[Federal Register Volume 83, Number 153 (Wednesday, August 8, 2018)]
[Proposed Rules]
[Pages 39014-39017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16778]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2018-0507; FRL-9981-77--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; NOX Ozone Season Emissions Caps for Non-Trading Large NOX 
Units and Associated Revisions to General Administrative Provisions and 
Kraft Pulp Mill Regulation

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 (Maryland SIP Revision #18-03) 
pertains to a new Maryland regulation that establishes ozone season 
nitrogen oxides (NOX) emissions caps and other requirements 
for large non-electric generating units (non-EGU) in Maryland and 
includes associated revisions to two other Maryland regulations. The 
revisions will enable Maryland to meet NOX reduction 
requirements related to interstate transport of pollution that 
contributes to other states' nonattainment or interferes with other 
states' maintenance of the ozone national ambient air quality standards 
(NAAQS). This action is being taken under the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 7, 
2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2018-0507 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

[[Page 39015]]

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

SUPPLEMENTARY INFORMATION: On May 15, 2018, the State of Maryland, 
through the Maryland Department of the Environment (MDE), submitted for 
approval into the Maryland SIP new Code of Maryland Regulation (COMAR) 
26.11.40--NOX Ozone Season Emission Caps for Non-Trading Large NOX 
Units and revisions to two regulations presently included in the 
Maryland SIP, COMAR 26.11.01.01--General Administrative Provisions and 
COMAR 26.11.14--Control of Emissions from Kraft Pulp Mills to EPA.

