[Federal Register Volume 81, Number 215 (Monday, November 7, 2016)]
[Rules and Regulations]
[Pages 78048-78052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26866]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0042; FRL-9954-40-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Revisions and Amendments to Regulations for Continuous 
Opacity Monitoring, Continuous Emissions Monitoring, and Quality 
Assurance Requirements for Continuous Opacity Monitors

AGENCY: Environmental Protection Agency (EPA).

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. 
The revision pertains to changes and amendments to Maryland regulations 
for continuous opacity monitoring (COM or COMs) and continuous 
emissions monitoring (CEM or CEMs) and to an amendment adding 
requirements for Quality Assurance and Quality Control (QA/QC) as they 
pertain to COMs. EPA is approving these revisions to the COMs and CEMs 
requirements in accordance with the requirements of the Clean Air Act 
(CAA).

DATES: This final rule is effective on December 7, 2016.

[[Page 78049]]


ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2016-0042. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, e.g., 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 through 
http://www.regulations.gov, or please contact the person identified in 
the ``For Further Information Contact'' section for additional 
availability information.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers, (215) 814-2308, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 17, 2016 (81 FR 39605), EPA published a notice of proposed 
rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed 
approval of revisions and amendments to COMAR 26.11.01 General 
Administrative Requirements related to requirements for COMs and CEMs 
and the addition of new COMAR 26.01.31 Quality Assurance Requirements 
for Continuous Opacity Monitors (COMs). The formal SIP revision (#15-
05) was submitted by Maryland through the Maryland Department of the 
Environment (MDE) on November 24, 2015. On February 26, 2016, MDE 
provided a supplemental letter indicating MDE was excluding portions of 
COMAR 26.11.01.10 submitted in the November 24, 2015 SIP submittal from 
EPA's review and consideration as a SIP revision. The February 26, 2016 
letter from MDE is available in the docket for this rulemaking and is 
available online at http://www.regulations.gov.\1\
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    \1\ Specifically, in the February 26, 2016 letter from MDE to 
EPA, MDE withdrew from EPA's review and consideration the text in 
COMAR 26.11.01.10.A(4), in COMAR 26.11 .01.10.B(4), in COMAR 
26.11.01.10D(2)(c), and in COMAR 26.11.01.10.F which had initially 
been included in the November 25, 2015 SIP submittal. MDE excluded 
provisions in COMAR 26.11.01.10 that refer to sections or 
subsections of COMAR 26.11.09 that are not yet in the State's SIP. 
MDE plans to submit the COMAR 26.11.09 revisions along with these 
related provisions for approval into the SIP at a later date.
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    EPA had previously approved Maryland regulation COMAR 26.11.01.10 
Continuous Emissions Monitoring (CEM) Requirements into the Maryland 
SIP on February 28, 1996. 61 FR 7418. COMAR 26.11.01.10 required large 
fuel-burning equipment burning coal and residual oil to install COMs 
and demonstrate compliance using COM data. The regulation established 
monitoring requirements, CEM installation requirements, CEM 
installation and certification schedules, quality assurance procedures 
for opacity monitors, and record keeping and reporting requirements. 
The regulation had previously incorporated by reference Maryland's 
Technical Memorandum 90-01 (TM 90), and required compliance 
determinations for the State's visible emissions limits and QA/QC for 
COMs in accordance with the procedures therein. The terms CEMs and COMs 
were used interchangeably in COMAR 26.11.01.10; therefore, MDE 
determined it was necessary to establish separate requirements for 
each.
    The November 24, 2015 SIP submittal, as clarified and amended on 
February 26, 2016 by MDE, includes revisions to COMs and CEMs 
definitions in COMAR 26.11.01.01, administrative changes to reporting 
and recordkeeping requirements in COMAR 26.11.01.05, a revised COMAR 
26.11.01.10 for COMs, a new COMAR 26.11.01.11 for CEMs, and new COMAR 
26.11.31 for QA/QC procedures related to COMs. The November 24, 2015 
submittal, as amended by MDE's February 26, 2016 letter, removes the 
requirement to use TM 90 for enforcement actions and for QA/QC 
requirements on applicable fuel-burning equipment and removes 
references to TM 90.

