[Federal Register Volume 77, Number 130 (Friday, July 6, 2012)]
[Rules and Regulations]
[Pages 39938-39943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16417]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0144; FRL-9695-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a revision to the Maryland State 
Implementation Plan (SIP) submitted by the State of Maryland, through 
the Maryland Department of the Environment (MDE), on February 13, 2012. 
This action is being taken in accordance with the requirements of the 
Clean Air Act (CAA) and EPA's rules for states to prevent any future 
and remedy any existing anthropogenic impairment of visibility in 
mandatory Class I areas through a regional haze program. EPA is also 
approving this revision as meeting the infrastructure requirements 
relating to visibility protection for the 1997 8-hour ozone National 
Ambient Air Quality Standard (NAAQS) and the 1997 and 2006 fine 
particulate matter (PM2.5) NAAQS.

DATES: This final rule is effective on August 6, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2012-0144. 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

[[Page 39939]]

available at the Maryland Department of the Environment, 1800 
Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: Jacqueline Lewis, (215) 814-2037, or 
by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is 
used, we mean EPA. On February 28, 2012 (77 FR 11839), EPA published a 
notice of proposed rulemaking (NPR) for the State of Maryland. The NPR 
proposed approval of Maryland's Regional Haze Plan for the first 
implementation period through 2018. The formal SIP revision (MDE SIP 
Number 12-01) was submitted by the State of Maryland on February 13, 
2012. EPA proposed to approve this revision since it assures reasonable 
progress toward the national goal of achieving natural visibility 
conditions in Class I areas for the first implementation period. EPA 
also proposed to approve this SIP revision as meeting the 
infrastructure requirements of section 110(a)(2)(D)(i)(II) and 
(a)(2)(J) of the CAA, relating to visibility protection for the 1997 8-
hour ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS.

II. Summary of SIP Revision

    The revision includes a long term strategy with enforceable 
measures ensuring reasonable progress towards meeting the reasonable 
progress goals for the first planning period through 2018. Maryland's 
Regional Haze Plan contains the emission reductions needed to achieve 
Maryland's share of emission reductions agreed upon through the 
regional planning process. Other specific requirements of the CAA and 
EPA's Regional Haze Rule (RHR) \1\ and the rationale for EPA's proposed 
action are explained in the NPR and will not be restated here. Timely 
adverse comments were submitted on EPA's February 28, 2012 NPR. A 
summary of the comments and EPA's responses are provided in Section III 
of this document. As discussed more fully in the Response to Comments 
below, EPA is also clarifying herein its approval of the BART 
determinations for sulfur dioxide (SO2), nitrogen oxides 
(NOX), and particulate matter (PM) for Unit 25 at the 
NewPage Luke Pulp and Paper Mill located in Allegany County in Luke, 
Maryland (NewPage Luke Mill) which we are approving into the Maryland 
SIP.
---------------------------------------------------------------------------

    \1\ EPA promulgated the RHR to address regional haze on July 1, 
1999 (64 FR 35714). The RHR revised existing visibility regulations 
to integrate into the regulation provisions addressing regional haze 
impairment and established a comprehensive visibility protection 
program for Class I areas. The requirements for regional haze, found 
at 40 CFR 51.308 and 51.309, are included in EPA's visibility 
protection regulations at 40 CFR 51.300-51.309.
---------------------------------------------------------------------------

