Approval and Promulgation of Air Quality Implementation Plans; Maryland; Preconstruction Requirements-Prevention of Significant Deterioration and Nonattainment New Source Review

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving several revisions to the Maryland State Implementation Plan (SIP) submitted by the Maryland Department of the Environment (MDE). These revisions pertain to preconstruction requirements under the Prevention of Significant Deterioration (PSD) and non-attainment New Source Review (NSR) programs. The SIP revisions satisfy the following required SIP elements: NSR Reform, oxides of nitrogen (NO_X) as a precursor to ozone, PM_2.5, and Greenhouse Gases (GHGs). Additionally, EPA is approving, as a separate action, Maryland's submittals for purposes of meeting the infrastructure requirements of the Clean Air Act (CAA) which relate to Maryland's PSD permitting program and are necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM_2.5 National Ambient Air Quality Standards (NAAQS) and the 2006 PM_2.5 NAAQS. This action is being taken under the CAA.

DATES:

Effective Date: This final rule is effective on September 4, 2012.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2011-0866. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT:

David Talley, (215) 814-2117, or by email at talley.david@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On March 19, 2012 (77 FR 15985), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of three SIP revision requests submitted by MDE, as described below.

II. Summary of SIP Revision

A. SIP Revision #07-13

On October 24, 2007 MDE submitted a SIP revision request to EPA which included amendments to Regulations .01-.03, repeal of existing Regulations .04 and .05, and the adoption of new Regulations .04-.09 under COMAR 26.11.17, Nonattainment Provisions for Major New Sources and Major Modifications. This SIP submittal revises the previously-approved versions of these rules as approved into the Maryland SIP on February 12, 2001 for COMAR 26.11.17 Regulations .02, .04, and .05 (66 FR 9766) and September 20, 2004 for COMAR 26.11.17 Regulations .01 and .03 (69 FR 56170). These amendments were adopted by Maryland on September 18, 2007 and became effective on October 22, 2007. The State adopted these regulations in order to meet the relevant plan requirements of Title 40 of the Code of Federal Regulations (CFR) 51.165 and the CAA. EPA is approving these amendments.

B. SIP Revision #09-03

On July 31, 2009, MDE submitted a SIP revision request to EPA that consisted of the incorporation by reference of the Federal PSD requirements at 40 CFR 52.21 as codified in the July 1, 2008 edition of the CFR. The SIP revision request included amendments to the MDE Regulation .01 under COMAR 26.11.01 (General Administrative Provisions) and Regulation .14 under COMAR 26.11.06 (General Emission Standards, Prohibitions, and Restrictions). On June 23, 2011, MDE submitted a letter, retracting the part of submission #09-03 which updated the incorporation by reference date. Since originally submitting #09-03, Maryland has adopted the federal regulations as they appear in the July 1, 2009 version of the CFR (See State Submission #11-02, below). Today's action approves only that part of the submission which clarifies the definitions of “Administrator” and “reviewing authority”.

This SIP submittal revises the previously-approved versions of these rules as approved into the Maryland SIP on May 28, 2002 (67 FR 36810). These amendments were adopted by Maryland on June 11, 2009 and became effective on July 16, 2009. The State adopted these regulations in order to meet the relevant plan requirements of 40 CFR 51.166 and the CAA. EPA is approving these amendments.

C. SIP Revision #11-02

On June 23, 2011, MDE submitted a SIP revision request to EPA that consisted of the incorporation by reference of the federal PSD requirements at 40 CFR 52.21 as codified in the July 1, 2009 edition of the CFR, as well as the incorporation of the revisions to 40 CFR 52.21 promulgated on May 13, 2010 in the Greenhouse Gas Tailoring Rule (75 FR 31514). The SIP revision request included amendments to the MDE Regulation .01 under COMAR 26.11.01 (General Administrative Provisions), Regulations .01 and .12 under COMAR 26.11.02 (Permits, Approvals, and Registration), and Regulation .14 under COMAR 26.11.06 (General Emission Standards, Prohibitions, and Restrictions).

This SIP submittal revises the previously-approved versions of these rules, approved as follows: COMAR 26.11.01.01 and COMAR 26.11.06.14 were adopted into the Maryland SIP on May 28, 2002 (67 FR 36810). COMAR 26.11.02.01 and .12 were adopted into the Maryland SIP on February 27, 2003 (68 FR 9012). These amendments were adopted by Maryland on April 14, 2011 and became effective on May 16, 2009. The State adopted these regulations in order to meet the relevant plan requirements of 40 CFR 51.166 and the CAA. EPA is approving these amendments.

As stated above, the SIP revisions submitted by MDE satisfy several required SIP elements: NSR Reform, NO_X as a precursor to ozone, PM_2.5, and Greenhouse Gases (GHGs). Additionally, EPA is approving, as a separate action, Maryland's submittals for purposes of meeting the infrastructure requirements of the CAA which relate to Maryland's PSD permitting program and are necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM_2.5 National Ambient Air Quality Standards (NAAQS) and the 2006 PM_2.5 NAAQS. Other specific requirements of MDE's SIP revisions and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

III. EPA's Response to Comments Received on the Proposed Action

EPA received a single set of relevant comments on its March 19, 2012 (77 FR 15985) proposed action to approve revisions to the Maryland SIP. These comments, provided by Mr. Robert Ukeiley on behalf of the Sierra Club, (hereinafter referred to as “the Commenter”), raised concerns about EPA's March 19, 2012 proposed action. A full set of these comments is provided in the docket for today's final action. A summary of the comments and EPA's responses are provided below.

