2010 Sulfur Dioxide National
Ambient Air Quality Standard
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving portions of
a state implementation plan (SIP)
submittal from the State of Maryland.
The submittal pertains to the basic
program elements referred to as
infrastructure requirements for the 2010
sulfur dioxide (SO2) National Ambient
Air Quality Standard (NAAQS or
standard). EPA is approving certain
elements of the infrastructure SIP
submittal in accordance with the
requirements of the Clean Air Act
(CAA).
SUMMARY:
This final rule is effective on July
16, 2020.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2018–0042. 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.
DATES:
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FOR FURTHER INFORMATION CONTACT:
Marilyn Powers, Planning &
Implementation Branch (3AD30), Air &
Radiation Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103. The telephone number is (215)
814–2308. Ms. Powers can also be
reached via electronic mail at
powers.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On May 8, 2019 (84 FR 20070), EPA
published a notice of proposed
rulemaking (NPRM) for the State of
Maryland. In the NPRM, EPA proposed
approval of portions of Maryland’s
infrastructure SIP submittal for the 2010
SO2 NAAQS. The formal SIP revision
(16–11) was submitted by Maryland on
August 17, 2016.
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II. Summary of SIP Revision and EPA
Analysis
On August 17, 2016, Maryland,
through the Maryland Department of the
Environment (MDE) formally submitted
a SIP revision to satisfy certain
infrastructure requirements of section
110(a) of the CAA for the 2010 SO2
NAAQS. The SIP submittal addressed
the following infrastructure elements for
the 2010 SO2 NAAQS: CAA section
110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II),
D(ii), (E), (F), (G), (H), (J), (K), (L), and
(M). As explained in the NPRM, EPA is
not taking action in this rulemaking
related to Maryland’s submittal for the
interstate transport requirement of
section 110(a)(2)(D)(i)(I). EPA is taking
action on Maryland’s 2010 1-hour SO2
NAAQS infrastructure submission
related to the section 110(a)(2)(D)(i)(I)
requirements in a separate rulemaking.
The NPRM and the Technical Support
Document (TSD) provided EPA’s review
and rationale for proposing approval of
portions of Maryland’s submittal and
will not be restated here. The TSD is
available online at www.regulations.gov,
Docket ID Number EPA–R03–OAR–
2018–0042.
III. Public Comments and EPA’s
Responses
One anonymous commenter provided
comments in response to the May 8,
2019 proposed approval. EPA’s
responses to the comments are provided
in this document. The full text of the
comment is in the docket for this final
rule.
Comment 1: The commenter
questions the validity of EPA’s
statement in the TSD under CAA
section 110(a)(2)(B) that Maryland
maintains and operates a network of
ambient monitors throughout the State
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to measure ambient air quality levels
and to determine compliance with the
NAAQS, in light of the requirements
under the Data Requirements Rule
(DRR) for SO2. The commenter believes
that section 110(a)(2)(B) should be
disapproved until SO2 monitors are
installed at Brandon Shores, CP Crane,
Chalk Point, Herbert Wagner, Luke
Paper (Luke) and Morgantown, and that
the data should be captured and
reported to EPA and the public. The
commenter also states that EPA has
failed to take the DRR into consideration
in its determination that section
110(a)(2)(G) is approvable, despite its
finding that Maryland has shown under
section 110(a)(2)(B) that it has the
ability and authority to perform SO2 air
quality monitoring in accordance with
EPA’s requirements. The commenter
believes that installation of monitors at
the six sources in Maryland are required
under the DRR so that ambient SO2
levels near those sources can be
evaluated for comparison to significant
harm levels for SO2, and that EPA
should not approve section 110(a)(2)(B)
and (G) until Maryland installs more
SO2 monitors and reports the monitored
data to EPA and the public.
Response 1: The commenter refers to
the section 110(a)(2)(G) requirement in
the context of SO2 air quality
monitoring and the DRR. Section
110(a)(2)(G) requires that state
implementation plans have emergency
authority comparable to that contained
in section 303 of the CAA, and adequate
contingency plans to implement such
authority. In the proposed rule for this
action, the technical support document
lays out EPA’s rationale for proposing
approval of Maryland’s submittal for
section 110(a)(2)(G). The SIP-approved
Maryland regulations COMAR
26.11.05.03 and 26.11.05.04 establish
criteria for addressing emergency
episodes of SO2 in the State. However,
because the comment pertains to air
quality monitoring, EPA believes that
the commenter mistakenly cited to
section 110(a)(2)(G) and instead meant
to cite to the monitoring requirements
under section 110(a)(2)(F), which
pertain to the installation, maintenance,
and replacement of equipment, and the
implementation of stationary source
monitoring, periodic reports on
emissions and emissions-related data
from such sources, and correlation of
the reports with any emissions
limitations or standards. The section
110(a)(2)(F) requirement is discussed
later in this response. EPA agrees that
the six sources identified by the
commenter were listed by the State
under the DRR requirements, 40 CFR
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part 51, subpart BB, for characterization
of SO2 emissions,1 2 but EPA disagrees
that the DRR requires installation of SO2
monitors at all six of the sources. Under
the DRR, states were required to submit
a list to EPA that identified all sources
within the state having SO2 emissions
that exceeded a 2,000 tons per year (tpy)
annual threshold during the most recent
year for which emissions data for that
source was available, plus any
additional sources identified by the air
agency or by EPA as also warranting air
quality characterization. For each of the
listed sources, a state was required to
indicate by July 1, 2016, whether air
quality around the source would be
characterized through ambient
monitoring or through air quality
modeling. See 40 CFR 51.1203(b).
Alternatively, the state could indicate
that documentation would be provided
by January 13, 2017, that the listed
source was subject to federallyenforceable and in effect emission
limit(s) below 2,000 tpy or a shutdown.
If the state chose to install new SO2
monitor(s), the state was required to
include information about the new
monitors in the annual monitoring
network plan (AMNP) by July 1, 2016,
and to ensure that the new monitor(s)
were operational by January 1, 2017. If
the state chose to model a source, the
modeling protocol was required to be
submitted by July 1, 2016.
On June 30, 2016, Maryland
submitted a letter notifying EPA of the
State’s selected methods for
characterizing the SO2 emissions for the
six sources named by the commenter.3
The letter identified modeling as the
method for characterizing five of the
sources, and monitoring for
characterizing the Luke facility.4
1 Letter dated January 5, 2016 from Larry Hogan,
Maryland Governor to Shawn Garvin, Regional
Administrator recommending sources in Maryland
subject to the DRR, available in the docket for this
rulemaking action or at https://www.epa.gov/sites/
production/files/2016-06/documents/md.pdf.