III. Summary of Public Comments and EPA Response

    EPA received a number of comments on our proposal to approve 
Maryland's Regional Haze SIP submittal. Comments were received from the 
Luke Paper Company and the U.S. Forest Service. A joint letter from the 
Sierra Club and the National Parks Conservation Association (NPCA) was 
also received. The U.S. Forest Service acknowledged the work that the 
State of Maryland has accomplished and encouraged the State of Maryland 
to continue to reduce regional haze. The complete comments submitted by 
all of the aforementioned entities (hereafter referred to as ``the 
Commenter'') are provided in the docket (EPA-R03-OAR-2012-0144) for 
today's final action. A summary of the comments and EPA's responses are 
provided below.
    Comment 1: The Commenter recommended that emission controls for a 
coal cleaning facility and three electric generating units (EGUs) which 
are not BART subject sources in Maryland should be evaluated under the 
reasonable progress provisions of the RHR as was done in Wyoming and 
North Dakota. The Commenter stated that initially the coal cleaning 
facility was identified as BART-eligible and modeling for this source 
demonstrated that it may impact visibility at one or more Class I areas 
located in West Virginia (e.g., Dolly Sods Wilderness Area and Otter 
Creek Wilderness Area.) This source was subsequently found not to be 
subject-to-BART.
    Response 1: EPA finds Maryland's decision not to further evaluate 
controls at the coal cleaning facility and the three EGUs under the 
reasonable progress provisions of the RHR to be reasonable. First, as 
discussed in the NPR, two of the EGUs are subject to Maryland's Healthy 
Air Act (HAA) \2\ which requires significant emission reductions at 
those EGUs. More generally, as explained below, Maryland followed a 
specific strategy for addressing reasonable progress. Pursuant to EPA's 
Guidance for Setting Reasonable Progress Goals under the Regional Haze 
Program (Reasonable Progress Guidance), states may identify key 
pollutants and source categories for the first planning period.\3\ The 
regional planning organizations VISTAS and MANE-VU and the State of 
Maryland determined that the key pollutant which contributes to 
visibility impairment in the VISTAS and MANE-VU Class I areas is 
sulfate. Therefore, in accordance with EPA's Reasonable Progress 
Guidance,\4\ VISTAS, MANE-VU and Maryland focused on SO2 for 
the first planning period. To ensure reasonable progress for the first 
planning period, MANE-VU recommended and Maryland agreed to pursue the 
following emission reductions: Timely implementation of BART; 90 
percent reduction in SO2 emissions from the 167 highest 
visibility impacting EGUs; a reduction in the sulfur content of 
distillate and residual oil; and continued evaluation of other emission 
reduction strategies. Section III.B.4. of the NPR discusses how 
Maryland met the 90 percent reduction in SO2 emissions from 
the 167 highest visibility impacting EGUs and the equivalent reduction 
to account for the reduced sulfur content of distillate and residual 
oil. During the consultation process, Maryland provided West Virginia 
with the intended emission reductions resulting from their long term 
strategy for sources that are in the Area of Influence for Dolly Sods 
which included emission reductions projected to be achieved by the HAA. 
After review, West Virginia did not request additional emission 
reductions from neighboring states for the first planning period other 
than what has already been planned. Therefore, EPA does not agree that 
additional controls beyond BART and the HAA should be evaluated for 
these particular sources for reasonable progress.
---------------------------------------------------------------------------

    \2\ Md. Code Ann., Environment Title 2, Ambient Air Quality 
Control, Subtitle 10 Healthy Air Act, Section 2-1001-2-1005 (2012). 
See also COMAR 26.11.27.
    \3\ See Guidance for Setting Reasonable Progress Goals Under the 
Regional Haze Program, p. 3-1 (June 1, 2007). EPA's Reasonable 
Progress Guidance is also available at www.epa.gov/ttn/caaa/t1/memoranda/reasonable_progress_guid071307.pdf.
    \4\ ``In deciding what amount of emission reductions is 
appropriate in setting the RPG, you (the State) should take into 
account that the long-term goal of no manmade impairment encompasses 
several planning periods. It is reasonable for you to defer 
reductions to later planning periods in order to maintain a 
consistent glidepath toward the long-term goals.'' Reasonable 
Progress Guidance at p. 1-4.
---------------------------------------------------------------------------

    Comment 2: The Commenter questioned the BART-eligibility of a coal 
cleaning facility in Maryland because Maryland originally identified 
this source as BART-eligible. The Commenter further noted that control 
technologies available in 1977 differ from those available today, so a 
BART analysis would be beneficial. In addition, the Commenter suggested 
that