I. Background

    In October 1998 (63 FR 57356), EPA finalized the ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone''--commonly called the NOX SIP Call. The 
NOX SIP Call, issued pursuant to Section 110 of the CAA, was 
designed to mitigate significant transport of NOX, one of 
the precursors of ozone. EPA developed the NOX Budget 
Trading Program, an allowance trading program that states could adopt 
to meet their obligations under the NOX SIP Call. The 
NOX Budget Trading Program allowed electric generating units 
(EGUs) greater than 25 megawatts and industrial non-electric generating 
units, such as boilers and turbines, with a rated heat input greater 
than 250 million British thermal units per hour (MMBtu/hr), referred to 
as ``large non-EGUs'', to participate in a regional NOX cap 
and trade program. The NOX SIP Call also established 
specific reduction requirements for other non-EGUs, including cement 
kilns and stationary internal combustion (IC) engines. On January 10, 
2001 (66 FR 1866), EPA approved two Maryland regulations, COMAR 
26.11.29--NOX Reduction and Trading Program, and COMAR 
26.11.30--Policies and Procedures Relating to Maryland's NOX 
Reduction and Trading Program, into the Maryland SIP as meeting the 
requirements of the NOX SIP Call. Under the approved trading 
program, large EGUs and large non-EGUs in Maryland participated in a 
regional cap and trade program that was administered by EPA.
    On May 12, 2005, (70 FR 25162), EPA promulgated the Clean Air 
Interstate Rule (CAIR) to address transported emissions that 
significantly contributed to downwind states' nonattainment and 
maintenance of the 1997 ozone and fine particulate matter 
(PM2.5) NAAQS. CAIR required 28 states, including Maryland, 
to reduce emissions of NOX and sulfur dioxide 
(SO2), which are precursors to ozone and PM2.5. 
Under CAIR, EPA developed separate cap and trade programs for annual 
NOX, ozone season NOX, and annual SO2 
emissions. On April 28, 2006 (71 FR 25328), EPA also promulgated 
federal implementation plans (FIPs) requiring the EGUs in each affected 
state, but not large non-EGUs, to participate in the CAIR trading 
programs. States could comply with the requirements of CAIR by either 
remaining on the FIP, which applied only to EGUs, or by submitting a 
CAIR SIP revision that included as trading sources EGUs and the non-
EGUs that formerly traded in the NOX Budget Trading Program 
under the NOX SIP Call. EPA discontinued administration of 
the NOX Budget Trading Program in 2009 upon the start of the 
CAIR trading programs.\1\ The NOX SIP Call requirements 
continued to apply, however, and EGUs that were formerly trading under 
the NOX Budget Trading Program continued to meet their 
NOX SIP Call requirements under the generally more stringent 
requirements of the CAIR ozone season trading program. States needed to 
assess their NOX SIP Call requirements and take other 
regulatory action as necessary to ensure that their obligations for the 
large non-EGUs continued to be met either through submission of a CAIR 
SIP or other NOX regulation. EPA has implementing 
regulations for the NOX SIP Call at 40 CFR 51.121.
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    \1\ CAIR was subsequently vacated and remanded. See North 
Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified by 550 F.3d 
1176 (remanding CAIR). CAIR was replaced with the Cross-State Air 
Pollution Rule, or CSAPR (76 FR 48208, August 8, 2011), which, after 
legal challenges, was implemented starting in January 2015. The 
NOX Ozone Season Trading Program under CSAPR was replaced 
in Maryland and most other states by a new trading program for ozone 
season NOX under the CSAPR Update rule in January 2017 
(81 FR 74504, October 26, 2016).
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    In Maryland, Luke Paper Mill (formerly the Westvaco pulp and paper 
mill) was the only facility with non-EGUs that were affected by the 
NOX SIP Call and which participated in the NOX 
Budget Trading Program. When the CAIR NOX Ozone Season 
trading program replaced the NOX Budget Trading Program, 
Maryland adopted the CAIR program as it applied to large EGUs, but 
chose not to include the non-EGUs at Luke as participants in the CAIR 
NOX Ozone Season trading program.\2\ Instead, in 2010, 
Maryland adopted COMAR 26.11.14.07-Control of Emissions from Kraft Pulp 
Mills, which, among other requirements, included provisions that 
address the NOX SIP Call non-EGU requirements in Maryland 
through a NOX ozone season tonnage cap of 947 tons for the 
Luke non-EGUs and monitoring, recordkeeping, and reporting in 
accordance with 40 CFR part 75. EPA conditionally approved COMAR 
26.11.14.07 into the Maryland SIP on August 30, 2016 (81 FR 59486) and 
took final approval on July 17, 2017 (82 FR 32641).
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    \2\ CAIR became obsolete upon implementation of the CSAPR 
program. Maryland subsequently took action rescinding its CAIR 
regulation (COMAR 26.11.28), and submitted a SIP revision to EPA 
which sought removal of the regulation in its entirety from the 
approved Maryland SIP. On July 17, 2017 (82 FR 32641), EPA approved 
the SIP revision removing the CAIR regulation from Maryland's SIP.
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    Subsequent to adoption of COMAR 26.11.14.07, MDE determined that 
additional applicable units have either started operation or were 
previously not subject but have become subject to the requirements for 
non-EGUs under the NOX SIP Call as the units are greater 
than 250 MMBtu/hr. A review of the applicability of the NOX 
SIP Call to large non-EGUs in the State showed that there are three 
additional facilities having non-EGUs that are covered under the 
NOX SIP Call. MDE adopted new regulation COMAR 26.11.40 to 
reallocate the NOX emissions cap among the affected sources, 
and concurrently revised COMAR 26.11.14.07 to reflect a reduced cap for 
Luke. The NOX annual emissions cap for Maryland established 
for the NOX SIP Call is 1,013 tons per year of 
NOX, as established by EPA in 40 CFR part 97, subpart E, 
Appendix C.

II. Summary of SIP Revision and EPA Analysis

    On May 15, 2018, Maryland, through MDE, submitted for inclusion in 
the Maryland SIP new regulation COMAR 26.11.40--NOX Ozone 
Season Emission Caps for Non-trading Large NOX Units,