2 Letter dated March 16, 2016 from Shawn
Garvin, Regional Administrator to Benjamin H.
Grumbles, Maryland Secretary, agreeing with the
Maryland recommendation, available in the docket
for this rulemaking action, or at https://
www.epa.gov/sites/production/files/2016-06/
documents/md-response.pdf.
3 Available at https://www.epa.gov/sites/
production/files/2016-07/documents/maryland_
source_characterization.pdf.
4 Three of the listed sources (Brandon Shores, CP
Crane, and Herbert A. Wagner) that the State chose
the modeling pathway for are located in an area that
EPA designated nonattainment under the 2010 SO2
NAAQS in July 2016 after consideration of all
available modeling, including modeling submitted
by the State. See Air Quality Designations for the
2010 Sulfur Dioxide (SO2) Primary National
Ambient Air Quality Standard—Round 2 (81 FR
45039, July 12, 2016). For the reasons explained in
this response regarding listed sources for which a
state chose the modeling pathway, EPA disagrees
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Maryland’s 2016 AMNP includes the
following narrative of the chosen option
to characterize SO2 concentrations
around each of these sources, as follows:
‘‘This final rule gives air agencies the
flexibility to characterize air quality
using either modeling of actual source
emissions or using appropriately sited
ambient air quality monitors. At the
time of this publication, all sources
except Verso Luke Mill are expected to
model their emissions. Verso Luke Mill
submitted a draft monitoring plan to
MDE in March 2016. When Verso Luke
Mill has submitted a complete package
of material describing their proposed
monitoring plan, an addendum to this
Network Plan will be published and
made available for a separate 30-day
public comment period. The same July
2016 submission deadline to EPA will
apply to this addendum.’’ 5 This
language in the AMNP notes that the
DRR provides Maryland the flexibility
to choose between modeling and
monitoring for each source subject to
the requirements of the DRR, which
Maryland exercised in its decision to
use air quality modeling to characterize
five sources’ SO2 emissions and
monitoring to characterize Luke’s SO2
emissions. The DRR does not mandate
installation of SO2 monitors at the
sources Maryland chose to characterize
through air quality modeling. To meet
the modeling pathway for Chalk Point
and Morgantown Generating Stations,
Maryland submitted a modeling
analysis for the area surrounding each
source on December 19, 2016, prior to
the January 13, 2017 submission date
required by the DRR. Before the
modeling analysis was submitted to
EPA, a modeling protocol was
developed to outline the procedures to
follow for the modeling analysis. To
meet the monitoring pathway for Luke
in Allegany County, Maryland installed
three monitors to characterize the SO2
emissions around Luke, including one
monitor in West Virginia. The new
monitors began operation on January 1,
2017.
EPA also disagrees with the comment
that section 110(a)(2)(B) and 110(a)(2)(F)
should be disapproved because of a lack
of SO2 monitors, which the commenter
believes is required under the DRR. As
discussed above, the DRR provides
states the option to either model or
monitor SO2 emissions around listed
that the DRR required monitors to characterize SO2
emissions around Brandon Shores, CP Crane, and
Herbert A. Wagner.
5 The ‘‘publication’’ referred to is the AMNP as
published in the Maryland Register. The AMNP
lists all six of the sources named by the commenter,
with Luke as the only source to be characterized by
monitoring.
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DRR sources, and Maryland chose to
model for certain sources. With this in
mind, EPA found that for SO2,
Maryland’s monitoring network is
sufficient under section 110(a)(2)(B) to
monitor, compile and analyze data on
SO2 ambient data, and Maryland does
provide monitored or modeled data to
EPA upon request. The TSD for the
NPRM provides EPA’s analysis of how
Maryland’s submittal met the
requirements for section 110(a)(2)(B)
and 110(a)(2)(F). Maryland’s authority
to monitor and analyze ambient air
quality is found in sections 2–103(b)(2)
and 2–301(a)(1) of the Environment
Article, Annotated Code of Maryland.
The ambient air quality standards,
definitions, reference conditions, and
methods of measurement have been
approved into the SIP and are found
under COMAR 26.11.04.02. Regarding
the validity of Maryland’s SO2
monitoring network under 110(a)(2)(B),
EPA affirms that Maryland maintains
and operates a network of ambient SO2
monitors throughout the State meeting
the requirements of the DRR and other
applicable requirements, to measure
ambient air quality levels and to
determine compliance with the NAAQS.
As required by 40 CFR 58.10, Maryland
submits an AMNP annually to EPA that
details any modifications to the
sampling network. Maryland also
submits a periodic network assessment
to EPA every five years to determine if
the network meets the monitoring
objectives defined in 40 CFR part 58,
appendix D, and to determine whether
(1) new sites are needed, (2) existing
sites are no longer needed and can be
terminated, and (3) new technologies
are appropriate for inclusion into the
network. As required by 40 CFR 51.320,
Maryland submits all ambient air
quality data and associated quality
assurance data for SO2 to EPA’s Air
Quality System (AQS) in accordance
with the schedule prescribed by EPA in
40 CFR 58.16. The 2016, 2017, and 2018
AMNP plans are provided in the docket
for this rulemaking.6 Therefore, the
NPRM proposed to determine that
Maryland met the requirements under
section 110(a)(2)(B) of the CAA.
Regarding section 110(a)(2)(F), EPA
finds that Maryland’s SIP contains
authority meeting the requirements to
require sources to install, maintain and
replace equipment necessary to monitor
emissions from sources, the
requirements to provide for periodic
reports on the nature and amount of
emissions from sources, and correlation
6 The 2016, 2017, and 2018 AMNP Plans were
approved by EPA November 10, 2016, November
17, 2017, and October 26, 2018, respectively.
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36345
of reports to the standard. Section 2–103
and 2–301 of the Environment Article,
Annotated Code of Maryland, provides
the authority for monitoring of air
emissions for sources in the State and
for adopting regulations to control air
pollution, including testing, monitoring,
record keeping, and emissions reporting
requirements. Under this authority,
Maryland has adopted, and EPA has
approved into the Maryland SIP,
provisions of Code of Maryland
(COMAR) 26.11—Air Quality that
require the installation, maintenance,
and replacement of equipment, and the
implementation of other necessary steps
by stationary sources for testing,
monitoring, recordkeeping, and
reporting of emissions. This SIPapproved requirement of COMAR 26.11
also establishes the authority needed to
require sources to provide for periodic
reports on the nature and amount of
emissions from such sources. Also
relevant to the requirements of section
110(a)(2)(F) is section .04(B)(4) of
Maryland regulation COMAR 26.11.01—
Testing and Monitoring, which requires
that all testing and monitoring reports
submitted to MDE under this section be
available for public inspection, and
Maryland makes the monitoring data
available to the public in real time at
this site: https://mde.maryland.gov/
programs/Air/AirQualityMonitoring/
Pages/index.aspx. The TSD for the
NPRM details EPA’s analysis of
Maryland’s submission related to
section 110(a)(2)(B) and 110(a)(2)(F),
and EPA’s determination that the
Maryland’s submittal meets the
requirements for these sections.