[[Page 39940]]

a permit condition to shut down the coal cleaning facility by the end 
of 2014 would address the Commenter's concerns because the facility 
indicated that it did not plan to operate beyond 2014.
    Response 2: EPA disagrees with the Commenter's assertions that the 
identified Maryland coal cleaning facility should be subject to BART. 
EPA agrees with Maryland that the source was not in existence by August 
7, 1977 because this source did not meet EPA's definition of ``in 
existence'' at 40 CFR 51.301. EPA did not grant approval of the coal 
cleaning construction application until February 23, 1978. Therefore, 
the coal cleaning facility was not in existence prior to 1977 and is 
not a BART-eligible source. Additionally, EPA disagrees that any permit 
requirements for shutdown are necessary or required for this particular 
source. The Federal regional haze program does not require existing 
sources to shutdown. While the facility may intend to cease operations 
in the near future, Maryland was not required to make such a shutdown 
enforceable in its Regional Haze SIP.
    Comment 3: The Commenter further stated that Maryland's discussion 
on achievement of reasonable progress goals focused on the contribution 
to emission reductions of sulfur only and not NOX.
    Response 3: EPA disagrees with the Commenter's assertion that 
Maryland was required to focus on the contribution to emission 
reductions of NOX in its Regional Haze SIP. As discussed in 
EPA's Response to Comment 2, VISTAS, MANE-VU, and Maryland determined 
that the key pollutant contributing to visibility impairment in the 
MANE-VU and VISTAS Class I areas is sulfate. Maryland accordingly 
focused on SO2 emission reductions for the first planning 
period, an approach that EPA believes was appropriate given the 
technical analyses done by VISTAS and MANE-VU. As discussed in the NPR, 
the State of Maryland does not have a Class 1 area and is not required 
to establish reasonable progress goals such as NOX emission 
reductions.
    Comment 4: The Commenter recommended two different control 
technologies for Unit 26 at the NewPage Luke Mill that combined would 
reduce NOX emissions at the Mill by 60 to 90 percent.
    Response 4: Although Unit 26 at the NewPage Luke Mill is mentioned 
in the BART analysis done by the facility, Unit 26 is not a BART-
eligible source. The owner of the NewPage Luke Mill correctly provided 
a BART analysis for the BART-eligible Unit 25, and Maryland determined 
BART for Unit 25. As discussed more fully in EPA's Response to Comments 
2 and 3 above, EPA does not agree that any further controls for 
NOX are needed for reasonable progress at any source at the 
NewPage Luke Mill at this time.
    Comment 5: The Commenter stated that EPA mischaracterized the Luke 
Paper Company's commitment in the letter dated October 31, 2007 for 
BART controls at the NewPage Luke Mill. The Commenter stated that EPA 
noted in its NPR that Luke Paper Company committed to installing either 
a spray dryer absorber or a circulating dry scrubber resulting in 
approximately 90 percent emission reductions in SO2 and to 
year round operation of the existing selective non-catalytic reduction 
(SNCR) control at Unit 25 for NOX control as BART for the 
BART subject Unit 25 at the NewPage Luke Mill. The Commenter asserted 
that its October 31, 2007 letter committed to reduce emissions by 90 
percent for SO2 without specifying controls, to reduce 
NOX emissions to 0.4 pounds per million British thermal 
units (lb/MMbtu), and to control PM emissions to 0.07 lb/MMbtu for Unit 
25 at the NewPage Luke Mill on a yearly basis.
    Response 5: EPA agrees with the Commenter that Maryland's Regional 
Haze SIP submittal and our approval of the submittal requires the 
NewPage Luke Mill at Unit 25 to meet BART limits of 0.44 lb/MMbtu for 
SO2, a rolling 30-day emission rate of 0.40 lb/MMbtu for 
NOX, and 0.07 lb/MMbtu for PM. Although Maryland's BART 
determination was based on the use of certain controls, BART is an 
emission limit. 40 CFR 51.301. In our NPR, we inadvertently suggested 
that the Maryland Regional Haze SIP required the use of specific 
controls. We agree with the Commenter that the Maryland Regional Haze 
SIP requires the NewPage Luke Mill to meet the BART emission limits 
noted above but does not require the facility to install specific 
controls at Unit 25 to meet these limits.
    Comment 6: The Commenter stated that Maryland failed to meet the 
requisite demonstration that the distribution of emission reductions 
will be similar to that under the source-specific BART and failed to 
conduct dispersion modeling to show that the Maryland HAA results in 
greater reasonable progress toward achieving natural baseline 
visibility conditions in the areas protected by the RHR.
    Response 6: EPA disagrees with the Commenter. EPA discussed in the 
NPR how Maryland's HAA was an acceptable alternative to BART for EGUs 
and discussed how the HAA met the requirements for a BART alternative 
program in 40 CFR 51.308(e)(2). EPA finds that the distribution of 
emission reductions in Maryland at EGUs from the HAA is comparable to 
and not substantially different from emission reductions under BART at 
EGUs. The emission reductions from the HAA are discussed in detail in 
the NPR. Maryland's HAA covers all of the BART-subject EGU sources and 
also includes two EGUs which are not BART-subject sources. With the 
exception of a single unit at one EGU, the Maryland HAA covers more 
units at each source than just BART-eligible units as illustrated in 
Table 5 of Section III.B.5 of the NPR.\5\ The HAA does not allow 
facilities to obtain out-of-state emission allowances in lieu of adding 
pollution controls locally. All of the emission reductions pursuant to 
the HAA are at EGUs in Maryland which are located in the eastern 
portion of Maryland around Baltimore and Washington, DC in the same 
physical location as BART-eligible EGUs. Table 5 of Section III.B.5 of 
the NPR supports the conclusion that the distribution of emissions is 
not substantially different under the HAA than under BART because the 
HAA includes all of the BART sources and all of the BART-eligible units 
with the exception of Chalk Point Unit 3. Because the Maryland HAA 
includes all the BART-subject EGU sources, the distance from HAA 
sources to Class I areas is identical to the distance from BART-subject 
EGU sources to Class I areas.
---------------------------------------------------------------------------