[[Page 39016]]

and associated revisions to COMAR 26.11.01.01--General Administrative 
Provisions, and COMAR 26.11.14--Control of Emissions from Kraft Pulp 
Mills.
    New COMAR 26.11.40 establishes NOX ozone season tonnage 
caps and NOX monitoring requirements for large non-EGUs in 
the State that are not covered under the Cross-State Air Pollution Rule 
(CSAPR) to meet requirements of the NOX SIP Call. Regulation 
.01 under COMAR 26.11.40 defines the terms used in COMAR 26.11.40, 
including ``boiler'', ``combined cycle system'', ``combustion 
turbine'', ``fossil-fuel'', ``fossil fuel-fired'', ``new unit'', ``new 
unit set-aside'', ``non-trading large NOX unit'', and 
``ozone season''. The definition of non-trading large NOX 
unit in Regulation .01 lists two categories of sources: (1) Non-EGUs 
with a maximum design heat input greater than 250 MMBtu/hr, and (2) 
fossil fuel-fired EGUs serving a generator with a nameplate capacity 
greater than 25 megawatt output. Maryland explains its intent that 
these definitions apply to non-EGUs and EGUs as defined for purposes of 
the NOX SIP Call as amended.\3\ In addition to the 
definitions of non-trading large NOX unit, Maryland 
clarifies its intent by specifically listing in Regulation .02 all 
units in the State that currently meet the definitions. Regulation .01 
also clarifies that non-EGUs subject to this rule are units that are 
not already subject to the CSAPR NOX Ozone Season Group 2 
Trading Program under 40 CFR part 97, subpart EEEEE.
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    \3\ The definitions for non-EGUs and EGUs are set forth in the 
preamble to the April 2004 NOX SIP Call amendments. See 
69 FR 21604 and 21616, April 21, 2004.
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    Regulation .02 under COMAR 26.11.40 lists the currently affected 
non-EGUs meeting the definition of ``non-trading large NOX 
unit'' (shown in the following table), and includes a provision that 
any new unit installed after May 1, 2018 or an existing unit that is 
modified such that it meets the definition of a large non-EGU will 
become subject to the requirements of COMAR 26.11.40. Regulation .03 
under COMAR 26.11.40 establishes the NOX annual tonnage caps 
for each source. The affected units and their NOX ozone 
season caps are as follows:

------------------------------------------------------------------------
                                                             NOX ozone
            Facility                       Unit             season cap
                                                              (tons)
------------------------------------------------------------------------
American Sugar Refining........  C6.....................              24
Dominion Energy Cove Point LNG.  Frame 5-1 (Turbine                  214
                                  S009), Frame 5-2
                                  (Turbine S010), Frame
                                  7-A, Frame 7-B, Aux.
                                  A, Aux B.
Luke Paper Mill................  24, 25, and 26.........             656
National Institutes of Health..  5-1156.................              23
New unit set-aside.............  .......................              96
                                                         ---------------
    Total......................  .......................           1,013
------------------------------------------------------------------------

    Regulation .03 also establishes a 96 ton set aside for new units or 
modified existing units. The total, 1,013 tons of NOX, is 
consistent with the portion of the overall Maryland NOX 
Budget Trading Program budget for large non-EGUs.\4\ Regulation .03 
stipulates that the combined NOX ozone season emissions from 
units subject to COMAR 26.11.40 may not exceed 1,013 tons. Regulation 
.04 requires continuous emissions monitoring (CEM) of NOX 
emissions at affected units in accordance with 40 CFR part 75, subpart 
H, as required by 40 CFR 51.121(i)(4),\5\ maintenance of records and 
submittal of reports in accordance with 40 CFR part 75, and submittal 
of CEMs data to the State on a quarterly basis.
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    \4\ Maryland's NOX Budget Trading Program regulations 
included an overall budget of 15,466 tons for EGUs and non-EGUs. 
See, e.g., The NOX Budget Trading Program: 2008 
Highlights (October 2009) at 10, available at https://www.epa.gov/airmarkets/nox-budget-trading-program-historical-reports. While most 
of the overall budget was allocated directly to EGUs and non-EGUs 
(those shares were 13,793 tons and 947 tons, respectively), a 726-
ton portion was not assigned to either sector, but instead was 
placed in set-asides. To identify the portion of the overall 15,466-
ton budget attributable to non-EGUs that would be an appropriate cap 
for its replacement non-EGU rule, Maryland has therefore used the 
1,013-ton non-EGU portion of the overall budget of 15,532 tons 
established for Maryland's EGUs and non-EGUs under a different 
federal rule promulgated contemporaneously with the NOX 
SIP Call pursuant to CAA section 126. See 40 CFR part 97, subpart E, 
appendix C. In the absence of an express division of the State's 
overall NOX Budget Trading Program budget between EGUs 
and non-EGUs, EPA believes the State's approach to identifying an 
appropriate cap for its replacement non-EGU rule is reasonable.
    \5\ EPA's regulations implementing the NOX SIP Call 
are in 40 CFR 51.121.
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    To meet NOX SIP Call requirements and conform to COMAR 
26.11.40, Maryland revised regulation .07A of COMAR 26.11.14 Control of 
emissions from Kraft Pulp Mills to remove the 947 ton ozone season 
NOX cap that originally applied to the Luke Mill. A new 
provision in COMAR 26.11.14 establishes Luke's lower NOX cap 
via a cross reference to Luke's 636 ton per year cap in COMAR 
26.11.40.03. Regulation .07B removes the requirements for an owner or 
operator of a kraft pulp mill that exceeds the emission limit(s) 
specified in COMAR 26.11.14 to acquire one ozone season NOX 
allowance for every ton of NOX emissions over the limits to 
demonstrate compliance, and requires compliance instead to be 
demonstrated with the 636 ton per year cap via a CEMs meeting 40 CFR 
part 75. Maryland removed the provision for paper mills such as Luke 
Mill to acquire additional NOX allowances in order for the 
sources in the State to remain under Maryland's total NOX 
ozone season cap for the NOX SIP Call.
    Correspondingly, Maryland also revised a provision of COMAR 
26.11.01--General Administrative Provisions to remove the definition 
for ``NOX ozone season allowance'' which is no longer 
necessary because the revisions to COMAR 26.11.14 remove the 
requirement for fuel burning equipment at Luke to purchase 
NOX ozone season allowances for any exceedance over its 
specified limits.
    EPA finds that this May 2018 SIP submittal meets Maryland's 
NOX SIP Call requirements (including requirements in CAA 
section 110 and 40 CFR 51.121) for non-EGUs through: (1) New regulation 
COMAR 24.11.40 which updates the State's requirements to include all 
currently applicable large non-EGUs and any new non-EGUs under the 
NOX SIP Call; (2) the specified state-wide ozone season 
NOX emissions cap of 1013 tons which is consistent with the 
portion of the overall Maryland NOX emissions budget under 
the NOX Budget Trading Program attributable to non-EGUs, and 
(3) through the 40 CFR part 75 monitoring, recordkeeping and reporting 
requirements which apply for the affected non-EGUs. In addition, the

[[Page 39017]]

revisions remove the ability of kraft pulp mills that exceed their 
NOX limits and caps to comply by purchasing or otherwise 
acquiring NOX allowances from EPA's ozone season 
NOX trading program by removing these provisions in COMAR 
26.11.14 and 26.11.01. The removal of the provisions allowing purchase 
of additional allowances removes the potential for increased local 
NOX emissions.
    The May 15, 2018 Maryland SIP submittal does not result in 
increased NOX emissions, and therefore has no impact on any 
requirements related to attainment, reasonable further progress, or any 
other NAAQS requirements under the CAA. The submittal therefore meets 
section 110(l) of the CAA.

III. Proposed Action

    EPA's review of this material indicates that Maryland's May 18, 
2018 SIP revision submittal (Maryland SIP Revision #18-03) is 
approvable in accordance with CAA section 110. For the reasons noted 
previously, EPA is proposing to approve the Maryland SIP revision 
submitted on May 15, 2018. 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 action, 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 new Maryland regulation COMAR 26.11.40 and 
associated revisions to COMAR 26.11.01 and COMAR 26.11.14.07. EPA has 
made, and will continue to make, these materials generally available 
through http://www.regulations.gov and 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 action proposing approval of Maryland regulation 
COMAR 26.11.40 and associated revisions to other COMAR regulations 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Sulfur oxides.

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

    Dated: July 24, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.
[FR Doc. 2018-16778 Filed 8-7-18; 8:45 am]
 BILLING CODE 6560-50-P