Proposed Rule2022-04719
Air Plan Approval; Maryland; Nonattainment New Source Review Requirements for 2015 8-Hour Ozone National Ambient Air Quality Standard
Primary source
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Published
March 7, 2022
Effective
October 27, 2020
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the Maryland Department of the Environment (MDE) on behalf of the State of Maryland (Maryland). This revision certifies that Maryland's existing nonattainment new source review (NNSR) program, covering the Baltimore nonattainment area, the Philadelphia-Wilmington-Atlantic City nonattainment area, and the Washington, DC nonattainment area for the 2008 8-hour ozone national ambient air quality standards (NAAQS), is at least as stringent as applicable Federal requirements. EPA is proposing to approve this revision in accordance with the requirements of the Clean Air Act (CAA). Additionally, EPA is withdrawing a prior proposed approval of a related Maryland SIP submittal regarding ozone interprecursor trading.
Full Text
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<title>Federal Register, Volume 87 Issue 44 (Monday, March 7, 2022)</title>
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[Federal Register Volume 87, Number 44 (Monday, March 7, 2022)]
[Proposed Rules]
[Pages 12631-12633]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-04719]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2021-0662; FRL-9465-01-R3]
Air Plan Approval; Maryland; Nonattainment New Source Review
Requirements for 2015 8-Hour Ozone National Ambient Air Quality
Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and withdrawal of a prior proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a state implementation plan (SIP) revision submitted by the
Maryland Department of the Environment (MDE) on behalf of the State of
Maryland (Maryland). This revision certifies that Maryland's existing
nonattainment new source review (NNSR) program, covering the Baltimore
nonattainment area, the Philadelphia-Wilmington-Atlantic City
nonattainment area, and the Washington, DC nonattainment area for the
2008 8-hour ozone national ambient air quality standards (NAAQS), is at
least as stringent as applicable Federal requirements. EPA is proposing
to approve this revision in accordance with the requirements of the
Clean Air Act (CAA). Additionally, EPA is withdrawing a prior proposed
approval of a related Maryland SIP submittal regarding ozone
interprecursor trading.
DATES: The proposed rule published on October 27, 2020 (85 FR 68029) is
withdrawn as of March 7, 2022. Written comments on the proposed
approval must be received on or before April 6, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2021-0662 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. For either manner of submission, EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be confidential business information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located
[[Page 12632]]
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Yongtian He, Permits Branch (3AD10),
Air & Radiation Division, U.S. Environmental Protection Agency, Region
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone
number is (215) 814-2339. Mr. He can also be reached via electronic
mail at <a href="/cdn-cgi/l/email-protection#eda588c3b482838a99848c83ad889d8cc38a829b"><span class="__cf_email__" data-cfemail="f6be93d8af999891829f9798b6938697d8919980">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On June 3, 2020, MDE submitted SIP #20-05: ``Nonattainment New
Source Review (NNSR) Certification for the State of Maryland 2015 Ozone
NAAQS Nonattainment Areas,'' (#20-05) as a revision to Maryland's SIP.
In this SIP revision, MDE 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 Maryland portion of Philadelphia-Wilmington-Atlantic
City nonattainment area (which includes Cecil County in Maryland), and
the Maryland portion of the Washington, DC nonattainment area (which
includes Calvert, Charles, Frederick, Montgomery, and Prince Georges
Counties in Maryland) for the 2015 8-hour ozone NAAQS, is at least as
stringent as the requirements at 40 CFR 51.165 for ozone and its
precursors.
On October 1, 2015 (effective December 28, 2015), EPA promulgated a
revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). 80 FR
65292 (October 26, 2015). Under EPA's regulations at 40 CFR 50.19, the
2015 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 concentration is less than or equal to 0.070 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 Baltimore nonattainment
area, the Philadelphia-Wilmington-Atlantic City nonattainment area, and
the Washington, DC-MD-VA area were classified as marginal nonattainment
for the 2015 8-hour ozone NAAQS on June 4, 2018 (effective August 3,
2018) using 2014-2016 ambient air quality data. 83 FR 25776 (June 4,
2018).
On December 6, 2018, 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 2015 8-hour ozone NAAQS.
Areas that were designated as marginal ozone nonattainment areas are
required to attain the 2015 8-hour ozone NAAQS no later than August 3,
2021.\1\ 83 FR 10376 (March 9, 2018) and 83 FR 62998 (December 6,
2018).
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\1\ EPA has not yet formally determined whether these areas
timely attained, and any such final determination will be made by
EPA in a future action.
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II. Summary of SIP Revision and EPA Analysis
This rulemaking is specific to Maryland's NNSR requirements for the
Baltimore nonattainment area, the Philadelphia-Wilmington-Atlantic City
nonattainment area, and the Washington, DC-MD-VA nonattainment area.
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. The specific NNSR requirements for the
ozone NAAQS are located in 40 CFR 51.160 through 51.165. 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
effective date of area designations for the 2015 8-hour ozone standard
(i.e., August 3, 2021).