    \5\ Chalk Point Unit 3 is the sole unit at an EGU which is a 
BART-eligible unit not covered by the HAA because it is not a coal-
fired EGU. However, Chalk Point Unit 3 is required to operate on 
natural gas during 75% of its annual heat input and is required to 
operate on natural gas during 95% of the ozone season heat input 
pursuant to a consent decree with MDE which was effective on March 
10, 2011 and which has been submitted to EPA for approval into the 
Maryland SIP. See 77 FR 26438 (May 4, 2012) (providing direct final 
rulemaking to approve consent decree limits for Chalk Point Unit 3 
into Maryland SIP). EPA expects significant reductions of 
NOX, SO2, and PM from the required combustion 
of natural gas instead of combustion of fuel oil at Chalk Point Unit 
3. Id.
---------------------------------------------------------------------------

    EPA provided an analysis supporting emission reductions from the 
HAA exceeding presumptive BART in the NPR. The factors used by Maryland 
to develop the HAA emission limitations incorporate criteria used in 
the RHR as discussed in the NPR in greater detail. As discussed in 
Section III.B.5 of the NPR, Maryland did a comparison of HAA emission 
limits for 13 of the 15 units subject to the HAA which resulted in a 
surplus of SO2 and NOX reductions compared to 
presumptive BART because the HAA applies to more units

[[Page 39941]]

than BART. Because the BART-subject sources are all HAA-subject 
sources, the distribution of emission reductions is not substantially 
different than under BART. As discussed in the NPR and in Maryland's 
Regional Haze SIP submittal, the alternative measure (i.e., the HAA) 
results in greater emission reductions than BART and therefore achieves 
greater reasonable progress. See 40 CFR 51.308(e)(3). Because the 
distribution of emissions is not substantially different, dispersion 
modeling is not required in 40 CFR 51.308(e)(3).
    Comment 7: The Commenter stated that Maryland has not demonstrated 
how the emissions reductions resulting from the Maryland HAA are 
surplus to those reductions resulting from measures adopted to meet 
other requirements of the CAA as of the baseline date of this SIP, as 
required by EPA's RHR and the infrastructure requirements related to 
visibility protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 
2006 PM2.5 NAAQS.
    Response 7: Because Maryland is using the HAA as an alternative to 
BART for its EGU BART-eligible sources as permitted by the RHR and as 
discussed in the NPR, EPA agrees with Maryland's analysis that emission 
reductions from the 13 HAA units will result in emission reductions 
that are surplus to the baseline date of the SIP. In promulgating the 
RHR in 1999, EPA explained that the ``baseline date of the SIP'' in 
this context means ``the date of the emissions inventories on which the 
SIP relies,'' which is ``defined as 2002 for regional haze purposes.'' 
See 64 FR 35742, July 1, 1999, and 70 FR 39143, July 6, 2005. Any 
measure adopted after 2002 is accordingly ``surplus'' under 40 CFR 
51.308(e)(2)(iv). As discussed in the NPR, Maryland's use of the HAA 
(which was adopted after 2002) as an alternative to BART for EGUs is in 
accordance with and satisfies the requirements in 40 CFR 51.308(e)(2) 
for BART alternatives, including the requirement that the emission 
reductions be surplus to the baseline date of the SIP. The NPR also 
discusses how Maryland developed the emission reductions required by 
the HAA. EPA is not restating that analysis here.
    Also, EPA's final approval of Maryland's Regional Haze SIP herein 
will satisfy the infrastructure requirements of CAA section 
110(a)(2)(D)(i)(II) and (a)(2)(J) for the 1997 8-hour Ozone NAAQS and 
the 1997 and 2006 PM2.5 NAAQS. EPA disagrees with the 
Commenter's suggestion that the emission reductions from the HAA are 
not surplus solely because the reductions are part of Maryland's 
Regional Haze SIP which satisfies CAA infrastructure elements in 
section 110(a)(2)(D) and (J) of the CAA. Section 110(a)(2) of the CAA 
does not impose specific requirements on particular sources, and 
therefore surplus reduction is not at issue.
    Comment 8: The Commenter stated that the BART analyses submitted by 
Constellation Energy for Wagner Unit 3 and Crane Unit 2 are deeply 
flawed and failed to identify correctly BART technology and BART limits 
for those units. The Commenter also stated that Maryland improperly 
compared HAA emissions to those under presumptive BART and that 
Maryland must redo its analysis and compare emissions reductions under 
the HAA to those produced by full source-specific BART analyses.
    Response 8: The primary requirement, as specified in CAA section 
169A, is for sources to procure, install, and operate BART. In some 
cases this requirement is met with an analysis of potential controls 
considering five factors given in EPA's RHR. EPA has interpreted this 
requirement to be met if an alternative set of emission limits are 
established which mandate greater reasonable progress toward visibility 
improvement than direct application of BART on a source-by-source 
basis. In promulgating the RHR, EPA stated that to demonstrate that 
emission reductions of an alternative program would result in greater 
emission reductions, ``the State must estimate the emission reductions 
that would result from the use of BART-level controls. To do this, the 
State could undertake a source-specific review of the sources in the 
State subject to BART, or it could use a modified approach that 
simplifies the analysis.'' 64 FR 35742 (July 1, 1999).
    In guidance published October 13, 2006, EPA offered further 
clarification for states for assessing alternative strategies, in 
particular regarding the benchmark definition of BART to use in judging 
whether the alternative is better. See 71 FR 60619. In this rulemaking, 
EPA stated in the preamble that the presumptive BART levels given in 
the BART guidelines would be a suitable baseline against which to 
compare alternative strategies where the alternative has been designed 
to meet a requirement other than BART. 71 FR at 60619; see also 40 CFR 
51.308(e)(2)(i)(C). Maryland's analysis is fully consistent with EPA's 
conclusions in this rulemaking.
    While EPA recognizes that a case-by-case BART analysis may result 
in emission limits more stringent than the presumptive limits, the 
presumptive limits are reasonable and appropriate for use in assessing 
an alternative emissions reductions scenario such as the HAA when 
comparing it to the BART scenario. See 71 FR 60619 (stating ``the 
presumptions represent a reasonable estimate of a stringent case BART * 
* * because * * * they would be applied across the board to a wide 
variety of units with varying impacts on visibility, at power plants of 
varying size and distance from Class I areas'').
    Maryland's HAA was developed to bring Maryland into attainment with 
the NAAQS for ozone and PM2.5 by CAA deadlines and to reduce 
atmospheric deposition of nitrogen to the Chesapeake Bay and other 
Maryland waters. The HAA imposes limitations on SO2, 
NOX, and mercury emissions from coal-fired EGUs in Maryland. 
Although Maryland is also now using the HAA as an alternative to BART 
for its EGU BART-eligible sources as permitted pursuant to EPA's RHR 
(40 CFR 51.308(e)(2)), the use of presumptive limits is appropriate. 
EPA agrees with Maryland's analysis that emission reductions from the 
thirteen HAA units will result in emission reductions that will provide 
greater reasonable progress than would BART alone as described more 
fully in the NPR.
    Regarding the units at H.A. Wagner and C.P. Crane, EPA notes that 
H.A. Wagner Units 2 and 3 and C.P. Crane Units 1 and 2 are subject to 
the HAA (Maryland's alternative BART program) while only C.P. Crane 
Unit 2 and H.A. Wagner Unit 3 are BART-eligible units. Because these 
additional units (as well as units at Brandon Shores and Dickerson) are 
covered under the HAA, significantly more emission reductions are 
achieved by the HAA than through application of presumptive BART as 
discussed in Section III.B.5 in the NPR.
    Comment 9: The Commenter stated that Maryland must ensure that 
reasonable progress goals are set so as to put the state on the 
glidepath to attainment of baseline natural visibility conditions in 
all affected Class I areas by 2064. For at least the Dolly Sods 
Wilderness, the Commenter stated that it did not appear that Maryland 
has done so and questioned what date the Class I areas would attain.
    Response 9: EPA disagrees with the Commenter. As stated in the NPR, 
because Maryland does not have a Class I area, it is not required to 
establish reasonable progress goals. However, Maryland participated in 
conference calls and a meeting with West Virginia during the 
consultation process. They discussed the sources and emissions 
reductions expected within the area of

[[Page 39942]]

influence for Dolly Sods. Subsequently, based on the planned measures 
in neighboring states, West Virginia decided for the first planning 
period not to ask neighboring states for additional emissions 
reductions. Previously, EPA approved West Virginia's reasonable 
progress goals for the Dolly Sods Class I area. See 77 FR 16932 (March 
23, 2012). Therefore, EPA disagrees with the Commenter and confirms 
that no such further analysis regarding the glidepath to attainment is 
needed.
    Comment 10: The Commenter stated that EPA lacked CAA statutory 
authority to allow Maryland to use the HAA as an alternative to source-
specific BART.
    Response 10: EPA disagrees with the Commenter regarding EPA's clear 
statutory authority. EPA's authority to establish non-BART alternatives 
in the regional haze program and the specific methodology in 40 CFR 
51.308(e)(2) for assessing such alternatives have been previously 
challenged and upheld by the United States Court of Appeals for the 
District of Columbia Circuit. In the first case challenging the 
provisions in the RHR allowing for states to adopt alternative programs 
in lieu of BART, the court affirmed our interpretation of section 
169A(b)(2) of the CAA as allowing for alternatives to BART where those 
alternatives will result in greater reasonable progress than BART. 
Center for Energy and Economic Development v. EPA, 398 F.3d 653, 660 
(DC Cir. 2005) (finding reasonable EPA's interpretation of CAA section 
169(a)(2) as requiring BART only as necessary to make reasonable 
progress). In the second case, Utility Air Regulatory Group v. EPA, 471 
F.3d 1333 (DC Cir. 2006), the court specifically upheld our 
determination that states could rely on the Clean Air Interstate Rule 
(CAIR) as an alternative program to BART for EGUs in the CAIR-affected 
states. The court concluded that EPA's two-pronged test for determining 
whether an alternative program achieves greater reasonable progress was 
a reasonable one and also agreed with EPA that nothing in the CAA 
required EPA to ``impose a separate technology mandate for sources 
whose emissions affect Class I areas, rather than piggy-backing on 
solutions devised under other statutory categories, where such 
solutions meet the statutory requirements.'' Id. at 1340. We do not 
agree, therefore, that EPA lacks statutory authority for 40 CFR 
51.308(e)(2) which permits states to include in a SIP an alternative 
trading program that provides for greater reasonable progress than BART 
in place of source-specific BART.

IV. Final Action

    EPA is approving a revision to the Maryland SIP submitted on 
February 13, 2012 by the State of Maryland through MDE that addresses 
regional haze for the first implementation period. In submitting the 
plan, Maryland also stated that the Regional Haze SIP submission meets 
the relevant and applicable obligations related to visibility pursuant 
to section 110(a)(2) of the CAA, including, but not limited to, section 
110(a)(2)(D)(i)(II) and (a)(2)(J) of the CAA, for the 1997 8-Hour Ozone 
NAAQS and the 1997 and 2006 PM2.5 NAAQS for Maryland. EPA 
has determined that the Maryland Regional Haze SIP contains the 
emission reductions needed to achieve Maryland's share of emission 
reductions agreed upon through the regional planning process. 
Furthermore, Maryland's Regional Haze Plan ensures that emissions from 
the state will not interfere with the reasonable progress goals for 
neighboring states' Class I areas consistent with the requirements of 
the visibility prong of section 110(a)(2)(D)(i)(II) of the CAA. EPA is 
approving this SIP revision as meeting the requirements of the regional 
haze program, CAA section 110(a)(2)(J),\6\ and the infrastructure SIP 
requirements of CAA section 110(a)(2)(D)(i)(II) relating to visibility 
protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 
PM2.5 NAAQS.
---------------------------------------------------------------------------

    \6\ CAA section 110(a)(2)(J) states that the plan must meet the 
applicable requirements for visibility protection. EPA would not 
expect the establishment of a new primary NAAQS to change the 
applicable visibility protection and regional haze program 
requirements under Part C of Title I of the CAA. Thus, EPA does not 
consider there to be new applicable visibility protection 
obligations under CAA section 110(a)(2)(J) as a result of the 1997 
ozone NAAQS revision or the 1997 and 2006 p.m.2.5 NAAQS revisions. 
We do agree, however, that Maryland has met the requirements of CAA 
section 110(a)(2)(J) by submitting an approvable regional haze 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

[[Page 39943]]

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 September 4, 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 Maryland's Regional Haze Plan for the 
first implementation period, through 2018 may not be challenged later 
in proceedings to enforce its requirements. See section 307(b)(2) of 
the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 13, 2012.
 W.C. Early,
Acting Regional Administrator, Region III.

    Therefore, 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart V--Maryland

0
2. In Sec.  52.1070, the table in paragraph (e) is amended by adding 
the entry for the Maryland Regional Haze Plan at the end of the table 
to read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
    Name of non-regulatory SIP      Applicable geographic       State                               Additional
             revision                        area          submittal date    EPA approval date      explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Maryland Regional Haze Plan.......  Statewide............         2/13/12  7/6/2012 [Insert page
                                                                            number where the
                                                                            document begins].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-16417 Filed 7-5-12; 8:45 am]
BILLING CODE 6560-50-P