Generally, the Commenter raises three areas of concern. First, the Commenter asserts that the proposed revisions to Maryland's nonattainment program cannot be approved into the Maryland SIP because the “reasonable possibility” requirements are not included in the proposed regulations. Second, the Commenter asserts that “NSR Reform” cannot be approved into the Maryland SIP because EPA has failed to demonstrate that the new program “ensures equivalent or greater emissions reductions * * *” in accordance with CAA section 193. Finally, the Commenter asserts that EPA cannot approve the 2006 PM_2.5 Infrastructure SIP because Maryland's incorporation by reference of the Federal regulations is ambiguous with respect to the regulation of NO_X and volatile organic compounds (VOC's) as precursors to PM_2.5, and because the proposed SIP revision does not include the PM_2.5 increments that were promulgated by EPA on October 20, 2010 (75 FR 64864). EPA's response to these comments is provided below.

Comment 1: The commenter asserts that the proposed SIP revision cannot be approved because it does not specifically contain the “reasonable possibility” provisions of 40 CFR 51.165(a)(6).

Response 1: As we noted in the notice of proposed rulemaking, EPA promulgated the “reasonable possibility” provisions of 40 CFR 51.165(a)(6) on December 21, 2007 (72 FR 72607), after MDE submitted the revisions that are the subject of this action. However, we also noted that while the reasonable possibility provisions are a required program element, permitting authorities can meet the requirements with equivalent regulations (See 77 FR 15988). Contrary to the assertions of the commenter, we look for equivalence of a state's provisions and do not impose a requirement that “ever[y] piece of information that is required by `reasonable possibility' requirements is required by [the State].” Maryland's robust minor NSR program contains provisions which are equivalent to 40 CFR 51.165(a)(6). The Code of Maryland Administrative Regulations (COMAR) lists the activities MDE deems to be “insignificant” and thus exempt from permitting requirements (See, COMAR 26.11.02.10). It is highly unlikely that any facility exceeding the 50 percent significant emissions rate threshold which triggers the requirements of 40 CFR 51.165(a)(6) would escape some level (major or minor) of preconstruction review under Maryland's regulations. Once a facility is subject to preconstruction review, Maryland's record keeping and reporting regulations meet or exceed all of the reasonable possibility requirements. MDE uses the authority under the general administrative provisions of COMAR 26.11.01 to require testing and monitoring (26.11.01.04), and recordkeeping and reporting (26.11.01.05). Thus, sources in Maryland that escape major NSR are not required merely to calculate baseline and projected actual emissions and keep records of those calculations onsite. Rather, for all but the most insignificant sources, those calculations are reviewed by MDE under their minor NSR program, and the testing, monitoring, recordkeeping and reporting requirements of COMAR 26.11.01 are incorporated into their preconstruction and operating permits. Additionally, the permit application requirements of 26.11.02.11, as well as MDE's general authority under 26.11.02.06 to deny an application that has failed to demonstrate compliance with Maryland's nonattainment NSR provisions (.06B(4)) or protection of the NAAQS (.06B(5)) all support a finding that Maryland has met the statutory requirements with regard to the reasonable possibility provisions.

Comment 2: The Commenter asserts that EPA cannot approve the 2002 NSR provisions into the Maryland SIP without demonstrating that the proposed revisions insure equivalent or greater emissions reductions than the previous program, in accordance with CAA section 193. Citing to the June 16, 2011 U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) decision in NRDC v. Jackson, the Commenter further asserts that in order provide such a demonstration, EPA must analyze data from states which have already adopted the NSR Reform provisions: “EPA can start by reviewing minor source permits for major sources of pollution in Georgia, New York, and North Carolina. EPA would need to determine which of these minor source permits would have triggered NA NSR under the old rules, using the actual to potential test and the shorter look back period. If any sources would have triggered [nonattainment] NSR under the old rules but did not trigger it under the `Reform' than (sic) the Reform did not provide equivalent or greater emission reductions” (See Comments at 2).

Response 2: The NSR Reform provisions at issue here have repeatedly withstood judicial review, and as we noted in our proposal, the revisions to the Maryland SIP largely mirror the Federal program. We disagree that the kind of analysis described by the Commenter is required in order to approve the revisions at issue into the SIP. We acknowledge the Seventh Circuit's admonishment against perpetual reliance on predictions over available data, as cited by the Commenter. However, as discussed below, EPA did not rely on the 2002 “Supplemental Environmental Analysis” which contained the predictions that were at issue in NRDC v. Jackson as the basis for approving these revisions into the Maryland SIP. Moreover, the number of permits that would have been required under pre-reform regulations is not determinative of whether a permitting authority has met its obligation with regard to CAA section 193: “* * * the statutes concern the quantity of emissions, not the quantity of permits” (See NRDC v. Jackson at 6). Additionally, it should be noted that the type of analysis recommended by the commenter fails to take into consideration the emission avoidances that occur when a source obtains a federally enforceable limit on its potential to emit (PTE) in order to avoid major NSR.