Comment 2: The commenter stated
that EPA should provide air quality data
to the public so the public does not have
to guess when facilities are polluting the
air, and that monitoring network plans
and modifications to the plans should
be made public as well. The commenter
also states that EPA should require
monitoring network plans be made
available to the public for comment so
the public can litigate based on
unbiased publicly available data.
Response 2: The quality-assured,
certified monitoring data collected by
the State is provided to the public.
Maryland makes the monitoring data
available to the public in real time at
this site: https://mde.maryland.gov/
programs/Air/AirQualityMonitoring/
Pages/index.aspx. After Maryland
submits the certified monitoring data to
EPA, EPA reviews the data, then posts
the emissions data to EPA’s AQS. The
AQS air monitoring data can be found
at this site: https://www.epa.gov/aqs.
EPA posts monitoring data and
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summary reports at this site: https://
www.epa.gov/outdoor-air-quality-data.
Regarding public notice for the
AMNP, EPA regulations at 40 CFR part
58, subpart B, require among other
things that the state provide the AMNP
for public inspection for at least 30 days
prior to submission to EPA. 40 CFR
58.10(a)(1). Maryland did provide a 30day public comment period on the 2016
AMNP, therefore, the public does have
an opportunity to comment on
Maryland’s AMNP at the state level. The
monitors installed to characterize SO2
emissions around the Luke facility are
required to continue in operation to
report ambient data and may not be shut
down unless the monitor meets specific
criteria under § 51.1203(c)(3) and 40
CFR part 58. Under 40 CFR 58.10,
AMNPs must go through Maryland’s
public process. Under 40 CFR 58.14,
modifications to the SO2 monitoring
network outside of the AMNP require
approval by the Regional Administrator
of EPA.
Comment 3: The commenter
questions why EPA has not yet taken
action on section 110(a)(2)(D)(i)(I), and
also questions EPA’s policy of taking
separate, later action on the portion of
the Maryland submittal related to this
section. In particular, the commenter
notes that EPA has had the submittal
since August 17, 2016, should have
taken action by now, and should not be
delaying action for a later date. The
commenter notes that Maryland had
until June 2, 2013 to submit this SIP and
that EPA had 18 months after that to
take final action on these SIPs, i.e.
December 2, 2014. The commenter
states that EPA must take action on this
section as soon as possible to prevent
harmful air pollution from negatively
impacting neighboring states like
Delaware, the District of Columbia,
Pennsylvania, New Jersey, West
Virginia, and Virginia. The commenter
also states that this comment serves as
a notice of intent to sue on EPA’s failure
to act on this section of the CAA within
the statutory time frame.
Response 3: EPA’s approach to
reviewing and taking action on
infrastructure SIPs is discussed in
numerous past infrastructure
rulemaking actions.7 In these past
actions, EPA explained an ambiguity in
section 110(a)(1) and (2) with respect to
infrastructure SIPs pertaining to
whether states must meet all of the
infrastructure SIP requirements in a
7 As an example, See Approval and Promulgation
of Air Quality Implementation Plans; Pennsylvania;
Infrastructure Requirements for the 2010 Nitrogen
Dioxide and 2012 Fine Particulate Matter National
Ambient Air Quality Standards (80 FR 26461, May
8, 2015).
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single SIP submission, and whether EPA
must act upon such SIP submission in
a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, EPA
interprets the CAA to allow states to
make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, EPA can elect to act
on such submissions either individually
or in a larger combined action.
Similarly, EPA interprets the CAA to
allow it to take action on the individual
parts of one larger, comprehensive
infrastructure SIP submission for a
given NAAQS without concurrent
action on the entire submission.
Therefore, EPA has sometimes elected
to act at different times on various
elements and sub-elements of the same
infrastructure SIP submission.
This is discussed in the guidance
issued on September 13, 2013 (2013
Infrastructure Guidance).8 The 2013
Infrastructure Guidance explains that
EPA has historically, when reviewing
infrastructure SIP submissions, operated
on the basis that the elements and subelements of section 110(a)(2) for a given
NAAQS are, for the most part, severable.
EPA intends to continue its practice of
acting on infrastructure SIP elements
together or separately, as appropriate,
including in this instance, where EPA is
taking separate action on the section
110(a)(2)(D)(i)(I) portion of Maryland’s
submittal.9
EPA acknowledges that it has not met
the statutory date for action on this
Maryland submittal. However, this
action will discharge EPA’s statutory
obligation related to section
110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M) of
the CAA. With regard to this comment
as a notice of intent to sue on the
section 110(a)(2)(D)(i)(I) portion of the
submittal, section 304(a) of CAA sets
forth the circumstances under which a
citizen can sue under the CAA.
However, section 304(b) states that no
action can be commenced ‘‘prior to 60
days after the plaintiff has given notice
of such action to the Administrator.’’
Section 304(b)(2) stipulates that such
notice ‘‘shall be given in such manner
8 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
9 In a separate action on April 22, 2020 (85 FR
22381), EPA proposed to disapprove the portion of
Maryland’s August 17, 2016 infrastructure SIP
submittal for section 110(a)(2)(D)(i)(II) related to
interstate transport of emissions.
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as the Administrator may prescribe by
regulation.’’ The regulations at 40 CFR
part 54 require that a notice of intent to
sue be served on the Administrator by
certified mail. 40 CFR 54.2(a). Title 40
CFR 54.3 specifies the content of such
notice and requires, among other things,
the full name and address of the person
giving notice. So, a citizen intending to
file a notice of intent to sue on EPA’s
mandatory duty to act on any portion of
the Maryland submittal is required to do
so via certified mail directly to
Administrator, which would also need
to meet the other requirements specified
in 40 CFR part 54. EPA, therefore, does
not consider this comment as meeting
the requirements for notice of a
mandatory duty suit.
