[Federal Register Volume 82, Number 81 (Friday, April 28, 2017)]
[Proposed Rules]
[Pages 19648-19651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08664]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0514; FRL-9961-39-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Removal of Clean Air Interstate Rule (CAIR) Program 
Regulations and Reference to CAIR, and Amendments to Continuous 
Emission Monitor (CEM) Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a

[[Page 19649]]

July 7, 2016 state implementation plan (SIP) revision submitted by the 
State of Maryland. The revision includes revised regulations which 
repealed Maryland's Clean Air Interstate Rule (CAIR) Program in its 
entirety, and which removed references to CAIR from other Maryland 
regulations that relate to general air quality definitions and to the 
control of emissions from pulp mills in Maryland. Additionally, the 
revision includes an amendment to a Maryland regulation regarding the 
use of continuous emission monitoring (CEM) systems at Kraft pulp mill 
boilers and combustion units in order to clarify that CEM systems must 
meet requirements beyond those only related to certification. The July 
7, 2016 SIP submittal satisfies Maryland's obligation pursuant to an 
earlier rulemaking in which EPA granted final conditional approval of 
amendments regarding the control of emissions from Kraft pulp mills 
contingent upon Maryland addressing the monitoring issue. Final 
approval of the July 7, 2016 SIP revision will convert the prior 
conditional approval of the pulp mill regulations to a full approval. 
EPA is proposing to approve this revision to the Maryland SIP in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: Written comments must be received on or before May 30, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0514 at http://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the For Further Information Contact section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: On July 7, 2016, EPA received from the State 
of Maryland a formal submittal (#16-07) seeking a revision to its SIP.

I. Background

    To help reduce interstate transport of ozone and fine particulate 
matter (PM2.5) pollution in the eastern half of the United 
States, EPA finalized CAIR in May 2005.\1\ CAIR addressed both the 1997 
ozone and PM2.5 national ambient air quality standards 
(NAAQS) and required 28 states, including Maryland, to limit emissions 
of nitrogen oxides (NOX) and sulfur dioxide 
(SO2).\2\ For CAIR, EPA developed three separate cap and 
trade programs that could be used to achieve the required reductions: 
The CAIR NOX ozone season trading program, the CAIR annual 
NOX trading program, and the CAIR SO2 trading 
program.
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    \1\ 70 FR 25172 (May 12, 2005).
    \2\ SO2 is a precursor to PM2.5 formation, 
and NOX is a precursor to both ozone and PM2.5 
formation.
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    On December 23, 2008, CAIR was remanded to EPA by the United States 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in 
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on 
reh'g, 550 F.3d 1176. The December 2008 D.C. Circuit ruling allowed 
CAIR to remain in effect until a new interstate transport rule 
consistent with the Court's opinion was developed. While EPA worked on 
developing a new rule to address the interstate transport of air 
pollution, the CAIR program continued as planned with the 
NOX annual and ozone season programs beginning in 2009 and 
the SO2 annual program beginning in 2010.
    In response to the remand of CAIR, EPA promulgated the Cross State 
Air Pollution Rule (CSAPR) on July 6, 2011.\3\ CSAPR, which reduces 
emissions from electric generating units (EGUs), addresses the 1997 8-
hour ozone NAAQS, the 1997 annual PM2.5 NAAQS and the 2006 
24-hour PM2.5 NAAQS. The rule also contained provisions that 
would sunset CAIR-related obligations on a schedule coordinated with 
the implementation of CSAPR compliance requirements. CSAPR was to 
become effective January 1, 2012; however, the timing of CSAPR's 
implementation was impacted by a number of court actions. On December 
30, 2011, the D.C. Circuit stayed CSAPR prior to its implementation, 
and EPA was ordered to continue administering CAIR on an interim 
basis.\4\ In a subsequent decision on the merits, the Court vacated 
CSAPR based on a subset of petitioners' claims.\5\ However, on April 
29, 2014, the U.S. Supreme Court reversed that decision and remanded 
the case to the D.C. Circuit for further proceedings.\6\ Throughout the 
initial round of D.C. Circuit proceedings and the ensuing Supreme Court 
proceedings, the stay on CSAPR remained in place, and EPA continued to 
implement CAIR.
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    \3\ 76 FR 48208 (August 8, 2011).
    \4\ Order of December 30, 2011, in EME Homer City Generation, 
L.P. v. EPA, D.C. Cir. No. 11-1302.
    \5\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012), cert. granted 133 U.S. 2857 (2013).
    \6\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 
1600-01 (2014).
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    Following the April 2014 Supreme Court decision, EPA filed a motion 
asking the D.C. Circuit to lift the stay in order to allow CSAPR to 
replace CAIR in an equitable and orderly manner while further D.C. 
Circuit proceedings were held to resolve remaining claims from 
petitioners. Additionally, EPA's motion requested to toll, by three 
years, all CSAPR compliance deadlines that had not passed as of the 
approval date of the stay. On October 23, 2014, the D.C. Circuit 
granted EPA's request, and on December 3, 2014 (79 FR 71663), in an 
interim final rule, EPA set the updated effective date of CSAPR as 
January 1, 2015 and tolled the implementation of CSAPR Phase I to 2015 
and CSAPR Phase 2 to 2017. In accordance with the interim final rule, 
the sunset date for CAIR was December 31, 2014, and EPA began 
implementing CSAPR on January 1, 2015.\7\
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    \7\ At the present time, CSAPR is implemented in Maryland via a 
federal implementation plan (FIP).
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II. Summary of SIP Revision

