[Federal Register Volume 82, Number 120 (Friday, June 23, 2017)]
[Proposed Rules]
[Pages 28614-28616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13189]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2016-0576; FRL-9963-72-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Permits, Approvals, and Registrations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision submitted by the 
State of Maryland. This revision pertains to Maryland's administrative 
procedures for the issuance, denial, and appeal of permits issued by 
the Maryland Department of the Environment (MDE). This action is being 
taken under the Clean Air Act (CAA).

DATES:  Written comments must be received on or before July 24, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2016-0576 at https://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 https://www2.epa.gov/dockets/commenting-epa-dockets.

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

SUPPLEMENTARY INFORMATION: On February 22, 2016, the State of Maryland 
through the MDE formally submitted amendments to Maryland's general 
administrative provisions related to CAA permitting as a revision to 
Maryland's SIP.

I. Background

    The CAA's New Source Review (NSR) programs are preconstruction 
review and permitting programs applicable to new and modified 
stationary sources of air pollutants regulated under the CAA. The NSR 
programs of the CAA include a combination of air quality planning and 
air pollution control technology program requirements. Briefly, section 
109 of the CAA requires EPA to promulgate primary national ambient air 
quality standards (NAAQS) to protect public health and secondary NAAQS 
to protect public welfare. Once EPA sets those standards, states must 
develop, adopt, and submit to EPA for approval a SIP that contains 
emissions limitations and other control measures to attain and maintain 
the NAAQS. Pursuant to section 110, each SIP is required to contain a 
preconstruction review program for the construction and modification of 
any stationary source of air pollution to assure that the NAAQS are 
achieved and maintained; to protect areas of clean air; to protect air 
quality-related values (such as visibility) in national parks and other 
areas; to assure that appropriate emissions controls are applied; to 
maximize opportunities for economic development consistent with the 
preservation of clean air resources; and, to ensure that any decision 
to increase air pollution is made only after full public consideration 
of the consequences of the decision. Section 172 of the CAA requires a 
permit program in areas which are not attaining the NAAQS, and section 
173 provides the specific requirements for that permit program.
    MDE's February 22, 2016 SIP submittal consists of revisions to 
regulations under section 26.11.02 (Permits, Approvals, and 
Registration) of the Code of Maryland Regulations (COMAR) which EPA has 
previously approved into the Maryland SIP. The purpose of the revisions 
is to incorporate amended state statutory requirements \1\ into the 
Maryland SIP. The revisions are related to MDE's administrative 
processes for permit issuance and denial. Specifically, the revisions 
eliminate the ``contested case'' process and the Office of 
Administrative Hearings' (OAH) adjudicatory hearing

[[Page 28615]]

process for major permits, and substitute direct judicial review. 
Additionally, the revisions expand standing for challenges to those 
major permits, and include additional public notice requirements for 
certain sources. The Maryland statutory requirements were incorporated 
into MDE's implementing regulations under COMAR 26.11.02 as described 
below, and submitted to EPA for approval into the Maryland SIP.
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    \1\ See S.B. 1065, Acts of 2009; H.B. 554 and H.B. 95, Acts of 
2013.
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II. Summary of SIP Revision and EPA Analysis

    Maryland's SIP revision includes several amended administrative 
provisions under COMAR 26.11.02 (Permits, Approvals, and Registration). 
Specifically, 26.11.02.07 (Procedures for Denying, Revoking, or 
Reopening and Revising a Permit or Approval), 26.11.02.11 (Procedures 
for Obtaining Permits to Construct Certain Significant Sources), and 
26.11.02.12 (Procedures for Obtaining Approvals of PSD Sources and NSR 
Sources, Certain Permits to Construct, and Case-by-Case MACT 
Determinations in Accordance with 40 CFR part 63, subpart B) have been 
revised as follows.
    Under the currently approved SIP, COMAR 26.11.02.07, denials and 
approvals of permits to construct, State operating permits, and State-
only enforceable portions of title V operating permits are considered 
``final actions'' subject to judicial review if the permittee did not 
request a hearing before the OAH and MDE pursuant to the ``contested 
case process.'' In MDE's February 22, 2016 SIP submittal, MDE submitted 
for inclusion in the Maryland SIP a revised version of COMAR 
26.11.02.07 which provides for a separate process for denials of 
permits to construct. Under the revised 26.11.02.07, denials of permits 
to construct immediately constitute ``final determinations'' which are 
subject to direct judicial review (without requiring permittees to seek 
review through the OAH), pursuant to the revised procedures for major 
permits in the revised COMAR 26.11.02.11 described below.
    MDE's February 22, 2016 SIP submittal also includes a number of 
revisions MDE made to COMAR 26.11.02.11, which contains the procedures 
for processing permits to construct for ``significant'' sources. This 
section applies to modifications at sources: (a) For which a state 
operating permit is required; (b) which are subject to new source 
performance standards (NSPS) at 40 CFR part 60, national emission 
standards for hazardous air pollutants (NESHAPS) at 40 CFR part 61, or 
Prevention of Significant Deterioration (PSD) requirements at 40 CFR 
part 52.21; (c) which, after control, will discharge 25 tons per year 
or more of a pollutant regulated under Environment Article, Title 2, of 
the Annotated Code of Maryland; and (d) of lead which will discharge 5 
or more tons of elemental lead per year. See COMAR 26.11.02.11A(1,2). 
COMAR 26.11.02.11 was previously in the Maryland SIP. The revisions 
made include a minor change to the public participation processes for 
sources that trigger NSPS under 40 CFR part 60 but do not trigger NSR 
requirements, enhanced public notification provisions which require MDE 
to notify elected officials within a 1-mile radius of a source subject 
to the expanded public participation requirements of permit 
proceedings, eliminated the contested case process for significant 
permits, and instituted direct judicial review in circuit court for 
parties wishing to contest such permits. Additionally, MDE also 
included a revised version of COMAR 26.11.02.12 which included minor 
revisions, clarifying that Regulation .12 only applies to NSR and PSD 
permit approvals, case-by-case approvals pursuant to 40 CFR part 63 for 
air toxic sources, and permits to construct which are not subject to 
COMAR 26.11.02.11.
    EPA's review of MDE's February 22, 2016 SIP submittal finds it 
consistent with all applicable requirements of the CAA and its 
implementing regulations. The COMAR public notice requirements meet or 
exceed the requirements of 40 CFR 51.160 and 51.161. Additionally, the 
revisions are approvable under section 110 of the CAA (specifically 
section 110(a)(2)(A) and (C) and section 173 for NSR programs). Under 
section 110(a)(2)(C), the SIP must include a program to enforce the 
emission limits and control measures in a state's SIP (as required by 
section 110(a)(2)(A)) and must also contain a program to regulate 
modification/construction of sources so that the NAAQS are achieved. 
Section 173 requires the permits program for nonattainment NSR and 
requires states to have a SIP with a permit program that ensures 
sources are required to comply with certain things like stringent 
emission limitations (i.e., lowest achievable emission rates) and 
offsets. While having a permits program in the SIP that addresses 
denial or revocation of permits and addresses permit appeals does not 
address the required substance of a NSR program, these provisions do 
make the NSR program enforceable, and therefore EPA finds the SIP 
submission and revisions to COMAR 26.11.02 approvable under CAA 
sections 173 and 110(a)(2)(A) and (C). In addition, because none of the 
revisions to COMAR 26.11.02 will affect emissions of pollutants from 
sources and are largely administrative in nature, EPA finds that none 
of the revisions to COMAR 26.11.02 will interfere with reasonable 
further progress, any NAAQS, or any other applicable requirements in 
the CAA. Thus, EPA finds the submittal is approvable for section 110(l) 
of the CAA.

III. Proposed Action

    EPA is proposing to approve MDE's February 22, 2016 SIP submittal 
as a revision to the Maryland SIP as the SIP submittal meets 
requirements in the CAA under sections 110 and 173. EPA is soliciting 
public comments on the issues discussed in this document. These 
comments will be considered before taking final action.

IV. Incorporation by Reference

    In this proposed rulemaking, 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 the MDE rules regarding permit issuance and 
denial as described in Section II of this preamble. EPA has made, and 
will continue to make, these materials generally available through 
https://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).

V. 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.);

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     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, related to Maryland's 
administrative processes for preconstruction permitting, 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: June 2, 2017.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2017-13189 Filed 6-22-17; 8:45 am]
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