[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62010-62019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24256]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0177; FRL-9917-67-Region-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Infrastructure Requirements for the 2008 Ozone National 
Ambient Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of Maryland 
pursuant to the Clean Air Act (CAA). Whenever new or revised National 
Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires 
states to submit a plan for the implementation, maintenance and 
enforcement of such NAAQS. The plan is required to address the basic 
program elements including, but not limited to regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment

[[Page 62011]]

and maintenance of the standards. These elements are referred to as 
infrastructure requirements. The State of Maryland has made a submittal 
addressing the infrastructure requirements for the 2008 ozone NAAQS.

DATES: This final rule is effective on November 17, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0177. 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: Ruth Knapp, (215) 814-219, or by email 
at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On May 2, 2014 (79 FR 25054), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed 
approval of several infrastructure elements to satisfy several 
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS. 
The formal SIP revision (12-12) was submitted by the State of Maryland 
on December 27, 2012.

II. Summary of SIP Revision

    In the NPR, EPA proposed approval of the following infrastructure 
elements: Sections 110(a)(2)(A), (B), (C), D(i)(II), D(ii), (E), (F), 
(G), (H), (J), (K), (L), and (M) of the CAA. The proposed rulemaking 
does not include action on section 110(a)(2)(I) of the CAA which 
pertains to the requirements of part D, Title I of the CAA as explained 
in the NPR. The proposed rulemaking action also did not include any 
action on Maryland's December 27, 2012 SIP submission addressing 
section 110(a)(2)(D)(i)(I). EPA provided in the proposal that it will 
later take separate action on Maryland's December 27, 2012 SIP 
submission for the 2008 ozone NAAQS for section 110(a)(2)(D)(i)(I). The 
rationale supporting EPA's proposed rulemaking action, including the 
scope of infrastructure SIPs in general, is explained in the NPR and 
the technical support document (TSD) accompanying the NPR and will not 
be restated here. The TSD is available online at www.regulations.gov, 
Docket ID Number EPA-R03-OAQ-2014-0177.

III. Infrastructure SIPS and Greenhouse Gases

    With respect to elements (C) and (J) in section 110(a)(2) of the 
CAA, EPA interprets the CAA to require each state to make an 
infrastructure SIP submission for a new or revised NAAQS that 
demonstrates that the air agency has a complete Prevention of 
Significant Deterioration (PSD) permitting program meeting the current 
requirements for all regulated New Source Review (NSR) pollutants. The 
requirements of element (D)(i)(II) in Section 110(a)(2) which requires 
a demonstration that emissions from sources in the state do not 
interfere with the PSD program of another state, may also be satisfied 
by demonstrating the air agency has a complete PSD permitting program 
correctly addressing all regulated NSR pollutants. Maryland has shown 
that it currently has a PSD program in place that covers all regulated 
NSR pollutants, including greenhouse gases (GHGs).
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT). In order to act consistently with 
its understanding of the Court's decision pending further judicial 
action to effectuate the decision, the EPA is not continuing to apply 
EPA regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
EPA is not applying the requirement that a state's SIP-approved PSD 
program require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision. The 
timing and content of subsequent EPA actions with respect to the EPA 
regulations and state PSD program approvals are expected to be informed 
by additional legal process before the United States Court of Appeals 
for the District of Columbia Circuit. At this juncture, EPA is not 
expecting states to have revised their PSD programs for purposes of 
infrastructure SIP submissions and is only evaluating such submissions 
to assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    At present, EPA has determined the Maryland SIP is sufficient to 
satisfy elements C, D(i)(II), and J of section 110(a)(2) with respect 
to GHGs because the PSD permitting program previously-approved by EPA 
into the SIP continues to require that PSD permits (otherwise required 
based on emissions of pollutants other than GHGs) contain limitations 
on GHG emissions based on the application of BACT. Although the 
approved Maryland PSD permitting program may currently contain 
provisions that are no longer necessary in light of the Supreme Court 
decision, this does not render the infrastructure SIP submission 
inadequate to satisfy elements (C), (D)(i)(II), and (J) in section 
110(a)(2) of the CAA. The SIP contains the necessary PSD requirements 
at this time, and the application of those requirements is not impeded 
by the presence of other previously-approved provisions regarding the 
permitting of sources of GHGs that EPA does not consider necessary at 
this time in light of the Supreme Court decision. Accordingly, the 
Supreme Court decision does not affect EPA's earlier proposed approval 
of Maryland's 2008 ozone infrastructure SIP as to the requirements of 
elements (C), (D)(i)(II), and (J) for Section 110(a)(2). EPA is taking 
final action to approve these elements.

IV. Public Comments and EPA's Responses

    EPA received two sets of comments on the May 2, 2014 proposed 
rulemaking action on Maryland's 2008 ozone ``infrastructure'' SIP. The

[[Page 62012]]

comments were submitted by the State of Maryland and the Sierra Club. 
The State of Maryland made a brief comment related to the subject 
matter of transported emissions while Sierra Club made more substantive 
comments on a variety of subjects including transport of emissions. A 
full set of these comments is provided in the docket for today's final 
rulemaking action.

A. Maryland's Comment

    Comment: The State of Maryland inquired regarding EPA's plans to 
take action on the transport portion of its 2008 ozone infrastructure 
SIP submittal in light of the recent Supreme Court decision in EPA et 
al v. EME Homer City Generation, L.P. et al, 134 S. Ct. 1584, 2014 U.S. 
LEXIS 3108 (2014).\1\
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    \1\ The Maryland comment also inquired whether EPA would 
withdraw prior approvals of ozone infrastructure SIPs for other 
states which did not include action on section 110(a)(2)(D)(i)(I). 
As Maryland's comment about other state SIPs and EPA rulemaking on 
other states' SIPs is not relevant to this rulemaking, EPA need not 
provide any further response to this comment.
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    Response: In this rulemaking, EPA is not taking final action with 
respect to the SIP revision addressing the provisions in section 
110(a)(2)(D)(i)(I) of the CAA--the portion of the good neighbor 
provision which addresses emissions that significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS in another 
state. EPA did not propose to take any action in the NPR with respect 
to Maryland's obligations pursuant to section 110(a)(2)(D)(i)(I). As 
indicated in EPA's proposal, EPA anticipates taking later, separate 
action on the section 110(a)(2)(D)(i)(I) portion of Maryland's December 
27, 2012 SIP submission for the 2008 ozone NAAQS.

B. Sierra Club Comments:

    Comment 1: Sierra Club contends that EPA cannot approve the 
Maryland 2008 ozone infrastructure SIP revision because the plain 
language of section 110(a)(2)(A) of the CAA, legislative history of the 
CAA, case law, EPA regulations, such as 40 CFR 51.112(a), and EPA 
interpretations in rulemakings, require the inclusion of enforceable 
emission limits in an infrastructure SIP to prevent NAAQS violations 
\2\ in areas not designated nonattainment. Specifically, Sierra Club 
cites air monitoring reports for Kent County, Maryland indicating 
violations of the NAAQS based on 2010-2012 and 2011-2013 design values. 
The commenter alleges that these violations demonstrate that the ozone 
infrastructure SIP fails to impose necessary restrictions on ozone 
precursor sources sufficient to ensure attainment and maintenance of 
the 2008 ozone NAAQS and compliance with section 110(a)(2)(A). The 
commenter claims Maryland must revise its infrastructure SIP to include 
enforceable emission limits and other measures to ensure attainment and 
maintenance of the 2008 ozone NAAQS. The commenter asserts the existing 
emission limits applicable to coal plants in Maryland's SIP were not 
intended to ensure maintenance of an 8-hour standard. The commenter 
asserts that Maryland's infrastructure SIP relies on the Maryland 
Healthy Air Act (HAA) for nitrogen oxide (NOX) limitations 
on Maryland's coal-fired power plants yet the HAA imposes only annual 
and ozone season caps on NOX at coal-fired power plants 
while the 8-hour ozone NAAQS requires shorter emissions averaging 
times. The commenter also urges EPA to encourage Maryland to 
expeditiously finalize new regulations on coal-fired power plants which 
Maryland is currently drafting which the commenter claims would require 
installation and operation of state-of-the-art controls on the largest 
contributors of NOX in Maryland. Until these new regulations 
are finalized, the commenter claims ``Maryland has not tackled 
emissions'' from the largest NOX sources and has not 
demonstrated its SIP is sufficient to attain and maintain the 2008 
ozone NAAQS. Therefore, the commenter states EPA cannot approve 
Maryland's infrastructure SIP. Finally, the commenter states Maryland 
should use its infrastructure SIP process to address current ozone 
exceedances in Kent County and should prevent Kent County from being 
designated nonattainment for the 2008 ozone NAAQS by adding appropriate 
enforceable NOX emission limits on sources. The commenter 
states EPA cannot approve the infrastructure SIP and Maryland must 
amend its SIP to ensure the largest NOX sources cannot 
contribute to exceedances of the 8-hour ozone NAAQS.
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    \2\ The commenter frequently also uses the term ``exceedance'' 
in relation to the NAAQS. EPA believes that in many contexts the 
commenter meant a ``violation'' of the NAAQS. In general, the term 
exceedance means that the level of the pollutant is above the level 
of the NAAQS. However, for the 2008 8-hour ozone NAAQS, the form of 
the NAAQS allows some ``exceedances'' (levels above the 0.075 parts 
per million (ppm) 8-hour average) in a three year period before an 
area would be ``violating'' or ``not attaining'' the NAAQS.
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    Response 1: EPA disagrees with the commenter that the statute is 
clear on its face that infrastructure SIPs must include detailed 
attainment and maintenance plans for all areas of the state and must be 
disapproved if air quality data that became available late in the 
process or after the SIP was due and submitted changes the status of 
one or more areas within the state. The commenter's specific arguments 
that the statutory language, legislative history, case law, EPA 
regulations, and prior rulemaking actions by EPA mandate the narrow 
interpretation they advocate are addressed below in subsections (1) 
through (5) of this response. EPA believes that section 110(a)(2)(A) is 
reasonably interpreted to require states to submit SIPs that reflect 
the first step in their planning for attaining and maintaining a new or 
revised NAAQS and that they contain enforceable control measures and a 
demonstration that the state has the available tools and authority to 
develop and implement plans to attain and maintain the NAAQS.
    As an initial matter, EPA disagrees that air quality monitoring 
data that became available, as here, four or more years following 
promulgation of the 2008 ozone NAAQS and shortly after the SIP was 
submitted in December 2012 provides a basis for disapproving the 
Maryland ozone infrastructure SIP. States must develop SIPs based on 
the information they have during the SIP development process, which 
preceded December 2012 (when Maryland submitted its SIP), and data that 
becomes available near the end of that process or after that process is 
completed cannot undermine the reasonable assumptions that were made by 
the state based on the information it had available as it developed the 
plan. Thus, the design values for 2012 and 2013 cited by the commenter 
(based respectively on the three-years of data from 2010-2012 and 2011-
2013) should not be considered in determining whether the SIP should be 
approved.\3\ The suggestion that Maryland's ozone infrastructure SIP 
must include measures addressing violations of the standard that did 
not occur until shortly before or after the SIP was due and submitted, 
as is the case here, cannot be supported. The CAA provides states with 
three years to develop infrastructure SIPs and states cannot reasonably 
be expected to address the annual change in an area's design value for 
each year over that period, nor to predict the air quality data in 
periods after development and submission of the SIPs. Moreover, the CAA 
recognizes and has provisions to address changes in air quality over 
time, such as an area slipping from attainment to nonattainment or 
changing from nonattainment to attainment. These

[[Page 62013]]

include provisions providing for redesignation in section 107(d) and 
provisions in section 110(k)(5) allowing EPA to call on the state to 
revise its SIP, as appropriate.
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    \3\ The design values for 2012 and 2013 were certified in April 
2013 and April 2014 respectively.
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    The commenter suggests that EPA must disapprove the Maryland ozone 
infrastructure SIP because the fact that an area in Maryland now has 
air quality data slightly above the standard proves that the 
infrastructure SIP is inadequate to demonstrate attainment and 
maintenance for that area.\4\ EPA disagrees with the commenter because 
EPA does not believe that section 110(a)(2)(A) requires detailed 
planning SIPs demonstrating either attainment or maintenance for 
specific geographic areas of the state. The infrastructure SIP is 
triggered by promulgation of the NAAQS, not designation. Moreover, 
infrastructure SIPs are due three years following promulgation of the 
NAAQS and designations are not due until two years (or in some cases 
three years) following promulgation of the NAAQS. Thus, during a 
significant portion of the period that a state has available for 
developing the infrastructure SIP, it does not know what the 
designation will be for individual areas of the state.\5\ In light of 
the structure of the CAA, EPA's long-standing position regarding 
infrastructure SIPs is that they are general planning SIPs to ensure 
that the state has adequate resources and authority to implement a 
NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state.
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    \4\ EPA notes that preliminary monitoring data for 2014 
indicates that the 2012-2014 design value for Kent County, Maryland 
will meet the 2008 ozone NAAQS. The 2014 data is not complete, 
quality assured or certified at this time.
    \5\ While it is true that there may be some monitors within a 
state with values so high as to make a nonattainment designation of 
the county with that monitor almost a certainty, the geographic 
boundaries of the nonattainment area associated with that monitor 
would not be known until EPA issues final designations. Moreover, 
the area of concern to the commenter does not fit that description 
in any event.
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    EPA's interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute as understood in light of 
its history and structure. When Congress enacted the CAA in 1970, it 
did not include provisions requiring states and the EPA to label areas 
as attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs) and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that the section 110 plan provide for 
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the 
plan must include ``emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance [of the NAAQS].'' In 
1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of the state were violating the NAAQS (i.e., 
were nonattainment) or were meeting the NAAQS (i.e., were attainment) 
and established specific planning requirements in section 172 for areas 
not meeting the NAAQS. In 1990, many areas still had air quality not 
meeting the NAAQS and Congress again amended the CAA and added yet 
another layer of more prescriptive planning requirements for each of 
the NAAQS, with the primary provisions for ozone in section 182. At 
that same time, Congress modified section 110 to remove references to 
the section 110 SIP providing for attainment, including removing pre-
existing section 110(a)(2)(A) in its entirety and renumbering 
subparagraph (B) as section 110(a)(2)(A). Additionally, Congress 
replaced the clause ``as may be necessary to insure attainment and 
maintenance [of the NAAQS]'' with ``as may be necessary or appropriate 
to meet the applicable requirements of this chapter.'' Thus, the CAA 
has significantly evolved in the more than 40 years since it was 
originally enacted. While at one time section 110 did provide the only 
detailed SIP planning provisions for states and specified that such 
plans must provide for attainment of the NAAQS, under the structure of 
the current CAA, section 110 is only the initial stepping-stone in the 
planning process for a specific NAAQS. And, more detailed, later-
enacted provisions govern the substantive planning process, including 
planning for attainment of the NAAQS.
    EPA shares the commenter's concern regarding the area that is 
monitoring violations of the 2008 8-hour ozone NAAQS based on its 2012 
and 2013 design values and is working with state and local agencies to 
address such violations. By approving Maryland's infrastructure SIP 
revision, EPA is affirming that Maryland has sufficient authority to 
take the types of actions required by the CAA in order to bring such 
areas back into attainment. For all of these reasons, EPA disagrees 
with the commenter that EPA must disapprove an infrastructure SIP 
revision if there are monitored violations of the standard in the state 
and the section 110(a)(2)(A) revision does not have detailed plans for 
demonstrating how the state will bring that area into attainment or for 
demonstrating maintenance. EPA believes the state has met the basic 
structural SIP requirements appropriate at the point in time EPA is 
acting upon the submittal. EPA disagrees with the commenter that 
Maryland should use the infrastructure SIP required by section 
110(a)(1) and (2) of the CAA to address any ``exceedances'' of the 2008 
ozone NAAQS or to avoid a designation of nonattainment for Kent County. 
Other provisions in part D of the CAA address the attainment planning 
process while section 107(d) of the CAA addresses designations of areas 
for attainment or nonattainment with a NAAQS. While Maryland may decide 
to regulate additional sources for pursuing emission reductions in the 
State to strengthen its SIP, such actions are not relevant to our 
approval of Maryland's infrastructure SIP in accordance with section 
110 of the CAA. As discussed previously, our inquiry at this juncture 
is whether Maryland's SIP has the required structural elements.
    Moreover, as addressed in EPA's proposed approval for this rule, 
Maryland identified existing emission reduction measures in the SIP 
that control emissions of volatile organic compounds (VOCs) and 
NOX. Maryland's SIP revision reflects several provisions 
that have the ability to reduce ground level ozone and its precursors. 
The Maryland SIP relies on measures and programs used to address 
previous ozone NAAQS. Because there is no substantive difference 
between the previous ozone NAAQS and the more recent ozone NAAQS, other 
than the level of the standard, the provisions relied on by Maryland 
will provide benefits for the new NAAQS; in other words, the measures 
reduce overall ground-level ozone and its precursors and are not 
limited to reducing ozone levels to meet one specific NAAQS.\6\
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    \6\ Thus, EPA disagrees with the commenter's assertion that 
Maryland has not addressed the largest emitters of NOX in 
the State. Maryland's HAA specifically imposed NOX 
emission limits on coal-fired power plants in Maryland.
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    Finally, EPA appreciates the commenter's support of Maryland's 
pursuit of additional NOX emission

[[Page 62014]]

limitations at coal-fired power plants in Maryland. Additional 
NOX regulations on emissions will likely strengthen the 
Maryland SIP and lead to additional reductions in NOX 
emissions benefiting Maryland. However, EPA does not believe that 
approval of the infrastructure SIP is contingent on Maryland adopting 
this rule. Congress established the CAA such that each state has 
primary responsibility for assuring air quality within the state and 
determines an emission reduction program for its areas subject to EPA 
approval, with such approval dependent upon whether the SIP as a whole 
meets the applicable requirements of the CAA. See Commonwealth of 
Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing 
Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 
(DCCir.1995)). EPA cannot condition approval of the Maryland 
infrastructure SIP upon inclusion of a particular emission reduction 
program as long as the SIP otherwise meets the requirements of the CAA. 
As explained in the NPR and the TSD, Maryland's ozone infrastructure 
SIP meets the requirements in section 110(a)(2).\7\
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    \7\ As stated previously, EPA will take later, separate action 
on Maryland's ozone infrastructure SIP submittal regarding the 
portion of the SIP submittal addressing section 110(a)(2)(D)(i)(I).
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1. The Plain Language of the CAA
    Comment 2: The commenter states that on its face the CAA ``requires 
I-SIPs to be adequate to prevent exceedances of the NAAQS.'' In 
support, the commenter quotes the language in section 110(a)(1) which 
requires states to adopt a plan for implementation, maintenance, and 
enforcement of the NAAQS and the language in section 110(a)(2)(A) which 
requires SIPs to include enforceable emissions limitations as may be 
necessary to meet the requirements of the CAA and which commenter 
claims include the maintenance plan requirement. Sierra Club notes the 
CAA definition of emission limit and reads these provisions together to 
require ``enforceable emission limits on source emissions sufficient to 
ensure maintenance of the NAAQS.''
    Response 2: EPA disagrees that section 110 is clear ``on its face'' 
and must be interpreted in the manner suggested by Sierra Club. As 
explained previously, section 110 is only one provision that is part of 
the complicated structure governing implementation of the NAAQS program 
under the CAA, as amended in 1990, and it must be interpreted in the 
context of not only that structure, but also of the historical 
evolution of that structure. In light of the revisions to section 110 
since 1970 and the later-promulgated and more specific planning 
requirements of the CAA, EPA interprets the requirement in section 
110(a)(2)(A) that the plan provide for ``implementation, maintenance 
and enforcement'' to mean that the infrastructure SIP must contain 
enforceable emission limits that will aid in attaining and/or 
maintaining the NAAQS and that the state demonstrate that it has the 
necessary tools to implement and enforce a NAAQS, such as adequate 
state personnel and an enforcement program. With regard to the 
requirement for emission limitations, EPA has interpreted this to mean 
for purposes of section 110, that the state may rely on measures 
already in place to address the pollutant at issue or any new control 
measures that the state may choose to submit. As EPA stated in 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated September 
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of 
an infrastructure SIP submission is to assure that the air agency's SIP 
contains the necessary structural requirements for the new or revised 
NAAQS, whether by establishing that the SIP already contains the 
necessary provisions, by making a substantive SIP revision to update 
the SIP, or both. Overall, the infrastructure SIP submission process 
provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
2.
    The commenter makes general allegations that Maryland does not have 
sufficient protective measures addressing ozone pollution. EPA 
addressed the adequacy of Maryland's infrastructure SIP for 
110(a)(2)(A) for purposes of meeting applicable requirements of the CAA 
in the TSD accompanying the May 2, 2014 NPR and explained why the SIP 
includes enforceable emission limitations and other control measures. 
These include applicable portions of COMAR 26.11 such as COMAR 
26.11.02, and COMAR 26.11.06.14. As discussed in the TSD accompanying 
the May 2, 2014 NPR, Maryland's enforceable emission limits, control 
measures, and related SIP approved regulations can be found in 40 CFR 
52.1070. These include enforceable emissions limits, control measures, 
fees, and compliance schedules adopted for the 1-hour and 1997 8-hour 
ozone NAAQS but which will also provide ozone reductions benefits for 
the 2008 ozone NAAQS.
2. The Legislative History of the CAA
    Comment 3: Sierra Club cites two excerpts from the legislative 
history of the CAA Amendments of 1970 claiming they support an 
interpretation that SIP revisions under CAA section 110 must include 
emissions limitations sufficient to show maintenance of the NAAQS in 
all areas of Maryland. Sierra Club also contends that the legislative 
history of the CAA supports the interpretation that infrastructure SIPs 
under section 110(a)(2) must include enforceable emission limitations, 
citing the Senate Committee Report and the subsequent Senate Conference 
Report accompanying the 1970 CAA.
    Response 3: As provided in the previous response, the CAA, as 
enacted in 1970, including its legislative history, cannot be 
interpreted in isolation from the later amendments that refined the 
structure of the Act and deleted relevant language from section 110 
concerning demonstrating attainment. In any event, the two excerpts of 
legislative history the commenter cites merely provide that states 
should include enforceable emission limits in their SIPs and they do 
not mention or otherwise address whether states are required to include 
maintenance plans for all areas of the state as part of the 
infrastructure SIP. As provided earlier in this rulemaking action, the 
TSD for the proposed rule explains why the SIP includes enforceable 
emissions limitations and meets the requirement in section 
110(a)(2)(A).
3. Case Law
    Comment 4: Sierra Club also discusses several cases applying the 
CAA which Sierra Club claims support their contention that courts have 
been clear that section 110(a)(2)(A) requires enforceable emissions 
limits in infrastructure SIPs to prevent violations of the NAAQS. 
Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 
(1975), addressing the requirement for ``emission limitations'' and 
stating that emission limitations ``are specific rules to which 
operators of pollution sources are subject, and which if enforced 
should result in ambient air which meet the national standards.'' 
Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. 
EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA 
directs EPA to withhold approval of a SIP where it does not ensure 
maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 
123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the

[[Page 62015]]

CAA of 1970. The commenter contends that the 1990 Amendments do not 
alter how courts have interpreted the requirements of section 110, 
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also 
stated that ``SIPs must include certain measures Congress specified'' 
to ensure attainment of the NAAQS. The commenter also quotes several 
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to 
develop implementation plans--SIPs--that `assure' attainment and 
maintenance of [NAAQS] through enforceable emissions limitations''); 
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must 
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be 
achieved and maintained within each air quality control region in the 
State''). Finally, the commenter cites Mich. Dept. of Envtl. Quality v. 
Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may 
not approve a SIP revision that does not demonstrate how the rules 
would not interfere with attainment and maintenance of the NAAQS.
    Response 4: None of the cases the commenter cites support the 
commenter's contention that section 110(a)(2)(A) is clear that 
infrastructure SIPs must include detailed plans providing for 
attainment and maintenance of the NAAQS in all areas of the state nor 
do they shed light on how section 110(a)(2)(A) may reasonably be 
interpreted. With the exception of Train, none of the cases the 
commenter cites concerned the interpretation of CAA section 
110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the 
courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the 
pre-1990 CAA) in the background section of decisions in the context of 
a challenge to an EPA action on revisions to a SIP that was required 
and approved as meeting other provisions of the CAA or in the context 
of an enforcement action.
    In Train, 421 U.S. 60, a case that was decided almost 40 years ago, 
the Court was addressing a state revision to an attainment plan 
submission made pursuant to section 110 of the CAA, the sole statutory 
provision at that time regulating such submissions. The issue in that 
case concerned whether changes to requirements that would occur before 
attainment was required were variances that should be addressed 
pursuant to the provision governing SIP revisions or were 
``postponements'' that must be addressed under section 110(f) of the 
CAA of 1970, which contained prescriptive criteria. The Court concluded 
that EPA reasonably interpreted section 110(f) not to restrict a 
state's choice of the mix of control measures needed to attain the 
NAAQS and that revisions to SIPs that would not impact attainment of 
the NAAQS by the attainment date were not subject to the limits of 
section 110(f). Thus the issue was not whether a section 110 SIP needs 
to provide for attainment or whether emissions limits are needed as 
part of the SIP; rather the issue was which statutory provision 
governed when the state wanted to revise the emission limits in its SIP 
if such revision would not impact attainment or maintenance of the 
NAAQS. To the extent the holding in the case has any bearing on how 
section 110(a)(2)(A) might be interpreted, it is important to realize 
that in 1975, when the opinion was issued, section 110(a)(2)(B) (the 
predecessor to section 110(a)(2)(A)) expressly referenced the 
requirement to attain the NAAQS, a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. Yet, even if the Court had interpreted that provision, EPA 
notes that it was modified by Congress in 1990; thus, this decision has 
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The commenter does not raise any 
concerns about whether the measures relied on by the state in the 
infrastructure SIP are ``emissions limitations'' and the decision in 
this case has no bearing here.\8\ In Mont. Sulphur & Chem. Co., 666 
F.3d 1174, the Court was reviewing a federal implementation plan that 
EPA promulgated after a long history of the state failing to submit an 
adequate state implementation plan. The Court cited generally to 
sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs 
should assure attainment and maintenance of NAAQS through emission 
limitations but this language was not part of the Court's holding in 
the case. The commenter suggests that Alaska Dept. of Envtl. 
Conservation, 540 U.S. 461, stands for the proposition that the 1990 
CAA Amendments do not alter how courts interpret section 110. This 
claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), 
which, as noted previously, differs from the pre-1990 version of that 
provision and the Court makes no mention of the changed language. 
Furthermore, the commenter also quotes the Court's statement that 
``SIPs must include certain measures Congress specified'' but that 
statement specifically referenced the requirement in section 
110(a)(2)(C), which requires an enforcement program and a program for 
the regulation of the modification and construction of new sources. 
Notably, at issue in that case was the state's ``new source'' 
permitting program, not its infrastructure SIP.
---------------------------------------------------------------------------

    \8\ While the commenter does contend that the State shouldn't be 
allowed to rely on emission reductions that were developed for the 
prior ozone standards (which we address above), it does not claim 
that any of the measures are not ``emissions limitations'' within 
the definition of the CAA.
---------------------------------------------------------------------------

    Two of the cases the commenter cites, Mich. Dept. of Envtl. 
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 
110(l), the provision governing ``revisions'' to plans, and not the 
initial plan submission requirement under section 110(a)(2) for a new 
or revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the courts cited to section 110(a)(2)(A) 
solely for the purpose of providing a brief background of the CAA.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 5: The commenter cites to 40 CFR 51.112(a), providing that 
``[e]ach plan must demonstrate that the measures, rules and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' The commenter asserts that this 
regulation requires all SIPs to include emissions limits necessary to 
ensure attainment of the NAAQS. The commenter states that ``[a]lthough 
these regulations were developed before the Clean Air Act separated 
infrastructure SIPs from nonattainment SIPs--a process that began with 
the 1977 amendments and was completed by the 1990 amendments--the 
regulations apply to I-SIPs.'' The commenter relies on a statement in 
the preamble to the 1986 action restructuring and consolidating

[[Page 62016]]

provisions in part 51, in which EPA stated that ``[i]t is beyond the 
scope of th[is] rulemaking to address the provisions of Part D of the 
Act . . . .'' 51 FR 40656, 40656 (November 7, 1986).
    Response 5: The commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS exceedances'' and adequate or sufficient 
to ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the commenter recognizes this regulatory 
provision was initially promulgated and ``restructured and 
consolidated'' prior to the CAA Amendments of 1990, in which Congress 
removed all references to ``attainment'' in section 110(a)(2)(A). And, 
it is clear on its face that 40 CFR 51.112 applies to plans 
specifically designed to attain the NAAQS. EPA interprets these 
provisions to apply when states are developing ``control strategy'' 
SIPs such as the detailed attainment and maintenance plans required 
under other provisions of the CAA, as amended in 1977 and again in 
1990, such as section 175A and 182. The commenter suggests that these 
provisions must apply to section 110 SIPs because in the preamble to 
EPA's action ``restructuring and consolidating'' provisions in part 51, 
EPA stated that the new attainment demonstration provisions in the 1977 
Amendments to the CAA were ``beyond the scope'' of the rulemaking. It 
is important to note, however, that EPA's action in 1986 was not to 
establish new substantive planning requirements, but rather was meant 
merely to consolidate and restructure provisions that had previously 
been promulgated. EPA noted that it had already issued guidance 
addressing the new ``Part D'' attainment planning obligations. Also, as 
to maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. 51 FR at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``Part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOx and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
Ox and NO2 (portion)''), 51.80 (``Demonstration 
of attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs, and the infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
    Comment 6: The commenter also references two prior EPA rulemaking 
actions where EPA disapproved or proposed to disapprove SIPs and 
claimed they were actions in which EPA relied on section 110(a)(2)(A) 
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first 
points to a 2006 partial approval and partial disapproval of revisions 
to Missouri's existing plan addressing the sulfur dioxide 
(SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A) 
as a basis for disapproving a revision to the State plan on the basis 
that the State failed to demonstrate the SIP was sufficient to ensure 
maintenance of the SO2 NAAQS after revision of an emission 
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates 
the rules in a SIP are adequate to attain the NAAQS. Second, Sierra 
Club cites a 2013 disapproval of a revision to the SO2 SIP 
for Indiana, where the revision removed an emission limit that applied 
to a specific emissions source at a facility in the State. In its 
proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to 
reject the revision, stating that the State had not demonstrated that 
the emission limit was ``redundant, unnecessary, or that its removal 
would not result in or allow an increase in actual SO2 
emissions.'' EPA further stated in that proposed disapproval that the 
State had not demonstrated that removal of the limit would not ``affect 
the validity of the emission rates used in the existing attainment 
demonstration.'' Additionally, the commenter states EPA in its 
September 2013 Infrastructure SIP Guidance purported to postpone 
certain start-up, shutdown, and malfunction (SSM) requirements but did 
not postpone other infrastructure SIP requirements, which the commenter 
asserts indicates the CAA requires infrastructure SIPs to include 
enforceable limits adequate to ensure attainment of NAAQS and to impose 
limits without delay.
    Response 6: EPA does not agree that the two prior actions 
referenced by the commenter establish how EPA reviews infrastructure 
SIPs. It is clear from both the final Missouri rule and the proposed 
and final Indiana rule that EPA was not reviewing initial 
infrastructure SIP submissions under section 110 of the CAA, but rather 
reviewing revisions that would relax the stringency of an already 
approved SIP. EPA's partial approval and partial disapproval of 
revisions to restrictions on emissions of sulfur compounds for the 
Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an 
infrastructure SIP. The Indiana action provides even less support for 
the commenter's position. In that case, the State had an approved 
SO2 attainment plan and was seeking to remove from the SIP 
provisions relied on as part of the modeled attainment demonstration. 
EPA proposed that the State had failed to demonstrate under section 
110(l) of the CAA why the SIP revision would not result in increased 
SO2 emissions and thus interfere with attainment of the 
NAAQS. Nothing in that rulemaking addresses the necessary content of 
the initial infrastructure SIP for a new or revised NAAQS. Rather, it 
is simply applying the clear statutory requirement that a state must 
demonstrate why a revision to an approved SIP will not interfere with 
attainment of the NAAQS.
    Finally, EPA disagrees with the comment regarding the 
Infrastructure SIP Guidance. The commenter correctly asserts that EPA 
in its September 2013 Infrastructure SIP Guidance clearly stated that 
EPA does not interpret section 110(a)(2) to require state air agencies 
and the EPA to address potentially deficient pre-existing SSM SIP 
provisions when acting on an infrastructure SIP particularly because 
EPA has alternative tools in the CAA to address such deficiencies. 
Infrastructure SIP Guidance at pgs. 19-20. However, this affirmative 
statement regarding potential SSM deficiencies in a state's SIP cannot 
be construed to mean or imply EPA cannot approve an infrastructure SIP 
without a demonstration that the SIP contains adequate enforceable 
limits to ensure attainment with a NAAQS. For all of the reasons 
discussed previously, we do not interpret section 110(a)(2)(A) to 
require that the state demonstrate attainment of the NAAQS. As 
explained above, and similar to our position on SSM deficiencies, the 
CAA establishes separate provisions that govern attainment SIPs for 
areas. As discussed previously, EPA reviews infrastructure SIPs to 
ensure a SIP has the appropriate structural requirements.
    Comment 7: The commenter states that EPA must evaluate Maryland's 
provisions submitted in the 2008 ozone NAAQS infrastructure SIP to 
address section 110(a)(2)(D)(i)(I) and determine whether they are 
sufficient enough to meet requirements of section 110(a)(2)(D)(i)(I). 
In light of the Supreme Court's decision in EME Homer City in April 
2014, the commenter argues that the EPA should act quickly to address 
pollution that may be contributing to another state's nonattainment or

[[Page 62017]]

interfering with another state's maintenance of the 2008 ozone NAAQS. 
The commenter argues EPA must evaluate whether Maryland addresses the 
section 110(a)(2)(D)(i)(I) requirements regarding emissions that would 
contribute to exceedances of or interfere with the maintenance of the 
2008 ozone NAAQS and cannot delay its review of Maryland's provisions 
to address such requirements. The commenter states EPA must disapprove 
the Maryland infrastructure SIP transport provision and adequately 
address the impact of ozone emissions from Maryland on other states. 
Because Maryland's transport SIP submittal relies on CSAPR and the HAA, 
the commenter asserts EPA should determine Maryland has not adequately 
addressed its cross-state impacts. The commenter claims CSAPR only 
addresses the less stringent 1997 ozone NAAQS and claims that even 
Maryland said additional reductions are needed for 2008 ozone NAAQS 
beyond CSAPR. The commenter also claims Maryland's HAA was developed 
under the ``outdated'' 1997 ozone NAAQS and claims Maryland's 
reductions from the HAA do not demonstrate Maryland is not contributing 
to nonattainment or interfering with maintenance of the NAAQS. The 
commenter also claims Maryland cannot rely on voluntary control 
measures to address transport of emissions. Therefore, the commenter 
asserts EPA cannot approve the Maryland infrastructure SIP and Maryland 
must revise its SIP to address section 110(a)(2)(D)(i)(I) for the 2008 
ozone NAAQS.
    Response 7: As EPA has stated previously both in the NPR and this 
final rulemaking, EPA is not taking any final action with respect to 
the good neighbor provisions in section 110(a)(2)(D)(i)(I). In the NPR, 
EPA did not propose to take any action with respect to Maryland's 
obligations pursuant to section 110(a)(2)(D)(i)(I) and is not, in this 
rulemaking action, taking any such action. Thus, the comments relating 
to the substance and approvability of Maryland's good neighbor 
provision in its 2008 ozone NAAQS infrastructure SIP submission are not 
relevant to this present rulemaking action. As stated herein and in the 
NPR, EPA will take later, separate action on Maryland's 2008 ozone 
NAAQS infrastructure SIP submission to address section 
110(a)(2)(D)(i)(I).
    EPA believes the statutory language in the CAA supports our ability 
to approve Maryland's December 27, 2012 2008 ozone NAAQS infrastructure 
SIP while taking later, separate action on the portion of the SIP 
submittal which addresses Maryland's obligation to address section 
110(a)(2)(D)(i)(I). Section 110(k)(3) of the CAA authorizes EPA to 
approve a plan in full, disapprove it in full, or approve it in part 
and disapprove it in part, depending on the extent to which such plan 
meets the requirements of the CAA. This authority to approve the 
states' SIP revisions in separable parts was included in the 1990 
Amendments to the CAA to overrule a decision in the Court of Appeals 
for the Ninth Circuit holding that EPA could not approve individual 
measures in a plan submission without either approving or disapproving 
the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 
3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 
F.2d 1071 (9th Cir. 1987)).
    As such, EPA interprets its authority under section 110(k)(3), as 
affording EPA the discretion to approve or conditionally approve 
individual elements of Maryland's infrastructure submission for the 
2008 8-hour ozone NAAQS, separate and apart from any action with 
respect to the requirements of section 110(a)(2)(D)(i)(I) with respect 
to that NAAQS. EPA views discrete infrastructure SIP requirements, such 
as the requirements of 110(a)(2)(D)(i)(I), as severable from the other 
infrastructure elements and interprets section 110(k)(3) as allowing it 
to act on individual severable measures in a plan submission. The 
commenter raises no compelling legal or environmental rationale for an 
alternate interpretation. Nothing in the Supreme Court's April 2014 
decision in EME Homer City alters our interpretation that we may act on 
individual severable measures including the requirements of section 
110(a)(2)(D)(i)(I) in a SIP submission. See EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584 (2014) (affirming a state's 
obligation to submit a SIP revision addressing section 
110(a)(2)(D)(i)(I) independent of EPA's action finding significant 
contribution or interference with maintenance).
    EPA's proposed approval of the Maryland December 27, 2012 
infrastructure SIP submission for the 2008 ozone NAAQS for the portions 
described in the NPR was therefore appropriate.
    Comment 8: The commenter indicates that Maryland is not meeting the 
requirements of CAA section 110(a)(2)(J) and does not meet the 
requirements of section 127 relating to public notification. The 
commenter asserts section 127 mandates a SIP contain provisions to 
effectively notify the public of NAAQS exceedances and provides that 
the state must advise of health hazards of pollution. The commenter 
contends Maryland's Environmental Article, section 2-103.2(b) ensures 
air monitoring data is available online but does not provide public 
notification of NAAQS exceedances. Additionally the commenter questions 
whether the ozone forecasts provided by Maryland online provide 
information about ozone NAAQS exceedances and says Maryland must revise 
its infrastructure SIP to ensure compliance with section 110(a)(2)(J).
    Response 8: EPA disagrees with the commenter that the Maryland SIP 
does not meet the requirement of section 110(a)(2)(J) for public 
notification. In the TSD accompanying the NPR, EPA discussed 
Environment Article, section 2-103.2(b) of the Annotated Code of 
Maryland, which requires public access to all air monitoring data 
online via the internet. By providing information to the public on the 
internet for 8-hour ozone levels, the State of Maryland provides 
adequate public notification of ozone levels and provides to the public 
both in and outside the State of Maryland information that can be used 
to examine ozone levels and determine when and where exceedances 
occurred or might occur. The commenter does not explain why this 
information is not adequate ``public notice'' of exceedances of the 
NAAQS. In addition to providing access to the ozone monitor data on the 
internet, the Maryland SIP contains approved procedures for permitting, 
attainment planning, and emergency episodes which provide information 
about the ozone air quality conditions and about the emission controls 
that may be implemented to reduce ozone levels. Section 2-303(b) of the 
Environment Article of the Annotated Code of Maryland requires that 
public hearings be held before Maryland finalizes air quality 
regulations. In the TSD, EPA also identified other regulatory and 
statutory provisions in Maryland which address public notification and 
hearings including COMAR 26.11.02 and 26.11.03 for permits and COMAR 
26.11.04.02 which adopts 40 CFR 58.50 for reporting air quality to the 
public several times per day. In addition, COMAR 26.11.05.02 and 
26.11.05.03 provide for public notification when ozone levels may reach 
or exceed levels considered injurious to human health. The remaining 
provisions in COMAR 26.11.05 provide for responsive actions to address 
such injurious accumulations of air pollution. Maryland provides 
historical information on exceedances statewide for each calendar year 
at

[[Page 62018]]

http://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/HistoricalData.aspx which contains links to a statewide listing of 
recorded exceedances at specific locations including the Millington 
monitor in Kent County. Maryland also provides air quality forecasts at 
http://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/AQForecast.aspx which also includes information on actions the public 
can take to reduce pollution and protect their health.
    As explained in the TSD accompanying the NPR and herein, Maryland's 
ozone infrastructure SIP submission clearly demonstrates that Maryland 
regularly notifies the public of instances or areas in which the 2008 
ozone NAAQS was exceeded, advises the public of the health hazards 
associated with such exceedances, and enhances public awareness of 
measures that can prevent such exceedances and of ways in which the 
public can participate in regulatory and other efforts to improve air 
quality. Thus, EPA believes the Maryland statutory and regulatory 
provisions discussed previously and in the TSD provide effective 
methods to provide information and notification to the public when the 
ozone standard may be or has been exceeded.

V. Final Action

    EPA is approving the following infrastructure elements of 
Maryland's December 27, 2012 SIP revision for the 2008 ozone NAAQS: 
Section 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E), (F), (G), (H), 
(J), (K), (L), and (M) as a revision to the Maryland SIP. This 
rulemaking action does not include Section 110(a)(2)(I) of the CAA 
which pertains to the nonattainment requirements of Part D Title I of 
the CAA. This rulemaking action also does not include any action on 
Section 110(a)(2)(D)(i)(I). EPA will take later separate action on 
Maryland's December 27, 2012 SIP submission addressing Section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

VI. 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 December 15, 2014. 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, which satisfies certain infrastructure 
requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS 
for the State of Maryland, 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, Ozone, Reporting and recordkeeping requirements.

    Dated: September 22, 2014.
William C. Early,
 Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart V--Maryland

0
2. In Sec.  52.1070, the table in paragraph (e) is amended by adding 
the entry for Infrastructure Requirements for the 2008 Ozone NAAQS at 
the end of the table to read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (e)* * *

[[Page 62019]]



----------------------------------------------------------------------------------------------------------------
    Name of non-regulatory SIP          Applicable           State                                Additional
             revision                geographic area    submittal date   EPA approval date       explanation
----------------------------------------------------------------------------------------------------------------
 
                                                * * * * * * * * *
Infrastructure Requirements for    Statewide..........        12/27/12  10/16/14 [Insert     This action
 the 2008 Ozone NAAQS.                                                   Federal Register     addresses the
                                                                         citation].           following CAA
                                                                                              elements:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D)(i)(II),
                                                                                              D(ii), (E), (F),
                                                                                              (G), (H), (J),
                                                                                              (K), (L), and (M)
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-24256 Filed 10-15-14; 8:45 am]
BILLING CODE 6560-50-P