[Federal Register Volume 83, Number 154 (Thursday, August 9, 2018)]
[Rules and Regulations]
[Pages 39365-39369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16992]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2017-0396; FRL-9981-96--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; 2011 Base Year Inventory for the 2008 8-Hour Ozone National 
Ambient Air Quality Standard for the Baltimore, Maryland Nonattainment 
Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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[[Page 39366]]

SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision for the 2011 base year inventory for 
the Baltimore, Maryland moderate nonattainment area for the 2008 8-hour 
ozone national ambient air quality standard (NAAQS). The State of 
Maryland submitted the emission inventory through the Maryland 
Department of the Environment (MDE) to meet the nonattainment 
requirements for moderate ozone nonattainment areas for the 2008 8-hour 
ozone NAAQS. EPA is approving the 2011 base year emissions inventory 
for the 2008 8-hour ozone NAAQS as a revision to the Maryland state 
implementation plan (SIP) in accordance with the requirements of the 
Clean Air Act (CAA).

DATES: This final rule is effective on September 10, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2017-0396. All documents in the docket are listed on 
the http://www.regulations.gov website. 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: Brian Rehn, (215) 814-2176, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On July 18, 1997, EPA promulgated a revised ozone NAAQS of 0.08 
ppm, averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS 
was determined to be more protective of public health than the previous 
1979 1-hour ozone NAAQS. See 44 FR 8202 (February 8, 1979). In 2008, 
EPA revised the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. See 73 FR 
16436 (March 27, 2008).\1\
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    \1\ On October 1, 2015, EPA strengthened the 8-hour ozone NAAQS 
to 0.070 ppm. See 80 FR 65292 (October 16, 2015). This rulemaking 
addresses the 2008 8-hour ozone NAAQS and does not address the 2015 
8-hour ozone NAAQS.
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    On May 21, 2012, the Baltimore, Maryland area was designated as 
moderate nonattainment for the 2008 8-hour ozone NAAQS. 77 FR 30088. 
The designation of the Baltimore, Maryland area as moderate 
nonattainment was effective July 20, 2012. The Baltimore, Maryland 
nonattainment area is comprised of Anne Arundel County, Baltimore 
County, Baltimore City, Carroll County, Harford County, and Howard 
County. Under section 172(c)(3) of the CAA, Maryland is required to 
submit a comprehensive, accurate, and current inventory of actual 
emissions from all sources of the relevant pollutants in its moderate 
nonattainment area.
    On October 3, 2017 (82 FR 46010 and 82 FR 45997), EPA 
simultaneously published a notice of proposed rulemaking (NPR) and a 
direct final rule (DFR) for the State of Maryland approving the SIP 
revision. EPA received adverse comments on the rulemaking and withdrew 
the DFR prior to the effective date of December 4, 2017. In this final 
rulemaking, EPA is responding to the comments submitted on the proposed 
revision to the Maryland SIP and is approving Maryland's 2011 base year 
emissions inventory for the 2008 8-hour ozone NAAQS.

II. Summary of SIP Revision and EPA Analysis

    Under CAA section 172(c)(3), states are required to submit a 
comprehensive, accurate, and current account of actual emissions from 
all sources (point, nonpoint, nonroad, and onroad) in the nonattainment 
area. CAA section 182(a)(1) and (b) requires that areas designated as 
nonattainment and classified as moderate submit an inventory of all 
sources of ozone precursors no later than 2 years after the effective 
date of designation.
    On December 30, 2016, MDE submitted a formal revision (SIP #16-16) 
to its SIP. The SIP revision consists of the 2011 base year inventory 
for the Baltimore, Maryland nonattainment area for the 2008 8-hour 
ozone NAAQS. In accordance with EPA's requirements for ozone SIP 
planning, ``Implementation of the 2008 National Ambient Air Quality 
Standards for Ozone: State Implementation Plan Requirements,'' MDE 
selected 2011 for its base year emissions inventory. See 80 FR 12263 
(March 6, 2015). MDE's 2011 base year inventory includes emissions 
estimates covering the general source categories of stationary point, 
area (nonpoint), quasi-point, nonroad mobile, onroad mobile, and 
Marine-Air-Rail (M-A-R).
    EPA reviewed Maryland's 2011 base year emission inventory's 
results, procedures, and methodologies for the Baltimore, Maryland 
moderate nonattainment area and found them to meet the applicable 
requirements for approval under sections 110, 172(c)(3) and 182(a)(1) 
and (b) of the CAA.
    Other specific requirements of Maryland's 2011 base year emissions 
inventory for the 2008 8-hour ozone NAAQS and the rationale for EPA's 
proposed action are explained in the prior direct final rule (DFR) and 
its accompanying NPR and will not be restated here. EPA received public 
comments on the NPR that will be addressed in section III of this 
rulemaking.

III. Response to Comments

    During the comment period, EPA received several anonymous comments 
on this rulemaking. EPA is responding to the comments submitted 
specific to this action on the proposed revision to the Maryland SIP. 
All other comments received were not specific to this action and thus 
are not addressed here.
    Comment 1: The Commenter claims Maryland assumed Stage II controls 
were in effect even though the State has ``exercised enforcement 
discretion for new and existing sources effectively eliminating all 
reductions from any [Stage II] controls.'' Commenter provides a 
memorandum from MDE's Air & Radiation Management Administration (ARMA) 
titled ``Stage II Vapor Recovery Systems--Enforcement Discretion Policy 
(March 20, 2014).''
    Response 1: EPA notes that Maryland's 2011 base year emissions 
inventory analysis for the 2008 ozone NAAQS was performed for calendar 
year 2011 using 2011 emissions data. Maryland continued to implement 
and enforce the Stage II program prior to issuance of MDE's enforcement 
policy on March 6, 2014, suspending state enforcement of the program 
from that time forward. Maryland intended to subsequently repeal the 
Stage II rule and to submit to EPA a SIP revision to remove the program 
from the SIP. Maryland submitted a SIP revision to EPA to remove the 
Stage II program from the SIP on August 28, 2017. However, the Stage II 
program was in operation and was being enforced in 2011. Therefore, EPA 
believes Maryland correctly estimated its 2011 emission inventory to 
include the Stage II program as an implemented, enforceable emission 
control measure. Therefore, EPA finds Maryland correctly estimated its 
emissions inventory to reflect Stage II as a control measure in place 
in the 2011 base year inventory period.
    Comment 2: Commenter claims that the emissions calculations for 
``Open Burning--Land Clearing'' uses an ozone

[[Page 39367]]

season of only 92 days, which is not even half of the full ozone 
season.
    Response 2: Maryland chose to use the peak ozone period of June to 
August (92 days) for the ``Open Burning--Land Clearing'' emissions 
calculations as their ozone season.\2\ Under EPA's ``Emissions 
Inventory Guidance for Implementation of Ozone and Particulate Matter 
National Ambient Air Quality Standards (NAAQS) and Regional Haze 
Regulations (July 2017),'' the state shall ``select the representative 
months and work week days to include in the calculation of the ozone 
season day emissions. The temporal basis for these emissions should be 
representative of the conditions leading to nonattainment, as 
recommended by the state.'' \3\ EPA finds that Maryland's calculations 
in the 2016 SIP submittal comply with the current guidance in choosing 
to select June to August as the ozone season for the ``Open Burning--
Land Clearing'' emissions calculations, as Maryland states these months 
are typically peak ozone season.
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    \2\ See EPA-R03-OAR-2017-0396-0005, page 109.
    \3\ See https://www.epa.gov/sites/production/files/2017-07/documents/ei_guidance_may_2017_final_rev.pdf, page 72.
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    Comment 3: Maryland assumed that ``commercial and industrial 
sources only operated 6 days a week instead of 7.'' Commenter notes 
that ``nothing in Maryland prevents businesses from operating 7 days a 
week and so Maryland should have used 7 days a week.''
    Response 3: While Commenter is not specific as to which commercial 
and industrial sources are of concern, EPA's Emission Inventory 
Improvement Program (EIIP) guidance (May 2001) provides flexibility in 
the operation days. For example, the guidance for solvent cleaning 
operations states, ``Daily variations may apply for some of the 
industries. Some industries operate seven days per week, others only 
five days. Some industries are likely to operate two or three shifts 
per day, others may only have one.'' Therefore, ``the default value of 
uniform activity through the year is six days per week.'' \4\ EPA finds 
that Maryland performed the calculations in accordance with the EIIP 
guidance.\5\
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    \4\ See https://www.epa.gov/sites/production/files/2015-08/documents/iii06fin.pdf, page 6.3-9.
    \5\ See https://www.epa.gov/air-emissions-inventories/air-emissions-inventory-improvement-program-eiip for all EIIP technical 
reports.
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    Comment 4: Commenter claims Maryland's inspection and maintenance 
(I/M) program is improperly represented in the emission modeling 
parameters selected by Maryland in the Motor Vehicle Emission Simulator 
(MOVES) modeling used to estimate the highway mobile source emissions 
portion of the emission inventory, which are used to calculate 
emissions benefits from the I/M program. The commenter claims MOVES 
parameters for I/M program coverage incorrectly included an I/M program 
motorist compliance rate of over 96% when the state is known to ``have 
a large number of (vehicle) failures that never return to get 
rechecked.'' Additionally, the commenter states that ``Maryland allows 
for almost 6 months of extensions after first testing and finding a 
problem that has to be fixed. This means that if a car is failing in 
the second half of the year it is possible to have a violating vehicle 
for the rest of the year meaning compliance is not achieved.'' 
Commenter would like EPA to require Maryland to use actual I/M data 
collected by the Maryland program to be used to set the I/M program 
parameters of the MOVES model instead of MOVES default parameters as 
this would reduce the reductions attributed to the I/M program and 
change the area's overall emissions inventory.
    Response 4: The I/M program motorist compliance rate is represented 
by the number of complying vehicles (i.e., vehicles with a confirmed 
final I/M test outcome, either passing the test or receiving a waiver 
from doing so) divided by the number of vehicles subject to testing in 
the area x 100. Maryland collects statistics for its Vehicle Emissions 
Inspection Program (VEIP) on an ongoing basis, and per a requirement of 
the federal requirements for I/M programs, annually reports program 
summary data to EPA for the prior calendar year. For purposes of the 
2011 base year inventory, the relevant I/M annual report from Maryland 
to EPA was submitted on August 15, 2012, representing calendar year 
2011.\6\ For 2011, MDE reported that a total of 1,562,895 vehicles were 
tested under the VEIP program. Of these, 1,424,557 vehicles initially 
passed and 138,338 vehicles failed the VEIP test. Of the initial 
failures, 14,442 ultimately received a test ``waiver'' outcome after 
spending money for repairs up to a limit established by the VEIP 
program (but still not passing a test). Therefore, a total of 1,438,99 
out of 1,562,895 vehicles received some form of final VEIP test outcome 
(either a passing test or a waiver) by the end of calendar year 2011, 
for a 92% compliance rate. However, Maryland calculated an overall 97% 
I/M program motorist compliance rate for the 2011 calendar year, when 
taking into account vehicles that received legally granted compliance 
extensions, but received a final outcome by the following July.\7\ 
Maryland's 2011 I/M report tracks outcomes for these delayed compliance 
vehicles from the end of 2011 through July 2012 and factors them into 
an adjusted compliance rate for calendar year 2011. In doing so, MDE 
has attempted to account for many of the initially failing vehicles in 
the 2011 calendar year that did not receive a final I/M test outcome by 
the end of 2011. Taking into account these late complying vehicles, as 
well as vehicles that were identified as having been scrapped or 
relocated outside the I/M program area, MDE's calculated motorist 
compliance rate reached 96%, very near to the compliance rate assumed 
by MDE in the MOVES modeling performed to support the 2011 base year 
emission inventory.\8\ EPA finds that the MDE made a reasonable 
estimate of I/M program motorist compliance rate for its base year 
inventory. Based on our review of state-reported 2011 I/M program data, 
EPA disagrees with the Commenter that the I/M program motorist 
compliance rate assumed by MDE for the base year inventory was not 
achieved in practice. See 40 CFR part 51.351(12).
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    \6\ See Maryland's I/M annual report for calendar year 2011, 
dated July 2012, as submitted to EPA from MDE via letter to Brian 
Rehn from Marcia Ways, dated July 15, 2012.
    \7\ See Maryland's July 2012 IM Annual Report to EPA, dated July 
2012, pages 4-17 for further details on MD's motorist compliance 
rate, based on actual 2011 I/M program data.
    \8\ See EPA-R03-OAR-2017-0396-0005, page 261.
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    Comment 5: Commenter requests that EPA fully evaluate all 
calculations to ensure Maryland has used the proper methodologies and 
assumptions.
    Response 5: EPA has reviewed the stationary point source, area 
source, highway mobile, and nonroad mobile source sector emissions 
estimates for the 2011 base year inventory and is satisfied that MDE 
has followed the appropriate guidelines and used the latest available 
information to support its base year inventory estimates. EPA has 
reviewed the 2011 base year inventory for the Baltimore, Maryland 
moderate nonattainment area for the 2008 8-hour ozone NAAQS and finds 
that Maryland has followed the guidance for a base year inventory 
submission.

IV. Final Action

    EPA is approving the Maryland SIP revision which includes the 2011 
base year inventory for the 2008 8-hour ozone NAAQS for the Baltimore, 
Maryland moderate nonattainment area because the inventory was prepared 
in accordance with requirements in sections 110, 172(c)(3) and 
182(a)(1) and

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(b) of the CAA and its implementing regulations including 40 CFR 
51.915.
    After receipt of adverse public comment on our prior direct final 
rule, EPA published an action to withdrawal the direct final rule (82 
FR 66611, November 22, 2017). This withdrawal occurred prior to the 
effective date for the direct final action, preventing 40 CFR 
52.1075(r) from being added to the SIP through the direct final action. 
With this final rule, EPA is now adding 40 CFR 52.1075(r) to Maryland's 
SIP.

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);
     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 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 October 9, 2018. 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 Maryland's 2011 base year inventory for the 
2008 8-hour ozone NAAQS for the Baltimore, Maryland moderate 
nonattainment area 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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

    Dated: July 26, 2018.
Cecil Rodrigues,
Acting 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 (e) is amended by adding an 
entry for ``2011 Base Year Emissions Inventory for the 2008 8-Hour 
Ozone National Ambient Air Quality Standard'' at the end of the table 
to read as follows:


Sec.  52.1070   Identification of plan.

* * * * *
    (e) * * *

                            EPA Approved Non-Regulatory and Quasi-Regulatory Material
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  Name of non- regulatory SIP        Applicable           State
            revision               geographic area   submittal date   EPA approval date   Additional explanation
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                                                  * * * * * * *
2011 Base Year Emissions         Baltimore,              12/30/2016  8/9/2018 [Insert    See Sec.   52.1075(r).
 Inventory for the 2008 8-Hour    Maryland 2008                       Federal Register
 Ozone National Ambient Air       Ozone Moderate                      citation].
 Quality Standard.                Nonattainment
                                  Area.
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0
3. Section 52.1075 is amended by adding paragraph (r) to read as 
follows:


Sec.  52.1075   Base year emissions inventory.

* * * * *
    (r) EPA approves as a revision to the Maryland state implementation 
plan the 2011 base year emissions inventory for the Baltimore, Maryland 
moderate nonattainment area for the 2008 8-hour ozone national ambient 
air quality standards submitted by the Maryland Department of the 
Environment on December 30, 2016. The 2011 base year emissions 
inventory includes emissions estimates that cover the general source 
categories of stationary point, quasi-point, area (nonpoint), nonroad 
mobile, onroad mobile, and Marine-Air-Rail (M-A-R). The inventory 
includes actual annual emissions and typical summer day emissions for 
the months of May through September for the ozone precursors, VOC and 
NOX.

[FR Doc. 2018-16992 Filed 8-8-18; 8:45 am]
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