II. Summary of SIP Revision

    The SIP revision is comprised of four state actions pertaining to 
adjusted requirements for COMs and CEMs in COMAR 26.11.01.01, COMAR 
26.11.01.05 and COMAR 26.11.01.10, new CEMs provisions in COMAR 
26.11.01.11, and new QA/QC requirements in COMAR 26.11.31. These four 
actions are a series of regulatory actions that result in a 
recodification of some existing requirements for COMs and CEMs, 
establishment of separate regulations and requirements for COMs and 
CEMs, removal of applicability of TM 90 for certain fuel-burning 
equipment and removal of references to TM 90, and codification of the 
QA/QC requirements for COMs that were formerly incorporated by 
reference in TM 90 into a new COMAR 26.11.31. Other specific 
requirements of the revised and amended COMAR regulations, and the 
rationale for EPA's approval action finding the regulations in 
accordance with section 110 of the CAA are explained in the NPR and in 
EPA's Technical Support Document (TSD) dated April 5, 2016, and will 
not be restated here. The NPR and TSD can be found in the docket for 
this rulemaking action available online at http://www.regulations.gov.

III. Public Comments and EPA Responses

    EPA received one set of comments on the proposal from the 
Environmental Integrity Project and the Chesapeake Climate Action 
Network (collectively referred to herein as ``Commenter''). This set of 
these comments is provided in the docket for today's final rulemaking 
action.
    Comment 1: The Commenter stated that it thought the SIP revision 
would improve the Maryland SIP because it separates the requirements 
for COMs from the requirements for CEMs. However, because of its 
concern regarding some of Maryland's permitting and enforcement actions 
on opacity and particulate matter (PM) issues, the Commenter submitted 
comments ``to explain our understanding of the effect of the SIP 
revision that EPA is proposing to approve.'' The Commenter expressed 
concern with allowing ``ineffective technical methods'' in compliance 
demonstrations for opacity limits. The Commenter stated that a COM is 
an effective method of measuring compliance with Maryland's SIP opacity 
limits and reserved judgment on whether it is ever appropriate to 
substitute another technology for COMs to demonstrate compliance with 
opacity limits. The Commenter stated that if a technology is to be 
substituted for COMs, it should include PM CEMS paired with an approved 
method that accounts for the condensable portion of PM. The Commenter 
stated that, for various reasons, EPA Reference Method 9, by itself, is 
not a sufficient substitute for COMs due to infrequency and weather 
condition issues. The Commenter acknowledged that the proposed action 
to approve revisions to COMAR 26.11.01.10, 26.11.01.11 and 26.11.01.01 
for the Maryland SIP does not ``allow Method 9 observations as a 
substitute for COM in compliance demonstrations for opacity.'' The 
Commenter noted that COMAR 26.11.01.10(A)(4), which allows fuel-burning 
sources to discontinue use of COMs under certain circumstances is not 
part of the November 24, 2015 SIP revision, as amended February 26, 
2016, which EPA proposed to approve. Finally, the Commenter stated that 
no part of COMAR 26.11.09.05 [which contains Maryland's opacity 
limitation] was submitted with the November 24, 2015 SIP submittal, and 
thus no

[[Page 78050]]