Comment 4: The commenter
questions EPA’s proposed approval of
section 110(a)(2)(E) based on Maryland’s
staff of 43 people, and that EPA needs
to clarify whether these 43 individuals
are working on only the SO2 SIP or if
they also have other work
responsibilities. The commenter
believes that EPA should show that
these 43 people are able to handle all
their assigned duties. The commenter
also questions EPA’s determination that
MDE has adequate funding without an
analysis of MDE’s revenue and expenses
and believes that EPA should perform a
financial audit of MDE to ensure the
State has adequate funding to perform
their obligations under the CAA.
Response 4: As stated in the TSD for
the NPRM, EPA’s evaluation indicates
that the State of Maryland has the
staffing and funding resources to meet
SIP obligations under section
110(a)(2)(E). Maryland’s budget and staff
level has been consistent over the past
number of years and over these years,
Maryland has been able to meet its
statutory commitments, including
submission of required air quality data
and annual monitoring network plans.
Maryland has an EPA-approved fee
program under CAA title V which is
used to support title V program
elements such as permitting,
monitoring, testing, inspections, and
enforcement. EPA conducts periodic
title V fee and program audits in
accordance with generally accepted
government auditing standards.
Maryland regulation COMAR
26.11.02.19 provides fee schedules and
other relevant fee information regarding
title V permits and state permits to
operate. Additionally, MDE receives
grant funding annually from EPA
through CAA section 105 to assist the
State with the costs of implementing
programs for the prevention and control
of air pollution or implementation of
national primary and secondary ambient
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air quality standards. The CAA section
105 grant funding MDE receives goes
through an evaluation process under the
requirements of 40 CFR part 35, subpart
A, which call for the State and EPA to
jointly evaluate and report progress and
accomplishments under the work plan.
Maryland also has various permit
programs that are self-funded as they
apply fees for permit applications. Most
of these permit program fees can be
adjusted if the State determines that the
fee does not cover the reasonable costs
of reviewing and acting upon the permit
applications.
In addition to the EPA programs
through which funding is received,
MDE’s infrastructure SIP submission
identifies the organizations that
participate in developing,
implementing, and enforcing the EPAapproved SIP provisions related to a
new or revised NAAQS and the
associated resources. Maryland’s
Environmental Trust Fund,
administered by the Maryland
Department of Natural Resources (DNR),
provides Maryland with annual funding
that is used by the State to conduct air
quality modeling, and also funds the
Maryland Power Plan Research
Program. Also, the Public Service
Commission (PSC) collects application
fees from power plants to fund its
regulatory program. Based on a review
of the existing resources, EPA has
concluded that Maryland has met the
funding requirements of section
110(a)(2)(E) and has adequate personnel
to implement the SIP.
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IV. Final Action
EPA is approving Maryland’s August
17, 2016 infrastructure SIP submission
which addresses the basic program
elements, or portions thereof, specified
in sections 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K),
(L), and (M) of the CAA, necessary to
implement, maintain, and enforce the
2010 SO2 NAAQS. EPA is approving
Maryland’s infrastructure SIP submittal
for the 2010 SO2 NAAQS for these
elements. As noted previously, EPA is
taking separate action on the portion of
the MDE submittal related to transport
i.e., section 110(a)(2)(D)(i)(I). Maryland’s
submittal did not address section
110(a)(2)(I) or the nonattainment new
source review (NNSR) permitting
program requirements of section
110(a)(2)(C), which pertain to the
nonattainment planning requirements of
part D of the CAA. States are required
to submit those nonattainment area
requirements under a different timeline
as statutorily required under part D of
the CAA.
VerDate Sep<11>2014
17:22 Jun 15, 2020
Jkt 250001
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);
• 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,
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
36347
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 August 17, 2020. 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 portions of Maryland’s
infrastructure SIP submittal for the 2010
SO2 NAAQS 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,
Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: May 26, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
Accordingly, 40 CFR part 52 is
amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
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Federal Register / Vol. 85, No. 116 / Tuesday, June 16, 2020 / Rules and Regulations
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
■
Applicable
geographic
area
Name of non-regulatory
SIP revision
*
Section 110(a)(2) Infrastructure Requirements
for the 2010 SO2
NAAQS.
State
submittal
date
*
Statewide ....
*
08/17/16
DEPARTMENT OF VETERANS
AFFAIRS
48 CFR Parts 804, 805, 849, and 852
VA Acquisition Regulation:
Administrative and Information
Matters; Publicizing Contract Actions;
and Termination of Contracts
Department of Veterans Affairs.
Final rule.
AGENCY:
The Department of Veterans
Affairs (VA) is amending and updating
its VA Acquisition Regulation (VAAR)
in phased increments to revise or
remove any policy superseded by
changes in the Federal Acquisition
Regulation (FAR), to remove procedural
guidance internal to VA into the VAAM,
and to incorporate any new agency
specific regulations or policies. These
changes seek to align the VAAR with
the FAR and remove outdated and
duplicative requirements and reduce
burden on contractors. The VAAM
incorporates portions of the removed
VAAR as well as other internal agency
acquisition policy. VA will rewrite
certain parts of the VAAR and VAAM,
and as VAAR parts are rewritten, will
publish them in the Federal Register. In
particular, this rulemaking revises
VAAR coverage concerning
Administrative and Information Matters,
Publicizing Contract Actions, and
Termination of Contracts, as well as an
affected part concerning Solicitation
Provisions and Contract Clauses.
DATES: This rule is effective on July 16,
2020.
lotter on DSK30NT082PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:22 Jun 15, 2020
*
6/16/20, [insert Federal
Register citation].
Jkt 250001
On February 13, 2020, VA published
a proposed rule in the Federal Register
(85 FR 8242) which announced VA’s
intent to amend regulations for VAAR
Case RIN 2900–AQ77 (parts 804, 805,
849, and 852). VA provided a 60-day
comment period for the public to
respond to the proposed rule and
submit comments. The comment period
for the proposed rule ended on April 13,
2020 and VA received no comments.
This rule adopts as a final rule, without
changes, the proposed rule published in
the Federal Register on February 13,
2020.
Technical Non-Substantive Changes to
the Proposed Rule
This rule makes one non-substantive
change to the proposed rule to ensure
compliance with the FAR. A recent
update in 84 FR 40220, dated Aug. 13,
2019, revised the FAR part 4 heading
from ‘‘Administrative Matters’’ to
‘‘Administrative and Information
Matters.’’ This final rule includes this
technical non-substantive change to the
heading under 804 to ‘‘Administrative
and Information Matters.’’
Executive Orders 12866, 13563, and
13771
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, when regulation is
necessary, to select regulatory
approaches that maximize net benefits
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
Identification of plan.