    On July 7, 2016, EPA received from the State of Maryland a formal 
submittal (#16-07) seeking a revision to its SIP. As a result of CSAPR 
replacing CAIR, Maryland, in its July 7, 2016 submittal, requested that 
EPA remove from the Maryland SIP the CAIR program in its entirety, and 
references to CAIR located in other sections of the Code of Maryland 
Regulations (COMAR). Maryland's submittal seeks to remove the CAIR 
program by removing, in its entirety, COMAR 26.11.28 from Maryland's 
SIP because the CAIR program is now moot and has been replaced entirely 
by CSAPR. The July 7, 2016 SIP submittal also includes an amended 
definition of ``NOX Ozone Season Allowance'' in COMAR 
26.11.01.01B(24-1) which removed reference to CAIR, thereby directing

[[Page 19650]]

affected sources to the ``NOX ozone season emission trading 
program,'' which is currently CSAPR. The SIP revision also includes a 
revised version of COMAR 26.11.14. In COMAR 26.11.14.07C(1), there was 
a specific reference to COMAR 26.11.28, Maryland's CAIR program, which 
is now moot and which Maryland requested EPA remove from the SIP. 
Maryland revised COMAR 26.11.14.07C(1) to remove reference to COMAR 
26.11.28, while permitting the continued practice of allowing certain 
sources to use NOX ozone season allowances as an alternative 
compliance method. Maryland has included revised COMAR 26.11.01.01 and 
26.11.14.07, which includes 26.11.01.01B(24-1) and 26.11.14.07C(1), 
respectively, for incorporation by reference into the Maryland SIP.
    Finally, the July 7, 2016 SIP submission includes an amended COMAR 
26.11.14.07D(1) which removes the word ``certified'' in order to 
clarify that for Kraft pulp mill combustion units and boilers to meet 
the monitoring and reporting requirements, CEM systems must meet all 
the requirements of 40 CFR 75, subpart H, and not just the 
certification requirements for CEMs.