The primary Reform provision with which the Commenter takes issue is the actual-to-projected actual test. Our basis for approving these revisions rests upon the fact that this applicability test can only be utilized by a fraction of sources in the permitting universe. As we noted in our proposal, only modifications to existing emission units at major stationary sources can use the baseline-to-projected actual test. The list of sources potentially affected by the revisions being proposed in this action is further shortened by the fact that electric generating units were already permitted to use this test because of the regulations arising from litigation in the Wisconsin Electric Power Company (WEPCO) case. This is commonly referred to as the “WEPCO rule” (See, 57 FR 32314). Furthermore, any modification that did manage to avoid the requirement to obtain a major NSR permit using the test would still be subject to the preconstruction permit requirements of Maryland's minor NSR program, including any of the attendant testing, monitoring, recordkeeping and reporting requirements. Based on the limited number of potentially affected sources and the stringency of Maryland's minor NSR program, we stand behind our determination that approving the NSR Reform provisions into the SIP will have, at worst, a neutral impact on emissions in Maryland. We disagree with the Commenter's assertion that additional analysis is required.

Comment 3: The third comment relates to EPA's proposed approval of the portions of Maryland's 2006 PM_2.5 infrastructure SIP which relate to the PSD requirements of CAA section 110(a)(2). The Commenter asserts that EPA cannot approve the infrastructure SIP without: (A) clarifying the PM_2.5 precursor requirements for NO_X and VOC's, and (B) including the PM_2.5 increments which were promulgated by EPA on October 20, 2010.

Response 3: EPA believes Maryland has a PSD permitting program that is sufficient to meet the requirements in section 110(a)(2)(C), (D)(i)(II) and (J) of the CAA. In this final action, EPA is approving COMAR 26.11.06.14 which incorporates by reference 40 CFR section 52.21 (2009) which includes the Federal regulations identified by the Commenter. This final action incorporates into the Maryland SIP 40 CFR 52.21(b)(50)(i)(c) (providing NO_X is a precursor to PM_2.5) and 40 CFR 52.21(b)(50)(i)(d) (providing VOC's are presumed not to be precursors to PM_2.5) (See also May 18, 2008 “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM_2.5),” (73 FR 28321)). With respect to the PM_2.5 increments, as the Commenter noted, states have until July 20, 2012 to submit SIP revisions which incorporate the October 20, 2011 PM_2.5 increment requirements (See 75 FR 64864). Therefore, the Commenter's assertion is not relevant to this SIP action. EPA believes that it is unreasonable not to approve the 2006 PM_2.5 Infrastructure SIP because the State's SIP lacks requirements that EPA has not even required the State to submit yet. Instead, the EPA believes that it is appropriate for the EPA to take into consideration the timing and sequence of related SIP submissions as part of determining what it is reasonable to expect a State to have addressed in an infrastructure SIP for a NAAQS at the time when the EPA acts on such submission. Such an approach is reasonable, and to adopt a different approach by which the EPA could not act on an infrastructure SIP, or at least could not approve an infrastructure SIP, whenever there was any impending or future revision to the SIP that will be required by another collateral rulemaking action would result in regulatory gridlock. The EPA believes that such an outcome would be an unreasonable reading of the statutory process for the SIP's contemplated in section 110(a)(1) and (2). Based upon EPA's review of Maryland's PSD program, including the revisions subject to this action, Maryland has met its obligations pursuant to the portions of CAA section 110(a)(2) relating to PSD for the 1997 PM_2.5 NAAQS, the 1997 Ozone NAAQS, and the 2006 PM_2.5 NAAQS.

IV. Final Action

EPA is approving MDE's July 31, 2009 and June 23, 2011 SIP submittals as a revision to the Maryland SIP.

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 Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 1, 2012. 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 pertaining to preconstruction permitting requirements under Maryland's PSD and nonattainment NSR programs 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
• Carbon monoxide
• Greenhouse gases
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Therefore, 40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

2. In § 52.1070:

a. The table in paragraph (c) is amended by:

1. Adding an entry for COMAR 26.11.01.01 after the existing entry for COMAR 26.11.01.01.

2. Adding an entry for COMAR 26.11.02.01 after the existing entry for COMAR 26.11.02.01.

3. Revising the existing entries for COMAR 26.11.02.12, 26.11.06.14, and 26.11.17.01 through 26.11.17.05.

4. Adding entries for COMAR 26.11.17.06 through 26.11.17.09 in numerical order.

b. The table in paragraph (e) is amended by revising the entries for section 110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS, section 110(a)(2) Infrastructure Requirements for the 1997 PM _2.5 NAAQS, and section 110(a)(2) Infrastructure Requirements for the 2006 PM_2.5 NAAQS at the end of the table.

The revised and added text reads as follows: