[Federal Register Volume 80, Number 133 (Monday, July 13, 2015)]
[Rules and Regulations]
[Pages 39968-39970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16918]



40 CFR Part 52

[EPA-R03-OAR-2014-0833; FRL-9930-31-Region 3]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted on August 22, 2013 by the 
Maryland Department of the Environment (MDE) on behalf of the State of 
Maryland. This revision pertains to Maryland's major nonattainment New 
Source Review (NSR) program, notably preconstruction permitting 
requirements for sources of fine particulate matter (PM2.5). 
This action is being taken under the Clean Air Act (CAA).

DATES: This final rule is effective on August 12, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0833. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Maryland Department of the Environment, 
1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT: David Talley, (215) 814-2117, or by 
email at [email protected].


I. Background

    On March 25, 2015 (80 FR 15713), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed 
approval of revisions to Maryland's major nonattainment NSR program, 
notably preconstruction permitting requirements for sources of fine 
particulate matter (PM2.5). The formal SIP revision (#13-06) 
was submitted by MDE on August 22, 2013.
    Generally, the revisions incorporate provisions related to the 2008 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR 
PM2.5 Rule). 73 FR 28321 (May 16, 2008). As discussed in the 
NPR, the 2008 NSR PM2.5 Rule (as well as the 2007 ``Final 
Clean Air Fine Particle Implementation Rule'' (2007 PM2.5 
Implementation Rule) \1\), was the subject of litigation before the 
United States Court of Appeals for the District of Columbia Circuit 
(D.C. Circuit) in Natural Resources Defense Council v. EPA (hereafter, 
NRDC v. EPA).\2\ On January 4, 2013, the D.C. Circuit remanded to EPA 
both the 2007 PM2.5 Implementation Rule and the 2008 NSR 
PM2.5 Rule. The court found that in both rules EPA erred in 
implementing the 1997 PM2.5 National Ambient Air Quality 
Standard (NAAQS) solely pursuant to the general implementation 
provisions of subpart 1 of part D of title I of the CAA (subpart 1), 
rather than pursuant to the additional implementation provisions 
specific to particulate matter in subpart 4 of part D of title I 
(subpart 4).\3\ However, as was also discussed in the NPR, EPA's final 
actions redesignating all of the areas in Maryland which were 
nonattainment for the 1997 PM2.5 NAAQS to attainment 
obviated the need for MDE to submit a nonattainment NSR SIP addressing 
PM2.5 requirements, including those under subpart 4. See 80 
FR 15714. EPA, therefore, did not evaluate MDE's August 22, 2013 SIP 
revision submittal for compliance with subpart 4. To the extent that 
any area in Maryland is designated as nonattainment for 
PM2.5 in the future, MDE will have to make a submittal under 
CAA section 189 addressing how its nonattainment NSR permitting program 
satisfies all of the statutory requirements pertaining to 
PM2.5, including subpart 4.

    \1\ 72 FR 20586 (April 25, 2007).
    \2\ 706 F.3d 428 (D.C. Cir. 2013).
    \3\ The court's opinion did not specifically address the point 
that implementation under subpart 4 requirements would still require 
consideration of subpart 1 requirements, to the extent that subpart 
4 did not override subpart 1. EPA assumes that the court presumed 
that EPA would address this issue of potential overlap between 
subpart 1 and subpart 4 requirements in subsequent actions.

II. Summary of SIP Revision

    The 2008 NSR PM2.5 Rule: (1) Required NSR permits to 
address directly emitted PM2.5 and precursor pollutants; (2) 
established significant emission rates for direct PM2.5 and 
precursor pollutants (including sulfur dioxide (SO2) and 
oxides of nitrogen (NOX)); (3) established PM2.5 
emission offsets; and (4) required states to account for gases that 
condense to form particles (condensables) in PM2.5 emission 
    To implement these provisions, Maryland amended Regulation .01 
under COMAR 26.11.01 (General Administrative Provisions) and 
Regulations .01 and .02 under COMAR 26.11.17 (Nonattainment Provisions 
for Major New Sources and Major Modifications). The general definitions 
at COMAR were amended to add definitions of 
``PM2.5'' and ``PM2.5 emissions.'' COMAR 26.11.17 
contains the preconstruction requirements for new major stationary 
sources and major modifications locating in nonattainment areas. The 
definitions of ``regulated NSR pollutant'' and ``significant'' under 
COMAR were amended. The amended definitions require that 
sources account for the condensable fraction of PM10 and 
PM2.5, require that NOX and SO2 be 
regulated as precursors to PM10 and PM2.5, and 

[[Page 39969]]

significant emission rates (SERs) for PM2.5 and its 
precursors. COMAR was revised to specify that all of the 
major nonattainment NSR preconstruction requirements of the chapter are 
applicable to new major stationary sources and major modifications that 
are major for PM2.5 or its precursors. COMAR was 
also revised to clarify that in addition to the requirements of that 
chapter, the Prevention of Significant Deterioration (PSD) requirements 
of COMAR may also apply to sources locating in 
nonattainment areas.
    Other specific requirements of MDE's August 22, 2013 SIP revision 
submittal and the rationale for EPA's proposed action are explained in 
the NPR and will not be restated here. No public comments were received 
on the NPR.

III. Final Action

    EPA is approving MDE's August 22, 2013 submittal as a revision to 
the Maryland SIP.

IV. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text 
that includes incorporation by reference. In accordance with 
requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by 
reference of the MDE rules regarding definitions and permitting 
requirements discussed in section II of this preamble. The EPA has 
made, and will continue to make, these documents generally available 
electronically through www.regulations.gov and/or in hard copy at the 
appropriate EPA office (see the ADDRESSES section of this preamble for 
more information).

V. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

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 11, 2015. 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 nonattainment NSR program 
may not be challenged later in proceedings to enforce its requirements. 
(See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: June 26, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    For the reasons stated in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:


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

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

Subpart V--Maryland

2. In Sec.  52.1070, the table in paragraph (c) is amended by revising 
the entries for COMAR,, and to read 
as follows:

Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *

[[Page 39970]]

                 EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP
        Code of Maryland                                    State                                explanation/
  Administrative  Regulations        Title/subject     effective date   EPA approval  date    citation at 40 CFR
        (COMAR) citation                                                                           52.1100
                                   26.11.01 General Administrative Provisions
----------------------------------------------------------------------------------------------------------------  Definitions.........          7/8/13  7/13/15 [Insert
                                                                        Federal Register
                                                  * * * * * * *
                          26.11.17 Requirements for Major New Sources and Modifications
----------------------------------------------------------------------------------------------------------------  Definitions.........          7/8/13  7/13/15 [Insert
                                                                        Federal Register
                                                                        citation].  Applicability.......          7/8/13  7/13/15 [Insert
                                                                        Federal Register
                                                  * * * * * * *

* * * * *
[FR Doc. 2015-16918 Filed 7-10-15; 8:45 am]