III. Summary of EPA Analysis

    In this action, EPA proposes to approve the removal of COMAR 
26.11.28, which incorporated the CAIR program, from the Maryland SIP. 
EPA also proposes to approve the removal of references to CAIR from 
other Maryland regulations located in the Maryland SIP that relate to 
general air quality definitions and to the control of emissions from 
pulp mills in Maryland. As mentioned previously in this preamble, the 
D.C. Circuit remanded CAIR to EPA in 2008; however, the Court left CAIR 
in place while EPA worked to develop a new interstate transport rule. 
CSAPR was promulgated to respond to the court's concerns and to replace 
CAIR. The implementation of CSAPR was delayed for several years beyond 
its originally expected implementation timeframe of 2012 and therefore 
the sunsetting of CAIR was also deferred. CAIR was implemented through 
the 2014 compliance periods and was sunset and replaced by CSAPR on 
January 1, 2015, thereby making CAIR moot and any reference to CAIR 
inconsequential. Additionally, as a result of CSAPR replacing CAIR and 
the removal of Maryland's CAIR program under COMAR 26.11.28, reference 
to CAIR in other Maryland regulations is inaccurate and misleading. 
Thus, removing reference to CAIR or COMAR 26.11.28 from the other 
Maryland regulations mentioned in this action does not affect the 
sources impacted by the federal cap and trade program. Additionally, 
although EPA's proposed action here removes the CAIR program from the 
Maryland SIP, this action is overall SIP strengthening as it removes a 
moot program no longer in operation. EPA has already replaced CAIR with 
CSAPR which operates through FIPs, and which yields overall 
NOX and ozone reductions that are at least equal to or 
better than reductions from CAIR.8 9
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    \8\ 76 FR 48208 (August 8, 2011).
    \9\ According to section 110(l) of the CAA, the Administrator 
shall not approve a revision of a plan if the revision would 
interfere with any applicable requirement concerning attainment and 
reasonable further progress), or any other applicable requirement of 
the Act.
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    In addition, Maryland's amendments to COMAR 26.11.01.01 and COMAR 
26.11.14 (to remove references to CAIR) are in response to EPA's 
conditional approval of a previous Maryland SIP submittal. Maryland SIP 
#14-04 was submitted on October 8, 2014 for inclusion in the Maryland 
SIP and included amendments to COMAR 26.11.14--Control of Kraft Pulp 
Mills.\10\ In a letter dated September 18, 2015, the Maryland 
Department of the Environment (MDE) committed to removing references to 
CAIR, which sunset on December 31, 2014, through a SIP revision. The 
amendments to COMAR 26.11.01.01 and COMAR 26.11.14, provided by 
Maryland's SIP submittal #16-07, complete the actions required by EPA's 
conditional approval of Maryland SIP submittal #14-04. 81 FR 59486 
(August 30, 2016). Pursuant to section 110(k) of the CAA and as stated 
in the August 30, 2016 final conditional approval of COMAR 26.11.14 for 
Maryland's October 8, 2014 SIP submittal, once EPA determines that MDE 
has satisfied the condition to remove references to CAIR, EPA shall 
remove the conditional nature of the August 30, 2016 approval. At that 
time, the October 8, 2014 SIP submission #14-04 will receive full 
approval status.\11\
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    \10\ The final rulemaking notice for EPA's conditional approval 
of SIP submission #14-04 was published on August 30, 2016 (81 FR 
59486) and addressed NOX reductions for pulp mills in 
Maryland.
    \11\ Thus, once this proposed action to approve the July 7, 2016 
SIP submission #16-07 is finalized, thereby finding Maryland has met 
the conditions within our August 30, 2016 conditional approval (81 
FR 59486), the conditional approval of Maryland's October 8, 2014 
SIP submission #14-04 will be converted to full approval.
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    Finally, regarding Maryland's amendments to COMAR 26.11.14.07D(1), 
the removal of the word ``certified'' from this portion of the Maryland 
regulation is merely an administrative action to make clear that CEMs 
used by Kraft pulp mill combustion units and boilers must meet all of 
the requirements of 40 CFR part 75, subpart H, and not just the 
certification requirements for CEMs.
    Based upon its review, EPA finds Maryland's July 7, 2016 SIP 
submittal approvable under section 110 of the CAA as a SIP 
strengthening measure which removes moot provisions and makes minor 
administrative changes.

IV. Proposed Action

    This action proposes to approve Maryland's July 7, 2016 SIP 
submittal which seeks removal of Maryland's CAIR program, in its 
entirety, from the SIP and also seeks the removal of references to CAIR 
from other Maryland regulations that relate to general air quality 
definitions and to the control of emissions from Kraft pulp mills in 
the State. EPA is also proposing to approve the amended version of 
COMAR 26.11.14.07D(1) for inclusion in the Maryland SIP as the amended 
version removes the word ``certified'' from COMAR 26.11.14.07D(1) in 
order to clarify the CEM system requirements for monitoring and 
reporting emissions from Kraft pulp mill boilers and combustion units.
    Additionally, EPA proposes to find that Maryland's July 7, 2016 SIP 
submittal satisfies Maryland's obligation pursuant to EPA's August 30, 
2016 (81 FR 59486) rulemaking in which the Agency granted final 
conditional approval of amendments regarding the control of 
NOX emissions at Kraft pulp mills. For this reason, EPA also 
proposes to remove the conditional nature of the August 30, 2016 
conditional approval and proposes to grant full approval to the 
Maryland SIP revision regarding the control Kraft pulp mill emissions 
from various processes and fuel-burning equipment, submitted as #14-04 
on October 15, 2014.
    EPA is proposing to approve the Maryland SIP revision which was 
submitted on July 7, 2016. EPA is soliciting public comments on the 
issues discussed in this document. These comments will be considered 
before taking final action.

V. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, EPA is proposing to 
incorporate by reference portions of MDE regulations COMAR 26.11.01 and 
COMAR 26.11.14 regarding air quality definitions and

[[Page 19651]]

Kraft pulp mill emission controls to remove reference to CAIR which 
were discussed in section II (Summary of SIP Revision) of this 
preamble. EPA is also proposing to incorporate by reference the portion 
of COMAR 26.11.14 which removed the word ``certified'' from COMAR 
26.11.14.07D(1). 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).

VI. Statutory and Executive Order Reviews

    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 proposed 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 proposed rule, regarding the removal of the CAIR 
program under COMAR 26.11.28 from the Maryland SIP and amendments to 
COMAR 26.11.01 and 26.11.14, 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides.

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

    Dated: March 21, 2017.
Cecil A. Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2017-08664 Filed 4-27-17; 8:45 am]
 BILLING CODE 6560-50-P