*
*
(e) * * *
*
*
*
*
*
§ 52.1070 is amended. This action addresses the following CAA elements: 110(a)(2)(A), (B), (C),
(D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and
(M). This action does not address CAA sections
110(a)(D)(i)(I) and 110(a)(2)(I), nor does it address
the portion of section 110(a)(2)(C) related to
NNSR.
Background
RIN 2900–AQ77
*
Additional explanation
Mr.
Rafael N. Taylor, Senior Procurement
Analyst, Procurement Policy and
Warrant Management Services, 003A2A,
425 I Street NW, Washington, DC 20001,
(202) 382–2787. (This is not a toll-free
number.)
SUPPLEMENTARY INFORMATION:
BILLING CODE 6560–50–P
§ 52.1070
EPA approval date
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2020–11643 Filed 6–15–20; 8:45 am]
ACTION:
‘‘Section 110(a)(2) Infrastructure
Requirements for the 2010 SO2
NAAQS’’ at the end of the table to read
as follows:
(including potential economic,
environmental, public health and safety
effects, and other advantages;
distributive impacts; and equity). E.O.
13563 (Improving Regulation and
Regulatory Review) emphasizes the
importance of quantifying both costs
and benefits, reducing costs,
harmonizing rules, and promoting
flexibility. The Office of Information
and Regulatory Affairs has determined
that this rule is not a significant
regulatory action under Executive Order
12866.
VA’s impact analysis can be found as
a supporting document at https://
www.regulations.gov, usually within 48
hours after the rulemaking document is
published. Additionally, a copy of the
rulemaking and its impact analysis are
available on VA’s website at https://
www.va.gov/orpm/, by following the
link for ‘‘VA Regulations Published
From FY 2004 Through Fiscal Year to
Date.’’
This final rule is not subject to the
requirements of E.O. 13771 because this
rule is not significant under E.O. 12866.
Paperwork Reduction Act
This final rule contains no provisions
constituting a collection of information
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3521).
Regulatory Flexibility Act
The Secretary hereby certifies that
this final rule will not have a significant
economic impact on a substantial
number of small entities as they are
defined in the Regulatory Flexibility Act
(5 U.S.C. 601–612). This rulemaking
does not change VA’s policy regarding
small businesses, does not have an
economic impact to individual
businesses, and there are no increased
or decreased costs to small business
entities. On this basis, the final rule
would not have an economic impact on
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]]>Agencies
[Federal Register Volume 85, Number 116 (Tuesday, June 16, 2020)]
[Rules and Regulations]
[Pages 36343-36348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11643]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2018-0042; FRL-10009-54-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Infrastructure Requirements for the 2010 Sulfur Dioxide
National Ambient Air Quality Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
portions of a state implementation plan (SIP) submittal from the State
of Maryland. The submittal pertains to the basic program elements
referred to as infrastructure requirements for the 2010 sulfur dioxide
(SO2) National Ambient Air Quality Standard (NAAQS or
standard). EPA is approving certain elements of the infrastructure SIP
submittal in accordance with the requirements of the Clean Air Act
(CAA).
DATES: This final rule is effective on July 16, 2020.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2018-0042. 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.
[[Page 36344]]
FOR FURTHER INFORMATION CONTACT: Marilyn Powers, Planning &
Implementation Branch (3AD30), Air & Radiation Division, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2308. Ms. Powers can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On May 8, 2019 (84 FR 20070), EPA published a notice of proposed
rulemaking (NPRM) for the State of Maryland. In the NPRM, EPA proposed
approval of portions of Maryland's infrastructure SIP submittal for the
2010 SO2 NAAQS. The formal SIP revision (16-11) was
submitted by Maryland on August 17, 2016.
II. Summary of SIP Revision and EPA Analysis
On August 17, 2016, Maryland, through the Maryland Department of
the Environment (MDE) formally submitted a SIP revision to satisfy
certain infrastructure requirements of section 110(a) of the CAA for
the 2010 SO2 NAAQS. The SIP submittal addressed the
following infrastructure elements for the 2010 SO2 NAAQS:
CAA section 110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II), D(ii), (E),
(F), (G), (H), (J), (K), (L), and (M). As explained in the NPRM, EPA is
not taking action in this rulemaking related to Maryland's submittal
for the interstate transport requirement of section 110(a)(2)(D)(i)(I).
EPA is taking action on Maryland's 2010 1-hour SO2 NAAQS
infrastructure submission related to the section 110(a)(2)(D)(i)(I)
requirements in a separate rulemaking.
The NPRM and the Technical Support Document (TSD) provided EPA's
review and rationale for proposing approval of portions of Maryland's
submittal and will not be restated here. The TSD is available online at
www.regulations.gov, Docket ID Number EPA-R03-OAR-2018-0042.
III. Public Comments and EPA's Responses
One anonymous commenter provided comments in response to the May 8,
2019 proposed approval. EPA's responses to the comments are provided in
this document. The full text of the comment is in the docket for this
final rule.
Comment 1: The commenter questions the validity of EPA's statement
in the TSD under CAA section 110(a)(2)(B) that Maryland maintains and
operates a network of ambient monitors throughout the State to measure
ambient air quality levels and to determine compliance with the NAAQS,
in light of the requirements under the Data Requirements Rule (DRR) for
SO2. The commenter believes that section 110(a)(2)(B) should
be disapproved until SO2 monitors are installed at Brandon
Shores, CP Crane, Chalk Point, Herbert Wagner, Luke Paper (Luke) and
Morgantown, and that the data should be captured and reported to EPA
and the public. The commenter also states that EPA has failed to take
the DRR into consideration in its determination that section
110(a)(2)(G) is approvable, despite its finding that Maryland has shown
under section 110(a)(2)(B) that it has the ability and authority to
perform SO2 air quality monitoring in accordance with EPA's
requirements. The commenter believes that installation of monitors at
the six sources in Maryland are required under the DRR so that ambient
SO2 levels near those sources can be evaluated for
comparison to significant harm levels for SO2, and that EPA
should not approve section 110(a)(2)(B) and (G) until Maryland installs
more SO2 monitors and reports the monitored data to EPA and
the public.