provision in the November 24, 2015 SIP submission allows 
discontinuation of COM at fuel burning sources.
    Response 1: EPA thanks the Commenter for its statements. EPA 
confirms Commenter's statement that the NPR did not propose any action 
on COMAR 26.11.09.05, which contains opacity limitations in Maryland, 
as no part of that regulation was included in the November 24, 2015 
submittal. The version of COMAR 26.11.09.05 which EPA approved in 2007 
remains in the SIP. See 72 FR 41891 (August 1, 2007) (approving version 
of COMAR 26.11.09.05 for SIP with State effective date of November 24, 
2003). EPA also confirms that the NPR did not include proposed action 
on the provisions in COMAR 26.11.01.10(A)(4), addressing removal of 
COMS, as that portion of COMAR 26.11.01.10 was removed from EPA's 
consideration by a February 26, 2016 supplemental letter from MDE 
requesting that certain sections be struck from the submittal. In EPA's 
TSD which supported the NPR, EPA clearly explained the exclusions from 
our proposed approval action, stating that none of the newly adopted 
changes to COMAR 26.11.09 Control of Fuel-Burning Equipment, Stationary 
Internal Combustion Engines, and Certain Fuel-Burning Installations 
were included in the November 24, 2015 SIP submittal as MDE stated it 
intended to make further revisions to COMAR 26.11.09 before separately 
submitting for inclusion into the State's SIP. EPA also confirms that 
the NPR and TSD clearly indicated COMAR 26.11.01.10A(4), B(4), D(2)(c), 
and F were excluded from the November 24, 2015 SIP submittal by MDE's 
February 26, 2016 supplemental submission.
    As to the Commenter's statement regarding the use of substitutes 
for COMs or the appropriateness of alternatives to use of COMs, EPA 
first notes that the comment is not germane to the regulation EPA 
proposed to approve in the NPR as COMAR 26.11.01.10 in the November 24, 
2015 SIP submittal, as amended February 26, 2016, does not address 
alternatives to use of COMs to demonstrate compliance nor address 
substitutes. Thus, EPA provides no further response to the Commenter's 
general statement regarding appropriateness of substituting for COMs.
    However, EPA notes generally that choice of compliance methods is 
left to State's for due consideration. Congress established the CAA 
such that each state has primary responsibility for assuring air 
quality within the state and such that each state determines an 
emission reduction program for its areas to attain and maintain air 
quality, 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 (D.C. Cir. 1995)). While the requirement 
for Method 9 for compliance determinations is not part of the Maryland 
regulation for which EPA proposed approval, EPA notes that states have 
flexibility in devising and developing their choices as to the means of 
achieving attainment and maintenance of a NAAQS. This flexibility has 
been affirmed by the courts. Id. See also Train v. NRDC, 421 U.S. 60 
(1975). EPA cannot disapprove a SIP revision simply based upon a 
state's choice of a particular emission monitoring requirement, such as 
a COM or CEM, as long as the SIP revision otherwise meets the 
requirements of the CAA. As explained in the NPR and the TSD, 
Maryland's November 24, 2015 SIP submission meets the requirements of 
the CAA under section 110.
    With respect to the use of COMs, EPA Reference Method 9, or PM CEMs 
for determining compliance with opacity requirements, the choice of 
compliance methodology is a choice for the state as long as the state 
does not prohibit the use of credible evidence. EPA's credible evidence 
rule (62 FR 8314 (February 24, 1997)) provided clarifications regarding 
the use of any relevant credible evidence or information for 
determining compliance with an applicable emission limit or 
requirement. The credible evidence revisions consisted of various 
changes to 40 CFR 51.212, 52.12, 52.30, 60.11 and 61.12. These 
revisions provided minor modifications to existing regulatory 
provisions to clearly allow for the use of any credible evidence--that 
is, both reference test and comparable non-reference test data--to 
prove or disprove violations of the CAA in enforcement actions. These 
revisions make clear that EPA, states and citizens acting pursuant to 
section 304 of the CAA can prosecute actions for violations of CAA 
provisions and federally approved SIPs based exclusively on any 
credible evidence, without the need to rely on any data from a 
particular reference test (such as EPA Reference Method 9). The 
revisions also have the effect of eliminating any potential ambiguity 
regarding the use of non-reference test data, including COMs and CEMs, 
as a basis for supporting violations. 40 CFR 51.212 specifically 
provides that ``[f]or the purpose of . . . establishing whether or not 
a person has violated or is in violation of any standard in this part, 
the plan must not preclude the use, including the exclusive use, of any 
credible evidence or information, relevant to whether a source would 
have been in compliance with applicable requirements if the appropriate 
performance or compliance test or procedure had been performed.'' 40 
CFR 51.212(c). In this rulemaking, EPA is approving a revision to COMAR 
26.11.01.10 into the Maryland SIP which requires the use of COMs for 
determining compliance with SIP requirements. However, nothing in COMAR 
26.11.01.10 precludes the use of credible evidence such as PM CEMs data 
or EPA Reference Method 9 readings to determine compliance with 
regulatory requirements including opacity limitations. Thus, the 
regulation at COMAR 26.11.01.10 submitted for SIP approval addresses 
and meets 40 CFR 51.212 as it does not preclude the use of credible 
evidence and addresses section 110 of the CAA for the Maryland SIP. The 
revisions to COMAR 26.11.01.01 and 26.11.01.10 and new provisions in 
COMAR 26.11.01.11 and 26.11.31 are approvable for the SIP. Because the 
Maryland regulation at COMAR 26.11.01.10 submitted for SIP approval 
does not specifically address substitution of other compliance methods 
or discontinuation of COMs at stationary sources, EPA provides no 
further response to Commenter's concerns regarding compliance 
methodologies.
    Comment 2: The Commenter expressed concern about attempts to weaken 
the opacity limits in the Maryland SIP and about State regulatory 
changes that created exemptions to the opacity limits. However, the 
Commenter acknowledged that the exceptions to the opacity limits are 
contained in COMAR 26.11.09.05 and COMAR 26.11.01.10(A)(4), both of 
which are not a part of the SIP revision submittal that EPA proposed to 
approve in the NPR. Commenter acknowledged EPA's approval of the 
November 24, 2015 SIP submittal (as amended February 26, 2016) would 
not incorporate these ``exceptions into the SIP.''
    Response 2: EPA thanks the Commenter for its acknowledgments. As 
the Commenter clearly stated, EPA's NPR does not propose action on any 
revised provisions in COMAR 26.11.09.05 nor propose any action on COMAR 
26.11.01.10(A)(4), as MDE withdrew that provision from EPA's 
consideration with the February 26, 2016 supplemental letter. Thus, no 
further response is necessary to Commenter's statements.