The minimum SIP requirements for NNSR permitting programs for the
2015 8-hour ozone NAAQS are set forth in 40 CFR 51.165. See 40 CFR
51.1114. The SIP for each ozone nonattainment area must contain NNSR
provisions that: Set major source thresholds for oxides of nitrogen
(NO<INF>X</INF>) and volatile organic compounds (VOCs) 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 NO<INF>X</INF> 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); \2\ set
significant emissions rates for VOC and NO<INF>X</INF> 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 NO<INF>X</INF> pursuant to 40 CFR 51.165(a)(8); and
set offset ratios for VOC and NO<INF>X</INF> pursuant to 40 CFR
51.165(a)(9) (ii)-(iv). For the 2015 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).
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\2\ EPA notes that neither COMAR 26.11.17 nor Maryland's
approved SIP have the regulatory provision for any emissions change
of VOC in extreme nonattainment areas, specified in 40 CFR
51.165(a)(1)(v)(F), because Maryland has never had an area
designated extreme nonattainment for any of the ozone NAAQS. Thus,
the Maryland SIP is not required to have this requirement for VOC in
extreme nonattainment areas until such time as Maryland has an
extreme ozone nonattainment area.
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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 June 3, 2020 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
nonattainment area, the Washington, DC nonattainment area, and the
Baltimore nonattainment area. EPA last approved revisions to the SIP
approved version of Maryland's NNSR rule in 2018 in response to EPA's
February 3, 2017 Findings of Failure to Submit for various requirements
relating to the 2008 8-hour ozone NAAQS. 83 FR 3982 (January 29, 2018).
Maryland has not changed these major stationary source threshold
provisions in COMAR 26.11.17.01(17), so they remain in Maryland's
federally approved SIP.\3\ All of the sources located in the 2015 8-
hour ozone nonattainment areas in Maryland are required to meet a major
stationary source threshold of 25 tons or
[[Page 12633]]
more per year of VOC or NO<INF>X</INF>. Because Maryland's major
stationary source thresholds were established for the 1997 8-hour ozone
NAAQS nonattainment designations, they have been changed, and therefore
they are more stringent than required by the 2008 and 2015 8-hour ozone
NAQQS.
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\3\ 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.
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COMAR 26.11.17 currently includes provisions allowing ozone
interprecursor trading. On January 31, 2020, MDE submitted a SIP
revision (#20-02) to incorporate the interprecursor trading provisions
of COMAR 26.11.17 into the Maryland SIP. On October 27, 2020, EPA
published a notice of proposed rulemaking (NPRM) in which EPA proposed
to approve Maryland SIP revision #20-02). 85 FR 68029 (October 27,
2020). MDE's SIP Revision #20-05 submission to EPA referenced those
interprecursor trading provisions of COMAR 26.11.17 in its
certification that Maryland's NNSR program was consistent with Federal
requirements. Subsequently, on January 29, 2021, the United States
Court of Appeals for the D.C. Circuit concluded that ozone
interprecursor trading is not permissible under the CAA and vacated
ozone interprecursor trading, i.e., the interprecursor trading
provision in the Federal NNSR regulations. Sierra Club v. EPA, 985 F.3d
1055 (D.C. Cir. 2021). EPA removed the language allowing interprecursor
trading for ozone and restored the language in the NNSR regulations to
the form it was in after the EPA's 2008 p.m.2.5 implementation rule. 86
FR 37918 (July 19, 2021). After the court decision and EPA's withdrawal
of the interprecursor trading provisions, by letter dated October 26,
2021, Maryland withdrew SIP revision #20-02 with the interprecursor
trading provisions in its entirety. Additionally, in a separate
clarification letter dated October 26, 2021, MDE requested that EPA
withdraw from EPA's consideration those portions of SIP revision #20-05
which related to ozone interprecursor trading. Furthermore, MDE
committed to removing the interprecursor trading provisions from COMAR
and to not implementing them in the interim. Consequently, those
provisions are no longer pending action before EPA. EPA is publishing
this notice of proposed rulemaking to notify commenters that EPA no
longer intends to take final action on SIP revision #20-02 or to
consider that SIP revision in this proposal to approve SIP revision
#20-05.
III. Proposed Action
EPA's review of this material indicates that the Maryland'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. EPA is proposing to approve Maryland's
SIP revision addressing the NNSR requirements for the 2015 8-hour ozone
NAAQS for the Baltimore, MD, Philadelphia-Wilmington-Atlantic City, PA-
NJ-MD-DE, and Washington, DC-MD-VA nonattainment areas, which was
submitted on June 3, 2020. EPA is soliciting public comments on the
issues discussed in the proposed approval. These comments will be
considered before taking final action. Additionally, because MDE has
officially withdrawn its January 31, 2020 SIP revision #20-02 in its
entirety, EPA is withdrawing the proposed action for that SIP revision
in this action.
IV. 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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> 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 proposed 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2022-04719 Filed 3-4-22; 8:45 am]
BILLING CODE 6560-50-P
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