Response 1: The commenter refers to the section 110(a)(2)(G)
requirement in the context of SO2 air quality monitoring and
the DRR. Section 110(a)(2)(G) requires that state implementation plans
have emergency authority comparable to that contained in section 303 of
the CAA, and adequate contingency plans to implement such authority. In
the proposed rule for this action, the technical support document lays
out EPA's rationale for proposing approval of Maryland's submittal for
section 110(a)(2)(G). The SIP-approved Maryland regulations COMAR
26.11.05.03 and 26.11.05.04 establish criteria for addressing emergency
episodes of SO2 in the State. However, because the comment
pertains to air quality monitoring, EPA believes that the commenter
mistakenly cited to section 110(a)(2)(G) and instead meant to cite to
the monitoring requirements under section 110(a)(2)(F), which pertain
to the installation, maintenance, and replacement of equipment, and the
implementation of stationary source monitoring, periodic reports on
emissions and emissions-related data from such sources, and correlation
of the reports with any emissions limitations or standards. The section
110(a)(2)(F) requirement is discussed later in this response. EPA
agrees that the six sources identified by the commenter were listed by
the State under the DRR requirements, 40 CFR part 51, subpart BB, for
characterization of SO2 emissions,1 2 but EPA
disagrees that the DRR requires installation of SO2 monitors
at all six of the sources. Under the DRR, states were required to
submit a list to EPA that identified all sources within the state
having SO2 emissions that exceeded a 2,000 tons per year
(tpy) annual threshold during the most recent year for which emissions
data for that source was available, plus any additional sources
identified by the air agency or by EPA as also warranting air quality
characterization. For each of the listed sources, a state was required
to indicate by July 1, 2016, whether air quality around the source
would be characterized through ambient monitoring or through air
quality modeling. See 40 CFR 51.1203(b). Alternatively, the state could
indicate that documentation would be provided by January 13, 2017, that
the listed source was subject to federally-enforceable and in effect
emission limit(s) below 2,000 tpy or a shutdown. If the state chose to
install new SO2 monitor(s), the state was required to
include information about the new monitors in the annual monitoring
network plan (AMNP) by July 1, 2016, and to ensure that the new
monitor(s) were operational by January 1, 2017. If the state chose to
model a source, the modeling protocol was required to be submitted by
July 1, 2016.
---------------------------------------------------------------------------
\1\ Letter dated January 5, 2016 from Larry Hogan, Maryland
Governor to Shawn Garvin, Regional Administrator recommending
sources in Maryland subject to the DRR, available in the docket for
this rulemaking action or at https://www.epa.gov/sites/production/files/2016-06/documents/md.pdf.
\2\ Letter dated March 16, 2016 from Shawn Garvin, Regional
Administrator to Benjamin H. Grumbles, Maryland Secretary, agreeing
with the Maryland recommendation, available in the docket for this
rulemaking action, or at https://www.epa.gov/sites/production/files/2016-06/documents/md-response.pdf.
---------------------------------------------------------------------------
On June 30, 2016, Maryland submitted a letter notifying EPA of the
State's selected methods for characterizing the SO2
emissions for the six sources named by the commenter.\3\ The letter
identified modeling as the method for characterizing five of the
sources, and monitoring for characterizing the Luke facility.\4\
[[Page 36345]]
Maryland's 2016 AMNP includes the following narrative of the chosen
option to characterize SO2 concentrations around each of
these sources, as follows: ``This final rule gives air agencies the
flexibility to characterize air quality using either modeling of actual
source emissions or using appropriately sited ambient air quality
monitors. At the time of this publication, all sources except Verso
Luke Mill are expected to model their emissions. Verso Luke Mill
submitted a draft monitoring plan to MDE in March 2016. When Verso Luke
Mill has submitted a complete package of material describing their
proposed monitoring plan, an addendum to this Network Plan will be
published and made available for a separate 30-day public comment
period. The same July 2016 submission deadline to EPA will apply to
this addendum.'' \5\ This language in the AMNP notes that the DRR
provides Maryland the flexibility to choose between modeling and
monitoring for each source subject to the requirements of the DRR,
which Maryland exercised in its decision to use air quality modeling to
characterize five sources' SO2 emissions and monitoring to
characterize Luke's SO2 emissions. The DRR does not mandate
installation of SO2 monitors at the sources Maryland chose
to characterize through air quality modeling. To meet the modeling
pathway for Chalk Point and Morgantown Generating Stations, Maryland
submitted a modeling analysis for the area surrounding each source on
December 19, 2016, prior to the January 13, 2017 submission date
required by the DRR. Before the modeling analysis was submitted to EPA,
a modeling protocol was developed to outline the procedures to follow
for the modeling analysis. To meet the monitoring pathway for Luke in
Allegany County, Maryland installed three monitors to characterize the
SO2 emissions around Luke, including one monitor in West
Virginia. The new monitors began operation on January 1, 2017.
---------------------------------------------------------------------------
\3\ Available at https://www.epa.gov/sites/production/files/2016-07/documents/maryland_source_characterization.pdf.
\4\ Three of the listed sources (Brandon Shores, CP Crane, and
Herbert A. Wagner) that the State chose the modeling pathway for are
located in an area that EPA designated nonattainment under the 2010
SO2 NAAQS in July 2016 after consideration of all
available modeling, including modeling submitted by the State. See
Air Quality Designations for the 2010 Sulfur Dioxide
(SO2) Primary National Ambient Air Quality Standard--
Round 2 (81 FR 45039, July 12, 2016). For the reasons explained in
this response regarding listed sources for which a state chose the
modeling pathway, EPA disagrees that the DRR required monitors to
characterize SO2 emissions around Brandon Shores, CP
Crane, and Herbert A. Wagner.
\5\ The ``publication'' referred to is the AMNP as published in
the Maryland Register. The AMNP lists all six of the sources named
by the commenter, with Luke as the only source to be characterized
by monitoring.
---------------------------------------------------------------------------
EPA also disagrees with the comment that section 110(a)(2)(B) and
110(a)(2)(F) should be disapproved because of a lack of SO2
monitors, which the commenter believes is required under the DRR. As
discussed above, the DRR provides states the option to either model or
monitor SO2 emissions around listed DRR sources, and
Maryland chose to model for certain sources. With this in mind, EPA
found that for SO2, Maryland's monitoring network is
sufficient under section 110(a)(2)(B) to monitor, compile and analyze
data on SO2 ambient data, and Maryland does provide
monitored or modeled data to EPA upon request. The TSD for the NPRM
provides EPA's analysis of how Maryland's submittal met the
requirements for section 110(a)(2)(B) and 110(a)(2)(F). Maryland's
authority to monitor and analyze ambient air quality is found in
sections 2-103(b)(2) and 2-301(a)(1) of the Environment Article,
Annotated Code of Maryland. The ambient air quality standards,
definitions, reference conditions, and methods of measurement have been
approved into the SIP and are found under COMAR 26.11.04.02. Regarding
the validity of Maryland's SO2 monitoring network under
110(a)(2)(B), EPA affirms that Maryland maintains and operates a
network of ambient SO2 monitors throughout the State meeting
the requirements of the DRR and other applicable requirements, to
measure ambient air quality levels and to determine compliance with the
NAAQS. As required by 40 CFR 58.10, Maryland submits an AMNP annually
to EPA that details any modifications to the sampling network. Maryland
also submits a periodic network assessment to EPA every five years to
determine if the network meets the monitoring objectives defined in 40
CFR part 58, appendix D, and to determine whether (1) new sites are
needed, (2) existing sites are no longer needed and can be terminated,
and (3) new technologies are appropriate for inclusion into the
network. As required by 40 CFR 51.320, Maryland submits all ambient air
quality data and associated quality assurance data for SO2
to EPA's Air Quality System (AQS) in accordance with the schedule
prescribed by EPA in 40 CFR 58.16. The 2016, 2017, and 2018 AMNP plans
are provided in the docket for this rulemaking.\6\ Therefore, the NPRM
proposed to determine that Maryland met the requirements under section
110(a)(2)(B) of the CAA.