[[Page 78051]]

III. Final Action

    Pursuant to section 110 of the CAA, EPA is approving for the 
Maryland SIP the revisions to requirements for COMs and CEMs in COMAR 
26.11.01.01, COMAR 26.11.01.05 and COMAR 26.11.01.10, approving new 
provisions for COMs and CEMs at COMAR 26.11.01.11 and approving new 
requirements for quality assurance for CEMs at COMAR 26.11.31.

IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, EPA is finalizing the incorporation by reference of the 
revised requirements for COMs and CEMs in COMAR 26.11.01.01, 
26.11.01.05, 26.11.01.10, and 26.11.01.11 and QA/QC requirements for 
COMs in new regulation COMAR 26.11.31. Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated by 
reference by the Director of the Federal Register in the next update to 
the SIP compilation.\2\ EPA has made, and will continue to make, these 
materials generally available through http://www.regulations.gov and/or 
at the EPA Region III Office (please contact the person identified in 
the ``For Further Information Contact'' section of this preamble for 
more information).
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    \2\ 62 FR 27968 (May 22, 1997).
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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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     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 January 6, 2017. 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 approving COMs and CEMs revisions to Maryland 
regulations 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements.

    Dated: September 29, 2016.
Shawn M. Garvin,
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 (c) is amended by:
0
a. Revising the entries for COMAR 26.11.01.01, COMAR 26.11.01.05, and 
COMAR 26.11.01.10; and
0
b. Adding the entries COMAR 26.11.01.11 and COMAR 26.11.31.
    The revisions and additions read as follows:


Sec.  52.1070  Identification of plan.

* * * * *
    (c) * * *

[[Page 78052]]



                 EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP
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                                                                                                  Additional
        Code of Maryland                                    State                                explanation/
  Administrative  Regulations        Title/subject     effective date    EPA approval date    citation at 40 CFR
        (COMAR) citation                                                                           52.1100
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                                   26.11.01 General Administrative Provisions
----------------------------------------------------------------------------------------------------------------
26.11.01.01....................  Definitions.........       5/17/2010  11/7/2016 [Insert     New definition for
                                                                        Federal Register      COMs and clarify
                                                                        citation].            definition for
                                                                                              CEMs.
 
                                                  * * * * * * *
26.11.01.05....................  Records and                5/17/2010  11/7/2016 [Insert     (c)(172)
                                  Information.                          Federal Register      Administrative
                                                                        citation].            changes to
                                                                                              reporting and
                                                                                              recordkeeping
                                                                                              requirements.
 
                                                  * * * * * * *
26.11.01.10....................  Continuous Opacity         8/22/2010  11/7/2016 [Insert     (c)(106)
                                  Monitoring.                           Federal Register      Requirement to use
                                                                        citation].            TM 90-01 is
                                                                                              removed.
                                                                                              Exceptions: A(4),
                                                                                              B(4), D(2)(c), and
                                                                                              F.
26.11.01.11....................  Continuous Emissions       8/22/2010  11/7/2016 [Insert
                                  Monitoring.                           Federal Register
                                                                        citation].
 
                                                  * * * * * * *
26.11.31.......................  Quality Assurance          6/13/2011  11/7/2016 [Insert
                                  Requirements for                      Federal Register
                                  Opacity Monitors                      citation].
                                  (COMs).
 
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[FR Doc. 2016-26866 Filed 11-4-16; 8:45 am]
 BILLING CODE 6560-50-P