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\6\ The 2016, 2017, and 2018 AMNP Plans were approved by EPA
November 10, 2016, November 17, 2017, and October 26, 2018,
respectively.
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Regarding section 110(a)(2)(F), EPA finds that Maryland's SIP
contains authority meeting the requirements to require sources to
install, maintain and replace equipment necessary to monitor emissions
from sources, the requirements to provide for periodic reports on the
nature and amount of emissions from sources, and correlation of reports
to the standard. Section 2-103 and 2-301 of the Environment Article,
Annotated Code of Maryland, provides the authority for monitoring of
air emissions for sources in the State and for adopting regulations to
control air pollution, including testing, monitoring, record keeping,
and emissions reporting requirements. Under this authority, Maryland
has adopted, and EPA has approved into the Maryland SIP, provisions of
Code of Maryland (COMAR) 26.11--Air Quality that require the
installation, maintenance, and replacement of equipment, and the
implementation of other necessary steps by stationary sources for
testing, monitoring, recordkeeping, and reporting of emissions. This
SIP-approved requirement of COMAR 26.11 also establishes the authority
needed to require sources to provide for periodic reports on the nature
and amount of emissions from such sources. Also relevant to the
requirements of section 110(a)(2)(F) is section .04(B)(4) of Maryland
regulation COMAR 26.11.01--Testing and Monitoring, which requires that
all testing and monitoring reports submitted to MDE under this section
be available for public inspection, and Maryland makes the monitoring
data available to the public in real time at this site: https://mde.maryland.gov/programs/Air/AirQualityMonitoring/Pages/index.aspx.
The TSD for the NPRM details EPA's analysis of Maryland's submission
related to section 110(a)(2)(B) and 110(a)(2)(F), and EPA's
determination that the Maryland's submittal meets the requirements for
these sections.
Comment 2: The commenter stated that EPA should provide air quality
data to the public so the public does not have to guess when facilities
are polluting the air, and that monitoring network plans and
modifications to the plans should be made public as well. The commenter
also states that EPA should require monitoring network plans be made
available to the public for comment so the public can litigate based on
unbiased publicly available data.
Response 2: The quality-assured, certified monitoring data
collected by the State is provided to the public. Maryland makes the
monitoring data available to the public in real time at this site:
https://mde.maryland.gov/programs/Air/AirQualityMonitoring/Pages/index.aspx. After Maryland submits the certified monitoring data to
EPA, EPA reviews the data, then posts the emissions data to EPA's AQS.
The AQS air monitoring data can be found at this site: https://www.epa.gov/aqs. EPA posts monitoring data and
[[Page 36346]]
summary reports at this site: https://www.epa.gov/outdoor-air-quality-data.
Regarding public notice for the AMNP, EPA regulations at 40 CFR
part 58, subpart B, require among other things that the state provide
the AMNP for public inspection for at least 30 days prior to submission
to EPA. 40 CFR 58.10(a)(1). Maryland did provide a 30-day public
comment period on the 2016 AMNP, therefore, the public does have an
opportunity to comment on Maryland's AMNP at the state level. The
monitors installed to characterize SO2 emissions around the
Luke facility are required to continue in operation to report ambient
data and may not be shut down unless the monitor meets specific
criteria under Sec. 51.1203(c)(3) and 40 CFR part 58. Under 40 CFR
58.10, AMNPs must go through Maryland's public process. Under 40 CFR
58.14, modifications to the SO2 monitoring network outside
of the AMNP require approval by the Regional Administrator of EPA.
Comment 3: The commenter questions why EPA has not yet taken action
on section 110(a)(2)(D)(i)(I), and also questions EPA's policy of
taking separate, later action on the portion of the Maryland submittal
related to this section. In particular, the commenter notes that EPA
has had the submittal since August 17, 2016, should have taken action
by now, and should not be delaying action for a later date. The
commenter notes that Maryland had until June 2, 2013 to submit this SIP
and that EPA had 18 months after that to take final action on these
SIPs, i.e. December 2, 2014. The commenter states that EPA must take
action on this section as soon as possible to prevent harmful air
pollution from negatively impacting neighboring states like Delaware,
the District of Columbia, Pennsylvania, New Jersey, West Virginia, and
Virginia. The commenter also states that this comment serves as a
notice of intent to sue on EPA's failure to act on this section of the
CAA within the statutory time frame.
Response 3: EPA's approach to reviewing and taking action on
infrastructure SIPs is discussed in numerous past infrastructure
rulemaking actions.\7\ In these past actions, EPA explained an
ambiguity in section 110(a)(1) and (2) with respect to infrastructure
SIPs pertaining to whether states must meet all of the infrastructure
SIP requirements in a single SIP submission, and whether EPA must act
upon such SIP submission in a single action. Although section 110(a)(1)
directs states to submit ``a plan'' to meet these requirements, EPA
interprets the CAA to allow states to make multiple SIP submissions
separately addressing infrastructure SIP elements for the same NAAQS.
If states elect to make such multiple SIP submissions to meet the
infrastructure SIP requirements, EPA can elect to act on such
submissions either individually or in a larger combined action.
Similarly, EPA interprets the CAA to allow it to take action on the
individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. Therefore, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.
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\7\ As an example, See Approval and Promulgation of Air Quality
Implementation Plans; Pennsylvania; Infrastructure Requirements for
the 2010 Nitrogen Dioxide and 2012 Fine Particulate Matter National
Ambient Air Quality Standards (80 FR 26461, May 8, 2015).
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This is discussed in the guidance issued on September 13, 2013
(2013 Infrastructure Guidance).\8\ The 2013 Infrastructure Guidance
explains that EPA has historically, when reviewing infrastructure SIP
submissions, operated on the basis that the elements and sub-elements
of section 110(a)(2) for a given NAAQS are, for the most part,
severable. EPA intends to continue its practice of acting on
infrastructure SIP elements together or separately, as appropriate,
including in this instance, where EPA is taking separate action on the
section 110(a)(2)(D)(i)(I) portion of Maryland's submittal.\9\
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\8\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\9\ In a separate action on April 22, 2020 (85 FR 22381), EPA
proposed to disapprove the portion of Maryland's August 17, 2016
infrastructure SIP submittal for section 110(a)(2)(D)(i)(II) related
to interstate transport of emissions.
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EPA acknowledges that it has not met the statutory date for action
on this Maryland submittal. However, this action will discharge EPA's
statutory obligation related to section 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the
CAA. With regard to this comment as a notice of intent to sue on the
section 110(a)(2)(D)(i)(I) portion of the submittal, section 304(a) of
CAA sets forth the circumstances under which a citizen can sue under
the CAA. However, section 304(b) states that no action can be commenced
``prior to 60 days after the plaintiff has given notice of such action
to the Administrator.'' Section 304(b)(2) stipulates that such notice
``shall be given in such manner as the Administrator may prescribe by
regulation.'' The regulations at 40 CFR part 54 require that a notice
of intent to sue be served on the Administrator by certified mail. 40
CFR 54.2(a). Title 40 CFR 54.3 specifies the content of such notice and
requires, among other things, the full name and address of the person
giving notice. So, a citizen intending to file a notice of intent to
sue on EPA's mandatory duty to act on any portion of the Maryland
submittal is required to do so via certified mail directly to
Administrator, which would also need to meet the other requirements
specified in 40 CFR part 54. EPA, therefore, does not consider this
comment as meeting the requirements for notice of a mandatory duty
suit.
Comment 4: The commenter questions EPA's proposed approval of
section 110(a)(2)(E) based on Maryland's staff of 43 people, and that
EPA needs to clarify whether these 43 individuals are working on only
the SO2 SIP or if they also have other work
responsibilities. The commenter believes that EPA should show that
these 43 people are able to handle all their assigned duties. The
commenter also questions EPA's determination that MDE has adequate
funding without an analysis of MDE's revenue and expenses and believes
that EPA should perform a financial audit of MDE to ensure the State
has adequate funding to perform their obligations under the CAA.
Response 4: As stated in the TSD for the NPRM, EPA's evaluation
indicates that the State of Maryland has the staffing and funding
resources to meet SIP obligations under section 110(a)(2)(E).
Maryland's budget and staff level has been consistent over the past
number of years and over these years, Maryland has been able to meet
its statutory commitments, including submission of required air quality
data and annual monitoring network plans. Maryland has an EPA-approved
fee program under CAA title V which is used to support title V program
elements such as permitting, monitoring, testing, inspections, and
enforcement. EPA conducts periodic title V fee and program audits in
accordance with generally accepted government auditing standards.
Maryland regulation COMAR 26.11.02.19 provides fee schedules and other
relevant fee information regarding title V permits and state permits to
operate. Additionally, MDE receives grant funding annually from EPA
through CAA section 105 to assist the State with the costs of
implementing programs for the prevention and control of air pollution
or implementation of national primary and secondary ambient
[[Page 36347]]
air quality standards. The CAA section 105 grant funding MDE receives
goes through an evaluation process under the requirements of 40 CFR
part 35, subpart A, which call for the State and EPA to jointly
evaluate and report progress and accomplishments under the work plan.
Maryland also has various permit programs that are self-funded as they
apply fees for permit applications. Most of these permit program fees
can be adjusted if the State determines that the fee does not cover the
reasonable costs of reviewing and acting upon the permit applications.
In addition to the EPA programs through which funding is received,
MDE's infrastructure SIP submission identifies the organizations that
participate in developing, implementing, and enforcing the EPA-approved
SIP provisions related to a new or revised NAAQS and the associated
resources. Maryland's Environmental Trust Fund, administered by the
Maryland Department of Natural Resources (DNR), provides Maryland with
annual funding that is used by the State to conduct air quality
modeling, and also funds the Maryland Power Plan Research Program.
Also, the Public Service Commission (PSC) collects application fees
from power plants to fund its regulatory program. Based on a review of
the existing resources, EPA has concluded that Maryland has met the
funding requirements of section 110(a)(2)(E) and has adequate personnel
to implement the SIP.
IV. Final Action
EPA is approving Maryland's August 17, 2016 infrastructure SIP
submission which addresses the basic program elements, or portions
thereof, specified in sections 110(a)(2)(A), (B), (C), (D)(i)(II),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA,
necessary to implement, maintain, and enforce the 2010 SO2
NAAQS. EPA is approving Maryland's infrastructure SIP submittal for the
2010 SO2 NAAQS for these elements. As noted previously, EPA
is taking separate action on the portion of the MDE submittal related
to transport i.e., section 110(a)(2)(D)(i)(I). Maryland's submittal did
not address section 110(a)(2)(I) or the nonattainment new source review
(NNSR) permitting program requirements of section 110(a)(2)(C), which
pertain to the nonattainment planning requirements of part D of the
CAA. States are required to submit those nonattainment area
requirements under a different timeline as statutorily required under
part D of the CAA.
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);
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 August 17, 2020. 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 portions of Maryland's infrastructure SIP
submittal for the 2010 SO2 NAAQS 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, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: May 26, 2020.
Cosmo Servidio,
Regional Administrator, Region III.
Accordingly, 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:
[[Page 36348]]
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 ``Section 110(a)(2) Infrastructure Requirements for the 2010
SO2 NAAQS'' at the end of the table to read as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(e) * * *
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Name of non-regulatory SIP Applicable State
revision geographic area submittal date EPA approval date Additional explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Statewide......... 08/17/16 6/16/20, [insert Sec. 52.1070 is
Infrastructure Requirements Federal Register amended. This action
for the 2010 SO2 NAAQS. citation]. addresses the
following CAA
elements:
110(a)(2)(A), (B),
(C), (D)(i)(II),
D(ii), (E), (F), (G),
(H), (J), (K), (L),
and (M). This action
does not address CAA
sections
110(a)(D)(i)(I) and
110(a)(2)(I), nor does
it address the portion
of section
110(a)(2)(C) related
to NNSR.
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[FR Doc. 2020-11643 Filed 6-15-20; 8:45 am]
BILLING CODE 6560-50-P
